UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

r ¯ ¯`: i-'·.¯

STATES OF AMERICA,
Plaintiff,
OF MICHIGAN, J . BLANCHARD, Governor o f Michigan, ICHIGAN CORRECTIONS COMMISSION; ANDREW, Chairman, Michigan Corrections Conmission,
EARDLEY, ROBERT COTTON,
WATERS,
L·E DUC, Members, Michigan Corrections Commission, ICHIGAN DEPARTMENT OF CORRECTIONS,
M. JOHNSON, Director, Michigan Department of Corrections,
BRCWN, JR., Deputy Director, Michigan Department of Corrections,
FOLTZ, Regional Administrator, State µPrison of Southern Michigan,
JABE, Warden, Michigan Reformatory, 3RE KOEHLER, Warden, Marquette ^Branch Prison, PREL·ESNIK, Administrator, Reception l·and Guidance Center, State Prison of ^Southern Michigan,
BERGMAN, Administrator, Michigan ,Intensive Programming Center,
Defendants.

F i l e No. G84-63

U.S. v. Michigan

••••

• •

HH

H H

H H

PC-MI-0007-0006

ORDER In accordance with the opinion of November 3, 1989; IT IS HEREBY ORDERED that the compliance ratings of the October 1989 :>rt of the Independent Expert, as amended by the Independent Expert through testimony on November 2, 1989 are ADOPTED by the Court. IT IS FURTHER ORDERED that the following schedule is ADOPTED for 1990:

OG39G

Event Michigan report

Week
0

April Hearing 12/13

October Hearing 6/06

Independent Expert

Report Draft

4

1/10

7/04

Major Motions and

Expert Reports

10

USA/Amici Response

12

Michigan Response

14

2/21 3/08 3/21

8/15 8/29 9/12

Independent Expert

Final Report

16

Compliance/Hearing

17

4/04 4/18-20

9/26 10/10-12

IT IS FURTHER ORDERED that motions will not be accepted after deadline

without express permission from the Court, upon recomnendation to the Court

the Independent Expert.

IT IS FURTHER ORDERED that all expert witnesses and their area of

:ise must be identified by deadline #3. No expert witness identified after

¿s date will be allowed to testify without the express permission of the Court

upon recommendation by the Independent Expert.

IT IS FURTHER ORDERED that all expert witnesses must file an expert

:>rt by deadline #3.

IT IS FURTHER ORDERED that all parties and amici are required to

to the draft report of the Independent Expert by deadline #4 or #5 as

?ropriate. The response shall identify the provision, location, and rating

ìllenged, and the basis for the challenge.

IT IS FURTHER ORDERED that at the pre-hearing conference the parties

111 establish a schedule for the hearing that allocates reasonable and balanced

allotments for the examination and cross-examination of witnesses within

limits of the time scheduled for the hearing. This schedule is subject to

?roval by the Court.

CG397

IT IS FURTHER ORDERED that the defendants' motion for a protective =r terminating or restricting discovery by the Knop amicus is DENIED.
IT IS FURTHER ORDERED that defendants' motion for modification of the site selection date is GRANTED. IT IS FURTHER ORDERED that the Knop amicus' motion requesting a ring before the imposition of food loaf is GRANTED in part and DENIED in
IT IS FURTHER ORDERED that the Knop amicus' motion requesting an order at defendants cease punishing prisoners with disciplinary write-ups for filing rievances is DENIED.
IT IS FURTHER ORDERED that the Knop amicus1 motion for an order liring defendants to cease the practice of denying any prisoner a minimum of [three showers per week is GRANTED.
IT IS FURTHER ORDERED that the Knop amicus' motion requesting that [sanitation items related to the presence of vermin be inspected and considered
the Court at both the fall and spring compliance hearings is DENIED. SanitaDn will continue to be considered by this Court during the spring ccrpliance [hearing.
IT IS FURTHER ORDERED that the defendants develop by February 1, 1990, plan illustrating how they plan to manage the correctional population projecti by their research division. The plan may incorporate alternatives to prisons well as sentencing modifications to meet their objectives. Nevertheless, the Plan should address the achievement and maintenance of compliance with provisions relating to prison overcrowding at Consent Decree facilities, implemenation of classification without excessive mis-assignment and the provision of Eficient treatment capacity for mentally ill prisoners.

IT IS FURTHER ORDERED that by February 1, 1990, the defendants must
Rgvelop practices and procedures regarding the Self Mutilation Protection Unit
1
(•SMPU") that comply with the following principles: In order for a prisoner to participate in the SMPU, the prisoner must be a) not seriously mentally ill and therefore not an appropriate candidate for placement in intermediate, comprehensive, or acute care units; and b) assigned to administrative segregation in the normal custody process.
If a prisoner meets the above criteria, acceptance into the SMPU program is a medical, not a custody decision.
Once a prisoner is in the SMPU, decisions to initiate, modify, or terminate, concerning restriction and deprivation, that are normally authorized for any prisoner within administrative segregation, will be made by custody staff. Decisions concerning the initiation, modification, or termination of restrictions or deprivations unique to SMPU prisoners must be made solely by treatment staff, based on an individual assessment of the behavior and needs of the prisoner. Such an assessment and decision must be made by treatment staff who are assigned to the program, and who have directly observed and examined the prisoner.
IT IS FURTHER ORDERED that the defendants resubmit their medical
plan pursuant to Section K of the Consent Decree for approval by January
1990.

DATED in Kalamazoo, MI:

RICHARD A. ENSLEN U.S. District Judge

OG398

 
 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

ÍITED STATES OF AMERICA,
Plaintiff,
OF MICHIGAN; J. BLANCHARD, Governor of Lchigan; IGAN CORRECTIONS COMMISSION; ANDREW, Chairman, Michigan ;prrections Commission; JMAS EARDLEY; [ROBERT COTTON; ÏYNE WATERS; '¯ LE DUC sers, Michigan Corrections aission; CGAN DEPARTMENT OF CORRECTIONS; { M. JOHNSON, Director, Michigan tpartment of Corrections; SRT BROWN, JR., Deputy Director; ïchigan Department of Corrections; B FOLTZ, Regional Administrator, ate Prison of Southern Michigan; LJABE, Warden, Michigan Reformatory; IpOR£ KOEHLER, Warden, Marquette tanch Prison; RELESNIK, Administrator, eption and Guidance Center, Ite Prison of Southern Michigan;
^BERGMAN, Administrator, Michigan tensive Programming Center,
Defendants.

F i l e No. G84-63 CA
U.S. v. Michigan
lilli

ORDER
oral
« B B that the

provisions a r e r a t e d

Fire Safety

04 Combustibles Storage 14 Fixed Dry Chemical Extinguisher 16 Adequate Egress Plan 25 Enclose S t a i r s - Two-hour Fire Resistance 26 Breathing Apparatus 28 Fire•Separation - Callblocks 32 Magnetic Hold-open Devices 36 Remote Electric Release Locks
Sanitation

SPSM
S?SM MR MR MR, S?SM, MBP SPSM S?SM SPSM

02 Duplex Outlets - Adequate Light 08 Pipe cases and Severs Maintained 15 Food Service Sanitation 18 Barbering 20 Hot and Cold Water 26 Correct Existing Plumbing

MR, SPSM MR, SPSM, MBP MR, S?SM SPSM MR MR, SPSM

Sanitation Plans

12 Mattress Sanitation

MR, SPSM

Sanitation 7/27/37 Order

07 SPSM Bird/Vermin Control 12 Outlet/Lighting Plan

SPSM MR, SPSM

Overcrowding & Protection from Harm

24 Sufficient Staff 25 Out-of-cell Plan 30 Admin Seg & PC Exercise 31 Operational Locks 32 Indoor exercise 34 MR cell size project

SPSM MR, SPSM, MBP MR, S?SM, MBP S?SM MBP MR

IT IS FURTHER ORDERED that defendants' motion for modification

the shower provision is SSAJITSD. Section II, Paragraph C of

?endix A of the State Plan is AHEHDED to read as follows:

Each prisoner shall be afforded the

opportunity to shower at least three times per

week.

Prisoners in administrative or

disciplinary segregation who are disruptive,

disobedient, assaultive or who threaten such

behavior when being escorted by Correctional

Officers, may be restricted to one shower per

week, provided that the Deputy Warden

0GS91

documents in writing the basis for ¯ the

restriction and that the restriction not be

i)

imposed for longer than thirty days. The

restriction may be extended for additional

periods of not more than thirty days upon

written explanation of the Deputy Warden,

based on subsequent escort related misconduct.

IT IS FURTHER ORDERED that the defendants' motion for modification of the Consent Decree provision mandating a two hour fire separation in the gun posts is DENIED. The COURT further ORDERS the parties to confer to develop an appropriate solution to this problem. If a solution is not jointly proposed to the Court by August 1, 1990, the Independent Expert shall recommend a solution to the Court.
IT IS FURTHER O R D E R E D that plaintiffs' motion for further relief under Paragraph D of the Consent Decree is GRANTED. Defendants shall submit a plan under Secrtion K of the Consent Decree containing the measures summarized in the Bolden Status Report dated 4-11-90. This plan shall provide the degree of detail and the methods for on-going maintenance of compliance with the provisions in the Bolden Status Report.
IT IS FURTHER OPRDSRED that defendants' motion to modify dates for architect selection and planning funds released by the Joint Outlay Subcommittee (JCOS) for the new mental health facility is DENIED as moot.
IT IS FURTHER ORDERED that defendants' motion to modify completion dates for renovation projects in the Consent Decree's Sanitation and Crowding/Protection provision is DENIED. Defendants shall develop a plan pursuant to Section K of the Consent Decree
3
00S92

that identifies each project, the scope of work associated with the project, the provisions affected by the project, and a realistic but definite time table for completion of the project that includes significant interim milestones.
IT IS FURTHER ORDERED that the Knop amicus' motion for enforcement of the State Plan for Compliance for further relief and for clarification is GRANTED TH PART and DENIED I2ï PART as follows:
A. Enforcement of Certain State Plan Provisions. This motion has been GRANTED in that defendants have been ordered to provide a Section K plan as provided for above.
B. Building Trades Inspection Deficiencies. This motion is GRANTED. Defendant shall develop a Section K plan addressing the deficiencies identified in the recent Building Trades Inspection Reports.
C. Development of a Section K Plan on Toxic Waste. This motion is DE2íIED.
D. Require Defendants to Cease Denvinq Exercise to Prisoners Except as Permitted under State Plan. This motion is GRANTED. Within ninety days of this Order, defendants will modify their conduct with respect to denying prisoners' access to exercise and will comply with the plain language of the State Plan.
E. Clarification of the Definition of Inclement Weather and Recreation Access During Inclement Weather. This motion is GRANTED. Defendants may either adopt the following definition of inclement weather:
OüS93

1. The exercise yard is covered with snow, ice or

,'

water;

2. The temperature is below twenty degrees;

3. It is raining; 4. The wind is blowing at twenty-five miles per hour or more; 5. There is a weather-related safety threat such as lightening or tornado; or they may continue their actual current practice at Marquette Branch Prison of offering general population prisoners access to at least three (3) hours per prisoner per weeJc of indoor exercise in addition to yard time. F. Access to Consent Decree Related Documents. This motion is DENIED. G. Retaliation. This motion is DENIED. IT IS FARTHER ORDERED that the Knop amicus' motion to enforce food loaf order is GRANTED ia part. PB-3CF-50.04 shall be amended to reflect that the required hearing upon imposition of food loaf be held within three days of the imposition of food loaí.

IT 13 ?URTHER ORDERED that the Knoo amicus' motion for a preliminary injunction is DENIED WITHOUT PREJUDICE.

Dated: ,C ,.- A / / £•'

¯ 7/
URnIiCtHeAdRDStAa.teEsNSDLiZsNtrict Judge

CGGS4

 
 U.S. v. Michigan

¡^\ i

PC-MI-0007-0008

Ÿ
UNITED STfTES DISTRICT COURT WESTERN DISTRICT OF MICïàöAN
SOUTHERN DIVTSION

' » v3t¾*Jç¯f § § N `ORRŠCT¯¯}c?¿jä
~ `

UNITED STATES O F AMERICA.,

¿ssiGNEúTO:

Plaintiff - Appellee,

— ¯¯

GARY KNOP; JOHN FORD; WILLIAM LOVETT, II; RAMANDO VALEROSO; GUS JANSSON; ?AT SOMMERVILLE; VERNARD COHEN; JON S?YTMA; ROBERT SHIP?; BUTCH DAVIS; RON MIXON; KERWIN COOK, individually and on behalf o f all others similarly situated,

Amici Curiae - Appellees,

v

.

File No. Ga4-O6 3-CA

STATE OF MICHIGAN,

HON. RICHARD A. SNSLZN

Defendant - Appellant,

JAMES J. 3LANCHARD, Governor, o f the State of Michigan; THE MICHIGAN CORRECTIONS COMMISSION; GWEN ANDREW, Chairman, Michigan Corrections Commission; THOMAS EARDL2Y; DWAYNE WATERS; DON P. L2DUC, Members, Michigan Corrections Commission; MICHIGAN DEPARTMENT OF CORRECTIONS; PERRY JOHNSON, Director, Michigan Department of Corrections; ROBERT BROWN, JR., Deputy Director, Michigan Department of Corrections; DALE FOLTZ, also known as John Jabe, RegionalAdministrator, State Prison of Southern Michigan; JOHN JABE, Warden, Michigan Reformatory; THEODORE XOEHLER, Warden, Marcruette Branch Prison; JOHN ?RSLSSNTX, Reception & Guidance Center, State Prison of Southern Michigan; JACK BERGMAN, Administrator, Michigan Intensive Programming Center,

Defendants.

NOTIŒ OF APPEAL
NOTICE i s hereby given that a l l of the above named Defendants in the above related matter by a¤,à throuah their attorneys, Frank J. Keiley, Attorney General for the Stats of Michigan, and Susan Przekop-Shaw, Assistant Attorney General, hereby ap¤eal to the United States Court of A¤Deals for the Sixth
OG695

Circuit from the Order issued by Honorable Richard A. Snslen entered in this action on May i, 1990.
Respectfully submitted, FRANK J. KELL2Y

Date: May 31, 1990 /8 9A/8 9O258 8/NOTIC2S

. iaw (P3Ö49S; Assistant Attorney General Corrections Division P.O. Box 30216 Lansing, MI 48909 (517) 334-8000
FRCOr OF S£HV;C£
The undersigned certifies that a copy cf the foregoing document (s) was served upon tí:s attorneys of record or parties appearing in pro per in the above cause by mailing tne slme to them at their respective address with postage fully prepaid thereon, on the

COG96

 
 MAY-01-1992 15:22 FROM CRT SPEC LIT

TD

48490 P. 02

2B` THE UNITED SPATES D I S T Ä J C T COURT FOR TBS WEST2ÄÍ DISTRICT of MICHIGAN
SOUTHERN DIVISION

U.S. v. Michigan

DÎTETSD STATES OF AMERICA, Plaintiff,
V.
STATS OF HSCBIGAN, et al. Defendants,

PC-MI-0007-0009
)
) C i v i l Ko. <S84¯«3-CA }
MOM. RICHARD A. )
J

STIPULATIOK OF DISMISSAL AS TO

The parties to this action/ the united States of America, Plaintiff/ and the State of Xichiga», «t al·. Defendants, stipulate and agree that:
1. Oft July IS, 1934, the Court entered a Consent Decree to assure constitutional conditions vithin Michigan's prisons in the folloving areas:
a. Medical and Mental Health Care; b. Fire Safety; c. Sanitation/ Safety and 8ygriene; d. Crowding and Protection from Harm; and, e. Access to Court and Legal Mail. 2. The parties stipulate that the termination clause of the Consent Decree entered July 16, l$84, ¶R at 5/ which requires compliance with a l l the terras cf the Decree prior to termination of Court jurisdiction, i s hereby vacated.

MflY-01-1992 15=22 FROM CRT SPEC LIT

TO

48490 P.03

¯j.
3. The parties stipulate that termination of the Court's jurisdiction may be sought by either party as to any provision of the Decree when Defendants are in compliance with constitutional requirements.
4. over the intervening years* the parties have monitored Defendants' compliance with the Consent Decree, the State Plan for Compliance and additional plans and orders entered in this ease. The parties now agree and stipulate that Defendants are in substantial compliance with the Consent Decree and have achieved the goal of the Decree by assuring at least constitutional conditions with respect to: radical care; fire safety; sanitation, safety and hygiene; crowding and protection from harm; and, access to courts and legal Bail.
5. Tha parties agree that all outstanding mental health issues in this case have been addressed in the Stipulation Regarding Mental Health Issues filed April 20, 1992. The parties contemplate that by June IS, 1993, Defendants will have achieved substantial compliance with the Stipulation Regarding Kent a 1 Health Issues filed April 20, 1992, and that at that time either party, jointly or unilaterally, may seek termination of the . ¯ mental health provisions of the Consent Decree. Nothing in this Stipulation should be construed as an admission that constitutional violations currently exist as to mental health care.
€. Accordingly, inasmuch as the parties agree that Defendants have met constitutional conditions in the areas of
- 2-

MPY-01-1992 15:23 FROM CRT SPEC LIT

TO

48490

P. 04

Medical care; Fire Safety? Sanitation, Safety and Hygiene, and

crowding and Protection From Sana; Access to Courts and Legal

Mail, the parties agree that the consent Decree should be

dismissed and jurisdiction and supervision of the Court

terminated as to those issues.

Respectfully submitted,

For the United States:

For the State of Michigan, et al·t

JOHN R. DUNNE
Assistant Attorney 6eneral Civil Rights Division

J. KELLEY
Attorney General

JOHN A. SMIETAKXA united States Attorney Western District of Michigan

STATS OF MICHIOAK

H e l l i e HT Nelson"" Laurie J. Weinstein Timothy R. Payne P h i l i p A. Guzman
Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 37Ô76 Washington, D.C. 2OOI3·?O7€ (202) 514-6408

Dateî

. fi*IÍL

\>*&‰*tá>'/7Aû×ê

Tusan

¾

Barbara A. Schmidt

Assistant Attorneys General

Corrections Division

Attorneys for Defendants

Date;

 
 MGY-01-1992 l 5 ¡ 2 3 FROM CRT SPEC LIT

TD

48490 P.05

U.S. v. Michigan

PC-M I-0007-0010
IS THE UNITED STATES DISTRICT COURT tOR THE TOSTE8K DISTRICT OF MICHIGAN
SÔUTHERK¯ DIVISION

STATES OP AK£ÄICA, )

Plaintiff,

)

)

)

V.

)

)

)

STATS OF MICHIGAN/ e t • I . , )

Defendants.

}

)

)

NO. G-84-€3 Honorable Richard A. Enslen

JOINT MOTION OF TH£ WISED STATES AND STATE OF MICHIGAN DISMISS PORTIONS OP THE CONSENT DECRg¾

The United States oí America, 2ìaiatiff, and the state of Michigan,, et al*, Defendants, pursuant to Rules éO(b)(S) and Federal Rules ¢>f civil Procedure, move the Court to dismiss the provisions of the Consent Decree filed on July 16, 19Ô4, vith

which the parties agree that Defendants are in substantial compliance, and have achieved the goals of the Decree by assuring

at least constitutional conditions. These provisions pertain to: Äedical care,· fire safety; sanitation, safety and hygiene; crowding and protection from ham; access to the courts and legal mail.

The parties further move the Court to approve the

modification of paragraph R of the Consent Decree to r«adí
Termination of the Court's jurisdiction may be sought by either party as to any provision

MPY-01-1992 15:23 FROM CRT SPEC LIT

TO

48490 P.06

of the Decree when Defendants are in compliance vith constitutional requirements. Filed simultaneously with this motion'is the parties' 'Stipulation Of Dismissal Of All Issues Except Mental Health.' The Stipulation sets forth the parties' position that Defendants are in substantial compliance with the Consent Decree and have achieved at least constitutional conditions vith respect to the issues pertaining to medical care; fire safety; sanitation, safety and hygiene; crowding and protection from harm; acce'ss to the courts and legal mail. Furthermore/ the stipulation replaces the termination clause (Paragraph It) of the Consent Decree and allows termination as to specific provisons as set forth above. Nothing in this motion or accompanying memorandum of lav in support of this motion should be construed as an admission that constitutional violations currently exist as to mental health care issues.
The Court is respectfully referred to the accompanying memorandum of law in support of this motion.

-2-

MAY-01-1992 15:24 FROM CRT SPEC LIT

TO

48490 P. 07

submitted,

For the United States:
JOHN R. OCNÎfE
Assistant Attorney General Civil Rights Division
JOHN A. SMŒETANXA tJnited states Attorney Western District of i

?or the State o£ Ki<=higan, et al. FRA2îK J. XELX£Y Attorney ðeneral
STATS OF MICHIGAN

K. Nelson ‰aurie J. Weinstain Tiïaôt¾iy R. Paynâ Philip A. <3u2aaA Attorneys U*S. Department of Justice Civil Rights Division Special Litigation Section P.O. Box 37076 Washington, D.C. 20013-7076 (202) 514-6408
Oate: April 29, 1992

Barbara X. selmidt Assistant Attorneys General Corrections Division Attorneys for Defendants

 
 CHARLES USTES$ D0NP.UOUC: RO9tRTBROWRJR.; GRAHAM ALUEN; ELTON I. SCOTT PAMWrTHROW; FRANK ELO: MARJOR£ VAN OCHTIN;
JOHN PRELESNIK;

IT IS HeREBY OROERED that th· automatic •lay provtdad for m Vw Prtaon Litigation n·tomi Act ¾ iimrntwtr¾rtHTìTf trU - * 1 " r t ^ •*^* » ^ * ****^ nr"^*9 * " f Cou(f· d·cWon on U·¢·»Uaiita· motion to I w m i n f th· Con—i< O·crM.

O«t·d in Katamazoo, Mh

RICHARO ChWJudg·

U.S. v. Michigan PC-MI-0007-0011

T¤TÍ3L P.CK

UNITED STATES DISTRICT COURT

--` J``~ "?> Pìl 2' 13

FOR THE WESTERN DISTRICT OF MICHIGAN

. UAÜ.S>,;!> t;

• i . ; J l ¯ h i n , . i Ì*¡I,I s¿: t*:'·'. •

UNITED STATES OF AMERICA,
Plaintiff,
v
STATE OF MICHIGAN; JOHN ENGLER, Governor of Michigan; MICHIGAN DEPARTMENT OF CORRECTIONS; KENNETH M. McGINNIS, Director, Michigan
Department of Corrections; DAN L BOLDEN, Deputy Director,
Michigan Department of Corrections; JOHN JABE, Regional Administrator,
State Prison of Southern Michigan; PAMELA K. WITHROW, Warden, Michigan
Reformatory; and JOHN HAWLEY, Warden, Marquette
Branch Prison,
Defendants. I

File No. 1:84 CV 63 HON. RICHARD ALAN ENSLEN

OPINION
This matter is before the Court on two motions. The first is the joint motion to dismiss portions of the Consent Decree at the Marquette Branch Prison and the Michigan Reformatory, filed June 10, 1996. The second is defendants' motion for immediate termination of the Consent Decree, pursuant to the Prison Litigation Reform Act ("PLRA" or "the Act"), Pub. L No. 104-134,110 Stat 1321, amending 18 U.S.C. § 3626, filed June 11,1996.

The complaint in this action was filed on January 18, 1984 pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. § 1997. The Consent Decree was approved by this Court on July 13,1984, and filed on July 16,1984. The terms of the Consent Decree involve six broad areas, and twenty-eight specific areas, of prison conditions. Attached to the Consent Decree as exhibit A is the State Plan for Compliance, which sets forth the specifications for compliance.
The parties have agreed that certain portions of the Consent Decree have been complied with at the Marquette Branch Prison and the Michigan Reformatory. Terminating those portions of the Decree will decrease the number of issues that the Court wi!l need to address under the PLRA standard. Therefore, the parties' joint motion will be considered first. I. Joint Motion to Terminate Portions of the Consent Decree
The parties move, pursuant to Rules 6O(b)(5) and (6) of the Federal Rules of Civil Procedure, for dissolution of all of the remaining provisions of the Consent Decree applicable to the Marquette Branch Prison ("MBP"), which includes the Michigan Intensive Programming Center ("MIPC") because it has been merged into MBP, and the Michigan Reformatory ("MR"), with the exception of the provisions relating to medical and mental health care. These provisions involve sanitation, safety and hygiene; fire safety; crowding and protection from harm; access to the courts; and legal mail. Although the joint motion does not mention the issue of classification, based upon the exhibits on the classification system that were submitted with the motion, the Court understands the motion to include Section D.1 on page 6 of the Consent Decree, which requires the defendants to design

7- 3-3·ì i S : l 5

; ¯ i i s ? ?.c·«ljr. d

- _... ^ -, -...
.1. . ¯. ••• ¯ • r

and implement a professionally-based classification system. Partial termination of the Consent Decree in this case is permitted by this Court's
Order of July 2,1992 approving a modification of the Consent Decree to that effect. This modification was approved pursuant to a stipulation by the parties. The modification distinguishes the USA Decree from the Decree in Hadix v. Johnson, which contains language requiring compliance with ail provisions prior to termination. In Hadix. the plaintiffs opposed a modification similar to that approved in USA, and the Court denied the modification. The Sixth Circuit Court of Appeals affirmed the decision In an Opinion dated September 20, 1995.
In the Opinion of July 2,1992, this Court adopted a two-step termination process. First, the Court reviews compliance under the Plan and deletes provisions where it finds compliance. Then, the Court considers motions relative to provisions with which defendants have not complied, including arguments that full compliance is not necessary based on relevant constitutional standards. Pursuant to this process, the Court dismissed many of the State Plan sections applicable to MBP, MIPC, and MR.
The parties have filed, with their motion, a stipulation to the effect that the defendants have reached compliance with the State Plan in all of the areas for which they are requesting termination of the Decree, and declarations of various experts regarding the reviews of the prisons performed pursuant to the joint review process which was begun by the parties in August of 1995.
Based upon the stipulation of the parties and the declarations of the experts, and with the concurrence of the Independent Expert, this Court is satisfied that the provisions

7 - 3-35 i 5 : 15

?.o * i j .-. î

with regard to sanitation, safety and hygiene; fire safety; crowding and protection from harm; access to the courts; and legal mail should be deleted from the State Plan and Consent Decree as they apply to MBP, MR, and MIPC.
Defendants are required, by the Order of the Sixth Circuit Court of Appeals dated July 2, 1991, which was in regard to the defendants' duties under Section D.1 of the Consent Decree, to maintain their classification system over-ride rate at a general norm of 20 percent or less. Chart II of Exhibit 11 attached to the parties' motion indicates that defendants achieved compliance with this requirement at MR during 1993 and 1994, but returned to a state of non-compliance in March 1995, a condition that apparently continues today. This Court is not prepared to delete this provision, as applicable to MR, based on the information presented in the joint stipulation. The Court is concerned about the continuing violation of the requirement, which involves placing high-risk prisoners with prisoners in lower classifications and in settings that do not meet the defendants' own standards for their secure confinement. The Court ¡s¯ also concerned about the capacity of defendants to maintain compliance once It is achieved.
The Court will therefore grant the parties' joint motion in part and deny it in part. The Consent Decree and the State Plan will be modified to reflect that the remaining provisions for sanitation, safety and health; fire safety; overcrowding and protection from harm; access to courts; and legal mail are deleted as they apply to MBP, MR, and MtPC, except that section D.1 of the Consent Decree remains applicable to MR. II. Motion to Terminate Pursuant to PLRA
Section 802 of the PLRA amends 18 U.S.C. § 3626, regarding appropriate

-í ¿ 5 p ;>w.
remedies with regard to prison conditions. Section 3626(b) entitles a defendant or intervener in an action involving prison conditions to move for immediate termination of any prospective relief which was "approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right/ unless the court makes such findings in writing as to the current conditions in the prisons subject to the decree. That section also provides for an automatic stay of any prospective relief that has already been approved or granted, beginning the 30th day after a motion for termination of that relief has been filed. The stay is to remain In effect until the court rules on the motion for termination of the relief.
Over the years, the Court has conducted numerous hearings, and issued numerous orders regarding the rights and duties of the parties under the Consent Decree. Application of the PLRA to the Consent Decree in this case will require the Court to reconsider each provision of the Decree, the State Plan, and the associated plans and orders. The Court will have to determine whether, for each aspect of relief the defendants are providing or have been ordered to provide: the relief remains necessary to correct a current or ongoing violation of a Federal right; that any such relief extends no further than necessary to correct the violation of the Federal right; that it is narrowly drawn; and is the least intrusive means to correct the violation.
Such a determination in this case necessarily will involve thorough reviews of the extensive records on the various issues that have been raised, ruled on, and in most cases appealed, over the last twelve years. The parties should be given every

¯- 3-ðS 15:13

;,¯'lise r.ow;,

opportunity to present their arguments to the Court. A hearing concerning the medical
care issues in Hadix v. Johnson is scheduled for September 1996, and the Court will address the similar issues in the instant case after that hearing.1 Hearings on the
remaining issues will also need to be scheduled.
There is no possible way the Court could decide the motion to terminate the
Consent Decree by July 10,1996, when the PLRA provides that an automatic stay of all
prospective relief that has been ordered throughout the years, pursuant to the consent
decree, is to take effect. Aside from the complexity of the issues presented, the parties
will not even have completed the briefing schedule that is set forth in the Rules by that
date.
The automatic stay imposed by the PLRA would suspend many prior rulings in this
case which found that the defendants have an obligation under the Consent Decree to
provide some form of relief. The imposition of a stay would have a material impact on
the status of this case. The scope of that impact, and the automatic process of imposition, raise constitutional issues that must be considered by this Court.2
1The Court had planned to hold one joint hearing on the medica( care issues in
both Hadix v. Johnson and USA v. Michigan, but the defendants objected and the
Court therefore determined that holding a joint hearing would be counter-productive. *The parties were ordered to submit briefs no later than July 1, 1996 regarding
the issue of the constitutionality of the stay provision. On July 1, 1996, the United States filed a motion for extension of the deadline for submitting Its brief. The Court granted a one-day extension. On July 2, 1996, the Acting Solicitor General, Walter
De!i¡nger, initiated a conference call with the attorneys and this Court to request a
further extension. That request was denied, but the Court indicated that if the United States files a brief after this Opinion and Order are issued, it will be considered as a motion pursuant to Rule 6O(b) of the Federal Rules of Civil Procedure. The Court did receive briefs from the defendants as well as the Knop and Hadfx amici.
6

The Court ordered the parties to brief the issue of the constitutionality of the automatic stay provision. However, arguments as to the invalidity of the provision that are nonconstitutionai in nature must be considered first, and the constitutional issues should be addressed only if it is¯ necessary to resolve the matter. Jean v. Nelson. 472 U.S. 846, 854, 105 S. Ct. 2992, 86 L Ed. 2d 664 (1985) ("Prior to reaching any constitutional questions, federal courts must consider nonconstitutionai grounds for decision.") A. Supersession of the Stay Provision
The amici argue that the automatic stay provision is not yet in force pursuant to the Rules Enabling Act ("REA"), 28 U.S.C. § 2071, et seg. The REA gives the Supreme Court authority to prescribe the rules of practice and procedure to be followed in the federal courts. Section 2O72(b) provides that *[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." Pursuant to the REA, the Supreme Court adopted what are now known as the Federal Rules of Civil Procedure on December 20,1937.
The amid argue that the stay provision is in conflict with Rule 6O(b), which provides that a motion for relief from judgment should be granted ^[o]n motion and upon such terms as are just," and with Rule 62(b), which provides for a stay on a motion for a new trial or for judgment upon an exercise of discretion by the court. They argue that because the stay provision provides for an automatic, mandatory relief from judgment and a stay of the Courts orders, it is in conflict with the rules established by the Supreme Court, and thus pursuant to the supersession clause of the REA the provision does not

7- 3-36 16:15

;Jj dse

take effect until and unless the Supreme Court amends the Rules. The flaw in this argument is that the stay provision is not in direct conflict with
either Rule 6O(b) or 62(b). In cases where the supersession clause has been used to prevent the application of a statute, the effect of the statute would be to preclude application of the relevant Rule. See, e.g.. Cederbaums v. Harris. 484 F. Supp. 125,128 (S.D.N.Y. 1980) (Rule of Appellate Procedure controls where it provides for a broader definition of "excusable neglect" than the applicable statute); Griffith v. National Labor Relations Board. 545 F.2d 1194, 1197 n.3 (1976), cert, denied. 434 U.S. 854 (1977) (where petition for review could be filed within 60 days after NLRB order under the applicable statute, but within a reasonable amount of time under the interpretation of the Rules of Appellate Procedure, petition filed within 79 days was timely).
Here, however, the Rules of Civil Procedure and the stay provision can coexist. The enforcement of the stay provision would not affect a court's authority to grant a relief from judgment or a stay in its discretion. Thus, it can not be said that the stay provision "conflicts irreconcilably11 with the Federal Rules of Civil Procedure. See. Henderson v. United States. — U.S. —, 116 S. a . 1638, 1643, 64 USLW 4362 (1996).
Having resolved the only nonconstrtutional argument for the invalidity of the automatic stay provision, the Court will address the constitutionality of the provision. Arguments that the PLRA is unconstitutional, other than those addressed below, were raised by the amid in their brief. Those arguments apply more generally to the constitutionality of the PLRA as a whole, rather than specifically to the stay provision. Presumably, if those arguments are valid and the PLRA is indeed unconstitutional, the
8

7 - 3-35 i6: i
stay provision would be included in such a determination. However, because of the limited scope of the issue presently before the Court, the arguments addressing the constitutionality of the PL·RA as a whole will not be addressed herein, and will be considered at a later time. B. The Stay Provision Encroaches Upon the Powers of the Judiciary
Basic to the constitutional structure established by the Framers was their recognition that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, p. 300 (H. Lodge ed 1888) (J. Madison). To ensure against such tyranny, the Framers provided that the Federal Government would consist of three distinct Branches, each to exercise one of the governmental powers recognized by the Framers as inherently distinct. Northern Pipeline Co. v. Marathon Pipe Line Co.. 458 U.S. 50, 57, 102 S. Ct. 2858, 73 L. Ed. 2d 598 (1982). The division among the Branches is preserved by our system of checks and balances. Where Congress passes a provision of law assigning power to one Branch, such that the authority and independence of another Branch is undermined, the provision should be struck down as contrary to the Constitution. Mistretta v. United States. 488 U.S. 361, 382, 109 S. Ct. 647, 102 L Ed. 2d 714 (1989). The function of the Judiciary is to "say what the law is" and to apply that law to the cases and controversies before it. U.S. Const. Art. til; Marburv v. Madison. 5 U.S. (1 Cranch) 137,177, 2 L Ed. 60 (1803). While Congress maintains authority to determine jurisdiction of the courts it has established, and to establish rules regarding the practice and procedure in the federal courts, the interpretation and application of the laws and the
9

ultimate resolution of cases and controversies are solely within the province of the Judiciary. lsL
The Constitution "commands that the independence of the Judiciary be jealously guarded, and it provides dear institutional protections for that independence.1* Northern Pipeline. 458 U.S. at 60. When Congress enacts a rule which mandates the outcome of a case, such that the intervening step in which a court interprets and applies the rule on a case-by-case basis is effectively eliminated, Congress encroaches upon that power which has been reserved for the independent Judiciary. United States v. Klein. 80 U.S. (13 Wall.) 128, 20 L Ed. 519 (1872) (Congress can not "prescribe a rule for the decision of a cause in a particular way.")
When evaluating acts of Congress under an Article III standard, the court should not take a formalistic approach, but should consider a number of factors "with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary." Commodity Futures Trading Commission v. Schor. 478 U.S. 833, 8 5 1 , 106 S. Ct. 3245, 92 L Ed. 2d 675 (1986). Among the factors which the Supreme Court has considered include the extent to which the non-Article lit forum is exercising Jurisdiction and powers that are "essential attributes of judicial power", the origins and importance of the rights that are at issue, and "the concerns that drove Congress to depart from the requirements of Article III." jd¿
Examining these factors in the instant case, it is clear that through the stay provision of the PLRA, Congress has usurped a role that is exclusively judicial. The power to decide substantive issues of taw, such as a motion to terminate the case, Is a
10

' ~ 3 - 9 •5 J. 5 : J. :

;Ji á¿

most basic attribute of the Judiciary's power under Article III. Through the stay provision,
Congress automatically grants the movants relief, albeit temporarily, with no provision for
a case-by-case determination. This is akin to the issuance of a preliminary injunction,
which even the court can not do without making a finding on the facts. See. In re
DeLorean Motor Co.. 755 F.2d 1223,1228 (6th Cir. 1985) (Before issuing an injunction
the court must consider: (1) the likelihood of plaintiffs success on the merits; (2) whether
the plaintiff will suffer irreparable harm if an injunction is not issued; (3) whether the
Injunction would harm others; and (4) whether the injunction would serve the public interest.)3
Furthermore, the rights that are at issue in the instant case derive from the most
sacred of sources, the Constitution. As noted by the parties, the provisions of the
Consent Decree are intended to "assure the constitutionality of the conditions under which
prisoners are incarcerated at the subject prisons." Consent Decree, ¶ 2. Unlike
statutorily created rights, which Congress can create, modify, define, and terminate,
Constitutionally created rights can not be abridged by an act of Congress. Northern
Pipeline. 458 U.S. at 83.
The record does not provide information regarding the concerns which have
*There is no doubt that Congress can provide for automatic stays in certain circumstances. See, e.g.. 11 U.S.C. § 362 (providing for an automatic stay of proceedings against a debtor when a bankruptcy petition is filed). However, such provisions preserve the status quo pending the court's decision. As noted above, the stay provision in question turns the status quo on its head, by suspending the relief that the plaintiffs have been deemed entitled to during the course of this litigation. In addition, it should be noted that Article I, Section 8, Clause 4 of the Constitution (the bankruptcy clause), when read in light of the history of bankruptcy law, gives Congress special powers to legislate in the area of bankruptcy law.
11

I ~ O ~3 -j . .
caused Congress to provide for an automatic stay while the court considers the motion to terminate the Consent Decree. However, one can glean some congressional intent from the comment of one of the sponsors of the PLRA, who explained that its purpose is "to end frivolous lawsuits brought by prisoners, to remove our prisons from the control of Federal judges, and return control over them to our State and local officials." 142 Cong. Rec. S37O3 (daily ed. April 19, 1996). While it is unquestionably true that Congress has the power to prospectively limit the jurisdiction of the federal courts, it is equally true that Congress lacks the power to invade the judicial province in cases and controversies in which the courts have rendered final judgment.
A consideration of the relevant factors leads to the conclusion that, through the stay provision of the PLRA, Congress attempts to perform a judicial function, and has therefore violated the doctrine of the separation of powers. C. The Stay Provision Alters a Final Judgment of the Court
The stay provision implicates the doctrine of the separation of powers In an additional way, because it alters a final judgment of a judicial court of the United States. The limitations of Congress' power to alter existing judgments of United States' courts was recently explained in Plaut v. Spendthrift Farm. Inc.. — U.S. —, 115 S. Ct. 1447,131 L. Ed. 2d 328 (1995). Therein, the Supreme Court considered a law (Section 476 of the Federal Deposit Insurance Corporation Improvement Act of 1991,105 Stat. 2236) which "resurrected" previously dismissed cases under Section ¯lO(b)(5) of the Securities Exchange Act of 1934 by imposing less strict limitations periods for such claims. Faced with this scenario, the Supreme Court declared the Act unconstitutional because it
12

7 - 3-36 16: 13

; Judge Rowljni

- . . . . - . - - . . . , -•

retroactively required Article HI courts to re-open cases which they had already decided, ü at 1453.
This conclusion derived from the Plant Court's understanding that Article III, Section 1 was written, in part, for the express purpose of prohibiting Congress from undoing final judgments of the courts. l ¿ at 1454-55. This analysis follows from Alexander Hamilton's own commentary on Article III, Section 1 to the effect that, "A legislature without exceeding its province cannot reverse a determination once made in a particular case; though it may prescribe a new rule for future cases." The Federalist No. 81, at 545 (J. Cooke ed. 1961). Hence, under the Plaut Court's analysis, any law which retroactively affects a final judgment of a court of the United States is unconstitutional.
In so holding, the Plaut Court limited this rule to final judgments wherein the right to appeal has been exhausted, waived or elapsed. & at 1457. Such a holding is consistent with the general understanding of a final judgment as one which resolves all legal issues (except execution) and concerning which the rights of appeal have been either exhausted, waived or have elapsed. Griffith v. Kentucky. 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 93 L Ed. 2d 649 (1987); Johnson v. Ciona Corp.. 14 F.3d 486, 489 n.4 (10th Cir. 1993), cert, denied. 115 S. Ct 1792 (U.S. 1995); Plaut v. Spendthrift Farms. Inc.. 1 F.3d 1487, 1500 (6th Cir. 1993)(Keith, J., concurring), afPä, 115 S. Ct 1447 (1995).
In the present case, the judgment in question is a consent decree relating to prison conditions. According to the Supreme Court,
13

[a] consent decree no doubt embodies an agreement of the parties and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in and be enforceable as a judicial decree that is subject to the rules generally applicable to other judgments and decrees. Rufo v. Inmates of Suffolk Jail. 502 U.S. 367, 378, 112 S. Ct. 748, 116 L Ed. 2d 867 (1992). One of these rules is the rule relating to the finality of judgments. Thus, where appeals have been exhausted or the time for appeal has elapsed or been waived, consent decrees become final judgments. See Firefighters Local Union No. 1784 v. Stotts. 467 U.S. 561, 590, 104 S. Ct 2576, 81 L. Ed. 2d 483 (1984)(Stevens, J., concurring); Vooei v. City of Cincinnati. 959 F.2d 594, 598 (6th Cir.), cert, denied. 506 U.S. 827 (1992). In this case, there is little doubt that the Consent Decree has become final by waiver of appeal since it provides that it is the judgment of the Court as to those issues addressed within. Defendants' contention that the Consent Decree is not a final judgment is in error. They cite to Pennsylvania v. Wheeling & Betmont Bridge Co.. 59 U.S. (18 How.) 421 (1855), for the proposition that Congress may modify the prospective effect of injunctivo relief ordered by an Article III court. However, in that case the Supreme Court distinguished the situation from those in which an act of Congress affects a final adjudication of the private rights of parties because the right of navigation that was involved was a "public right common to all." ]d at 431. Constitutional rights, which are therightsat issue in the instant case, unlike those in Wheeling Bridge., are private. See. Rose v. City of Los Anaeles. 814 F. Supp. 878, 881 (CD. Cal. 1993). Furthermore, the fact that a court may alter a final judgment, see Rufo. supra, does not affect the finality
14

7 - j • a·i \<ì : Ib

; •T u i g •?

of the judgment, nor does it affect the inability of Congress to do so. See, Plaut. 115 S. Ct. at 1455, 1460.
Thus, the question becomes whether the automatic stay provision of the PLRA, which stays the enforcement of the Consent Decree, impermissibíy and retroactively modifies a final judgment of the court. The Court finds that, like the statute in Plaut. the PLRA renders inoperative existing judgments of this Court The distinction that it renders existing judgments unenforceable only temporarily is not significant. This only relates to the extent to which the Act impermissibíy modifies existing judgments, not the fact that it operates to do so. Likewise, the fact that the Act depends on the filing of a motion by a litigant does not distinguish this case significantly from Plaut. The PLRA invites the very act of filing the motion by promising the suspension of relief without a prior judicial determination. In the same way, the modification of existing judgments involved in Plaut would not have been effective without the filing of motions for reinstatement by the plaintiffs. Nevertheless, the Plaut Court struck down the law because "the law before us embodies risks of the very sort that our Constitution's 'separation of powers' prohibition seeks to avoid.'" Plaut. 115 S. Ct. at 1463 (quoting Breyer, J., concurring).
As the Supreme Court said in Plau†: [T]he separation of powers is a structural safeguard rather than a remedy to be applied only when specific harm, or risk of specific harm can be identified. In its major features (of which the conclusiveness of judicial judgments is assuredly one) it is a prophylactic device, establishing high wails and clear distinctions because low wails and vague distinctions will not be Judicially defensible in the heat of interbranch conflict. Id. These same high walls prohibit legislation of this type-whích has the effect of invalidating final judgments of this or any Court, including the Sixth Circuit Court of
15

'¯ 3-35

15:ii

Appeals, which has made numerous constitutional rulings in this and other prison cases. D. The Stay Provision violates the Due Process Clause
Even assuming the PLRA stay provision did not violate the separation of powers doctrine, it nevertheless violates the vested rights doctrine, which is grounded in the Due Process Clause of the Fifth Amendment.
Congress may not enact a statute which abrogates vested property rights without due process. U.S. Const. Amend. V.; Landqraf v. US1 Film Products. 511 U.S. 244,114 S. Ct. 1483,1497,128 L. Ed. 2d 229 (1994). A judgment that has become final is a type of property right that is subject to this rule. State of Louisiana, ex rel. v. Mavor and Administrators of the Citv of New Orleans. 109 U.S. 285, 291, 27 L E d . 936 (1883) (Bradley, J., concurring) (A judgment "is as much an article of property as anything else that a party owns."). This doctrine was clearly stated by the Supreme Court in 1898, when it declared:
It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. McCoilouah v. Virginia. 172 U.S. 102, 123-24, 19 S. Ct. 134, 43 L.Ed. 382 (1898). S_gs also. Hodges v. Snvder. 261 U.S. 600, 603, 43 S. Ct. 435, 67 LEd,2d 819 (1923) (the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation"); Memphis v. United States. 97 U.S. (7 Otto) 293, 296, 24 L Ed. 920 (1877) (a judgment confers vested rights which are "secure against legislative invasion").
16

3-36 J. 6 : 15

; J a á ä · ; R o w L a r. a

Due process requires, at the very least, notice and an opportunity to be heard before there is a deprivation of property. Armstrong v. Manzo. 380 U.S. 546,550, 85 S. Ct. 1187, 14 L Ed. 2d 62 (1965). The determination as to what process is sufficient requires analysis of the private interest that will be affected, the risk of erroneous deprivation through the procedures used, the value of procedural safeguards, and the government's interest. Matthews v. EMridoe. 424 U.S. 319,335,96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
As explained above, see Section C, supra, the Consent Decree in this action constitutes a final judgment of this Court. The United States is entitled to hold the same property rights, and may resort to the same remedies, as a private person. Rex Traitor Co. v. United States. 350 U.S. 148, 151, 76 S. Ct. 219,100 L Ed. 149 (1956). Hence, the plaintiff has a constitutionally protected property right in that consent judgment. See Johnston. 14 F.3d at 492-93. The stay provision of the PLRA takes from plaintiff its vested right in the judgment, which it has had since 1984, without due process. The mere filing of a motion under the PLRA automatically suspends of its own force the operation of a final judgment after 30 days. In light of the clear law prohibiting such abrogations of vested rights, the stay provision can not be found to be constitutional.
CONCLUSION For the foregoing reasons, the Joint motion to dismiss portions of the Consent Decree at the Marquette Branch Prison and the Michigan Reformatory is granted in part and denied in part. Furthermore, this Court finds the stay provision located in § 802 of the Prison Litigation Reform Act, 18 U.S.C. § 3626(e), to be unconstitutional. Therefore,
17

7- 3-36 165:15

;Judge Rowland

the prospective relief that has been awarded to the plaintiff pursuant to the Consent Decree of the parties will not be stayed pending this Court's consideration of the defendants' motion to terminate the Consent Decree.

Dated in Kalamazoo, Ml:

RICHARD ALAN ENSLEN Chief Judge

18

i `i i ~ ? o w 1 a n i

»· ! · r* ^ f · / '

UNITED STATES DISTRICT COURT ;¿ J:J?_ -3 PM 2^ ¿ri

FOR THE WESTERN DISTRICT OF

Ñ¾¾¾^'
. WESTERN D:3lRICíCf rí;W

UNITED STATES OF AMERICA,
Plaintiff,
v
STATE OF MICHIGAN; JOHN ENGLER, Governor of Michigan; MICHIGAN DEPARTMENT OF CORRECTIONS; KENNETH M. McGINNIS, Director, Michigan
Department of Corrections; DAN L. BOLDEN, Deputy Director,
Michigan Department of Corrections; JOHN JABE, Regional Administrator,
State Prison of Southern Michigan; PAMELA K. WITHROW, Warden, Michigan
Reformatory; and JOHN HAWLEY, Warden, Marquette
Branch Prison,
Defendants.

File No. 1:84 CV 63 HON. RICHARD ALAN ENSLEN

ORDER IT IS HEREBY ORDERED that the joint motion of the United States and the State of Michigan to dismiss portions of the Consent Decree at the Marquette Branch Prison and the Michigan Reformatory, filed June 10.1996 (dkt. #2046) is GRANTED In part and DENIED In part; IT IS FURTHER ORDERED that the Consent Decree and State Plan are modified to reflect that the remaining provisions for sanitation, safety and health; fire safety;

7- 3-Sa ið:iõ

;Judge Powiaa

- - ` •> •» -• . J - / ; ¢ Ù .

overcrowding and protection from harm; and access to courts and legal mail are deleted as they apply to Marquette Branch Prison, the Michigan Intensive Programming Center, and the Michigan Reformatory, except that section D.1 of the Consent Decree remains applicable to the Michigan Reformatory;
IT IS FURTHER ORDERED that the automatic stay provided for in the Prison Litigation Reform Act is unconstitutional, and will therefore not take effect pending this Court's decision on defendants' motion to terminate the Consent Decree.

Dated in Kalamazoo, Ml:

RICHARD ALAN ENSLEN Chief Judge

 
 U.S. v. Michigan
il! I I I III 111 Hi I i¡¡¡i i! II I II II II I PC-M -0007-0001

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

UNITED STATES OF AMERICA,
Plaintiff
v.
STATE OF MICHIGAN, JAMES J. BLANCHARD, Governor of Michigan; MICHIGAN CORRECTIONS ) COMMISSION; GWEN ANDREW, Chairman, Michigan Corrections Commission; THOMAS EARDLEY, G. ROBERT COTTON, DWAYNE WATERS, DON LE DUC, Members, Michigan Corrections Commission; MICHIGAN DEPARTMENT OF CORRECTIONS; PERRY M. JOHNSON, Director, Michigan Department of Corrections; ROBERT BROWN, JR., Deputy Director, Michigan Department of Corrections; Dale FOLTZ, Regional Administrator, State Prison of Southern Michigan; JOHN JABE, Warden, Michigan Reformatory; THEODORE KOEHLER, Warden, Marquette Branch Prison; JOHN PRELESNIK, Administrator, Reception and Guidance Center, State Prison of Southern Michigan; and JACK BERGMAN, Administrator, Michigan Intensive Programming Center;
Defendants.

CIVIL NO. COMPLAINT

COMPLAINT The United States of America alleges: 1. The United States of America, by and through its Attorney General, William French Smith, brings this action for the purpose of enjoining unconstitutional conditions in three Michigan state prisons: the State Prison of Southern Michigan (including the Reception and Guidance Center),

located in Jackson, Michigan; the Michigan Reformatory, located in Ionia, Michigan?'and the Marquette .Branch Prison (including the Michigan Intensive Programming Center), located in Marquette, Michigan. Such conditions deprive persons confined in said institutions of rights secured by the First, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
JURISDICTION, STANDING, AND VENUE 2. This court has jurisdiction over this action under 28 U.S.C. S1345. 3. The United States has standing to initiate this action pursuant to 42 U.S.C. §l997a. Attached hereto, and incorporated herein by reference as Exhibit A, is the Certificate of the Attorney General required by that statute. 4. Venue in the Western District of Michigan is proper. 28 U.S.C. §1392.
PARTIES 5. Defendant JAMES J. BLANCHARD, Governor of Michigan, heads the executive branch of the state government. He has ultimate responsibility for conditions in state correctional facilities. 6. Defendant MICHIGAN CORRECTIONS COMMISSION is vested under Michigan law with exclusive administrative authority over the Michigan Department of Corrections.

7. Defendants G. ROBERT COTTON, THOMAS EARDLY, DON LE DUC, DWAYNE WATERS, and GWEN ANDREW are members of the Michigan Corrections Commission.
8. Defendant MICHIGAN DEPARTMENT OF CORRECTIONS is the state agency responsible' for management and control of state penal institutions.
9. Defendant PERRY M. JOHNSON is the Director of the Michigan Department of Corrections. Under Michigan law, he is empowered, subject to rules and regulations adopted by the Corrections Commission, to supervise and control the affairs of the Department, including the promulgation of rules and regulations that provide for the management and control of state penal institutions.
10. Defendant ROBERT BROWN, JR., is Deputy Director of the Michigan Department of Corrections. As such, he directs the Bureau of Correctional Facilities, which administers the State Prison¯of Southern Michigan, the Michigan Reformatory and the Marquette Branch Prison.
11. Defendant DALE FOLTZ is the Regional Administrator of the State Prison of Southern Michigan. As such, he has certain powers and duties related to the control, governance and supervision of that facility.
12. Defendant JOHN JABE is the Warden of the Michigan Reformatory. As such, he has certain powers and duties related to the control, governance and supervision of that facility,
- 3-

13. Defendant THEODORE KOEHLER is the Warden of the Marquette Branch Prison. As such, he has certain powers and duties related to the control, governance and supervision of that facility.
14. Defendant JOHN PRELESNIK is the Administrator of the Reception and Guidance Center. As such, he has certain powers and duties related to the control, governance and supervision of that facility.
15. Defendant JACK BERGMAN is the Administrator of the Michigan Intensive Programming Center. As such, he has certain powers and duties related to the control, governance and supervision of that facility.
GENERAL ALLEGATIONS 16. The State Prison of Southern Michigan (including the Reception and Guidance Center), the Michigan Reformatory and the Marquette Branch Prison (including the Michigan Intensive Programming Center)("the subject prisons") are prison institutions within the meaning of 42 U.S.C. §1997(1)(A) and (l)(B)(ii). 17. At all times relevant to the claims and allegations herein, Defendants BLANCHARD, COTTON, EARDLEY, LE DUC, WATERS, ANDREW, JOHNSON, BROWN, FOLTZ, JABE, KOEHLER, PRELESNIK and BERGMAN, their respective predecessors, and each of them, has committed the acts or failures to act alleged herein under color of state law.
- 4-

18. The subject prisons fail to provide and maintain basic elements of a safe and sanitary physical and environmental plant (including fire safety) for the inmates.
19. The subject prisons fail to provide medical services (including services for suicidal, psychotic, and self-mutilating inmates) minimally necessary to meet the inmates' serious needs, where the failure to provide such care manifests a deliberate indifference to these needs.
20. The subject prisons fail to protect inmates from harm, including from increased violence,and serious threats to health associated with overcrowding.
21. The subject prisons fail to provide inmates minimally mandated access by mail to their attorneys, to courts, and to government officials; and the subject prisons fail to provide inmates sufficient access to minimal law library resources or legal assistance.
VIOLATIONS ALLEGED 22. Defendants' acts and practices, described above in paragraphs 18 through 20, constitute cruel and unusual punishment. They violate the guarantees of the Eighth and Fourteenth Amendments to the United States Constitution. 23. Defendants' acts and practices, described above in paragraph 21, deprive inmates of constitutionally mandated
- 5-

access to the courts. They violate the guarantees of the First, Sixth, and Fourteenth Amendments to the United States Constitution.
24. There is no adequate remedy at law to address these violations.
25. Unless restrained by order of this Court, defendants will continue to engage in the above described practices to the immediate and irreparable injury of the United States.
REMEDY 26. WHEREFORE, the United States prays that this Court enter an order permanently enjoining defendants, their officers, agents, agencies, employees, subordinates, successors in office, and all those acting in concert or participation with them from continuing the unconstitutional acts and practices described herein, from continuing to confine persons, if any, under such unconstitutional conditions, and from failing or refusing to confine persons, if any, under conditions which meet constitutional standards. 27. The United States further prays that this Court grant such other and further equitable relief as it may deem just and proper.
DATED: /2-/fjT , 198^, at Washington, D.C.
WILLIAM FRENCH S! Attorney General of the
United States

LEONARD R. GILMAN United States Attorney Eastern District of
Michigan
United States/Attorney Western District of
Michigan

WM. £
Assistant Attorney General Civil Rights Division
(U
ARTHUR E. PEABODY, JR./ PAUL S. LAWRENCE JOHN J. CURRY, JR. RICHARD CAMPANELLI Attorneys U.S. Department of Justice Civil Rights Division

nf tip Attnnt?y
,Tà. (£. 20530
CERTIFICATE OF THE ATTORNEY GENERAL
I, William French Smith, Attorney General of the United States, certify that with regard to the foregoing Complaint, I have complied with 42 ü.S.C. Sl997b(a)(1). I certify as well that I have complied with Sl997b(a)(2). I further certify that this action by the United States is of·general public importance; will materially further the vindication of rights, privileges, or immunities secured or protected by the Constitution of the United States; and in every respect complies with the requirements of Sl997b(a)(3).
Accordingly, having determined that the action here initiated is fully consistent with Sl997a, pursuant to Sl997a(c), I have personally signed the foregoing Complaint. Pursuant to 42 U.S.C. Sl997b(b), I have personally signed this Certificate.
I finally certify that all things that must be done as prerequisites to my initiating suit under 42 U.S.C. §1997 have been done.
Signed this / 5¯" day of T2ff#/#AA? , 1983, at Washington, D.C.
ÏILLIAM FRENCH SMITH Attorney General of the
United States EXHIBIT A

 
 // " .

IF THE UNITED STATES DISTRICT COURT - FOR THE WESTERN. DISTRICT OF MICHIGAN

UNITED STATES OP AMERICA, Plaintiff,
v. STATE OP MICHIGAN, et al·,
Defendants.

Civil Action No. G84-63CA

CONSENT DECREE

The parties to this action by and through their respective counsel, stipulate and agree that:
1. Pursuant to the Civil Rights of Institutionalized Persons Act of 1980, 42 U.S.C. S 1997, the United States has standing to institute an action against the State of Michigan and its officials in order to remedy alleged egregious and flagrant conditions which violate the constitutional rights of persons confined at the State Prison of Southern Michigan ("SPSM") at Jackson, including the Reception and Guidance Center ("RGC)# the Michigan Reformatory ("MR") at Ionia, and the Marquette Branch Prison ("MBP") at Marquette, including the Michigan Intensive Programming Center ("MIPC*). The United States has conducted an investigation of these institutions, in which state officials gave full cooperation and demonstrated a commitment to the provision of constitutional conditions at

;•; ' T:¯j·
. .. V:.l·

U.S. v. Michigan

B

• ™™

•

mm

••

• • III

PC-M -0007-0002

..

T· OP THI

ATTORNEY GENERAL

JUN?8 1984

UT&JÌQH UHíT

the institutions, and has notified state officials of its findings.
2. •To avoid litigation and without making any admissions on the merits, state and federal officials consent to the following Decree. The provisions of the Decree are intended by the parties to assure the constitutionality of the conditions under which prisoners are"incarcerated in the subject prisons.
3. The Court has jurisdiction over this action pursuant to 28 U.S.C. S 1345. All prefiling requirements stated in 42 U.S.C. § 1997 have been met.
NOW THEREFORE, upon the full and informed consent of the parties, in resolution of all claims asserted and relief sought, and without any finding of liability or other determination on the merits, it is hereby ORDERED, ADJUDGED, AND DECREED that defendants and each of them (hereinafter "defendants"), their officers, agents, agencies, employees, subordinates, successors in office, and all those acting in concert or participation with them shall comply with each of the following provisions:
A. Medical Care. Defendants shall provide adequate medical, dental, and mental health services at SPSM, RGC, MR, MBP, and MIPC necessary to respond to the serious needs of · prisoners in these areas.
To this end defendants shall provide:
-2-

1. •Irrespective of offender classification, inmate access to adequate medical facilities and medical staffing including licensed, qualified physicians and psychiatrists, dentists, registered nurses, and such other medical personnel as defendants deem necessary;
. 2. Initial medical health assessment immediately upon incarceration;
3. Emergency medical care; 4. Measures to afford prevention of potentially epidemic contagions such as tuberculosis, aids, gonorrhea, and syphilis; 5. Adequate treatment upon timely identification for those inmates with serious mental illness, including manifest, substantial behavioral or physiological dysfunctions associated with psychosis, suicide, the threat of suicide, self-mutilation, or psychotic episodes involving violence towards others; 6. Reasonable protection measures for those inmates identified as suicidal or self-mutilating, including separate housing where necessary and adequate surveillance procedures; 7. Appropriate use and distribution of psychotropic medications, that fully comports with the standards of use and distribution in the medical profession;
-3-

8. Training programs •as necessary for all professional staff; and
9. Professional medical record-keeping systems. Defendants shall achieve compliance with paragraph A by implementing each requirement by no later than July 1, 1985. B. Fire Safety. Defendants shall take adequate fire prevention measures at SPSM, RGC, MR, MBP, and MIPC necessary to prevent serious threats to the lives and safety of the prisoners. To this end, defendants shall: 1. Immediately replace all polyurethane and flammable mattresses and all non-fire retardant materials with adequate fire-safe mattresses and materials; 2. Immediately install an appropriate number, as defined by a fire safety professional, of fire extinquishers and smoke detectors in all living and working areas; 3. Develop and implement a program for regular inspection of fire extinguishers and smoke detection units; 4. Immediately unblock and maintain continued clearance of all exit ways; 5. Provide emergency evacuation procedures; •• 6. Provide for immediate proper storage or removal of combustible materials; and 7. Implement such other safety precautions as are
-4-

necessary to ensure adequate fire and smoke safety. The defendants shall achieve compliance with paragraph ß
by implementing subparagraphs 1, 4 and 6 within thirty (30) days of the entry of this Decree, subparagraphs 2, 3 and 5 by December 30, 1984, and subparagraph 7 no later than June 30, 1986.
C. Sanitation, Safety, and Hygiene. Defendants shall provide adequate sanitation, safety, and hygiene measures at SPSM, RGC, MR, MBP, and MIPC in order to prevent exposing prisoners to serious threats to their physical health and safety. To this end, defendants shall establish, maintain, and implement:
1. Housekeeping systems, to be operated and managed by qualified staff with designated responsibilities, to prevent filth, vermin and rodent infestation;
2. Systems to ensure safe and sanitary food service; 3. Sewage and waste-disposal systems, including appropriate solid waste disposal, to correct cross-connected plumbing and back syphonage hazards, unsanitary pipe chases, inadequate plumbing and fixture leaks; 4. Systems to ensure building safety, temperature control and ventilation, and to provide for the elimination of electrical hazards and serious safety hazards in working areas and in other health hazard areas; and 5. Systems to ensure adequate lighting in all areas as necessary for safety and surveillance.
-5-

Defendants sh· `. achieve compliance with •aragraph C by implementing subparagraphs 1 and 2 by January 1, 1985, subparagraphs 4 and 5 by July 1, 1986, and subparagraph 3 by January 1, 1987.
D. Crowding and Protection from Harm. Defendants shall provide adequate housing, security, and inmate and staff supervision to prevent serious risks of physical assaults or harm to prisoners from others at SPSM, RGC, MR, HBP, and MIPC· To this end, Defendants shall:
1. Design and implement a professionally-based classification plan;
2. Ensure adequate guard surveillance of inmates; 3. Develop and implement rules and procedures governing use of segregation housing units; 4. Develop and implement a program providing, as appropriate, for out-of-cell time for inmate exercise on some systematic or regularized basis in order to compensate for excessively crowded •
I
conditions of confinement; and 5. Take each and every step within their lawful authority
to eliminate overcrowding. Defendants shall achieve compliance with paragraph D by
implementing subparagraphs 2, 3 and 5 by June 30,' 1985, subparagraph 4 by June 30, 1986 and subparagraph 1 by June 30, 1988.
E. Access to Courts. Defendants shall provide prisoners confined at SPSM, RGC, MR, MBP and MIPC with meaningful access to the courts. To this end, defendants shall specify and imple-
-6-

\

ment systems to afford inmates access to each respective law

library facility, including provisions for access for inmates

in segregation housing units. Defendants shall achieve

compliance with paragraph E no later than December 3ü, 1984.

F. Legal Mail. Defendants shall establish systems,

steps, and procedures to ensure protection of privileged

legal mail from review at SPSM, RGC, MR, MBP, and MIPC.

Defendants shall achieve compliance with paragraph F no

later than July 30, 1984.

¯

G. Defendants shall provide training programs for all

employees involved in the implementation requirements of this

Decree such that the provisions and requirements of this Decree

shall be known and fully understood by said employees. All

plans, systems, and other procedures developed pursuant to

this Decree áhall be similiarly known and fully understood by

said employees and each employee shall be able, after going

through the training program, to certify in writing that he

or she has such knowledge and understanding. All such certi-

ficates shall be retained in each employees personnel file

and provided to the United States upon request.

H. Defendants have developed their own comprehensive plan,

entitled "State Plan for Compliance" (State Plan), specifying'

measures they intend to take at SPSM, RGC, MR, MBP, and MIPC in

order to assure constitutional conditions therein, and to address

-7-

a number of other matters designed to improve conditions of confinement. Defendants intend to fully implement the State Plan unless implementation is excused or modified in accordance with the terms of this 'Decree. A copy of the State Plan is attached to this Decree as Exhibit A.
I. Implementation of the various provisions of the State Plan will be adequate to bring Defendants itrto full compliance and thereby satisfy the terms and provisions of this Decree. The Court shall be advised as to each failure to comply with the provisions of the State Plan and, on request of either party or on the Court's own motion, a hearing may be held as to the constitutional implications of said failure and Defendants' non-corapliance. Nothing in this Decree shall be interpreted as requiring Defendants to specifically comply with any State law, or,.any other provision of the State Plan that does not implicate constitutional rights of inmates.
J. Defendants shall report to the Court and to the United States any time they intend to modify their Plan, and shall advise the Court and the United States, by legal memoranda, whether the modification sought raises constitutional issues. The United States shall respond to such report within 20 days, by legal memoranda, whether it believes such a modification raises constitutional issues. The Court will then determine
-8-

whether to conduct a hearing and will in sucn event determine the modification request. Tbe United States Department of Justice will monitor compliance with the State Plan.
K. The State Plan provides for a number of plans that the Defendants shall submit at specified times. Each plan shall be filed with the Court and submitted to the United States by the specified submission time. Each plan shall set forth a detailed statement of the measures that'the Defendants will take to achieve timely compliance with the plan along with a
i
detailed timetable setting forth dates for interim and final compliance measures. Each plan also shall establish a method for continuing maintenance of each item to be accomplished pursuant to the plan. Upon submission, the United States shall review the plan. If there is no objection to the Defendants' proposed plan, the plan shall be appended to the State Plan and subject to enforcement in accordance with the provisions of this Decree. If the United States objects to any of the Defendants' proposed plans, the parties shall attempt to conciliate any differences among them. To the extent useful and feasible, the United States may provide technical assistance in this conciliation process. If necessary, the United States may commence hearings concerning unresolved objections to proposed plans within 60 days of raising objections,
-9-

L. Defendants shall file with the Court and submit to the United States semi-annual reports commencing December 31, 1984, indicating for each respective six month period the status of Defendants' compliance with respect to the requirements of this Decree. Each report shall state with particularity the conditions of each area addressed in this Decree, and shall specifically identify all relevant documents. The report shall be signed and submitted by an individual designated by the Defendants to be responsible on an ongoing basis for this function.
M. ¾ntry of this Decree shall not operate to render moot or otherwise preclude any issues before the District .Court for the Eastern District of Michigan in Hadix v. Johnson e_t_a_l. , Civ. No. 80-73581, Jansson v. Johnson et. al.» Civ. No. 84-CV-126'3DT or the Western District of Michigan in Knop v. Johnson et. al., Civ. No. 84-651.
N. Upon notice and at reasonable times, Defendants shall give full access to the United States, its attorneys, staff, experts, and agents to all subject facilities to inspect for compliance with this Decree.
O. The parties by agreeing to this Decree do not intend to create any rights or obligations enforceable by inmates.
-10-

It is nonetheless recognized thatr for purposes of entry of this Decree, the Court has 'granted limited intervention to the plaintiffs in the pending action of Hadix v. Johnson et al.» Civ. No. 80-73581, E.D. Michigan (the "Hadix plaintiffs"), and the plaintiffs in the pending case of Knop v. Johnson et. al., Civ. No. 84-561, W.D. Michigan (the "Knop plaintiffs"), to participate as amicus curiae. To the extent Defendants are required by paragraphs I, J, K and L of this Decree to furnish reports, plans, pleadings, memoranda or other documentation to the Court and the United States,'an informational copy shall be provided at the same time to the amicus curiae. Any responses of the United States, shall be similarily circulated. Within 20 days after receipt of said reports, plans, pleadings, memoranda or.·other documentation, Hadix and Knop plaintiffs may respond to the Court and parties as amicus curiae. Further, Hadix and Knop plaintiffs have a limited right, at xthe Court's discretion, to participate as amicus curiae at any hearing which may be called.
P. The United States may seek appropriate orders for enforcement of this Decree, but will not do so until first consulting with Defendants in an effort toward informal resolution of any dispute.
-11-

Q. The Court shall continue its jurisdiction of this matter until further notice.- One year following entry of this Decree, specifically on June 21, 1985, at 9:00 a.m., the Court shall hold a hearing to determine whether the Decree, to the extent then implemented in accordance with the terms and provisions thereof, is fulfilling its stated purpose to bring SPSM, RGC, MR, MBP and MIPC into constitutional compliance. · Should it be determined at such hearing that the Decree is in some respect deficient in its requirements, the Court may entertain motions for modification of the Decree so as to correct the deficiency. The Hadix and Knop plaintiffs may participate as amicus curiae in said hearing.
R. After Defendants have complied with all of the terms of this Decree, Defendants may apply to terminate the jurisdiction of this Court.
The Court, having fully considered the foregoing, is of the opinion and so finds that the Consent Decree should be and hereby is entered as THE JUDGMENT of the Court and hereby permanently enjoins the Defendants, their officers, agencies, employees, subordinates, and successors in office, from continuing the alleged unconstitutional practices and acts complained of; and permanently enjoins Defendants from continuing to confine persons under complained of unconstitutional conditions and this is THE JUDGMENT of this Court.
-12-

IT IS SO ORDERED.

- .

ENTERED on t h i s \3 day of Ol/f<

at rvÄ-r/L*oÆn>

# Michigan.

, 198

So Stipulated:

United States District Judge

UNITED STATES OF AMERICA, Plaintiff

Assistant Attorney General Civil Rights Division

Arthur E. Peabody, Jr. Paul S. Lawrence John J. Curry» Jr. Joann M. Russell Attorneys U.S. Department of Justice Washington, D.C. 20530 ATTORNEYS FOR PLAINTIFF

anka s Attorney trict of Michigan
Leonard R. Gilnan United States Attorney Eastern District of Michigan

STATE OF MICHIGAN, et al., Defendants

FRANK J. KELLEÏ Attorney General

Andrew D. Quinn Michael J. Moquin John M. Cahill Assistant Attorneys General Department of Attorney General ATTORNEYS FOR DEFENDANTS

STATE PLAN FOR COMPLIANCE The following Plan of compliance is to be undertaken at the State Prison of Southern Michigan, ("SPSM") the Reception and Guidance Center ("RGC") at Jackson, the Michigan Reformatory {•MR") at Ionia, the Marquette Branch Prison •("MBP"), and the Michigan Intensive Programming Center ("MIPC") at Marquette. I. Measures with Respect to Sanitation, Safety, and Health
A. Environmental Sanitarian - The environmental Sanitarian will be in place by Dc-c<=:aber 1, 19S3 at each subject prison as a full-time, fully qualified professional.
The Environmental Sanitarian shall have responsibility for inspection and identification of environmental deficiencies regarding housing and food service sanitation, including without
,· limitation, rodent and vermin control. The Environmental Sanitarian shall report to tho Warden, and is authorized to coordinate m?.:\arjement resources to correct deficiencies of the above nature (including recommending for purchase and distribution of necessary services, supply, and equipment). The Environmental Sanitarian advises the Warden regarding appropriate action for preventing of problem? in the area of sanitation.
B. Housekeeping - The Department shall implement at each subject prison their continuing housekeeping plan (Appendix A.I) in large part already in place. The plan shall bs implemented within 90 d<¾ys of the entiy of the decree in U.S. v. State of
- 1-
EXHIBIT A

Michigan,'Civil Action No. G84-63CA, filed in the United States District Court for the Western District of Michigan.
C. Inspection for Sanitation * The Department will obtain complete, annual inspections of the subject prisons by qualified non-corrections Building and Constructions Trades Inspectors, qualified non-corrections agricultural inspectors; and appropriate follow-up inspection or re-inspection. Said inspections shall inspect for compliance with all applicable state law in each area upon which this section (on Sanitation) touches and shall be reflected in a signed inspection report. This report shall be provided to the Michigan Department of Corrections promptly following each inspection.
As'to each cited condition on each report, the Department of Corrections shall make all indicated corrections within 60 days; unless funding requirements (including procedures for hiring and bidding) or purchase of equipment requires further time, not to exceed 180 days. In any event, correction shall be accomplished within a more rapid time if more rapid correction is required pursuant to this plan. As to any section of this plan the requirements of which are not yet applicable under the terms of the plan, the Department need not meet these corrections deadlines. On occasion, extraordinary measures might be necessary to make required corrections, and in such a case, these corrections shall be made within a reasonable time. When a correction is concluded, the Department shall
- 2-

so note and initial on the face of the inspection report. D. Personal Hygiene of Prisoners - The Department
shall implement at each subject prison its continuing plan for personal hygiene of prisoners. The plan is attached hereto and incorporated herein as Appendix A.II.
E. Vermin Control - The Department shall implement at each subject prison its continuing plan to control vermin. This plan is attached hereto and incorporated herein as Appendix A.III.
F. Occupational Safety and Health - The Department shall continue in its program of consultation with MIOSH to ensure safety in prison work areas.
G. . Requirement for Cell Lighting - The Department shall continue to house inmates only in cells with adequate operational, interior lighting. Only in the case of an emergency, as determined by the Warden and documented by him in writing, shall an inmate be placed in a cell where the lighting does not function.
•' H.I. The Department shall provide sufficient duplex outlet receptacles for inmate use in each cell (one outlet) and dormitory. As an interim provision, with 90 days, the Department shall make available U-L approved extension cords to allow reasonable electrical service in each cell.
H.2. The Department shall provide adequate lighting (10 footcahdle ambient lighting and 20 footcandles for reading
- 3-

and work unless more in work areas are needed for safety) in housing and activity areas to enable inmates to read, and in work areas to assure safety; this includes for example, without limitation, 10 footcandles lighting on base activity areas in cellblocks, unless greater light is needed for planned activities for that area. This provision shall not operate to reduce any requirement of the Michigan Building Code.
The items set forth in I. H.I and I.H.2 will be accomplished as follows: at Marquette branch prison by July 1, 1984; at Michigan Reformatory by July 1, 1985, and a State Prison of Southern Michigan, by July 1, 1986, unless major increases in electrical generating and distribution are necessary at that facility, in which case at SPSM, this shall be accomplished by July 1, 1987.
I. WITHIN 90 DAYS AFTER THE IMPLEMENTATION OF THIS PLAN:
1.1. A solid waste disposal plan for all areas of each institution and suitable to each institution will be prepared by the Environmental Sanitarian. The plan will be fully implemented within 180 additional days. With regard to solid waste containers, the plan will include, without limitation, provision for appropriate, safe, fire safe, clean solid waste containers in all areas, including housing areas.
1.2. On a continuing basis, the Department shall maintain pipe chases free of all standing water and filth;
- 4-

maintain, as properly closed, all sewer lines; and maintain, with proper plumbing fixtures, all clean-out ports.
1.3. On a continuing basis, the Department shall inspect windows and reasonably promptly replace glass where broken and missing. The Department may replace windows with other window systems provided that adequate natural light, ventilation, and protection against vermin is maintained. Lighting and ventilation shall be maintained as required elsewhere herein. In the event of the adoption of any new window system, the Department shall screen all window openings. The absence of screening at present will necessitate greater efforts to limit the intrusion of birds and vermin.
1.4. The Department shall provide necessary sanitation on all prison-farms and food production operations.
1.5. Other provisions of this plan to the contrary notwithstanding, the institutions will in their food service facilities meet all applicable requirements of the 1976 Food Service Sanitation Manual (U.S.P.H.S.). The Department shall comply with each item specified on Appendix E of the 1976 Food Service Sanitation Manual (U.S.P.H.S.).
1.6. Training - The Department will initiate professionally designed and executed continuing training programs for both pre-service and in-service training for all employees and inmate-employees involved in the provisions of this decree Section I (on Sanitation), including the sanitaiton plans set
- 5-

out in Appendix A. Each training program will be required to be completed by the employee or inmate-employee, will be

appropriate to the particular employee's or inmate-employee's

responsibilities, and shall include a method for evaluating

the employee's or inmate-employee's performance in the training program, which performance must be adequate for continued employment in this capacity.

PLAN:

J. WITHIN 180 DAYS AFTER THE IMPLEMENTATION OF THE

J.I. Barbering - The Department will provide appropriate barbering facilities and equipment in each facility

and shall maintain necessary sanitary conditions. No person shall be permitted to barber inmates without appropriate training in the public health aspects of barbering. Professional personnel, including the Environmental Sanitarian, familar with these public health areas, may provide such training.

J.2. The Department will reduce noise to 70 dBA day, 45 dBA night, where inmates are housed, and not more than 90

dBA in work areas for an 8 hour exposure period; not more than 85 dBA in eating areas; with the exception, however, that this section does not apply to 5-block at SPSM as it is presently constituted with at least on-half administrative segregation inmates. This exception is grounded on defendants' represen-

tation that administrative segregation inmates will be moved

- 6-

from 5-bïqck or other similar blocks (in size) to a more suitable housing arrangement by January 1/ 1988 and after that date, 5-block shall no longer be excepted from these requirements. The Department will continue their efforts to reduce noise levels in all areas to not more than 70 dBA, with the exception that special conditions inherent in work places necessitate limits not higher than 90 dBA for an 8 hour exposure period.
J.3. The Department will provide adequate hot (within 6°F of llO°F) and cold water in housing units for all cells, dormitories, sinks, showers and lavatories.
J.4. The Department will not, except in the case of a temporary emergency (in the determination of the warden as reflected in a written document signed by him), house inmates in cells or dormitories where the temperature is unsafe in any season. Temperatures in activity areas similarly shall be maintained safe. The Department will monitor and record continuously the temperatures 1) on the base floors and highest galleries of all cell blocks and 2) in all dormitories or other housing areas.
J.5. The Department will correct and cover all exposed wiring, provide an operational switch (e.g., a pull chain) for cell lights in each cell, and correct all short-circuited wiring.
- 7-

K. WITHIN 36ü DAYS AFTER THE IMPLEMENTATION OF THE PLAN: Ventilation of 7 cubic feet per minute shall be provided for each cell as measured at the cell grating. Required ¯ventilation shall be measured at cell gratings. In summer months, the Department will provide a mechanical exhaust system that operates to exhaust 54 cubic feet per minute per inmate in each cellblock as measured at the site of exhaust. L. WITHIN 30 MONTHS AFTER IMPLEMENTATION OF THE PLAN: L.I. The Department will correct and eliminate all cross-connected plumbing, including all potential back-syphonage hazards. Corrections shall be in accordance with acceptable codes or standards. L.2. The Department will correct existing plumbing (including sewerage) and fixture leaks; and cease to house inmates in cells or other housing areas lacking operable, safe plumbing and fixtures, including a commode and a sink in each cell. Corrections shall be in accordance with acceptable codes or standards. L.3. Defendants shall provide 1 shower for every 15 inmates, in dormitories defendants shall provide 1 toilet for every 8 inmates and 1 drinking fountain per floor. L.4. In the interim, the Department will take reasonable, temporary measures, such as the addition of free chlorine to the drinking water, the monitoring of reports of disease related
- 8-

to plumbing condition, and appropriate testing of water, all to reduce the hazard of plumbing inadequacies. II. Medical Care
A. General Provision The standard for health care for prisoners supervised by the Michigan Department of Corrections has been established by administrative rule and policy. For the purposes of this plan, defendants adopt as a standard, and they shall provide, medical services consistent with contemporary professional health care standards. This standard is entirely consistent .with long-established Michigan corrections' policy. Each prisoner at the State Prison of Southern Michigan, Michigan Reformatory, or Marquette Branch Prison shall receive adequate health care as measured against contemporary professional standards. B. Facilities 1. State Prison of Southern Michigan The existing hospital facility at the State Prison of Southern Michigan is scheduled for replacement by early 1986 with a new 94-bed facility. Final building plans for the hospital shall be adequate to receive full approval by the Michigan Department of Public Health Licensure Division. Because of the prison setting, variances might become necessary, but the services and practices shall be no less than those that
- 9-

would be required for licensure in a non-prison setting. Reconstruction or rehabilitation of dental and primary ambulatory care facilities in the central and south complexes currently is occurring, and shall be completed within a reasonable time.
By December 31, 1986, the Department will conclude construction and commence the operation of the hospital facility described above. In case of unavoidable construction delay, a reasonable rescheduling of the completion date not to exceed January 1, 1988, may be necessary. Within 2 months following the completion of the replacement facility, the Department will cease to use for medical purposes the current hospital at SPSM. The new facility shall be accessible to all SPSM inmates, and shall be adequate to meet these .inmates' serious medical and mental health needs, except to the extent that the Department provides appropriate care elsewhere. The facility shall, in addition, be adequate to meet the serious medical and serious mental health needs of any other person brought from elsewhere for care at SPSM.
In the interim at SPSM, while new facilities are being constructed, defendants shall continue to assure in the current SPSM hospital professionally sanitary and safe conditions, including the appropriate storage of anesthetic gases.
2. Michigan Reformatory and Marquette Branch Prison Existing facilities at these two institutions generally are adequate. By 60 days from the implementation of this plan, the Department will upgrade the health assessment area in the dormitory at MR. The area shall be equipped with an appropriate
- 10 -

examining table, be kept professionally sanitary, and otherwise .. comply with minimal professional standards as necessary to protect inmate health.
C. Medical Screening 1. All prisoners, upon entry to the Michigan Department of Corrections, are given a physical examination by qualified medical personnel. A physician shall consult on each inmate. received. Dental screening is performed by qualified dental hygienists. Where not already implemented, these procedures shall be implemented and continued. 2. Prior to transfer to another facility or other substantial travel, each inmate shall continue to be evaluated by qualified health care personnel to assess suitability for
.· travel or institutional reassignment.
3. Víithin 90 days from the implementation of the plan, the Department will submit a professionally designed plan pursuant to Section VI on Plans, by which they will take appropriate precautions to prevent the occurrence of potentially epidemic contagions such as tuberculosis, aids, gonorrhea, and syphilis. The plan shall provide for implementation within an additional 180 days after the approval or adoption of the plan.
D. Access to Health Care 1. Within 60 days from the date of the implementation of this plan the Department will submit a plan pursuant to decree Section VI on Plans, by which all inmates will be
- 11 -

afforded daily access on each weekday to a sick call register. Any inmate who registers for sick call shall within 24 hours receive an appointment to be seen by medical staff within a reasonable time given the particular medical complaint, except those registering on a Friday may have their appointments determined on the following Monday. Inmates shall be afforded direct access to a register, which health care staff then collect. The register shall provide an opportunity to request care for serious medical, serious mental health, and serious dental conditions.
The Department's plan for direct access to health care must provide at least equivalent daily access on weekdays for inmates in segregation units (administrative, punitive, protective) and MIPC. While the procedure may differ for such inmates, the access may be no less.
The Department's plan shall make adequate provisions to assure that inmates will be transported as needed from housing or other areas to the health care facility.
The Department's plan shall provide for implementation within 9ü days after its adoption or approval.
2. No staff shall inhibit, interfere with, or delay any aspect of the health care delivery system.
3. Inmates brought for medical care from other prisons to the subject prisons will be treated promptly and returned to an appropriate penal facility.
- 12 -

¯4. Within 120 days of the implementation of this

¯¯ `

plan, the Department will submit pursuant to Section VI on

Plans a professionally designed emergency medical procedure.

It shall be sufficiently specific to assure adequate emergency

access to medical care from each area of each facility (e.g.,

SPSM - N o r t h Side, SPSM - South Side, etc.). Said plan shall

be implemented within 90 days of its adoption or approval.

E. Staffing and Procedures

1. Professional staff are responsible to provide adequate

medical care to meet each inmate's serious medical needs.

The physicians are the health authority in all cases requiring

medical judgment. Physicians shall assure continued,

appropriate supervision and direction of all health care. To

accomplish this supervision, the physician will meet appropriate

contemporary professional standards for supervision, including

appropriate use of standing orders and protocols. Dental

staffs are to be professionally supervised by dentists.

2. Uncredentialed staff (e.g., corrections medical aides),

all of whom must be supervised, shall not be assigned to

perform tasks which, under contemporary professional standards,

require appropriate licensed, registered, accredited, or certified

staff. Within 18 months after the implementation of this plan,

uncredentialed staff are not to make triage decisions. Contemporary

professional standards of care will be followed. Corrections

medical aides may be used, if properly trained and supervised,

- 13 -

as aides or technicians consistent with other provisions

herein. The provisions of this paragraph to the contrary not-

withstanding, the Department may continue to employ corrections

medical aides in their present functions for 18 months after the

implementation of the plan.

3. Within 180 days after the implementation of this

plan, the Department will employ and maintain employed medical

and dental care staffs at the subject institutions as •follows:

State Prison of Southern Michigan Michigan Reformatory
Marquette Branch Prison

FTE Employees 145 16.1
2£

The Department will allocate these positions to provide

medical and dental care necessary to meet the inmates' serious

medical and serious dental needs on a continuing basis. The

st3ffing requirement of SPSM (145 FTE's) is an interim require-

ment pending the completion of the new hospital facility at

that institution as further defined in Section II.B.I. Staffing

for SPSM after the completion Of the new facility is discussed

below.

4. The Department may, after the implementation of

this plan, make major reductions in prison population or

initiate new programs by which certain health care services

are provided to inmates of these institutions at other facilities.

In such a case staffing may be amended pursuant to a plan, which

the Department will submit pursuant to Section VI on Plans.

Any revision will not diminish the quality of care received

by inmates.

- 14 -

5. Staffing for mental health care, (including psychiatri¯sts, psychologists, and those nurses, social workers, secretaries, and others involved in mental health care) is discussed elsewhere herein. The FTE staffing positions required in this subsection (II.E) are to be used to provide only medical and dental care and to provide care only at the subject facilities. In exceptional circumstances, staff may temporarily be employed elsewhere to accomplish necessary tasks.
6. Within 270 days after the implementation of this plan, the^Department will submit, pursuant to Section VI on Plans, a staffing plan for the new facility to be constructed at the State Prison of Southern Michigan. This plan shall be professionally documented and designed. It shall provide a staff adequate to meet contemporary professional standards for staffing.
7. The delivery of health care services at MR is dependent on the services provided at the Riverside Correctional Facility. The Department will accomplish those tasks necessary to assure adequate access to services at Riverside. The Department recognizes that a decrease in services provided at outside facilities to inmates at the subject prisons may require an increase of medical care staffing at the subject prisons to meet the required standards of contemporary health care professionals.
- 15 -

¯_8. Inmates shall not be employed in direct patient - .. care or in any support activity with the exception of supervised dental aides, other than in tasks such as housekeeping and laundry.
9. Health professions students or interns may be used in the delivery of health care; provided, however, they may be used only consistent with the following: 1) they may be used only commensurate with their level of training; 2) they may be used only under direct professional supervision; and 3) they may-be used only pursuant to professionally written policies and procedures.
F. The Department will provide medical and dental prostheses when necessary to meet the serious health needs of any inmate, consistent with professional judgment.
G. Within 120 days of the implementation of this plan, the Department will submit a professionally designed plan pursuant to Section VI on Plans, to provide for systematic follow-up care for inmates with serious chronic disease. Said plan shall be implemented within 120 days after approval or adoption.
H. Mental Health Care This subsection concerns the care of serious mental illness. By serious mental illness, we mean manifest, substantial behavioral or physiological dysfunctions associated with psychosis, suicide, the serious threat of suicide, self-mutilation, or
- 16 -

psychotic episodes involving violence toward others. Excluded are mental retardation, personality disorders, psychosexual disorders, impulse control disorders, anxiety disorders, and other similar conditions.
The Department's current policy requires that care o£ serious mental illness meet contemporary professional standards. The Department shall take those additional steps necessary, if any, to meet these standards. These standards are understood to include the provision of reasonable protection of suicidal or self-mutilating inmates from suicide or self-mutilation.
1. The subsections on staff supervision (II.E.I), staff credentials (II.E.2), outside alternative care (II.E.4), staffing at the new hospital at SPSM (II.E.7), uncredentialed staff (II.E.2), training (II.I), medication distribution (II.K), and records ( I L L ) , shall apply to the provisions of care for serious mental illness. Specific provisions of this subsection (II.H) on mental health care further explicate these general provisions for a mental health context.
2. The Department will include in the new hospital at State Prison of Southern Michigan described above in II.B.I, a 21-bed fully licensed psychiatric unit for treatment of serious mental illness. The services and practices shall be no less than those that would be required in a non-prison setting.
- 17 -

¯3. Within 1 year from the implementation of this plan," `

defendants shall provide for each subject prison suitable

separated housing adequate to house every inmate who exhibits

a serious threat of suicide or who attempts suicide. This

housing area shall be staffed continuously_i^24 hours daily, ` r

*

by staff appropriately trained pursuant to a professionally

developed training program. It shall be equipped to allow

continuous, 24 hour daily observation of each inmate housed in

this area. The present equipment for observations of Marquette's

Brooks Center is adequate and may serve as an appropriate

model elsewhere. Seriously mentally ill persons shall be

housed only in appropriate housing and, absent a determination

in writing by a psychiatrist, shall be housed in a segregated

housing area, separate from all non-patient inmates. The Depart-

ment will establish an appropriate professional protocol for

suicidal inmates.

> 4. At its discretion, the will Department deliver in-

patient services for serious mental illness (other than screening,

observation, emergency care, and suicide care and prevention)

at a central, fully licensed facility: the Riverside Psychiatric

Center, in Ionia, Michigan, and at other locations. Within 270

days after the implementation of this plan, the Department shall

submit a professionally designed plan, pursuant to Section VI

on Plans, to assure that prisoners with serious mental illnesses

- 18 -

have adequate access to the Riverside Pyschiatric Center or

" ¯

to other similar facilities fully licensed or operated by the

Michigan Department of Mental Health. The decision to admit

patients to inpatient services shall be based upon professional

mental health criteria in a stated uniform policy. The plan

shall provide access to the inpatient care facility, except for

involuntary admissions, within 48 hours after diagnosis for

those needing inpatient care for serious mental illness. The

plan shall provide for systematic outpatient care, follow-up

care, as well as continuity of care for inmates with serious

mental illness. The plan shall include appropriate provision

\

for staffing for outpatient services and staffing for inpatient /

services to be available to each inmate for care of serious

mental illness. Staffing provisions shall meet contemporary

professional mental health standards to provide necessary

outpatient psychiatric and psychological care for seriously

mentally ill inmates.

The plan shall provide for full and continuous imple-

mention of the entire said plan within an additional 3 years

after its adoption or approval. Interim measures not requiring

major reconstruction, renovation, or new construction shall be

implemented within 1 year after the plan's adoption or approval.

Established state funding procedures for staffing appropriations

might require additions to,the time allotted for interim staffing

measures not to exceed an additional 6 months.

- 19 -

>; 5. Access to mental health services for serious mental, illness shall be available through the system set out in 1 I¯I.D of this Section on Medical Care. In a case where a correctional officer reports that an inmate might be seriously mentally ill, defendants shall provide immediate access to professional mental health staff.
\6. At least twice monthly at each subject prison, a clinical psychologist or psychiatrist shall visit each housing unit that houses any segregation inmate (protective, punitive, or administrative), and at the Michigan Intensive Program Center such visits shall be weekly. On these visits, the psychiatrist or psychologist shall take appropriate steps to be informed of the mental health status of the inmates housed in these areas (including, e.g., discussions with staff and inmates and a review of the log). If the psychologist or psychiatrist observes conditions presenting serious threats to the mental health of the inmates, or any of them, he or she shall inform the Warden in writing of these conditions.
7. The initial assessment for psychotropic drugs shsll be by a psychiatrist or in a mental health emergency by a physician. Defendants shall take all necessary steps to detect and control the side-effects of psychotropic drugs. They shall develop written protocols for the use of the various classes of psychotropic medications.
- 20 -

H¯8. Defendants shall take appropriate measures to assure that psychiatric/medical care is coordinated with psychological care. This will include the coordination of recordkeeping between psychiatrists and psychologists.
0
I. Training 1. Within 120 days after the implementation of this plan, the Department will submit a plan pursuant to Section VI on Plans, to provide appropriate in-service training at all health care staff (professional and non-professional). The plan shall be professionally designed. Training shall be professionally executed on a continuing basis. The plan shall be implemented within an additional 90 days after it is adopted or approved. Within l·2O days of the implementation of this plan, the Department will submit a plan pursuant to Section VI on Plans by which correctional and other personnel are trained pursuant to a professionally designed and executed continuing pre-service and in-service training program to respond to health-related emergencies within a four minute response time. This training shall include, without limitation:
a) recognition of signs and symptoms of serious illnesses, and knowledge of action required in emergency situations;
b) administration of first aid and cardiopulmonary resuscitation (CPR);
- 21 -

c) methods of obtaining assistance; d) signs and symptoms of mental illness,
mental retardation, and chemical dependency; and e) procedures for patient access or transfer to appropriate medical facilities or health care providers. The plan shall provide for this training to be accomplished within 270 days of the adoption of the plan. J. Special Diets Special therapeutic diets are provided for any prisoner determined by medical staff to require this service. Patients requiring these diets shall be housed only in a facility providing them. Prisoners who are confined to their cells at SPSM and MBP are delivered special diet trays. Correctional officers may deliver medically prescribed diets; however, no inmate may deliver special diets. Inmates may carry food trays for special diets only under the direct, immediate supervision of a correctional officer. K. Medication Distribution Pharmaceutical services are and shall continue to be carefully controlled in conformity with state and federal statutes. At each institution, the dispensing and administration of medication is the responsibility of health care personnel.
- 22 -

To be involved in delivering medication, correctional officers must be qualified by successful conclusion of specialized, professionally designed and executed training.
L. Problem-Oriented Health Records Health records are maintained at each institution in accord with the Modified Problem-Oriented Health Record format. Within one year of the implementation of this plan, the Department will take appropriate measures to assure that this medical recordkeeping procedure has been and continues to be fully implemented. M. Quality Assurance The central Office of Health Care presently conducts audits of health care at the State Prison of Southern Michigan, Michigan Reformatory and Marquette Branch Prison. These audits shall be continued as follows: 1. Medical audits annually by physician reviewers and medical record administrators who shall examine retrospectively all death cases and a random sample of health records at each institution, assessing the quality of medical decisions, the adequacy of medical supervision of care, and the quality of medical record documentation. 2. Administrative audits annually at each institution by Health Care administrators and persons qualified in various specialized support services to assess the organization of
- 23 -

health services, quality and quantity of health care staff, adequacy of policies and procudures, processing of grievances, and inmate perception of quality of care. These audits also serve as the occasion for problem-solving and technical assistance to institutional staff.
3. Dental audits annually by dentist reviewers at each institution to assess the quality of dental care through observation of the clinic, review of charts, and inspection of a sample of patients who have been treated.
4. Mental health audits annually by psychiatrists of the Office of Health Care or of an independent agency.
Consistent with principles of peer review confidentiality, a professional report shall summarize the findings of each audit, including an enumeration of any condition inconsistent with contemporary professional health care standards.
As to each cited condition of each summary report, the Department will make all indicated corrections within 90 days; unless funding requirements (including provisions for hiring and bidding) or purchase of equipment requires further time not to exceed 180 days. In any event, correction shall be accomplished within a more rapid time if more rapid correction is required pursuant to this plan or otherwise by law. As to
- 24 -

any section of this plan the requirements of which are not yet applicable under the terms of this plan, the Department need not meet these correction'deadlines. It is recognized that on occasion extraordinary measures might be necessary to make required corrections, and in such a case, these corrections shall be made within a reasonable time.
Within 3 years after the implementation of this plan, where not already done, the Department will include in each audit conducted fully independent, outside professionals. III. Fire Safety
The following fire safety provisions are an integrated system designed to achieve fire safety at SPMS, MR, and MBP. Each provision of this section on fire safety depends on compliance wi·¯th each of the other provisions, whether physical plant and equipment are involved or human skills are required.
With regard to facilities, A. Within 60 Days from the implementation of this plan, the Department shall: 1. Unblock and keep clear all exit ways. 2. Cease storing any combustible materials in cellblocks or other housing areas, unless the storage occurs in an appropriate, fire safe storage cabinet or room. This
- 25 -

includes without limitation ceasing storage, unless in appropriate, fire safe containers, of personal property above housing areas at MIPC, but does not include items in inmate cells for inmate use. This paragraph does not apply to inmate personal property stored in the inmate's cell or, in the case of dormitories, in the inmate's immediate living area.
3. Remove from all cellblocks and other housing areas all combustible trash containers.
4. Remove and cease to use all polyurethane pillows, cushions, or other furnishings in all cellblocks and other housing areas.
^ - . 5 . Remove all cardboard and all other combustible materials from the bars of the cells in all inmate housing areas. The Department may in their discretion replace these materials with non-combustible materials.
.6. Cease storing compressed gas cylinders unless and until, on a continuous basis, the storage complies with National Fire Protection Association Standards #56A and #56B.
B. Within 120 days from the implementation of this plan, the Department shall:
1. Provide in each cellblock in each institution a minimum of two fire extinguishers per floor or gallery, with one of the two extinguishers placed at each end of the
- 26 -

respective floor or gallery (e.g., 10 extinguishers per block at SPSM and MR (I and J blocks) and 6 extinguishers per block at MBP). Water-type extinguishers are adequate.
2. Provide water flow alarms and valve supervision on all existing sprinkler systems and provide automatic alarms on all kitchen hood dry chemical systems.
`< 3. Provide fixed dry chemical extinguishing systems for all operating range hoods in all kitchens.
C.`` Within 180 days from the implementation of this plan, the Department will submit professionally designed plans pursuant to decree Section VI on plans.
1. To provide smoke detectors in each cellblock or other housing area.
- 2. To provide adequate means of egress from places of assembly as defined in Article 2 of the BOCA Code. Both plans (III. C. 1, 2 ) shall provide for accomplishment of all necessary tasks within an additional 1 year and 6 months after adoption or approval of each plan and for continuous maintenance thereafter. In a documented case of unavoidable construction delay, a reasonable extension of construction deadlines not to exceed an additional 6 months may be necessary.
D. Within one year from the implementation of this plan, as to the interiors of cellblocks and other housing areas, the
- 27 -

Department will remove, or provide necessary £ire suppression to protect all non-structural combustible materials, including cardboard, plywood, hardboard, and those found in cellblock guard shelters. As well, in all inmate use areas including cellblocks and other housing areas, the Department agrees that ceiling tiles and panelling will have a flame spread lower than 75 in exit ways and 200 in other areas, and they will remove nonconforming ceiling tiles and panelling; provided, however, that in sprinklered areas, it shall be adequate to meet the NFPA Class C requirements.
E. Within 2 years from the implementation of this plan, the Department will:
1. Provide in each housing area gang locks that will allow for the remote immediate unlocking of cells. The Department may continue present top lock procedures. (Locking mechanisms are discussed in Section IV.G. of this plan, and the requirements set out there are additional to this requirement).
2. Provide in each cellblock or other housing area and in each activity, work, or indoor recreation area (including farm basement), no fewer than two operational remote exits with doors properly swinging to facilitate the flow of egress. To meet this requirement, each floor shall have a minimum of two exits; each room of 1,000 square feet or more shall have 2 exit access doors; and rooms of less than 1,000 square feet may have a single exit access door.
- 28 -

3. Provide at each facility for automatic transmission of fire-alarm signals to the control center, which will transmit the signal to the local fire department by means of specialized equipment.
4. Enclose stairs with 2-hour fire resistant construction in the following areas: 1) cellblocks I and J at the Michigan Reformatory; 2) central stair at SPSM Building 18 (school, administration, and shop); 3) central stair in SPSM Central Complex kitchen (3-story stair); and 4) both open stairs at MR-8 building (library, stores, hobby craft). Fixed wired glass vision panels shall be permitted in such partitions provided that they do not individually exceed 1,296 square inches in area and are mounted in approved steel frames.
5. .Provide self-contained breathing apparatus sets so that two sets are readily available in each cellblock. Breathing apparatus sets shall be installed in quick release wall mounts.
6. Pursuant to a professionally designed plan provide an adequate number of emergency lights to light all means of egress in each cellblock or other housing area and in each activity, work or indoor recreation area.
7. Provide 2-hour fire separation: 1) between all cellblocks; 2) between rotundas and cellblocks; 3) for the upper floor of the control room at MIPC; and 4) to separate the basement of SPSM 16-block from the stairs to the first
- 29 -

floor. 'Fixed wired glass vision panels shall be permitted in such partitions provided that they do not individually exceed 1,296 square inches in area and are mounted in approved steel frames.
8. Provide magnetic hold-open devices on fire and smoke doors in areas where these doors are kept open (e.g. infirmary at SPSM.)
9. Subdivide the basement of buildings 18 and 19 of the Central Complex of the State Prison of Southern Michigan with appropriate fire separations, and provide automatic sprinklers, all pursuant to a professionally designed plan.
10. Provide in all work, activity, and assembly areas (e.g., auditoriums, dining areas, gymnasiums, visiting areas) appropriate •exit signs and directional signs.
11. Provide remote electric release locks on security grills on each gallery in each facility.
12. Provide smoke barriers (1 hour fire resistant construction) between sleeping areas and other areas in dormitories and farm barracks. Fixed wired glass vision panels shall be permitted in such partitions provided that they do not individually exceed 1,296 square inches in area and are mounted in approved steel frames.
F. Within 180 days from the implementation of this plan, the Department will submit pursuant to Section VI on Plans, a professionally designed plan to equip all housing areas consistent with National Fire Protection Association Standard #13, with
- 30 -

sprinkler systems adequate to provide sprinkler protection to

each cell and to each dormitory or other housing Unit within the

main walled prison structures. The plan shall provide for full

implementation within an additional 30 months following the

adoption or approval of the plan. This paragraph shall not

apply to dormitories outside prison walls including farm barracks.

With regard to operations,

G. Within 18U days from the implementation of this plan,

pursuant to Section VI on Plans, the Department will submit

a professionally designed comprehensive, written fire safety

operations plan.

.

`1 1. The plan shall include without limitation the

following:., emergency procedures for each respective area

that inmates might use or occupy as to each facility;

evacuation procedures for each respective area of each

facility; a systematic fire drill procedure; inspection and

maintenance procedures for all equipment for fire emergencies

or suppression; appropriate training of staff and inmates;

inspection and control of fuels present in the prison;

responsibility for and supervision of all fire safety measures

and procedures; coordination with local fire officials; and

consultation with and appropriate inspection by the State

Fire Marshal.

- 31 -

j 2,. The training required in the plan shall include training of correctional officers to accomplish all emergency, drill, inspection, maintenance, or other tasks assigned to correctional officers pursuant to the plan. It shall include at least pre-service plus semi-annual refresher training on the use of fire equipment and at least pre-service plus annual refresher training on all emergency procedures. No correctional officer shall be assigned to any cellblock or other housing area without first knowing the fire safety procedures for that cellblock or housing area.
3. The fire drills required in the plan shall occur at least every fourth month in each cellblock or other housing area, shall be unannounced, and shall require full evacuation (excepting .-in administrative segregation) of each area being drilled, except that staff may conduct a drill without evacuating inmates in those instances where, in the opinion of the warden reflected in a document signed by the warden, the evacuation of the inmates would be inconsistent with the necessities of prison order.
4. The training of inmates required in the plan shall be adequate to inform them of expected behavior in case of fire emergency, and it shall be given to each new inmate and then at least annually to all inmates.
- 32 -

5. The training of maintenance staff required in the plan shall be appropriate for the functions contemplated in the plan to be accomplished by such staff members.
6. The plan shall require the prominent and permanent posting in each housing area of a fire evacuation procedure designed specifically for that housing area.
7. The plan shall require that keys necessary for evacuation of inmates shall be identifiable by both sight and touch and shall be immediately available to the correctional officer who is to coordinate evacuation of a particular housing area. An emergency set of evacuation keys shall be maintained at accessible locations within each institution.
8. All provisions of the plan shall be accomplished within one year after the adoption or approval of the plan and maintained thereafter.
H. Within 90 days after the implementation of this plan, the Department will:
`· 1. For each facility, commence with local fire officials to assure that firefighters on each of their shifts may tour the facility annually. Prison officials shall coordinate with local fire officials concerning the security needs of the prisons in order to facilitate proper emergency planning.
- 33 -

2_.¯ At each prison, a professionally trained fire safety officer shall be responsible without limitation for fire safety and for the continuous implementation of the fire safety plan for that institution (pursuant to Section III. G. 1 once that plan is adopted), and the coordination of all required inspection, maintenance, and training.
3. Cease to house any inmate in housing areas where there is less than the 24-hour per day physical presence of correctional officers. This requirement includes the quarantine unit at Marquette's Brooks Center as well as all other housing units.
4. For the interim, until the fire safety operations plan (pursuant to Section III. G. 1) is adopted, inspect and provide continuing proper operation of all present fire suppression or emergency equipment, including without limitation, sprinklers, standpipes, fire extinguishers, kitchen hood fire suppression systems, and self-contained breathing apparatus sets.
I. Reporting and Inspection Regarding Fire Safety 1. Beginning December 1, 1983, or as soon thereafter as this plan is implemented, the Department will obtain annual inspections by the Michigan State Police Fire Marshal Division to determine compliance with all provisions of this Section III concerning fire safety ("compliance report"). The findings of compliance inspection shall be reflected in a signed, written
- 34 -

report.- This report shall be provided to the Michigan Department" of Corrections promptly following each inspection.
J. The Department of Corrections shall provide a - •"system of at least monthly internal inspection and reporting,
using a professionally designed, written checklist. The written lists, after completion, shall be retained for at least three years. IV. Overcrowding and Protection from Harm
A. Provision of Adequate Space - This plan assumes continuation of single celling. Dormitories shall provide 60 square feet per inmate. Space requirements for administrative segregation are set out elsewhere herein.
B. Housing Assignments - Within 1 year from the implementation of this plan, the Department shall submit a plan, pursuant to Section VI on Plans, to assure that the following groups each shall be housed outside of physical contact and, within reason, outside verbal contact, with inmates in housing areas assigned to other groups; provided, however, that punitive detention inmates may be housed in the same units as administrative segregation inmates, and that, if otherwise consistent with this plan and if medically appropriate, inmate-patients transferred from other institutions may be housed with non-patients of the same Michigan Department of Corrections classification. Subject to this proviso, these groups are general population inmates, protective custody inmates,
- 35 -

administrative segregation inmates, punitive detention inmates, .. ‰ inmates undergoing reception processing, and inmates transferred from other institutions. The plan shall assure that only inmates classified as likely to be violent and no protective custody inmates may be assigned to dormitories.
The plan shall provide for full and continuous implementation of the entire said plan within an additional 3 years after its adoption or approval. Interim measures not requiring major reconstruction, renovation, or new construction shall be implemented within 1 year after the plan's adoption or approval. Established state funding procedures for staffing appropriations might require additions to the time allotted for interim staffing measures not to exceed an additional 6 months. As to SPSM 5-block, until six years after the implementation of this plan, general population inmates (excluding reception center and protective custody inmates) may be housed with administrative and punitive segregation inmates.
C. Staff - Staffing throughout the subject prisons for all relevant functions shall be adequate to comply with all provisions of this plan.
As to housing, in each cellblock and in each dormitory, a single*staff employee shall be assigned accountability for all conditions for all three shifts within that block, including implementation of this plan. Within 270 days from the implementation of this plan, each such person shall be trained pursuant to a professionally designed training program to accomplish these
- 36 -

responsibilities. Within 180 days from the implementation of this plan, the Department shall provide the full staffing complements in each housing area as designated by the Department as of November 28, 1982 and approved by them on January 16, 1983. In a temporary emergency, blocks may be operated at staffing levels designated on those dates as critical. Where a change in design or function takes place in a housing area, the staffing may be adjusted if consistent with this plan to provide adequate services and protection, and the United States shall be notified of the adjustment.
D. Training - The provisions of this Section IV on Overcrowding assume the continuation of the Department's present training program or its substantial equivalent, including 40 hours per year of in-service training for custody staff, managers, and supervisors.
E. Surveillance and Security - Present practice, which shall be continued, is that correctional staff circulates throughout each cell block to maximize surveillance. Rounds by correctional staff shall be organized and supervised to assure that each cell is directly observed by a correctional staff member at least once each hour on an irregular schedule, 24 hours daily.
F. Supervision and Inspection - The Department shall take those steps necessary to assure the effective supervision of all correctional employees. All staff shall be instructed promptly in the requirements of this plan.
- 37 -

The Department will conduct an annual audit of the subject prisons for compliance with the provisions of Section IV on Overcrowding and Protection from Harm and other pertinent managerial factors. The audit shall consider as many sources of information as feasible, such as personal observation, grievancesf inmate letters, and inmate and staff discussion. The audit team shall be reflected in a signed written report to be completed promptly.
As to each cited condition on the compliance inspection report, the Department will make all indicated corrections within 60 days; unless funding requirements (including procedures for hiring or bidding) or purchase of equipment requires further time not to exce.ed 180 days. In any event, correction shall be accomplished within a more rapid time if more rapid correction is required pursuant to this plan or otherwise by law. As to any section of this plan, the requirements of which are not yet applicable under the terms of this plan, the Department need not meet these correction deadlines. The parties recognize that on occasion extraordinary measures might be necessary to make required corrections, and in such a case, these corrections shall be made within a reasonable time.
G. Locking Mechanisms - Within one and one-half years from the implemnetation of this plan, the Department shall provide and maintain thereafter in each cellblock for each occupied cell a fully operational lock. To be adequate, when locked, the lock
- 38 -

must reasonably retain the. cell door in a closed and locked position to protect the inmate. Excepted from this requirement are cellblocks housing only minimum security inmates, where, effective three years after implementation of this plan, cell locks shall be repaired to the extent necessary for protection of the particular inmates housed in each such block.
H. Out-of-Cell Activity The Department will make the following provisions for out-of-cell activity: ` 1. Excepting South Complex SPSM (minimum security), within two years from the implementation of this plan, the Department will provide an appropriate, safe indoor exercise facility at each prison adequately staffed and adequately equipped to allow each general population inmate access to year-round large-muscle exercise one hour daily, five days weekly. The current facility at SPSM Central Complex is adequate. In the interim, an hour of yard time shall be staffed and scheduled each day, five days weekly, for those inmates desiring to participate. When such indoor facilities are available, they shall be used on days of inclement weather; and on other days yards shall be available. To the extent possible, scheduling for access to exercise shall be flexible enough to allow inmates to combine minimal exercise with other scheduled activities. Exercise in segregation is discussed in Section IV.J.5.
- 39 -

2. Within 180'days from the implementation of this plan, the Department will submit a plan pursuant to Section VI on Plans that will provide increased out-of-cell activity. In designing its plan, the Department is to be accorded wide latitude. This is not to suggest that any particular activity (such as those listed below in this paragraph as examples) is itsel£ required, nor is there an obligation to provide rehabilitative treatment or a job to any inmate. Rather, the objective is to provide meaningful activity outside of cells on a limited basis. The plan may include, for example, access to reasonably-supplied general libraries, educational activities, industrial and other work activity, or religious activity. For whatever activities prison officials choose to provide, they shall provide reasonably adequate staffing, facilities, and equipment. Their plan shall provide access to these various activities such that at SPSM and MR, 75% of all inmates, and at MBP all general population inmates, may be active out of their cells and dormitories, including exercise, meal, shower, and law library time, no fewer than 7 hours daily on weekdays and 5 hours daily on weekends. The plan shall provide for full and continuing implementation within an additional 180 days after its approval or adoption.
I. Other Measures to Increase Inmate Protection From Harm - On a continuing basis, prison officials will assure ready inmate access to required grievance forms and assure confidential delivery of completed forms to appropriate prison personnel.
- 40 -

J. Administrative segregation, punitive detention, protective custody (generically termed "segregation") and Reception and Guidance Center (RGC)
All provisions throughout this plan apply with equal force
to all segregation units except where express provisions to the contrary are stated.
1. If deemed necessary by the Deputy Warden for the safety of the segregation prisoner involved and i£ justified in writing by the Deputy Warden, requirements elsewhere set out in this decree for the provision of mattresses, linens, shaving, other personal hygiene articles, a stool, and a writing space may be diminished only so long as and to the extent so 'necessary. 2. Prisoners in segregation and RGC shall continue to be served three meals per day, which are essentially the same meals as those served to general population. Food sanitation shall comply with all applicable provisions of the plan subsection on food sanitation, supra. Where prisoners are served food in their cells, provision is to be made for delivery of sanitary food at safe temperatures, also in compliance with the food sanitation subsection, supra, including the provision of food pass slots in all cells, not less than 30 inches above the
- 41 -

floor, each slot with a shelf wide enough to support a food tray and a slot high enough to allow the passage of the tray without food touching the slot. Food slots shall be cleaned daily. 3. In addition to other lighting requirements herein, within 1 year from the entry of this plan, the Department will provide that all segregation inmates can view natural light from their cells. Each cell in segregation will be furnished with a bunk above floor level, a writing space and a stool or other suitable seating arrangement. Inmates at MIPC are not included in this paragraph IV.J.3. 4. A supervisor of captain rank or above will inspect each unit daily and record each visit and any unusual circumstances in the segregation log book. Members of the adininistrative segregation punitive detention housing team will visit each prisoner in each such unit daily, recording each visit and any unusual circumstances, A qualified member of the medical staff will make rounds in administrative segregation and punitive detention daily. Medical staff will visit more often than once per day as necessity dictates. Housing and custody staff shall continue to refer all natters of a medical
- 42 -

or psychiatric nature to the medical staff. Unit staff shall continue to log in the unit log all complaints or indications'of medical and psychiatric problems. The log shall be reviewed daily by qualified medical staff. Prisoners will be provided with prescribed daily medication and with prosthetic devices, including eyeglasses, unless medical staff otherwise determines. 5. Within 1 year from the implementation of this plan, each prisoner in administrative segregation, protective custody, and the Reception and Guidance Center will receive the opportunity to engage in exercise away from his cell at least one hour per day, five days per week, including indoor exercise in inclement weather •'and outdoor exercise weather permitting. Indoor exercise need not be provided to those inmates who have been segregated or in Reception and Guidance fewer than 60 days in the preceding 180 day period. Any restrictions on exercise are to be justified in writing by the Deputy Warden. 6. Programming in the following areas will be provided for prisoners in administrative segregation and protective custody: education, commissary, library, religion, counseling, and recreation. Such programs will be provided in a manner consistent with the 6afety of prisoners and good order of the institution. Each prisoner in segregation will be allowed to have access
- 43 -

to reading materials of reasonable quality. Opportunity to borrow reading materials from the institution lending library will be provided. Excepting education, these programs similarly shall be made available at the Reception & Guidance Center. 7. At Marquette within 2 years from the implementation of this plan, at the Michigan Reformatory within 4 years from the implementation of this plan, and at SPSM within 6 years from the implementation of this plan, the Department shall cease housing segregation inmates in cells lacking adequate space, given the level of out-of-cell activity provided the Department's plans for renovation providing at least 60 square feet per inmate is adequate in every regard. Segregation inmates shall continue to be housed in single cells. 8. Consistent with the security of the institution, personal property in protective custody and administrative segregation shall be no more restricted than for general population; although, in punitive detention and the Reception Center, personal property may be limited to books borrowed from the prison library and to inmates' legal papers and writing materials, of which inmates may not be deprived at any time. Clothing and personal hygiene articles are discussed elsewhere herein.
- 44 -

- 9. No innate may be held in isolation (no sight or . sound contact) from all other inmates for more than 2 days in any month, unless the isolation occurs for medical reasons in a medical area or unless the inmate is evaluated on a daily basis by a psychiatrist or a clinical psychologist who states in writing, that the inmate is not suffering serious harm. 10. Protective custody inmates shall be accorded substantially equivalent privileges (including
x activities, work, and recreation) to those accorded to general population inmates unless prison or inmate security demands a reasonable reduction in (or, if reasonably necessary, an elimination of) the privileges, 'given the cost and circumstances involved in providing similar privileges. V. Access to Courts 1. The Department will continue to implement fully their
law library policy under which each general population inmate is guaranteed at least 6 hours per week of law library use, in two-hour segments. To accommodate this use, law libraries are open at least 25 hours per week, half of which is on evenings and weekends. The law library remains open additional hours if necessary to meet inmate needs. Prisoners who have pending court cases which require additional law library time in excess of the 6 hour guarantee are allowed the additional access necessary.
- 45 -

2. Inmates in'administrative segregation or protective custody shall be guaranteed 2 hours per week direct, personal access to a limited law library collection as indicated in Appendix B. In addition, on three days each week, such inmates nay request five volumes to be brought to them from the main law library collection unless lent to another inmate. These volumes shall be delivered to these inmates on the next day that requests are collected and may be collected after the inmate has had their use for 24 hours.
3. Within 180 days after the implementation of this plan, the Department will provide in each main law library to the extent not currently provided each of the publications listed in Appendix B. Each publication shall be updated promptly as revised editions, pocket parts, or advance sheets become available. Periodically at six month intervals, defendants shall survey each collection to identify missing or mutilated volumes. All missing or mutilated volumes, however discovered to be missing or mutilated, must be replaced or restored promptly.
4. The Department shall take those measures necessary, if any, to implement their policy for treatment of privileged legal mail (including mail from federal, state and local courts, governmental agencies, and attorneys), which provides that such mail will not be read, that upon the inmate's written demand,
- 46 -

such mail will not be opened except in the presence of the inmate¾ to whom the mail is addressed, and that such mail only may be opened to search for contraband. The policy further shall provide that inmates may seal all outgoing legal mail, which prison officials shall then cause to be posted unopened in the U.S. mail.
VI. Plans and Compliance This plan provides for a number of plans that the Department shall submit at specified times. Each plan shall be submitted to the United States Department of Justice, Civil Rights Division, by the specified submission time. Each shall set forth a detailed statement of the measures that the Department will take to achieve timely compliance with the plan along with a detailed timetable setting forth dates for interim and final compliance measures. Each plan also shall establish a method for continuing, maintenance of each item to be accomplished pursuant to the plan. Upon submission, the United States shall review the plan. If there is no objection to the Department's proposed plan, the plan shall be appended to this plan. If the United States objects to the defendants' proposed plan, the parties shall attempt to conciliate any differences among them. To the extent useful and feasible, the United States may provide technical assistance in this conciliation process. If necessary, the United States may commence hearings concerning unresolved objections to proposed plans within 60 days of raising objections.
- 47 -

APPENDIX A; SANITATION PLANS I. Housekeeping
A. The Assistant Deputy Warden for Housing in each institution is charged with the responsibility for the maintenance of clean and healthful conditions in prisoner living units.
1. At each institution, the Assistant Deputy Warden or designate of rank of captain or above shall conduct a monthly inspection of all prisoner living units and shall complete the appropriate monthly inspection report for review by the Warden. A follow-up procedure will be implemented to assure correction of any deficiencies noted in the report. Corrections will also be timely reported to the Warden for follow-up review.
2. The Assistant Deputy Warden or designate will assure that all staff in living units are appropriately trained in housekeeping techniques and instructed as to their individual responsibilities.
B. The Resident Unit Manager (RUM) for each living unit has direct supervisory responsibility for maintenance and housekeeping in the unit.
1. The RUM will assure that prisoners within the housing unit are informed that they are responsible

for general housekeeping in their own cells, and will assure that each prisoner appropriately clean his cell on a routine basis. 2. The RUM will assure that appropriate cleaning supplies are available at all times within the unit and will assure that each prisoner has access to cleaning supplies for his own cell. 3. The RUM will inspect all cells and common areas in the RUM's unit weekly and will complete inspection reports for review by the Assistant Deputy Warden for Housing or designate. Deficiencies will be monitored and corrected immediately. Any deficiencies beyond the control of the RUM will be reported to the Assistant Deputy Warden for Housing. 4. The RUM is responsible for the supervision of housing staff and inmate workers in the unit. The RUM may delegate responsibility for housekeeping in specific areas to appropriate staff. 5. The RUM will assure that prisoner workers in the unit who are assigned to housekeeping of common areas will receive appropriate training for the tasks assigned and that these areas will be

swept daily and showers will be mantained clean. 6. The RUM will assure that empty cellE are clean
before assignment to a prisoner. C. Housing unit sergeants who report to the RUM, or at MBP the RUM in each housing unit, are responsible for supervision of day-to-day housekeeping tasks by officers and prisoner workers. Sergeants, or at MBP the RUM, maintain work schedules for prisoner workers and staff for all necessary tasks, and assure these tasks are performed through inspection and follow-up. D. Unit officers are assigned to specific areas in the unit for purposes of housekeeping and sanitation, and are directly responsible for the instruction and supervision of prisoner workers as to cleaning procedures and for the provision of suppleis •and equipment in these areas. Officers assure that personal cells in assigned areas are maintained in a sanitary condition by their occupants. E. The Assistant Deputy Warden for Housing will develop a plan appropriate to the individual institution to accomplish all housekeeping goals set forth herein including for ongoing cell painting and to assure that all cells are refurbished on a regular basis. II. Personal Hygiene of Prisoners A. Mattresses ¯ Defendants shall provide each prisoner moving into a cell with a sanitized mattress and pillow and

with a freshly laundered blanket. No prisoner shall be assigned to a cell lacking a sanitized mattress and pillow or lacking a freshly laundered blanket.
6. Bedding and Towels - Each prisoner shall be provided with clean bed linen (including, without limitation, two sheets and one pillowcase) once per week. A blanket shall be provided to each prisoner and laundered every three months. A clean towel shall be provided to each prisoner at least three times per week.
C. Each prisoner shall be afforded the opportunity to shower at least three times per week. It is the policy of the Michigan Department of Corrections that no prisoner may be asked to forego exercise as required herein, employment, assigned programs or meals in order to avail himself of a shower. This policy shall be continued. Shower time shall be of adequate duration, at least 5 minutes physically in the shower.
D. Each prisoner, upon entry into the correctional system, is provided with soap, toothbrush, toothpaste or powder, comb and toilet paper. Prisoners shall continue to receive these items upon entry. Thereupon, each prisoner who is indigent shall continue to be provided these items as needed as well as shaving equipment, shaving soap or depilatories as needed. All other prisoners will have access to materials for personal hygiene for purchase at resident stores on a regular basis. The state shall make available for purchase or use nonelectric

sanitary shaving equipment, shaving soap or an appropriate depilatory. Inmates shall not be asked to use shaving equipment used by other inmates unless sanitary.
E. All clothing including personal clothing, linens, and bedding, shall be laundered so as to meet institutional laundry standards such as those of the International Fabricare Institute. III. Vermin Control
A. Each institution has a contract with commercial pest and vermin control companies for periodic preventive maintenance in both food service and housing areas.
1. Food Service Supervisors are responsible for day-tòday inspection of food service areas, including commissaries and other food storage areas, for evidence
, of vermin (as well as birds) and shall assure immediate control shouid problems develop. Appropriate inventory techniques for food storage are already in place and will be constantly monitored by Food Service Supervisors in order to prevent infestation, as well as spoilage.
2. In housing units, Resident Unit Managers are specifically charged with weekly inspection for evidence for vermin (as well as birds) and corrective action should such evidence be apparent.

B. The Environmental Sanitarians are specifically designated to inspect the food service areas as well as housing units for*evidence of vermin (as well as birds) on a monthly basis. Any evidence of vermin (as well as birds) will be brought to the attention of the appropriate supervisor by the Sanitarian for remedy. All measures necessary to assure eradication and control of such vermin and birds, including additional or different professional, commercial, fully licensed pest control, shall be taken promptly. Any serious infestation will be reported to the Assistant Deputy Warden for immediate control measures.
C. Informal education of prisoners and staff in sanitary housekeeping techniques and control of perishables in prisoner living areas will be continual in order to prevent, so far as possible, the introduction of vermin.
D. Prisoner workers will continue to be trained in eradication techniques under the supervision of staff to supplement contract services for vermin control.

APPENDIX B
¯ -. MINIMUM COLLECTION FOR MAIN LAW LIBRARIES
MICHIGAN MATERIALS
1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39, 40-41) OR
Michigan Statutes Annotated (Vol. 1, 24, 24A, 25, 25A)
2. Michigan Digest (West) (all) OR
Michigan Digest¯TCallaghan) (all)
3. Michigan Supreme Court Reports (Vol. 358 (1960) to the present plus subscription to advance sheets)
4. Michigan Appeals Reports (Vol. 1 to the present plus
subscription to advance sheets)
5. Shepard's Michigan Citations (all)
6. Gillespie - Michigan Criminal Law and Procedure (all)
7. Honigman and Hawkins - Michigan Court Rules Annotated (all)
8. Michigan Criminal Jury Instructions (all)
9. Hensel - Appeals in the Michigan Courts
FEDERAL MATERIALS
1. United States Code Annotated (Constitution volumes, Titles 18, 28, 42)
2. Supreme Court Reporter (From Vol. 80 (1959) to the present plus subscription to advance sheets) OR
United States Supreme Court Reports, Lawyers' Edition, 2nd Series (From Vol. 4 (1959) to the present plus subscription to advance sheets)
3. Federal Reporter, 2nd Series (From Vol. 300 (1962) to the present plus subscription to advance sheets)
4. Federal Supplement (From Vol. 200 (1961) to the present plus subscription to advance advance sheets)

- 5 # Federal Pr»rl·ice Digest, 2d ( a l l )
6 # shepãrd's United States Citations ( a l l )
7# shepard's Federal Citations ( a l l )
8. Wright - Federal Practice and Procedures (Vols. 1, 2 fc 3 (Criminal)) :
9. Sokol - Federal Habeas Corpus (latest edition)
GENERAL MATERIALS
1. Corpus Juris Secundum (22, 22A, 23, 23A, 24, 24A, 24B (Vols. covering Criminal Law))
2. Black - Black's Law Dictionary, Revised 4th Ed. (1968) OR
Ballentine - Ballentine's Law Dictionary, 3d Ed. (1969)
3. Cohen, M. - Legal Research in a Nutshell (latest edition) OR
Elias - Legal Research: How to Find and Understand the Law
4. Bailey and Rothblatt - Complete Manual of Criminal Forms, 2nd Ed (2 volumes)
5. Israel and LaFave - Criminal Procedure in a Nutshell, 2d Ed.
(1975)
6. Criminal Law Reporter
7. Rubin - Law of Criminal Correction, 2nd Ed. (1973)
8. Werner - Manual for Prison Law Libraries (1976) 9. Dorsen, N. - The Rights of Prisoners (1973)
OR Rudowsky, D. - The Rights of Prisoners (1973)
OR Palmer, J.W. - Constitutional Rights of Prisoners (1977)
10. LaFave, W.R. - Principles of Criminal Law (1978) OR
LaFave and Scott, Handbook in Criminal Law (1972) OR
Loewy, A.R. - Criminal Law in a Nutshell, 2nd Ed. (1972)
MINIMUM COLLECTION FOR ADMINISTRATIVE SEGREGATION LAW LIBRARIES
1. Michigan Compiled Laws Annotated (Vol. 1-2, 38-39, 40-41) OR
Michiaan Statutes Annotated (Vol. 1. 24, 24A, 25, 25A)

2. A treatise on Michigan criminal law and procedure? 3. Superceded "advance sheets" of Shepard's Citations (United
States, Federal* and Michigan); 4. A treatise (e.g.. Nutshell series) on prisoners' rights;
5. A treatise on habeas corpus; 6. A general treatise on criminal law and on criminal procedure; 7. A legal dictionary; 8. Federal rules of civil and criminal procedure; 9. A Michigan Resident Guidebook; and 10. A list of the main law library holdings as periodically
updated.

 
 : ¾ ; :••?•••; . • ^n`VÀ

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

U.S. v. Michigan

UNITED STATES OF AMERICA,

Plaintiffs,

PC-MI-0007-0003

V.
STATE OF MICHIGAN, et al.,

No. G84-63-CA Hon. Richard A. Enslen

Defendants.

BRIEF IN SUPPORT OF APPOINTMENT OF SPECIAL MASTER

I.

MASTERS AND RELATED OFFICERS OF THE COURT HAVE HAD

A SALUTORY EFFECT IN ASSURING COMPLIANCE, AIDING

JUDICIAL EFFICIENCY AND PROMOTING APPROPRIATE

FEDERAL-STATE RELATIONS

A. The Use of Masters Has Been an Accepted Part of Equitable Tradition

Because amici curiae expect that the parties to this

litigation may challenge the Court's exercise of its discretion

to appoint a special master, amici will demonstrate that the

Court's decision is wise and appropriate. Court-appointed

officers with limited quasi-judicial power have long been a

feature of common law equity tradition. See Silberman, Masters

and Magistrates, Part I: The English Model, 50 N.Y.U.L.REV. 1071

(1975).

In this country, the use of masters and related court-

appointed officers is a well-established practice. This practice

is rooted not only in the tradition of the English master, but

also in the use of receivers in complex corporate litigation.

While the use of masters is perhaps most widely known in complex

c

c

resources and expertise to carry out its judicial function.
Subsequent to Brown, •* the Supreme Court underlined the
authority of courts to take the remedial action necessary to cure
a constitutional wrong: "Once a right and a violation have been
shown, the scope of a district court's equitable powers to remedy
past wrongs is broad, for breadth and flexibility are inherent in
equitable remedies." Swann v. Charlotte-Mecklenburg Board of
Education, 402 U.S. 1 at 15 (1971). £f_. Hutto v. Finney, 437
U.S. 678 (1978), in which the Supreme Court approved a limit of
thirty days on the duration of punitive confinement in the
context of the Arkansas prisons:
In fashioning a remedy, the District Court had ample authority to go beyond earlier orders and to address each element contributing to the violation... But taking the long and unhappy history of the litigation into account, the court was justified in entering a comprehensive order to insure against the risk of inadequate compliance.
Id. at 687.
Just as the Supreme Court has approved substantive remedial
orders that were flexible and creative in order to cure the
constitutional violations found, so have the courts evolved
procedural devices to aid in the implementation of relief that
are tailored to the complexity of contemporary institutional
litigation.

2 For a comprehensive and illuminating discussion of the conceptual differences between traditional litigation and complex institutional reform litigation, see Chayes, The Role of the Judge in Public Law Litigation, 89 HARV.L.REV. 1281 (1976).
3 Brown v. Board of Education, 347 U.S. 483 (1954) [Brown I ] ; Brown v. Board of Education, 349 U.S. 294 (1955) [Brown II].

(

C

C. The Utilization of a Special Master Can Facilitate Implementation at the Same Time That It Limits Direct Judicial Intervention 1. The Use of a Special Master Facilitates Implementation of Relief In a study commissioned by the Law Enforcement
Assistance Administration, Harris and Spiller conclude in After Decision; Implementation of Judicial Decrees in Correctional Settings (American Bar Association Resource Center on Correctional Law and Legal Services, 1976)4 that the most important factors in non-compliance with judicial decrees are (1) an unwillingness or inability to comply on the part of one or more necessary actors; and (2) a lack of judicial determination to compel compliance. Id. , 3. Compliance devices such as a special master can assist in overcoming both these problems. First, the appointment of a special master or similar officer acts as a direct signal of judicial resolve to the defendants. Second, the use of a special master gives a trial court greater flexibility to respond to the problem of defendant noncompliance. By utilization of a special master or similar courtappointed officer, the court preserves options beyond the unpalatable choices of closing an institution forthwith, throwing the defendants in jail, or ignoring wholesale non-compliance with the order. See, for example, the dilemma of the trial court in Ramos v. Lamm, 485 F.Supp. 122 (D.Colo. 1979) rev'd in part and
4 The Harris and Spiller report is probably the most extensive study of implementation problems in institutional litigation. It analyzed case studies of implementation of four separate prison or jail remedial decrees.

c

c

aff'd in part and remanded, 639 F.2d 559 (10th Cir. 1980), cert.

denied,

U.S.

, 101 S.Ct. 1759 (1981). Because Ramos is

one of very few major prison cases in which a special master or

other monitor was not appointed to assist in effectuating

compliance, all the trial court then had. to work with was a

threat to close the maximum security institution, a threat the

trial court obviously had no desire to carry out.

In contrast, the appointment of a master or similar

monitoring device facilitates the division of the remedial task

into smaller discrete units with interim deadlines. Such

subdivision of the task gives the court early warning of problems

in implementation, such as the problems here with the delayed

submission of fire safety and mental health plans.5

2. Utilization of a Special Master Can Limit Direct, Coercive Judicial Intervention

One of the concerns frequently expressed regarding

5 "There is an ancient saying, Quis custodiet ipsos custodes? Who is guarding the guards? Which is peculiarly applicable to this kind of litigation. The answer to the question is, Nobody! The experience of this and other courts has demonstrated that it is not enough to make an order, no matter how detailed and explicit. Unless somebody checks the order against the defendants' performance, they do not perform. When somebody watches them, they squirm, but they comply, or get out of the way for someone else to do so. Thus, rather than using the classical, simple, and entirely appropriate remedy of sending the defendants to jail with the keys in their pockets, this court will undertake to monitor the defendants' future performance of its order."
Jones v. Wittenberg, 73 F.R.D. 82, 85 (N.D.Ohio 1976) (appointing special master), subsequent opinions 440 F.Supp. 60 (N.D.Ohio 1977), 509 F.Supp. 653 (N.D.Ohio 1980).

c

c

institutional litigation is that federal judicial intervention, even when necessary to remedy egregious conditions, trenches upon the appropriate relationships between the states and the federal government.
To the extent, however, that judicial intervention is necessary to protect provisions of the Bill of Rights incorporated into the protections of the fourteenth amendment, such intervention necessarily follows from our constitutional scheme of priorities. In such cases, the appropriate focus of concerns about federalism is not the prevention of necessary intervention but the reduction of the scope and level of intrusiveness of such intervention. Despite the superficial impression that appointment of a master increases the sccp<? of intervention, in fact in numerous cases the use cf a skilled c.nd sensitive special master can serve to minimize the level of perceived intrusiveness of federal intervention.
The policing function of a special master discussed supra in section 1 is critical. But a special master has just as significant a potential role in moving the parties and the trial court away from confrontational relations. In reducing overly adversarial relations among the parties in the remedial phase of institutional litigation, a special master potentially can act directly on the willingness and ability of defendants and other necessary parties to comply.
The cases involving the appointment of a special master bear testimony that this ascribed role of the special master as a conciliator is a real one, even when the liability

_.

„ . . J,_.,

(

c

stage of the litigation has resulted in some acrimony. See,

e.g. , the language of the District Court in Palmigiano v.

Garrahy, 448 F.Supp. 659 (D.R.I. 1978), approximately five months

after the original appointment of the Special Master:

We have found further that there

have been long periods in which no

efforts to comply were made whatsoever

and other periods when efforts to comply

were limited.

The defendants were

dilatory. We have found also that none

of the reasons offered for delay by

defendants related to an inability to

comply.

Id. at 671.

With that language compare the language of the same court after the Special Master had held his office approximately fourteen months:

[The Special Master]... helped build at the inception of the implementation period a solid foundation for the courtdirected reforms that are today moving slowly but inexorably towards completion.
* **

[The Deputy Special Master] has

helped to clarify and resolve problems

that seemed to prevent compliance with

the mandates of the August 10 Order [443

F.Supp.

556]

while

developing

simultaneously a rare spirit of

cooperation and mutual understanding

among the parties that bodes well for the

future. The Court has made frequent use

of his mediating skills to resolve other

prison controversies...

Palmigiano v. Garrahy, Order of January 30, 1979. See also Taylor v. Perini, supra:

It is clear that all of the defendants in this action... are responsible for the state of noncompliance demonstrated by the report of

(

C

the Special Master. In addition, certain subordinates... are responsible for their failure to effectuate the terms of the Court's order of September 12, 1972...

413 F.Supp. at 193.

Within slightly more than two years the Special

Master was able to find substantial compliance and to recommend

termination of the Court's jurisdiction. Taylor v. Perini, 455

F.Supp. 1241. This recommendation was accepted by the court.

There is a critical point to be made here beyond

the observation that ideally and often in practice special

masters can promote efficient implementation by reducing

adversarial relations that have developed during the liability

segment of the litigation. This promotion of cooperative

interaction with input by the defendants in the ongoing remedial

process also is responsive to the requirements of federalism:

In Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984),

the Court of Appeals reversed and remanded an order enjoining

certain prison officials of the Kentucky State Prison from

performing certain duties as an overly intrusive action. In the

course of the opinion, however, the Sixth Circuit identified

appointment of a compliance monitor as part of an appropriate

minimally intrusive remedy:

Minimally intrusive relief may

assume the form of an order enjoining a

continuation of the practices, policies

or

conditions

adjudged

as

constitutionally infirm whereby the

responsibility of developing a program to

safeguard against abridgement of

constitutional rights in the future....

Such an injunction may be attended by the

appointment of a monitor with authority

to observe defendants' conduct and

c .c

thereby permit the federal court to oversee compliance with its continuing orders.
Id. at 438. (Citations omitted)6

Professor Chayes also notes the problem that can develop when a

trial court judge becomes personally involved in negotiations

regarding a remedial order, at a resulting cost in his time and

impartiality. Chayes, supra, n.2 at 1300-1301. Conversely, total

reliance on the plaintiffs to monitor compliance can be expected

to promote intrusions into the defendant institution that may be

fiercely resented.

Note, Implementation Problems in

Institutional Reform Litigation, 91 HARV.L.REV. 428, 445

(1977). Nor will a monitoring system that relies on defendants

be likely to succeed:

Since defendants are unlikely to

report non-compliance frankly, the

plaintiffs' task remains both crucial and

burdensome. Reports are more helpful if

their format and content are specified

with precision, but few courts have the

expertise

to

formulate

such

requirements. Insofar as qualitative

rather than quantitative improvements are

mandated, standard; of compliance may be

unclear and advance specification of a

perspicuous reporting format may not

realistically be possible. Further, even

a well-formulated reporting requirement

may be frustrated by the defendant

institution's

lack

of

adequate

information gathering or record keeping

procedures. While the court may order

Kendrick's reference to a monitor as part of minimally intrusive relief seems to supersede United States v. City of Parma, 661 F.2d 562 (6th Cir. 1981).
7 These problems here are exacerbated by the nominal plaintiff's misconceived solicitude for perceived state's rights issues that interferes with an appropriatly vigorous advocacy on the part of the plaintiff.

the development of such procedures, this will further delay implementation. Special Project; The Remedial Process in Institutional Reform Litigation, 78 COLUM.L.REV. 784 at 824. (Footnotes omitted) At the other extreme, of course, a failure by the court to supervise ongoing compliance so that the court is ultimately faced with the choice of ignoring violations of its orders, jailing the defendants, or closing institutions can scarcely be viewed as promoting legitimate goals of federalism. Rather, the object of the trial court must be to promote compliance with its orders at the same time that it remains sensitive to federalism. Despite the opposition of the defendants in this case, the proper use of a master can in fact reduce judicial intrusiveness.
D. This Court Should Appoint the Special Master Pursuant to Its Inherent Power as Well as Pursuant to Rule 53
Amici urge the Court to make its appointment of a special master pursuant to its inherent power as well as pursuant to Rule 53. The inherent power of the court to appoint a master has its source in the power of a court of equity to take the steps necessary to enforce its decree.
The Court of Appeals for this circuit has indicated, in the course of affirming appointment of a special master in a school desegregation case, that courts have inherent power to appoint special masters and similar court officers in institutional litigation of this type:
Further, it is a fact that public law litigation often places a trial judge in a position where his role is necessarily somewhat different from that performed in more traditional cases. This is especially true in

(

1„ 1

(

the remedial phase of a school desegregation or institutional reform case. School and institutional financing and administration are subjects with which few judge,s have more than a passing familiarity. Yet, when litigation exposes constitutional violations in public institutions a court of equity must take steps to eliminate them. In accomplishing this result trial courts frequently issue orders which require fundamental changes in the administrative and financial structures of the institutions involved. In order to accomplish these ends with fairness to all concerned a judge in equity has inherent power to appoint persons from outside the court system for assistance.
Reed v. Cleveland ßd. of Ed., 607 F.2d 737, 743 (6th Cir. 1979)
(footnote omitted). In Reed, the court also approved the
appointment of expert advisors or consultants to the special
master and the court pursuant to either Rule 53 or the inherent
power of the court, _ld_. at 746.
See also Ruiz v. Estelle, 679 F.2d 1115 at 1161 (5th
Cir. 1982), mod, on other grounds, 688 F.2d 266, affirming the
trial court's appointment of a special master pursuant to both
Rule 53 and the inherent power of the court in a case involving
the Texas prison system:
Furthermore, rule 53 does not terminate or modify the district court's inherent equitable power to appoint a person, whatever his title, to assist it in administering a remedy. The power of a federal court to appoint an agent to supervise the implementation of its decree has long been established.
(Footnote omitted)
In Miller v. Carson, 563 F.2d 741, 898 (5th Cir. 1977)
the district court's appointment of an ombudsman was without
reference to Rule 53. In Hart v. Community School Board of

Brooklyn, N.Y., School District 21, 383 F.Supp., supra, at 699, the court acted under Rule 53 and its inherent authority to appoint an expert; and in Jordan v. Wolke, 75 F.R.D. 696 (E.D.Wis. 1977) , the trial court expressly disclaimed reliance upon Rule 53.
Because a court's inherent authority to appoint a master is not limited by Rule 53 of the Federal Rules, this Court should not be limited by the language in Rule 53 that mandates a showing that some exceptional condition requires the appointment. Rather, reference to a master is committed to the sound discretion of the trial court and is upheld absent an abuse of discretion. See Hoptowit v. Ray, 682 F.2d 1237, 1263 (9th Cir. 1982) . Çf_. Rogers v. Societe Internationale Pour Participations Industrielles et Commerciales, 278 F.2d 268 (D.C.Cir. 1960).
E. This Case Meets the "Exceptional Condition" Requirement of Rule 53 The instant case has in common with other major
institutional litigation a degree of complexity that distinguishes such cases • from typical two-party private litigation. Such cases, and certainly this one, by definition meet the "exceptional case" standard of Rule 53. There is nothing novel about the argument that "big" cases meet the definition of "exceptional" in Rule 53 whenever the court is demonstrably in need of additional resources. See Kaufman, Masters in the Federal Courts; Rule 53, 58 COLUM.L.REV. 452, 465 (1958) .
Nor does the Supreme Court's decision in La Buy v. Howes Leather Co., 352 U.S. 249 (1957) affect the propriety of

(
reference to a master in this case. In La Buy, the Supreme Court disapproved a trial court's reference to a master in an antitrust case for the purpose of trying the case to determine liability. It was in this context of disapproving reference ¤f_ the trial itself that the Supreme Court held that calendar congestion, the prospect of a lengthy trial, and complex issues did not by themselves constiture an exceptional condition under Rule 53. The Supreme Court in La Buy was making policy decisions, and not
Q a judgment on constitutional limitations.
Policy concerns regarding abdication of judicial authority and extra expense and delay are, however, quite different in the La Buy context in which the master determines initial questions of liability; when a master supervises implementation of a remedy, he or she executes rather than undermines judicial responsibility. Moreover, when supervision by a master becomes essential to vindicate a court's authority, the master speeds rather than delays conclusion of the litigation, and the cost is essential to the remedy involved. The courts have not considered the La Buy limitations on predecisional masterships to apply outside of their policy context to post-decisional masterships. Appointment of a special master is appropriate in the implementation of a major institutional reform case without other exceptional circumstances. See Gary W. v. State of Alabama, 601 F.2d 240 (5th Cir. 1978). See also Silberman, Part II at 1327; Nathan,
8 See Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975).

(
The Use of Masters in Institutional Reform Litigation, 10 U.TOL.L.REV. 419 (1979); and Special Project, supra, at 807.
It is certainly not the case that the trial court is required to wait until noncompliance with an initial remedial decree has become evident in order to turn to the services of a special master. See also Kendrick v. Bland, 740 F.2d at 439, supra, in which the Sixth Circuit noted that the court could appoint a monitor to observe defendants' conduct in a prison case in which the Court of Appeals noted that the defendants had a "history of cooperation and good faith demonstrated by the comprehensive Consent Decree" and the court assumed that this good faith would continue. In New York State Ass'n. for Retarded Children v. Carey, 706 F.2d 956, 960 (2nd Cir. 1983), the Court of Appeals upheld appointment of a special master in an institutional reform case in which the trial court had specifically found that the defendant's compliance actions were taken in good faith. In Amos v. Board of Directors, 408 F.Supp. 765 (E.D.Wis.) aff'd sub nom. Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976), vacated on other grounds, 433 U.S. 672 (1977), a school desegregation case, the trial court expressed its confidence in the parties' good faith, _lçl· a t 823. In Costell·o v. Wainwright, 387 F.Supp. 324 (M.D.Fla. 1973), aff'd, 489 F.2d 1311 (5th Cir. 1974), a prison medical care case, the Special Master was appointed prior to a decision in favor of plaintiffs after a prima faciae showing that plaintiffs had a likelihood of success at trial. There was no suggestion of bad faith; rather, the court found that the appointment was "...in the best

15

C

interests of all parties and of justice..." _Ij3. at 324-325. In
Davis v. Watkins, 384 F.Supp. 1196 (N.D.Ohio 1974), a challenge
to treatment in a mental hospital, the trial court appointed a
special master at the time of entry of the initial remedial
decree at the same time that it commended the parties and noted
that "...these proceedings were marked with the spirit of
cooperation and full disclosure contemplated by the Federal Rules
of Civil Procedure." jd_. at 1197. . In Reed v. Cleveland Bd. of
Ed., 607 F.2d 737, supra, the Court of Appeals did not suggest
that there had been any bad faith in the case.
In New York State Ass'n. for Retarded Children v. Carey,
706 F.2d at 962-963, supra, the Second Circuit appropriately
disposed of the argument that implementation of relief for an
institution for the mentally retarded does not meet the
exceptional condition requirement of Rule 53:
[Defendants'] argument that the present case fails to show the requisite "exceptional condition" under F.R.Civ.P.53(b) is wholly lacking in merit. The monitoring of a Consent Judgment that mandates individualized care for thousands of class members and that entails balancing of the interests of parties with third-party employers, school authorities, and community groups is just the sort of "polycentric problem that cannot easily be resolved through a traditional courtroom-bound adjudicative process" for which Judge Weinstein found a Special Master appropriate in Hart v. Community School Bd. of Brooklyn, 383 F.Supp. 699, 766 (E.D.N,Y. 1974), aff'd, 512 F.2d 37 (2nd Cir. 1975).
(Footnote omitted)
Moreover, the defendants' failures to produce several
plans required by the consent decree in a timely fashion, their
failure to notify the Court and the parties in a timely fashion

*896 3 p *PI „'9seo XEUTUIT^O £ UT jspjo ÂaaAOOstp ¯[ETJ^9JC[ g 03 at! 03 qou piaq se« snuigpugm aaaqM M¿96T) SOE PZ"P3'T 6T '692
*3D*S 88 '06 •S*íl 68€ 'saqe:>s paqTun *A TTTM M3T« 's^jjaui aq:* uo appui S E H ja^spui g 03 3ouaje;gj g a;raqM (¿S6T) 062 P2'P3·g T '6Oe *3O'S ¿¿ '6Þ2 *S·n 2SC '`¤D aeq¾eai S S M O H *A Ang
ux P 9 A T O A U T sanssi OTscq aq^ uo ^anoo aq^ go sailed aqì, aATadap ¾ou op ¾çq¾ sjapjo
waiAaa 03 ¯[£9¿Ide jog a^n^T^sqns e se anss¯r ¾ou pxnoqs ^¯t 'uoTqoipsTjnÇ s^i as¯tojaxa o^ pasngaa ao papaaoxa seq ^anoo e uaqM jadoad S T snuiepueui 50 Âpauiaj ÁjBuxpJoc qßnoq¾TVn :aseo aq¾ ux aapao T^uxg e go peq aq A T U O pxnoo « s u a a
punoaß aq^ uo uoi^T^ad aq^ paxuap sxeadcîv 30 ^anoo aq¿ 03 SUOT^OUI Â J 3 A O O S T P go x^J^agaJ aq3 uo¯rq·rqTqojd
pue snuiepueui ao S } T J M Jog uoi^T^ad g uo watAaj o^ ^duia^^g us 6 U T A X O A U T ' (f¿6T *·3T3 M^9) ¿96 P2'cî 205 'paogxxaM *A •OUI ' S J O ; O W
¯iTã¯>pT7v aas •uo`t^¯rqTqojd 20 snuispurui jaq^xa uo axqewaiAaj ST 'g-[3s;T T^T^1^ aM^ 6 U T A X O A U T auo ueq3 aaq¾o 'aoua^agaj go
ue ^eq^ sjgadde 3T ^TnoJTQ syq^ ui · (OÞ6T) 38Z *S*íl TTC ' ' ^uapuadapui •A ¾ja>(oaa *aapao XBUT3 c S B
}ou pup Âjo^nooxJ9;UT S T aa^seui B O¾ aouaaagaa go japjo u\f
T japjo aq} qeq^ pujg qsnui ^jnoo aq} 'xeadde aog aouaaagaa
go japjo aq¾ Âg¯[^aao oq qan¤D s¯rqq aog aapjo ui
*D*S*n 82 o:i qugnsjnd jaqseui xpT^3ds e ^uTodde o^ uotsioap
s}T. x^9ddç aog Ag¯rqaao ^anoo aqq ^eq^ ^sanbajr Âeui
JO auo ^gq^ axqTssod S T ^T 3^q^ saAajxaq T°T*"V
o¾ uoxsjoaa pxnoqs ¾anoD aq¿
g go ¾uaui¾uToddg
jaq^oug ST 's¾qßxj
,sjauos¯tad go suoT^gqaadaa^uT «oaaeu paA¯taouooaad
AogooApg S^T 6UT3TUITX ^nq aqgooApg ug sg ^og
UT 'asgo sTq3 UT gg¯rquTgxd aq¾ go aan^sod snox^moug aqq B 3° ^uaui^ujoddg ßuT^aoddns
sag agjano TDTUIP aq¾ uo a o u j e s Ax SUIT ¾
qsTxduio:>op o^ ajnxT^3 paqeadaa JTaq¾ pug 'sajnxT^g asoq¾ go
)

(

a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. 28 U.S.C. §1292. For the reasons noted in the previous sections, reference to a special master or some other form of monitor is the norm in enforcement of complex institutional reform decree, and there is no substantial ground for difference of opinion that is within the discretion of the Court to make such an order of reference. See Hoptowit v. Ray, 682 F.2d 1237, 1263 (9th Cir. 1982).

II.

THE POWERS, DUTIES, AND FUNDING SOURCE FOR SPECIAL

MASTERS HAVE BEEN WELL-DEFINED IN PAST LITIGATION

A. Powers and Duties

Amici attach to this brief two orders of reference in prison cases: Hoptowit v. Ray, 79-359 (E.D.Wash.)(8/4/80)10 and Ruiz v. Estelle, civil action No. H-78-987 (5.D.Tex.)(6/24/81),11

In addition, amici refer the Court to the order of reference

On appeal, the Ninth Circuit affirmed the trial court's exercise of discretion to appoint a special master but vacated the appointment pending remand on remedy issues. Hoptowit v. Ray, 682 F.2d 1213, supra.
1 1 On appeal, the Fifth Circuit affirmed the appointment of the special master, along with the powers and duties given to the special master, with the limitations that the special master and monitors did not have the authority to hear matters that should appropriately be the subject of separate judicial proceedings; that the duties were restricted to those set forth in the order of reference; and that findings of the special master were not to be entitled to the clearly erroneous standard of review unless based on hearings conducted on the record pursuant with proper notice. Ruiz v. Estelle, 679 F.2d 1159-1163.

18

(

described in the remedial order in Palmigiano v. Garrahy, 443 F.Supp. 956, 989 (D.R.I. 1971).
A review of these orders suggests the following principles that should guide this Court in formulating an appropriate order of reference:
(1) The Court should appoint the special master and additional monitors as necessary pursuant to both Rule 53 and the inherent power of the Court. In view of the major scope of this litigation, amici believe that the Court should appoint at least
¯s.
one monitor as an assistant to aid the special master in his or her duties. The order of reference should incorporate a finding that exceptional conditions, including the size and complexity of this case; the defendants' inability to achieve timely compliance; and the plaintiff's limited advocacy, justify the appointment of a special master.
(2) The order should provide for the master and the monitors to have necessary access to the institution, records, staff, and prisoners. The attached orders of reference provide exemplary models for provisions here.
(3) The special master should have the power to order and conduct hearings with respect to the defendants' compliance and implementation of the consent decree and the related plans for compliance. The provisions in the Hoptowit amended order of reference, subdivision 2, are appropriate for adoption here. These provisions give appropriate guidance regarding procedure to the special master and the parties. These provisions also distinguish appropriately between findings made pursuant to

' p j d n s 'OfrZ PZ'3. TO9 ' * e o 30 a^e¾s rÃ *M A:ieo ' *ß*a '99S 3 j j q u 9 aq:j qjosqo 03 p a j i n b a a ST quepuegep aq:i 'aoueTX<3uioo eq¯rp9dxa 03 pa}UTodde ST aa^spui X£T°9ds e qoTqM UT saseo uoT^e6T¾7x xeuoT^n¾¯t¾suT UT ÅTTJ^uTpJO *s¾soo sq¾ 30 6u¯rpjcßaj uoTqaaosTp peoaq qanoo aq^ saA¯rß £5
aq} 30 uoi¾eooTTV *H •djaq }:iadxa x^¤¤T^TPP^ Åaessaoau 30 aq¾ 303 X5^°J<3de ¾jnoo qsanbaa 03 Åqiaoq^np aq¾ aAeq pjnoqs TCToads aq^ 'uo¯r^Tppe ui •sasuadxa 6 u i p j c ß a j saaqonoA 3TT3 °3 Jta^seui le¯toads aqq a j j n b a a 03 pue 30 aui¯n aq¾ ^e aa¾seui ¯[cjoads aq¾ 30 333 Aianoq aq¾
s i 37 :)Eq3 pa^p¾s q¯rnoj·ro q^×TS 9M3 qotq« UT ' Ë õ d ñ š '8l'¿ P3*J ¿O9 '*P3 3¤ *P9 pueiaAaio •A paan XeToads aq^ 30 sasuadxa aq¾ jo3 ^uauiÁPd 30 aojnos aq^ pue uo¯rqpsuaduioo 30 a q ç j aq^ q3jo3 qas pinoqs pue ' d i a q T^O pue sasuadxa xe^uapjouT anouT o^ ja¾seui xcT°3<3s aq^ 30
¾as osxe pxnoqs aouaaa3aj 30 j a p j o aqj, (^) • p j e ß a j sjq^ UT axqenxeAUT aAOJd OSXB XTTW
aq^ Aq s¾aodaa ojpoTaad .'eouexxduioo ì`e pa¾oajTp uo¯r¾oe O^UT saT¾aed aq^ pazjueAXcß aoue¯rxduioo uo ßu¯raeaq e 30 ^uauiajTnbaj s,¾anoo aq¾ ¾eq¾ ¾uaaedde ST ^ I •uoTqse3 ÅX9UIT^ e UT spaaoojd aoueTxduioo ^eq4 a j n s s e o¾ dxsq osxc XTTM aq¾ uioj3 s^aodaj oTpojaad 30 ¾uauiaaTnbaa aq¿
*sxesddv 30 qjnoo ZTnH aq:» 30 su¤T^oaÇqo ¾aaui suoxsTAOJd ¾TMO¾doH sq¾ 'qons sv •uoT^duinssad qons ou qo¯rqM 'aa^seui x^TO9(3s aq^ 30 sßujpuT3 aaq^o pue ' s u o µ o a j j o o 30 uo¯rqdmnsaad e q}TM papua^¾e aae qoTq/¾ ' s ß u T i e a q
)

20
and Morgan v. Kerrigan, 530 F.2d 901 (1st Cir. 1976). In view of the fact that the United States, rather than
a private party, is the plaintiff here, it would be within the discretion of the Court to allocate the costs to both parties, or to require payment of the entire costs by the United States. This step would assist the State by preserving funds for expenditures directly on compliance.
C. Suggestions for Special Master Counsel for amici approached counsel for both parties
and offered to join in any reasonable suggestions for names of a special master. Ultimately both parties declined. Mr. Nelson informed counsel for amici that defendants would not be proposing names. Ms. Russell indicated that, as of July 1, 1985, she could not say whether plaintiff would propose names. Amici therefore believe that both parties have waived any right to suggest names.
Amici accordingly suggest two names, listed alphabetically, of their own to the Court. Patrick D. McManus, former Secretary of the Kansas Department of Corrections, is currently special master in Grubbs v. Bradley, 552 F.Supp. 1052, 1132 (M.D.Tenn. 1982). Linder Singer, a partner in the law firm of Goldfarb & Singer, is among other activities special master in Todaro v. Ward, 565 F.2d 43 (2nd Cir. 1977).
Finally, amici believe that the Court referred to Frederick J. Postill when the Court indicated that a corrections expert who had previously appeared before the Court would be considered for the position. Although counsel for amici is not personally familiar with Mr. Postill, a brief investigation has

21
convinced amici that Mr. Postill also appears to be a fine choice for special master. Amici have spoken to all three of the individuals, and all have expressed interest in the appointment. Amici attach to this brief resumes for the three individuals.
Amici believe that the Court should interview several condidates for the position and then select an appropriate person for this difficult and challenging task. Amici further ask that the Court proceed with the order of reference now rather than allowing the parties further briefing opportunities when they have chosen not to comply with the Court's order.
Respectfully submitted,

Elizabeth Alexander Adjoa A. Aiyetoro National Prison Project of the American Civil Liberties Union Foundation 1346 Connecticut Avenue, NW Suite 402 Washington, D.C. 20036 202/331-0500

William Fette American Civil Liberties Fund of Michigan 222 S. Westnedge Ave. Kalamazoo, Mich. 49007 616/382-1030

Counsel for Plaintiffs

Dated: July

1985

CERTIFICATE OF SERVICE
I hereby certify that on July 5, 1985, I mailed by first class mail a true copy of the Amicus Brief in Support of Appointment of a Special Master with appendix and attachments to Thomas Nelson, Corrections Division, 401 S. Washington Sq·, Lansing, Michigan 48913; Joann Russell, U.S. Department of Justice, HOLC Building, 320 1st St., NW, Room 969, Washington, D.C. 20530; and Larry Bennett, 2900 Cadillac Tower, Detroit, Michigan 48226.

DATED: July 5, 1985

Elizabeth Alexander

(
APPENDIX

(

TABLE OF CASES

CASE NAME

INSTITUTION

Ahrens v. Thomas, *434 F.Supp.873, 908 (W.D.Mo. 1977), mod., 570 F.2d 286(8th Cir.1978)

Platte County Jail, Missouri

Bel v. Hall, *392 F.Supp. 274, 275 (D.Mass.1975)

BX Unit of the Massachusetts Correctional Institution

Bills v. Henderson, *446 F.Supp. 967, 970 (E.D.Tenn.1978), mod, on other grounds, 631 F.2d 1287 (6th Cir.1980)

Brushy Mountain State Penitentiary, Tennessee

Costello v. Wainwright, *387 F.Supp. 324, 327 (M.D.Fla.1973),*397 F.Supp. 20, 23 (M.D.Fla.1975), aff'd, *525 F.2d 1239 (5th Cir.), vac, on reh. on other grounds, 539 F.2d 547(5th Cir.1976)(en bane), rev·d 430 U.S. 325, aff'd on remand 553 F.2d 5O6(5th Cir. 1977) (en_ bane) (per curiam)

Florida Division of Corrections

Cruz v. Hauck, 345 F.Supp. 189 (W.D.Tex.1972) rev'd and rem'd, 475 F.2d 475 (5th Cir.1973), vac and rem'd, *5I5 F.2d 322 (5th Cir.1975), cert den., 424 U.S. 917 (1976)

Bexar County Jail, Texas

Gates v. Collier, 349 F.Supp.88l(N.D.Miss.1972), aff'd, *5Ol F.2d 1291,1321 (5th Cir. 1974)

Mississippi State Penitentiary

Grubbs v. Bradley,

Tennessee Department

*552 F.Supp.1052 (M.D.Tenn. of Corrections

1982)

TITLE OF COURT APPOINTED OFFICER Panel
U.S. Magistrate sitting as Special Master U.S. Magistrate sitting as Special Master
Expert Special Master
U.S. Magistrate sitting as Special Master
Federal Court Monitor
Special Master

Indicates citation to reference to appointment, report or mention of Special Master.

C
(table of cases contii>>.aa¢ed)

CASE NAME

INSTITUTION

Hamilton v. Schiro, 338 F.Supp. 1016 (E.D.La. 1970),sub nom.*Hamilton v. Landrieu, 351 F.Supp. 549 (E.D.La. 1972)

Orleans Parish Louisiana

Hoptowit v. Ray, *682 F.2d 1237 (9th Cir.1982), 753 F.2d 779 (9th Cir.1985)

Washington State Penitentiary

Inmates of Allegheny County Jail v. røecht, *565 F.Supp. 1278 (W.D.Pa. 1983)

Allegheny County Jail

Jones v. Wittenberg, 323 F.Supp. 93 (N.D.Ohio 1971), 330 F.Supp. 707 (N.D ,Ohio 1971), aff'd sub nom Jones
v. Metzger, 756 F.2d 854 (6th Cir.1972), 73 F.R.D. 82, 8.3(1976) , *44O F.Supp. 6O(N.D.Ohio 1977) , 509
F.Supp.653(N.D.Ohio 1980)

Lucas County Jail,Ohio

Jordan v Wolke,*75 F.R.D. 696(E.D.Wis.1977), 463 F.Supp.64l(E.D.Wis.l978) *464 F.Supp.l73(E.D.Wis. 1979), rev'd on other grounds, 615 F.2d 749 (7th Cir.1979)

Milwaukee County Jail, Wisconsin

Kendrick v. Bland,*74O F.2d Kentucky State

432 (6th Cir.1984)

Penitentiary

Lightfoot v. Walker, *486 F.Supp.504,528 (S.D.I11. 1980)

Menard Correctional Center, Illinois

TITLE OF COURT APPOINTED OFFICER Special Master Special Master Monitor Special Master
Special Master
Moni tor Special Master

Indicates citation to reference to appointment, report or mention of Special Master.

(table of cases continued)

CASE NAME
Miller v. Carlson, 392 F.Supp.515(M.D.Fla.1975), *4Ol F.Supp.835,898 (M.D. Fla.1975), mod and rem'd on other grounds, *563 F.2d 741,753-54 (5th Cir, 1977), den reh en bane, 566 F.2d 106(5th Cir. 1977), rem'd, 599 F.2d 742 (5th Cir.1979)
McMurry v. Phelps, *533 F.Supp. 742 (W.D.La.1982)

INSTITUTION
Duval County Jail, Florida

TITLE OF COURT APPOINTED OFFICER
Ombudsman

Ouachita Parish Jail

Special Master

Mobile Jail Inmates v. Purvis, *58l F.Supp. 222 (S.D.Ala.1984)

Mobile County Jail

Jail Monitor

Monmouth County Correctional Institution Inmates v. L·anzaro,*595 F.Supp.1417 (D.N.J.1984)

Monmouth County

Special Master

Correctional Institution

Newman v. State of Alabama, Alabama State *559 F.2d 283(5th Cir.1977) , Prison System cert den, 438 U.S.915(1978)

Human Rights Committee (later replaced by
monitor)

Owens-El v. Robinson, 442 Allegheny County Jail F.Supp. 1368 (W.D.Pa.1978),
*457 F.Supp.984(W.D.Pa.l978) rem'd on other grounds, sub. nom., Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3rd Cir.1979), 487 F.Supp.638(W.D.Pa.1980)

Court Advisor

Palmigiano v. Garrahy, *443 F.Supp.956,989(D.R.I.1977), cert den.101 S.Ct.115(1980) 707 F.2d 636 (1st Cir.1983)

Rhode Island Adult

Special Master

Correctional Institution

Indicates citation to reference to appointment, report or mention of Special Master.

(table of cases contiljed)

CASE NAME

INSTITUTION

Powell v. Ward, 392 F.Supp.
628 (S.D.N.Y.1975) af£'d as mod, 542 F.2d 101 (2d Cir.1976), 487 F.Supp. 917, 935 (S.D.N.Y.1980), aff'd and mod at *643 F.2d 924 (2nd Cir.1981) 540 F.Supp.515 (S.D.N.Y.1982), 562 F.Supp.274 (S.D.N.Y. 1983)

Bedford Hills
Correctional Facility, New York

Ruiz v. Estell·e,*5O3 F.Supp. Texas Department of

1265 (S.D.Tex.1980), 679

Corrections

F.2d 1115, 1145 (5th Cir.

1982), vac'd in part on

other grounds, 553 F.Supp.

567 (S.D.Tex.1982), 688

F.2d 266 (5th Cir.1982),

cert den., 460 U.S. 1042,

(1983)

Taylor v. Perini, *4I3

Marion Correctional

F.Supp.198(N.D.Ohio 1976), Institution

*42l F.Supp.742(1976),*43l

F.Supp.570(1977),*446 F.Supp.

1186(1977),*455 F.Supp.1255

(1978),*477 F.Supp.1289(1978)

Toussaint v. McCarthy, 553 San Quentin and Folsom F.Supp.l365(N.D.Cal.1983), Prisons 7i2¿2¿ Ft.¦2,d¿al4i94Oy(u9(tyhtnCicri.r1.9i8y4a)4) *597 F.Supp.1388(N.D.Cal.1984)

union County Jail Inmates v. Scanlon, *537 F.Supp.993 (D.N.J.1982) rev'd on other grounds sub nom., Union County Jail Inmates v. D'Buono, 713 F.2d 984, reh. den.,718 F.2d l247(3d Cir. 1983) cert den. 104 S.Ct. 1600 (1984)

Union County Jail

Valentine v. Engelhardt,

Passaic County Jail,

*474 F.Supp.294,3O3(D.N.J. New Jersey

1979),492 F.Supp.lO39(D.N.J.

1980)

TITLE OF COURT APPOINTED OFFICER Special Master
Special Master
Special Master Special Master Special Master
Special Master

*
Indicates citation to reference to appointment, report or mention of Special Master.

(table of cases continued)

CASE NAME

INSTITUTION

William v. Edwards, *547
F.2d 1206,1208(5th Cir. 1977), rem'd, sub nom. *Williams v. McKeithen, 495 F.Supp.707,709(M.D.La. 1980),671 F.2d 892(5th Cir. 1982)

Louisiana State Penitentiary

TITLE OF COURT APPOINTED OFFICER
Special Master

Indicates citation to reference to appointment, report or mention of Special Master.

 
 IN THE UNITED STATES DISTRICT* COURT FOR THE WESTERN DISTRICT OF M Ï C H Í G A N " '`'

UNITED STATES OF AMERICA,

Plaintiff,

v. STATE OF MICHIGAN, et al.,

No. G84-63-CA Hon. Richard A. Enslen

Defendants. )

RESPONSE TO DEFENDANT'S' REQUEST FOR MODIFICATION OF THE STATE PLAN

I. INTRODUCTION A. Summary of Argument Amici believe that defendants misconceive the legal issue
before the Court. Granting the defendants' motion requires modification of the consent decree as well as the State Plan. Accordingly, the real issue is whether defendants have satisfied the legal standard to grant the extraordinary relief of
'.fc.'r '•
modification of the consent decree itself. On the current record, defendants have not come close to establishing their entitlement to a modification. Even if the defendants were requesting no more than a modification of the State Plan, the requested modifications implicate the constitutional rights of inmates, and therefore should be disallowed.
B. Factual Background On July 22, 1986, following a hearing, this Court found that
the defendants had violated, inter alia, the fire safety

U.S. v. Michigan

PC-MI-0007-0004

-2-
provisions of the consent decree. In addition, among the enforcement orders entered by the Court on that date was an order requiring the defendants to report by October 1, 1986, on their efforts to implement the fire safety requirements for which compliance was due in July, 1986. Indeed, one of the areas in which the defendants already have the poorest records of compliance is fire safety; a year before, the parties' stipulation had allowed them extra time to come into compliance on fire safety, but compliance never materialized.
Instead, the defendants, on September 26, 1986, filed what they designated a motion to modify the State Plan. The defendants' motion states that out of twenty-nine fire safety items with July 1, 1986 deadlines, they have implemented two. See Defendants' Memorandum at p. 5 and schedule accompanying memorandum. They claim to have started three other projects. One project is scheduled to begin November 1, 1986. The other twenty projects are not even scheduled to begin until various dates in 1987. Accordingly, the defendants' rate of success in meeting the July 1, 1986, requirements, after an additional three months, is slightly under seven percent.
Indeed, the defendants' expected dates of completion of the fire safety projects have in many cases slipped since July of this year. On July 14, 1986, George Walter, Special Projects
From the memorandum at p.5, the beginning date for E-ll (Remote Release) at MR should read September 15, 1986, rather than September 15, 1987.
The sprinkler project at SPSM (E-9) has only a completion date of December 1987, but no starting date, listed.

(

-3-

<

Manager, sent a memorandum to Luella Burke regarding most of the

deadlines at issue here. That memorandum was submitted to the

Court on July 17, l98$'. Amici list below some projected dates

for compliance that were moved back by defendants in the slightly

more than two months between the two submissions:

Walters' Memorandum Projected Date, 7/14/86

E-2 Exit Mod ifications

MPB

9/87

SPSM

11/87

Defendants' Schedule, 9/26/86
11/87 12/15/87

E-4 Enclosed Stairs

SPSM

7/87

9/15/87

E-7 Fire-Separate Cellblocks

SPSM

7/86

MR

9/86

9/15/87 6/1/87

E-8 Magnetic Hold-Open Devices

MBP

11/86

MR

11/86

E-10 Exit Signs

MBP

4/87

SPSM

6/87

MR

4/87

3/87 3/87
6/87 9/87 6/87

In short, despite the patience of the Court and the

plaintiff with the defendants, they have been unable so far to

perform with any degree of reliability in the area of fire

safety. Based on these repeated failures, there is as little

reason to expect compliance on the new dates they now request as

there was to expect compliance on the dates they reported in July

of this year.

There may be additional project delays represented, but the two summaries could not always be reconciled because of differences in descriptions of the projects.

C

-4-

(

II. THE PROPOSED FIRE SAFETY DELAYS IMPLICATE THE CONSTITUTIONAL RIGHTS OF INMATES
Modification of the State Plan, by itself, is in this case irrelevant. The fire safety provisions of the consent decree are among the few provisions in which deadlines are set forth in the consent decree itself. See the final paragraph of Section B of the consent decree.
Moreover, even if the defendants were requesting no more than a modification of the State Plan for Compliance, as they claim, they do not meet the standard that the proposed changes do not implicate the constitutional rights of inmates. As amici recently argued in their memorandum regarding the solid doors at MIPC, a provision implicates constitutional rights if the elimination or modification of the provision poses a significant risk of a constitutional violation.
In this case, the delays in needed fire safety improvements clearly expose inmates to a continuing significant risk of a constitutional violation.
Although the defendents cite Hoptowit v. Ray, 618 F.2d 1237 (9th Cir. 1982), they fail to cite the later opinion in the same case regarding fire safety. See Hoptowit v. Spellman, 753 F.2d 779 at 783-784 (9th Cir. 1985):
The district court concluded that the substandard fire prevention at the penitentiary endangered the prisoners' lives and therefore violated the Eighth Amendment. Prisoners have the right not to be subjected to the unreasonable threat of injury or

Nothing in the July 21, 1985, Stipulation affects the fire safety deadlines that are the subject of the defendants1 motion

-5-

(

death by fire and need not wait until actual casualties occur in order to obtain relief from such conditions. Leeds v. Watson, 9th Cir. 1980, 630 F.2d 674, 675-676. See also Williams v. Edwards, 547 F.2d 1206, 1214 (5th Cir. 1977); Cody v. Hil·lard, 599 F.Supp. 1025, 1049 (D.S.D. 1984); Toussaint v. McCarthy, 597 F.Supp. 1388, 1410 (N.D.Cal. 1984); Fischer v. Winter, 564 F.Supp. 281, 300 (N.D. Cal. 1983) ; Ramos v. Lamm, 520 F.Supp. 1059, 1064 (D. Colo. 1981); Hutchings v. Corum, 501 F.Supp. 1276, 1282-1283¯^ 1293 (W.D.Mo. 1980); Battle v. Anderson, 447 F.Supp. 516, 525 (E.D.Okla. 1977), aff'd 564 F.2d 388 (10th Cir. 1977); Laaman v. Helgemoe, 437 F.Supp. 269, 281-282, 309 (D.N.H. 1972); Gates v. Collier, 423 F.Supp. 732 (N.D.Miss. 1976), aff'd and remanded 548 F.2d 1241 (5th Cir. 1977); and Campbell v. McGruder, 416 F.Supp. 100, 105 (D.D.C. 1975), aff'd in relevant part 580 F.2d 521 (D.C.Cir. 1978).
Defendants are asking for a delay in not just one fire safety requirement, but twenty-eight separate requirements, thus multiplying the risk to the inmate, class. For example, one requirement for which the defendants request a delay is the deadline in implementing the requirements that certain doors swing in the right direction at the three major institutions. One its face, this appears to be a requirement of less than critical importance. In fact, however, exit doors that swung in the wrong direction were a major cause of the loss of life in the fire at the Federal Correctional Institution at Danbury, Connecticut.
Major fires with loss of life are not a common occurrence, of course, at any prison or jail. The fact that no loss has yet

C

-«- C

occurred provides absolutely no guarantee for the future; the

potential consequences of a failure to implement fire safety

requirements are literally catastropic.

Since the Eighth

Amendment protects against an unreasonable threat of injury or

death by fire, the delays requested by defendants in curing the

unreasonable risks themselves pose a substantial risk of

violating the Constitution, and are not justified under the

consent decree provisions for appropriate modifications of the

State Plan. As the Court noted at p.4 of its opinion of July 22,

1986, "[g]iven the serious danger that fire poses in the prison

setting, [defendants should] make these requirements one of their

top priorities." Unfortunately, the defendants' new motion,

asking for yet further delay, does not indicate that the

defendants fully appreciate the seriousness of the problem.

III.

THE DEFENDANTS HAVE FAILED TO SHOW AN ENTITLEMENT TO A MODIFICATION OF THE CONSENT DECREE

Since the defendants cannot obtain the relief they seek

without a modification of the consent decree itself, the Court

must look to the standards for modification of consent decrees

for guidance. The discussion below focuses on the relevant

principles applicable to motions for modification.

A. The Provisions of the Consent Decree Need Not Be Constitutionally Required to Be Enforced" In Local 93, International Association of Firefighters v.
City of Cleveland, U.S. , 106 S. Ct. 3063 (1986), the Supreme Court held that a consent decree could be entered by a court, and enforced as any other order, even though the decree "provides

c

c

-7-

broader relief than the court could have awarded after a trial." _ld_. at 3077. The Court held as follows: "It is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations enbodied in a Consent Decree." Id. at 3076.
Accordingly, a consent decree "obviate [s] any need to determine" the constitutional violations and "no issue of constitutional violation" is before the district court in postjudgment proceedings. Badgely v. Varelas, 729 F.2d 894 at 899 (2nd Cir. 1984).
The principle that the party seeking enforcement of a consent decree need not reestablish a constitutional right to relief at every stage in the litigation is but a specific example of the general principle that the parties' interest in finality of judgments requires that Courts refuse to relieve parties of their calculated and deliberate choices, despite one party's later regret of its decision to allow a judgment to become final. See Ackermann v. United States, 340 U.S. 193 at 198 (1950). See also System Federation No. 91, Railway Emp. Dept. v. Wright, 364 U.S. 642 at 647 (1961):
Firmness and stability must no doubt be attributed to continuing injunctive relief based on adjudicated facts and law, and neither the plaintiff nor the court should be subjected to¯ the unnecessary burden of re-establishing what has once been decided.
B. The Defendants' Submission Fails to Show a Grievous Wrong Evoked by New and Unforeseen Conditions Traditionally, modification of judgments has been granted
only on "a clear showing of grievous wrong evoked by new and

c

c

-8-

unforeseen conditions." United States v. Swift, 286 U.S. 106 at
119 (1932) :
Life is never static and the passing of a decade has brought changes to the grocery business as it has to every other. The inquiry for us is whether the changes are. so important that dangers, once substantial, have become attenuated to a shadow. No doubt the defendants will be better off if the injunction is relaxed, but they are not suffering hardship so extreme and unexpected as to justify us in saying that they are the victim of oppression. Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.
The defendants cannot make a showing that it will work a
grievous wrong to deny modification of the consent decree.
Although the defendants have in their memorandum asserted some
general grounds for delay (See Defendants' Memorandum at p . 2 ) ,
the defendants do not tie these alleged general sources of
delays to specifics requests for extensions of deadlines. For
example, why must construction of the automatic transmission for
the fire alarms (Defendants' memorandum at 5) wait to begin until
January 15, 1987? Why must construction of the enclosed stairs
at SPSM (Defendants' Memorandum at 5-6) wait to begin until June
15, 1987?
Delay has already occurred here, and the defendants are to
be faulted for not keeping the Court more fully informed at an
earlier date. As a practical matter, there may well be little
that the Court can do to speed completion of projects that have
already started or are about to commence. Twenty-three of the
twenty-nine projects, however, have requested starting dates in
1987. The Court should not acquiesce in any of these major

c

c

-9-

delays without a full factual hearing. Certainly the defendants

. have failed to make the necessary showing so far. Cf_. Fortin v.

Commissioner of Massachusetts Department of Public Welfare, 69 2

F.2d 790 at 800 (1st Cir. 1982):

No circumstance appears different in 1982 than

1975 except perhaps the degree to which the

Department regrets its consent.

Regret

intensified upon reflection is not however cause

for modification.

The Court should not take defendants' pleas of difficulties

at face value. It is apparent that whether or not accomplishment

of a particular task is possible often depends on the pressure

for performance. Çf_. Badgely v. Varelas, 729 F.2d 894 at 902,

supra;

If the NCCC were closed today because of a natural disaster such as fire or disease, we have little doubt that the responsible officials of New York State and Nassau County would figure out some way to confine tomorrow those arrested by the police and sentenced by the courts. The persistent violation of the population limit of the consent judgment—a violation now entering a fourth y e a r — i s an equivalent disaster.

This Circuit holds that modification of a judgment is

extraordinary relief that requires the showing of special

circumstances. United States v. Work Wear Corp., 602 F.2d 110,

114 (6th Cir. 1979). On the defendants' current submission, they

have completely failed to make the requisite showing.

5 Even if the Court ultimately determines that the defendants

should not be held in contempt for their failure to comply, the

Court can of course issue supplemental orders to assure future

compliance. See, e.g., Brewster v. Dukakis. 675 F.2d 1 (1st Cir

1982).

¯¯

¯¯¯¯

\.

C

(

-10-

IV. SUMMARY AND PROPOSED REMEDY The record of the defendants with regard to fire safety is a
dismal one. A year after they signed the consent decree, the plaintiff allowed them extensions of time for certain fire safety improvements. This time expired, and the defendants have been found to have violated a number of provisions of the State Plan. Now defendants tell the Court that they have so far complied with less than 7% of the fire safety deadlines for July 1 of this year. This is an absolutely miserable record, and the Court should not acquiesce in it. At least as to all projects that have not yet been started, the Court should require the defendants to establish specific and completely unavoidable reasons for any additional delay. In addition, the Court should hold defendants in contempt for their admitted failure to comply with the consent decree. As the Court has done in the mental health area, the Court should impose fines on the defendants, to be executed if the defendants fail to purge themselves of their contempt by the deadline that the Court ultimately sets for compliance.

Cf. Fortin v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d 490, supra. in that case, the defendants1 overall rate of compliance with a consent decree was 94% but the First Circuit upheld a finding of contempt.

J_._
(
-11-
Respectfully submitted,

Elizabeth Alexander Adjoa A. Aiyetoro Nkechi Taifa-Caldwell National Prison Project of the American Civil Liberties Union Foundation 1616 P Street, NW Washington, D.C. 20036 202/331-0500

L>xSu

t<<JDU.

William Fette

American Civil Liberties

Fund of Michigan

222 S. Westnedge Avenue

Kalamazoo, MI 49007

616/382-1030

Counsel for Amici Dated: October /0 , 1986

 
 UNITED STATES DISTRICT CCORT FOR THE WESTERN DISTRICT OF MICHIGAN

STATES OF AMERICA,
Plaintiff,
¡S¤OZ OF MICHIGAN, [JAKES J . BL·ANŒAED, Governor o f Michigan, [MICHIGAN O0RRECTICNS CCM^ESSIOI;
rJEtí ANDREW, Chfivrman, Michigan • Corrections Commission,
EARDHY, ROBERT COTTCN,
WATERS, LE DUC, M a t t e r s , Michigan C o r r e c t i o n s *"1' lM"Î5*fiTi ¡
DEPARTMENT OF C¤RRECTICNS, J¤HNSCN, D i r e c t o r , Michigan (' Department o f Corrections, BRCWí, JR., Deputy Director, [Michigan Department o f Corrections, FOLT2, Regional Administrator, State ^Prison of Southern Michigan, JABE, Warden, Michigan Refozsatory, KCEHLER, Warden, Marquette [Branch Prison, PREIZSNIK, Administrator, Heception [and (¾.ùdancg Center, State Prison of »m Michigan,
BERGMAM, Administrator, Michigan sive Progranming Center,

File No. G84-63
U.S. v. Michigan
> • •• *• •• •• ••
PC-MI-0007-0005

ORDER In accordance with the bench opinion of April 21, 1989; IT IS HEREBY ORDERED that defendants1 Motion to Modify Section I L(3) State Plan for Coqpliance is GRANTED. The defendants «h»n provide one for every fifteen (15) inmates, except at A-Blodc at Marquecte Branch * which shall be required to have only four (4) showers;
00393

XT IS FURTHER ORDERED that defendants' Motion to Eliminate Weekly al·iance Reporting on the occupancy of the Reception and Guidance Center and populations of the consent decree famj+··îA«¾ is GRANTED. Defendants shall
the information previously required by these reports in their ¿—annual cu'p7 i " " ^ reports. E\irther, the defendants shall imaadiately
the Court and the parties of any instance of non-compliance with these of the May 27, 1987 Order and the Consent Decree. IT IS FURTHER ORDERED that the defendants s h a l l l e t the contract for
trades inspections by June 1, 1989/ and s h a l l complete the inspections 'October 1, 1989;
IT IS FURTHER ORDERED that, pursuant to Section IV H(l) of the State Compliance, the defendants s h a l l develop indoor i** `t **B·†·ÌOTI f*"¯*iT •» ••—ì^¾ consent decree i n s t i t u t i o n , except Central Complex a t SPSM, and that
Hp5 shall have sufficient s t a f f and equipment t o provide each: population innate with one hour of large nuscle exercise, five (5) days

XT IS FURTHER UHUL·HOJ that the practice of assigning protective

inmates t o job assignments inside di scipi ínary segregation units a t Five

a t SPSM v i o l a t e s section IV B of the State Plan for Compliance.

IT IS FURTHER OKPFTžED that, within sixty (60) days of the date of t h i s

r, defendants shall IIH¾ET*IT* a survey of all •fry^ p¾l·»[,mT¯ft*¯7*on »•""*< to

v e n t i l a t i o n requirements and t o determine whether existing exhaust

need t o be repaired to replaced. Within an additional s i x t y (60) days,

shall submit a plan, pursuant to section K of the Consent Decree, to

any defective ventilation unit identified by t h i s survey;

IT IS FURTHER ORDERED that the Out-of-Cell Activity Plan, required by

IV H(2) of the State Plan for Compliance and moriifieri by t h i s Court's

[of March 31, 1988, i s further rmrtifieri as follows: 2

CO394

1. The operational definition of access shall require that aggregate 'activities maintain a participation level of at least 33%, based on a quarterly
census conducted by the defendants. If a program has a participa— Í tion level of less than 33% for three consecutive quarters, the amount of [capacity counted toward aggregate hours nust be proportionately reduced.
2. Defendants shall demonstrate that at least six (6) hours of the [required 45 hours of out-of-cell activity each week are aggregate activities.
3. Individual work and program assignments shall be counted as thirty r(30) hours per week for full-time assignments, and fíft¯wn (15) hours per week [for part-time assignments.
4. For each consent decree facility/ the defendants shall identify [the number of teachers, recreational supervisors, librarians, chaplains, craft ^supervisors and other p¿ü¾rdm employees authorized as of January 4, 1985. By
1,' 1990, the defendants will achieve and maintain at each facility
i n <*»^Hip»T7*M<i j o h ' oTa¢ei'•f7>ra^"¾m<f <yj¾»i jjj number tO n o t
80% of the 1985 authorization. IT IS FURTHER. utdjKhl:l) that the Gov< 's Office monitor for fire
ßafety construction projects established by this Court's Order of January 29, 387, shall assume responsibility for monitoring the progress of sanitation conand repair projects. Within thirty (30) days of the entry of this r, the defendants shall report to the Court the status of remaining sanitaprojects and their completion srhprin¯lft¾; IT IS FlKlHhK. OPnt3¾g) that the Knop amici' s Motion to Strike is

in Kalamazco, MI;

L·¿~- RIC-iAED A- EKSLEM
U.S. D i s t r i c t Judge
O¢395

 
 United States District Court for the Western District of Michigan - Docket Report

Page 1 of 143

CLOSED, OVER1000DOCUMENTS
United States District Court Western District of Michigan (Grand Rapids) CIVIL DOCKET FOR CASE #: 1:84-cv-00063-RAE

USA v. Michigan, State of, et al Assigned to: Senior Judge Richard Alan Enslen Demand: $0 Case in other court: related case, G84-651CA Cause: 42:1983 Prisoner Civil Rights

Date Filed: 01/18/1984 Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Plaintiff

plaintiff USA

represented by John A. Smietanka US Attorney's Office The Law Building 330 Ionia Ave., N.W. P.O. Box 208 Grand Rapids, MI 49501-0208 (616) 456-2404 Email: jas@smietankalaw.com TERMINATED: 09/28/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie J. Weinstein U.S. Department of Justice Special Litigation Division P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6408 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mellie H. Nelson U.S. Department of Justice Special Litigation Division P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6250 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Hayes Dettmer Old Munson Hall 921 W 11th St., Ste. 2E Traverse City, MI 48684 (231) 946-3008

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 2 of 143

V. defendant Michigan, State of

Email: mdettmer@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Philip A. Guzman U.S. Department of Justice Special Litigation Division P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6250 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy R. Payne U.S. Department of Justice Special Litigation Division P.O. Box 66400 Washington, DC 20035-6400 (202) 514-6250 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Bradford Reynolds U.S. Department of Justice Civil Rights Division (7) P.O. Box 66128 Washington, DC 20035-6128 (202) 724-3182 TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Andrew J. Barrick U.S. Department of Justice Civil Rights Division HOLC Bldg. Washington, DC 20530 TERMINATED: 01/25/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Donald S. McGehee Michigan Department of Attorney General Alcohol & Gambling Enforcement Division P.O. Box 30005

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 3 of 143

Lansing, MI 48909 (517) 322-1367 TERMINATED: 01/07/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman MI Dept Attorney General (Corrections) Corrections Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7021 Email: friedmanL@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward Lisa C. Ward Law Offices 1300 N. Waverly Rd., Suite 5 Lansing, MI 48917 (517) 323-0300 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson MI Dept Attorney General (Public Service) Public Service Division 6545 Mercantile Way, Ste. 15 Lansing, MI 48911 (517) 241-6680 Email: NickersonM@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn Michigan Department of Attorney General Executive Division 7th Fl., Law Bldg. P.O. Box 30212 Lansing, MI 48909 (517) 373-1110 TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw Michigan Department of Attorney

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 4 of 143

defendant
James J. Blanchard Governor of Michigan TERMINATED: 05/03/1991

General Labor Division P.O. Box 30217 Lansing, MI 48909 (517) 373-2560 Email: przekopshaws@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson Michigan Department of Attorney General Appellate Division P.O. Box 30212 Lansing, MI 48909 (517) 373-1124 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve MI Dept Attorney General (Criminal Appellate) Criminal Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 373-4875 Email: vanclevej@michigan.gov TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 5 of 143

defendant Michigan Department of Corrections TERMINATED: 05/03/1991
defendant Gwen Andrew Chairman, Michigan Corrections Commissions TERMINATED: 05/03/1991

(See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 6 of 143

defendant Thomas Eardley, Jr. Member, Michigan Corrections Commission TERMINATED: 05/03/1991
defendant G. Robert Cotton Member, Michigan Corrections Commission TERMINATED: 05/03/1991

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 7 of 143

defendant
Dwayne Waters Member, Michigan Corrections Commission TERMINATED: 05/03/1991

ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 8 of 143

defendant Don LeDuc Member, Michigan Corrections Commission TERMINATED: 05/03/1991
defendant Michigan Corrections Commission

(See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 09/01/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 9 of 143

defendant
Perry M. Johnson Director, Michigan Department of Corrections TERMINATED: 05/03/1991

ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 09/01/1992 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 10 of 143

defendant Robert Brown, Jr. Deputy Director, Michigan Department of Corrections TERMINATED: 05/03/1991
defendant Dale Foltz Regional Administrator, State Prison of Southern Michigan TERMINATED: 05/03/1991

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 11 of 143

defendant John Jabe Warden, Michigan Reformatory TERMINATED: 05/03/1991
defendant Theodorre Koehler Warden, Marquette Branch Prison TERMINATED: 05/03/1991

Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 12 of 143

defendant
John Prelesnik Administrator, Reception and Guidance Center, State Prison of Southern Michigan TERMINATED: 05/03/1991

Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 13 of 143

defendant Jack Bergman Administrator, Michigan Intensive Programming Center TERMINATED: 05/03/1991
defendant John M. Engler Governor of Michigan

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Janet A. Van Cleve (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanley D. Steinborn (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas C. Nelson (See above for address) TERMINATED: 05/03/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt MI Dept Attorney General (ENRALansing) Environment, Natural Resources & Agriculture Division P.O. Box 30755 Lansing, MI 48909 (517) 373-7540 Email: SchmidtBA@michigan.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 14 of 143

defendant Kenneth L. McGinnis Director, Michigan Department of Corrections
defendant Dan L. Bolden Deputy Director, Michigan Department of Corrections

Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 15 of 143

defendant John Jabe Warden, State Prison of Southern Michigan
defendant Pamela Withrow Warden, Michigan Reformatory

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 16 of 143

defendant John W. Hawley Warden, Marquette Branch Prison
amicus Michigan American Civil Liberties Union Foundation

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barbara A. Schmidt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leo H. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Nickerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan Przekop-Shaw (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William L. Fette Cornell, Dalzell, Fette & Ramey 117 W Cedar St. Kalamazoo, MI 49007-5286

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 17 of 143

amicus National Prison Project of the American Civil Liberties Union Foundation
V. movant James E. Lanni #220271 named as James Lanni (no middle initial); and others similary situated TERMINATED: 07/30/1996
intervenor-plaintiff Everett Hadix on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex

(269) 381-4950 Email: bfette@ameritech.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Elizabeth Alexander National Prison Project of the ACLUF 915 15th St., NW, 7th Fl. Washington, DC 20005 (202) 393-4930 Email: ealexander@npp-aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James E. Lanni #220271 #220271 Deerfield Correctional Facility 1755 Harwood Rd. Ionia, MI 48846 (616) 527-6320 PRO SE
represented by Larry W. Bennett Cox, Hodgman & Giarmarco, PC 101 W Big Beaver Rd., 10th Fl., Columbia Center Troy, MI 48084-5280 (248) 528-2200 Email: lbennett@chglaw.com TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart 221 North Main Street, Suite 300 Ann Arbor, MI 48103 (734) 213-3703 Fax: (734) 213-3704 Email: michaelbarnhart@comcast.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter 221 N Main St., Ste. 300

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 18 of 143

intervenor-plaintiff Richard Mapes on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff Patrick C. Sommerville on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff Roosevelt Hudson, Jr. on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex

Ann Arbor, MI 48104 (734) 222-0088 Email: pas@patstreeter.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 19 of 143

intervenor-plaintiff Brent E. Koster on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff Lee D. McDonald on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff Darryl Sturges on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex

ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 20 of 143

intervenor-plaintiff William Lovett on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff James Covington on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex
intervenor-plaintiff James Haddix on behalf of Themselves and a Class Comprised of Those Persons who are now or who will be confined within the State Prison of Southern MichiganCentral Prison of Southern MichiganCentral Complex

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Larry W. Bennett (See above for address) TERMINATED: 03/18/1991 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Barnhart

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 21 of 143

mediator Special Master
amicus National Alliance for the Mentally Ill
amicus Michigan Alliance for the Mentally Ill

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia A. Streeter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by F. Warren Benton 149 Beach Ave. Larchmont, NY 10538 Email: nbenton@nbenton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol R. Miaskoff Steptoe & Johnson 1330 Connecticut Ave. NW Washington, DC 20036 (202) 429-3000 TERMINATED: 03/28/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George E. Pawlowski Pawlowski Flakne & Reens PLC 650 Frey Bldg. 300 Ottawa Ave., NW Grand Rapids, MI 49503 (616) 458-7795 Email: mpfgrlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Carol R. Miaskoff (See above for address) TERMINATED: 03/28/1994 LEAD ATTORNEY ATTORNEY TO BE NOTICED
George E. Pawlowski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 22 of 143

V. movant Harry Bout #180741 TERMINATED: 10/10/1990
movant Artis Johnson also known as Fa'Dee Mulazim

represented by Harry Bout #180741 #180741 State Prison Of Southern Michigan 4008 Cooper St. Jackson, MI 49201 (517) 780-6600 PRO SE

Date Filed 10/02/1985 11/03/1989 11/03/1989
11/06/1989

#

Docket Text

147 ORDER (1 pages) by Judge Richard A. Enslen appointing Special Master F. Warren Benton (cc: all counsel) (rlw) Modified on 04/30/1992 (Entered: 12/11/1989)

875 OPINION (17 pages) by Judge Richard A. Enslen (cc: all counsel) (dmh) (Entered: 12/14/1989)

876 ORDER by Judge Richard A. Enslen in accordance with the Opinion; defts new Classification Plan by 3/15/90 in accordance with the provisions of Section II of this Opinion the Classification Process shall be fully implemented by defts by 2/1/91; the Classification Process shall comply with the provisions of Section II, paragraph 3 by 9/1/92 (cc: all counsel) (dmh) Modified on 04/30/1992 (Entered: 12/14/1989)

877 ORDER by Judge Richard A. Enslen in accordance with the Opinion of 11/3/89; the Compliance Ratings of the October 1989 Report of the Independent Expert are adopted by the Court; The Schedule (Items 1-7) for 1990 is adopted; defts' Motion for a Protective Order Terminating or Restricting Discovery by the Knop Amicus is denied; defts' Motion for Modification of the Hospital Site Selection Date is granted; the Knop Amicus' Motion requesting a hearing before the Imposition of Food Loaf is granted in part and denied in part; the Knop Amicus' Motion requesting an Order that defts cease punishing prisoners with Disciplinary write-ups for filing grievances is denied; the Knop Amicus' Motion for an Order requiring defts to cease the practice of denying any prisoner a minimum of three showers per week is granted; the Knop Amicus' Motion requesting that sanitation items related to the presence of vermin be inspected and considered by the Court at both the Fall and Spring Compliance Hearings is denied; defts shall develop a plan by 2/1/90 re the Correctional Population Projected; defts shall develop by 2/1/90 practices and procedures re the Self Mutilation Protection Unit; defts Medical Access Plan pursuant to Section K of the Consent Decree shall be resubmitted by 1/1/90 (cc: all counsel) (dmh) (Entered: 12/14/1989)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 23 of 143

11/06/1989
11/08/1989 11/08/1989 11/08/1989 11/09/1989 11/13/1989 11/15/1989 11/17/1989 11/17/1989 11/22/1989 11/22/1989 11/22/1989

881 ORDER (1 pages) by Judge Richard A. Enslen ; Contempt hearing before Judge Enslsen 8:30 12/14/89 for Jack Bergman, for John Prelesnik, for Theodorre Koehler, for John Jabe, for Dale Foltz, for Robert Brown Jr., for Perry M. Johnson, for Michigan Corr Comm, for Don LeDuc, for Dwayne Waters, for G. Robert Cotton, for Thomas Eardley Jr., for Gwen Andrew, for Michigan Dept. Cor., for James J. Blanchard (cc: all counsel) (rlw) Modified on 02/28/1990 (Entered: 01/19/1990)
879 Report on Out-of-Cell Activity (STATUS REPORT) by defendant State of Michigan (rlw) (Entered: 01/11/1990)
880 Report on Fire Marshal Inspection of the Marquette Branch Prison (STATUS REPORT) by defendant State of Michigan (rlw) (Entered: 01/11/1990)
882 ATTORNEY SUBSTITUTION: terminating Brent E. Simmons and substituting Susan Przekop-Shaw as attorney on behalf of deft State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/19/1990)
884 Program Statement for the new correctional mental health facility (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
883 TRANSCRIPT filed for Compliance Hearing held 11/3/89 before Judge Enslen and reported by Jarratt W. Martin (rlw) Modified on 02/26/1990 (Entered: 01/19/1990)
886 Internal Food service inspection at the Egeler Correctional Facility (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
885 MOTION by amicus MI ACLU, amicus Natl Prisn Proj ACLU to exceed page limitation in support of its Motion for Order of Contempt (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
887 MEMORANDUM by intervenor-plaintiff in support of Motion for Order of Contempt Regarding Monitoring w/Exhibits A-B w/stamped Proof of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
889 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to exceed page limitation in support of its Motion for Order of Contempt [881-1] (cc: all counsel) (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
891 MEMORANDUM by amicus in support of Motion for Order of Contempt for Interference with the Monitoring Process w/attachments 19 w/Certificate of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
893 MOTION by plaintiff USA to extend time for 10 days to respond to defts' Motion to Reconsider and Alter the Court's Order 11/3/89 and 11/6/89 to and including 12/15/89 w/Memorandum in Support w/Certificate of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 24 of 143

11/22/1989
11/22/1989 11/22/1989 11/22/1989 11/27/1989 11/29/1989 12/01/1989 12/01/1989 12/01/1989 12/04/1989 12/04/1989 12/06/1989 12/06/1989
12/11/1989

888 LETTER to court from defendant State of Michigan w/attached copy of the latest license issued by the MI Dept. of Public Health for the Comprehensive Care Units (CCU) at Riverside Correctional Facility (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
890 Inspection of Food Service at SPSM South Complex to be conducted 11/21/89 (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
892 Report (draft) relating to tool control in industries ( STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
894 MIOSHA Inspection for the Marquette Branch Prison (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/26/1990 (Entered: 01/11/1990)
895 MOTION by defendant for reconsideration and to Alter the Court's Orders of ll/3/89 and ll/6/89 w/Brief in Support w/attached Proof of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
896 PROOF OF SERVICE by defendants for Monthly Reports (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
897 MOTION by defendant to dismiss Order for Show Cause , and for sanctions Against Opposing Parties w/Brief in Support w/Exhibits l-8 (rlw) Modified on 02/28/1990 (Entered: 12/11/1989)
898 MOTION by defendant to clarify Court Orders on defts' Duty to Report Compliance w/Brief in Support w/Exhibits 1-3 (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
899 NOTICE of hearing by defts for motion to clarify Court Orders on defts' Duty to Report Compliance [889-1] at <date to be set by Court> (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
900 NOTICE OF APPEAL by defendants from Dist. Court decision of 11/3/89 and 11/6/89 [891-1] w/attached Proof of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
901 RESPONSE by amicus to defts' motion for reconsideration and to Alter the Court's Orders of ll/3/89 and ll/6/89 [886-1] w/Certificate of Service (rlw) Modified on 02/26/1990 (Entered: 12/11/1989)
902 PROOF OF SERVICE by defendants for pldg no 892 (rlw) Modified on 02/27/1990 (Entered: 12/11/1989)
903 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to extend time for 10 days to respond to defts' Motion to Reconsider and Alter the Court's Order 11/3/89 and 11/6/89 to and including 12/15/89 [885-1] (cc: all counsel) (rlw) Modified on 02/27/1990 (Entered: 12/11/1989)
904 PETITION FOR WRIT OF HABEAS CORPUS Ad Prosequendum by

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 25 of 143

12/13/1989 12/13/1989 12/13/1989
12/14/1989 12/15/1989 12/15/1989 12/15/1989 12/15/1989
12/20/1989 12/21/1989 12/21/1989

amicus for John Ford, Romando Valeroso, T. Jon Spytma (3 pages) referral to Judge Richard A. Enslen. Writ issued and returned to amicus rep for service (rlw) Modified on 02/27/1990 (Entered: 12/11/1989)
905 RESPONSE by amicus MI ACLU, amicus Natl Prisn Proj ACLU to motion to dismiss Order for Show Cause [888-1] w/l Attachment (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
906 RESPONSE by amicus MI ACLU, amicus Natl Prisn Proj ACLU to motion to clarify Court Orders on defts' Duty to Report Compliance [889-1] w/Certificate of Service (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
907 RESPONSE by intervenor-plaintiffs Everett Hadix, Richard Mapes, Patrick C. Sommerville, Roosevelt Hudson Jr, Brent E. Koster, Lee D. McDonald, Darryl Sturges, William Lovett, James Covington, James Haddix to motion to dismiss Order for Show Cause [888-1], motion to clarify Court Orders on defts' Duty to Report Compliance [889-1] w/atttached Proof of Service (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
PROCEEDING before Judge Richard A. Enslen; contempt hearing held; additional briefs due 1/4/90; replies due 1/11/90; hearing continued to 1/16/90 (rlw) (Entered: 12/19/1989)
908 Semiannual Compliance Report (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
909 Inspection of Food Service of the South Complex at SPSM (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
910 Inspection of External Food Service at the Marquette Branch Prison (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
911 ORDER (4 pages) by Judge Richard A. Enslen to summarize in part and amend in part the verbal order on 12/14/89; that the hearing to show cause on defts' contempt is continued to 1/16/90 @ 9:00 a.m. in Kzoo; defts briefs due by 1/4/90; pltf, amici and defts may file other papers by 1/4/90; replies to be filed by 1/11/90 (cc: all counsel) (rlw) Modified on 02/27/1990 (Entered: 01/12/1990)
912 ATTORNEY APPEARANCE by by Donald S. McGehee, Assist. Atty Gen. on behalf of defendant State of Michigan w/stamped proof of service (rlw) Modified on 02/27/1990 (Entered: 01/11/1990)
913 Report of Food Service Inspection at the Central Complex at SPSM (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/12/1990)
914 RESPONSE by plaintiff USA to defts' motion to clarify Court Orders on defts' Duty to Report Compliance [889-1], defts' motion to dismiss Order for Show Cause [888-1] w/Certificate of Service (rlw) Modified on

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 26 of 143

12/21/1989 12/28/1989
12/29/1989 12/29/1989 12/29/1989 01/02/1990 01/02/1990 01/03/1990 01/04/1990
01/04/1990
01/05/1990

02/27/1990 (Entered: 01/12/1990)
915 RESPONSE by plaintiff USA to motion for reconsideration and to Alter the Court's Orders of ll/3/89 and ll/6/89 [886-1] w/certificate of service (rlw) Modified on 02/27/1990 (Entered: 01/12/1990)
916 NOTICE by intervenor-plaintiff Everett Hadix, Richard Mapes, Patrick C. Sommerville, Roosevelt Hudson Jr, Brent E. Koster, Lee D. McDonald, Darryl Sturges, William Lovett, James Covington, James Haddix of taking deposition of Frank J. Kelley on 1/9/89 at 10 a.m. in Lansing, MI w/stamped proof of service (rlw) Modified on 02/27/1990 (Entered: 01/12/1990)
917 Overcrowding and Protection from Harm Audits (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
918 Out-of-Cell Acitivity (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
919 Revised Plan on Access to Medical Care (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
920 NOTICE by amicus MI ACLU, amicus Natl Prisn Proj ACLU of taking deposition of Frank J. Kelley on 1/9/90 @ l0 a.m. in Lansing, MI w/stamped Proof of Service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
921 TRANSCRIPT filed for Compliance Hearing held ll/1/89 and ll/2/89 before Judge Enslen and reported by Jarratt W. Martin (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
922 Food Service Inspection Report for SPSM Central Complex w/November and December inspection reports for the Trusty Division food service at SPSM (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
923 BRIEF by intervenor-plaintiff Everett Hadix, Richard Mapes, Patrick C. Sommerville, Roosevelt Hudson Jr, Brent E. Koster, Lee D. McDonald, Darryl Sturges, William Lovett, James Covington, James Haddix regarding Scheduling order contempt hearing held; additional briefs due 1/4/90; replies due 1/11/90; hearing continued to 1/16/90 [0-0] (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
924 MOTION by defendant State of Michigan to exceed page limitation to file Brief in Response to the Court's l1/l5/89 Order w/attached Proposed Brief in Response to the Court's Order dated 12/15/89 w/attached Proof of Service w/Tables 1-2 (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
925 SUPPLEMENTAL BRIEF by defendant State of Michigan, amicus MI ACLU re order [894-1] w/certificate of service w/attachments 1-2 (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 27 of 143

01/05/1990
01/05/1990
01/05/1990 01/05/1990 01/08/1990
01/08/1990 01/08/1990 01/09/1990 01/09/1990 01/10/1990 01/10/1990 01/10/1990 01/10/1990

926 Revision of the MI Dept of Corrections' police "Prisoner Placement and Transfer" as to newly opened corrections facilities Munising, Standish, Carson City Regional Facility, Adrian Temporary Facility (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
927 MOTION by plaintiff USA to exceed page limitation for memorandum in support of Motion for Protective Order w/Memorandum in support w/Proposed Motion for Protective Order w/Brief in Support w/Notice of Motion w/attached Certificate of Service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
928 MOTION by defendant State of Michigan to exceed page limitation for Motion for Protective Order w/Proposed Motion for Protective Order w/Brief in Support w/attached Proof of Service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
929 RESPONSE by plaintiff USA [894-1] to Court's Order of 12/15/89 (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
930 ORDER (1 pages) by Judge Richard A. Enslen granting motion to exceed page limitation for memorandum in support of Motion for Protective Order [927] ; Case mgmt ddl for responses from dft, amici 1/16/90 to pltf's Motion for Protective Order (cc: all counsel) (rlw) Modified on 10/09/1991 (Entered: 01/14/1990)
931 MOTION by plaintiff USA for protective order w/Memorandum in Support w/Notice of Motion (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
932 BRIEF (First Amended) by defendant State of Michigan regarding motion to exceed page limitation in Support of Motion for Protective Order [910-1] w/attached proof of service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
933 PROOF OF SERVICE by defendant State of Michigan for discovery materials (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
934 Report of Independent Expert (STATUS REPORT) by Special Master F. Warren Benton on Compliance Evaluation of Provision Relating to Fire Safety, Sanitation, Crowding and Protection from Harm, Access to Courts (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
Remark - Court allows filing of deft's Motion for Protective Order verbally over the telephone (rlw) (Entered: 01/14/1990)
935 MOTION by defendant State of Michigan for protective order w/Brief in Support (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
936 ORDER (6 pages) by Judge Richard A. Enslen granting deft's motion for protective order [931] (cc: all counsel) (rlw) Modified on 10/09/1991 (Entered: 01/14/1990)
937 PETITION FOR WRIT OF HABEAS CORPUS ( 3 pages) referral to

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 28 of 143

01/11/1990
01/11/1990 01/11/1990 01/11/1990 01/11/1990 01/11/1990 01/12/1990 01/12/1990 01/16/1990 01/16/1990 01/16/1990 01/16/1990

Judge Richard A. Enslen by petitioner prisoners John Ford, T. Jon Spytma, Romando Valeroso representing Knop amici for hearing on 1/16/90 at 9 a.m. Writ issued and returned to pltf's rep for service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
938 REPLY Brief by intervenor-plaintiff Everett Hadix, Richard Mapes, Patrick C. Sommerville, Roosevelt Hudson Jr, Brent E. Koster, Lee D. McDonald, Darryl Sturges, William Lovett, James Covington, James Haddix in Support of Show Cause proceedings re [894-1] (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
939 REPLY Brief by amicus MI ACLU, amicus Natl Prisn Proj ACLU in Support of Show Cause proceedings re [894-1] w/certificate of service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
940 MOTION by defendant State of Michigan to modify defts' Epidemiological contagions plan w/Brief in Support w/Exhibits 1-2 w/attached proof of service (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
941 Report on Building Trades Inspections for Marquette Branch Prison and SPSM-Egeler Correctional Facility and Michigan Reformatory (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
943 Quarterly Reports (STATUS REPORT) by defendant State of Michigan on Progress of new psychiatric facility; Overcrowding; Progress toward JCAHO Accreditation; Opening of intermediate care unit (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
942 RESPONSE by defendant State of Michigan to pltfs and Amici's Supplemental Brief for Contempt [905-1] w/stamped proof of service w/attachment 33 (rlw) Modified on 02/27/1990 (Entered: 01/16/1990)
944 AMENDMENT by defendant State of Michigan to supplemental [907-1] (rlw) Modified on 02/27/1990 (Entered: 01/14/1990)
945 TRANSCRIPT filed for Compliance Hearing held 11/289 before Judge Enslen and reported by Jarratt W. Martin (Vol II) (rlw) Modified on 02/27/1990 (Entered: 01/19/1990)
946 RESPONSE by defendant State of Michigan, amicus MI ACLU to motion for protective order [913-1] w/certificate of service(rlw) Modified on 02/27/1990 (Entered: 01/16/1990)
PROCEEDING before Judge Richard A. Enslen ; holding defts in contempt and satisfying current contempt hrg ddls (rlw) Modified on 02/21/1990 (Entered: 01/19/1990)
947 Report of Out-of-Cell Activity Survey at SPSM (4-Block) (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/19/1990)
948 STIPULATION AND ORDER (2 pages) by Judge Richard A. Enslen :

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 29 of 143

01/17/1990 01/17/1990 01/18/1990 01/24/1990
01/24/1990 01/24/1990 01/24/1990 01/24/1990
01/26/1990 01/28/1990 01/29/1990

that defts will allow pltfs and their experts to conduct tours of consent decree facilities (cc: all counsel) (rlw) Modified on 09/19/1990 (Entered: 01/19/1990)
949 ATTORNEY APPEARANCE by Timothy R. Payne on behalf of plaintiff USA (rlw) Modified on 02/27/1990 (Entered: 01/19/1990)
950 Report on Overcrowding and Protection Harm Audit (STATUS REPORT) by defendant State of Michigan (rlw) Modified on 02/27/1990 (Entered: 01/19/1990)
951 TRANSMISSION FORM showing notice of appeal filed by CCA on 01/09/90 and assigned CCA number 90-1035 (dmh) Modified on 02/27/1990 (Entered: 02/14/1990)
952 OPINION AND ORDER (33 pages) by Judge Richard A. Enslen, that the court held that defts were in contempt 1) for failing to submit a revised mental health program statement based on a population projection to the year 2000; 2) for suppressing information in the 3/89 audit reports. The court ordered defts to comply with a re-formulation of the Consent Decree Coordinator position and compliance monitoring process as specified in the opinion and to provide an update of the mental health program statement containing a population projection to the year 2000. Such projection must be developed by an independent contractor approved by the court (cc: all counsel) (rlw) (Entered: 03/01/1990)
953 OPINION (4 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/01/1990)
954 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting defts' motion to clarify Court Orders on defts' Duty to Report Compliance [898-1] (cc: all counsel) (rlw) (Entered: 03/01/1990)
955 OPINION (11 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/01/1990)
956 ORDER (2 pages) by Judge Richard A. Enslen denying motion for reconsideration and to Alter the Court's Orders of ll/3/89 and ll/6/89 [895-1]; defts shall develop a classification plan as specified in Order of 11/3/89 by 4/2/90; defts shall submit by 4/2/90 a plan illustrating how they manage the correctional population projected by their research div. as specified in Order of ll/6/89 (cc: all counsel) (rlw) (Entered: 03/01/1990)
957 RESPONSE by amicus MI ACLU, amicus Natl Prisn Proj ACLU to motion to modify defts' Epidemiological contagions plan [940-1] w/certificate of service (rlw) (Entered: 03/01/1990)
958 TRANSCRIPT filed for Compliance Hearing held 11/2/89 and 11/3/89 before Judge Enslen and reported by Jarratt W. Martin (Vol III) (rlw) (Entered: 03/01/1990)
959 STATUS REPORT by defendant State of Michigan re food service inspections at SPSM Central Complex and Egeler Correctional Facility

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 30 of 143

01/29/1990 01/29/1990 02/05/1990 02/07/1990 02/09/1990 02/12/1990 02/12/1990 02/15/1990 02/16/1990
02/20/1990 02/20/1990 02/20/1990 02/20/1990
02/20/1990 02/21/1990

(rlw) (Entered: 03/01/1990)
960 OBJECTIONS by intervenor-plaintiffs to report by defts re access to health care plan [919-1] (rlw) (Entered: 03/01/1990)
961 REPORT by defendant State of Michigan re the most recent revisions of the institutional capacities for SPSM and the Reception and Guidance Center (rlw) (Entered: 03/01/1990)
962 PROOF OF SERVICE by intervenor-plaintiffs for discovery materials (rlw) (Entered: 03/01/1990)
963 REPORT by defendant State of Michigan re revised procedures and practices for the Self-Mutilator Protection Unit (SMPU) (rlw) (Entered: 03/01/1990)
964 REPORT by defendant State of Michigan re annual consent decree inspections by Fire Marshal (rlw) (Entered: 03/01/1990)
965 MOTION by defendant State of Michigan for Modification of Shower Provision Contained w/in the Consent Decree w/Brief in Support w/Exhibit 1-2 w/stamped proof of service (rlw) (Entered: 03/01/1990)
966 CONFIDENTIALITY STIPULATION of Knop Amicus and defts re Raw Data from deft, Michigan Dept. of Corrections' Classification Validity Study (rlw) (Entered: 03/01/1990)
967 PROOF OF SERVICE by defendant State of Michigan for discovery materials (rlw) (Entered: 03/01/1990)
968 MOTION by defendant State of Michigan for Modification of Consent Decree Provision Mandating a Two-Hour Fire Separation in the Gun Posts w/Brief in Support w/attachments w/stamped proof of service (rlw) (Entered: 03/01/1990)
969 REPORT by defendant State of Michigan re the sanitarian employed at the Egeler Correctional Facility (rlw) (Entered: 03/01/1990)
970 REQUEST by defendant State of Michigan for Extension of Time to file Fire Safety and Sanitation Reports (rlw) (Entered: 03/01/1990)
971 REPORT by defendant State of Michigan re construction of Psychiatric Mental Health Facility concerning interviews of the architects (rlw) (Entered: 03/01/1990)
972 REPORT by defendant State of Michigan re the reopening of the prison industry operation at SPSM excpt the metal furniture factory until additional security measures and tool control procedures can be instituted (rlw) (Entered: 03/01/1990)
973 PROOF OF SERVICE by defendant State of Michigan for discovery materials (rlw) (Entered: 03/01/1990)
974 ORDER (2 pages) by Judge Richard A. Enslen that defts' fire safety expert, Mr. Chip Carson shall file report by 2/23/90; that defts' sanitation

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 31 of 143

02/21/1990 02/21/1990
02/21/1990
02/21/1990 02/21/1990 02/21/1990
02/21/1990
02/21/1990 02/23/1990
02/23/1990 02/23/1990 02/23/1990 02/23/1990

expert, Mr. Leonard LRice shall file report by 3/9/90 (cc: all counsel) (rlw) (Entered: 03/01/1990)
975 MOTION by defendant State of Michigan in limine of 1989 Building and Trade Inspections w/Brief in support w/attachments w/stamped proof of service (rlw) (Entered: 03/01/1990)
976 MOTION by plaintiff for further relief as to Paragraph D of the Consent Decree for an order to insure adequate security in the industries area at SPSM w/Brief in Support w/Exhibits A-E w/Notice of Motion (rlw) (Entered: 03/01/1990)
977 MOTION by amicus to extend time until 2/23/90 to file certain motions related to the hearing scheduled for 4/19, 4/20 w/Memorandum in Support w/Attachment l w/Certificate of Service (rlw) (Entered: 03/01/1990)
978 MOTION by amicus for enforcement of State Plan of Compliance , for Further for relief , and for clarification w/Brief in Support w/Attachment l (rlw) (Entered: 03/01/1990)
979 MOTION by defendants for order authorizing implementation of mental health immediate care and quality assurance plan w/Memorandum Brief in Support w/stamped proof of service (rlw) (Entered: 03/02/1990)
980 MOTION by defendants to modify dates for architect selection and planning funds released by the joint capital outlay subcommittee (JCOS) w/Brief in support w/attachment w/stamped proof of service (rlw) (Entered: 03/02/1990)
981 MOTION by defendants to modify completion dates for renovation projects in the decree's sanitation and crowding/protection provisions w/brief in support w/Exhibits 1-3 w/stamped proof of service (rlw) (Entered: 03/02/1990)
982 Expert Evaluations (STATUS REPORT) by plaintiff conducted by Mr. Ward Duel, sanitarian; Mr. Eugene Miller, corrections consultant; and Mr. George Gray, fire safety consultant (rlw) (Entered: 03/02/1990)
983 MOTION by amicus Natl Prisn Proj ACLU, amicus MI ACLU to extend time until 2/28/90 to file motions based on its discovery requests of 1/12/90 w/memorandum in support w/certificate of service (rlw) (Entered: 03/06/1990)
984 NOTICE OF APPEAL by defendant from Dist. Court decision, [877-1], [876-1], [956-1] w/stamped proof of service (rlw) (Entered: 03/06/1990)
985 NOTICE OF APPEAL by defendants from Dist. Court decision [952-1] w/stamped proof of service (rlw) (Entered: 03/06/1990)
FILING FEE PAID: on 2/23/90 in the amount of $210.00, receipt #36056 for Notices (2) of Appeal. (rlw) (Entered: 03/06/1990)
986 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 32 of 143

02/26/1990 02/26/1990 02/27/1990 03/01/1990 03/01/1990 03/01/1990 03/01/1990
03/01/1990
03/02/1990
03/02/1990 03/02/1990 03/02/1990

extend time until 2/23/90 to file certain motions related to the hearing scheduled for 4/19, 4/20 [977-1] (cc: all counsel) (rlw) (Entered: 03/06/1990)
987 MOTION by plaintiff to extend time until 3/15/90 to file responses to the numerous pre-hearing motions w/attached certificate of service (rlw) (Entered: 03/06/1990)
988 RESPONSE by amicus to motion for Modification of Shower Provision Contained w/in the Consent Decree [965-1] w/attachments w/certificate of service (rlw) (Entered: 03/06/1990)
989 ORDER ( 1 pages) by Magistrate Doyle A. Rowland granting motion to extend time until 2/28/90 to file motions based on its discovery requests of 1/12/90 [983-1] (cc: all counsel) (rlw) (Entered: 03/06/1990)
990 PROOF OF SERVICE by defendants for discovery materials (rlw) (Entered: 03/06/1990)
991 LETTER from Special Master Dr. Benton to A. Barrick, US Dept. of Justice re Expert Reports (rlw) (Entered: 03/06/1990)
992 MOTION by amicus to compel Production of Documents w/memorandum in support w/Attachments 1-3 (rlw) (Entered: 03/06/1990)
993 MOTION by amicus to modify reporting requirements in orders of 4/24/89 and 1/29/87 re designation of an official to monitor progress of fire safety, sanitation construction, repair projects , and to to enforce food loaf order w/brief in support w/attachments 1-5 w/certificate of service (rlw) (Entered: 03/06/1990)
994 MOTION by defendant to exceed page limitation to file brief re modification of fire and safety requirements contained within the consent decree w/attached PROPOSED motion and brief w/Exhibits 1-7 (rlw) (Entered: 03/06/1990)
995 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to exceed page limitation to file brief re modification of fire and safety requirements contained within the consent decree [994-1] (cc: all counsel) (rlw) (Entered: 03/06/1990)
996 MOTION by defendants for modification of fire and safety requirements contained within the consent decree (to amend) w/brief in support w/Exhibits 1-7 (rlw) Modified on 03/12/1990 (Entered: 03/06/1990)
997 ORDER (1 pages) by Judge Richard A. Enslen granting pltf's motion to extend time until 3/15/90 to file responses to the numerous pre-hearing motions [987-1] (cc: all counsel) (rlw) (Entered: 03/06/1990)
998 NOTICE of hearing: before Magistrate Doyle A. Rowland on motion to compel Production of Documents [992-1] ; set for 10:00 3/16/90 (cc: all counsel) (rlw) (Entered: 03/06/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 33 of 143

03/05/1990 03/05/1990 03/05/1990 03/05/1990 03/06/1990 03/06/1990
03/08/1990 03/08/1990 03/12/1990 03/12/1990 03/12/1990

999 RESPONSE by amicus to motion for Modification of Consent Decree Provision Mandating a Two-Hour Fire Separation in the Gun Posts [9681] w/certificate of service (rlw) (Entered: 03/06/1990)
1000 MOTION by defendants to modify date for accreditation of Duane Waters Mental Health Facility by the Joint Commission on Accreditation of Hospitals (JCAHO) (to amend) w/brief in support w/Exhibit 1 w/stamped proof of service (rlw) Modified on 03/12/1990 (Entered: 03/06/1990)
1001 PROOF OF SERVICE by defendants for discovery materials (rlw) (Entered: 03/06/1990)
1002 FINAL REPORT by Fire Safety Expert, Wayne G. Carson (STATUS REPORT) submitted by defendant (rlw) (Entered: 03/06/1990)
1003 REPORT (STATUS REPORT) by defts re. fire safety expert's report by Wayne G. Carson, P.E. per Order of 2/20/90 and regarding pldg.#1002 w/attchmts. A-B (dkm) (Entered: 03/06/1990)
1004 MOTION by amicus to extend time until 3/15/90 for filing responses to defts' Motion in Limine of 1989 Building & Trades Inspections; Motion for Modification of Fire & Safety Requirements Contained w/in the Consent Decree; Motion for Court to Issue Order Authorizing Implementation of Mental Health Intermediate Care and Quality Assurance Plan; Motion to Modify Sites for Architect Selection and Planning Funds Released by the Joint Capital Outlay Subcommittee (JCOS); and Motion to Modify Completion Dates for Renovation Projects in the Decree's Sanitation and Crowding/Protection Provisions w/Memorandum in Support w/certificate of service(rlw) Modified on 03/12/1990 (Entered: 03/07/1990)
1005 RESPONSE by intervenor-plaintiffs to the 1990 April Report of the Independent Experts w/stamped proof of service (rlw) (Entered: 03/08/1990)
1006 MOTION by intervenor-plaintiff to extend time until 3/19/90 to file responses to the numerous motions filed by defts (rlw) (Entered: 03/12/1990)
1007 RESPONSE by amicus to motion for further relief as to Paragraph D of the Consent Decree for an order to insure adequate security in the industries area at SPSM [976-1] including enforcement of defts' agreement to replace the light bulbs w/security fixtures w/certificate of service (rlw) (Entered: 03/14/1990)
1008 COMMENTS by amicus on draft report of independent experts re Fire Safety, Sanitation, Crowding and Protection from Harm, Access to the Courts [1003-1] w/Certificate of service w/attachments 1-13 (rlw) (Entered: 03/14/1990)
1009 MOTION by defendant to extend time until 3/19/90 to file responses to motions by Knop amicus and pltf related to the hearings scheduled for

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 34 of 143

03/12/1990 03/12/1990
03/13/1990 03/13/1990 03/13/1990 03/13/1990 03/14/1990 03/14/1990 03/14/1990 03/14/1990 03/14/1990

4/19, 4/20, l990 and request adjournment of the 3/16/90 hearing re Knop amicus' Motion to Compel Production of Documents w/Brief in support w/stamped proof of service (rlw) (Entered: 03/14/1990)
1010 REPORT (STATUS REPORT) by defendants of Environmental Health LEvaluations of Marquette Branch Prison, Michigan Reformatory and State Prison of Southern Michigan performed by defts' expert witness Leonard F. Rice (rlw) (Entered: 03/14/1990)
1011 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to extend time until 3/15/90 for filing responses to defts' Motion in Limine of 1989 Building & Trades Inspections; Motion for Modification of Fire & Safety Requirements Contained w/in the Consent Decree; Motion for Court to Issue Order Authorizing Implementation of Mental Health Intermediate Care and Quality Assurance Plan; Motion to Modify Sites for Architect Selection and Planning Funds Released by the Joint Capital Outlay Subcommittee (JCOS); and Motion to Modify Completion Dates for Renovation Projects in the Decree's Sanitation and Crowding/Protection Provisions [1004-1] (cc: all counsel) (rlw) (Entered: 03/14/1990)
1013 OPPOSITION by plaintiff to motion for modification of fire and safety requirements contained within the consent decree (to amend) [996-1] (rlw) (Entered: 03/14/1990)
1014 OPPOSITION by plaintiff to motion in limine of 1989 Building and Trade Inspections [975-1] (rlw) (Entered: 03/14/1990)
1015 PROOF OF SERVICE by plaintiff for pldg. Nos. 1013-1014 (rlw) (Entered: 03/14/1990)
1016 MOTION by plaintiff for protective order relating to the stipulated order of 1/16/90 , and request for expedited hearing w/memorandum in support w/Attachment A w/certificate of service, w/notice of motion (rlw) (Entered: 03/14/1990)
MAILED Transcript Order Form to appellant's atty; court reporter and judge notified of appeal; all attys notified of appeal. (dmh) (Entered: 03/14/1990)
MAILED Information Copies to CCA re: appeals filed 2/23/90 (dmh) (Entered: 03/14/1990)
1017 NOTICE by defendants of sanitarian and pest control vacancies at SPSM and re-opening of metal furniture factory at SPSM (rlw) (Entered: 03/15/1990)
1018 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) by defendants at the Michigan Reformatory (rlw) (Entered: 03/15/1990)
1019 LETTER by Judge Enslen re a meeting w/three individuals involved w/the Michigan Alliance of the Mentally Ill who had suggestions for the new mental health facility. Copies mailed to attys of record, Dr. Benton, Dr. James (rlw) (Entered: 03/15/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 35 of 143

03/15/1990 03/15/1990 03/15/1990 03/15/1990 03/15/1990 03/15/1990 03/15/1990 03/15/1990
03/16/1990

1020 RESPONSE by amicus to motion in limine of 1989 Building and Trade Inspections [975-1] w/certificate of service (rlw) (Entered: 03/21/1990)
1021 RESPONSE by amicus to defts' motion for modification of fire and safety requirements contained within the consent decree (to amend) [9961] w/certificate of service (rlw) (Entered: 03/21/1990)
1022 RESPONSE by amicus to defts' motion to modify dates for architect selection and planning funds released by the joint capital outlay subcommittee (JCOS) [980-1] w/Certificate of Service (rlw) (Entered: 03/21/1990)
1023 RESPONSE by amicus to defts' motion to modify completion dates for renovation projects in the decree's sanitation and crowding/protection provisions [981-1] w/attachments 1-3 w/certificate of service (rlw) (Entered: 03/21/1990)
1024 RESPONSE by amicus to defts' motion for order authorizing implementation of mental health immediate care and quality assurance plan [979-1] w/certificate of service (rlw) (Entered: 03/21/1990)
1025 BRIEF IN OPPOSITION by defendants to Knop Amicus motion to compel Production of Documents [992-1] w/stamped proof of service w/Affidavit of Kenneth L. Faiver w/attachments (rlw) (Entered: 03/21/1990)
1026 Patient Population at Riverside 60-70 people; 4th unit temporarily closed (STATUS REPORT) by defendant (rlw) (Entered: 03/21/1990)
1027 ORDER ( 1 pages) by Magistrate Doyle A. Rowland granting motion to extend time until 3/19/90 to file responses to motions by Knop amicus and pltf related to the hearings scheduled for 4/19, 4/20, l990 and denies request for adjournment of the 3/16/90 hearing re Knop amicus' Motion to Compel Production of Documents [1009-1] extension of time granted until 3/19/90 for defts to respond to motion to modify reporting requirements in orders of 4/24/89 and 1/29/87 re designation of an official to monitor progress of fire safety, sanitation construction, repair projects [993-1]; extension granted until 3/19/90 for defts to respond to motion to enforce food loaf order [993-2]; granting extension of time for defts to respond to motion to enforce food loaf order [993-2]; granting extension of time until 3/19/90 for defts to respond to motion for enforcement of State Plan of Compliance [978-1]; granting extension until 3/19/90 for defts to respond to motion for relief [978-2]; granting extension of time until 3/19/90 for defts to respond to motion clarification [978-3]; denying defts' Motion for Extension of Time to File Responses to Motion to Compel Production of Documents [992]; denying request for adjournment of 3/16/90 hearing (cc: all counsel) (rlw) (Entered: 03/26/1990)
PROCEEDING before Magistrate Doyle A. Rowland; granting Amicus' Motion to Compel; deft shall produce a copy of most recent draft internal audits as requested; deft may redact any individual names from audits; Amicus may use audits solely for purpose of testing accuracy of the

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 36 of 143

03/16/1990 03/16/1990 03/16/1990
03/16/1990 03/16/1990 03/16/1990 03/16/1990
03/16/1990 03/19/1990 03/19/1990 03/19/1990

summaries (rlw) (Entered: 03/27/1990)
1028 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to motion to modify date for accreditation of Duane Waters Mental Health Facility by the Joint Commission on Accreditation of Hospitals (JCAHO) (to amend) [1000-1] w/Certificate of Service (rlw) (Entered: 03/27/1990)
1029 MEMORANDUM in response by plaintiff to defts' motion for modification of fire and safety requirements contained within the consent decree (to amend) [996-1] w/attached Certificate of Service (rlw) (Entered: 03/27/1990)
1030 RESPONSE by plaintiff to motion to modify dates for architect selection and planning funds released by the joint capital outlay subcommittee (JCOS) [980-1], motion for order authorizing implementation of mental health immediate care and quality assurance plan [979-1] (rlw) (Entered: 03/27/1990)
1031 RESPONSE by plaintiff to defts motion for Modification of Shower Provision Contained w/in the Consent Decree [965-1] (rlw) (Entered: 03/27/1990)
1032 RESPONSE by plaintiff to Knop Amicus motion for enforcement of State Plan of Compliance [978-1], defts' motion to modify completion dates for renovation projects in the decree's sanitation crowding/protection provisions [981-1] (rlw) (Entered: 03/27/1990)
1033 TRANSCRIPT filed of Arguments, Contempt Hearing, Ruling held 1/16/90 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 03/27/1990)
1034 ORDER (2 pages) by Magistrate Doyle A. Rowland granting Knop Amicus' motion to compel Production of Documents; deft shall produce a copy of the most recent draft internal audits for medical care, mental health care, and dental care, on or before 3/23/90; deft may redact any individual names from the medical audits [992-1] (cc: all counsel) (rlw) (Entered: 03/27/1990)
1035 ORDER (1 pages) by Magistrate Doyle A. Rowland setting for hearing before Magistrate Doyle A. Rowland pltf USA's motion for protective order relating to the stipulated order of 1/16/90 [1016-1]; at 10:00 on 3/27/90 (cc: all counsel) (rlw) (Entered: 03/27/1990)
1036 OPPOSITION by amicus Natl Prisn Proj ACLU, MI ACLU to defts' motion to modify completion dates for renovation in the decree's sanitation and crowding/protection provisions [981-1] w/attached Proof of Service (rlw) (Entered: 03/27/1990)
1037 RESPONSE in Opposition by amicus Natl Prisn Proj ACLU, MI ACLU to defts' motion in limine of 1989 Building and Trade Inspections [975-1] w/attached Proof of Service (rlw) (Entered: 03/27/1990)
1038 RESPONSE by intervenor-plaintiffs Haddix, to pltf's motion for further relief as to Paragraph D of the Consent Decree for an order to insure

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 37 of 143

03/19/1990 03/19/1990 03/19/1990 03/19/1990
03/19/1990 03/19/1990 03/19/1990

adequate security in the industries area at SPSM [976-1] w/Exhibits A-B w/stamped proof of service (rlw) (Entered: 03/27/1990)
1039 RESPONSE in Opposition by intervenor-plaintiffs Haddix, to defts' motion for modification of fire and safety requirements contained within the consent decree (to amend) [996-1] w/stamped proof of service (rlw) (Entered: 03/27/1990)
1040 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/27/1990)
1041 ORDER (1 pages) by Judge Richard A. Enslen in accordance w/Opinion denying defts' motion in limine of 1989 Building and Trade Inspections [975-1]; defts shall submit a list of the deficiencies identified in the Building Trades Inspections which have been corrected, those which they intend to correct and the date by which such correction will be made by 3/27/90 (cc: all counsel) (rlw) (Entered: 03/27/1990)
1042 ORDER (3 pages) by Judge Richard A. Enslen taking under advisement until 10/10/90 motion to modify defts' Epidemiological contagions plan [940-1]; granting defts' motion to modify date for accreditation of Duane Waters Mental Health Facility by the Joint Commission on Accreditation of Hospitals (JCAHO) (to amend) [1000-1]; taking under advisement until 4/1/91 hearing defts' motion for modification of fire and safety requirements contained within the consent decree (to amend) [996-1]; denying Knop amici's motion to modify reporting requirements in orders of 4/24/89 and 1/29/87 re of an official to monitor progress of fire safety, sanitation construction, repair projects [993-1]; granting Knop Amici's motion for enforcement of State Plan of Compliance [978-1] defts must submit to the Court, the parties and the Independent Expert by 3/27/90 schedule for compliance w/ the portion of the Court's 1/24/90 Order which requires defts to provide population projections in their Mental Health Program Statement; defts shall submit to the Court, the Independent Expert and the parties by 3/27/90 the most recent documentation, such as audits, inspections and plans, as to the toxic waste conditions at SPSM, defts shall make available at the 4/1990 hearing an employee of the MI Dept. of Natural Resources [978]; granting defts' motion for order authorizing implementation of mental health immediate care and quality assurance plan [979-1] (cc: all counsel) (rlw) (Entered: 03/27/1990)
1043 BRIEF in Opposition by defendants to Knop Amicus' motion to enforce food loaf order [993-2] w/stamped Proof of Service (rlw) (Entered: 03/27/1990)
1044 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification [978-3] for Order correcting deficiencies discovered in the Building Trade Inspections w/stamped proof of service (rlw) (Entered: 03/27/1990)
1045 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification [978-3] concerning exercise w/stamped

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 38 of 143

03/19/1990 03/19/1990 03/20/1990 03/21/1990 03/22/1990 03/22/1990 03/22/1990 03/23/1990 03/26/1990 03/26/1990
03/26/1990 03/26/1990 03/26/1990

proof of service (rlw) (Entered: 03/27/1990)
1046 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification of the definition of inclement weather [9783] w/stamped proof of service (rlw) (Entered: 03/27/1990)
1047 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification [978-3] concerning access to Consent Decree Related Documents w/stamped proof of service (rlw) (Entered: 03/27/1990)
1048 NOTICE by defendants that post secondary education programs will not be offered for sping & summer terms of l990 (rlw) (Entered: 03/27/1990)
1049 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification [978-3] concerning disposal of Toxic Waste w/Exhibits 1-4 w/stamped proof of service (rlw) (Entered: 03/27/1990)
1050 OBJECTIONS by defendants to order of 3/16/90 which requires defts to produce the most recent draft internal audits for medical care, mental health care, and dental care on or before 3/23/90 [1034-1] w/attachment (rlw) (Entered: 03/27/1990)
1050 MOTION by defendants to stay Magistrate's Order of 3/16/90 which requires defts to produce the most recent draft internal audits for medical care, mental health care, and dental care, or or before 3/23/90 w/supporting statement w/attachment (rlw) (Entered: 03/27/1990)
1051 BRIEF in Opposition by defendants to Knop Amicus' motion for relief [978-2], motion clarification [978-3] w/stamped proof of service (rlw) (Entered: 03/27/1990)
1052 RESPONSE by defendants to Independent Expert Report [934-1] (rlw) (Entered: 03/27/1990)
1053 PROOF OF SERVICE by defendants for pldg. No. 1050 (rlw) (Entered: 03/27/1990)
1054 REPLY Brief in Support (SUPPLEMENT) by amicus Natl Prisn Proj ACLU and MI ACLU re motion to modify reporting requirements in orders of and 1/29/87 re designation of an official to monitor progress of fire safety, sanitation construction, repair projects [993-1], re motion to enforce food loaf order [993-2] w/attachment w/certificate of service (rlw) (Entered: 03/27/1990)
1055 REPLY Brief by amicus Natl Prisn Proj ACLU and MI ACLU to response to motion for relief [978-2], motion clarification [978-3] w/Attachments 1-2 w/Certificate of Service (rlw) (Entered: 03/27/1990)
1056 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for protective order relating to the stipulated of 1/16/90 [1016-1] w/certificate of service w/Attachments 1-4 (rlw) (Entered: 03/27/1990)
1057 PETITION FOR WRIT OF HABEAS CORPUS AD

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 39 of 143

03/26/1990
03/26/1990
03/26/1990 03/26/1990 03/27/1990 03/27/1990 03/27/1990 03/27/1990 03/28/1990
03/28/1990

PROSEQUENDUM ( 3 pages) as to prisoners John Ford at South Complex, T. Jon Spytma at Egeler Facility, Romando Valeroso at Western Wayne Correctional Facility by Amicus w/Memorandum in Support w/certificate of service. Writ issued and returned to rep for service (rlw) (Entered: 03/27/1990)
1058 MOTION by defendants to extend time to comply with Court Order of 3/19/90 re the development of a Section K Plan on hazardous waste, a schedule for population projections dealing w/the Mental Health Program and the Building Trades Inspection Reports w/Brief w/stamped proof of service (rlw) (Entered: 03/28/1990)
1059 MOTION by defendants to exceed page limitation to file Brief in support of Emergency Motion to Stay Court's Classification and Population Projections Orders w/proposed Motion for Stay Pending Appeal w/Brief in Support w/Affidavits of Robert Brown, Jr., William J. Leach, Terrence H. Murphy, Dan L. Bolden (rlw) (Entered: 03/28/1990)
1060 MOTION by defendants to stay Pending Appeal of Courts Order of 1/24/90 re contempt w/Brief w/Affidavit of Robert Brown, Jr. w/stamped proof of service (rlw) (Entered: 03/28/1990)
1061 BRIEF in Opposition by defendants to pltf's motion for protective order relating to the stipulated order of 1/16/90 [1016-1] w/Exhibits 1-2 w/stamped proof of service (rlw) (Entered: 03/28/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to T. Jon Spytma to appear before Judge Enslen on 4/19, 20, 21, l990 at 8:30 a.m. (rlw) (Entered: 03/28/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to John Ford to appear before Judge Enslen on April 19, 20, 21, l990 at 8:30 a.m. (rlw) (Entered: 03/28/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to Romando Valeroso to appear before Judge Enslen on April 19, 20, 21, l990 at 8:30 a.m. (rlw) (Entered: 03/28/1990)
PROCEEDING before Magistrate Doyle A. Rowland; granting pltf's Motion for Protective Order (#1016) except for Interrogatory #2; Order to follow (rlw) (Entered: 04/05/1990)
1062 BRIEF in Opposition by amicus Natl Prisn Proj ACLU and MI ACLU re objection by defts to order of 3/16/90 which requires defts to produce the most recent draft internal audits for medical care, mental health care, and dental care on or before 3/23/90 [1050-1] w/Certificate of Service w/attachment (rlw) (Entered: 04/05/1990)
1063 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion for protective order relating to the stipulated order of 1/16/90 that pltf need not answer the Interrogatories dated 3/2/90 except Interrogatory No. 2 [1016-1] granting motion for expedited hearing [1016-2] (cc: all counsel) (rlw) (Entered: 04/05/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 40 of 143

03/28/1990 03/28/1990
03/28/1990 03/30/1990 03/30/1990
03/30/1990 03/30/1990 03/30/1990 03/30/1990 04/02/1990

1064 ORDER (1 pages) by Magistrate Doyle A. Rowland granting motion to exceed page limitation to file Brief in support of Emergency Motion to Stay Court's Classification and Population Projections Orders [1059-1] (cc: all counsel) (rlw) (Entered: 04/06/1990)
1065 MOTION by defendants to stay Pending Appeal of the Orders of this Court of 11/3/89, 11/6/89, 1/24/90 directing defts to develop and implement a new classification plan and a plan illustrating how they plan to manage correctional populations projected; maintenance of comlpliance w/provision relating to lprison overcrowding at Decree facilities, implementation of classification and the sufficient treatment capacity for mentally ill prisoners w/Brief in Support w/Affidavit of Robert Brown, Jr, Willilam J. Leach, Terrence H. Murphy, Dan L. Bolden (rlw) (Entered: 04/06/1990)
1066 NOTICE by defendants that joint Capital Outlay Subcommittee has not considered funding of capital projects, despite previous assertions (rlw) (Entered: 04/06/1990)
1067 REPLY Brief by amicus Natl Prisn Proj ACLU and MI ACLU to defts' response to amicus' motion for enforcement of State Plan of Compliance re the Capital Outlay Projects [978] motion for relief [978-2], motion clarification [978-3] w/Certificate of Service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1068 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to extend time to comply with Court Order of 3/19/90 re the development of a Section K Plan on hazardous waste, schedule for population projections dealing w/the Mental Health Program and the Building Trades Inspection Reports [1058-1] w/Certificate of Service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1069 NOTICE by defendants that Affiliation Agreement with Michigan State University re Mental Health Services has failed; new "consortium with Michigan State University, University of Michigan and Wayne State being pursued (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1070 REPORT by defts of March 1990 of the out-of-cell activity survey conducted (STATUS REPORT) (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1071 MOTION by defendants for modification of the 9/29/88 Court Order mandating Michigan State University Contract to accomplish joint faculty/staff positions in defts' Mental Health Care Program (to amend) w/Brief in Support w/Exhibits 1-3 w/stamped Proof of Service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1072 MOTION by defendants for modification of the l/24/90 contempt Order mandating changes in compliance reporting(to amend) w/defts' proposal as to compliance monitor role w/Brief in Support w/Exhibit l w/stamped proof of service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1073 MOTION by amicus Natl Prisn Proj ACLU and MI ACLU for

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 41 of 143

04/02/1990 04/02/1990 04/02/1990 04/03/1990 04/03/1990 04/04/1990 04/04/1990
04/04/1990 04/04/1990
04/04/1990 04/04/1990

preliminary injunction barring the defts from failing to maintain funding for community college and vocational education programs w/Brief in Support w/attachments 1-4 w/Certificate of Service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1074 MOTION by defendants to extend time to comply with the Court's Order of 1/24/90 concerning classification plan w/attachment w/Brief in support w/stamped proof of service (rlw) Modified on 04/06/1990 (Entered: 04/06/1990)
1075 TRANSMISSION FORM showing notice of appeal by defts from the Order of 1/24/90 filed by CCA on 03/27/90 and assigned CCA number 90-1367 (dmh) (Entered: 04/06/1990)
1076 TRANSMISSION FORM showing notice of appeal by defts from the Orders of1/24/90, 11/3/89 and 11/6/89 filed by CCA on 03/27/90 and assigned CCA number 90-1366 (dmh) (Entered: 04/06/1990)
1077 RESPONSE by defendants to Court's Order of 1/24/90 requiring defts to submit a Population Plan no later than 4/2/90 illustrating how defts plan to manage the correctional population projected by the MI Dept. of Corr. Research Div. [956-1] w/attachment (rlw) (Entered: 04/06/1990)
1078 RESPONSE by defendants in compliance w/Order of 3/l9/90 [1042-1] re the present status of the Hazardous Waste issues at SPSM (rlw) (Entered: 04/06/1990)
1079 APRIL 1990 REPORT of the Independent Expert (STATUS REPORT) F. Warren Benton and Donald M. Stoughton - Compliance Evaluation of Proviosions Relating to Fire Safety, Sanitation, Crowding and Protection from Harm and Access to Courts (rlw) (Entered: 04/06/1990)
1080 RESPONSE by plaintiff to defts' motion to extend time to comply with Court Order of 3/19/90 re the development of a Section K Plan on hazardous waste, a schedule for population projections dealing w/the Mental Health Program and the Building Trades Inspection Reports [1058-1] w/Certificate of Service (rlw) (Entered: 04/06/1990)
1081 OPINION (5 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 04/06/1990)
1082 ORDER (2 pages) by Judge Richard A. Enslen that Mag. Rowland's Order of 3/16/90 is Affirmed; granting Knop Amicus' motion to compel Production of Documents [992-1] denying defts' motion to stay Magistrate's Order of 3/16/90 which requires defts to produce the most recent draft internal audits for medical care, mental health care, and dental care, or or before 3/23/90 [1050-1] which has now been extended to 4/9/90 (cc: all counsel) (rlw) (Entered: 04/06/1990)
1083 REPORT (STATUS REPORT) by defendants on the Bulilding Trades Inspections Reports prepared by Thomas D. Kane (rlw) (Entered: 04/06/1990)
1084 ATTACHMENTS (EXHIBITS) by pltf inadvertently omitted from their

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 42 of 143

04/05/1990 04/05/1990 04/05/1990 04/05/1990 04/05/1990 04/06/1990 04/06/1990
04/06/1990 04/06/1990
04/09/1990 04/09/1990

Opposition to defts' Motion to Modify Consent Decree Provision Mandating Two-hour Fire Separation Between Cellblocks [1013] (rlw) (Entered: 04/06/1990)
1085 AMENDMENT by amicus to motion for preliminary injunction barring the defts from failing to maintain funding for community college and vocational education programs [1073-1] (rlw) (Entered: 04/06/1990)
1086 PROOF OF SERVICE by amicus for discovery materials (rlw) (Entered: 04/06/1990)
1087 QUARTERLY REPORTS (STATUS REPORT) by defendants re overcrowding, new mental health facility, mental health beds, progress toward accreditation by JCAHO (rlw) (Entered: 04/06/1990)
1088 TRANSCRIPT filed for Show Cause Proceeding held 12/14/89 before Judge Enslen and reported by Jarratt W. Martin (Vol. A) (rlw) (Entered: 04/06/1990)
1089 TRANSCRIPT filed for Show Cause Proceeding held 12/14/89 before Judge Enslen and reported by Jarratt W. Martin (Vol. B) (rlw) (Entered: 04/06/1990)
1090 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 04/06/1990)
1091 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting in part and denying in part defts' motion to extend time to comply with Court Order of 3/19/90 re the development of a Section K Plan on hazardous waste, a schedule for population projections dealing w/the Mental Health Program and the Building Trades Inspection Reports [1058-1]; defts shall supply a schedule for compliance w/required population projections in their Mental Health program statement by 4/16/90 (cc: all counsel) (rlw) (Entered: 04/06/1990)
INFORMATION copy from CCA granting pltf's Motion to Dismiss the appeal 12/4/89; the Notice of Appeal filed on 2/23/90 is timely (dmh) (Entered: 04/06/1990)
1092 RESPONSE by defendants to the Building Trades Reports, listing the deficiencies which defts have corrected, the deficiencies intended to correct and deficiencies not intended to correct [1041-1]; submitted also pursuant to Motion by defts to extend time to comply w/Court Order of 3/19/90 [1058] (rlw) (Entered: 04/09/1990)
1093 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to stay Pending Appeal of Courts Order of 1/24/90 re contempt [1060-1] w/Certificate of Service (rlw) (Entered: 04/09/1990)
1094 REPORT (STATUS REPORT) by defendants of the external food service inspections for the food service facilities at SPSM prepared by Kevin Besey per requirements of the 3/3l/90 Order (rlw) (Entered: 04/12/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 43 of 143

04/09/1990 04/09/1990 04/09/1990 04/09/1990
04/09/1990 04/09/1990 04/09/1990 04/09/1990 04/09/1990 04/09/1990
04/10/1990

1095 RESPONSE by defendants to Court's Order of 3/31/88 w/attached updated list of blanket property restrictions imposed in segregation units (rlw) (Entered: 04/12/1990)
1096 REPORT (STATUS REPORT) by defendants of the March l990 internal food service inspection for the Michigan Reformatory - Inside Food Service Area required by the Court's Order of 3/31/88 (rlw) (Entered: 04/12/1990)
1097 REPORT (STATUS REPORT) by defendants for the revised out of cell activity report replacing the report submitted 3/27/90 (rlw) (Entered: 04/12/1990)
1098 OPPOSITION by plaintiff to defts' motion to stay Pending Appeal of the Orders of this Court of 11/3/89, 11/6/89, 1/24/90 directing defts to develop and implement a new classification plan and a plan illustrating how they plan to manage correctional populations projected; maintenance of compliance w/provision relating to prison overcrowding at Decree facilities, implementation of classification and the sufficient treatment capacity for mentally ill prisoners [1065-1] w/Certificate of Service (rlw) Modified on 09/19/1990 (Entered: 04/12/1990)
1099 MOTION by defendants to compel production of documents w/brief in support w/stamped proof of service w/Exhibits 1-2 (rlw) (Entered: 04/12/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to T. Jon Spytma to appear 4/19/90, 4/20/90 by 8:30 a.m. (rlw) (Entered: 04/12/1990)
WRIT issued as to Romando Valeroso to appear 4/19/90 and 4/20/90 by 8:30 a.m. (rlw) (Entered: 04/12/1990)
WRIT issued as to John Ford to appear 4/19/90 and 4/20/90 by 8:30 a.m. (rlw) (Entered: 04/12/1990)
1100 OPPOSITION by plaintiff to defts' motion to stay Pending Appeal of Courts Order of 1/24/90 re contempt [1060-1] w/certificate of service (rlw) (Entered: 04/12/1990)
1101 MOTION by defendants for stay pending appeal of the 4/4/90 Order requiring defts to provide Knop amicus copies of the recent draft internal audits for medical care, mental health care and dental care no later than 4/9/90 , and/or to extend time in order to comply with the Court's Order of 4/4/90 w/Brief in support w/Affidavit of Robert Brown, Jr. w/attachments w/stamped proof of service (rlw) (Entered: 04/12/1990)
1102 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to stay Pending Appeal of the Orders of this Court 11/3/89, 11/6/89, 1/24/90 directing defts to develop and implement a new classification plan and a plan illustrating how they plan to manage correctional populations projected; maintenance of comlpliance w/provision relating to prison overcrowding at Decree facilities, implementation of classification and the sufficient treatment capacity for

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 44 of 143

04/10/1990
04/10/1990
04/11/1990 04/11/1990
04/11/1990 04/12/1990 04/12/1990 04/13/1990 04/13/1990 04/16/1990
04/16/1990

mentally ill prisoners [1065-1] w/certificate of service (rlw) (Entered: 04/12/1990)
1103 RESPONSE by plaintiff to defts' motion for modification of the 9/29/88 Court Order mandating Michigan State University Contract to accomplish joint faculty/staff positions in defts' Mental Health Care Program (to amend) [1071-1] w/certificate of service (rlw) (Entered: 04/12/1990)
1104 OBJECTIONS by defendants to order [1063] by Mag. Rowland of 3/28/90 granting Motion for Protective Order relating to the stipulated order of l/l6/90 that pltf need not answer the interrogatories dated 3/2/90 except interrogatory No. 2 [1016] granting motion for expedited hearing [1016] w/stamped proof of service (rlw) (Entered: 04/12/1990)
1105 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 04/12/1990)
1106 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion amending Court's Order of 6/30/86 as follows: 1) contact between the Independent Expert, F. Warren Benton and attys involved in this case is permitted at any time 2) Dr. Benton and Don Stoughton shall be compensated at a rate of $85 per hour as of 4/23/90 (cc: all counsel) (rlw) (Entered: 04/12/1990)
1107 NOTICE OF APPEAL by defendants from Dist. Court decision [1082-1] by Judge Enslen affirming Mag. Rowland's Order of 3/16/90 w/stamped Proof of Service (rlw) (Entered: 04/12/1990)
FILING FEE PAID: on 4/12/90 in the amount of $100.00, receipt #36135 for appeal filed 4/11/90. (rlw) (Entered: 04/12/1990)
1108 RESPONSE by defendants to pltf's motion for further relief as to Paragraph D of the Consent Decree for an order to insure adequate security in the industries area at SPSM [976-1] w/attachments w/stamped Proof of Service (rlw) (Entered: 04/17/1990)
1109 RESPONSE by plaintiff to motion to extend time to comply with the Court's Order of 1/24/90 concerning classification plan [1074-1] w/certificate of service (rlw) (Entered: 04/17/1990)
1110 RESPONSE by plaintiffs to defts' motion for modification of the l/24/90 contempt Order mandating changes in compliance reporting(to amend) [1072-1] w/Certificate of Service (rlw) (Entered: 04/17/1990)
1111 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts'motion for modification of the 9/29/88 Court Order mandating Michigan State University Contract to accomplish joint faculty/staff positions in defts' Mental Health Care Program (to amend) [1071-1] w/certificate of service (rlw) (Entered: 04/17/1990)
1112 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to extend time to comply with the Court's Order of 1/24/90 concerning classification plan [1074-1] w/certificate of service (rlw)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 45 of 143

04/16/1990 04/16/1990
04/16/1990
04/16/1990 04/17/1990 04/18/1990 04/18/1990 04/18/1990 04/18/1990 04/18/1990 04/19/1990 04/20/1990

(Entered: 04/17/1990)
Text not available. (Entered: 04/17/1990)
1113 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion for stay pending appeal of the 4/4/90 Order defts to provide Knop amicus copies of the recent draft internal audits for medical care, mental health care and dental care no later than 4/9/90 [1101-1], motion to extend time in order to comply with the Court's Order of 4/4/90 [1101-2] w/attachment w/certificate of service (rlw) (Entered: 04/17/1990)
1114 MOTION by amicus Natl Prisn Proj ACLU and MI ACLU for rejection of population plan submitted by defts on 4/2/90 (order) , and for expedited hearing on the motion to be heard on 4/19/90 w/Brief in support w/certificate of service (rlw) Modified on 09/18/1990 (Entered: 04/17/1990)
1115 Proposed Population Projection Schedule (NOTICE) by defendants as ordered by the Court on 4/6/90 (rlw) (Entered: 04/17/1990)
1116 BRIEF in OPPOSITION by defendants to Knop Amicus' motion for preliminary injunction barring the defts from failing to maintain funding for community college and vocational education programs [1073] w/Exhibits 1-7 w/stamped proof of service (rlw) (Entered: 04/19/1990)
1117 MOTION by defendants in limine to prevent the Knop Amicus from introducing testimony relative to hazardous waste issues in the 4/18, 4/20 1990 hearings w/Brief in support w/Exhibits 1-2 w/stamped Proof of Service (rlw) (Entered: 04/19/1990)
1118 MOTION by defendants for reconsideration and to alter the court's Order of 3/19/90 regarding fire & safety requirements contained w/in the Consent Decree w/Brief in Support w/stamped Proof of Service (rlw) (Entered: 04/19/1990)
1119 EXTERNAL Food Service Report at the Charles Egeler Correctional Facility (STATUS REPORT) by defendants submitted pursuant to 3/31/88 Order of the Court (rlw) (Entered: 04/19/1990)
1120 LETTER to court (Judge Enslen) from defendants advising that the Joint Capitol Outlay Subcommittee for the Michigan Legislature has not decided on the defts' request to release planning funds for the mental health facility (rlw) (Entered: 04/19/1990)
PROCEEDING before Judge Richard A. Enslen; compliance hearing on issues of fire safety, sanitation, crowding and protection from harm and access to courts (rlw) (Entered: 04/26/1990)
PROCEEDING before Judge Richard A. Enslen; compliance hearing on issues of fire safety, sanitation, crowding and protection from harm and access to Courts (rlw) (Entered: 04/26/1990)
PROCEEDING before Judge Richard A. Enslen; complaince hearing on issues of fire safety, sanitation, crowding and protection from harm and

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 46 of 143

04/23/1990 04/26/1990
04/26/1990 04/27/1990 04/27/1990 04/30/1990
05/01/1990 05/01/1990

access to Courts (3 Exhibit sheets attached) (rlw) (Entered: 04/26/1990)
INFORMATION copy from CCA (20 pages) dismissing the appeal filed 10-88 CCA #88-1869 out pldg. #661 (rlw) (Entered: 04/26/1990)
1121 MOTION by defendants for reconsideration of Court's Order of 3/19/90 which takes the defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree under advisement for at least a year, April 1991 , and for relief from Court's Order of 3/19/90 by deciding defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree after the April 1990 hearing (rlw) Modified on 10/03/1991 (Entered: 04/26/1990)
1122 RESPONSE by plaintiff to defts' Objections to the Magistrate's Order of 3/27/90 which grants pltf's Motion for a Protective Order [1104-1] w/Certificate of Service (rlw) (Entered: 04/26/1990)
1123 LETTER to counsel for parties & court from Special Master F. Warren Benton re population projection (rlw) (Entered: 04/30/1990)
1124 LETTER to court from defendants w/attached letter from Robert Brown, Jr., Director of the Michigan Department of Corrections outlining measures to be taken to attempt to deal with the Department's projected budget deficit for the fiscal year 1989-1990 (rlw) (Entered: 04/30/1990)
1125 OPPOSITION by amicus Natl Prisn Proj ACLU and MI ACLU to deft's motion for reconsideration of Court's Order of 3/19/90 which takes the defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree under advisement for at least a year, April 1991 [1121-1], motion for relief from Court's Order of 3/l9/90 by deciding defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree after the April l990 hearing [11212] w/certificate of service (rlw) (Entered: 04/30/1990)
1126 AFFIDAVIT of Paula Anderson w/stamped Proof of Service (rlw) (Entered: 05/01/1990)
1127 ORDER (5 pages) by Judge Richard A. Enslen in accordance w/oral opinion of 4/20/90 granting in part Knop amicus' motion to enforce food loaf order [993-2] granting in part and denying in part Knop amicus' motion for enforcement of the State Plan for Complaince for clarification and for further relief [978-3] denying defts' motion to modify completion dates for renovation projects in the decree's sanitation and crowding/protection provisions [981-1] denying as moot defts' motion to modify dates for architect selection and planning funds released by the joint capital outlay subcommittee (JCOS) [980-1] denying defts' motion for Modification of Consent Decree Provision Mandating a Two-Hour Fire Separation in the Gun Posts [968-1] granting defts' motion for Modification of Shower Provision Contained w/in the Consent Decree [965-1] granting pltfs' motion for further relief as to Paragraph D of the Consent Decree for an order to insure adequate security in the industries area at SPSM [976-1] denying w/o prejudice Knop amicus' motion for preliminary injunction barring the defts from failing to maintain funding

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 47 of 143

05/03/1990 05/04/1990 05/04/1990 05/04/1990 05/07/1990
05/08/1990
05/14/1990 05/15/1990 05/16/1990
05/16/1990 05/16/1990

for community college and vocational education programs [1073-1] (cc: all counsel) (rlw) (Entered: 05/14/1990)
1128 TRANSCRIPT of Order of the Court held 4/20/90 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 05/14/1990)
1129 MOTION by amicus Natl Prisn Proj ACLU and MI ACLU for costs (Bill of Costs) in the amount of $1,443.55 as to appeal dismissed 4/20/90 w/attached Declaration w/Certificate of Service (rlw) (Entered: 05/14/1990)
1130 MOTION by plaintiff for rejection of defts' plan to manage correctional population projections w/Memorandum in Support w/certificate of service (rlw) (Entered: 05/25/1990)
1131 MOTION by plaintiff for rejection of defendants' mental health population projection schedule w/Memorandum in Support w/certificate of service (rlw) (Entered: 05/25/1990)
1132 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' Amended motion for reconsideration of Court's Order of 3/19/90 which takes the defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree under advisement for at least a year, April 1991 [1121-1] w/certificate of service (rlw) (Entered: 05/25/1990)
1133 RESPONSE by plaintiff to deft's amended motion for reconsideration of Court's Order of 3/19/90 which takes the defts' Motion for Modification of Fire and Safety Requirements contained within the Consent Decree under advisement for at least a year, April 1991 [1121-1], motion for relief from Court's Order of 3/l9/90 by deciding defts' Motion for Modification of Fire and Safety Requirements contained within the Decree after the April l990 hearing [1121-2] w/Certificate of Service (rlw) (Entered: 05/25/1990)
1134 ORDER from CCA (2 pages) granting pltfs' Motion to Dismiss the appeal filed 12/4/89 assigned CCA #90-1035 [900-1] (rlw) (Entered: 05/25/1990)
1135 AUDITS conducted by the MI Dept. of Corrections Bureau of Health Care Service re Medical, Administrative, Mental Health and Dental (STATUS REPORT) by defendant (rlw) (Entered: 05/25/1990)
1136 MOTION by amicus Natl Prisn Proj ACLU and MI ACLU for temporary restraining order restraining defts from transferring pltf T.J. Spytma , and for preliminary injunction w/Declaration Under Pain of Perjury by Eliabeth Alexander w/attachment w/Memorandum in Support (rlw) (Entered: 05/25/1990)
1137 OBJECTIONS by defendants to Knop Amicus' motion for costs (Bill of Costs) [1129-1] (rlw) (Entered: 05/25/1990)
PROCEEDING before Judge Richard A. Enslen; re Knop Amicus' motion for temporary restraining order restraining defts from transferring pltf T.J. Spytma [1136-1], re Knop Amicus' motion for preliminary

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 48 of 143

05/17/1990 05/17/1990
05/18/1990
05/18/1990 05/21/1990 05/23/1990 05/29/1990
05/29/1990 05/29/1990 05/31/1990 05/31/1990 06/01/1990 06/04/1990

injunction [1136-2] (rlw) (Entered: 05/26/1990)
Text not available. (Entered: 05/26/1990)
1138 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/oral opinion denying Knop Amicus' motion for temporary restraining order restraining defts from transferring pltf T.J. Spytma [1136-1] denying Knop Amicus' motion for preliminary injunction [1136-2] (cc: all counsel) (rlw) (Entered: 05/29/1990)
1139 OPPOSITION by defendants to pltf's motion for rejection of defendants' mental health population projection schedule [1131-1] and defts' fPlan to Manage Correctional Population Projections [1130-1] w/Exhibits 1-2 w/attached Proof of Service (rlw) Modified on 05/29/1990 (Entered: 05/29/1990)
1145 NOTICE by defendants of taking de benne esse deposition of Warden John Jabe on 5/30/90 at 1 p.m. in Jackson, MI (rlw) (Entered: 06/19/1990)
1140 TRANSMISSION FORM showing defts' Notice of Appeal, pldg. #ll07, filed by CCA on 5/l4/l90 and assigned LCCA No. 90-l537 (rlw) (Entered: 05/29/1990)
1141 REPLY to Objections by amicus Natl Prisn Proj ACLU and MI ACLU re Bill of Costs [1129-1] w/attachment w/Certificate of Service (rlw) (Entered: 05/29/1990)
1142 REPLY BRIEF by amicus Natl Prisn Proj ACLU and MI ACLU regarding defts' motion for rejection of defendants' mental health population projection schedule [1131-1], regarding defts' motion for rejection of defts' plan to manage correctional population projections [1130-1] w/attachment w/certificate of service (rlw) (Entered: 05/29/1990)
1143 RENOTICE by defendants of taking de benne esse deposition of Warden John Jabe on 6/19/90 @ 9 a.m. in Jackson, MI w/stamped proof of service (rlw) (Entered: 05/29/1990)
1144 1989 Dental Audit Reports (STATUS REPORT) by defendants as required in State Plan for Compliance (rlw) (Entered: 05/29/1990)
1146 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) by defendant at the Michigan Reformatory for the month of May, l990 (rlw) (Entered: 06/19/1990)
1147 NOTICE OF APPEAL by defendants from Dist. Court decision of 5/1/90 [1127-1] w/Proof of Service (rlw) (Entered: 06/19/1990)
1148 NOTICE by defendant of taking de benne esse deposition of Warden John Jabe on 6/l9/90 @ 9 a.m. in Jackson, MI w/stamped Proof of Service (rlw) (Entered: 06/19/1990)
1149 PROOF OF SERVICE by defendants for Objections to Knop Amicus'

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 49 of 143

06/04/1990 06/04/1990 06/05/1990 06/05/1990
06/06/1990 06/06/1990 06/06/1990 06/06/1990 06/07/1990 06/07/1990 06/11/1990 06/12/1990

Interrogatories (rlw) (Entered: 06/19/1990)
1150 OPINION (4 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)
1151 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting in part defts' motion to extend time to comply with the Court's Order of 1/24/90 concerning classification plan [1074-1] (cc: all counsel) (rlw) (Entered: 06/19/1990)
1152 TRANSCRIPT filed of hearing for Knop Amicus' Motion to Compel Production of Document held 3/l6/90 before Mag. Rowland and recorded by Sharon Seaton and transcribed by Nancy E. Gass, CER (rlw) (Entered: 06/19/1990)
1153 ORDER (2 pages) by Judge Richard A. Enslen directing parties to comply as follows: motions and responses filed shall deal w/only one subject matter and shall contain one request; motion titles shall contain the name of the party filing the motion; responses to motions shall contain the name of the party filing the response and shall repeat verbatim the title of the orig. motion (cc: all counsel) (rlw) (Entered: 06/19/1990)
1154 MOTION by plaintiff for order to assign specific deadlines by which defts must submit the three Section K plans ordered on 5/l/90 w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 06/19/1990)
1155 TRANSCRIPT filed for Court's Ruling on Motions Prior to Conference w/Independent Expert held on 4/l8/90 before Judge Enslsen and reported by Jarratt W. Martin (rlw) (Entered: 06/19/1990)
1156 TRANSCRIPT filed of Compliance hearing held 4/l9/90 before Judge Enslen and reported by Jarratt W. Martin (Vol. I) (rlw) Modified on 06/19/1990 (Entered: 06/19/1990)
1157 TRANSCRIPT filed for Compliance hearing held 4/l9/90 and 4/20/90 before Judge Enslen and reported by Jarratt W. Martin (Vol. II) (rlw) (Entered: 06/19/1990)
1158 NOTICE by defendant of taking de benne esse deposition of Warden John Jabe on 6/25/90 @ 2 p.m. in Jackson, MI (rlw) (Entered: 06/19/1990)
1159 MOTION by plaintiff to modify the fee arrangement for the Independent Expert (amend) w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 06/19/1990)
1160 COMPLIANCE REPORT Semi Annual (STATUS REPORT) by defendants (rlw) (Entered: 06/19/1990)
1161 OPINION (6 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 50 of 143

06/12/1990
06/12/1990 06/12/1990 06/12/1990 06/13/1990 06/13/1990 06/13/1990 06/15/1990 06/15/1990 06/15/1990 06/15/1990
06/18/1990

1162 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting pltf's motion for rejection of defendants' mental health projection schedule [1131-1] granting pltf's motion for rejection of defts' plan to manage correctional population [1130-1] granting Knop Amicus's motion for rejection of population plan submitted by defts on 4/2/90 (order) [1114-1]; defts shall submit a revised mental health program statement and a revised prison population management plan as specified in the opinion accompanying this order (cc: all counsel) (rlw) (Entered: 06/19/1990)
1163 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)
1164 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion denying defts' motion for modification of the l/24/90 contempt Order mandating changes in compliance reporting(to amend) [1072-1] (cc: all counsel) (rlw) (Entered: 06/19/1990)
1165 ORDER (2 pages) by Judge Richard A. Enslen denying the objection by defts [1104-1] as moot. (cc: all counsel) (rlw) (Entered: 06/19/1990)
FILING FEE PAID: on 5/31/90 in the amount of $105.00, receipt #13044. (rlw) (Entered: 06/19/1990)
MAILED Transcript Order Form to appellant's atty; court reporter and judge notified of appeal; all attys notified of appeal. (rlw) (Entered: 06/19/1990)
Mailed Information Copies to CCA (Remark) (rlw) (Entered: 06/19/1990)
1166 OPINION (8 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)
1167 ORDER (2 pages) by Judge Richard A. Enslen denying defts' emergency motion to stay Pending Appeal of Courts Order of 1/24/90 re contempt [1060-1] (cc: all counsel) (rlw) (Entered: 06/19/1990)
1168 OPINION (8 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)
1169 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/opinion denying defts' motion to stay Pending Appeal of the Orders of this Court of 11/3/89, 11/6/89, 1/24/90 directing defts to develop and implement a new classification plan and a plan illustrating how they plan to manage correctional populations projected; maintenance of comlpliance w/provision relating to lprison overcrowding at Decree facilities, implementation of classification and the sufficient treatment capacity for mentally ill prisoners [1065-1] (cc: all counsel) (rlw) (Entered: 06/19/1990)
1170 LETTER to court from defendant Michigan Dept. Cor. advising that that the regular schedule of community and four year college classes have been reinstated for the Summer Term of l990 in all Michigan Department

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 51 of 143

06/19/1990 06/19/1990 06/19/1990 06/19/1990 06/19/1990
06/26/1990 06/26/1990
06/27/1990 06/29/1990 07/02/1990 07/02/1990 07/02/1990

of Correction facilities (rlw) (Entered: 06/19/1990)
1171 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion to modify the fee arrangement for the Independent Expert (amend) [1159-1] w/certificate of service (rlw) (Entered: 06/19/1990)
1172 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for order to assign specific deadlines by which defts must submit the three Section K plans ordered on 5/l/90 [1154-1] w/Certificate of Service (rlw) (Entered: 06/19/1990)
1173 STATUS of Compliance with the development schedule for the new mental health facility (STATUS REPORT) by defendant Michigan Dept. Cor. (rlw) (Entered: 06/19/1990)
1174 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/19/1990)
1175 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting defts' motion for modification of the 9/29/88 Court Order mandating Michigan State University Contract to accomplish joint faculty/staff positions in defts' Mental Health Care Program (to amend) [1071-1] (cc: all counsel) (rlw) (Entered: 06/19/1990)
1176 NOTICE by defendants of taking deposition of Warden John Jabe on 7/20/90 @ l0 a.m. in Jackson, MI w/stamped Proof of Service (rlw) (Entered: 06/26/1990)
1177 LETTER to court from defendant Michigan Dept. Cor. by Barbara J. Hladki, Consent Decree Coordinator re the postponement of the JCAHO Accreditation survey of the Waters Hospital and health services at the State Prison of Southern Michigan and the Egeler Correctional Facility (rlw) (Entered: 06/26/1990)
1178 MONITORING REPORT Semi-annual (STATUS REPORT) by defendant on the medical and mental health training for the MI Dept of Corrections (rlw) (Entered: 06/27/1990)
1179 LETTER to court from defendant Michigan Dept. Cor. by Barbara J. Hladki re Civil Service Hiring Freez imposed on all State Departments (rlw) (Entered: 06/29/1990)
1180 TRANSCRIPT filed of Arguments on Request of Amicus for Greater Authority held 4/30/87 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 07/11/1990)
1181 TRANSCRIPT filed of Hearing on Mental Health Care Plan of State of Michigan held 2/13/86 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 07/11/1990)
1182 QUARTERLY REPORTS (STATUS REPORT) by defendant Michigan Dept. Cor. re the new mental health facility, overcrowding and population projections, JCAHO accreditation, development of the Intermediate Care Program (ICP) (rlw) (Entered: 07/11/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 52 of 143

07/02/1990
07/02/1990
07/02/1990
07/05/1990 07/05/1990 07/05/1990 07/06/1990 07/09/1990 07/09/1990 07/09/1990 07/09/1990 07/09/1990 07/10/1990

1183 ORDER from CCA granting defts' motion for stay pending appeal until further Order of the Court [ll0l-l]; also ORDERED defts' Motion for Stay will be heard on 7/26/90 at 1:30 p.m. by 6th Circuit Court of Appeals (rlw) (Entered: 07/11/1990)
1184 MOTION by defendants to Modify Fee Arrangement to Assign Equal Responsibility to Pay for Independent Experts' Fees Amongst pltf, Knop Amicus and defts (to amend) w/Brief in Support w/stamped Proof of Service (rlw) (Entered: 07/11/1990)
1185 MOTION by defendants to file brief instanter (to extend time) w/Brief in Support w/Affidavit of Susan Przekop-Shaw w/Proposed defts' Brief in Opposition to pltf's Motion to Assign Specific Deadlines for the Section K Plans Ordered on 5/l/90 w/stamped Proof of Service (rlw) (Entered: 07/11/1990)
1186 NOTICE OF APPEAL by defendants from Dist. Court decision of 6/12/90 Opinion and Order pldg. Nos. [ll62] and [1161-1] (rlw) (Entered: 07/12/1990)
FILING FEE PAID: on 7/5/90 in the amount of $105.00, receipt #36315. (rlw) (Entered: 07/12/1990)
1187 INSPECTION REPORT - six month of the South Complex Food Service Facility at SPSM performed by Kevin Beasey (STATUS REPORT) by defendant Michigan Dept. Cor. (rlw) (Entered: 07/12/1990)
1188 OPPOSITION by Knop amicus to defts' motion to file brief instanter (to extend time) [1185-1] w/Certificate of Service (rlw) (Entered: 07/12/1990)
1189 TRANSMISSION FORM showing notice of appeal pldg. #1147, filed by CCA on 06/26/90 and assigned CCA number 90-1701 (dmh) (Entered: 07/14/1990)
1190 MANDATE from Sixth Circuit Court of Appeals dismissing the appeal filed in the district court on 8/10/88, pldg. #661, assigned CCA no. 881869, for lack of jurisdiction (dmh) (Entered: 07/14/1990)
1191 SLIP OPINION from CCA in accordance with Mandate of 7/9/90 (dmh) (Entered: 07/14/1990)
RECORD on Appeal returned from CCA re: CCA appeal no. 88-1869 (dmh) (Entered: 07/14/1990)
1192 LETTER from Clerk of the Sixth Circuit Court of Appeals asking that the entire record in this case be sent to Cincinnati, OH for oral argument set for 7/26/90 (dmh) (Entered: 07/14/1990)
1193 (BRIEF IN) RESPONSE Knop by amicus Natl Prisn Proj ACLU, amicus MI ACLU to defts' motion to Modify Fee Arrangement to Assign Equal Responsibility to Pay for Independent Experts' Fees Amongst pltf, Knop Amicus and defts (to amend) [1184-1] (dmh) (Entered: 07/14/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 53 of 143

07/10/1990
07/10/1990 07/12/1990
07/16/1990 07/16/1990 07/18/1990 07/19/1990 07/20/1990
07/25/1990 07/26/1990 07/27/1990 07/27/1990
07/27/1990
07/27/1990

1194 REPLY BRIEF by Knop amicus Natl Prisn Proj ACLU, amicus MI ACLU to defts' proposed Brief [1185-1] in opposition of (sic) pltf's Motion to assign specific deadlines for the Section K plans ordered on May 1, 1990 (dmh) (Entered: 07/14/1990)
1195 PROOF OF SERVICE for pldgs. 1193 and 1194 (dmh) (Entered: 07/14/1990)
1196 OPPOSITION by plaintiff USA to defts' motion to Modify Fee Arrangement to Assign Equal Responsibility to Pay for Independent Experts' Fees Amongst pltf, Knop Amicus and defts with Certificate of service(to amend) [1184-1] (dmh) (Entered: 07/14/1990)
MAILED Transcript Order Form to appellant's atty; court reporter and judge notified of appeal; all attys notified of appeal. (dmh) (Entered: 07/30/1990)
1197 LETTER to court from defendant Michigan Dept. Cor. re: Reports of the Quarterly out of cell activity survey (dmh) (Entered: 07/30/1990)
1198 TRANSCRIPT ORDER Form from appellant's atty (from appeal filed 5/31/90) ordering transcript from the compliance hearing held on April 18 19 and 20 1990 (dmh) (Entered: 07/30/1990)
MAILED record on appeal to CCA (dmh) (Entered: 07/30/1990)
1199 LETTER to court from defendant Michigan Dept. Cor. Re: JCAHO Accreditation Survey for Duane L. Waters Hospital and the clinical complex at the State Prison of Southern Michigan has been re-scheduled for August 13 and 14, 1990 (dmh) (Entered: 07/30/1990)
1200 LETTER to court from defendant Michigan Dept. Cor. Re: Action Plan updating Prison Population Projections (dmh) (Entered: 07/30/1990)
1207 TRANSCRIPT, VOLUME III, of hearing held on 4/20/90 before Judge Enslen; Jarratt Martin, court reporter (dmh) (Entered: 07/30/1990)
1201 TRANSMISSION FORM showing Record on appeal (appeal filed in the district court on 12/4/89) filed by CCA on 07/24/90 and assigned CCA number 90-1035 (dmh) (Entered: 07/30/1990)
1202 TRANSMISSION FORM showing Record on appeal (appeal filed in district court on 2/23/90 from the contempt order of 1/24/90) filed by CCA on 07/24/90 and assigned CCA number 90-1367 (dmh) (Entered: 07/30/1990)
1203 TRANSMISSION FORM showing Record on appeal (appeal filed in district court on 2/23/90 from the orders of 1/24/90, 11/3/89 and 11/6/89) filed by CCA on 07/24/90 and assigned CCA number 90-1366 (dmh) (Entered: 07/30/1990)
1204 TRANSMISSION FORM showing Record on appeal (appeal filed in district court on 4/11/90) filed by CCA on 07/24/90 and assigned CCA number 90-1537 (dmh) (Entered: 07/30/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 54 of 143

07/27/1990 07/27/1990 07/27/1990 07/30/1990
07/30/1990 07/30/1990 07/31/1990 08/01/1990 08/06/1990 08/06/1990 08/07/1990
08/08/1990 08/09/1990 08/09/1990 08/09/1990

1205 TRANSMISSION FORM showing Record on appeal (appeal filed in district court on 5/31/90) filed by CCA on 07/24/90 and assigned CCA number 90-1701 (dmh) (Entered: 07/30/1990)
1206 TRANSMISSION FORM showing Record on appeal (appeal filed in district court on 7/5/90) filed by CCA on 07/24/90 and not assigned a CCA number (dmh) (Entered: 07/30/1990)
FAXED COPY of Order from CCA continuing the stay; original forthcoming (dmh) (Entered: 07/30/1990)
1208 MOTION by defendants' to Modify (to amend) the State's Plan Provision pertaining to self-contained breathing apparatus equipment, Brief in Support, attachment and proof of service (dmh) Modified on 07/31/1990 (Entered: 07/31/1990)
1209 LETTER to court from defendant Michigan Dept. Cor. RE: Out of Cell Activity Report (dmh) (Entered: 07/31/1990)
1210 TRANSCRIPT ORDER Form from appellant's atty indicating transcript is already on file in the Clerk's Office (dmh) (Entered: 07/31/1990)
1211 LETTER to court from defendant Michigan Dept. Cor. responding to an article in the Corrections Digest regarding assaults in the Michigan prison system (dmh) (Entered: 08/02/1990)
1212 LETTER to court from defendant Michigan Dept. Cor. Re: Prison Industry Improvements-State Prison of Southern Michigan (dmh) (Entered: 08/03/1990)
MAILED pldg. #1207 to CCA as a supplement to the record on appeal (dmh) (Entered: 08/06/1990)
1213 REPORT by defendant Michigan Dept. Cor. of Monthly Housing for the month of July 1990 (dmh) (Entered: 08/08/1990)
1214 ORDER (2 pages) by Judge Richard A. Enslen directing pltf and amici to file responses to defts' Motion to Modify the State Plan's Provision, pldg. #1208, within the normal time allowed; this court cannot take action on any pending motion in light of the fact that this case is on appeal (cc: all counsel by ra) (dmh) (Entered: 08/14/1990)
1215 LETTER to court from defendant Michigan Dept. Cor. RE: Funding for Educational Programs with attached letter from Governor Blanchard (dmh) (Entered: 08/14/1990)
1216 TRANSMISSION FORM showing notice of appeal, filed in the district court on 7/5/90, was filed by CCA on 07/27/90 and assigned CCA number 90-1796 (dmh) (Entered: 08/14/1990)
1217 PROOF OF SERVICE showing defts' response to Knop Amicus Interrogatories were served by mail (dmh) (Entered: 08/14/1990)
PROCEEDING before Judge Richard A. Enslen; Telephone Conference re: Psychiatric Care Tour at Huron Valley (dmh) (Entered: 08/20/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 55 of 143

08/14/1990
08/15/1990 08/16/1990 08/16/1990 08/16/1990 08/16/1990 08/20/1990 08/20/1990 08/24/1990 08/27/1990 08/27/1990 08/29/1990

1218 ORDER (2 pages) by Judge Richard A. Enslen that pltf, defts and amici agree to the following changes; expert reports shall be filed by 8/29/90, all motions shall be filed by 9/5/90 and all responses to motions shall be filed by 9/19/90 (cc: all counsel by dmm) (dmh) Modified on 08/30/1990 (Entered: 08/29/1990)
1219 RESPONSE by Knop amicus to defts' motion to Modify (to amend) the State Plans Provision pertaining to self-contained breathing apparatus equipment and Certificate of Service [1208-1] (dmh) Modified on 08/30/1990 (Entered: 08/20/1990)
1220 PROOF OF SERVICE showing a copy of defts' amended response to Knop Amicus interrogatories were served on opposing counsel (dmh) Modified on 08/30/1990 (Entered: 08/20/1990)
1221 TRANSCRIPT of Telephone Conference held 8/9/90 before Judge Enslen re Psychiatric Care Tour of Huron Valley; J. Martin, court reporter (dmh) Modified on 08/30/1990 (Entered: 08/20/1990)
1222 LETTER to court from defendant Michigan Dept. Cor. re: Administration of Medication Training Module (dmh) Modified on 08/30/1990 (Entered: 08/20/1990)
1223 LETTER to court from defendant Michigan Dept. Cor. Re: Vacant Positions (dmh) Modified on 08/30/1990 (Entered: 08/20/1990)
1224 CHANGE OF ADDRESS by amicus Elizabeth Alexander and Adjoa A. Aiyetoro (Natl Prisn Proj ACLU) effective as of 9/14/90; new phone numbers effective the same date; with Certificate of Service (dmh) Modified on 08/30/1990 (Entered: 08/29/1990)
1225 REQUEST by defendant State of Michigan for extension of time deadlines for motions and response to motions pertaining to the October hearings (dmh) Modified on 08/30/1990 (Entered: 08/29/1990)
1226 RESPONSE by Amicus Hadix to defts' motion to Modify (to amend) the State Plan's Provision pertaining to self-contained breathing apparatus equipment [1208-1] and proof of service (dmh) Modified on 08/30/1990 (Entered: 08/28/1990)
1227 ACKNOWLEDGEMENT OF RECEIPT from CCA of transcript, pldg. 1207, as a supplement to the record on appeal (dmh) Modified on 08/30/1990 (Entered: 08/28/1990)
1228 ORDER (2 pages) by Judge Richard A. Enslen denying defts' request for an extension of time for filing of motions and responses to motions for the upcoming compliance hearings [1225-1] (cc: all counsel) (rlw) (Entered: 09/10/1990)
1229 OCTOBER 1990 REPORT OF THE INDEPENDENT EXPERT F. Warren Benton (Draft) (STATUS REPORT) pursuant to 11/6/89 Order of the Court; Compliance Evaluation of Provisions Relating to Medical Care and Mental Health Care (rlw) (Entered: 09/10/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 56 of 143

08/29/1990 08/29/1990 08/29/1990
08/31/1990 08/31/1990 08/31/1990 08/31/1990 09/05/1990 09/05/1990 09/05/1990 09/05/1990 09/05/1990

1230 COMMENTS (RESPONSE) by amicus Natl Prisn Proj ACLU, MI ACLU to the October l990 Report of the Independent Experts Relating to Health Care [1229-1] w/Exhibits A-E w/stamped Proof of Service (rlw) (Entered: 09/10/1990)
1231 EXPERT REPORTS (STATUS REPORT) by plaintiff USA of Dr. Charles Braslow (medical) and Dr. Jeffrey Metzner (psychiatric) for the upcoming hearing (rlw) (Entered: 09/10/1990)
1232 EXPERT WITNESS REPORTS (STATUS REPORT) by defendants of Dr. Stephen Hucker on Mental Health; Dr. Richard Wilbur on Medical Health; Dr. Craig Hutchinson on AIDS; Jackie Tietelbaum, R.N. on Medical Access (Kite) for the upcoming hearing (rlw) (Entered: 09/10/1990)
1233 TRANSCRIPT filed of Deposition of John Jabe held 7/20/90 at 10:00 a.m. in Jackson, MI; reported by Mary T. Castanier, CSR and Notary Public (rlw) (Entered: 09/10/1990)
1234 MOTION to appear as participating amicus by the National Alliance for the Mentally Ill and the Michigan Alliace for the Mentally Ill w/Memorandum in Support w/attached Notice of Hearing w/attached Proof of Service (rlw) (Entered: 09/10/1990)
1235 PROPERTY RESTRICTIONS Report (STATUS REPORT) by defendants per Court Corder dated 3/31/1988 applied in administrative segregation and detention units (rlw) (Entered: 09/10/1990)
RECORD on Appeal returned from CCA (rlw) (Entered: 09/10/1990)
1236 MOTION by plaintiff for enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan as required in the Consent Decree and State Plan w/Memorandum in Support w/Certificate of Service w/attachment A-E (rlw) (Entered: 09/10/1990)
1237 REQUEST by plaintiff to Postpone Consideration of the defts' Epidemic Contagions Plan as it Relates to the Work and Living Assignments of HIV Positive Inmates w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 09/10/1990)
1238 MOTION by plaintiff for order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the 1/16/90 Stipulation w/Memorandum in Support w/Certificate of Service w/Attachments A-D (rlw) (Entered: 09/10/1990)
1239 MOTION by plaintiff for specific enforcement of Staffing Requirements for defts' Mental Health Units w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 09/10/1990)
1240 MOTION by plaintiff for order to Show Cause Why defts Should Not Be Held in Contempt for Failure to Comply with Schedule to Construct New mental Health Hospital w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 09/10/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 57 of 143

09/05/1990 09/05/1990 09/05/1990 09/05/1990
09/05/1990 09/05/1990 09/05/1990 09/05/1990 09/10/1990 09/11/1990 09/12/1990 09/13/1990

1241 MOTION by plaintiff in opposition to defts' Revised Sick Call Access Plan of l2/27/89 and for Specific enforcement of the Sick Call Access Order of 7/27/87 w/Memorandum in Support w/Certificate of Service w/Attachments A-G (rlw) (Entered: 09/10/1990)
1242 MOTION by plaintiff for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units (to enforce) w/Memorandum in Support w/Certificate of Service w/attachments A-C (rlw) (Entered: 09/11/1990)
1243 MOTION by defendants to limit use of the State Auditor General's Report (exclude) w/Memorandum in Support w/stamped Proof of Service (rlw) (Entered: 09/11/1990)
1244 MOTION by defendants to amend JCAHO Application for Riverside Accrediation Survey Date , or to extend JCAHO Application for Riverside Accrediation Survey Date w/Brief in Support w/Exhibits 1-10 w/stamped Proof of Service (rlw) Modified on 09/18/1990 (Entered: 09/11/1990)
1245 MOTION by defendants for Authorization to Implement Treatment Plan for Violent, Mentally Ill Prisoners who Refuse Psychiatric Treatment w/Brief in Support w/stamped proof of service w/attachments (rlw) (Entered: 09/11/1990)
1246 MOTION by defendants for Approval to Train only Custodial Staff who dispense medication at Receiving and Guidance Center w/Brief in Support w/attachment w/stamped proof of service (rlw) (Entered: 09/11/1990)
1247 MOTION by defendants to amend Medical Access Plan w/Brief in Support w/Exhibits A-B w/stamped Proof of Service (rlw) (Entered: 09/11/1990)
1248 MOTION by defendants for Approval to Pursue Adjunctive Psychiatric Inpatient Services w/Brief in Support w/Exhibits 1-5 w/stamped proof of service (rlw) (Entered: 09/11/1990)
1249 ORDER from CCA (2 pages) granting appellants Motion for Stay pending appeal of the District Courts order of 4/4/90 (re: CCA No. 901537) (rlw) (Entered: 09/13/1990)
1250 ORDER (2 pages) by Judge Richard A. Enslen directing defts, pltfs, and litigating amici to file responses to the Nat'l Alliance for the Mentally Ill's motion to appear as participating amicus [1234-1] by 5:00 p.m. on 9/19/90 in Kzoo (cc: all counsel) (rlw) (Entered: 09/13/1990)
1251 NOTICE by defts of taking depositions on 9/24/90 of: Joan Tucker @ 9:00 a.m.; Jeanne Beroza @ 11:00 a.m.; Barbara Hladki @ 1:00 p.m.; Dan Proux @ 3:00 p.m.; Peter Blakely @ 3:45 p.m. w/Attchmt. "A" w/Certif of Svc (dkm) (Entered: 09/17/1990)
1252 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/21/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 58 of 143

09/13/1990 09/13/1990 09/13/1990
09/13/1990 09/13/1990
09/14/1990 09/14/1990 09/17/1990 09/18/1990 09/18/1990 09/18/1990

1253 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting Knop Amicus' motion for costs (Bill of Costs) [1129-1]; defts shall pay to the Knop Amicus the sum of $1,443.55 (cc: all counsel) (rlw) (Entered: 09/21/1990)
1254 OPINION (5 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/21/1990)
1255 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion denying defts' motion for stay pending appeal of the 4/4/90 Order requiring defts to provide Knop amicus copies of the recent draft internal audits for medical care, mental health care and dental care no later than 4/9/90 [1101-1], denying defts' motion to extend in order to comply with the Court's Order of 4/4/90 (cc: all counsel) (rlw) (Entered: 09/21/1990)
1256 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/21/1990)
1257 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting defts' motion for reconsideration and to alter the court's Order 3/19/90 regarding fire & safety requirements contained w/in the Consent Decree [1118-1]; Court's 3/19/90 Order that takes under advisement defts' Motion for Modification of Fire and Safety Requirement Contained w/in the Consent Decree is vacated; defts' Motion for Modification of Fire and Safety Requirements Contained w/in the Consent Decree is denied (cc: all counsel) (rlw) (Entered: 09/21/1990)
1258 LETTER by Judge Enslen to parties re a call to chambers from an unidentified DOC employee concerning the treatment of a mentally ill patient and patient charts that were hidden from inspection team (rlw) (Entered: 09/21/1990)
1259 REPLY by defendants to Draft October 1990 Report of the Independent Expert [1229-1] w/attachments w/stamped proof of service (rlw) (Entered: 09/21/1990)
1260 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ills' motion to appear as participating amicus [1234-1] w/certificate of service (rlw) (Entered: 09/21/1990)
1261 MOTION by defendants for protective order to Prevent pltf's Taking Deposition of Certain defts' Employees w/Brief in support w/Exhibits 1-3 w/stamped proof of service (rlw) (Entered: 09/21/1990)
1262 MOTION by defendants to extend time to pursue discovery and for a postponement of the 10/90 Compliance Hearing (to continue) w/brief in support w/Exhibits 1-3 w/stamped proof of service (rlw) (Entered: 09/21/1990)
1263 ORDER (1 pages) by Judge Richard A. Enslen granting defts motion to file brief instanter (to extend time) [1185-1] (cc: all counsel) (rlw) (Entered: 09/21/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 59 of 143

09/18/1990
09/19/1990 09/19/1990
09/19/1990 09/19/1990
09/19/1990 09/19/1990 09/19/1990 09/19/1990
09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990

1264 OPPOSITION by defendants to pltf's motion for order to assign specific deadlines by which defts must submit the three Section K plans ordered on 5/l/90 [1154-1] w/stamped proof of service (rlw) (Entered: 09/21/1990)
1265 RESPONSE by plaintiff to defts' motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services [1248-1] (rlw) (Entered: 09/21/1990)
1266 RESPONSE by plaintiff to defts' motion to amend JCAHO Application for Riverside Accrediation Survey Date [1244-1], defts' motion to extend JCAHO Application for Riverside Accrediation Survey Date [1244-2] w/attachments (rlw) (Entered: 09/21/1990)
1267 RESPONSE by plaintiff to defts' motion for Authorization to Implement Treatment Plan for Violent, Mentally Ill Prisoners who Refuse Psychiatric Treatment [1245-1] (rlw) (Entered: 09/21/1990)
1268 RESPONSE by plaintiff to the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ills' motion to appear as participating amicus [1234-1] w/certificate of service (rlw) (Entered: 09/21/1990)
1269 RESPONSE by plaintiff to defts' motion for Approval to Train only Custodial Staff who dispense medication at Receiving and Guidance Center [1246-1] (rlw) (Entered: 09/21/1990)
1270 OPPOSITION by plaintiff to defts' motion to amend Medical Access Plan [1247-1] (rlw) (Entered: 09/21/1990)
1271 OPPOSITION by plaintiff to defts' motion to limit use of the State Auditor General's Report (exclude) [1243-1] (rlw) (Entered: 09/21/1990)
1272 MOTION by amicus Natl Prisn Proj ACLU and Amicus MI ACLU to extend time until 9/2l/90 to file responses to motions related to the l0/90 hearings w/Memorandum in support w/certificate of service (rlw) (Entered: 09/21/1990)
1273 RESPONSE by Hadix Amicus' to defts' motion to amend JCAHO Application for Riverside Accrediation Survey Date [1244-1] (rlw) Modified on 09/21/1990 (Entered: 09/21/1990)
1274 RESPONSE by Hadix Amicus to defts' motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services [1248-1] (rlw) (Entered: 09/21/1990)
1275 OPPOSITION by Hadix Amicus to defts' motion to amend Medical Access Plan [1247-1] (rlw) (Entered: 09/21/1990)
1276 OPPOSITION by Hadix Amicus to defts' motion for Approval to Train only Custodial Staff who dispense medication at Receiving and Guidance Center [1246-1] (rlw) (Entered: 09/21/1990)
1277 OPPOSITION by Hadix Amicus to defts' motion for Authorization to

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 60 of 143

09/19/1990 09/19/1990
09/19/1990 09/19/1990 09/19/1990
09/19/1990
09/19/1990 09/19/1990 09/19/1990 09/19/1990
09/19/1990

Implement Treatment Plan for Violent, Mentally Ill Prisoners who Refuse Psychiatric Treatment [1245-1] w/attachment (rlw) (Entered: 09/21/1990)
1278 OPPOSITION by Hadix Amicus to defts' motion to limit use of the State Auditor General's Report (exclude) [1243-1] (rlw) (Entered: 09/21/1990)
1279 RESPONSE by Hadix Amicus to pltf's motion for order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the 1/16/90 Stipulation [1238-1] (rlw) (Entered: 09/21/1990)
1280 RESPONSE by Haddix Amicus in support of pltf's Motion for Enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan [1239-1] (rlw) (Entered: 09/21/1990)
1281 RESPONSE by Hadix Amicus in support of the pltf's Motion for specific enforcement of staffing requirements for defts' mental health units [12361] (rlw) (Entered: 09/21/1990)
1282 RESPONSE by Hadix Amicus in support of the pltf's Motion for an order to show cause why defts should not be held in contempt for failure to comply with schedule to construct new mental health hospital [1240-1] (rlw) (Entered: 09/21/1990)
1283 RESPONSE by Hadix Amicus in support of the pltf's Motion in opposition to defts' revised sick call access plan of l2/27/89, and for specific enforcement of the sick call access order of 7/27/87 [1241-1] (rlw) (Entered: 09/21/1990)
1284 RESPONSE by Hadix Amicus in support of pltf's Motion for Section K Plan to ameliorate existence of mentally ill inmates in segregation units [1242-1] (rlw) (Entered: 09/21/1990)
1285 RESPONSE by Hadix Amicus to the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ill's motion to appear as participating amicus [1234-1] (rlw) (Entered: 09/21/1990)
1286 PROOF OF SERVICE by Hadix Amicus for pldg. Nos. 1273-1285 (rlw) (Entered: 09/21/1990)
1287 OPPOSITION by defendants to the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ills' motion to appear as participating amicus [1234-1] w/stamped proof of service (rlw) (Entered: 09/21/1990)
1288 MOTION by defendants to exceed page limitation to file a brief as it pertains to defts' brief in opposition to pltf's Motion for an order to show cause or a contempt order relating to defts' alleged denial of access under the Consent Decree and the l/l6/90 Stipulation w/brief in support w/stamped proof of service w/PROPOSED Brief in Opposition to pltf's Motion for order to show cause or a contempt order relating to defts' alleged denial of access under the Consent Decree and the l/l6/90 Stipulation (rlw) (Entered: 09/21/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 61 of 143

09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990 09/19/1990
09/19/1990 09/20/1990 09/20/1990

1289 RESPONSE by defendants to pltf's motion for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units (to enforce) [1242-1] w/stamped proof of service (rlw) (Entered: 09/21/1990)
1290 OPPOSITION by defendants to pltf's motion in opposition to defts' Revised Sick Call Access Plan of l2/27/89 and for Specific enforcement of the Sick Call Access Order of 7/27/87 [1241-1] w/Exhibits A-E (rlw) (Entered: 09/24/1990)
1292 OPPOSITION by defendants to pltf's request to postpone consideration of defts' epidemiological contagions plan as it relates to the work and living assignments of HIV positive inmates [1237-1] w/Exhibits 1-3 w/stamped proof of service (rlw) (Entered: 09/24/1990)
1293 OPPOSITION by defendants to pltf's motion for specific enforcement of Staffing Requirements for defts' Mental Health Units [1239-1] w/stamped proof of service (rlw) (Entered: 09/24/1990)
1291 OPPOSITION by defendants to pltf's motion for enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan [1236-1] w/stamped proof of service (rlw) (Entered: 09/24/1990)
1294 RESPONSE by defendants to pltf's motion for order to Show Cause Why defts Should Not Be Held in Contempt for Failure to Comply with Schedule to Construct New mental Health Hospital [1240-1] w/Exhibits 1-2 w/stamped proof of service (rlw) (Entered: 09/24/1990)
1295 OPINION & ORDER (2 pages) by Judge Richard A. Enslen denying defts' motion for protective order to Prevent pltf's Taking Deposition of Certain defts' Employees [1261-1]; pltf is required to complete any depositions by l0/l/90 (cc: all counsel) (rlw) (Entered: 09/24/1990)
1296 OPINION (2 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/24/1990)
1297 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting in part pltf's motion for order to assign specific deadlines by which must submit the three Section K plans ordered on 5/l/90 [1154-1]; defts shall submit by ll/l3/l90 the Section K plans on sanitation and crowding/protection provisions and deficiencies identified in the Building Trades Inspection Reports required by this Court's 5/l/90 Order (cc: all counsel) (rlw) (Entered: 09/24/1990)
1298 OPINION & ORDER (2 pages) by Judge Richard A. Enslen denying defts' motion to extend time to pursue discovery [1262-1] denying defts' motion postponement of the 10/90 Compliance Hearing (to continue) [1262-2] (cc: all counsel) (rlw) (Entered: 09/24/1990)
1299 LETTER to court from Barbara J. Hladki, Consent Decree Coordinator advising of the rescheduling of the meeting w/University of Michigan to l0/30/90 (rlw) (Entered: 09/24/1990)
1300 OPINION & ORDER (2 pages) by Judge Richard A. Enslen granting

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 62 of 143

09/20/1990
09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990

pltf's motion for order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the 1/16/90 Stipulation [1238-1]; arguments on contempt shall be heard during compliance hearings on l0/l0, l0/ll, l0/l2 l990 in Kzoo (cc: all counsel) (rlw) (Entered: 09/24/1990)
1301 OPINION & ORDER (2 pages) by Judge Richard A. Enslen denying the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ills' motion to appear as participating amicus [1234-1]; as this Motion pertains to future compliance hearing shall be heard on l0/20/90 at ll a.m. in Kzoo (cc: all counsel) (rlw) (Entered: 09/24/1990)
1302 LETTER to the Editor from American Friends Service Committee concerning the placement of mentally ill inmates (rlw) (Entered: 09/24/1990)
1303 RESPONSE by defendants (Barbara J. Hladki, Lonsent Decree Coordinator) to the October l990 Draft Report of the Independent Expert [1229-1] (rlw) (Entered: 09/24/1990)
1304 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re prisoners with a history of mental illness housed in segregation (rlw) (Entered: 09/24/1990)
1305 OPINION & ORDER (2 pages) by Judge Richard A. Enslen granting the filing of the depositoion of Paula Anderson and the deposition of John Jabe as evidence (cc: all counsel) (rlw) (Entered: 09/24/1990)
1306 TRANSCRIPT filed of Deposition of Paula Anderson held l/30/90; recorded by Claudia A. Pluger, CER and Notary Public (rlw) (Entered: 09/24/1990)
1307 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts'motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services [1248-1] (rlw) (Entered: 09/24/1990)
1308 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to limit use of the State Auditor General's Report (exclude) [1243-1] (rlw) (Entered: 09/24/1990)
1309 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion for Approval to Train only Custodial Staff who dispense medication at Receiving and Guidance Center [1246-1] (rlw) (Entered: 09/24/1990)
1310 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan [1236-1] w/attachments 1-3 (rlw) (Entered: 09/24/1990)
1311 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to amend JCAHO Application for Riverside Accrediation Survey Date [1244-1] (rlw) (Entered: 09/24/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 63 of 143

09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990 09/21/1990
09/21/1990 09/21/1990

1312 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion to amend Medical Access Plan [1247-1] (rlw) (Entered: 09/24/1990)
1313 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to defts' motion for Authorization to Implement Treatment Plan for Violent, Mentally Ill Prisoners who Refuse Psychiatric Treatment [1245-1] (rlw) (Entered: 09/24/1990)
1314 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for specific enforcement of Staffing Requirements for defts' Mental Health Units [1239-1] (rlw) (Entered: 09/24/1990)
1315 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units (to enforce) [1242-1] (rlw) (Entered: 09/24/1990)
1316 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's Motion for Order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the l/l6/90 Stipulation [1238] (rlw) (Entered: 09/24/1990)
1317 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion for order to Show Cause Why defts Should Not Be Held in Contempt for Failure to Comply with Schedule to New mental Health Hospital [1240-1] (rlw) (Entered: 09/24/1990)
1318 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's motion in opposition to defts' Revised Sick Call Access Plan of l2/27/89 and for Specific enforcement of the Sick Call Access Order of 7/27/87 [1241-1] (rlw) (Entered: 09/24/1990)
1319 RESPONSE by amicus Natl Prisn Proj ACLU and MI ACLU to pltf's Request to postpone consideration of the defts' epidemic contagions plan as it relates to the work and living assignments of HIV positive inmates [1237-1] (rlw) (Entered: 09/24/1990)
1320 OPINION & ORDER (2 pages) by Judge Richard A. Enslen denying the National Alliance for the Mentally Ill and the Michigan Alliance for the Mentally Ills' motion to appear as participating amicus [1234-1] as it pertains to the l0/90 compliance hearings; the motion as it pertains to future compliance hearing shall be heard on l0/l2/90 at 11 a.m. in Kzoo (cc: all counsel) (rlw) (Entered: 09/24/1990)
1321 OPINION & ORDER (2 pages) by Judge Richard A. Enslen granting Knop amicus' motion to extend time until 9/2l/90 to file responses to motions related to the l0/90 hearings [1272-1] (cc: all counsel) (rlw) (Entered: 09/24/1990)
1322 ORDER (1 pages) by Magistrate Doyle A. Rowland granting defts' motion to exceed page limitation to file a brief as it pertains to defts' brief in opposition to pltf's Motion for an order to show cause or a contempt

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 64 of 143

09/21/1990 09/24/1990 09/24/1990 09/24/1990 09/25/1990 09/25/1990 09/25/1990
09/26/1990

order relating to defts' alleged denial of access under the Consent Decree and the l/l6/90 Stipulation [1288-1] (cc: all counsel) (rlw) (Entered: 09/25/1990)
1323 OPPOSITION by defendants to pltf's motion for order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the 1/16/90 Stipulation [1238-1] w/Exhibit A - defts' Answer to pltf's Motion w/stamped proof of service (rlw) (Entered: 09/25/1990)
1324 SECOND AMENDED ORDER (2 pages) by Judge Richard A. Enslen ; In-court hearing scheduled for 11:00 a.m. on 10/10/90 re the National Alliance for the Mentally Ill and the Michigan Alliace for the Mentally Ill to Appear as Participating Amicus Curiae before Judge Enslen (cc: all counsel) (rlw) (Entered: 09/25/1990)
1325 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the food production kitchen at the Egeler Correctional facility (rlw) (Entered: 09/25/1990)
1326 RESPONSE by defendants (Barbara J. Hladki, Consent Decree Coordinator) to Independent Expert Report [1229-1] (rlw) (Entered: 09/25/1990)
1327 NOTICE by defendants of taking deposition of Dr. Jeffrey Metzner on 10/1/90 @ 1 p.m. in Denver, CO w/stamped proof of service (rlw) (Entered: 09/25/1990)
1328 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re Riverside Psychiatric Center - Unit Reopening (rlw) (Entered: 09/25/1990)
1329 PROOF OF SERVICE by plaintiff for Oppositon to defts' Motion to Limit Use of te State Auditor General's Report; Opposition to defts' Motion to Amend Medical Access Plan; Response to defts' Motion for Approval to Train Only Custodial Staff Who Dispense Medication at Receiving and Guidance Center; Response to defts' Motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services; Response to defts' Motion to Extend JCAHO Application Date for Riverside Accreditation Survey; and Response to defts' Motion for Authorization to Implement Treatment Plan for Violent, Mentally Ill Prisoners Who Refuse Psychiatric Treatment filed 9/l9/90 (rlw) (Entered: 09/25/1990)
1330 PROOF OF SERVICE by amicus Natl Prisn Proj ACLU and MI ACLU for Response to defts' Motion for Approval to Train Only Custodial Staff Who Dispense Medication at Receiving and Guidance Center; Response to defts' Motion to Limit Use of the State Auditor General Report; Response to defts' Motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services; Response to defts' Motion to Amend Medical Access Plan; Response to defts' Motion to Amend or Extend JCAHO Application for Riverside Accreditation Survey Date; Response to defts' Motion for Authorization to Implement Treatment for Violent, Mentally Ill Prisoners Who Refuse Psychiatric Treatment; Response to pltf's Motion for Specific Enforcement of Staffing Requirements for defts' Mental Health

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 65 of 143

09/26/1990 09/27/1990 10/01/1990 10/02/1990 10/02/1990
10/02/1990 10/02/1990

Units; Response to pltf's Motion for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units; Response to pltf's Motion for an Order to Show Cause of a Contempt Order Relating to defts' Denial of Access under the Consent Decree and the l/l6/90 Stipulation; Response to pltf's Motion for Order to Show Cause Why defts should not be held in Contempt for Failure to Comply with Schedule to Construct New Mental health Hospital; Response to pltf's Motion for Enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan; Response to pltf's Motion in Opposition to defts' Revised Sick Call Access Plan of l2/27/89 and for Specific Enforcement of the Sick Call Order of 7/27/87; Response to pltf's Request to Postpone Consideration of the defts' Epidemic Contagions Plan as it Relates to the Work and Living Assignments of HIV Positive Inmates (rlw) (Entered: 09/27/1990)
1331 ORDER (2 pages) by Judge Richard A. Enslen that pltf, defts and amici shall be available for conference w/Independent Expert and/or a hearing on l0/l0/90 following the oral argument on the Motion of the National Alliance for the Mentally Ill and Michigan Alliance for the Mentally Ill to appear as participating amicus curiae (cc: all counsel) (rlw) (Entered: 09/27/1990)
1332 OCTOBER l990 REPORT OF THE INDEPENDENT EXPERT (STATUS REPORT) by by F. Warren Benton, Ph.D. and J. Franklin James, M.D. on Compliance Evaluation of Provisions Relating to Medical Care and Mental Health Care (rlw) (Entered: 09/27/1990)
1337 MOTION to intervene by Harry Bout w/Brief in Support w/attached PROPOSED Motion for Preliminary Injunction-Temporary Restraining Order w/Affidavit w/attachment w/Request to Dispense w/Oral Arguments on Motion to Intervene, Motion to Waive Fees, Motion for Preliminary Injunctive Relief w/attached Certificate of Service w/Motion to Waive Fees and Costs (rlw) (Entered: 10/03/1990)
1333 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/03/1990)
1334 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion Ruling on pltf's request to postpone consideration of the defts' epidemic contagions plan as it relates to the work and living assignments of HIV positive inmates is granted in part; [1237-1] pltf to file any objections the plan w/in 120 days in Kzoo of the date of this Order; pltf and defts to file briefs in response to Knop Amicus' contention that defts' plan violates Sec. 504 of the Federal Rehabilitation Act of l973 - briefs to be filed in Kzoo on or before 60 days from date of this Order (cc: all counsel) (rlw) (Entered: 10/03/1990)
1335 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/03/1990)
1336 ORDER (2 pages) by Judge Richard A. Enslen granting defts' motion for Approval to Pursue Adjunctive Psychiatric Inpatient Services [1248-1];

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 66 of 143

10/02/1990 10/02/1990 10/02/1990 10/02/1990
10/02/1990
10/03/1990 10/04/1990 10/04/1990
10/04/1990 10/04/1990 10/04/1990

defts shall submit by l/9/9l a plan pursuant to Section K of the Consent Decree specifying how compliance w/Consent Decree and subsidiary orders will be assured and monitored, plan shall also state how access will be provided for monitoring of compliance; defts may pursue services required by Section ll.H.4 of the State Plan for Compliance, associated plans, stipulations, schedules, agreements & orders by means of contacts with community based hospitals (cc: all counsel) (rlw) (Entered: 10/03/1990)
1338 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/03/1990)
1339 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion denying defts' motion to limit use of the State Auditor General's Report [1243-1] (cc: all counsel) (rlw) (Entered: 10/03/1990)
1340 OPINION (3 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/03/1990)
1341 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting defts' motion for Approval to Train only Custodial Staff who dispense medication at Receiving and Guidance Center [1246-1] (cc: all counsel) (rlw) (Entered: 10/03/1990)
1345 PETITION for Writs of Habeas Corpus Ad Prosequendum by amicus Natl Prisn Proj ACLU and MI ACLU for Jon Spytma, Romando Valeroso and John Ford to appear for a hearing on October l0, ll and l2, l990 w/Memorandum in Support of Petition w/Certificate of Service (rlw) (Entered: 10/04/1990)
1342 REPORT (STATUS REPORT) by defendants re College Educational Programming affecting the Department's compliance w/the out of cell activity provisions w/attachments (rlw) (Entered: 10/03/1990)
1343 JCAHO Accreditation Report (STATUS REPORT) by defendants regarding the Dune Waters Hospital in Jackson for a three year accreditation (rlw) (Entered: 10/04/1990)
1344 SUPPLEMENT by Special Master F. Warren Benton and Dr. J. Frank James, Independent Experts to October l990 Report of the Independent Expert (correction of 4 pages to original report) [1332-1] (rlw) (Entered: 10/04/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to T. Jon Spytma to appear for hearings on October l0, ll, l2, l990 and returned to Knop Amicus (rlw) (Entered: 10/04/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to John Ford to appear for hearings on October 10, ll, l2, l990 and returned to Knop Amicus (rlw) (Entered: 10/04/1990)
WRIT of Habeas Corpus Ad Prosequendum issued as to Romando Valeroso to appear for hearings on October 10, 11, 12, l990 and returned to Knop Amicus (rlw) (Entered: 10/04/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 67 of 143

10/09/1990 10/09/1990 10/09/1990 10/09/1990 10/09/1990 10/09/1990 10/09/1990 10/10/1990 10/10/1990 10/10/1990
10/10/1990 10/11/1990 10/12/1990

1346 REPLY by plaintiff to defts' response [1289] to pltf's motion for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units (to enforce) [1242-1] w/Certificate of Service (rlw) (Entered: 10/09/1990)
1347 REPLY by plaintiff to defts' response [1294] to pltf's motion for order to Show Cause Why defts Should Not Be Held in Contempt for Failure to Comply with Schedule to Construct New mental Health Hospital [12401] w/Certificate of Service (rlw) (Entered: 10/09/1990)
1348 REPLY by plaintiff to defts' Brief in Opposition [1293] to pltf's motion for specific enforcement of Staffing Requirements for defts' Mental Health Units [1239-1] w/Certificate of Service (rlw) (Entered: 10/09/1990)
1349 OPINION (2 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/09/1990)
1350 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting defts' motion to Modify (to amend) the State Plan's Provision Pertaining to Self-Contained Breathing Apparatus Equipment [1208-1] (cc: all counsel) (rlw) (Entered: 10/09/1990)
1351 QUARTERLY REPORTS (STATUS REPORT) by defendants regarding out-of-cell activity, overcrowding, development of the new mental health facility, development of the ICP units, JCAHO accreditation (rlw) (Entered: 10/09/1990)
1352 LETTER to court from defendants (Barbara Hladki, Consent Decree Coordinator) regarding College Programming (rlw) (Entered: 10/09/1990)
1353 WITNESS AND EXPERT WITNESS LIST submitted by defendants (rlw) (Entered: 10/10/1990)
1354 OPINION (4 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/10/1990)
1355 JUDGMENT: (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting movant Harry Bout's Motion to Waive Fees and Costs; denying motion to intervene by Harry Bout; denied as moot movant's Motion for Preliminary Injunction-Temporary Restraining Order; denied as moot movant's Request to Dispense with Oral Arguments; movant's complaint is dismissed [1337-1] (cc: all counsel) (rlw) (Entered: 10/10/1990)
PROCEEDING before Judge Richard A. Enslen; Compliance hearing (In-court hearing) held 11:00 a.m. on 10/10/90 (rlw) (Entered: 10/12/1990)
PROCEEDING before Judge Richard A. Enslen; Compliance hearings continued (rlw) (Entered: 10/12/1990)
AMENDED WRIT of Habeas Corpus Ad Prosequendum issued as to

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 68 of 143

10/12/1990 10/12/1990 10/12/1990 10/15/1990 10/15/1990 10/15/1990 10/15/1990 10/15/1990
10/16/1990
10/16/1990 10/18/1990

prisoner John Ford to appear October l8, l9, l990 at 8:30 a.m. for hearings in Kzoo (rlw) (Entered: 10/16/1990)
AMENDED WRIT of Habeas Corpus Ad Prosequendum issued as to prisoner Romando Valeroso to appear on October l8, l9, l990 at 8:30 a.m. for hearings in Kzoo (rlw) (Entered: 10/16/1990)
AMENDED WRIT of Habeas Corpus Ad Prosequendum issued as to prisoner T. Jon Spytma to appear October l8, l9, l990 for hearings in Kzoo (rlw) (Entered: 10/16/1990)
PROCEEDING before Judge Richard A. Enslen; Compliance hearing continued (rlw) (Entered: 10/16/1990)
1356 SCHEDULE & SPECIFICATIONS FOR MENTAL HEALTH BEDS (STATUS REPORT) by defendants (Barbar Hladki, Decree Coordinator) originally filed 6/2/88 (rlw) (Entered: 10/16/1990)
1357 COMPREHENSIVE MENTAL HEALTH PLAN (STATUS REPORT) by defendants (Luella Burke, Decree Coordinator) originally filed 3/17/86 (rlw) (Entered: 10/16/1990)
1358 COMPREHENSIVE MENTAL HEALTH PLAN (STATUS REPORT) by defendants (Luella Burke, Decree Coordinator) originally filed 6/6/86 (rlw) (Entered: 10/16/1990)
1359 OPINION (15 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/16/1990)
1360 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion granting pltf's motion for order to Show Cause Why defts Should Not Be Held in Contempt for Failure to Comply with Schedule to New mental Health Hospital [1240-1]; effective l0/22/90 defts shall be assessed a fine of $l,000 per day until compliance w/development schedule is achieved; effective 3/l5/90 the fine increases to $l0,000 per day; defts shall pay fine on weekly basis to the Clerk in Lansing, Kzoo, G.R. (cc: all counsel) (rlw) (Entered: 10/16/1990)
1361 RETURN OF SERVICE (PROOF OF SERVICE) by plaintiff for Subpoenas to appear on l0/l0/90 at l p.m. in Kzoo on: Virginia Love, M.D. via faxsimile machine on l0/9/90; Raymond P. Korstanje, Jr. by personally picking up the subpoena from the US Marshal's Office on l0/9/90; Daniel Proux, M.D. via faxsimile machine on l0/9/90; Joan Tucker via faxsimile machine on l0/9/90; Peter M. Blakely via faxsimile machine on l0/9/90 (rlw) (Entered: 10/18/1990)
1362 RETURN OF SERVICE (PROOF OF SERVICE) by plaintiff for Deposition Subpoena by personally service Melanie Pletcher, Legal Secretary for Donald S. McGehee on 9/27/90 by US Marshal Service (rlw) (Entered: 10/18/1990)
PROCEEDING before Judge Richard A. Enslen; compliance hearing continued (rlw) (Entered: 10/24/1990)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 69 of 143

10/19/1990 10/19/1990 10/19/1990 10/19/1990 10/24/1990 10/24/1990 10/24/1990
10/24/1990 10/29/1990

PROCEEDING before Judge Richard A. Enslen; compliance hearing continued (rlw) (Entered: 10/24/1990)
1363 EXHIBIT LIST submitted to court relating to compliance hearings held October 10, 11, 12, 18, 19, l990. Exhibits by pltf SEALED 10-14, 18; Hadix amicus SEALED 1, 3, 11, 6-8; defts SEALED 17-18 (rlw) (Entered: 10/24/1990)
1364 OPINION (20 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/24/1990)
1365 OPINION (15 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 10/24/1990)
1366 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) regaring the annual fire safety inspection of the Marquette Branch Prison (rlw) (Entered: 10/24/1990)
1367 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding the vacancy of a full-time environmental sanitarian at the Charles Egeler Facility; inspections will be conducted by other departmental sanitarians until the position is filled (rlw) (Entered: 10/24/1990)
1368 ORDER (4 pages) by Judge Richard A. Enslen in accordance w/Opinion [1364] denying pltf's motion for enforcement of the Medical Staffing Requirements at the State Prison of Southern Michigan [1236-1] denying pltf's motion for specific enforcement of Staffing Requirements for Mental Health Units [1239-1] granting pltf's motion for Section K Plan to Ameliorate Existence of Mentally Ill Inmates in Segregation Units (to enforce) [1242-1]; that defts develop a Section K Plan to access and revise the outpatient team component of their Mental Health Plan by 3/1/91; denying defts' motion to amend Medical Access Plan [1247-1] granting in part and denying in part pltf's motion in opposition to defts' Revised Sick Call Access Plan of l2/27/89 and for Specific enforcement of the Sick Call Access Order of 7/27/87 [1241-1] granting defts' motion for Authorization to Implement Treatment Plan for Violent, Mentally Ill Prisoners who Refuse Psychiatric Treatment [1245-1] granting defts' motion to amend JCAHO Application for Riverside Accrediation Survey Date [1244-1] granting defts' to extend JCAHO Application for Riverside Accrediation Survey Date [1244-2]; see order for schedule applying to the next two compliance hearings; defts and pltf propose an updated list of named defts accompanied by briefs in support of their proposals (cc: all counsel) (rlw) (Entered: 10/24/1990)
1369 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion [1365] denying pltf's motion for order to Show Cause or a Contempt Order Relating to defts' Denial of Access Under the Consent Decree and the 1/16/90 Stipulation [1238-1]; the Court finds defts are clearly noncompliant w/3/31/88 order and the l/l6/90 Stipulation (cc: all counsel) (rlw) (Entered: 10/24/1990)
1370 Receipt #13190 in the amount of $7,000.00 from State of Michigan,

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 70 of 143

10/29/1990 11/02/1990 11/05/1990 11/07/1990 11/07/1990 11/09/1990 11/09/1990 11/09/1990 11/13/1990 11/13/1990
11/14/1990
11/15/1990

Department of Corrections for a period from 10/22/90 through 10/28/90 representing fine payment of $l,000 per day for noncompliance (rlw) (Entered: 10/30/1990)
1371 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Charles Egeler Facility - Production Kitchen (rlw) (Entered: 10/30/1990)
1372 JACAHO Accreditation Report at the Duane Waters Hospital (STATUS REPORT by defendant (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 11/02/1990)
1373 Receipt #13196 in the amount of $7,000.00 from the State of Michigan for fine covering l0-29-90 through ll-4-90 pursuant to Order of 10/l5/90 [l360] (rlw) (Entered: 11/08/1990)
1374 REPORT for the Proposed Psychiatric Hospital in Bath Township (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 11/08/1990)
1375 QUALITY ASSURANCE PLAN - Revised directive (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 11/08/1990)
1376 TRANSCRIPT filed of Hearing held l0/l0/90 before Judge Enslen and reported by Jarratt W. Martin (Vol A) (rlw) (Entered: 11/14/1990)
1377 TRANSCRIPT filed of hearing held l0/ll/90 and l0/l2/90 (Partial) held before Judge Enslen and reported by Jarratt W. Martin (Vol B) (rlw) (Entered: 11/14/1990)
1378 TRANSCRIPT filed of Hearing regarding Court's Findings and Order on Mental Health Facility (testimony and ruling by Court on holding State in Contempt and Fine) held before Judge Enslen and reported by Jarratt W. Martin (Vol C) (rlw) Modified on 11/14/1990 (Entered: 11/14/1990)
1379 NOTICE OF APPEAL by defendants from Dist. Court decision [1253-1] entered on 9/l3/90 w/Proof of Service (rlw) Modified on 11/15/1990 (Entered: 11/15/1990)
1380 Receipt # 13202 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from ll/5/90 through ll/ll/90 representing fine payment of $l,000 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) Modified on 11/15/1990 (Entered: 11/15/1990)
1381 SECTION K PLANS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) adressing the renovation projects on Sanitation and Overcrowding/Protection from Harm and the deficiencies sited in the l989 Building Trades Inspection Reports pursuant to the Orders of 5/l/90 and 9/l9/90 (rlw) Modified on 11/15/1990 (Entered: 11/14/1990)
FILING FEE PAID: on 11/13/90 in the amount of $105.00, receipt

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 71 of 143

11/15/1990 11/15/1990 11/16/1990 11/21/1990
11/23/1990
11/28/1990 11/28/1990 11/30/1990 12/03/1990
12/03/1990 12/04/1990 12/04/1990

#13203 for appeal filed 11/l3/90 by defts (rlw) (Entered: 11/15/1990)
MAILED Transcript Order Form to appellant's atty; court reporter and judge notified of appeal; all attys notified of appeal. (rlw) (Entered: 11/15/1990)
REMARK - mailed Information copies to CCA (rlw) (Entered: 11/15/1990)
1382 MOTION by defendant for Approval of Supersedeas Bond on Appeal Staying Judgment on Appeal (to certify) w/Brief in Support w/attachments w/Proposed Supersedeas Bond on Appeal w/attached Proof of Service (rlw) (Entered: 11/16/1990)
1383 Receipt #13208 in the amount of $7000.00 from the State of Michigan, Department of Corrections for a period of time from 11/12/90 through 11/18/90 representing a fine payment of $1,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [1360] (rlw) (Entered: 11/26/1990)
1384 Receipt #13210 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 11/19/90 through ll/25/90 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [1360] (rlw) (Entered: 11/26/1990)
1385 OBJECTIONS by amicus Natl Prisn Proj ACLU, MI ACLU to defts' Section K Plan report for Building Trades Inspection [1381-1] w/Certificate of Service (rlw) (Entered: 12/05/1990)
1386 OBJECTIONS by amicus Natl Prisn Proj ACLU, MI ACLU to defts' Secion K Plan report for Sanitation and Protection from Harm Construction Projects [1381-1] w/attachment (rlw) (Entered: 12/05/1990)
1387 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding staff at Marquette Branch Prison Vacancies (rlw) (Entered: 12/05/1990)
1388 Receipt #13214 in the amount of $7,00.00 from the State of Michigan, Department of Corrections for a period of time from 11/26/90 through 12/2/90 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [1360] (rlw) (Entered: 12/05/1990)
1389 FIRE MARSHAL INSPECTION (STATUS REPORT) by defendants at the Marquette Branch Prison (rlw) (Entered: 12/05/1990)
1390 STIPULATION to Amend Briefing Deadlines for Substitution of Named defts and for Impact, if any, of Federal Rehabilitation Act on defts' Epidemiological Plan as established in the order of 10/2/90 [1334-1] (rlw) (Entered: 12/05/1990)
1391 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Staff Vacancies at SPSM and the Waters Hospital

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 72 of 143

12/10/1990
12/10/1990 12/12/1990 12/13/1990 12/17/1990 12/17/1990 12/20/1990 12/28/1990 12/28/1990 01/03/1991

and the Riverside Psychiatric Center (rlw) (Entered: 12/05/1990)
1392 ORDER (1 pages) by Judge Richard A. Enslen granting stipulation [1390-1]; deadline for briefing the substitution of named defts is amended from 11/1/90 to 3/l/91 and the deadline for briefing the impact of the Federal Rehabilitation Act on the defts Epidemiological Plan is amended from 11/1/90 to 3/l/90 (cc: all counsel) (rlw) Modified on 10/11/1991 (Entered: 12/12/1990)
1393 Receipt #13225 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 12/3/90 through 12/9/90 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of 10/15/90 [1360] (rlw) (Entered: 12/12/1990)
1394 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to Stipulation to Amend Briefing Deadlines for Substitution of Named defts and for Impact, if any, of Federal Rehabilitation Act on defts' Epidemiological Plan [1390-1] w/Certificate of Service (rlw) (Entered: 12/12/1990)
1395 ANNUAL INSPECTION REPORT OF THE FOOD SERVICE FACILITIES (STATUS REPORT) at the Marquette Branch Prison submitted by Barbara J. Hladki (Consent Decree Coordinator) from Michigan Dept. of Corrections (dkm) (Entered: 12/17/1990)
1396 TRANSMISSION of Appeal Number showing notice of appeal filed by CCA on 12/14/90 and assigned CCA number 90-2357 [1379] (rlw) (Entered: 01/09/1991)
1397 Receipt #13231 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 12/10/90 through 12/16/90 representing fine payment of $1,000.00 per day for noncompliance pursuant to Order of 10/15/90 [1360] (rlw) (Entered: 01/09/1991)
1398 MIOSHA INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Marquette Branch Prison per requirements of the 3/31/88 Court Order (rlw) (Entered: 01/09/1991)
1399 PSYCHIATRIC INPATIENT FACILITY (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) advising of the discontinuance of consideration of the property in Bath Township as a site for the replacement psychiatric facility (rlw) (Entered: 01/09/1991)
1400 Receipt #13242 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 12/17/90 through 12/23/90 representing fine payment of $l,000.00 per day for concompliance pursuant to Order of 10/15/90 [1360] (rlw) Modified on 01/17/1991 (Entered: 01/09/1991)
1401 LETTER to court from defendant (Barbara J. Hladki, Consent Decree Coordinator) regarding Staff Vacancies at Marquette Prison (fire safety inspector, vocational instructor) (rlw) (Entered: 01/09/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 73 of 143

01/03/1991 01/03/1991
01/04/1991 01/07/1991 01/07/1991 01/07/1991
01/07/1991 01/11/1991 01/11/1991 01/11/1991
01/11/1991 01/14/1991

1402 LETTER to court from defendant (Barbara J. Hladki, LConsenst Decree Coordinator) regarding critical incidents at Michigan reformatory (rlw) (Entered: 01/09/1991)
1403 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Psychiatric Positions in the Central Office of the Bureau of Health Care and the Patients Rights Administrator; two staff psychiatrists at the Waters Clinical Complex in Jackson (rlw) (Entered: 01/09/1991)
1404 MIOSHA REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding the Michigan Reformatory (rlw) (Entered: 01/09/1991)
1405 TRANSCRIPT filed Volume D of Compliance Hearing held in Kzoo on 10/18/90 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 01/09/1991)
1406 TRANSCRIPT filed Volume E for Hearing held 10/19/90 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 01/09/1991)
1407 Receipt #13247 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 12/24/90 through 12/30/90 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 01/17/1991)
1408 Receipt #13248 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 12/31/90 through 1/6/91 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of 10/15/90 [1360] (rlw) (Entered: 01/17/1991)
1409 FOOD SERVICE INSPECTION (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) of the South Complex Kitchen at State Prison in Jackson (rlw) (Entered: 01/17/1991)
1410 QUARTERLY REPORTS (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) on Out-of-Cell activity; JCAHO Accreditation; Overcrowding (rlw) (Entered: 01/17/1991)
1411 SEMIANNUAL COMPLIANCE REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) l) Bureau of Health Care Services 2) State Prison of Southern Michigan, Charles Egeler Correctional Facility 3) Marquette Branch Prison 4) Michigan Reformatory Inside & Dormitory as of December, l990 (rlw) (Entered: 01/17/1991)
1412 ORDER (1 pages) by Judge Richard A. Enslen granting defts' motion for Approval of Supersedeas Bond on Appeal Staying Judgment on Appeal (to certify) [1382-1] (cc: all (rlw) (Entered: 01/17/1991)
1413 LETTER to court from defendants w/their plan specifying how compliance w/the Consent Decree and subsidiary orders will be assumed and monitored in adjunctive psychiatric inpatient service units (rlw)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 74 of 143

01/14/1991 01/15/1991 01/22/1991 01/23/1991
01/23/1991 01/24/1991 01/25/1991
01/28/1991 01/29/1991

(Entered: 01/17/1991)
1414 Receipt #13254 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 1/7/91 through 1/13/91 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of 10/15/90 [1360] (rlw) (Entered: 01/17/1991)
1415 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding College Programs for the Winter l99l term (rlw) (Entered: 01/17/1991)
1416 Receipt #13259 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from l/l4/9l through l/20/9l representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 01/23/1991)
1417 Information filing from Patricia Streeter on behalf of Hadix in Hadix v Johnson that concern environmental health and life safety issues related to the lock replacement project under way at the State Prison of Southern Michigan l) pltfs' Motion for Temporary Restraining Order with Brief in Support 2) pltfs' Motion for Preliminary Injunction w/Brief in Support (rlw) (Entered: 01/23/1991)
1418 FIRE SAFETY INSPECTIONS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Michigan Reformatory, State Prison of Southern Michigan and the Charles Egeler Correctional Facility (rlw) (Entered: 01/23/1991)
1419 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Correctional Mental Health Facility (rlw) (Entered: 01/24/1991)
1420 NOTICE OF APPEARANCE AND WITHDRAWAL (ATTORNEY SUBSTITUTION) terminating attorney Andrew J. Barrick for State of Michigan; appearance for attorney Philip A. Guzman as counsel for USA (Mellie H. Nelson, Laurie J. Weinstein, and Timothy R. Payne will continue also as counsel for USA) w/Certificate of Svc (dkm) (Entered: 01/29/1991)
1421 Receipt #13262 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 1/21/91 through 1/27/91 representing fine payment of $1,000.00 per day for noncompliance pursuant to Order of 10/15/90 [1360] (dkm) (Entered: 01/29/1991)
1422 1990 ANNUAL REPORT OF OVERCROWDING AND PROTECTION FROM HARM AUDIT (STATUS REPORT) by deft Michigan Dept. of Corrections (Barbara J. Hladki, Consent Decree Coordinator); audit is submitted consistent with the requirements of Section IV F of the State Plan for Compliance; audits were conducted on: Marquette Branch Prison on 11/6/90, State Prison of Southern Michigan on 12/4/90 & 12/5/90, Charles Egeler Correctional Facility on 12/4/90 & 12/5/90, and Michigan

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 75 of 143

01/30/1991 01/31/1991 02/01/1991
02/07/1991 02/08/1991 02/08/1991 02/08/1991 02/08/1991 02/08/1991 02/08/1991 02/11/1991

Reformatory on 12/3/90 (dkm) (Entered: 02/01/1991)
1637 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for out-of cell activity summary; overcrowding; activities related to construction of a new mental health facility; JCAHO accreditation; ICP (rlw) (Entered: 01/30/1992)
1423 RESPONSE by Knop Amicus Natl Prisn Proj ACLU To Defts' Plan Specifying How Compliance With The Consent Decree And Subsidiary Orders Will Be Assumed And Monitored In Adjunctive Psychiatric Inpatient Service Units [1413-1] w/Certificate of Svc (dkm) (Entered: 02/05/1991)
1424 CONSENT DECREE FIRE SAFETY INSPECTIONS (STATUS REPORT) by (Barbara J. Hladki, Consent Decree Coordinator) from the Michigan Dept. of Corrections for: 1) the Michigan Reformatory, 2) State Prison of Southern Michigan, and 3) Charles Egeler Correctional Facility, all conducted by the Michigan State Police Fire Marshal Division; reports submitted as required by Section III I.1 of the State Plan for Compliance (dkm) (Entered: 02/05/1991)
1425 Receipt #13269 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 1/28/91 through 2/3/91 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 02/21/1991)
1426 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Staff at Marquette Branch Prison (rlw) (Entered: 02/21/1991)
1427 ACCESS TO HEALTH CARE Report (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Reception and Guidance Center at the State Prison of Southern Michigan as ordered by the Court on l0/90 (rlw) (Entered: 02/21/1991)
1428 FIRE MARSHAL REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) summarizing the status of various Consent Decree fire safety constructions reports (rlw) (Entered: 02/21/1991)
1429 LETTER to court from defendants (Barbara J. Hladki, Consent Decree LCoordinator) entitled Protection From Harm w/attached memo from Deputy Director Bolden concerning the reduction in violent critical incidents over the past year (rlw) (Entered: 02/21/1991)
1430 MEDICAL CARE OVER THE COUNTER MEDICATIONS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) concerning protocol related to over the counter medication (rlw) (Entered: 02/21/1991)
1431 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) concerning budget questions (rlw) (Entered: 02/21/1991)
1432 ATTORNEY APPEARANCE by Janet VanCleve on behalf of

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 76 of 143

02/11/1991 02/11/1991 02/12/1991 02/12/1991 02/12/1991
02/19/1991 02/25/1991 02/25/1991 02/26/1991

defendants w/stamped Proof of Service (rlw) (Entered: 02/21/1991)
1433 Receipt #13271 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 2/4/91 through 2/l0/91 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/l90 [l360] (rlw) (Entered: 02/21/1991)
1434 MOTION by amicus Natl Prisn Proj ACLU, MI ACLU for temporary restraining order enjoining defts from proceeding w/plans for staff layoffs scheduled to take effect 2/l7/9l w/Brief in support w/Exhibits A-F w/attached Certificate of Service (rlw) (Entered: 02/21/1991)
1435 FOOD SERVICE INSPECTION Report (STATUS REPORT) by defendants (Barbara Hladki, Consent Decree Coordinator) for the central complex at the State Prison of Southern Michigan (rlw) (Entered: 02/21/1991)
PROCEEDING before Judge Richard A. Enslen; stipulation entered into and order issued regarding proposed layoffs via Act 357 of Michigan Public Acts of l990 (rlw) (Entered: 02/21/1991)
1436 ORDER (3 pages) by Judge Richard A. Enslen; defts stipulation that implementation of position and budget reductions will result in noncompliance in facilities and programs subject to the Consent Decree and subsidiary plans and orders (granting Knop Amicus' motion for temporary restraining order enjoining defts from proceeding w/plans for staff layoffs scheduled to take effect 2/l7/9l [1434-1]); defts may file by 3/l5/9l motions to modify provisions of the Consent Decree and subsidiary plans and orders which implicate staffing (cc: all counsel) (rlw) (Entered: 02/21/1991)
1437 Receipt #13274 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 2/11/91 through 2/17/91 representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 02/21/1991)
1438 Receipt #13281 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 2/l8/9l through 2/24/9l representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 03/06/1991)
1439 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding the conversion of Huron Valley Men's Facility (rlw) (Entered: 03/06/1991)
1440 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Michigan Reformatory (Annual External Food Service Inspection as ordered 3/3l/88) (rlw) (Entered: 03/06/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 77 of 143

02/26/1991 02/27/1991 02/28/1991 02/28/1991
02/28/1991 03/04/1991 03/04/1991 03/05/1991 03/06/1991 03/06/1991 03/07/1991 03/11/1991

1441 FOOD SERVICE INSPECTION FOLLOW-UP (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the State Prison of Southern Michigan Central Complex (rlw) (Entered: 03/06/1991)
1442 MOTION by plaintiff to extend time to file briefs relating to defts' Epidemic Contagions Plan and Section 504 of the Rehabilitation Act of l973 w/memorandum in support w/certificate of service (rlw) (Entered: 03/06/1991)
1443 MOTION by plaintiff to extend time to submit a list of named defts and to file briefs relating to the legal basis for changing the named defts w/memorandum in support w/attachments w/certificate of service (rlw) (Entered: 03/06/1991)
1444 ORDER (1 pages) by Magistrate Judge Doyle A. Rowland ; Status Conf secheduled for 2:00 p.m. on 3/13/91 before Judge Enslen Conf. will include the matter of defts' failure to comply w/schedule to construct a new mental health hospital (request for this conf. by Gov. Engler) (cc: all counsel) (rlw) (Entered: 03/06/1991)
1445 ORDER ( 1 pages) by Magistrate Judge Doyle A. Rowland granting pltf USA's motion to extend time to file briefs relating to defts' Epidemic Contagions Plan and Section 504 of the Rehabilitation Act of l973 [14421] until 3/l5/9l (cc: all counsel) (rlw) (Entered: 03/06/1991)
1446 Receipt #13286 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 2/25/9l through 3/3/9l representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 03/06/1991)
1447 ORDER (1 pages) by Magistrate Judge Doyle A. Rowland granting pltf USA's motion to extend time to submit a list of named defts and to file briefs relating to the legal basis for changing the named defts [1443-1] until 5/l/9l (cc: all counsel) (rlw) (Entered: 03/06/1991)
1448 MOTION by defendants to file Section K Plans Instanter (to extend time) w/Brief in Support w/Affidavit by Susan Przekop-Shaw w/attached Proof of Service w/PROPOSED Section K Plan and Section K Plan Outpatient Mental Health Services (rlw) (Entered: 03/06/1991)
1449 ORDER (1 pages) by Judge Richard A. Enslen granting defts' motion to file Section K Plans Instanter (to extend time) [1448-1] (cc: all counsel) (rlw) (Entered: 03/12/1991)
1450 SECTION K PLAN (STATUS REPORT) by defendants (rlw) (Entered: 03/18/1991)
1451 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Access to Health Care - R&GC (rlw) Modified on 03/18/1991 (Entered: 03/12/1991)
1452 MOTION by defendants for emergency advancement of hearing set for 3/l3/l91 at 2 p.m. (to expedite) w/brief in support w/stamped proof of

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 78 of 143

03/11/1991 03/11/1991
03/12/1991 03/13/1991 03/13/1991 03/14/1991 03/15/1991 03/15/1991 03/18/1991 03/18/1991 03/18/1991 03/18/1991

service (rlw) Modified on 03/18/1991 (Entered: 03/12/1991)
1453 MOTION by defendants for relief from 10/15/90 Order to extend imposition of $10,000.00 per day contempt fine w/brief in support w/Exhibit l w/stamped proof of service (rlw) Modified on 03/18/1991 (Entered: 03/12/1991)
1454 Receipt #13290 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 3/4/91 through 3/l0/9l representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) Modified on 03/20/1991 (Entered: 03/12/1991)
1455 TRANSCRIPT of proceeding on Motion for Temporary Retraining Order, etc., Stipulation and Court's Order held 2/12/91 before Judge Enslen and reported by Jarratt W. Martin (rlw) Modified on 03/18/1991 (Entered: 03/13/1991)
1456 MOTION by plaintiff to extend time to file sanitation expert reports until 4/17/91 w/Memorandum in Support w/Exhibit 1 w/Certificate of Service (rlw) Modified on 03/18/1991 (Entered: 03/13/1991)
PROCEEDING before Judge Richard A. Enslen Status Conf held 2:00 a.m. on 3/13/91 deft's Motions for Relief from l0/l5/9l Order to extend imposition of $l0,000 per day contempt fine; Motion taken under advisement - written opinion to follow (rlw) (Entered: 03/18/1991)
1457 AFFIDAVIT of Richard D. McLellan a member of Gov. Engler's transition team (rlw) (Entered: 03/18/1991)
1458 BRIEF by defendant in response to the Court's l0/2/90 Order to Addressthe Application of the Rehabilitation Act of l973 to defts' Aids Policy [1334-1] w/attachment w/Affidavit of Dan L. Bolden w/stamped Proof of Service (rlw) (Entered: 03/18/1991)
1459 FOOD SERVICE INSPECTIONS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the State Prison of Southern Michigan, both the Central Complex and South Complex (rlw) (Entered: 03/18/1991)
1460 OPPOSITION by plaintiff to defts' motion for relief from 10/15/90 Order to extend imposition of $10,000.00 per day contempt fine [1453-1] w/Certificate of Service (rlw) (Entered: 03/18/1991)
1461 OPPOSITION by Knop Amicus' Natl Prisn Proj ACLU, MI ACLU to defts' motion for relief from 10/15/90 Order to extend imposition of $10,000.00 per day contempt fine [1453-1] w/Attachments 1-2 w/Certificate of Service (rlw) (Entered: 03/18/1991)
1462 RESPONSE by intervenor-plaintiff Hadix to defts' motion for relief from 10/15/90 Order to extend imposition of $10,000.00 per day contempt fine [1453-1] w/attached Proof of Service (rlw) (Entered: 03/18/1991)
1463 Receipt #13294 in the amount of $7,000.00 from the State of Michigan,

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 79 of 143

03/18/1991 03/19/1991
03/19/1991 03/19/1991 03/19/1991
03/25/1991 03/25/1991 03/25/1991 03/25/1991

Department of Corrections for a period of time from 3/ll/9l through 3/l7/9l representing fine payment of $l,000.00 per day for noncompliance pursuant to Order of l0/l5/90 [l360] (rlw) (Entered: 03/20/1991)
1464 ORDER (1 pages) by Judge Richard A. Enslen granting pltf USA's motion to extend time to file sanitation expert reports until 4/17/91 [1456-1] (cc: all counsel) (rlw) (Entered: 03/20/1991)
1465 MOTION by plaintiff USA to extend time for the filing of the response to Court's Order regarding whether defts' Epidemic Contagions Plan violates Section 504 of the Federal Rehabilitation Act of l973 w/attached PROPOSED Response by pltf USA to Court's Order Regarding Whether defts' Epidemic Contagions Plan Violates Section 504 of the Federal Rehabilitation Act of l973 w/Certificate of Service (rlw) (Entered: 03/20/1991)
ADMITTANCE requirement letter mailed to attorney Michael Barnhart (rlw) (Entered: 03/20/1991)
1466 OPINION (9 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/20/1991)
1467 ORDER (3 pages) by Judge Richard A. Enslen granting defts' motion for emergency advancement of hearing set for 3/l3/l91 at 2 p.m. (to expedite) [1452-1] denying defts' motion for relief from 10/15/90 Order to extend imposition of $10,000.00 per day contempt fine [1453-1] ; escalation of the fines from $l,000 per day to $l0,000 per day is not modified and remains in effect; defts to file their motion and plan by 5/l5/9l w/response by pltf and amici by 5/22/9l; Court will have a hearing on 5/29/9l at 9 a.m. to consider any motion filed by defts relating to modification of the development schedule for the correctional mental health facility and the purging of contempt; Court will also hold a status conf at 9:00 a.m. on 5/29/91 (cc: all counsel) (rlw) (Entered: 03/20/1991)
1468 REPLY by amicus Natl Prisn Proj ACLU and MI ACLU to defts' Brief in Response to the Court's l0/2/90 Order to Address the Application of the Rehabilitation Act of l973 to defts' Aids Policy [1458-1] w/Certificate of Sservice (rlw) (Entered: 03/25/1991)
1469 OBJECTIONS by amicus Natl Prisn Proj ACLU and MI ACLU to defts' Section K Plan Addressing Outpatient mental Health Services and to defts' Section K Plan Addressing Identification, Referral, Evaluation, and Treatment of Prisoners with Serious Mental Disorders who are Housed in Segregation Units [1450-1] w/Certificate of Service (rlw) (Entered: 03/25/1991)
1470 Receipt #13297 in the amount of $7,000.00 from the State of Michigan, Department of Corrections for a period of time from 3/18/91 through 3/24/91 representing fine payment of $1,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 03/29/1991)
1471 LETTER to court from defendants (Barbara J. Hladki, Consent Decree

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 80 of 143

03/25/1991
03/26/1991
04/01/1991
04/03/1991
04/03/1991 04/04/1991 04/04/1991 04/04/1991 04/08/1991 04/08/1991

Coordinator) concerning Staff Transfers in anticipation of the two new correctional facilities (one in Detroit and one in Adrian) (rlw) (Entered: 03/29/1991)
1472 TRANSCRIPT filed for hearing held on 3/13/91 before Judge Enslen and reported by Jarratt W. Martin concerning arguments on two motions 1) imposition regarding $10,000.00 per day fine and 2) advancement of hearing; pending the briefing schedules, the Court defers decision and holds the $10,000.00 per day fine in abeyance (rlw) (Entered: 03/29/1991)
1473 Receipt #13299 in the amount of $40,000.00 from the State of Michigan, Department of Corrections for a period of time from 3/15/91 through 3/24/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 03/29/1991)
1474 Receipt #17802 in the amount of $35,000.00 received from the State of Michigan, Dept. of Corrections, for a period of time from 3/25/91 through 3/31/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (dkm) (Entered: 04/04/1991)
1475 EXPERT REPORTS (STATUS REPORT) submitted by pltf USA of: Jeffrey Metzner (psychiatric), Eugene Miller's (penologist) report on violence and related issues at various consent decree institutions, George V. Gray (fire and life safety expert), report by Dr. Bailus Walker (sanitation) of environmental health audit of the Marquette Branch Prison sections and the Michigan Reformatory (remaining section of Dr. Walker's report to be submitted when available) (dkm) (Entered: 04/04/1991)
1476 EXPERT WITNESS LIST submitted by State of Michigan defts w/stamped Proof of Svc (dkm) (Entered: 04/04/1991)
1477 EXPERT WITNESS REPORT (STATUS REPORT) by Charlotte Nesbitt (Protection from Harm and Out-of-Cell Activity) (rlw) (Entered: 04/18/1991)
1478 EXPERT WITNESS REPORT (STATUS REPORT) by Dr. Stephen Hucker (Mental Health) (rlw) (Entered: 04/18/1991)
1479 EXPERT WITNESS REPORT (STATUS REPORT) by Wayne Carson (Fire Safety) (rlw) (Entered: 04/18/1991)
1480 MOTION by plaintiff to extend time to file Sanitation Expert Reports w/memorandum in support w/Certificate of Service (rlw) (Entered: 04/18/1991)
1481 Receipt #17811 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 4/l/9l through 4/7/9l representing fine payment of $l0,000.00 per day for noncompliance pursuant to Order of l0/l5/9l [l360] (rlw) (Entered: 04/18/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 81 of 143

04/09/1991 04/10/1991 04/15/1991 04/15/1991
04/16/1991 04/16/1991 04/17/1991
04/17/1991 04/17/1991 04/17/1991 04/18/1991 04/22/1991
04/22/1991

1482 FIRE PROTECTION SURVEY REPORT (Amended) (STATUS REPORT) by defendants (rlw) (Entered: 04/18/1991)
1483 ORDER (1 pages) by Judge Richard A. Enslen granting pltf's motion to extend time to file Sanitation Expert Reports [1480-1] until 5/3/9l (cc: all counsel) (rlw) (Entered: 04/18/1991)
1484 MOTION by defendants to extend time to file Sanitation Expert Reports at the Marquette Branch Prison and the Michigan REformatory until 4/l6/l9l w/Brief in Support (rlw) (Entered: 04/18/1991)
1485 Receipt #17813 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 4/8/9l through 4/l4/l9l representing fine payment of $l0,000.00 per day for noncompliance pursuant to Order of l0/l5/l9l [l360] (rlw) (Entered: 04/18/1991)
1486 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Out of Cell Activity; Overcrowding; New Mental Health Facility; Intermediate Care Program (ICP); JCAHO Accrediation (rlw) (Entered: 04/18/1991)
1487 ENVIRONMENTAL HEALTH EVALUATIONS (STATUS REPORT) by defendants for Marquette Branch Prison and Michigan Reformatory prepared by Leonard Rice (rlw) (Entered: 04/18/1991)
1488 JUNE 1991 REPORT OF THE INDEPENDENT EXPERT - Preliminary Review Draft (STATUS REPORT) by F. Warren Benton, Special Master and Donald M. Stoughton on Compliance Evaluation of Provisoions Relating to Fire Safety, Sanitation, Crowding and Protection from Harm and Access to Courts (rlw) (Entered: 04/30/1991)
1489 SUPPLEMENT by F. Warren Benton, Special Master to June l99l Report of the Independent Expert report [1488-1] (rlw) (Entered: 04/30/1991)
1490 RESPONSE by intervenor-plaintiff Hadix and Knop amicus to the June l99l Report of the Independent Experts [1488-1] w/stamped Proof of Service (rlw) (Entered: 04/30/1991)
1491 ORDER (1 pages) by Judge Richard A. Enslen granting defts uncontested motion to extend time to file Sanitation Expert Reports at the Marquette Branch Prison and the Michigan Reformatory until 4/l6/l9l [1484-1] (cc: all counsel) (rlw) (Entered: 04/30/1991)
1492 EXHIBITS by Hadix and Knop Amici to Response to the June l99l Report of the Independent Experts (rlw) (Entered: 04/30/1991)
1493 Receipt #17818 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 4/l5/9l through 4/2l/9l representing fine payment of $l0,000.00 per day for noncompliance pursuant to Order of l0/l5/9l [l360] (rlw) (Entered: 04/30/1991)
1494 SANITATION PROJECTS - Capitol Outlay Funding (STATUS

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 82 of 143

04/22/1991 04/23/1991 04/25/1991
04/25/1991 04/29/1991
04/29/1991 04/29/1991 04/30/1991 05/01/1991 05/01/1991 05/01/1991

REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 04/30/1991)
1495 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) w/attached Director's Office Memorandum which modifies the Department Policy Directive BCF 34.0l entitled "Prisoner Placement and Transfer" (rlw) (Entered: 04/30/1991)
1496 PROOF OF SERVICE by defendants for Request for Production of Documents (rlw) (Entered: 04/30/1991)
1497 LETTER to court from Deborah LaBelle representing pltf class of women prisoners under the jurisdiction of the Michigan Department of Corrections in the matter of Glover v Johnson CA 77-7l229 (E.D. Mich) at the Huron Valley Women's Facility advising of their intention to file a Motion for Order granting Glover pltfs amicus status (rlw) (Entered: 04/30/1991)
1498 LETTER to court from defendants (Barbara J. Hlaki, Consent Decree Coordinator) regarding the weekend feeding at the Michigan Reformatory (rlw) (Entered: 04/30/1991)
1499 Receipt #17821 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 4/22/9l through 4/28/9l representing fine payment of $l0,000.00 per day for noncompliance pursuant to Order of l0/l5/9l [l360] (rlw) (Entered: 04/30/1991)
1500 FOOD SERVICE INSPECTION at the Central Complex at SPSM (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 04/30/1991)
1501 HIV INFECTION MANAGEMENT OF PRISONERS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 04/30/1991)
1502 MOTION to file amicus brief by Glover pltf class in Glover v Johnson, No. 77-7l229 (E.D. Mich) w/Brief in Support w/Exhibits l-2 w/Notice of Hearing and Proof of Service (rlw) (Entered: 04/30/1991)
1503 ANNUAL EXTERNAL FOOD SERVICE INSPECTION (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) at the State Prison of Southern Michigan (rlw) (Entered: 05/13/1991)
1504 RESPONSE by plaintiff to Court's Order to Parties Regarding Issue of Named defts [1368-1] w/Memorandum in Support w/Certificate of Service (rlw) (Entered: 05/13/1991)
1505 STIPULATION Substituting Party Defendants - John Engler for James J. Blanchard; Kenneth L. McGinnis for Perry M. Johnson; Dan L. Bolden for Robert Brown, Jr.; John Jabe for Dale Foltz; Pamela K. Withrow for John Jabe; John Hawley for Theodore Koehler (rlw) (Entered: 05/13/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 83 of 143

05/01/1991 05/01/1991 05/02/1991 05/02/1991 05/02/1991 05/03/1991
05/03/1991
05/03/1991 05/03/1991 05/06/1991
05/07/1991

1506 STIPULATION OF DISMISSAL as to defts Michigan Corrections Commission, Gwen Andrew, Thomas Eardley, G. Robert Cotton, Duane Waters, Don LeDuc, John Prelesnik, Jack Bergman (rlw) (Entered: 05/13/1991)
1507 RESPONSE by defendants to the addition of new defts [1368-1] w/Proof of Service (rlw) (Entered: 05/13/1991)
1508 ENVIRONMENTAL HEALTH EXPERT'S REPORT (STATUS REPORT) by plaintiff of the State Prison Southern Michigan (rlw) (Entered: 05/13/1991)
1509 ENVIRONMENTAL HEALTH EVALUATION (STATUS REPORT) by defendants of State Prison of Southern Michigan prepared by defts' Expert, Leonard Rice w/attached Proof of Service (rlw) (Entered: 05/13/1991)
1510 MOTION by defendants to file defts' Reply to Draft June 1991 Report of the Independent Expert Instanter (to extend time) w/Brief in Support w/Affidavit w/attached Proof of Service (rlw) (Entered: 05/13/1991)
1511 ORDER ( 1 pages) by Judge Richard A. Enslen granting stipulation to substitute party defts [1505-1] terminating party defts James J. Blanchard and substituting John Engler, termining Perry M. Johnson and substituting Kenneth L. McGinnis, terminating Robert Brown and substituting Dan L. Bolden, terminating Dale Foltz and substituting John Jabe, terminating John Jabe and substituting Pamela K. Withrow, terminating Theodorre Koehler and substituting John Hawley (cc: all counsel) (rlw) (Entered: 05/13/1991)
1512 ORDER (1 pages) by Judge Richard A. Enslen granting stipulation to dismiss party defts [1506-1] terminating party defts Thomas Eardley, Gwen Andrew, Michigan Dept. Cor., G. Robert Cotton, Dwayne Waters, Don LeDuc, John Prelesnik, Jack Bergman w/prejudice and w/o costs or fees (cc: all counsel) (rlw) (Entered: 05/13/1991)
1513 ORDER (1 pages) by Judge Richard A. Enslen granting defts' motion to file defts' Reply to Draft June 1991 Report of the Independent Expert Instanter (to extend time) [1510-1] (all counsel) (rlw) (Entered: 05/14/1991)
1514 REPLY by defendants to Draft June l99l Report of the Independent Expert [1488-1] w/Exhibits l-4 (rlw) (Entered: 05/14/1991)
1515 Receipt #17830 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 4/29/9l through 5/5/9l representing fine payment of $l0,000.00 per day for noncompliance pursuant to Order of l0/l5/9l [l360] (rlw) (Entered: 05/14/1991)
1516 SUPPLEMENT by defendants to be included w/reply to Draft June l99l Report of the Independent Expert (Tab l) [1514-1] (rlw) (Entered: 05/14/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 84 of 143

05/13/1991 05/13/1991
05/14/1991 05/14/1991 05/14/1991 05/15/1991 05/15/1991
05/15/1991 05/17/1991 05/20/1991
05/20/1991 05/21/1991

1517 RESPONSE by plaintiff to motion to file amicus brief by Glover pltf class in Glover v Johnson, No. 77-7l229 (E.D. Mich) [1502-1] w/Certificate of Service (rlw) (Entered: 05/14/1991)
1518 Receipt #17839 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 5/6/91 through 5/12/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 05/21/1991)
1519 FOOD SERVICE VENTILATION SYSTEM (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Michigan Reformatory pursuant to Order of 4/24/89 (rlw) (Entered: 05/21/1991)
1520 OPPOSITION by defendants to motion to file amicus brief by Glover pltf class in Glover v Johnson, No. 77-7l229 (E.D. Mich) [1502-1] w/Proof of Service (rlw) (Entered: 05/21/1991)
1521 LETTER to court from Special Master F. Warren Benton w/attached Agenda and Summary Minutes for the Compliance Conf. held May 8, 9, l99l (rlw) (Entered: 05/21/1991)
1522 MOTION by defendants for order to Purge defts of Contempt; to Approve the Modified Development Schedule and to Remit Contempt Fines to defts for Use in Implementing Mental Health Care to the State's Inmates w/Exhibits 1-9 w/Brief in Support (rlw) (Entered: 05/21/1991)
1523 MOTION by defendant for Modification of the June 6, l986 Schedule and Specifications Related to the Joint Commission on Accreditation of Hospital Organizations Requirements and Staffing Ratios at the Riverside Psychiatric Facility (to amend) w/Brief in Support w/Exhibits A-G (rlw) (Entered: 05/21/1991)
1524 PROOF OF SERVICE by defendants for Pldg. Nos. 1522-1523 (rlw) (Entered: 05/21/1991)
1525 SUPPLEMENT by amicus Natl Prisn Proj ACLU, amicus MI ACLU to response to the Draft Report of the Independent Expert [1490-1] w/attachments l-8 w/Certificate of Service (rlw) (Entered: 05/21/1991)
1526 Receipt #17846 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 5/13/91 through 5/19/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 05/21/1991)
1527 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) w/attached Director's Office Memorandum updating the Prisoner Placement and Transfer policy (rlw) (Entered: 05/21/1991)
1528 OPINION (2 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 05/22/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 85 of 143

05/21/1991 05/21/1991 05/22/1991 05/22/1991 05/22/1991
05/22/1991 05/22/1991 05/22/1991 05/28/1991 05/28/1991

1529 ORDER (1 pages) by Judge Richard A. Enslen in accordance w/Opinion denying motion to file amicus brief by Glover pltf class in Glover v Johnson, No. 77-7l229 (E.D. Mich) [1502-1] (cc: all counsel) (rlw) (Entered: 05/22/1991)
1530 SUPPLEMENTAL MEMORANDUM by defendants in support of response to the Addition of New defts [1507-1] w/Proof of Service (rlw) (Entered: 05/22/1991)
1531 RESPONSE by plaintiff to defts' motion for order to Purge defts of Contempt; to Approve the Modified Development Schedule and to Remit Contempt Fines to defts for Use in Implementing Mental Health Care to the State's Inmates [1522-1] w/Certificate of Service (rlw) (Entered: 05/22/1991)
1532 RESPONSE by plaintiff to defts' motion for Modification of the June 6, l986 Schedule and Specifications Related to the Joint Commission on Accreditation of Hospital Organizations Requirements and Staffing Ratios at the Riverside Psychiatric Facility (to amend) [1523-1] w/attachment w/Certificate of Service (rlw) (Entered: 05/22/1991)
1533 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to defts' motion for Modification of the June 6, l986 Schedule and Specifications Related to the Joint Commission on Accreditation of Hospital Organizations Requirements and Staffing Ratios at the Riverside Psychiatric Facility (to amend) [1523-1] w/attachments w/Certificate of Service (rlw) (Entered: 05/22/1991)
1534 RESPONSE by Knop amicus to defts' motion for order to Purge defts of Contempt; to Approve the Modified Development Schedule and to Remit Contempt Fines to defts for Use in Implementing Mental Health Care to the State's Inmates [1522-1] w/Attachments 1-2 (rlw) (Entered: 05/22/1991)
1535 RESPONSE by Hadix intervenor-plaintiffs to defts' motion for Modification of the June 6, l986 Schedule and Specifications Related to the Joint Commission on Accreditation of Hospital Organizations Requirements and Staffing Ratios at the Riverside Psychiatric Facility (to amend) [1523-1] w/Certificate of Service (rlw) (Entered: 05/22/1991)
1536 RESPONSE by Hadix intervenor-plaintiffs to defts' motion for order to Purge defts of Contempt; to Approve the Modified Schedule and to Remit Contempt Fines to defts for Use in Implementing Mental Health Care to the State's Inmates [1522-1] (rlw) (Entered: 05/22/1991)
1537 Receipt #17851 in the amount of $35,000.00 from the State of Michigan, Department of Corrections for a period of time from 5/20/91 through 5/26/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 05/29/1991)
1538 LETTER to court from Special Master F. Warrren Benton on Independent Experts' Comments regarding defts' Motion for a

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 86 of 143

05/28/1991 05/29/1991 05/29/1991
05/29/1991

Modification of the June 6, 1986 Schedule and Specifications related to the JCAHO requirements and staffing ratios at the Riverside Psychiatric Facility (rlw) (Entered: 05/29/1991)
1539 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding position vacancies for the Fire Safety Officer at the Marquette Branch Prison (filled); school teacher position at Marquette (filled); Patient Rights Administrator position at the Central Office (filled) (rlw) (Entered: 05/29/1991)
1540 Receipt #17852 in the amount of $15,000.00 from the State of Michigan, Department of Corrections for a period of time from 5/27/91 through 5/29/91 representing fine payment of $10,000.00 per day for noncompliance pursuant to Order of 10/15/91 [1360] (rlw) (Entered: 05/30/1991)
PROCEEDING before Judge Richard A. Enslen; defts' motion for Modification of the June 6, l986 Schedule and Related to the Joint Commission on Accreditation of Hospital Organizations Requirements and Staffing Ratios at the Riverside Psychiatric Facility (to amend) [1523-1], defts' motion for order to Purge defts of Contempt; to Approve the Modified Development Schedule and to Remit Contempt Fines defts for Use in Implementing Mental Health Care to the State's Inmates [1522-1], written order to follow (rlw) (Entered: 05/30/1991)
1541 STIPULATION l) defts agree that their obligation in Glover v Johnson will not interfere w/compliance w/the proposed development schedule 2) the revised planning and construction schedule for the conversion of the Huron Valley Women's Facility to the correctional mental health facility is approved 3) by 5/1/94 defts must have developed and implemented and maintained aggregate mental health bedspace capacity (w/conditions) 4) defts to maintain compliance w/previous orders, plans and agreements unless modified by Court 5) defts authorized to develope short-term crisis care bedspace (w/conditions) 6) by 12/15/91 Dept of Mental Health will develop an operational transition plan pursuant to the Interdepartmental Agreement, describing the delivery of mental health services in the corrections system 7) final Interdepartmental Agreement will be distributed to parties on 10/15/91 8) by 7/1/91 defts will submit and implement a Section K plan to address delivery of and deficiencies in patient care at Riverside Psychiatric Center 9) parties agree to defer indefinitely JCAHO accreditation at Riverside defts will obtain JCAHO accreditation at the new correctional mental health facility by 5/1/96 l0) defts agree to move the Riverside CCU from RPC to another facility by 1/15/93 11) defts will not in the new correctional mental health facility assign two or more prisoners to a patient room unless clinically appropriate in the individual case 12) defts agree that the new correctional mental health facility, all prisoners will have continuous access to toilet facilities w/o staff assistance, unless clinically indicated in an individual case 13) by 9/1/91 defts will distribute the narrative that explains the preliminary design 14) by 12/15/92 defts will submit as a Section K plan a program, staffing, operation and space use statement for

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 87 of 143

05/31/1991 05/31/1991
05/31/1991 06/03/1991 06/04/1991 06/13/1991 06/13/1991 06/14/1991 06/17/1991 06/17/1991

the new correctional mental health facility; parties will review and respond w/in 30 days; parties will submit unresolved disputes to the Court w/in 20 additional days (rlw) Modified on 06/04/1991 (Entered: 05/30/1991)
1542 STIPULATION to Amend Hearing Schedule as ordered in Court's order of 10/24/90 [1368-1]; Motion deadline amended from 5/22/91 to 6/3/91; Motion responses amended from 6/12/91 to 6/19/91 and Independent Expert Report amended from 6/26/91 to 7/3/91 (rlw) (Entered: 06/07/1991)
1543 ORDER (6 pages) by Judge Richard A. Enslen in accordance w/reasoning of the Court set out in its bench opinion 5/29/91; Court accepts the fourteen paragraph Stipulation attached to this order and orders implementation of the Stipulation; that as of 5/29/91 defts are purged of the contempt imposed 10/15/90; Court will remit $100,000 of the money collected from fine payments to defts; defts shall file w/Clerk of Court in Kzoo by 6/14/91 a detailed proposal for expenditure of the remaining funds; pltf and amici may file responses in Kzoo by 6/24/91; this matter will be considered at the 7/1991 compliance hearing (cc: all counsel) (rlw) (Entered: 06/07/1991)
1544 TRANSCRIPT filed of Rulings and Comments of the Court concerning purging of contempt and fines levied held 5/29/91 before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 06/07/1991)
1545 MOTION by defendants for modification of Section IV, J.2 of the State Plan for Compliance (to amend) w/Brief w/Exhibits 1-2 w/stamped Proof of Service (rlw) (Entered: 06/07/1991)
1546 ORDER (1 pages) by Judge Richard A. Enslen granting stipulation to Amend Hearing Schedule [1542-1] ; Mtn filing ddl modified to 6/3/91; motion responses by 6/19/91 and Independent Expert Report by 7/3/91 all remaining deadlines established in the 10/24/90 Order will remain the same (cc: all counsel) (rlw) (Entered: 06/07/1991)
1547 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to defts motion for modification of Section IV, J.2 of the State Plan for Compliance (to amend) [1545-1] w/certificate of service (rlw) (Entered: 06/14/1991)
1548 LETTER to court from defendants w/attached Amended Plan for Sanitation and Overcrowding and Protection From Harm Construction Projects (rlw) (Entered: 06/14/1991)
1549 PROPOSAL (Detailed) for Expendure of Contempt Sanctions (STATUS REPORT) by defendants as required by the 5/30/91 Order (rlw) (Entered: 06/14/1991)
1550 RESPONSE by plaintiff USA to defts' motion for modification of Section IV, J.2 of the State Plan for Compliance (to amend) [1545-1] w/attachment w/certificate of service (rlw) (Entered: 06/18/1991)
1551 LETTER from M. Polkowski, Financial Administrator of the court to

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 88 of 143

06/20/1991 06/24/1991 06/26/1991 06/27/1991
06/27/1991 07/01/1991 07/02/1991 07/02/1991 07/02/1991 07/05/1991 07/05/1991

Frank Kelley for the State of Michigan w/check in the amount of $100,000 representing a partial return of the fine payments deposited by the State of Michigan (rlw) (Entered: 06/18/1991)
1552 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding staff vacancies of 34 nurses and 8 physician at the SPSM and the Egeler Correctional Facility (rlw) (Entered: 06/24/1991)
1553 RESPONSE by plaintiff to defts' Proposal for Expenditure of Contempt Sanctions [1549-1] w/Certificate of Service (rlw) (Entered: 07/12/1991)
1554 JOINDER (letter form) by amicus Natl Prisn Proj ACLU, MI ACLU in defts Proposal for Expenditure of Contempt Sanctions [1549-1] (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1555 JULY 1991 REPORT OF THE INDEPENDENT EXPERT (STATUS REPORT) by F. Warren Benton, Donald M. Stoughton - Complaince Evaluation of Provisions Relating to Fire Sfety, Sanitation, Crowding and Harm, and Access to Courts (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1556 COMPLIANCE MANUAL (STATUS REPORT) by F. Warrent Benton, Special Master - Compliance Summary of Provisions Relating to Sanitation, Fire Safety, Crowding and Protection from Harm and Access to Courts (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1557 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Governors Executive Directives - Spending (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1558 PLAN FOR 1989 BUILDING TRADES INSPECTION (Revised) (STATUS REPORT) by defendants (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1559 AMENDMENT TO SECTION K PLAN ON IDENTIFICATION, REFERRAL, EVALUATION AND TREATMENT OF PRISONERS WHO ARE HOUSED IN SEGREGATION UNITS (STATUS REPORT) by defendants (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
1560 SECTION K PLAN PATIENT CARE at Riverside Psychiatric Center (STATUS REPORT) by defendants (rlw) Modified on 07/12/1991 (Entered: 07/02/1991)
INFORMATION copy of Slip Opinion from CCA that this consolidated appeal, our pldg. numbers' 1107, 985 and 984 (CCA No. 901366/1367/1537), is remanded to the district court for further proceedings not inconsistent with this decision (dmh) (Entered: 07/09/1991)
1561 PETITION by Knop amicus Natl Prisn Proj ACLU, MI ACLU for Writs of Habeas Corpus Ad Prosequendum for prisoners John Ford, T. Jon Spytma, Romando Valeroso to appear at hearings set for 7/ll and 7/l2/9l in Kalamazoo w/attached Memorandum in Support w/stamped Proof of Service (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 89 of 143

07/08/1991 07/08/1991 07/08/1991 07/08/1991 07/12/1991 07/12/1991 07/12/1991
07/12/1991
07/18/1991 07/19/1991 07/19/1991

WRIT issued to Warden John Jabe at State Prison of Southern Michigan for John Ford to appear at a hearing set for 7/ll/9l and 7/l2/9l in Kalamazoo. Writs not used, hearing cancelled (rlw) (Entered: 07/16/1991)
WRIT issued to Robert Redman, Warden of Lakeland Correctional Facility for T. Jon Spytma to appear for a hearing set for 7/ll/9l and 7/l2/9l in Kzoo. Writ not issued, hearing cancelled (rlw) (Entered: 07/16/1991)
WRIT issued to Luella Burke, Warden of Western Wayne Correctional Facility for Romando Valeroso to appear on 7/ll/9l and 7/l2/9l in Kzoo. Writ not issued, hearing cancelled (rlw) (Entered: 07/16/1991)
1562 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Out of cell activity, overcrowding, JCAHO Accreditation, ICP Development, Mental Health Correctional Facility (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)
1563 STIPULATION regarding compliance issues (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)
1564 STIPULATION for Remittance and Authority to Expend Contempt Sanctions w/defts' Detailed Proposal for Expenditure of Contempt Sanctions (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)
1565 OPINION AND ORDER (2 pages) by Judge Richard A. Enslen directing the amici to file their comments to the stipulations filed [1556, 1557] w/Clerk in Kzoo by 5 p.m. on 7/19/91; that $l00,000 be transmitted to the State from funds collected as contempt sanctions, money shall be expended by deft consistent w/stipulation submitted to the Court for its approval (cc: all counsel) (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)
1566 OPINION AND ORDER (1 pages) by Judge Richard A. Enslen denying pltf's motion to Modify Fee Arrangement to Assign Equal Responsibility to Pay for Independent Experts' Fees Amongst pltf, Knop Amicus and defts (to amend) [1184-1] w/o prejudice to pltf's right to refile should circumstances change (cc: all counsel) (rlw) Modified on 07/23/1991 (Entered: 07/16/1991)
1567 POLICY DIRECTIVES (REVISED) (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) concerning Segregation Standards, Control of Communicable Diseases, Social Skills Development Unit (rlw) Modified on 07/23/1991 (Entered: 07/23/1991)
1568 RESPONSE by intervenor-plaintiff Hadix to Amicus' response to the Parties Stipulation for Remittance and Authority to Expend Contempt Sanctions [1564-1] (rlw) (Entered: 07/23/1991)
1569 RESPONSE by intervenor-plaintiff Hadix Amicus' to the parties' Stipulation Regarding Compliance Issues [1563-1] (rlw) (Entered:

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 90 of 143

07/19/1991 07/19/1991 07/25/1991
08/01/1991 08/01/1991 08/01/1991 08/01/1991 08/05/1991
08/14/1991 08/14/1991 08/26/1991

07/23/1991)
1570 PROOF OF SERVICE by intervenor-plaintiff for pldg. Nos. 1568-1569 (rlw) (Entered: 07/23/1991)
1571 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to the Parties' Proposed Stipulation for Remittance and Authority to Expend Contempt Sanctions [1564] and Stipulation Regarding Compliance Issues [1563-1] w/attachments w/Certificate of Service (rlw) (Entered: 07/23/1991)
1572 ORDER from CCA granting defts-appellants motion for permission to file their brief and for enlargement of time to file objections; the intervenors-appellees' petition for costs on appeal is denied; this document was never rec'd by the district court until called for (CCA filed it on 6/28/90) (dmh) (Entered: 08/02/1991)
1573 SLIP OPINION from CCA remanding these consolidated appeals for further proceedings not inconsistent with this decision (dmh) (Entered: 08/02/1991)
1574 MANDATE from Sixth Circuit Court of Appeals in accordance with the Slip Opinion; attached to Mandate was cover letter that the record would be ret'd at a later date; phone call to Kalamazoo verified the record was there (dmh) (Entered: 08/02/1991)
1575 STIPULATION for Name of Account for Contempt Sanction Funds (rlw) (Entered: 08/05/1991)
1576 LETTER from M. Polkowski, Financial Administrator returning $100,000.00, check #83631 to State of Michigan pursuant to Opinion & Order dated 7/12/91 (rlw) (Entered: 08/05/1991)
1577 ORDER (2 pages) by Judge Richard A. Enslen adopting stipulation for Remittance and Authority to Expend Contempt Sanctions [1564-1], stipulation regarding compliance issues [1563-1] stipulation for Name of Account for Contempt Sanctions Funds [1575-1]; defts are ordered to provide to the Court, pltf, amici and Independent Expert detailed reports on the expenditure of the contempt sanction funds demonstrating compliance w/their commitments w/in 10 days following the month to which the report pertains (cc: all counsel) (rlw) (Entered: 08/06/1991)
1578 REPORT of Exceeded Rated Capacity (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Reception and Guidance Center at the State Prison of Southern Michigan (rlw) (Entered: 08/21/1991)
1579 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the South Complex SPSM (rlw) (Entered: 08/21/1991)
1580 STAFFING at Riverside Psychiatric Center (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) reflecting positions authorized, filed, and vacant (rlw) (Entered: 09/10/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 91 of 143

08/30/1991
09/03/1991 09/05/1991 09/11/1991
09/17/1991 09/27/1991 09/30/1991 09/30/1991
10/11/1991 10/11/1991 10/15/1991
10/16/1991

1581 SEMI-ANNUAL COMPLIANCE REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including Michigan Reformatory Inside & Dormitoroy; Marquette Branch Prison; State Prison of Southern Michigan; Charles Egler Facility (rlw) (Entered: 09/10/1991)
1582 PRELIMINARY DESIGN NARRATIVE FOR THE MENTAL HEALTH CORRECTIONAL FACILITY (STATUS REPORT) by defendants (rlw) (Entered: 09/10/1991)
1583 LETTER to court from defendants regarding the appointment of Steve Parks as the Sanitation Monitor by Governor Engler (rlw) (Entered: 09/10/1991)
1584 ORDER (1 pages) by Judge Richard A. Enslen in accordance w/Court's 8/5/9l Order; Court will immediately remit the remaining funds collected as contempt sanctions to defts; funds returned to defts shall be placed in a separate appropriation account titled "Corrections - Mental Health Transition for Prisoner Mental Health Care - Work Project" (cc: all counsel) (rlw) (Entered: 09/12/1991)
1585 LETTER from the Financial Administrator to defts returning $324,000.00 representing the remaining balance of the funds which had been deposited with the court (rlw) (Entered: 09/20/1991)
1586 ORDER from CCA dismissing the appeal [1379-1] upon appellant's motion to voluntarily dismiss (dmh) (Entered: 10/01/1991)
1587 LETTER to court from defendants concerning the 9/13/91 Correspondence from ACLU on Application of Rehabilitation Act w/attachment (rlw) (Entered: 10/03/1991)
1588 QUARTERLY REPORTS (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) including Out-of-Cell Activity, Overcrowding, Intermediate Care Program (ICP), New Mental Health Facility, Length of Stay in Temporary Holding Cells at Egeler Facility, Use of Mini-law Library in the Trustee Division of Marquette Branch Prison (rlw) (Entered: 10/03/1991)
1589 ORDER (2 pages) by Judge Richard A. Enslen granting defts' motion to exceed page limitation to file Brief in Response to the Court's l1/l5/89 Order [924-1] (cc: all counsel) (rlw) (Entered: 10/15/1991)
1591 REPORT (MONTHLY) (STATUS REPORT) by defendants of Contempt Fine Expenditures (September l99l) pursuant to Court's 8/5/9l Order (rlw) (Entered: 10/21/1991)
1590 ORDER (1 pages) by Judge Richard A. Enslen granting Nunc Pro Tunc pltf's motion to extend time for the filing of the response to Court's Order regarding whether defts' Epidemic Contagions Plan violates Section 504 of the Federal Rehabilitation Act of l973 [1465-1] (cc: all counsel) (rlw) Modified on 10/15/1991 (Entered: 10/15/1991)
1592 MOTION by plaintiff to reinstate contempt proceedings on staffing at

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 92 of 143

10/21/1991 10/30/1991 11/04/1991
11/06/1991 11/12/1991 11/12/1991 11/13/1991 11/14/1991
11/15/1991 11/15/1991 11/18/1991

Riverside Psychiatric Center w/Memorandum in Support w/Exhibits A-B (rlw) (Entered: 10/21/1991)
1593 LETTER to court from defendants advising that on l0/9/9l the Joint Capital Outlay Subcommittee of the State's Legislature approved the preliminary plans for the mental health correctional facility (rlw) (Entered: 10/22/1991)
1594 MOTION by defendants to extend time to File LResponse to pltf's Motion to Reinstate the Contempt Proceedings on Staffing at Riverside Psychiatric Center w/Brief in Support w/stamped Proof of Service (rlw) (Entered: 11/05/1991)
1595 ORDER (1 pages) by Magistrate Judge Doyle A. Rowland granting defts' motion to extend time to File Response to pltf's Motion to Reinstate the Contempt Proceedings on Staffing at Riverside Psychiatric Center [15941] until and including 11/7/9l (cc: all counsel) (rlw) (Entered: 11/05/1991)
1596 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing levels at Riverside Psychiatric Center (rlw) (Entered: 11/08/1991)
1597 MONTHLY REPORT (STATUS REPORT) by defendants of Contemp Fine Expenditures (October, l99l) (rlw) (Entered: 11/13/1991)
1598 MOTION by plaintiff to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center w/Memorandum in support w/Attachment A w/Certificate of Service (rlw) (Entered: 11/13/1991)
1599 EXPERT REPORT (STATUS REPORT) by plaintiff of Jeffrey Metzner, M.D. (rlw) (Entered: 11/13/1991)
1600 MOTION by defendants for leave to file Expert Witness List and Expert Witness Reports Instanter w/Brief in support w/Affidavit in Support by Susan Przekop-Shaw w/PROPOSED List of Expert Witnesses and Reports by Expert Witnesses w/stamped proof of services (rlw) (Entered: 11/26/1991)
1601 SUPPLEMENT (Curriculum Vitae of Hubert A. Carbone, M.D., L.F.) by defendants inadvertently omitted from defts motion for leave to file Expert Witness List and Expert Witness Reports Instanter [1600-1] (rlw) (Entered: 11/26/1991)
1602 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] w/attachment 1-2 w/Certificate of Service (rlw) (Entered: 11/26/1991)
1603 RESPONSE by Hadix intervenors to pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] w/Exhibits 1-13 w/Certificate of Service (rlw) (Entered: 11/26/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 93 of 143

11/18/1991
11/20/1991 11/22/1991 11/25/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991
11/26/1991

1604 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) of Mr. Hinds, Director of the Office of Fire Safety, that the project is complete and satisfactory concerning the fire safety deficiencies in the SPSM Auditorium Corridor (rlw) (Entered: 11/26/1991)
1605 NOTICE of hearing: before Magistrate Judge Doyle A. Rowland on defts' motion for leave to file Expert Witness List and Expert Witness Reports Instanter [1600-1]; is set for 11:00 a.m. on 1/8/92 (cc: all counsel) (rlw) (Entered: 11/26/1991)
1606 EXPERT REPORT (STATUS REPORT) by plaintiff of Charles Braslow, M.D. pltf's Medical consultant scheduled to appear for the 2/20/92 compliance hearing (rlw) (Entered: 11/26/1991)
1607 EXPERT WITNESS REPORT (STATUS REPORT) by defendants off Richard S. Wilbur, M.D. (rlw) (Entered: 11/26/1991)
1608 RESPONSE by defendants to pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] w/attachments (rlw) (Entered: 12/04/1991)
1609 MEDICAL AUDITS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 12/05/1991)
1610 DENTAL AUDITS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 12/05/1991)
1611 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) advising that the Reception and Guidance Center at the SPSM exceeded its rated capacity by three prisoners on l0/22/9l (rlw) (Entered: 12/05/1991)
1612 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding a temporary delay in access to health care at SPSM (rlw) (Entered: 12/05/1991)
1613 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 12/05/1991)
1614 LETTER to court from defendants w/attached Interdepartmental Contract for the delivery of mental health services to the inmates by the MDOC and MI Dept of Mental Health (rlw) (Entered: 12/05/1991)
1615 LETTER to court from amicus MI ACLU concerning defts' Brief in Response to the Court's Order of 10/2/90 to address the application of the Rehabilitation Act of l973 to defts' AIDS Policy w/attached first decision specifically addressing the legality under 504 of the Rehabilitation Act of excluding HIV-positive prisoners from food services positions (rlw) (Entered: 12/05/1991)
1616 LETTER to court from amicus ACLU in response to defts' letter of 9/26/9l in that defts argu that 29:706 8(B) allows defts to discriminate

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 94 of 143

11/26/1991 11/26/1991 11/26/1991 11/26/1991 11/26/1991
11/27/1991 11/27/1991 12/02/1991 12/10/1991 12/11/1991 12/12/1991 12/13/1991

against HIV-positive prisoners in food service assignments (rlw) (Entered: 12/06/1991)
1617 LETTER to court from defendants (Barbara Hladki, Consent Decree Coordinator) advising of Change in Compliance as to Personnel Changes, Physical Plant Changes (rlw) (Entered: 12/06/1991)
1618 STATUS REPORT by defendants (Steven D. Parks, Governor's USA Sanitation Monitor) concerning SPSM/Egeler Kitchen Renovation, MBP Kitchen Renovation, SPSM/MR Plumbing, SPSM/MR Electrical, MR IBlock Remodeling (rlw) (Entered: 12/06/1991)
1619 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding the College Programs at Marquette Branch Prison (rlw) (Entered: 12/06/1991)
1620 MONTHLY REPORT (STATUS REPORT) by defendants of Contempt Fine Expenditorues (October, l99l) w/attached Report (rlw) (Entered: 12/06/1991)
1621 FEBRUARY, 1992 REPORT OF THE INDEPENDENT EXPERT (STATUS REPORT) Preliminary Findings and Recommendations of Assessment of Compliance with Provisions Relating to Medical Care and Mental Health Care (F. Warren Benton, Ph.D., J. Franklin James, M.D.) (rlw) (Entered: 12/06/1991)
1622 RESPONSE by Knop amicus to February 1992 Report of the Independent Expert Preliminary Findings and Recommendations [16211] w/Attachment 1 w/Certificate of Service (rlw) (Entered: 12/06/1991)
1623 STATUS REPORT by defendants (Steve Parks, Decree Physical Plant Coordinator) on MI I-Block Remodeling (rlw) (Entered: 12/06/1991)
1624 RESPONSE by Hadix intervenor-plaintiffs to the February 1992 Report of the Independent Expert Preliminary Finds and Recommendations [1621-1] w/Attachments A-B w/stamped proof of service (rlw) (Entered: 12/06/1991)
1625 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffing at the Riverside Psychiatric Center (rlw) (Entered: 12/11/1991)
1626 MONTHLY REPORT (STATUS REPORT) by defendants of Expenditures (November 1991): "Corrections - Mental Health Transition for Prisoner Health Care - Work Project" (rlw) (Entered: 12/11/1991)
1627 RESPONSE by defendants to the Preliminary February 1992 Report of the Independent Expert [1621-1] w/Exhibits w/stamped Proof of Service (rlw) (Entered: 12/17/1991)
1628 ORDER (1 pages) by Magistrate Judge Doyle A. Rowland granting defts' motion for leave to file Expert Witness List and Expert Witness Reports Instanter [1600-1] (cc: all counsel) (rlw) (Entered: 12/17/1991)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 95 of 143

12/13/1991 12/13/1991 12/16/1991 12/18/1991 12/18/1991
12/19/1991 12/23/1991 12/27/1991 01/07/1992 01/13/1992
01/13/1992 01/15/1992 01/17/1992 01/17/1992

1629 EXPERT WITNESS LIST submitted by defendants for the compliance hearings scheduled in February, l992 w/stamped proof of service (rlw) (Entered: 12/17/1991)
1630 REPORTS BY EXPERT WITNESSES (STATUS REPORT) by defendants w/stamped proof of service (rlw) (Entered: 12/17/1991)
1631 RESPONSE by defendants to the Prelilminary February l992 Report of the Independent Expert [1621-1] w/Exhibits 1-2 w/stamped Proof of Service (rlw) (Entered: 12/17/1991)
1632 LIFE SAFETY CODE INSPECTIONS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Consent Decree Institutions for 1991 (rlw) (Entered: 01/30/1992)
1633 LETTER to court from amicus Natl Prisn Proj ACLU, MI ACLU regarding defts intent to close A Block at the Marquette Branch Prison which amicus indicate is in violation of Court's Order of 2/12/91 w/attached Press Release (rlw) (Entered: 01/30/1992)
1634 CLOSING OF A BLOCK AT MARQUETTE BRANCH PRISON (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 01/30/1992)
1635 MOTION by plaintiff to change (reset) schedule for Compliance Hearing w/memorandum in support w/Exhibit 1 (rlw) (Entered: 01/30/1992)
1636 STATUS REPORT by defendants (Steven D. Parks, Governor's USA Sanitation Monitor) for the SPSM/Egeler Kitchen Renovations (rlw) (Entered: 01/30/1992)
1638 MOTION by plaintiff to change (reset) schedule for compliance hearing w/memorandum in support w/certificate of service (rlw) (Entered: 01/30/1992)
1639 MONTHLY REPORT (STATUS REPORT) by defendants (Robert J. Glees, Director Division of Licensing, Monitoring and Accreditation) of Expenditures (December 1991): "Corrections - Mental Health Transition for Prisoner Health Care - Work Project" (rlw) (Entered: 01/30/1992)
1640 MIOSHA INSPECTION REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Marquette Branch Prison for l99l (rlw) (Entered: 01/30/1992)
1641 LETTER (copy) to defts from Special Master F. Warren Benton regarding compliance with staffing requirements at the State Prison of Southern Michigan (rlw) (Entered: 01/30/1992)
1642 PPAC COMMITTEE (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Riverside Psychiatric Center (rlw) (Entered: 01/30/1992)
1643 ACCESS TO SICK CALL (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for 4 Block of SPSM (rlw)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 96 of 143

01/17/1992 01/17/1992 01/17/1992 01/17/1992 01/22/1992 01/30/1992 02/04/1992 02/04/1992
02/07/1992 02/07/1992 02/07/1992

(Entered: 01/31/1992)
1644 POLICY REVISION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) to the Suicide Prevention policy of the Mental Health Manual (rlw) (Entered: 01/31/1992)
1645 FIRE MARSHAL REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Michigan Reformatory (rlw) (Entered: 01/31/1992)
1646 STAFFING REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Riverside Psychiatric Center pursuant to Stipulation of 8/5/91 (rlw) (Entered: 01/31/1992)
1647 OPERATIONAL TRANSITION PLAN (STATUS REPORT) by defendants (rlw) (Entered: 01/31/1992)
1648 FIRE MARSHAL REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Marquette Branch Prison and the State Prison of Southern Michigan pursuant to 3/31/88 Order (rlw) (Entered: 01/31/1992)
1649 COLLEGE PROGRAM OF MARQUETTE BRANCH PRISON (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 02/13/1992)
1650 OPINION (4 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 02/13/1992)
1651 ORDER (3 pages) by Judge Richard A. Enslen in accordance w/opinion Ruling on pltf's motion to reinstate contempt proceedings on staffing at Riverside Psychiatric Center is stayed [1592-1] pending further information at the 3/5/92 status conf., Ruling pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center is stayed [1598-1] pending further information at the 3/5/92 status conf., granting in part and denying in part pltf's motion to change (reset) schedule for Compliance Hearing [1635-1], granting in part and denying in part motion to change (reset) schedule for compliance hearing [1638-1] Medical/Mental Health Compliance hearing scheduled for 2/20/92 is adjourned , , status conf scheduled for 2:30 p.m. on 3/5/92 (cc: all counsel) (rlw) (Entered: 02/13/1992)
1652 MBP KITCHEN RENOVATIONS AND MR I-BLOCK REMODELING (STATUS REPORT) by defendants (Steven D. Parks, Governor's USA Sanitation Monitor) pursuant to 1/29/87 Order (rlw) (Entered: 02/13/1992)
1653 SECTION K PLAN (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding Identification and Referral of Mentally Ill Prisoners in Segregation (rlw) (Entered: 02/13/1992)
1654 POSITION VACANCY (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Quality Assurance

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 97 of 143

02/11/1992 02/12/1992 02/13/1992 02/14/1992 02/14/1992 02/14/1992 02/14/1992 02/14/1992 02/18/1992 02/25/1992
03/10/1992

Administrator for Mental Health in Central Office of the Bureau of Health Care Facilities (rlw) (Entered: 02/13/1992)
1656 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffing at the Riverside Psychiatric Center (rlw) (Entered: 03/05/1992)
1655 MONTHLY REPORT (STATUS REPORT) by defendants of Contempt Fine Expenditures for January 1992 (rlw) (Entered: 02/13/1992)
1657 INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for External Food Service at Marquette Branch Prison conducted 12/91 (rlw) (Entered: 03/05/1992)
1658 REVISED CONSENT DECREE REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Health Care Training (rlw) (Entered: 03/05/1992)
1659 RATED CAPACITY CHANGE (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at State Prison of Southern Michigan, administrative segregation area (rlw) (Entered: 03/05/1992)
1660 NEW MENTAL HEALTH FACILITY (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) advising that the ground breaking will be held between 3/24/92 and 3/31/92 (rlw) (Entered: 03/05/1992)
1661 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) regarding the hiring freeze at the Riverside Psychiatric Center (rlw) (Entered: 03/05/1992)
1662 ANNUAL AUDIT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) of Overcrowding and Protection from Harm Issues of the State Plan for Compliance (rlw) (Entered: 03/05/1992)
1663 FEBRUARY 1992 REPORT OF THE INDEPENDENT EXPERT (STATUS REPORT) by F. Warren Benton, Ph.D. and J. Franklin James, M.D. (rlw) (Entered: 03/05/1992)
1664 ORDER (2 pages) by Judge Richard A. Enslen status conf rescheduled to 4:00 p.m. on 3/5/92 at which time defts shall explain to the Court the steps they have taken to assure compliance w/requirement to relocate the Riverside CCU by 1/93 parties, amici and Independent Experts are directed to appear at the Courthouse on 3/5/92 at 10 a.m. to confer on the Recommendations of the Independent Experts and other issues in controversy (cc: all counsel) (rlw) (Entered: 03/05/1992)
1665 BUILDING TRADES INSPECTION REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) w/attached Consent Decree Inspection Reports for: Marquette Branch Prison, Michigan Reformatory, Egeler Correctional Facililty, State Prison of Southern Michigan (rlw) (Entered: 03/10/1992)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 98 of 143

03/13/1992 03/13/1992
03/17/1992 03/17/1992 03/24/1992 04/15/1992 04/15/1992 04/15/1992
04/20/1992 04/21/1992 04/24/1992

1666 OPINION (5 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/22/1992)
1667 ORDER (2 pages) by Judge Richard A. Enslen in accordance w/Opinion setting defts' State of Michigan motion to modify defts' Epidemiological contagions plan [940-1], and pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] for hearing on 6/18/92; that a report on 3/5/92 Status Conf. shall be submitted by Independent Experts on or before 3/20/92; that the motion deadline for the 6/18/92 hearing on mental health compliance shall be 4/29/92; the deadline for responses to motions pertaining to the mental health hearing shall be 5/15/92; the Independent Experts shall submit a report on motions pertaining to the mental health compliance hearing on or before 5/22/92; the parties, amici, Independent Experts shall attend a conf. the day before the hearing on 6/17/92 (cc: all counsel) (rlw) (Entered: 03/22/1992)
1668 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffing at the Riverside Psychiatric Center (rlw) (Entered: 03/22/1992)
1669 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on the Expenditures of Contempt Fines (rlw) (Entered: 03/22/1992)
1670 INDEPENDENT EXPERT'S Report on the 3/5/92 Conference (STATUS REPORT) by F. Warren Benton (rlw) (Entered: 04/02/1992)
1671 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffing at the Riverside Psychiatric Center (rlw) Modified on 05/21/1992 (Entered: 05/12/1992)
1672 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on the Expenditures of Contempt Fine (rlw) Modified on 05/21/1992 (Entered: 05/12/1992)
1673 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including out-of-cell activity survey, report on overcrowding, report on the new mental health facility, report on intermediate health care programs (ICP), report on the length of stay in the temporary holding unit at the Egeler Facility (rlw) Modified on 05/21/1992 (Entered: 05/12/1992)
1674 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) advising the implemention of a temporary hiring freeze from 4/11/92 thru 4/24/92; all health care positions are exempt from the freeze (rlw) (Entered: 05/22/1992)
1675 JOINT MOTION by plaintiff, defendants for leave to file stipulation and order regarding mental health issues instanter w/brief w/PROPOSED Stipulation Regarding Mental Health Issues (rlw) (Entered: 05/22/1992)
1676 ANNUAL EXTERNAL FOOD SERVICE INSPECTION (STATUS

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 99 of 143

04/29/1992 04/29/1992 04/29/1992 04/29/1992 04/29/1992 04/29/1992
04/29/1992 05/11/1992 05/12/1992 05/12/1992 05/14/1992 05/14/1992 05/15/1992 05/15/1992

REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the State Prison of Southern Michigan (rlw) Modified on 05/22/1992 (Entered: 05/21/1992)
1677 JOINT MOTION by plaintiff, defendants to set Motion to Dismiss Portions of the Consent Decree for hearing w/Memorandum (rlw) Modified on 05/22/1992 (Entered: 05/21/1992)
1678 STIPULATION of Dismissal as to all issues except for mental health (rlw) Modified on 05/22/1992 (Entered: 05/21/1992)
1679 MOTION by pltf, defts to dismiss portions of the Consent Decree w/Memorandum w/Exhibit 1 (rlw) Modified on 05/22/1992 (Entered: 05/21/1992)
1680 PROOF OF SERVICE by defendants for pldg. Nos. 1677-1679 (rlw) Modified on 05/22/1992 (Entered: 05/22/1992)
1681 OPINION (4 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 05/22/1992)
1682 ORDER (1 pages) by Judge Richard A. Enslen in accordance w/Opinion granting parties joint motion for leave to file stipulation and order regarding mental health issues instanter [1675-1]; parties stipulation and proposed order is stayed pending further action of the parties consistent w/this Opinion & Order; deadline for submission of stipulations, originally set for 4/15/92 is extended to 5/12/92 (cc: all counsel) (rlw) (Entered: 05/22/1992)
1683 STIPULATION regarding mental health issues (rlw) (Entered: 05/22/1992)
1684 MONTHLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Expenditures of Contempt Fines (rlw) (Entered: 05/22/1992)
1685 STIPULATION regarding mental health issues (rlw) (Entered: 05/22/1992)
1686 STIPULATION re motion to modify defts' Epidemiological contagions plan [940-1] (rlw) (Entered: 05/22/1992)
1687 OPINION (2 pages) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 05/22/1992)
1688 ORDER (1 pages) by Judge Richard A. Enslen in accordance w/Opinion denying joint motion to set Motion to Dismiss Portions of the Consent Decree for hearing [1677-1] (cc: all counsel) (rlw) (Entered: 05/22/1992)
1689 OPPOSITION by amicus Natl Prisn Proj ACLU, MI ACLU to joint motion of pltf and defts to dismiss portions of the Consent Decree w/certificate of service (rlw) (Entered: 05/22/1992)
1690 OPPOSITION by intervenor-plaintiff Hadix to joint motion of pltf and defts to dismiss portions of the Consent Decree [1679-1] w/Exhibits A-I

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 100 of 143

05/20/1992 05/27/1992 05/27/1992 05/27/1992 06/10/1992 06/10/1992 06/11/1992
06/12/1992 06/19/1992
06/24/1992 06/29/1992 06/29/1992

w/attached certificate of service (rlw) (Entered: 05/22/1992)
1691 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 05/22/1992)
1692 MAY 1992 REPORT OF THE INDEPENDENT EXPERT (STATUS REPORT) by Special Master F. Warren Benton, Ph.D. and J. Franklin James, M.D. (rlw) (Entered: 06/03/1992)
1693 OPPOSITION by amicus Natl Prisn Proj ACLU, MI ACLU re stipulation Regarding Motion to Modify defts' Epidemiological Contagions Plan [1686-1] w/Certificate of Service (rlw) (Entered: 06/03/1992)
1694 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to Stipulation Regarding Mental Health Issues [1685-1] w/Certificate of Service (rlw) (Entered: 06/03/1992)
1695 MONTHLY REPORT (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) of the staffing level at the Riverside Psychiatric Center pursuant to stipulation of 8/5/91 (rlw) (Entered: 06/21/1992)
1696 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on expenditures of the Contempt Fines (rlw) (Entered: 06/21/1992)
1697 ORDER (1 pgs) by Judge Richard A. Enslen re defts' State of Michigan motion to modify defts' Epidemiological contagions plan [940-1] and pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] hearing rescheduled for 9:30 a.m. on 6/19/92 (cc: all counsel) (rlw) (Entered: 06/21/1992)
1698 RESPONSE by intervenor-plaintiff Haddix to the May 1992 Report of the Independent Experts [1692-1] w/attachments w/attached Proof of Service (rlw) (Entered: 06/21/1992)
PROCEEDING before Judge Richard A. Enslen; defts' compliance w/mental health provisions of the Consent Decree; re pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1], re deft State of Michigan's motion to modify defts' Epidemiological contagions plan [940-1] (rlw) (Entered: 06/22/1992)
1699 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re Psychiatric Staff resignations in the mental health programs within the Dept of Corrections (rlw) (Entered: 06/24/1992)
1700 OPINION (4 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/30/1992)
1701 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/Opinion Ruling on motion to modify defts' Epidemiological contagions plan [9401] is deferred (held in abeyance and stayed) pending resolution of 4/29/92

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 101 of 143

06/29/1992 06/29/1992
06/29/1992 06/29/1992
06/30/1992
07/02/1992 07/02/1992 07/06/1992
07/14/1992 07/14/1992

Joint Motion of the US and State of MI to Dismiss Portions of the Consent Decree; deft directed to submit w/in 30 days a report on compliance w/epidemic contagions plan (cc: all counsel) (rlw) (Entered: 06/30/1992)
1702 OPINION (7 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/30/1992)
1703 ORDER (1 pgs) by Judge Richard A. Enslen in accordance w/Opinion granting pltf's motion to Withdraw its Motion to Reinstate Contempt proceedings on Staffing at Riverside Psychiatric Center [1598-1] finding the pltf's motion to reinstate contempt proceedings on staffing at Riverside Psychiatric Center [1592-1] denied as moot. (cc: all counsel) (rlw) (Entered: 06/30/1992)
1704 OPINION (17 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 06/30/1992)
1705 ORDER (4 pgs) by Judge Richard A. Enslen in accordance w/Opinion approving in part and adopting in part w/modification as provided; hearing is scheduled for 8/4/92 at 9:30 a.m. on Section 4 of the 5/12/92 Stipulation; Decree Compliance Coordinator shall report to the court on 8/l5/92, ll/l5/92, 2/15/93, 5/l5/93 (cc: all counsel) (rlw) (Entered: 06/30/1992)
1706 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including out-of-cell activity report; report on the length of stay in the temporary holding cells at the Egeler Facility; ICP report; Overcrowding report; Report on the development of the New Mental Health facility (rlw) (Entered: 07/02/1992)
1707 OPINION (7 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 07/02/1992)
1708 ORDER (4 pgs) by Judge Richard A. Enslen in accordance w/Opinion that the joint motion to dismiss portions of the Consent Decree [1679-1] are granted in part and deferred in part, pending receipt of further information as ordered herein (cc: all counsel) (rlw) (Entered: 07/02/1992)
1709 TRANSCRIPT filed of hearing held 6/19/92 re compliance w/mental health provisions of consent decree, Motion by the State to Modify the defts' Epidemiological Contagions Plan, USA's Motion to Withdraw its Motion to Reinstate Contempt Proceedings on Staffing of Riverside Psychiatric Center held before Judge Enslen and reported by Jarratt W. Martin (rlw) (Entered: 07/07/1992)
1710 STATUS REPORT by defendants (Steven D. Parks, Decree Physical Plant Coordinator) re SPSM South Complex Kitchen Renovations (rlw) (Entered: 07/15/1992)
1711 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J.

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 102 of 143

07/15/1992
07/16/1992 07/20/1992 07/30/1992
07/30/1992 08/04/1992
08/05/1992 08/13/1992 08/17/1992 08/17/1992 08/20/1992

Hladki, Consent Decree Coordinator) on the expenditures of the Contempt Fines (rlw) (Entered: 07/15/1992)
1712 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re hiring freeze imposed on vacancies w/in the DOC for the remainder of this fiscal year; Consent Decree institutions and mental health programs are exempted from this freeze (rlw) (Entered: 07/16/1992)
1713 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 07/16/1992)
1714 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re placement of mentally ill prisoners at Marquette Branch Prison (rlw) (Entered: 07/21/1992)
1715 ORDER (2 pgs) by Judge Richard A. Enslen that the hearing set for 8/4/92 is adjourned re stipulation on mental health issues specifically section four [1685-1]; w/in 10 dyas of this order parties shall file a joint motion requesting new hearing date for either the week of 9/28-10/2 or 10/19-22 (cc: all counsel) (rlw) Modified on 08/12/1992 (Entered: 07/30/1992)
1716 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on the MI Dept of Corrections compliance w/the plan on Control of Epidemic Contagious Plan (rlw) (Entered: 07/30/1992)
1717 COMPLIANCE REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Michigan Reformatory and the Marquette Branch Prison covering Fire Safety, Sanitation, Safety and Hygine, Crowding and Protection from Harm, Access to Courts (rlw) (Entered: 08/07/1992)
1718 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) on Licensure of the Riverside CCU (rlw) (Entered: 08/07/1992)
1719 STIPULATION re Mental Health Comprehensive Case for Riverside; this stipulation will supersede stipulation [1683-1] w/stamped Proof of Service (rlw) (Entered: 08/17/1992)
1720 COMPLIANCE REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 08/17/1992)
1721 MONTHLY REPORTS (STATUS REPORT) by defendant on expenditures of contempt fines (rlw) (Entered: 08/17/1992)
1722 LETTER to court from defendants withdrawing Section 4 of the parties' 5/12/92 "Stipulation Regarding Mental Health Issues" and agreeing to comply with Paragraph 10 of the 5/29/91 "Stipulation" and 5/30/91 Order (rlw) (Entered: 08/21/1992)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 103 of 143

08/21/1992 08/26/1992 08/31/1992 08/31/1992 09/01/1992 09/08/1992 09/08/1992
09/14/1992 09/14/1992 10/06/1992
10/14/1992

1723 EXTERNAL FOOD SERVICE INSPECTIONS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Egeler Correctional Facility (rlw) (Entered: 08/21/1992)
1724 LETTER to court from Steven D. Parks, Decree Physical Plant Coordinator regarding Marquette Kitchen Renovation (rlw) (Entered: 08/26/1992)
1725 LETTER to court (copy) from F. Warren Benton, Independent Expert to parties regarding previously requested freports, documents and communications needed for his report (rlw) (Entered: 09/01/1992)
1726 RESPONSE by intervenor-plaintiffs Hadix, Knop amicus to Stipulation [1719-1] regarding Mental Health Comprehensive Care w/attached Proof of Service (rlw) (Entered: 09/01/1992)
1727 NOTICE by defendants of Withdrawal of Appearance of Janet VanCleve, LuAnn Cheyne Frost, Donald McGehee, Thomas C. Nelson (rlw) (Entered: 09/01/1992)
1728 OPINION (7 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/09/1992)
1729 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/opinion granting parties letter request to withdraw section four of the 5/12/92 Stipulation; that defts' untimely election to implement paragraph 10 of the 5/29/91 Stipulation by designation of a substantially renovated or new facility with occupancy to be complete on or before 5/1/94 is approved; parties' Stipulation Regarding Mental Health Comprehensive Care is rejected; defts shall submit a plan by 4/15/93 re paragraph three of the 5/29/91 Stipulation; deadline for submission of the Section K plan is deferred to 6/1/93 (cc: all counsel on 9/9/92) (rlw) (Entered: 09/09/1992)
1730 SEPTEMBER 1992 Report of Independent Experts (STATUS REPORT) on Fire Safety, Sanitation, Crowding and Protection from Harm and Access to Courts at the Michigan Reformatory and Marquette Branch Prison by F. Warren Benton and Don Stoughton (rlw) (Entered: 09/14/1992)
1731 SEPTEMBER 1992 Report of Independent Experts (STATUS REPORT) on Mental Health Care by F. Warren Benton, Ph.D. and J. Franklin James, M.D. (rlw) (Entered: 09/14/1992)
1732 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including Report on the Development of the New Hospital Facility; Overcrowding Report; Report on the Length of Stay in the Egeler Temporary Holding Cells; Out-ofCell Activity Report; Development of Intermediate Care Program Units; Development of the Residential Treatment Units (RTP) and Changes in the Outpatient Mental Health Teams (rlw) (Entered: 10/06/1992)
1733 RESPONSE by plaintiff to the September 1992 Independent Experts' Report [1730-1] w/certificate of service (rlw) (Entered: 11/10/1992)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 104 of 143

10/15/1992 10/16/1992 10/19/1992 10/19/1992 10/22/1992 10/22/1992 11/17/1992 11/18/1992 11/24/1992 11/24/1992 11/30/1992 12/01/1992
12/01/1992 12/01/1992

1734 RESPONSE by defendants to the September 1992 Report of the Independent Expert [1730-1] w/Exhibits A-B (rlw) (Entered: 11/10/1992)
1735 FIRE SAFETY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Michigan Reformatory (rlw) (Entered: 11/10/1992)
1736 RESPONSE by Knop and Hadix amicus to the September 1992 Report of the Independent Experts [1730-1] w/attached Proof of Service (rlw) (Entered: 11/10/1992)
1737 SUPPLEMENTAL RESPONSE by Knop and Hadix amicus to the September 1992 Report of the Independent Experts [1730-1] w/attachments w/proof of service (rlw) (Entered: 11/10/1992)
1738 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffin at the Riverside Psychiatric Center (rlw) (Entered: 11/10/1992)
1739 MONTHLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Expenditures of Contempt Fines (rlw) (Entered: 11/10/1992)
1740 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) of Fire Marshal Division (rlw) (Entered: 11/19/1992)
1741 COMPLIANCE REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 11/19/1992)
1742 MIOSHA INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Marquette Branch Prison w/the facilities response to the inspection (rlw) (Entered: 11/25/1992)
1743 REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Expenditures of Contempt Fines (rlw) (Entered: 11/25/1992)
1744 LETTER to court from Steven D. Parks, Governor's USA Sanitation Monitor (defendants) re capital outlay consent decree projects at Marquette Branch Prison (rlw) (Entered: 12/01/1992)
1745 MIOSHA Consultation to the Michigan Reformatory (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) re the Occupational Safety survey (rlw) (Entered: 12/01/1992)
1746 OPINION (6 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 12/01/1992)
1747 ORDER (4 pgs) by Judge Richard A. Enslen in accordance w/opinion granting in part and deferring in part Joint Motion of the USA and State of MI to Dismiss Portions of the Consent Decree to a determination at a later time; that Section 1 of the State Plan for Compliance entitled

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 105 of 143

12/17/1992
12/22/1992 12/28/1992 12/30/1992
12/30/1992 12/31/1992 01/20/1993 01/27/1993 01/29/1993 01/29/1993 02/03/1993 02/08/1993

"measures with Respect to Sanitation, Safety, and Health" is modified as outlined in opinion and order; that the part of the Joint Motion to Dismiss Portions of the Consent Decree concerning "access to courts" issue is held in abeyance and is stayed pending a review of the State of MI plan; that the Motion by deft State of MI to Modify defts' Epidemic Contagions Plan [940] is held in abeyance and is stayed pending resolution of other matters (cc: all counsel) (rlw) (Entered: 12/01/1992)
1748 HEALTH CARE AUDITS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including the medical (including administrative) mental health and dental audits for all Consent Decree Institutions, mental health audit for the Riverside Psychiatric Center (rlw) (Entered: 12/17/1992)
1749 MONTHLY REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator on staffing at the Riverside Psychiatric Center (rlw) (Entered: 12/28/1992)
1750 LETTER to court from Barbara J. Hladki, Consent Decree Coordinator re Housing Unit Structure (rlw) (Entered: 12/29/1992)
1751 QUARATERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) including Report on the development of the new hospital facility; out-of-cell activity report; overcrowding report; report on the length of stay in the Egeler Temporary Holding Cells (rlw) (Entered: 12/31/1992)
1752 LETTER to court from Barbara J. Hladki, Consent Decree Coordinator re Mental Health Services Transition (rlw) (Entered: 12/31/1992)
1753 MOTION by James Lanni and others similarly situated to file amicus brief allowing them to join and intervene w/attachments (rlw) (Entered: 01/06/1993)
1754 CLASSIFICATION REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 01/25/1993)
1755 LETTER to Barbara Hladki, Decree Compliance Coordinator from F. Wararen Benton, Ph.D., Special Master regarding questions concerning the Classification Plan Complilance Report (rlw) (Entered: 01/27/1993)
1756 NOTICE OF APPEAL by defendant MI, State of et al. from Dist. Court decision [1747-1] entered on 12/01/92; with proof of service (ghl) (Entered: 02/03/1993)
FILING FEE PAID: on 1/29/93 in the amount of $ 105.00, receipt # 200329. (ghl) (Entered: 02/03/1993)
MAILED information copies to CCA ;all counsel notified (ghl) (Entered: 02/03/1993)
1757 AUDIT (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) on overcrowding and protection from harm (rlw)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 106 of 143

02/08/1993 02/25/1993 03/01/1993 03/01/1993 03/15/1993 03/18/1993 03/18/1993
03/18/1993 03/29/1993 03/30/1993
04/12/1993 04/12/1993
04/12/1993

(Entered: 02/10/1993)
1758 LIFE SAFETY CODE INSPECTIONS (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) of the Consent Decree Institutions for 1992 (rlw) (Entered: 02/10/1993)
1759 COMPLIANCE REPORT (STATUS REPORT) by defendant (Barbara J. Hladki, Consent Decree Coordinator) (rlw) (Entered: 02/25/1993)
1760 MARCH 1993 REPORT (STATUS REPORT) by Independent Expert F. Warren Benton on Classification (rlw) Modified on 03/03/1993 (Entered: 03/03/1993)
1761 TRANSMISSION FORM showing notice of appeal filed by CCA on 02/19/93 and assigned CCA number 93-1222 (ghl) (Entered: 03/11/1993)
1762 CHANGE OF ADDRESS by plaintiff, atty Laurie J. Weinstein (rlw) (Entered: 03/16/1993)
1763 OPINION (4 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/18/1993)
1764 JUDGMENT: (2 pgs) by Judge Richard A. Enslen in accordance w/opinion denying James Edward Lanni's motion to file amicus brief allowing them to join and intervene [1753-1] and that the movant's motion for waiver of fees and costs is granted; any appeal in this matter by petitioner proceeding in forma pauperis is not taken in good faith (cc: all counsel) (rlw) (Entered: 03/18/1993)
1765 TRANSCRIPT ORDER Form from appellant's atty Barbara A. Schmidt stating their were no hearings (ghl) (Entered: 03/22/1993)
1766 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on Staffing at the Riverside Psychiatric Center (rlw) (Entered: 03/30/1993)
1767 ORDER (2 pgs) by Judge Richard A. Enslen denying w/o prejudice defts' motion to modify defts' Epidemiological contagions plan [940-1]; denying w/o prejudice defts' motion to dismiss portions of the Consent Decree [1679-1] (cc: all counsel) (rlw) (Entered: 03/30/1993)
1768 EPIDEMIC CONTAGIOUS PLAN (STATUS REPORT) by defendants w/attached revised procedure entitled "Control of Tuberculosis in Prisoners" (rlw) (Entered: 04/13/1993)
1769 QUARTERLY REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for Report on the Development of the New Hospital Facilitly, Out-of-Cell Activity Report, Overcrowding Report, Reports on the Length of Stay in the Egeler Temporary Holding Cells (rlw) (Entered: 04/13/1993)
1770 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) at the Michigan Reformatory (rlw) (Entered: 04/13/1993)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 107 of 143

04/12/1993
04/13/1993 04/15/1993 04/15/1993 04/16/1993 04/16/1993 04/23/1993 04/29/1993 04/30/1993 05/05/1993 05/21/1993
05/21/1993

1771 BUILDING TRADES INSPECTION REPORTS (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Consent Decree facilities: Egeler Correctional Facilitiy, Michigan Reformatory, Marquette Branch Prison, State Prison of Southern Michigan (rlw) (Entered: 04/13/1993)
1772 MOTION by plaintiff USA for access to conduct classification tour w/brief in support w/Exhibits 1-4, certificate of service (seal) (Entered: 04/13/1993)
1773 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 04/16/1993)
1774 RESPONSE by Hadix intervenor-plaintiff and Knop amicus to pltf's motion for access to conduct classification tour [1772-1] w/certificate of service (rlw) (Entered: 04/16/1993)
1775 RESPONSE by defendants on classification reports of decree compliance coordinator and independent expert [1746-1] w/attachment, stamped proof of service (rlw) (Entered: 04/16/1993)
1776 PLAN (NOTICE) by defendants demonstrating compliance with paragraph three of the 5/29/91 stipulation and other provisions of the decree w/Exhibits 1-4, stamped proof of service (rlw) (Entered: 04/16/1993)
1777 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) re A block - Marquette Branch Prison (rlw) (Entered: 04/27/1993)
1778 RESPONSE by defendants to pltfs' motion for access to conduct classification tour [1772-1] w/Exhibits 1-3, stamped proof of service (rlw) (Entered: 04/30/1993)
1779 ORDER Rejecting Pleading (1 pg) by Magistrate Judge Doyle A. Rowland - brief in support of intervention by leave by pltfs James Lanni and others for failing to file a Motion (cc: all counsel) (rlw) (Entered: 05/03/1993)
1780 ORDER (1 pg) by Judge Richard A. Enslen granting pltf's motion for access to conduct classification tour [1772-1] (cc: all counsel) (rlw) (Entered: 05/05/1993)
1781 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) advising that the Dept. of Mental Health is no longer licensing the acute mental health units at the Duane Waters Hospital or the Riverside Psychiatric Center w/attachments (rlw) (Entered: 05/26/1993)
1782 FOOD SERVICE INSPECTION (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) for the Marquette Branch Prison and the State Prison of Southern Michigan (rlw) (Entered: 05/26/1993)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 108 of 143

05/21/1993 05/24/1993 06/01/1993 06/01/1993 06/03/1993 06/03/1993 06/04/1993 06/08/1993
06/08/1993 06/14/1993 06/15/1993
06/15/1993

1783 COMPLIANCE REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) pursuant to the 6/29/92 Order (rlw) (Entered: 05/26/1993)
1784 LETTER to court from defendants (Barbara J. Hladki, Consent Decree Coordinator) w/attached MI Dept of Corrections revised Policy Directive PD-DWA-30.02 entitled "Prisoner Security Classification" (rlw) (Entered: 05/26/1993)
1785 NOTICE OF APPEAL by defendants from Dist. Court decision denying the parties motion to dismiss portions of the consent decree [1767-1] (rlw) (Entered: 06/01/1993)
FILING FEE PAID on 6/1/93 in the amount of $ 105.00 (Receipt #200611) (rlw) (Entered: 06/01/1993)
1786 SUBMISSION (STATUS REPORT) by defendants of the program, staffing, operation and space use statement - Huron Valley Psychiatric Hospital as required by the 5/30/91 and 9/9/92 orders (rlw) Modified on 06/07/1993 (Entered: 06/04/1993)
1787 MOTION by plaintiff to extend time of deadline to submit comments regarding defts' status on classification to 7/15/93 w/brief in support, certificate of service (rlw) Modified on 06/07/1993 (Entered: 06/04/1993)
MAILED information copies to CCA; judge and all counsel notified (ghl) (Entered: 06/04/1993)
1788 LETTER to court from defendants w/attached copy of the evaluations of the Pilot Residential Treatment Program and Outpatient Mental Health Team Services prepared under the direction of Dr. Roger Smith and Dr. Lee Rome of the Dept. of Mental Health, Bureau of Forensic Mental Health Services (rlw) (Entered: 06/08/1993)
1789 ORDER (1 pg) by Judge Richard A. Enslen granting pltf USA's motion to extend time of deadline to submit comments regarding defts' status on classification to 7/15/93 [1787-1] (cc: all counsel) (rlw) (Entered: 06/08/1993)
1790 SUPPLEMENT by defendants to the evaluations of the Pilot Residential Treatment Program and Outpatient Mental health Team Services [17881] which upon the initial submission may be missing page 5 (rlw) (Entered: 06/15/1993)
1791 MOTION by defendants to modify (amend) the USA plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services w/brief in support, Exhibits 1-2, proof of service (rlw) (Entered: 06/16/1993)
1792 MOTION by defendants to seek approval of the replacement of the intermediate care program and the protective environment program under the court's jurisdiction with the residential treatment program in their place w/brief in support, Exhibits 1-4, proof of service (rlw) (Entered:

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 109 of 143

06/22/1993 06/23/1993 06/28/1993 06/28/1993 07/06/1993
07/12/1993 07/15/1993 07/20/1993 07/21/1993 07/21/1993 07/21/1993 07/22/1993 07/27/1993

06/16/1993)
1793 MOTION by plaintiff USA to extend deadline (time) until 7/30/93 to respond to Mental Health Issues w/brief in support, Certificate of Service (rlw) (Entered: 06/22/1993)
1794 TRANSMISSION FORM showing notice of appeal filed by CCA on 06/16/93 and assigned CCA number 93-1810 (ghl) (Entered: 06/24/1993)
1795 ORDER (1 pg) by Judge Richard A. Enslen granting pltf's motion to extend deadline (time) until 7/30/93 to respond to Mental Health Issues [1793-1] (cc: all counsel) (rlw) (Entered: 06/28/1993)
1796 TRANSCRIPT ORDER Form from appellant's atty stating no hearings. Transcript ordered in CCA 93-1222 (ghl) (Entered: 06/29/1993)
1797 QUARTERLY REPORT (STATUS REPORT) filed by defts (Barbara J. Hladki, Consent Decree Coordinator) including Report on the Development of the New Hospital Facility; Out-of-Cell Activity Report; Overcrowding Report; Reports on the Length of Stay in the Egler Temporary Holding Cells (tlb) (Entered: 07/08/1993)
1798 MOTION by Knop amicus and intervenors Hadix to extend time until 7/30/93 to file response to defts' Legal Access Plan w/brief in support, proof of service (rlw) (Entered: 07/12/1993)
1799 MOTION by plaintiff to extend time until 7/23/93 to submit comments regarding defts' compliance status on classification w/brief in support, certificate of service (rlw) (Entered: 07/16/1993)
1800 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting Knop and Hadix pltfs' motion to extend time until 7/30/93 to file response to defts' Legal Access Plan [1798-1] (cc: all counsel) (rlw) (Entered: 07/20/1993)
1801 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltf's motion to extend time until 7/23/93 to submit comments regarding defts' compliance status on classification [1799-1] (cc: all counsel) (rlw) (Entered: 07/21/1993)
1802 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 07/22/1993)
1803 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 07/22/1993)
1804 REPORT (STATUS REPORT) by plaintiff pertaining to the status of compliance with respect to inmate classification at facilities subject to the protection from harm provisions of the Consent Decree w/attachment, certificate of service (rlw) (Entered: 07/22/1993)
1805 July 9, l993 REPORT OF THE INDEPENDENT EXPERT (STATUS

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 110 of 143

07/30/1993
07/30/1993
07/30/1993 07/30/1993 07/30/1993 08/24/1993 09/08/1993 09/20/1993 10/07/1993
11/10/1993 11/15/1993 11/16/1993

REPORT) by Special Master F. Warren and J. Frank James on the Evaluation of University Collaboration Progress (rlw) (Entered: 07/28/1993)
1806 RESPONSE by plaintiff to defts' motion to modify (amend) the USA plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who housed in segregation units and outpatient mental health services [1791-1] w/certificate of service (rlw) (Entered: 07/30/1993)
1807 RESPONSE by plaintiff to defts' motion to seek approval of the replacement of the intermediate care program and the protective environment program under the court's jurisdiction with the residential treatment program in place [1792-1] w/certificate of service (rlw) (Entered: 07/30/1993)
(rlw) (Entered: 07/30/1993)
1808 RESPONSE by plaintiff to defts' 6/1/93 program staffing, operation and space use statement for the new mental health facility [1786-1] w/certificate of service (rlw) (Entered: 07/30/1993)
1809 RESPONSE by Hadix and Knop Amici to defts' submission of the program, staffing, operation and space use statement [1786-1] w/attachment, certificate of service (rlw) (Entered: 07/30/1993)
1810 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 08/25/1993)
1811 ORDER rejecting pleading (1 pg) by Magistrate Judge Doyle A. Rowland - Movant James Lanni's Emergency Motion for Temporary Restraining Order because movant has not been granted intervention (cc: all counsel) (rlw) (Entered: 09/08/1993)
1812 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara J. Hladki, Consent Decree Coordinator) on staffing at the Riverside Psychiatric Center (rlw) (Entered: 09/21/1993)
1813 QUARTERLY REPORTS (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator on 1) report on the development of the new hospital facility 2) out-of-cell activity report 3) overcrowding report 4) reports on the length of stay in the Egeler Temporary Holding Cells (rlw) (Entered: 10/07/1993)
1814 MOTION by plaintiff for order granting access to conduct protection from harm tour w/brief in support, certificate of service (rlw) (Entered: 11/10/1993)
1815 MOTION by movant James Lanni to consolidate cases 1:84-cv-651, 1:84-cv-63 assigned to Judge Enslen and case No. 4:93-cv-176 assigned to Judge Gibosn (rlw) (Entered: 11/16/1993)
1816 ORDER (2 pgs) by Judge Richard A. Enslen that defts shall permit the

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 111 of 143

11/17/1993 11/22/1993 11/22/1993 12/03/1993 12/15/1993 12/16/1993 12/20/1993
12/21/1993
12/27/1993 12/27/1993 12/27/1993

US access to its premises for an evaluative tour on 11/22, 11/23, 11/24, 1993 (cc: all counsel) (rlw) Modified on 12/14/1993 (Entered: 11/16/1993)
1817 OPPOSITION by defendants to pltf's motion for order granting access to conduct protection from harm tour [1814-1] w/proof of service (rlw) (Entered: 11/17/1993)
1818 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) for the Charles Egeler Facility by Barbara J. Hladki, Consent Decree Coordinator (rlw) (Entered: 11/22/1993)
1819 MONTHY REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator on staffing at the Riverside Psychiatric Center (rlw) (Entered: 11/22/1993)
1820 ORDER (2 pgs) by Magistrate Judge Doyle A. Rowland denying James Lanni's motion to consolidate cases 1:84-cv-651, 1:84-cv-63 assigned to Judge Enslen and case No. 4:93-cv-176 assigned to Judge Gibosn [18151] (cc: all counsel) (rlw) (Entered: 12/06/1993)
1821 REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator of the annual Fire Marshal Inspection of the Michigan Reformatory and the State Prison of Southern Michigan including the Charles Egeler Facility (rlw) (Entered: 12/15/1993)
1822 MONTHLY REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator on staffing at the Riverside Psychiatric Center (rlw) (Entered: 12/16/1993)
1823 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting the Dental Services Quality Assurance Evaluations by the Consent Decree Coordinator for failing to bind w/fastener pursuant to Local Rule 24(a) and that these documents do not contain a caption page pursuant to F.R.C.P. Rule 10 (cc: all counsel) (rlw) (Entered: 12/20/1993)
1824 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting Jerry Binion's Motion to Appeal the Magistrate's Order of 12/3/93 because he is neither a party to this action nor a movant to the Motion to Intervene and to Extend Time denied by the Magistrate's Order of 12/3/93 (cc: all counsel) (rlw) (Entered: 12/21/1993)
1825 OPINION (3 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 12/29/1993)
1826 ORDER (3 pgs) by Judge Richard A. Enslen in accordance w/opinion denying Jerry Binion's appeal of the Magistrate's 12/3/93 order (cc: all counsel) (rlw) (Entered: 12/29/1993)
1827 QUARTERLY REPORTS (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator which include Report on the Development of the New Hospital Facility, Out-of-Cell Activity Report, Overcrowding Report, Reports on the Length of Stay in the Egeler Temporary Holding Cells (rlw) (Entered: 12/29/1993)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 112 of 143

12/27/1993 12/27/1993
12/27/1993 01/14/1994 01/18/1994
01/31/1994 02/10/1994 02/28/1994 03/14/1994 03/15/1994 03/16/1994
03/21/1994

1828 LETTER to court from defendants concerning delay in completing construction of a Mental Health Correctional Facility (rlw) (Entered: 12/29/1993)
1829 ANNUAL AUDIT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator - report is for medical care, mental health care, administration, dental care for Jackson Regional Clinical Complex including the Egeler Facility, the Marquette Branch Prison, the Michigan Reformatory and the Riverside Psychiatric Center (rlw) (Entered: 12/29/1993)
1830 ANNUAL AUDIT - DENTAL CARE (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator (part of pldg. No. 1829) (rlw) (Entered: 12/29/1993)
1832 AUDIT REPORTS (STATUS REPORT) by Barbara J. Hladki, Manager Consent Decree Unit regarding the overcrowding and protection from harm section of the State Plan for Compliance (rlw) (Entered: 01/19/1994)
1831 TRANSMISSION FORM showing statement of retention of record of appeal [1785-1], appeal [1756-1], appeal [1186-1], appeal [1147-1], appeal [1107-1], appeal [985-1], appeal [984-1] filed by CCA on 01/12/94 and assigned CCA # 93-1222 & 93-1810 (ghl) (Entered: 01/19/1994)
1833 JANUARY 1994 REPORT (STATUS REPORT) by Independent Experts F. Warren Benton, Ph.D. and J. Franklin James, M.D. on Mental Health Care Services (rlw) (Entered: 02/01/1994)
1834 MONTHLY REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator, on the Staffing at the Riverside Psychiatric Center (rlw) (Entered: 02/10/1994)
1835 MOTION by plaintiff USA to consolidate upcoming medical and mental health hearing with Hadix hearing w/brief in support, certificate of service (rlw) (Entered: 02/28/1994)
1836 MONTHLY REPORT (STATUS REPORT) by defendants on staffing at the Riverside Psychiatric Center (rlw) (Entered: 03/14/1994)
1837 OPPOSITION by Hadix Amicus to pltf's motion to consolidate upcoming medical and mental health hearing with Hadix hearing [1835-1] w/certificate of service (rlw) (Entered: 03/15/1994)
1838 MOTION by defendants to file instanter (for leave to file) response to pltf's motion to consolidate upcoming medical and mental health hearing w/Hadix hearing w/brief in support w/PROPOSED Response to pltf's Motion to Consolidate Upcoming Medical and Mental Health Hearing with Hadix Hearing w/stamped proof of service (rlw) (Entered: 03/17/1994)
1839 LETTER to court from defendants regarding us of A-Block at Marquette Branch Prison as transtory housing unit and asserting that there is no

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 113 of 143

03/31/1994 03/31/1994
03/31/1994 04/04/1994 04/04/1994 04/04/1994 04/04/1994 04/04/1994 04/04/1994 04/05/1994

overcrowding at the facility (rlw) (Entered: 03/23/1994)
1840 OPINION (6 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 03/31/1994)
1841 ORDER (4 pgs) by Judge Richard A. Enslen in accordance w/opinion granting defts' motion to file instanter (for leave to file) response to pltf's motion to consolidate upcoming medical and mental health hearing w/Hadix hearing [1838-1], denying pltf's motion to consolidate upcoming medical and mental health hearing with Hadix hearing [1835-1] ; hearing is set for 9:00 a.m. on 4/28/94 covering the issues recommended by the Independent Expert ; briefing schedule deadlines: Deadline 1 is 5 p.m. on 4/8/94; Deadline 2 is 5 p.m. on 4/18/94; Deadline 3 is 5 p.m. on 4/20/94 (see this order for specifics) (cc: all counsel) (rlw) (Entered: 03/31/1994)
1842 RESPONSE by defendants to pltf's Motion to Consolidate Upcoming Medical and Mental Health with Hadix Hearing w/stamped proof of service (rlw) (Entered: 03/31/1994)
1843 SLIP OPINION from CCA re: CCA # 93-1222/1810; appeal [1785-1], appeal [1756-1] showing the Judgment of the District Court is AFFIRMED (ghl) (Entered: 04/04/1994)
1844 MANDATE from Sixth Circuit Court of Appeals re: CCA #: 93-1222,931810; affirming the decision of the District Court appeal [1785-1] affirming the decision of the District Court appeal [1756-1] re: order/judgment # 1747,1767:Costs:None (ghl) (Entered: 04/04/1994)
1845 MOTION by defendants seeking modification of multiple orders (to amend) requiring or pertaining to fixed-percentage mental health bedspace capacity w/brief in support, exhibits 1-8, stamped proof of service (rlw) (Entered: 04/06/1994)
1846 MOTION (Amendment) by defendants to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) w/brief in support, stamped proof of service (rlw) (Entered: 04/06/1994)
1847 MOTION by defendants to amend the 6/15/93 motion seeking approval for the replacement of the intermediate care program and the protective environment program with the residential treatment program w/attachments 1-2 w/brief in support, proof of service (rlw) (Entered: 04/06/1994)
1848 MOTION by defendants to file instanter (for leave to file) a revised submission of the program, staffing, operation and space use statement Huron Valley Psychiatric Hospital, as required by the 5/30/91 and 9/9/92 orders w/brief in support, PROPOSED Submission, proof of service (rlw) (Entered: 04/06/1994)
1849 QUARTERLY REPORTS (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator reporting on 1) report on the development of

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 114 of 143

04/05/1994 04/07/1994 04/07/1994 04/08/1994 04/08/1994 04/08/1994 04/08/1994
04/13/1994 04/15/1994
04/15/1994
04/15/1994

the new hospital facility 2) out-of-cell activity report 3) overcrowding report 4) reports on the length of stay in the Egeler Temporary Holding Cells (rlw) (Entered: 04/06/1994)
1850 FOOD SERVICE INSPECTION (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator for the months of February and March, 1994 at the Michigan Reformatory (rlw) (Entered: 04/06/1994)
1851 MOTION by defendants to extend time until 4/15/94 in which to answer Court Interrogatories to deft w/brief in support, proof of service (rlw) (Entered: 04/07/1994)
RECORD on Appeal returned from CCA re: CCA # 90-1366 consisting of Pleading #534 En Camera Document (ghl) (Entered: 04/08/1994)
1852 MOTION by plaintiff USA for permission to supplement report of Jeffrey Metzner, M.D. (for leave to file) w/brief in support, certificate of service (rlw) (Entered: 04/08/1994)
1853 LETTER to court from defendants w/attached Expert Witness Report of Dr. Stephen J. Hucker (rlw) (Entered: 04/08/1994)
1855 SUPPLEMENT by defendants w/submission of the revised program, staffing, operation and space use statement - Huron Valley Psychiatric Hospital as required by the order of 9/9/92 [1729-1], and the order of 5/30/91 [1543-1] (rlw) (Entered: 04/11/1994)
1854 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion to file instanter (for leave to file) a revised submission of the program, staffing, operation and space use statement - Huron Valley Psychiatric Hospital, as required by the 5/30/91 and 9/9/92 orders [18481] (cc: all counsel) (rlw) (Entered: 04/11/1994)
1856 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltf's motion for permission to supplement report of Jeffrey Metzner, M.D. (for leave to file) [1852-1] (cc: all counsel) (rlw) (Entered: 04/13/1994)
1857 RESPONSE by intervenor-plaintiff Hadix and the Knop amicus to defts' submission of the revised program staffing, operation and space use statement - Huron Valley Psychiatric Hospital as required by the 5/30/94 and 9/9/92 orders [1855](rlw) Modified on 04/19/1994 (Entered: 04/18/1994)
1858 RESPONSE by Hadix intervenor-plaintiffs and Knop amicus to defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and mental health services (amend) [1846-1] w/Exhibits 1-2 (rlw) Modified on 04/19/1994 (Entered: 04/18/1994)
1859 RESPONSE by Hadix intervenor-plaintiffs, Knop amicus to defts' motion to amend the 6/15/93 motion seeking approval for the replacement of the intermediate care program and the protective program with the residential treatment program 1-2 [1847-1] w/Exhibits 1-2 (rlw) Modified on

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 115 of 143

04/15/1994 04/15/1994 04/15/1994 04/15/1994 04/18/1994 04/18/1994 04/18/1994 04/18/1994 04/18/1994 04/19/1994

04/19/1994 (Entered: 04/18/1994)
1860 PROOF OF SERVICE by Hadix intervenor-plaintiffs and Knop amicus for pldg. Nos. 1858-1860 (rlw) Modified on 04/19/1994 (Entered: 04/18/1994)
1861 OPPOSITION by Hadix intervenor-plaintiffs and Knop amicus to defts' motion seeking modification of multiple orders (to amend) requiring or pertaining to fixed-percentage mental health bedspace capacity [1845-1] w/attachments, certificate of service (rlw) Modified on 04/19/1994 (Entered: 04/18/1994)
1862 ORDER Rejecting Pleading (1 pg) by Magistrate Judge Doyle A. Rowland - Movant James Lanni's Motion for Expansion of Compliance pursuant to FRCP Rule 24 which requires a person desiring to intervene to file a motion to intervene (cc: all counsel) (rlw) (Entered: 04/19/1994)
1863 ORDER Rejecting Pleading (1 pg) by Magistrate Judge Doyle A. Rowland - Charles C. Clement's Affidavit and Statement of Facts pursuant to FRCP Rule 24 which requires a person desiring to intervene to file a motion to intervene (cc: all counsel) (rlw) (Entered: 04/19/1994)
1864 RESPONSE by plaintiff USA to defts' submission of the revised program, staffing, operation, and space use statement for the Huron Valley Psychiatric Hospital [1855] w/certificate of service (rlw) (Entered: 04/19/1994)
1865 OPPOSITION by plaintiff USA to defts' motion seeking modification of multiple orders (to amend) requiring or pertaining to fixed-percentage mental health bedspace capacity [1845-1] w/certificate of service (rlw) (Entered: 04/19/1994)
1866 RESPONSE by plaintiff USA to defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) [1846-1] w/certificate of service (rlw) (Entered: 04/19/1994)
1867 RESPONSE by plaintiff USA to defts' motion to amend the 6/15/93 motion seeking approval for the replacement of the intermediate care program and the protective environment program with the residential treatment program w/attachments 1-2 [1847-1] w/certificate of service (rlw) (Entered: 04/19/1994)
1868 OPPOSITION by defendants to the January 1994 Independent Experts' report [1833-1] w/attachment, proof of service (rlw) (Entered: 04/19/1994)
1869 ERRATA - Exhibit 1 (SUPPLEMENT) by plaintiff USA which was inadvertently omitted from pltfs' opposition to defts' motion seeking modification of multiple orders requiring or pertaining to fixedpercentage mental health bedspace capacity [1865-1] (rlw) (Entered: 04/19/1994)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 116 of 143

04/20/1994 04/20/1994 04/20/1994 04/20/1994
04/20/1994 04/20/1994
04/20/1994
04/20/1994
04/20/1994 04/20/1994 04/21/1994

1870 WITNESS LIST and EXHIBIT LIST (Proposed) submitted by plaintiff USA w/certificate of service (rlw) (Entered: 04/20/1994)
1871 WITNESS and EXHIBIT LISTS submitted by defendant for hearing set on 4/28/94 (rlw) (Entered: 04/21/1994)
1872 REPLY by defendants to pltf USA's response to defts' motion seeking modification of multiple orders (to amend) requiring or pertaining to fixed-percentage mental health bedspace capacity [1845-1] w/stamped proof of service (rlw) (Entered: 04/21/1994)
1873 REPLY by defendants to pltf USA's response to defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) [1846-1] w/stamped proof of service (rlw) (Entered: 04/21/1994)
1874 REPLY by defendants to pltf USA's response to defts' submission of the revised program, staffing, operation and space use statement for the Huron Valley Psychiatric Hospital [1855-1] w/attachment, proof of service (rlw) (Entered: 04/21/1994)
1875 REPLY by defendants to pltf USA's response to defts' motion to amend the 6/15/93 motion seeking approval for the replacement of the intermediate care program and the protective environment program with the residential treatment program w/attachments 1-2 [1847-1] w/stamped proof of service (rlw) (Entered: 04/21/1994)
1876 REPLY by defendants to pltf USA's response to defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) [1846-1] w/stamped proof of service (rlw) (Entered: 04/21/1994)
1877 REPLY by defendants to Hadix and Knop Amici's response to defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) [1846-1] w/stamped proof of service (rlw) (Entered: 04/21/1994)
1878 REPLY by defendants to Knop and Hadix Amici's response to defts' subsmission of the revised program, staffing, operation and space use statement for the Huron Valley Psychiatric Hospital [1855-1] w/proof of service (rlw) (Entered: 04/21/1994)
1879 MEMORANDUM (LETTER) from Larry Bennett to Chris DeRose regarding the Correctional/Mental Health Psychiatric Facility on behalf of from defendants (rlw) (Entered: 04/22/1994)
1880 MONTHLY REPORT (STATUS REPORT) by Barbara J. Hladki, Consent Decree Coordinator on behalf of defendants on staffing at the Riverside Psychiatric Center (rlw) (Entered: 04/22/1994)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 117 of 143

04/25/1994
04/28/1994 04/28/1994
04/28/1994 04/28/1994 05/06/1994 05/09/1994 05/11/1994 05/17/1994 05/23/1994 05/23/1994
05/27/1994 05/27/1994 05/27/1994

1881 ERRATA by defendants to their motion seeding modification of multilple orders requiring or pertaining to fixed-percentage mental health bedspace capacity [1845-1] w/proof of service (rlw) (Entered: 04/25/1994)
1882 SUPPLEMENTAL WITNESS and EXHIBIT LISTS submitted by defendant w/proof of service (rlw) (Entered: 04/28/1994)
PROCEEDING before Judge Richard A. Enslen; hearing held at 9:00 a.m. on 4/28/94 on deft's motions ; post-hearing briefs are due by 5/27/94 at 5 p.m.; deposition of Dr. Hucker may be taken by 5/13/94; J. Martin, Reporter (2 Exhibit Lists attached) (rlw) (Entered: 04/29/1994)
1883 APRIL 1994 REPORT (STATUS REPORT) by Independent Experts F. Warren Benton, Ph.D. and J. Franklin James, M.D. on Mental Health Care Services (rlw) (Entered: 05/02/1994)
1884 RESPONSE by defendants to the April, 1994 Report of the Independent Experts in Mental Health Care Services w/stamped proof of service (rlw) (Entered: 05/02/1994)
1885 NOTICE by defendants of taking de bene esse deposition of Stephen Hucker, M.D. on 5/17/94 at 9 a.m. in Toronto, ON CAN w/proof of service (rlw) (Entered: 05/09/1994)
1886 LETTER to court from defendants notifying the court of the delay in taking the deposition of Dr. Hucker until 5/17/94 (rlw) (Entered: 05/09/1994)
1887 LETTER to court from defendants (Barbara Hladki, Manager Consent Decree Unit) regarding Blanket Property Restrictions w/attachments (rlw) (Entered: 05/12/1994)
INFORMATION copy from CCA affirming District Court decision re: CCA # 93-1222/1810; appeal [1186-1], appeal [1147-1] (ghl) (Entered: 05/17/1994)
1888 REPORT (STATUS REPORT) by defendants (Barbara Hladki, Manager of Consent Decree Unit) of the External Foodservice Inspection at the Marquette Branch Prison (rlw) (Entered: 05/24/1994)
1889 ORDER (1 pg) by Judge Richard A. Enslen directing the attorneys to file responses on or before 6/17/94 to the request of the Independent Expert and Monitor, F. Warren Benton, PhD. to increase his hourly fee to $95 (cc: all counsel) (rlw) (Entered: 05/24/1994)
1890 BRIEF by Knop and Hadix amici regarding issues at the 4/28/94 hearing w/attachment, certificate of service (rlw) (Entered: 05/31/1994)
1891 BRIEF by plaintiff USA in summary of the 4/28/94 mental health hearing w/certificate of service (rlw) (Entered: 05/31/1994)
1892 FINAL REPORT (STATUS REPORT) by defendants from the Michigan Department of Public Health on the outbreak of Legionnaires' Disease at

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 118 of 143

05/27/1994 06/02/1994 06/17/1994 06/22/1994 06/23/1994
06/29/1994 07/08/1994 07/15/1994
07/21/1994 07/25/1994 07/25/1994
08/01/1994
08/09/1994

the Jackson Prison Complex (rlw) (Entered: 05/31/1994)
1893 BRIEF by defendants regarding the mental health issues discussed at the hearing on 4/28/94 w/stamped proof of service (rlw) (Entered: 05/31/1994)
1894 LETTER to court from defendants regarding housekeeping matters concerning the Independent Expert (rlw) (Entered: 06/06/1994)
1895 MONTHLY REPORT (STATUS REPORT) by defendants (Barbara Hladki, Manager Consent Decree Unit) on staffing at the Riverside Reception Center (rlw) (Entered: 06/17/1994)
1896 ORDER (2 pgs) by Judge Richard A. Enslen that the compensation of Dr. F. Warren Benton, Independent Expert is increased to $95.00 per hour (cc: all counsel) (rlw) (Entered: 06/22/1994)
1897 LETTER from court to defts' attorney S. Przekop-Shaw requesting the submission of the names and prisoner numbers of any prisoners transferred from SPSM to Riverside since 1/1/93, either for acute care at Riverside or for CCU care at Riverside (rlw) (Entered: 06/28/1994)
1898 TRANSCRIPT of trial deposition of Stephen John Hucker, an expert for the defts held 5/17/94; transcribed by Susan Olubick, CSR (rlw) (Entered: 06/29/1994)
1899 FOOD SERVICE INSPECTION (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit at the Michigan Reformatory (rlw) (Entered: 07/12/1994)
1900 ORDER rejecting pleading (1 pg) by Magistrate Judge Doyle A. Rowland the Affidavit of Warden's Forum Chairman James E. Lanni advising that this filer is not a part to this action, therefore leave of the court is required (cc: all counsel) (rlw) (Entered: 07/15/1994)
1901 MONTHLY REPORT (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit on staffing at the Riverside Recption Center (rlw) (Entered: 07/22/1994)
1902 OPINION (5 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 07/26/1994)
1903 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/opinion that defts' submission of the Revised Program, Staffing, Operation and Space Use Statement for the Huron Valley Psychiatric Hospital is rejected [1808] [1864] (cc: all counsel) (rlw) (Entered: 07/26/1994)
1904 LETTER from F. Warren Benton, Ph.D., Special Master to defts' attorney Susan Przekop-Shaw to follow up on several issues that arose during the tour that he took w/Dr. James to the new Correctional Mental Health Facility and the Riverside Psychiatric Center (rlw) (Entered: 08/02/1994)
1905 ANNUAL EXTERNAL FOODSERVICE INSPECTION (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit; inspection

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 119 of 143

08/19/1994 08/22/1994 08/23/1994 08/24/1994 09/06/1994 09/06/1994
09/06/1994 09/06/1994
09/06/1994 09/06/1994

is of the State Prison of Southern Michigan (rlw) (Entered: 08/10/1994)
1906 ORDER (1 pg) by Judge Richard A. Enslen to reject Ronald G. Taylor, Jr.'s Motion for Protective Order because this filer is not a party to this action, therefore leave of the court is required (cc: all counsel) (rlw) (Entered: 08/19/1994)
1907 MOTION by plaintiff USA to extend deadline until 9/16/94 to conduct site visit and report to court on status of defts' new Mental Health Facility w/brief in support (rlw) (Entered: 08/22/1994)
1908 ORDER (1 pg) by Judge Richard A. Enslen granting pltf USA's motion to extend deadline until 9/16/94 to conduct site visit and report to court on status of defts' new Mental Health Facility [1907-1]; reports due on or before 9/16/94 (cc: all counsel) (rlw) (Entered: 08/24/1994)
1909 LETTER to court from Special Master F. Warren Benton w/attached Report required by the 7/25/94 Order concerning Submission of the Revised Program, Staffing, Operation, and Space Use Statement -- Huron Valley Psychiatric Hospital (rlw) (Entered: 08/24/1994)
1910 OPINION (32 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/07/1994)
1911 ORDER (3 pgs) by Judge Richard A. Enslen in accordance w/opinion granting in part and denying in part defts' motion seeking modification of multiple orders (to amend) requiring or pertaining to fixed-percentage mental health bedspace capacity [1845-1] (see order for specifics) (cc: all counsel) (rlw) (Entered: 09/07/1994)
1912 OPINION (3 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/07/1994)
1913 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/opinion denying w/o prejudice defts' original motion to seek approval of the replacement of the intermediate care program and the protective environment program under the court's jurisdiction with the residential treatment program in their place [1792-1], granting in part and denying in part defts' motion to amend the 6/15/93 motion seeking approval for the replacement of the intermediate care program and the protective environment program with the residential treatment program w/attachments 1-2 [1847-1] (cc: all counsel) (rlw) (Entered: 09/07/1994)
1914 OPINION (2 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/07/1994)
1915 ORDER (2 pgs) by Judge Richard A. Enslen in accordance w/opinion granting in part and denying in part defts' motion to modify the USA Plans addressing identification, referral, evaluation and treatment of prisoners with serious mental disorders who are housed in segregation units and outpatient mental health services (amend) [1846-1], denying as moot defts' motion to modify (amend) the USA plans addressing identification, referral, evaluation and treatment of prisoners with serious

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 120 of 143

09/12/1994 09/16/1994 09/19/1994 09/19/1994 09/19/1994 09/19/1994
09/20/1994 09/20/1994 09/21/1994
09/27/1994

mental disorders who are housed in segregation units and outpatient mental health services [1791-1] (cc: all counsel) (rlw) (Entered: 09/07/1994)
1916 AMENDED ORDER (3 pgs) by Judge Richard A. Enslen of the 9/6/94 Opinion and Order [1910 and 1911] of defts' motion seeking modification of multiple order requiring or pertaining to fixed-percentage mental health bedspace capacity [1845] is granted in part and denied in part (cc: all counsel) (rlw) (Entered: 09/12/1994)
1917 REPORT (STATUS REPORT) by Knop and Hadix amicus regarding planning and implementation of the Huron Valley Psychiatric Facility w/Exhibits 1-9, certificate of service (rlw) (Entered: 09/16/1994)
1918 BUILDING TRADES INSPECTION REPORTS (STATUS REPORT) by Barbara Hladki, Consent Decree Unit Manager for the Consent Decree institutions (4 volumes) (rlw) (Entered: 09/19/1994)
1919 MOTION by defendants for leave to file Report on outpatient caseload w/brief in support, PROPOSED Report on Outpatient Caseload (rlw) (Entered: 09/20/1994)
1920 PROOF OF SERVICE by defendants for pldg. No. 1919 (rlw) (Entered: 09/20/1994)
1921 LETTER to defts' counsel Susan Przekop-Shaw from F. Warren Benton Ph.D., Special Master in reply to defts' response to the report by Dr. James and Dr. Benton of 7/27/94 and COMMENTS regarding defts' motion for an order to purge defts of contempt; to approve the Modified Development Schedule and to remit the contempt fines to defts for use in implementing mental health care to the State's inmates (rlw) (Entered: 09/20/1994)
1922 REPORT (STATUS REPORT) by plaintiff USA on the programming and operation of the Huron Valley Center w/certificate of service, attachment (rlw) (Entered: 09/20/1994)
1923 TRANSCRIPT of hearing held April 28, 1994 before Judge Richard A. Enslen; transcribed by Jarratt W. Martin (rlw) (Entered: 09/20/1994)
1924 ORDER (2 pgs) by Judge Richard A. Enslen that the Section K Plan describing the Residential Treatment Program be submitted by defts on or before 11/1/94; the deadline for submitting a Section K Plan defining the uniform admission and discharge criteria for each level of mental health care and improvements to be made in the design and implementation of the mental health care recording system and computerized tracking system is 11/1/94; that compliance w/the final clause of the Amended Order [1916] shall commence on 11/15/94 (cc: all counsel) (rlw) (Entered: 09/21/1994)
1925 ORDER (1 pgs) by Magistrate Judge Doyle A. Rowland granting defts' motion for leave to file Report on outpatient caseload [1919-1] (cc: all counsel) (rlw) (Entered: 09/27/1994)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 121 of 143

09/27/1994 10/11/1994
10/24/1994 10/26/1994 10/31/1994 10/31/1994 11/01/1994
11/01/1994 11/01/1994 11/01/1994 11/02/1994
11/08/1994 11/08/1994
11/30/1994

1926 REPORT by defendants on outpatient caseload (rlw) (Entered: 09/28/1994)
1927 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager, Consent Decree Unit on out of cell activity for each Consent Decree institution, the length of stay in the temporary holding cells at the Egeler Facility, the number of prisoners who used the mini law library at Marquette (rlw) (Entered: 10/12/1994)
1928 WRIT OF CERTIORARI from the U.S. Supreme Court No. 93-2042 is denied (ghl) (Entered: 10/26/1994)
1929 FIRE MARSHAL INSPECTION (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit for the Consent Decree institutions (rlw) (Entered: 10/26/1994)
1930 MOTION by defendants to extend time to file residential treatment program Section K Plan w/brief in support, attachments, stamped proof of service (rlw) (Entered: 10/31/1994)
1931 FIRE MARSHALL INSPECTION (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit (rlw) (Entered: 11/03/1994)
1932 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland directing pltf to respond to defts' motion to extend time to file residential treatment program Section K Plan [1930-1] on or before 11/7/94 (cc: all counsel) (rlw) (Entered: 11/03/1994)
1933 NOTICE OF APPEAL to Circuit Court by defendant, re: decision entered on 09/06/94 [1911], 09/12/94 [1916], 09/21/94 [1924](rlw) Modified on 11/03/1994 (Entered: 11/03/1994)
RECEIPT #201496 in the amount of $105.00 submitted by defts for Appeal Fee (rlw) (Entered: 11/03/1994)
1934 SUBMISSION (RESPONSE) by defendants of the admission and discharge criteria and monitoring plan as required by the 9/6/94 order [1911] w/attachment (rlw) (Entered: 11/03/1994)
1935 LETTER to court from Barbara Hladki, Manager Consent Decree Unit enclosing the report from the Dept. of Labor on the Occupational Safety Hazard Survey conducted at the Marquette Branch Prison (rlw) (Entered: 11/03/1994)
1936 RESPONSE by plaintiff to defts' motion to extend time to file residential treatment program Section K Plan [1930-1] w/certificate of service (rlw) (Entered: 11/08/1994)
1937 ORDER (1 pgs) by Magistrate Judge Doyle A. Rowland granting defts' motion to extend time to file residential treatment program Section K Plan [1930-1]; defts shall have until 12/1/94 (cc: all counsel) (rlw) (Entered: 11/08/1994)
MAILED information copies to CCA consisting of Notice of Appeal,

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 122 of 143

11/30/1994
12/01/1994 12/01/1994 12/01/1994 12/01/1994 12/01/1994 12/06/1994 12/06/1994 12/06/1994 12/07/1994 12/12/1994 12/12/1994
12/13/1994

docket sheet and order and opinion of 9/6/94, order of 9/12/94 [1916-1], and order of 9/21/94 [1924-1] (cc: District Judge and all counsel) (ADR Administrator,mjs) (Entered: 11/30/1994)
1938 LETTER requesting designation of record on appeal mailed to Susan Przekop-Shaw, Asst. Attorney General, re: appeal [1933-1]; designation ddl set for 9:00 5/29/91 (cc: all other counsel) (cc: all counsel) (ADR Administrator,mjs) (Entered: 11/30/1994)
1939 SUBMISSION (NOTICE) by defendants of the Section K Plan relating to the residential treatment program as required by the 9/6/94 order w/Exhibits 1-2, stamped proof of service (rlw) (Entered: 12/01/1994)
1940 MOTION by defendants to extend time to comply w/Court Order of 9/6/94 w/brief in support, Exhibits 1A-2B (rlw) (Entered: 12/01/1994)
1941 MOTION by defendants to exceed page limitation to file emergency motion w/brief in support, PROPOSED emergency motion for stay pending appeal, brief in support, Exhibits 1-2 (rlw) (Entered: 12/01/1994)
1942 MOTION by defendants for emergency advancement of decision (to expedite) pldgs. 1940-1941 w/brief in support, stamped proof of service (rlw) (Entered: 12/01/1994)
1946 CHANGE OF ADDRESS by movant James Lanni (rlw) (Entered: 12/08/1994)
1943 SUPPLEMENT by defendants w/attached Page 9 of Exhibit A which was omitted from defts' submission of the admission and discharge criteria and monitoring plan [1934-1] (rlw) (Entered: 12/06/1994)
1944 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion to exceed page limitation to file emergency motion [1941-1] (cc: all counsel) (rlw) (Entered: 12/06/1994)
1945 MOTION (EMERGENCY) by defendants for stay pending appeal w/brief in support, Exhibits 1-2, stamped proof of service (rlw) (Entered: 12/06/1994)
1947 OPPOSITION by plaintiff to defts' motion for emergency advancement of decision (to expedite) pldgs. 1940-1941 [1942-1] w/certificate of service (rlw) (Entered: 12/08/1994)
1948 DESIGNATION for Record on Appeal by defts including these transcripts filed 1/8/87, 3/25/91, 5/31/91, 7/6/92, (rlw) (Entered: 12/13/1994)
1949 OPINION AND ORDER (4 pgs) by Judge Richard A. Enslen granting in part and denying in part defts' motion for emergency advancement of decision (to expedite) pldgs. 1940-1941 [1942-1] (cc: all counsel) (rlw) (Entered: 12/13/1994)
1950 QUALITY ASSURANCE AUDITS REPORTS (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit of medical,

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 123 of 143

12/19/1994 12/19/1994 12/19/1994 12/20/1994 12/22/1994 12/27/1994 01/03/1995
01/05/1995 01/05/1995 01/06/1995
02/22/1995 02/22/1995 02/22/1995

administrative, mental health and dental audits conducted in Consent Decree facilities in 1994 (rlw) (Entered: 12/13/1994)
1951 RESPONSE by Knop and Hadix amicus to defts' emergency motion for stay pending appeal [1945-1] w/certificate of service (rlw) (Entered: 12/19/1994)
1952 RESPONSE by Knop and Hadix amicus to defts' motion to extend time to comply w/Court Order of 9/6/94 [1940-1] w/certificate of service (rlw) (Entered: 12/19/1994)
1953 OPPOSITION by plaintiff to defts' emergency motion for stay pending appeal [1945-1] w/certificate of service (rlw) (Entered: 12/19/1994)
1954 RESPONSE by plaintiff to defts' motion to extend time to comply w/Court Order of 9/6/94 [1940-1] w/attachments, certificate of service (rlw) (Entered: 12/21/1994)
1955 TRANSMISSION FORM showing notice of of appeal [1933-1] filed by CCA on 12/6/94 and assigned CCA # 94-2391 (rlw) (Entered: 12/28/1994)
1956 RESPONSE by Special Master F. Warren Benton to defts' motion to extend time to comply w/Court Order of 9/6/94 [1940-1] w/attachment (rlw) (Entered: 12/28/1994)
1957 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager Consent Decree Unit; reports include Out-of Cell Activity Report, Reports on the Length of Stay in the Egeler Temporary Holding Cells, Overcrowding Report (rlw) (Entered: 01/04/1995)
1958 REPLY by defendants to pltf's opposition for extension of time to comply with order of 9/6/94 [1954-1] w/attachments, proof of service (rlw) (Entered: 01/09/1995)
1959 REPLY by defendants to pltf's opposition to defts' emergency motion for stay pending appeal [1953-1] w/stamped proof of service (rlw) (Entered: 01/09/1995)
1960 AUDIT REPORTS (STATUS REPORT) from Barbara Hladki, Manager Consent Decree Unit on Overcrowding & Protection from Harm for the Consent Decree Facilities as required by Section IV F. of the State Plan (rlw) (Entered: 01/09/1995)
1961 OPINION (17 pgs) by Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 02/22/1995)
1962 ORDER (1 pg) by Judge Richard A. Enslen in accordance w/opinion denying defts' motion for stay pending appeal [1945-1] (cc: all counsel) (rlw) (Entered: 02/22/1995)
1963 OPINION AND ORDER (6 pgs) by Judge Richard A. Enslen granting in part and denying in part defts' motion to extend time to comply w/Court Order of 9/6/94 [1940-1]; the deadline for opening 96 of the 400 beds at

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 124 of 143

02/22/1995
02/24/1995 03/06/1995 03/06/1995 03/08/1995 03/14/1995
03/14/1995
03/16/1995 03/20/1995 03/24/1995 03/24/1995 03/27/1995

Huron Valley Center is extended to 12/31/95; the deadline for Residential Treatment Program beds is modified to require only the 172 beds at Riverside until 12/31/95 when 520 beds must be operational system wide; the parties must meet and discuss the various mental health issues pending before the court (cc: all counsel) (rlw) (Entered: 02/22/1995)
1964 REPORT OF INDEPENDENT EXPERTS (STATUS REPORT) by F. Warren Benton, Ph.D. and J. Franklin James, M.D. for February 1995 on Mental Health Care Admission and Discharge Criteria (rlw) (Entered: 02/22/1995)
1965 LETTER to court from defendants (Barbara Hladki, Manager Consent Decree Unit) re the opening of Woman's Unit at the Huron Valley Center as of 2/1/95 (rlw) (Entered: 02/27/1995)
1966 NOTICE OF APPEAL to Circuit Court by defendants re: Opinion and Order [1963] entered on 2/22/95 (rlw) (Entered: 03/07/1995)
RECEIPT #201776 in the amount of $105.00 submitted by defts for appeal fee [1966] (rlw) (Entered: 03/07/1995)
MAILED information copies to CCA consisting of Notice of Appeal [1966], docket sheet and opinion/order # 1963 (cc: District Judge and all counsel) (rlw) (Entered: 03/08/1995)
1967 NOTICE OF APPEAL to Circuit Court by defts Michigan Dept. Cor., MI, State of, John Engler, Kenneth L. McGinnis, Dan L. Bolden, John Jabe, Pamela K. Withrow, John Hawley re: decision entered on 02/22/95 (tlb) (Entered: 03/16/1995)
RECEIPT #101386 in the amount of $ 105.00 submitted by Michigan Dept. Cor., MI, State of, John Engler, Kenneth L. McGinnis, Dan L. Bolden, John Jabe, Pamela K. Withrow, John Hawley for appeal fee (tlb) (Entered: 03/16/1995)
MAILED information copies to CCA consisting of Notice of Appeal, docket sheet and order #1963 (cc: District Judge and all counsel) (tlb) (Entered: 03/16/1995)
1968 TRANSMISSION FORM showing notice of appeal [1966-1] filed by CCA on 3/13/95 and assigned CCA # 95-1243 (rlw) (Entered: 03/23/1995)
1969 TRANSCRIPT ORDER Form from appellant's atty indicating that transcript is already on file in the Clerk's office (rlw) (Entered: 03/27/1995)
1970 TRANSMISSION FORM showing notice of appeal [1967-1] filed by CCA on 3/16/95 and assigned CCA #95-1258 (rlw) (Entered: 03/27/1995)
1971 ORDER from CCA; re: CCA #95-1243 dismissing the appeal [1966-1] because of granting appellant's motion to voluntarily dismiss the appeal w/attached copy of appellants' motion (rlw) (Entered: 03/30/1995)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 125 of 143

03/31/1995 04/10/1995
05/09/1995 05/09/1995
05/19/1995 05/23/1995 05/25/1995 06/01/1995 06/01/1995

1972 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the quarterly report on Out of Cell Activity from each Consent Decree institution, the quarterly report on Overcrowding, the quarterly report on the length of stay in the temporary holding cells at the Charles Egeler Correctional Facility (rlw) (Entered: 03/31/1995)
1973 ORDER from CCA; re: CCA # 94-2391/95-1258 State of Michigan's motion for a stay is granted in part and denied in part. The April 30,1995 deadline for opening 868 mental health beds is stayed pending disposition of these appeals. The remaining deadlines and requirements contained in the district court's orders shall not be stayed; in the event these deadlines approach and this appeal is not yet resolved, the State of Michigan may renew its motion for a stay. The motion to expedite is granted. The clerk is directed to expedite the briefing schdeule, and upon completion of briefing,these cases shall be placed on the oral argument calendar at the earliest available date. (ghl) (Entered: 04/11/1995)
1974 OPINION (5 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 05/10/1995)
1975 ORDER (2 pgs) by Chief Judge Richard A. Enslen in accordance w/opinion that defts shall provide complete access to the Standish Maximum Facility for the Independent Experts; any report issued by the Independent Experts or Dr. Metzner about the Standish Maximum Facility shall be separate from other reports; that on or before 6/8/95 the parties shall brief the issue of whether the tour by the Independent Experts of the Standish Maximum Facility is beyond their authority under the jurisdiction of this Court (10 page limit) (cc: all counsel) (rlw) (Entered: 05/10/1995)
1976 NOTICE by appeals clerk of completion of record - advising the Sixth Circuit that this record consists of 1975 pleadings as of this date (rlw) (Entered: 05/19/1995)
1977 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) w/attached copy of the 1995 building and trades inspection of the Michigan Reformatory (rlw) (Entered: 05/24/1995)
1978 LETTER to court from independent expert F. Warren Benton to defts regarding discussing possible findings (rlw) (Entered: 05/25/1995)
1979 REPORT (STATUS REPORT) by defendants to the Court regarding outpatient admissions to Residential Treatment Program (RTP) discharges from acute units pursuant to the September 6 and September 12, 1994 orders w/attachment, stamped proof of service (rlw) (Entered: 06/02/1995)
1980 ORDER (2 pgs) by Chief Judge Richard A. Enslen that the 6/8/95 deadline in the Order [1975] concerning the filing of briefs on the issue of the Independent Experts tour of the Standish Facility is extended to 7/11/95 (cc: all counsel) (rlw) (Entered: 06/02/1995)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 126 of 143

06/20/1995 06/21/1995 06/21/1995 06/21/1995 06/29/1995 07/05/1995 07/06/1995
07/10/1995 07/10/1995 07/11/1995 07/11/1995 07/21/1995

1981 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) of the Marquette Branch Prison (rlw) (Entered: 06/20/1995)
1982 FIRST JUNE 1995 REPORT (STATUS REPORT) by the Independent Experts F. Warren Benton, Ph.D. and J. Franklin James, M.D. assessment of follow-up care at the Standish Maximum Correctional Facility (rlw) (Entered: 06/22/1995)
1983 SECOND JUNE 1995 REPORT (STATUS REPORT) by Independent Experts F. Warren Benton, Ph.D. and J. Franklin James, M.D. assessment of mental health care at the Marquette Branch Prison (rlw) (Entered: 06/22/1995)
1984 EPIDEMIC CONTAGION PLAN (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 06/22/1995)
1985 OBJECTIONS by Knop and Hadix amici to defts' Epidemic Contagions Plan Policy Directives [1984-1] w/attachments 1-2, certificate of service (rlw) (Entered: 06/29/1995)
1986 STATUS REPORT by defendants regarding need for additional residential treatment program (RTP) beds pursuant to the Feb. 22, 1995 Order; w/stamped Proof of Service; w/attachments. (bd) (Entered: 07/07/1995)
1987 QUARTERLY REPORTS: (STATUS REPORT) Out of Cell Activity Report (including report on use of mini law library in the Trustee Div. at Marquette Branch Prison); Use of Temporary Holding Cells at Egeler Facility Report; Overcrowding Report by Barbara Hladki, Manager (Consent Decree Unit) (bd) Modified on 07/07/1995 (Entered: 07/07/1995)
1988 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Marquette Branch Prison (rlw) (Entered: 07/12/1995)
1989 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the State Prison of Southern Michigan-Central Complex and the State Prison of Southern Michigan-Trustee Division (rlw) (Entered: 07/12/1995)
1990 ORDER (2 pgs) by Chief Judge Richard A. Enslen that the deadline for filing briefs on the issue of whether a tour by the Independent Experts of the Standish Facility was beyond their authority is extended to 7/21/95 (cc: all counsel) (rlw) (Entered: 07/12/1995)
1991 RESPONSE by Knop and Hadix Amici to the Court Order regardin ghe tour of the Standish Maximum Facility by the Independent Experts is beyond their authority under the jurisdiction of this Court [1975-1] w/certificate of service (rlw) (Entered: 07/12/1995)
1992 MOTION by deft to exceed page limitation on brief concerning whether the tour of the Standish Maximum Fac is beyond the authority of

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 127 of 143

07/24/1995
07/24/1995 07/24/1995 07/24/1995
07/24/1995 07/25/1995 07/28/1995 07/28/1995 08/16/1995 09/18/1995
10/02/1995

Independent Experts and this court w/brief in support; w/PROPOSED brief (tlb) (Entered: 07/21/1995)
1993 MOTION by plaintiff for leave to file one day out of time , and to exceed page limitation by one page w/brief in support, certificate of service, PROPOSED brief in support of pltf's and Independent Expert's right to access to the Standish Maximum Correctional Facility w/certificate of service (rlw) (Entered: 07/24/1995)
1994 RESPONSE by defendant to the June 1995 Standish Facility Report of the independent Experts [1982-1] w/Exhibit 1, stamped proof of service (rlw) (Entered: 07/24/1995)
1995 RESPONSE by defendants to the June 1995 Report of the Independent Experts on Marquette Branch Prison [1983-1] w/Exhibit 1, stamped proof of service (rlw) (Entered: 07/24/1995)
1996 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion to exceed page limitation on brief concerning whether the tour of the Standish Maximum Fac is beyond the authority of Independent Experts and this court [1992-1] (cc: all counsel) (rlw) (Entered: 07/24/1995)
1997 RESPONSE by defendants concerning whether the tour of the Standish Maximum Facility is beyond the authority of the Independent Experts and this court [1990-1] w/Exhibit 1, stamped proof of service (rlw) (Entered: 07/24/1995)
1998 SUPPLEMENT by plaintiff consisting of Exhibit A which was inadvertently omitted from pltf's motion for leave to file one day out of time [1993-1] and to exceed page limitation by one page [1993-2] (rlw) (Entered: 07/25/1995)
1999 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltf's motion for leave to file one day out of time [1993-1] and to exceed page limitation by one page [1993-2] (cc: all counsel) (rlw) (Entered: 07/28/1995)
2000 MEMORANDUM by plaintiff USA in support of pltf's and Independent Expert's right to access to the Standish Maximum Correctional Facility pursuant to the order of 5/9/95 [1975-1] (rlw) (Entered: 07/28/1995)
2001 ORDER (1 pg) by Chief Judge Richard A. Enslen ; Status Conf is set for 2:30 p.m. on 9/8/95 before Judge Enslen (cc: all counsel) (rlw) (Entered: 08/17/1995)
2002 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting nonparty member James E. Lanni's Emergency Motion for Estoppel for Contagious Epidemic Request for Show Cause and Preliminary Injunction and a Letter w/attachments because a motion for leave to intervene is required (cc: all counsel) (rlw) (Entered: 09/18/1995)
2003 REPORT OF THE INDEPENDENT EXPERTS for September 1995 on Assessment of Mental Health Care (STATUS REPORT) by F. Warren

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 128 of 143

10/04/1995
10/04/1995 10/05/1995 10/19/1995 11/20/1995 11/20/1995 11/22/1995 12/04/1995 12/05/1995 12/05/1995 12/05/1995

Benton, Ph.D. and J. Franklin James, M.D. (rlw) (Entered: 10/10/1995)
2005 ORDER from CCA; re: CCA # 94-2391, 95-1258, that the Court's 9/94 orders are affirmed; DISMISSING as moot defts' challenge to the requirement in the district court's orders of 2/95 requiring the opening of certain beds at the Huron Valley facility; AFFIRMING that portion of the district court's 2/95 orders requiring the opening of 400 mental health beds at the Huron Valley facity by 12/31/95; REVERSING that portion of the district court's 2/95 orders reducing the number of residential beds defts were required to open (rlw) (Entered: 10/24/1995)
2006 MANDATE from Sixth Circuit Court of Appeals re: CCA #: 94-2391, 95-1258; appeal [1967-1] appeal [1933-1] see CCA order #2005 (rlw) (Entered: 10/24/1995)
2007 STATUS REPORT by plaintiff on mental health issues w/certificate of service, attachment (rlw) (Entered: 10/24/1995)
2004 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for 1) report on the out of cell activity from each institution 2) report of the use of the temporary holding cells at the Egeler Facility 3) overcrowding report (rlw) (Entered: 10/19/1995)
2008 ANNUAL LIFE SAFETY CODE INSPECTION (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the State Prison of Southern Michigan-Trustee Division (rlw) (Entered: 11/21/1995)
2009 MIOSHA INSPECTION REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Charles Egeler Correctional Facility and the State Prison of Southern Michigan - Central Complex (rlw) (Entered: 11/21/1995)
2010 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) of the State Prison of Southern Michigan, Central and Trustee Division (rlw) (Entered: 11/27/1995)
2011 FIRE MARSHALL INSPECTION REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the State Prison of Southern Michigan including SPSM Central Complex, SPSM South Complex and the Charles Egeler Facility (rlw) (Entered: 12/05/1995)
2012 OVERCROWDING AND PROTECTION FROM HARM AUDIT REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 12/05/1995)
2013 OPINION (7 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 12/05/1995)
2014 ORDER (2 pgs) by Chief Judge Richard A. Enslen in accordance w/opinion that defts shall provide complete access to the Standish Maximum Facility for the Independent Experts (cc: all counsel) (rlw) (Entered: 12/05/1995)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 129 of 143

12/08/1995 12/20/1995 12/27/1995
12/28/1995 12/28/1995 01/05/1996 01/05/1996 01/11/1996 01/11/1996 01/11/1996 01/11/1996
01/12/1996
01/31/1996 02/06/1996 03/07/1996

2015 ATTORNEY APPEARANCE by defendants adding attorney Leo H. Friedman w/certificate of service (rlw) (Entered: 12/11/1995)
2016 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Charles Egeler Correctional Facility (rlw) (Entered: 12/21/1995)
2017 STATUS REPORT by defendants on implementation of 400 bed capacity at Huron Valley Center and on current status of residential treatment program capacity w/Exhibits 1-3, certificate of service (rlw) (Entered: 12/27/1995)
2018 REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) of the Life safety Code Inspection SOSM-Central Complex (rlw) (Entered: 01/02/1996)
2019 REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) of the Food Service Inspection of the Charles Egeler Correctional Facility (rlw) (Entered: 01/02/1996)
2020 OPPOSITION by defendants to pltf's status report [2007-1] w/Exhibits 15, certificate of service (rlw) (Entered: 01/05/1996)
2021 RESPONSE by defendants to the Independent Expert's September 1995 report on mental health issues [2003-1] w/Exhibits 1-3, certificate of service (rlw) (Entered: 01/05/1996)
2022 HEALTH CARE AUDITS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for 1995 of the Consent Decree facilities and the Huron Valley Center (rlw) (Entered: 01/11/1996)
2023 NOTICE OF APPEAL to Circuit Court by defendant [2014-1] re opinion [2013] and order [2014] entered on 12/4/95 (rlw) (Entered: 01/11/1996)
2024 RECEIPT #202391 in the amount of $105.00 submitted by defts for appeal fee (rlw) (Entered: 01/11/1996)
2025 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting Affidavit of Complaint of Antonio McKinney for failing file a motion to intervene pursuant to FRCP Rule 24(c) (cc: all counsel) (rlw) (Entered: 01/12/1996)
MAILED information copies to CCA consisting of Notice of Appeal [2023], docket sheet and opinion [2013] and order [2014] (cc: District Judge and all counsel) (rlw) Modified on 01/12/1996 (Entered: 01/12/1996)
2026 TRANSMISSION FORM showing notice of appeal [2023-1] filed by CCA on 1/26/96 and assigned CCA # 96-1129 (rlw) (Entered: 02/01/1996)
2027 TRANSCRIPT ORDER Form from appellant's atty that no hearings were held concerning this appeal (rlw) (Entered: 02/07/1996)
2028 FOOD SERVICE INSPECTION (STATUS REPORT) for the Michigan

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 130 of 143

03/22/1996 03/22/1996 03/22/1996 03/22/1996 04/08/1996 04/11/1996 04/11/1996
04/12/1996

Reformatory by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 03/08/1996)
2029 JOINT MOTION by deft State of MI, pltf USA to vacate the requirement for comprehensive evaluations at the acute care unit or comprehensive care unit for prisoners prior to placement in a residential treatment program from outpatient care w/brief in support, stamped proof of service (rlw) (Entered: 03/26/1996)
2030 JOINT MOTION by deft State of MI, pltf USA to defer accreditation of the Huron Valley Center by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) from May 1, 1996 to April 1, 1997 w/brief in support, stamped proof of service (rlw) (Entered: 03/26/1996)
2031 JOINT MOTION by deft State of MI, pltf USA to modify (amend) the September 6, 1994 order reducing the number of required residential treatment program (RTP) beds, as provided for in the February 22, 1995 order w/brief in support, stamped proof of service (rlw) (Entered: 03/26/1996)
2032 JOINT MOTION by deft State of MI, pltf USA to defer deadline for compliance with fixed-percentage mental health bedspace requirements from June 1996 to June 1997 w/brief in support, stamped proof of service (rlw) (Entered: 03/26/1996)
2033 MOTION by intervenor-plaintiff Knop and Hadix amicus to extend time to file responses to the four pending joint motion dated 3/21/96 (see motion for specific listing of motions) w/brief in support, certificate of service (rlw) (Entered: 04/08/1996)
2034 OPINION (4 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 04/12/1996)
2035 ORDER (2 pgs) by Chief Judge Richard A. Enslen in accordance w/opinion granting the joint motion of the US and Michiagn to defer accreditation of the Huron Valley Center by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) from May 1, 1996 to April 1, 1997 [2030-1], granting the joint motion of the US and Michigan to vacate the requirement for comprehensive evaluations at the acute care unit or comprehensive care unit for prisoners prior to placement in a residential treatment program from outpatient care [20291], granting the joint motion of the US and Michigan to modify (amend) the September 6, 1994 order reducing the number of required residential treatment program (RTP) beds, as provided for in the February 22, 1995 order [2031-1], granting the joint motion of the US and Michigan to defer deadline for compliance with fixed-percentage mental health bedspace requirements from June 1996 to June 1997 [2032-1] (cc: all counsel) (rlw) (Entered: 04/12/1996)
2036 ORDER (1 pgs) by Magistrate Judge Doyle A. Rowland granting Amici's motion to extend time to file responses to the four pending joint motion dated 3/21/96 (see motion for specific listing of motions) [2033-1] (cc: all counsel) (rlw) (Entered: 04/17/1996)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 131 of 143

04/15/1996 04/16/1996
04/16/1996 04/16/1996 04/16/1996 04/16/1996 04/18/1996 05/23/1996 06/06/1996 06/10/1996 06/11/1996

2037 MOTION by amicus to extend time an addition seven days, to 4/22/96 to file responses to four pending motions (see motion for specifics) w/brief in support, certificate of service (rlw) (Entered: 04/17/1996)
2038 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to joint motion by USA and Michigan to vacate the requirment for comprehensive evaluations at the acute care unit or comprehensive care unit for prisoners prior to placement in a residential treatment program from outpatient care [2029-1] w/certificate of service (rlw) Modified on 04/17/1996 (Entered: 04/17/1996)
2039 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to joint motion of the US and Michigan to defer accreditation of the Huron Valley Center by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) from May 1, 1996 to April 1, 1997 [2030-1] w/certificate of service (rlw) (Entered: 04/17/1996)
2040 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to the joint motion of the US and Michigan to modify the September 6, 1994 order reducing the number of required residential treatment program (RTP) beds, as provided for in the February 22, 1995 order [2031-1] w/certificate of service (rlw) (Entered: 04/17/1996)
2041 RESPONSE by amicus Natl Prisn Proj ACLU, MI ACLU to the joint motion of the US and Michigan to defer deadline for compliance with fixed-percentage mental health bedspace requirements from June 1996 to June 1997 [2032-1] w/certificate of service (rlw) (Entered: 04/17/1996)
2042 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for out of cell activity from each institution; use of the temporary holding cells at the Egeler Facility; overcrowding report (rlw) (Entered: 04/17/1996)
2043 ORDER (1 pgs) by Magistrate Judge Doyle A. Rowland granting Amici's motion to extend time an addition seven days, to 4/22/96 to file responses to four pending motions (see motion for specifics) [2037-1]; the deadline for filing such responses is extended to 4/22/96 (cc: all counsel) (rlw) (Entered: 04/18/1996)
2044 FOOD SERVICE INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Marquette Branch Prison (rlw) (Entered: 05/23/1996)
2045 ORDER (2 pgs) by Chief Judge Richard A. Enslen that paragraphs I.G. and II.C of this Court's 2/21/86 [164] order are stayed for a period of one year (cc: all counsel) (rlw) (Entered: 06/07/1996)
2046 JOINT MOTION by deft MI, State of, pltf USA to dismiss portions of the Consent Decree at the Marquette Branch Prison and the Michigan Reformatory w/brief in support, Exhibits 1-11, certificate of service (rlw) (Entered: 06/11/1996)
2047 MOTION by defts for "immediate termination" of the Consent Decree

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 132 of 143

06/21/1996
07/01/1996 07/01/1996 07/01/1996 07/01/1996 07/01/1996 07/01/1996
07/02/1996 07/03/1996 07/03/1996
07/03/1996

pursuant to the Prison Litigation Reform Act Amending 18:3626 w/brief in support (rlw) (Entered: 06/11/1996)
2048 ORDER (3 pgs) by Chief Judge Richard A. Enslen re defts' motion for "immediate termination" of the Consent Decree pursuant to the Prison Litigation Reform Act Amending 18:3626 [2047-1] parties shall submit by 7/1/96 a brief on the issue of whether the stay provided for in the PLRA should be into effect; briefs re the retroactive application of the PLRA due no later than 7/19/96; responses due no later than 7/29/96 (cc: all counsel) (rlw) (Entered: 06/21/1996)
2049 MOTION by amicus to file brief in excess of 25 pages w/brief in support (mrs) (Entered: 07/01/1996)
2050 ORDER (1 pgs) by Chief Judge Richard A. Enslen granting amici's motion to file brief in excess of 25 pages [2049-1] (cc: all counsel) (mrs) (Entered: 07/01/1996)
2051 KNOP AND HADIX amici's joint memorandum (RESPONSE) of law pursuant to the court's order of 6/20/96 [2048-1] (mrs) (Entered: 07/01/1996)
2052 PROOF OF SERVICE by amici for Knop and Haidx joint memorandum of law pursuant to the court's order of 6/20/96, and motion w/brief in support to file brief in excess of 25 pages (mrs) (Entered: 07/01/1996)
2053 MOTION by pltf (USA) to extend time and if need be, temporary suspension on the "automatic stay" of 18 U.S.C. sec. 3626(e)(2) pending decision as to the stay's constitutionality w/brief in support and prf of svc (mrs) (Entered: 07/01/1996)
2054 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting in part and denying in part USA's motion to extend time and if need be, temporary suspension on the "automatic stay" of 18 U.S.C. sec. 3626(e)(2) decision as to the stay's constitutionality [2053-1]; and further ordered that the parties shall submit no later than 7/2/96 their briefs on the issue of whether the automatic stay should go into effect (cc: all counsel) (mrs) (Entered: 07/01/1996)
2055 SUPPLEMENTAL BRIEF by defts in support defts' motion for "immediate termination" of the Consent Decree pursuant to the Prison Litigation Reform Act Amending 18:3626 [2047-1] w/prf of svc (mrs) (Entered: 07/02/1996)
2056 OPINION (18 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (mrs) (Entered: 07/03/1996)
2057 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting in part and denying in part the joint motion of the USA and the State of MI to dismiss portions of the Consent Decree at the Marquette Branch Prison and the Michigan Reformatory [2046-1] (cc: all counsel) (mrs) (Entered: 07/03/1996)
2058 NOTICE (REPORT) on the out of cell activity from each institution from

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 133 of 143

07/08/1996 07/08/1996 07/09/1996 07/10/1996
07/11/1996 07/11/1996
07/12/1996 07/17/1996
07/22/1996 07/22/1996
07/22/1996
07/22/1996 07/24/1996

the Michigan Dept. of Correction (mrs) (Entered: 07/03/1996)
2059 ATTORNEY APPEARANCE by defts adding attorney(s) Lisa C. Ward; w/prf. of svc. (tlb) (Entered: 07/09/1996)
2062 ORDER from CCA; re: CCA #96-1129 remanding the matter back to District Court for reconsideration in light of recent amendments to 18 U.S.C. sec 3626 [Appeal [2023-1] as to defts (tlb) (Entered: 07/12/1996)
2060 NOTICE (REPORT) of 1996 Building and Trades inspection of the Michigan Reformatory submitted by the Michigan Department of Corrections (mrs) (Entered: 07/09/1996)
2061 NOTICE (REPORT) of external food service inspection for the State Prison of Southern Michigan, Central Complex and the State Prison of Southern Michigan, South Complex submitted by the Michigan Department of Corrections (mrs) (Entered: 07/10/1996)
2063 NOTICE OF APPEAL to Circuit Court by defts re: order, [2056-1] entered on 07/03/96 (tlb) (Entered: 07/12/1996)
2064 RECEIPT #202752 in the amount of $105.00 submitted by Michigan Corr Comm, MI, State of, John Engler, Kenneth L. McGinnis, Dan L. Bolden, John Jabe, Pamela K. Withrow, John Hawley for appeal filing fee (tlb) (Entered: 07/12/1996)
MAILED information copies to CCA consisting of Notice of Appeal [2063-1], docket sheet and order [2056-1] (cc: District Judge and all counsel) (tlb) (Entered: 07/12/1996)
2065 ORDER (1 pg) by Chief Judge Richard A. Enslen rejecting a Motion for Equal Protection of the Law filed by a James E. Lanni (prisoner) because this filer is not a party to the action (cc: all counsel) (rlw) (Entered: 07/17/1996)
2066 MOTION by pltf for leave to file brief w/brief in support, certificate of service, PROPOSED Memorandum of Law in response to defts' Motion to Terminate Relief (rlw) (Entered: 07/23/1996)
2067 MOTION by defts for leave to file instanter w/brief in support, PROPOSED Brief in Support of the Constitutionality of the Prison Litigation Reform Act, pursuant to the 6/20/96 Order (rlw) (Entered: 07/23/1996)
2068 MOTION by defts to exceed page limitation w/brief in support, PROPOSED Brief in Support of the Constitutionality of the Prison Litigation Reform Act, pursuant to the 6/20/96 order (rlw) (Entered: 07/23/1996)
2069 PROOF OF SERVICE by defts for pldg. Nos. 2066-2067 (rlw) (Entered: 07/23/1996)
2070 MOTION by pltf USA to extend time to file a responsive brief as required under the Court's Order of 6/20/96 w/brief in support, certificate

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 134 of 143

07/24/1996 07/24/1996 07/24/1996 07/25/1996 07/26/1996 07/30/1996 07/30/1996 08/05/1996 08/05/1996 08/06/1996 08/06/1996 08/08/1996 08/08/1996

of service (rlw) (Entered: 07/24/1996)
2071 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion for leave to file instanter [2067-1] (cc: all counsel) (rlw) (Entered: 07/25/1996)
2072 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion to exceed page limitation [2068-1] to file their brief on the Constitutionality of the Prison Litigation Reform Act pursuant to the Court's Order of 6/20/96 (cc: all counsel) (rlw) (Entered: 07/25/1996)
2073 MEMORANDUM by defts on the Constitutionality of the Prison Litigation Reform Act pursuant to the Court's order [2048-1] w/Appendix A-C (rlw) (Entered: 07/25/1996)
2074 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltf's motion to extend time to file a responsive brief as required under the Court's Order of 6/20/96 [2070-1] (cc: all counsel) (rlw) (Entered: 07/25/1996)
2075 TRANSMISSION FORM showing notice of appeal [2063-1] filed by CCA on 7/19/96 and assigned CCA 96-1907 (rlw) (Entered: 07/29/1996)
2076 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting pltf's motion for leave to file brief [2066-1] in response to defts' motion to terminate in excess of the page limit (cc: all counsel) (rlw) (Entered: 07/30/1996)
2077 RESPONSE by pltf to defts' motion for "immediate termination" of the Consent Decree pursuant to the Prison Litigation Reform Act Amending 18:3626 [2047-1] w/certificate of service (rlw) (Entered: 07/30/1996)
2078 TRANSCRIPT ORDER Form from appellant's atty indicating no hearings making a transcript unnecessary (rlw) (Entered: 08/05/1996)
2079 RESPONSE by pltf to defts' motion for "immediate termination" of the Consent Decree pursuant to the Prison Litigation Reform Act Amending 18:3626 [2047-1] w/attachments, certificate of service (rlw) (Entered: 08/06/1996)
2080 MOTION by deft for leave to file instanter w/PROPOSED reply to the USA and the Knop and Hadix Amici's brief in response to defts' motion for termination w/certificate of service (rlw) (Entered: 08/06/1996)
2081 MOTION by defts to exceed page limitation w/PROPOSED reply to the USA and the Knop and Hadix Amici's briefs in response to defts' motion for termination w/certificate of service (rlw) (Entered: 08/06/1996)
2082 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion for leave to file instanter w/PROPOSED reply to the USA and the Knop and Hadix Amici's brief in response to defts' motion for termination [2080-1] (cc: all counsel) (rlw) (Entered: 08/08/1996)
2083 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts'

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 135 of 143

08/08/1996 08/26/1996 08/30/1996 09/11/1996 09/11/1996 09/12/1996 09/12/1996 09/12/1996 09/16/1996 09/23/1996 10/16/1996
11/12/1996

motion to exceed page limitation w/PROPOSED reply to the USA and the Knop and Hadix Amici's briefs in response to defts' motion for termination [2081-1] (cc: all counsel) (rlw) (Entered: 08/08/1996)
2084 REPLY by defts to pltf's response to defts' motion for "immediate termination" of the Consent Decree pursuant to the Prison Litigation Reform Act Amending 18:3626 [2047-1] w/Exhibits A-B (rlw) (Entered: 08/08/1996)
2085 MOTION by pltf for access to defts' facilities, staff and documents w/brief in support, attachment A, certificate of service (rlw) (Entered: 08/26/1996)
2086 MANDATE from Sixth Circuit Court of Appeals re: CCA #: 96-1129; remanding the matter back to District Court [Appeal [2023-1] re: order #2026 (rlw) (Entered: 09/05/1996)
2087 ORDER from CCA; re: CCA # 90-1701 that defts' motion for immediate termination of the order entered 5/1/90 is denied and the appeal is remanded to the district court for reconsideration (rlw) (Entered: 09/11/1996)
2088 MANDATE from Sixth Circuit Court of Appeals re: CCA #: 90-1701; denying appeal by defts [1147-1] for motion for immediate termination of the order entered 5/1/90 re: order #2087 (rlw) (Entered: 09/11/1996)
2089 OPPOSITION by defts to pltf's motion for access to defts' facilities, staff and documents [2085-1] w/attachments A-B, Certificate of Service (rlw) (Entered: 09/13/1996)
2090 OPINION (7 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 09/13/1996)
2091 ORDER (1 pg) by Chief Judge Richard A. Enslen in accordance w/opinion granting pltf's motion for access to defts' facilities, staff and documents [2085-1]; that Sections E and F of the consent Decree are terminated (cc: all counsel) (rlw) (Entered: 09/13/1996)
2092 REPLY by pltf to defts' response in opposition to pltf's motion for access to Consent Decree facilities [2085-1] w/certificate of service (rlw) Modified on 09/23/1998 (Entered: 09/16/1996)
2093 ORDER from CCA; re: CCA #96-1907 that defts' motion for a stay and for relief in mandamus is denied (rlw) (Entered: 09/25/1996)
2094 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending 9/30/96 on 1) the report on the out of cell activity from the Egeler Facility, the State Prison of Southern Michigan-Central Complex and the State Prison of Southern Michigan-South Complex 2) the report of the use of temporary holding cells at the Egeler Facility 3) the overcrowding report (rlw) (Entered: 10/17/1996)
2095 NOTICE OF APPEAL to Circuit Court by defts re: opinion [2090] and

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 136 of 143

11/12/1996 11/15/1996 12/06/1996 12/18/1996 12/20/1996 12/27/1996 12/30/1996 01/03/1997 01/03/1997 01/03/1997 01/10/1997 01/13/1997
01/13/1997 01/13/1997

order [2091-1] entered on 9/12/96 (rlw) (Entered: 11/13/1996)
2096 RECEIPT #202946 in the amount of $105.00 submitted by defts for appeal fee (rlw) (Entered: 11/13/1996)
MAILED information copies to CCA consisting of Notice of Appeal [2095-1], docket sheet and opinion [2090] and order [2091] (cc: District Judge and all counsel) (rlw) (Entered: 11/15/1996)
2097 TRANSMISSION FORM showing notice of appeal [2095-1] filed by CCA on 12/2/96 and assigned CCA 96-2464 (rlw) (Entered: 12/06/1996)
2098 TRANSCRIPT ORDER Form from appellant's atty indicating no hearings were held (rlw) Modified on 12/19/1996 (Entered: 12/19/1996)
2099 LETTER from court to Appellant State of Michigan to designate the record on appeal w/in 10 days (rlw) (Entered: 12/20/1996)
2100 DESIGNATION for Record on Appeal by defts re: appeal [2095-1] (tlb) (Entered: 12/30/1996)
2101 NOTICE by defts of summary reports of audits conducted on medical and mental health care at various facilities w/exhs. I-V (tlb) (Entered: 01/02/1997)
2102 FOOD INSPECTION REPORT (STATUS REPORT) for the Charles Egeler correctional Facility by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 01/07/1997)
2103 SUMMARY REPORTS (STATUS REPORT) of the Protection From Harm Audit by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 01/07/1997)
2104 FIRE MARSHALL INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 01/07/1997)
2105 NOTICE by court to the Court of Appeals advising the record is being retained by the District Court pursuant to Rule 11, F.R.A.P. (rlw) (Entered: 01/10/1997)
2106 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending 12/31/96 for 1) the report on the out of cell activity from the Egeler Facility, the State Prison of Southern Michigan-Central Complex and the State Prison of Southern Michigan-South Complex 2) the report of the use of the temporary holding cells at the Egeler Facility and 3) the overcrowding report, including the latest population projections (rlw) (Entered: 01/14/1997)
2107 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Charles Egeler Correctional Facility (rlw) (Entered: 01/15/1997)
2108 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the State Prison of

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 137 of 143

01/27/1997 01/31/1997
02/03/1997 02/06/1997
03/10/1997 03/25/1997
03/31/1997
04/03/1997 04/29/1997 05/01/1997 05/09/1997 05/14/1997 05/19/1997

Southern Michigan-Central Complex and the State Prison of Southern Michigan-South Complex (rlw) (Entered: 01/15/1997)
2109 ORDER REJECTING PLEADING (1 pg) by Magistrate Judge Doyle A. Rowland rejecting Notice of Appeal, order sent only to USA (cc: all counsel) (mrs) (Entered: 01/29/1997)
2130 REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) of the Medical, Dental, Administrative and Mental Health Audits in institutions subject to the Consent Decree w/attached 1997 Annual Audit Report (rlw) (Entered: 01/05/1998)
2110 CAPACITY REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the Egeler Facility - exceeding the rated capacity (rlw) (Entered: 02/04/1997)
2111 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland rejecting pltf's Motion to Withdraw Notice of Appeal because the Notice of Appeal had been filed in error and was rejected by Order and returned to pltf's counsel (cc: all counsel) (rlw) (Entered: 02/06/1997)
2112 LETTER to court from Special Master, F. Warren Benton requesting that the Court defer the deadline for compliance with the fixed-percentage requirements until 12/31/97 (rlw) (Entered: 03/11/1997)
2113 CAPACITY REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) advising that at the Charles Egeler Correctional Facility they exceeded the facility rated capacity by one prisoner during the weekend of 3/14/97 (rlw) (Entered: 03/26/1997)
2114 ORDER (2 pgs) by Chief Judge Richard A. Enslen that parties may respond to the letter written by Dr. F. Warren Benton, dated 3/5/97 (dkt#2112) no later than 30 days from the date of this order (cc: all counsel) (mrs) (Entered: 03/31/1997)
2115 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending in March of 1997 (rlw) (Entered: 04/04/1997)
2116 COMMENTS (RESPONSE) by defts on the 3/5/97 mental health suggestions of Court's Independent Experts by the Court's order [2114-1] w/certificate of service (rlw) (Entered: 04/29/1997)
2117 COMMENTS (RESPONSE) by pltf USA on the Independent Expert's letter of 3/4/97 as ordered by the Court [2114-1] w/certificate of service (rlw) (Entered: 05/01/1997)
2118 CHANGE OF ADDRESS by Michael J. Barnhart on behalf of Hadix intervenor-pltfs (rlw) (Entered: 05/12/1997)
2119 ATTORNEY APPEARANCE by defts adding attorney Michael A. Nickerson w/certificate of service (rlw) (Entered: 05/15/1997)
2120 ACCREDITATION of the Huron Valley Center (STATUS REPORT) by

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 138 of 143

07/25/1997 10/15/1997
10/28/1997 12/04/1997 12/08/1997 12/16/1997
12/23/1997 12/23/1997 12/31/1997
01/20/1998 01/22/1998

Barbara Hladki, Manager (Consent Decree Unit) performed by JCAHO effective 5/1/97 (rlw) (Entered: 05/20/1997)
2121 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending 6/97 (rlw) (Entered: 07/25/1997)
2122 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending in September of 1997 for 1) out of cell activity from Egeler Facility, State Prison of Southern Michigan-Central Complex, Parnall Correctional Facility 2) the use of temporary holding cells at the Egeler Facility 3) overcrowding report (rlw) (Entered: 10/16/1997)
2123 FRAP 11 CERTIFICATE of Record tansmitted to CCA re: CCA # 961907/2464, appeal [2095-1], appeal [2063-1] (rlw) (Entered: 10/28/1997)
2124 LETTER to court from Barbara Hladki, Manager (Consent Decree Unit) re increase in the rated capacity of the Reception and Guidance Center (rlw) (Entered: 12/05/1997)
2125 NOTICE by pltf of recent enactment w/attachment, certificate of service (rlw) (Entered: 12/09/1997)
2126 ORDER (1 pg) by Chief Judge Richard A. Enslen rejecting Motion for Sanctions for Failure to Comply with Consent Decree filed by James M. Cummings because pursuant to FRCP Rule 24(c) a Motion to Intervene is required by an individual not a party to the action (cc: all counsel) (rlw) (Entered: 12/16/1997)
2127 REPORT OF THE FIRE MARSHALL INSPECTION (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for State Prison of Southern Michigan, the Parnall Correctional Facility, The Charles Egeler Correctional Facility (rlw) (Entered: 12/23/1997)
2128 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for 1997 for Charles Egeler Correctional Facility (rlw) (Entered: 12/23/1997)
2129 OVERCROWDING AND PROTECTION FROM HARM AUDITS REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the facilities at State Prison of Southern Michigan, Central Complex, Parnall Correctional Facility, Charles Egeler Correctional Facility (rlw) (Entered: 01/05/1998)
2131 SLIP OPINION from CCA re: CCA # 96-2464; appeal [2095-1] dismissing this appeal for lack of jurisdiction (rlw) (Entered: 01/21/1998)
2132 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending December of 1997 including 1) the report on the out of cell activity from the Egeler Facility, State Prison of Southern Michigan-Central Complex and the Parnall Correctional Facility 2) the report of the use of temporary holding cells at the Egeler Facility 3) the overcrowding report (rlw) (Entered:

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 139 of 143

02/12/1998 02/25/1998 03/03/1998 03/11/1998 03/12/1998
03/20/1998 04/01/1998 04/03/1998

01/23/1998)
2133 MOTION by defts to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health bedspace requirements , and for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health w/brief in support, attachment A, proof of service (rlw) (Entered: 02/13/1998)
2134 RESPONSE by pltf USA to defts' motion to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health bedspace requirements [2133-1], and for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health [2133-2] w/cert of svc (mrs) (Entered: 02/25/1998)
2135 RESPONSE by intervenor-pltfs Knop and Hadix to defts' motion to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health bedspace requirements [2133-1], and for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health [2133-2] w/attachment 1, certificate of service (rlw) (Entered: 03/04/1998)
2137 JUDGMENT from CCA; re: CCA # 96-2464 dismissing the appeal by defts for lack of jurisdiction [2095-1] (rlw) (Entered: 03/16/1998)
2136 ORDER (2 pgs) by Chief Judge Richard A. Enslen that enforcement of the mental health provisions specified in defts motion [2133] is STAYED pending a final hearing on the defts' motion; setting defts' motion to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health bedspace requirements [2133-1] and for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health [2133-2] at 2:30 p.m. on 10/14/98 (cc: all counsel) (rlw) (Entered: 03/12/1998)
2138 MOTION by defts for reconsideration of that portion of the Court's 3/12/98 order which ordered the Court's independent experts to file a written report on defts' motion w/in 180 days and scheduled a hearing on defts' unopposed motion for 10/14/98 w/brief in support, Exhibits A-B, proof of service (rlw) (Entered: 03/24/1998)
2139 BUILDING TRADES INSPECTION REPORT (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for 1997 for the Parnall Correctional Facility, Buildings 7 and 34 in the State Prison of Southern Michigan-Central Complex (rlw) (Entered: 04/02/1998)
2140 RESPONSE by intervenor-pltfs Knop and Hadix to defts' motion for reconsideration of that portion of the Court's 3/12/98 order which ordered the Court's independent experts to file a written report on defts' motion w/in 180 days and scheduled a hearing on defts' unopposed motion for 10/14/98 [2138-1] w/attachments, certificate of service (rlw) (Entered: 04/03/1998)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 140 of 143

04/14/1998
04/24/1998
05/28/1998
06/12/1998 06/15/1998 06/19/1998 06/22/1998 06/22/1998 07/27/1998 07/29/1998 08/17/1998 10/02/1998

2141 ORDER (2 pgs) by Chief Judge Richard A. Enslen granting in part and denying in part defts' motion for reconsideration of that portion of the Court's 3/12/98 order which ordered the Court's independent experts to file a written report on defts' motion w/in 180 days and scheduled a hearing on defts' unopposed motion for 10/14/98 [2138-1] (cc: all counsel) (rlw) (Entered: 04/14/1998)
2142 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending March of 1998 for 1) out of cell activity from the Egeler Facility and the Parnall Correctional Facility 2) use of the temporary holdilng cells at the Egeler Facility 3) overcrowding report (rlw) (Entered: 04/24/1998)
2143 SLIP OPINION from CCA re: CCA # 96-1851/1907/1908/1943; appeal [2063-1] reversing the lower court orders holding the pre 1997 automatic stay provision unconstitutional; affirming the 5/30/96 award of attorney fees entered in the Hadix litigation by Judge Feikens and affirming Judge Enslen's decision to retain jurisdiction over the security classification system at the Michigan Reformatory and remanding for further proceedings consisten with this opinion (rlw) (Entered: 05/29/1998)
2144 REPORTS (STATUS REPORT) of the Annual External Food Service Inspection by Barbara Hladki, Manager (Consent Decree Unit) (rlw) (Entered: 06/12/1998)
2145 MANDATE from Sixth Circuit Court of Appeals re: CCA #: 96-1907; remanding the matter back to District Court [Appeal [2063-1] re: slip opinion # 2143 (rlw) (Entered: 06/17/1998)
2146 ORDER from CCA; re: CCA # 96-1907 that the mandate [2145-1] is hereby recalled (rlw) (Entered: 06/19/1998)
2147 JUNE 1998 REPORT OF THE INDEPENDENT EXPERTS (STATUS REPORT) by F. Warren Benton, Ph.D. and J. Franklin James, M.D. on the Termination of Mental Health Care Provisions of the Consent Decree (rlw) (Entered: 06/23/1998)
2148 ORDER from CCA; re: CCA # 96-1907, 96-1908, 96-1943 recalling the mandate (tlb) (Entered: 06/24/1998)
2149 CHANGE OF ADDRESS by Patricia A. Streeter on behalf of intervenorpltfs (rlw) (Entered: 07/28/1998)
2150 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending June of 1998 (rlw) (Entered: 07/29/1998)
2151 AMENDED MANDATE from Sixth Circuit Court of Appeals re: CCA #: 96-1907; amended to include no costs [2036] (rlw) (Entered: 08/19/1998)
2152 LETTER to court from F. Warren Benton, Independent Expert requesting an extension for the hearing set for 10/14/98 at 2:30 p.m. on the Motion to Terminate the Mental Health Provisions of the Consent Decree (rlw)

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 141 of 143

10/02/1998
10/13/1998 10/13/1998 11/04/1998 11/05/1998 11/05/1998
11/25/1998 12/08/1998 12/22/1998 12/31/1998 01/06/1999

(Entered: 10/02/1998)
2153 ORDER (1 pgs) by Chief Judge Richard A. Enslen adjourning the hearing on motion to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health bedspace requirements [2133-1] and for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health [2133-2] to 2:30 p.m. on 1/14/99 (cc: all counsel) (rlw) (Entered: 10/02/1998)
2154 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending 9/98 for 1) out of cell activity from Egeler Facility and the Parnall Correctional Facility 2) the use of temporary holding cells at Egeler Facility #) overcrowding report (rlw) (Entered: 10/13/1998)
2155 LETTER to court from F. Warren Benton, Independent Expert discussing the motion for termination of the mental health provisions and what the parties recommend (rlw) (Entered: 10/14/1998)
2156 LETTER to court from defts requesting the Court's guidance on how the Court anticipates proceeding in light of Dr. Benton's 10/8/98 letter (rlw) (Entered: 11/05/1998)
2157 OPINION (7 pgs) by Chief Judge Richard A. Enslen (cc: all counsel) (rlw) (Entered: 11/05/1998)
2158 ORDER (1 pg) by Chief Judge Richard A. Enslen in accordance w/opinion granting defts' motion to substitute the proposal for projecting bedspace requirements for the fixed percentage mental health requirements [2133-1], granting defts' motion for immediate (expedite) termination of those portions of the Consent Decree and for related orders or plans concerning mental health [2133-2]; sections of the Consent Decree dismissed and terminated are: Consent Decree Sections A.5, A.6 and A.7; State Plan Section II.H (cc: all counsel) (rlw) (Entered: 11/05/1998)
2159 SUMMARY (STATUS REPORT) of Assessment Measurements and Findings by defts w/proof of service (rlw) (Entered: 11/27/1998)
2160 JOINT MOTION by defts John Hawley, Pamela K. Withrow, John Jabe, Dan L. Bolden, Kenneth L. McGinnis, John Engler, Michigan Corr Comm, State of MI and pltf USA for termination of the Consent Decree pursuant to Prison Litigation Reform Act w/brief in support, Exhibits 1-5, proof of service (rlw) (Entered: 12/14/1998)
2161 REPORTS (STATUS REPORT) of the Overcrowding and Protection from Harm Audit by Barbara Hladki, Manager of the Consent Decree Unit (bd) (Entered: 12/22/1998)
2162 REQUEST by amicus for extension of time until 1/15/99 to respond to the parties' motion w/cert of svc (mrs) (Entered: 12/31/1998)
2163 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting Knop

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 142 of 143

01/15/1999 01/27/1999
01/27/1999 02/01/1999
02/03/1999 10/11/2002 11/07/2002 01/22/2003
02/07/2003 02/07/2003 02/07/2003 02/18/2003

and Hadix Amici's request for extension of time [2162-1];amici have until and including 1/15/99 to respond (cc: all counsel) (rlw) (Entered: 01/06/1999)
2164 RESPONSE by Knop and Hadix Amici to joint motion by defts and pltf for termination of the Consent Decree pursuant to Prison Litigation Reform Act [2160-1], certificate of service (rlw) (Entered: 01/15/1999)
2165 QUARTERLY REPORTS (STATUS REPORT) by Barbara Hladki, Manager (Consent Decree Unit) for the period ending 12/98 for the following: report on the out of cell activity from the Egeler Facility and the Parnall Corr Fac; report of the use of the temporary holding cells at the Egeler Facility; overcrowding report (rlw) (Entered: 01/28/1999)
2166 MOTION by defts to extend time until 2/8/99 to file reply brief to Knop and Hadix Amici's Response Brief w/brief in support, certificate of service, affidavit of Terrence Murphy (rlw) (Entered: 01/29/1999)
2167 ORDER (1 pg) by Magistrate Judge Doyle A. Rowland granting defts' motion to extend time until 2/8/99 to file reply brief to Knop and Hadix Amici's Response Brief [2166-1]; defts have and including 2/8/99 to file response and pltf has until 2/8/99 to file its reply brief (cc: all counsel) (rlw) (Entered: 02/01/1999)
2168 ORDER (3 pgs) by Chief Judge Richard A. Enslen granting the joint motion for termination of the Consent Decree pursuant to Prison Litigation Reform Act [2160-1] case dismissed (cc: all counsel) (rlw) (Entered: 02/03/1999)
2169 MOTION to intervene by Fa'Dee Mulazim and reopen case as pltf in class action w/brief in support, attachments, proof of service, financial document - copy of prisoner trust fund (rlw) (Entered: 10/15/2002)
2170 ORDER (1 pg) by Judge Richard A. Enslen denying motion to intervene by Fa'Dee Mulazim [2169-1], denying motion reopen case as pltf in class action [2169-2] (cc: all counsel) [EOD Date 11/8/02] (tlb) (Entered: 11/08/2002)
2171 ORDER REJECTING PLEADING (1 pg) by Magistrate Judge Ellen S. Carmody for Request for Court Order and Application to Claim by James Monroe Taft Tyson, Jr. rejected because the case is closed and he is not a party to the action (cc: all counsel) [EOD Date 1/24/03] (rlw) (Entered: 01/24/2003)
2172 MAIL RETURNED [2171-1] addressed to Philip Guzman on behalf of USA and marked "moved, not forwardable" (rlw) (Entered: 02/11/2003)
2173 MAIL RETURNED [2171-1] addressed to Mellie H. Nelson as to USA marked "moved, not forwardable" (rlw) (Entered: 02/11/2003)
2174 MAIL RETURNED [2171-1] addressed to Laurie J. Weinstein on behalf of USA marked "moved, not forwardable" (rlw) (Entered: 02/11/2003)
2175 MAIL RETURNED [2171-1] addressed to Timothy R. Payne on behalf

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

United States District Court for the Western District of Michigan - Docket Report

Page 143 of 143

10/24/2003
11/07/2003 11/07/2003 11/07/2003 11/24/2003

of USA marked "moved, not forwardable" (rlw) (Entered: 02/19/2003)
2176 ORDER REJECTING (1 pg) by Magistrate Judge Ellen S. Carmody motion for enforcement of the Consent Decree "Order" and State Plan of Compliance to Adron Floyd because the case closed (cc: all counsel) [EOD Date 10/27/03] (rlw) (Entered: 10/27/2003)
2177 MAIL RETURNED [2176-1] addressed to USA - Philip A. Guzman marked "moved, not forwardable" (rlw) (Entered: 11/10/2003)
2178 MAIL RETURNED [2176-1] addressed to USA - Mellie H. Nelson and marked "moved, not forwardable" (rlw) (Entered: 11/10/2003)
2179 MAIL RETURNED [2176-1] addressed to USA - Laurie Weinstein and marked "moved, not forwardable" (rlw) (Entered: 11/10/2003)
2180 MAIL RETURNED [2176-1] addressed to Timothy R. Payne on behalf of USA (rlw) (Entered: 11/24/2003)

PACER Service Center
Transaction Receipt

09/15/2005 17:18:12

PACER Login: hs0328

Client Code:

Description: Docket Report Search Criteria: 1:84-cv-00063-RAE

Billable Pages: 30

Cost:

2.40

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?969389302805554-L_280_0-1

9/15/2005

 
 Attorney General Press Release

wysiwyg://84/http://www.ag.state.m...GWebSite/press_release/prl0105.htm

[ Return To Index 1
\ AttOriiey General
Jennifer M. Granholm

For further ißiormationcontact: Chiís D<? Vitt 517-3?3-806Q

FOR IMMEDIATE RELEASE

February 4, 1999
Attorney General Jennifer M. Granholm commented today on U. S. District Court Judge Richard A. Enslen's February 3, 1999, order terminating one of Michigan's longest running prison litigation cases, U.S.A. v Michigan.
In 1984, the U. S. Department of Justice filed a lawsuit against Michigan over alleged improper conditions at five prisons: State Prison of Southern Michigan Central Complex, State Prison of Southern Michigan Trusty (now known as Parnall Correctional Facility), Charles Egeler Facility, Marquette Branch Prison and Michigan Reformatory. During the course of the case, numerous improvements were implemented at the prisons.
Judge Enslen's decision came as a result of a joint motion filed by the Department of Justice and Michigan. Both parties agreed that no constitutional violations now exist at these facilities.
Judge Enslen's order said, in part:
Over the years, the enforcement of the Decree has resulted in some significant progress in the conditions of Michigan prisons. This Court has previously terminated the mental health portion of the Consent Decree and on many occasions has noted progress in the various areas covered by the Decree. The Motion and its attached exhibits make the claim that there are no current and ongoing constitutional violations in the areas of prisoner classification, protection from harm, fire safety, sanitation and medical care. The Motion supports this claim by the affidavits of various state experts detailing progress under the Decree. Their affidavits do not indicate that all serious problems in each of these areas have been solved, but they are sufficient to support a conclusion that insofar as these litigants are concerned ongoing constitutional violations do not exist.
Granholm said: "One of the costliest prison cases in Michigan's history is finally over. We are hopefully nearing the end of an era of federal intervention in Michigan's prisons."
-30-

[ Return To Index ]
http://AGWebS¡te/press_release/pr10105.htm
State of Michigan, Department of Attorney General
Last Updated 02/05/99 14:49:05

• • • • • I I I U.S.A.v. Michigan PC-MI-001-002

 
 680 F.Supp. 270 (1988)
UNITED STATES of America, Plaintiff, v.
STATE OF MICHIGAN, James J. Blanchard, Governor of Michigan, Michigan Corrections Commission; Gwen Andrew, Chairman, Michigan Corrections Commission, Thomas
Eardley, G. Robert Cotton, Dwayne Waters, Don Le Duc, Members, Michigan Corrections Commission, Michigan Department of Corrections, Perry M. Johnson, Director, Michigan Department of Corrections, Robert Brown, Jr., Deputy Director, Michigan Department of Corrections, Dale Foltz, Regional Administrator, State Prison of Southern Michigan, John
Jabe, Warden, Michigan Reformatory, Theodore Koehler, Warden, Marquette Branch Prison, John Prelesnik, Administrator, Reception and Guidance Center, State Prison of Southern Michigan, and Jack Bergman, Administrator, Michigan Intensive Programming
Center, Defendants.
No. G84-63.
United States District Court, W.D. Michigan, S.D.
March 3, 1988.
271 *271 Andrew J. Barrick, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., for plaintiff.
National Prison Project of the American Civil Liberties Union by Elizabeth Alexander and Adjoa Aiyetoro, Washington, D.C., and Patricia A. Streeter, Detroit, Mich., as amicus curiae.
Frank J. Kelly, Atty. Gen., State of Mich. by Thomas Nelson and Brian MacKenzie, Lansing, Mich., for defendants.
OPINION
ENSLEN, District Judge.
The issue to be addressed in this opinion is whether the defendants' use of food loaf for prisoners in segregation units violates either the standards created by the Consent Decree and the State Plan for Compliance or 272 constitutional standards. Food loaf *272 is a substance prepared by grinding up and combining the various components of a regular prison meal.[1] This substance is formed into a loaf and baked. The baked loaf is then tightly wrapped in plastic and served to the inmate without tray or utensils. The only liquid provided to a prisoner placed on food loaf is water, which is made available through drinking fountains installed in segregation cells. All parties appear to agree that the caloric and nutritional content of the food loaf is substantially similar to the caloric and nutritional content of normal prison meals. Indeed, there could be little dispute on that issue, since the food loaf is prepared, as I have indicated, by combining the various items which make up a regular meal.
At present, the Department's Policy Directive number PD-BCF-50.04 (Jan. 1, 1987) provides that:
A prisoner housed in segregation may be immediately placed on the food loaf if he or she is observed engaging in any of the following behavior:
1. Misuse of food, serving tray, or eating utensils.
2. Refusing or failing to return uneaten food, the serving tray, dishes or eating utensils to the door slot....
3. Destroying a serving tray or throwing a tray or food.

4. Using containers to hold or throw other substances, such as human waste products.
Upon observing such behavior, staff must complete a misconduct report. The inmate is then placed on food loaf beginning with the next meal. The diet continues, three meals a day, for fourteen days, unless a hearing officer determines that the prisoner did not engage in the conduct as charged. Prisoners with special diet restrictions are given food loaf prepared within those restrictions, with certain notable exceptions. Prisoners with food allergies that do not require dietary restrictions or prisoners who are lactose-intolerant do not receive food loaf which omits those foods. Nothing in the policy restricts the number of times a prisoner may be placed on food loaf, nor does the policy require a period of normal meals between impositions of food loaf.
Defendants maintain that this policy was instituted not as a punitive measure, but as an administrative measure to control certain behavior which has become a serious problem in the segregation units at the consent decree institutions 0907 the throwing of food, utensils and human waste by prisoners.[2] Testimony at the previous compliance hearing indicated that this behavior is a relatively serious problem in the segregation units at the decree institutions, and one which contributes to the explosive environment that presently exists in those units. It also appears that the behavior is more frequently targeted toward guards, although prisoners are also subjected to it.
As indicated above, prisoners are placed on food loaf without the benefit of a prior hearing to determine whether the behavior charged actually occurred. A disciplinary hearing is held, however, sometime after the prisoner is placed on food loaf.[3] The policy directive provides that the hearing officer may make one of three determinations. First, the hearing officer may determine that the prisoner did not engage in the conduct as charged. In this instance, the prisoner is immediately returned to normal meals. Second, the hearing officer may 273 determine that the prisoner is guilty *273 of misconduct as charged. In this instance, the food loaf diet continues for fourteen days. Finally, the hearing officer may determine that the misconduct charge must be dismissed for "procedural reasons," but that the prisoner in fact engaged in the conduct as charged. In this event, the prisoner remains on food loaf for the entire fourteen day period, although the misconduct charge is deleted from his file.
The use of food loaf in segregation units raises at least three questions. First, the Court must determine whether its use violates the Consent Decree and the State Plan for Compliance. Second, I must determine whether food loaf constitutes a cruel and unusual punishment within the meaning of the Eighth Amendment. And finally, I must determine whether its use implicates the due process rights of prisoners in segregation units.
1. The Consent Decree. As the parties and amicus agree, the starting point for any discussion of this issue must be the Consent Decree and the State Plan for Compliance entered in this case. Neither document addresses the use of food loaf itself.[4] The State Plan for Compliance, however, provides that, "Prisoners in segregation and RGC shall continue to be served three meals per day, which are essentially the same meals as those served to general population." State Plan for Compliance § J(2). In evaluating whether food loaf violates the Consent Decree, then, the Court must determine whether food loaf is "essentially the same" as the meals served to prisoners in the general population.
Amicus argues strenuously that food loaf is not the same as the food served to the general public, pointing out that, "One could as easily argue that a child's water colors are `essentially the same' as those of Claude Monet because both creations are formed from the same materials." Amicus Brief in Support of an Order Banning Food Loaf at 2. While the argument is not without some logical appeal, I must disagree.
Food loaf is prepared from the same food items as meals served to the general population. While the contents of food loaf on any given day may be different from the contents of the regular prison meal, the food loaf is prepared using "normal" ingredients, and its contents, like the contents of a regular prison meal, differ from day to day. The caloric content of a food loaf meal is similar to the caloric content of a meal comprised of separate food items, and the nutritional value of the loaf is comparable to the nutritional value of the regular meals. The primary difference between food loaf and the regular meal is in its preparation, not its content. But that difference is not so striking as to make food loaf not "essentially the same" as the regular prison meal, at least not as the food loaf policy is presently written.[5] Moreover, food loaf is not the "normal" meal inside the segregation units. It is given

to inmates who have engaged in certain prohibited behavior, and it is given to them for a relatively short period of time, at least in most instances. Because the content of the food loaf is essentially similar to the content of normal prison meals, and because it is not fed to prisoners as a matter of course, but rather only as a result of the prisoner's negative conduct, I can find no grounds for holding that its use violates either the Consent Decree or the State Plan.[6]
274 *274 2. The Eighth Amendment. The fact that food loaf does not violate the Consent Decree would not sanction its use if the practice constituted cruel and unusual punishment within the meaning of the Eighth Amendment. I have no trouble characterizing the use of food loaf as a "punishment," despite the defendants' protestations to the contrary. Defendants characterize the practice as "an administrative action taken to maintain a clean and healthy environment," and have repeatedly claimed that food loaf is not used as a "sanction for misconduct," but rather as a method for removing "the opportunity for such behavior." Policy Directive PD-BCF-50.04. An analysis of the actual imposition of food loaf, however, indicates that it is, indeed, a punishment.
Food loaf is imposed only for specific types of misconduct. Its use is always accompanied by a misconduct report and disciplinary charge. There can be no doubt that eating food loaf is less pleasant than eating a regular prison meal, and thus, it is not difficult to conclude that inmates placed on food loaf consider it to be a punishment for misconduct. Moreover, the purpose of food loaf, as described by the policy directive, indicates its punitive character. It is specifically designed to prevent the throwing of food, utensils and human waste by removing the opportunity to engage in that behavior and also, hopefully, by impressing inmates with the understanding that extremely unpleasant results will occur whenever they engage in the prohibited behavior.[7]
Finally, witnesses at the most recent compliance hearing testified that food loaf was a necessary measure in order to maintain staff morale within the segregation units. See also, Defendants' Memorandum of Law Regarding Food Loaf, at 4. As Ms. Burke testified, staff subjected to such repulsive behavior by inmates must be given some professionally sanctioned outlet for their very understandable feelings of anger toward the misbehaving inmate. Defendants point out in their brief that, "It is both unrealistic and unreasonable to expect any human being to maintain professional detachment under a daily barrage of food and human waste." Id. While I completely agree that staff must have an immediate, yet professional, response to this sort of behavior, it seems to me that this recognition in itself identifies food loaf as a punishment. The administration might consider food loaf a "behavior modification device," or an "administrative measure," but if staff impose it in order to respond to negative and personally offensive behavior, as they appear to do, then they must consider it a punishment. Cf. Molton v. City of Cleveland, 839 F.2d 240 (6th Cir.1988) (whether condition is a punishment depends, in part, upon the purpose of maintaining that condition).
Having decided that food loaf is a punishment in fact, if not in name, the next question is whether that punishment may be considered cruel and unusual within the meaning of the Eighth Amendment. I hold that it may not. Since 275 the general standards to be employed in discussing Eighth Amendment issues are well understood,[8] I *275 see no reason to repeat them at length here. Turning to the specific issue at hand, it appears to this Court that the Eighth Amendment requires no more than that prison officials provide inmates with a diet which is nutritionally adequate for the maintenance of normal health. Cunningham v. Jones, 567 F.2d 653, 656, 660 (6th Cir.1977) ("deliberate and unnecessary withholding of food essential to normal health can violate the Eighth Amendment"). See also Hamm v. DeKalb County, 774 F.2d 1567, 1575 (11th Cir.1985) ("The Constitution requires that prisoners be provided `reasonably adequate food'.... The fact that the food occasionally contains foreign objects or sometimes is served cold, while unpleasant does not amount to a constitutional deprivation."); Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983); Jones v. Diamond, 636 F.2d 1364, 1378 (5th Cir. 1981); Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977) ("A well-balanced meal, containing sufficient nutritional value to preserve health, is all that is required."). Where food is prepared and served in a sanitary manner and is nutritionally adequate to maintain normal health, the fact that it is unappetizing will not, standing alone, state a constitutional claim. See, e.g., Falter v. Veterans Administration, 632 F.Supp. 196, 210-11 (D.N.J.1986).
At least one court has held that food which is minimally adequate to sustain normal health, yet "tasteless [and] unappetizing" might present a constitutional issue. In Finney v. Arkansas Board of Correction, 505 F.2d 194, 207-08 (8th Cir.1974), the Eighth Circuit remanded a prison conditions case to the district court after reversing

that court's decision to terminate its continuing jurisdiction over the Arkansas prison system. The circuit court found "dubious" the district court's conclusion that "grue," a "tasteless, unappetizing paste-like food which is served to prisoners in solitary confinement as a form of further punishment," was a nutritionally sufficient diet. Id. at 207. On remand, the district court reconsidered use of "grue," and concluded that its use as a steady diet for prisoners in segregation violated the Eighth Amendment. Finney v. Hutto, 410 F.Supp. 251 (E.D.Ark.1976). The district court noted:
While the evidence is to the effect that "grue" ... will not only sustain life but is adequate nutritionally for an inmate who is not leading an active life, the evidence also discloses that some inmates simply will not eat the "grue" or will not eat much of it, and that practically all inmates lose weight while in punitive isolation....
410 F.Supp. at 276 notes 12. As both the Eighth Circuit and the district court noted, the prison's practice of alternating grue with regular meals and of conducting a medical examination of each prisoner being fed "grue" indicated that its use posed a threat to the health of the prisoners in segregation.
I find it significant, if not controlling, that there was no evidence in this case indicating either that prisoners fed food loaf refused to eat it, or that they sustained abnormal weight losses or other adverse health effects while on the food loaf diet. It thus appears that the health dangers which caused the Eighth Circuit to ban the use of "grue" are not presented by food loaf. Moreover, unlike "grue," food loaf is prepared from the same ingredients which make up a regular prison meal, and its contents vary from day to day. While it is certainly not as appealing as a meal made up of separate food items, and while it may be unappetizing, it is not so deficient that it poses a risk to the health of the prisoners receiving it. Thus, it appears to the Court that food loaf does not, as a matter of law, in every case, violate the Eighth Amendment's prohibition against cruel and unusual punishment.
This is not to say that the use of food loaf could never pose a constitutional question in a particular case. As amicus point out, placing a particular prisoner on the food loaf diet may indeed constitute "deliberate indifference" 276 to that prisoner's medical needs. For example, it may be deliberately indifferent to place a prisoner compromised *276 by AIDS infection on such a diet, or to impose food loaf upon a prisoner with certain food allergies or other medical problems which do not require that the prisoner be placed on a special diet. But the question presented here is whether the use of food loaf at all times and for all prisoners violates the Eighth Amendment. While it may constitute a violation for some specific prisoner, I cannot hold that its use always constitutes cruel and unusual punishment.
My opinion also should not be interpreted to say that the use of food loaf as a sanction for certain relatively innocuous misbehaviors would not pose a constitutional question. In Moss v. Ward, 450 F.Supp. 591 (W.D.N.Y.1978), a prisoner was deprived of all food for four days because he failed to return a plastic cup following the completion of a meal. The prisoner indicated that he needed the cup to store his dentures. While the court refused to find that denial of food "is a per se violation of a prisoner's Eighth Amendment rights," it found that the denial of food under those facts was such a violation because there was "no showing that the prisoner [engaged] in the conduct the rule is designed to prevent." Id. at 596. The court specifically noted that:
Although being deprived of one or two meals might not be cruel and unusual punishment, prison officials cannot impose such severe sanctions for breaking a disciplinary rule, as occurred in the instant case, on prisoners when there is no showing that the prisoner is engaging in the conduct the rule is designed to prevent.
Id. at 596. Such a punishment would contravene the Eighth Amendment because it would be grossly disproportionate to the offense for which it is being imposed and because it would go beyond what is necessary to achieve a legitimate aim. Id. at 597.
The same standards would, in all likelihood, apply to the use of food loaf. Without some showing that the prisoners consigned to such a diet engaged in the behavior sought to be controlled 0907 i.e., the throwing of food or human waste 0907 the imposition of food loaf might indeed violate the Eighth Amendment because it would be grossly disproportional to the offense committed and because it would go far beyond what is necessary to achieve the state's legitimate needs. But again, this is a judgment which could only be made in a specific case,

with regard to a specific prisoner. The fact that food loaf may, in some instances, constitute a cruel and unusual punishment is not enough to hold that it violates constitutional standards in every case. See, e.g., Hutto v. Finney, 437 U.S. 678, 686-87, 98 S.Ct. 2565, 2571-72, 57 L.Ed.2d 522 (1978).

3. The Due Process Clause. The final issue to consider is whether the use of food loaf implicates the due process rights of prisoners in the segregation units. As the Sixth Circuit recently noted in Beard v. Livesay, 798 F.2d 874 (6th Cir.1986), "A state, by its own actions, may create liberty interests protected by the due process clause." Id. at 876. See also, Hewitt v. Helms, 459 U.S. 460, 469, 103 S.Ct. 864, 870, 74 L.Ed.2d 675 (1983); Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747-48, 75 L.Ed.2d 813 (1983); Meachum v. Fano, 427 U.S. 215, 226, 96 S.Ct. 2532, 2539, 49 L.Ed.2d 451 (1976); Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980); Williams v. Lane, 548 F.Supp. 927 (N.D.Ill. 1982) (prison regulation created liberty interest in segregation meals comparable to those provided for the general population). Prison officials may create liberty interests by policy statements, regulations, or other official promulgations. Beard, 798 F.2d at 877; Walker v. Hughes, 558 F.2d 1247, 1255 (6th Cir.1977). The Sixth Circuit explained the criteria for determining whether a prison policy or regulation creates an enforceable liberty interest in Bills v. Henderson, 631 F.2d 1287 (6th Cir.1980). In that case, the court held:

Where statutes or prison policy statements have limited prison officials' discretion by imposing a

specific prerequisite to the forfeiture of benefits or favorable living conditions enjoyed by a

277

prisoner, an expectation or entitlements has been created which cannot be taken away *277

without affording the prisoner certain due process rights. On the other hand, when prison officials

have complete discretion in making a decision that will affect the inmate, no expectation or

protected liberty interest has been created.

Id. at 1292-93. As the Supreme Court succinctly stated in Olim, "If the decision-maker is not `required to base its decisions on objective and defined criteria,' but instead `can deny the requested relief for any constitutionally permissible reason or for no reason at all,' the State has not created a constitutionally protected liberty interest." 461 U.S. at 249, 103 S.Ct. at 1747. While the creation of procedural guidelines or requirements, standing alone, will not be sufficient to establish a liberty interest, Hewitt, 459 U.S. at 471, 103 S.Ct. at 871, where the state goes beyond such guidelines "by using `mandatory language' in connection with `specific substantive predicates,' a liberty interest may be found." Beard, 798 F.2d at 877.

Applying these criteria to the case at hand, the Court finds that Policy Directive PD-BCF-50.04 creates a constitutionally protected liberty interest in not being deprived of regular prison meals or, alternatively, in not being placed on food loaf. The policy directive contains the necessary mandatory language, and clearly places substantive limitations upon the discretion of prison officials to order that a particular inmate be placed on the food loaf diet. First, the policy directive defines the specific types of misbehavior for which food loaf may be imposed. An inmate may be placed on food loaf only if he engages in the behaviors indicated in the policy, and the policy creates a relatively narrow class of behavior meriting this particular punishment. Second, it indicates that any instance of the listed misbehavior will be punished by the use of food loaf.[9] Finally, the policy directive purports to constrain the discretion of the hearing officer reviewing the imposition of food loaf by defining the instances in which a prisoner may be made to continue receiving these meals.[10] Thus, I find that this policy does more than create procedural requirements 0907 it confers upon prisoners a liberty interest by specifically defining the behaviors for which food loaf may be imposed and the conditions under which its use may continue.

Having determined that prisoners in segregation have a liberty interest in not being deprived of regular prison meals, the question to be answered is what process is due those prisoners in this context. See, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Walker v. Hughes, 558 F.2d 1247 (6th Cir.1977) . As the Supreme Court noted in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that inquiry, "must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by government action." Id. at 481, 92 S.Ct. at 2600. In this case, it appears to the Court that the state's interest in preventing the throwing of food items and human waste by prisoners in segregation is strong indeed. Not only does such behavior pose a threat to the safety of guards and 278 prisoners, *278 but it contributes to the myriad difficulties associated with providing a sanitary living environment inside the segregation units. On the other hand, it must be remembered that food loaf is only one of a number of

punitive measures available to prison officials to curb such negative behavior. And, while the behavior at issue is relatively common, it is only one of a number of disciplinary problems which have combined of late to create an atmosphere of tension and violence within the segregation units. While the problem of food and waste throwing is certainly serious, it is not as serious as, for example, the recurring problem of prisoner assaults on guards.
Finally, in evaluating the state interest at stake, I cannot disregard the clear evidence that food loaf has been unsuccessful in curbing this extremely negative behavior. The choice of a particular punitive measure, among constitutionally acceptable alternatives, is a matter to be left to the discretion of prison officials and, barring some constitutional difficulty, this Court may not substitute its judgment for that of the prison officials on such an issue, no matter how wrong-headed or ineffectual their chosen policies appear to be. See, e.g., Hewitt v. Helms, 459 U.S. at 470, 103 S.Ct. at 870-71; Meachum v. Fano, 427 U.S. at 225, 96 S.Ct. at 2538-39; Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1977). But in weighing the state's interest in imposing food loaf upon a prisoner, I think it does no violence to the doctrine of judicial deference to take notice of the fact that a chosen policy is, at best, ineffective, and at worst a contributing factor in the escalating tension within the segregation units. Thus, while the state interest in maintaining discipline and sanitation within the segregation units is great, its interest in using food loaf in order to achieve those goals is less weighty.
The private interest to be balanced against the state interest is also great. There can be no doubt that eating food loaf for an extended period of time is unpleasant. Further, given the severe restrictions already placed upon these prisoners, from restricted access to out-of-cell activities to restrictions upon the possession of personal property, it is also obvious that the food served to these prisoners takes on a significance for them that it might not have for prisoners in other settings. Finally, the Court cannot ignore the fact that the use of food as a punishment is disfavored, both by courts and by corrections experts themselves. See, Moss v. Ward, 450 F.Supp. 591, 594 (W.D.N.Y.1978); American Correctional Association Correctional Standard 2-4223-1 (January, 1988). This indicates a clear awareness of psychological impact food related punishments have upon prisoners, and of their strong interest in not being subjected to such punishments arbitrarily. Thus, I conclude that the state and private interests at stake are roughly equal. The prisoners' stake in not being deprived of regular meals is great, and while the state's interest in maintaining discipline and sanitary conditions in segregation units may be considered greater, the state's interest in imposing this particular sanction for misbehavior must be discounted because the sanctions appears to be so ineffectual.
Although I have concluded that the private interest at stake is great, I do not find that it is so great as to require a prior hearing before the imposition of food loaf. To begin with, we must keep in mind that we are only talking about food, and a temporary deprivation of certain kinds of food at that. We are not considering far greater impositions upon liberty interests such as being placed in segregation or having one's parole revoked. Second, the state's argument that food loaf must be imposed quickly and consistently in order to be effective carries some weight. A prisoner who engages in food or waste throwing is highly likely to be agitated and violent. He is also likely to engage in that behavior again, at the very next opportunity. Even if food loaf is ineffective at preventing prisoners from throwing food or waste when they have the opportunity to do so, it must be considered effective at preventing that behavior, while the prisoner is on the food loaf diet, simply because it removes the prisoner's 279 opportunity to engage in the *279 behavior. I find that the state's interest in removing that opportunity, at least temporarily, while the prisoner is most likely to repeat the behavior, outweighs the chance of an erroneous or arbitrary deprivation of the prisoner's right to receive regular meals.
What I do find objectionable about the present policy is the provision which allows the hearing officer to continue the food loaf punishment, even if that officer decides that the misconduct charge is unwarranted. This provision only makes sense if one continues to view food loaf as something other than a punishment. Once we admit that food loaf is a punishment for a particular type of misconduct, it appears clear that such a punishment cannot be imposed if the misconduct charge against the prisoner is without merit. To allow a hearing officer to impose this punishment, even though the misconduct charge must be dismissed for "procedural reasons," so increases the possibility of arbitrary punishment and erroneous deprivations that it must be held to violate the prisoners' due process rights. Either the prison is justified in punishing a prisoner for misconduct or it is not. But it cannot find the prisoner innocent of misconduct, or find that the charge filed against the prisoner must be dismissed, and also punish him. Such an alternative raises to an unacceptable level the prospect of arbitrary government action, the very prospect which the due process clause seeks to avoid. See, Walker, 558 F.2d at 1257.

To conclude, I find that the use of food loaf does not violate the Consent Decree or the State Plan for Compliance. I further find that it does not, in all cases, constitute cruel and unusual punishment within the meaning of the Eighth Amendment. I further find that Policy Directive PD-BCF-50.04 confers a liberty interest on prisoners in not being placed on food loaf unless they have engaged in the behavior identified in that policy. While the private interest at stake is great, it is not so great as to require defendants to conduct a disciplinary hearing prior to the imposition of food loaf upon a particular prisoner. I do find, however, that the policy directive, as currently written, violates the due process rights of prisoners in segregation units to the extent that it permits the use of food loaf as a punishment even when the misconduct charge upon which that punishment is based has been dismissed. Thus, I will enjoin the use of food loaf as a punishment for misconduct in any case where the misconduct charge upon which that punishment is based is dismissed by the hearing officer, for whatever reason, or where the hearing officer finds the prisoner not guilty of the misconduct as charged.
[1] As amicus points out, food loaf is prepared from a limited number of menus. Thus, the contents of a food loaf do not necessarily coincide with the items served to prisoners receiving regular meals on a given day. However, the food used to prepare food loaf does not differ from the food used to prepare regular meals, and while there is not as much variety in the content of food loaf as there is in the content of regular meals, it is clear that food loaf menus do change from day to day. Food loaf is not always prepared from the same "recipe."
[2] Witnesses and parties frequently referred to food loaf as a "behavior modification" device.
[3] There was no evidence indicating the length of time between the deprivation of regular meals and the hearing. I will, therefore, assume that the hearings are held on a reasonably prompt schedule.
[4] It appears that defendants began using food loaf in segregation units only after the entry of the Consent Decree and the State Plan.
[5] I would not be prepared, for example, to hold that food loaf could be served to every prisoner in segregation, for every meal and for an extended period of time without violating the Consent Decree and the State Plan. If that were the defendants' practice, then the argument that similarity among meals should be judged more by the method of food preparation than by the meal's content would carry more weight. But that is not the issue presented. Rather, the issue is whether the use of food loaf for the reasons, and within the guidelines established by the present policy directive violates the consent decree.
[6] Because the use of food loaf complies with the standards set in the Consent Decree and the State Plan, the defendants had no duty to report their decision to implement policy directive PD-BCF-50.04, either to the Court or to the parties. Similarly, no modification of the Decree or Plan is necessary to allow its continued use.
[7] As I understand the theory behind behavior modification techniques, it is to prevent repeated instances of negative behavior by consistently reacting to that behavior in an unpleasant manner. Thus, the subject is trained to associate the behavior with the unpleasant response and will hopefully avoid the behavior in order to avoid its consequences. Regardless of its name, there appears to me to be no difference between this sort of "treatment" and any operable definition of "punishment."
[8] See e.g., Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (Punishments involving the "wanton infliction of pain" violate the Eighth Amendment); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976) ("deliberate indifference to serious medical needs constitutes `unnecessary and wanton infliction of pain'"); Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 594-98, 2 L.Ed.2d 630 (1950); Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 551, 54 L.Ed.2d 793 (1910); Cunningham v. Jones, 567 F.2d 653 (6th Cir.1977); LaBatt v. Twomey, 513 F.2d 641 (7th Cir.1975); French v. Heyne, 547 F.2d 994 (7th Cir.1976); Sweet v. South Carolina Department of Corrections, 529 F.2d 854 (4th Cir.1975); Sostre v. South Carolina Department of Corrections, 529 F.2d 854 (4th Cir.1975); Sostre v. McGinnis, 442 F.2d 178 (1971); Wright v. McMann, 387 F.2d 519 (2d Cir.1967); Hancock v. Avery, 301 F.Supp. 786 (M.D.Tenn.1969).

[9] At some points the policy states that a prisoner "may" be placed on food loaf, apparently indicating that the staff member observing such behavior has discretion to decide whether to impose that punishment. However, the policy also notes that, "A Staff member who observes will immediately write a misconduct report containing the appropriate charge or charges based upon the behavior which has been observed. It shall be noted on the misconduct report that the prisoner has been placed on food loaf." The policy further requires staff members to immediately notify their shift commander of such misbehavior, it requires the shift commander to notify Food Service and its requires Food Service to serve the prisoner food loaf beginning with the next meal. The fact that the policy at some points uses discretionary language does not negate the existence of a liberty interest where the policy is so clearly intended to be mandatory and to place substantive limitations on the use of this particular punishment.
[10] As indicated earlier, the hearing officer may order the prisoner returned to normal meals only if he or she finds that the prisoner did not engage in the conduct as charged. If the hearing officer finds that the charge is merited, or that the behavior in fact occurred, then the prisoner remains on food loaf for fourteen days. Thus, the policy places substantive limitations upon the hearing officer in the same way as it limits the discretion of other staff members.
Save trees - read court opinions online on Google Scholar.

 
 940 F.2d 143 (1991)
UNITED STATES of America, Plaintiff-Appellee, v.
STATE OF MICHIGAN, James J. Blanchard, Governor of the State of Michigan, the Michigan Corrections Commission, Gwen Andrew, Chairman, Michigan Corrections Commission, Thomas Eardley, Dwayne Waters, Don P. Leduc, Members, Michigan Corrections Commission, Michigan Department of Corrections, Perry Johnson, Director, Michigan Department of Corrections, Robert Brown, Jr., Deputy Director, Michigan Department of Corrections, Dale Foltz, Regional Administrator, State Prison of Southern
Michigan, John Jabe, Warden, Michigan Reformatory, Theodore Koehler, Warden, Marquette Branch Prison, John Prelesnik, Administrator, Reception and Guidance Center, State Prison of Southern Michigan, and Jack Bergman, Administrator, Michigan Intensive
Programming Center, Defendants-Appellants.
Nos. 90-1366, 90-1367 and 90-1537.
United States Court of Appeals, Sixth Circuit.
Argued September 19, 1990. Decided July 2, 1991.
144 *144 William L. Fette, American Civil Liberties Fund of Michigan, Kalamazoo, Mich., Elizabeth R. Alexander (argued), Chief Staff Counsel, National Prison Project, Washington, D.C., Patricia A. Streeter, Detroit, Mich., for appellees.
Patricia L. Blake, Detroit, Mich., Susan Przekop-Shaw (argued), Office of Atty. Gen., Corrections Div., Lansing, Mich., David K. Flynn, Marie K. McElderry, John R. Dunne, Susan D. Carle (argued), U.S. Dept. of Justice, Civil Rights Div., Appellate Section, Washington, D.C., Arthur E. Peabody, Jr., Chief, William Bradford Reynolds, Asst. Atty. Gen., U.S. Dept. of Justice, Special Litigation Section, John A. Smietanka, U.S. Atty., Office of the U.S. Atty., Grand Rapids, Mich., for U.S.
Michael Barnhart, Patricia A. Streeter, Barnhart & Mirer, Detroit, Mich., for amicus curiae Hadix, et al.
Richard M.C. Adams, Asst. Atty. Gen., Susan Przekop-Shaw (argued), Corrections Div., Donald S. McGehee, Office of the Atty. Gen., Tort Defense Div., Thomas C. Nelson, Asst. Atty. Gen., Office of the Atty. Gen., Habeas Div., Lansing, Mich., for defendants-appellants.
Before KRUPANSKY and BOGGS, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.
KRUPANSKY, Circuit Judge.
The five orders of the United States District Court for the Western District of Michigan dated November 3, 1989, November 6, 1989, two on January 24, 1990, and April 4, 1990, presently under appellate review, had their common genesis in the ongoing implementation of a consent decree approved by the court on July 16, 1984 resolving a case initiated by the plaintiff-appellee United States of America (United States) against the defendants-appellants State of Michigan, et al. (Michigan), pursuant to the Civil Rights of Institutionalized Persons Act (CRIPA), 42 U.S.C. § 1997 et seq.
In the first order, issued on November 3, 1989 the district court rejected Michigan's proposed inmate classification plan, including its validation of compliance procedures, dated June 3, 1988, and directed the state to submit, by 145 not later than April 2, 1990, a revised professionally-based classification plan that incorporated court-substituted *145 compliance procedures. The court-dictated compliance procedures detailed the content, nature, and extent of the plan that would satisfy the requirements of the July 16, 1984 consent decree. On November 6, 1989, the

district court also mandated the development of "a plan [by Michigan] illustrating how they plan to manage the correctional population projected by their research division." United States v. Michigan, No. G84-63 CA at 3 (W.D.Mich. Nov. 6, 1989) (order) [hereinafter Nov. 6 Order]. Michigan moved for reconsideration of the November 3 and 6 decisions, which the district court denied in an order issued on January 24, 1990. The district court declared the two orders "final orders for the purposes of appeal." United States v. Michigan, No. G84-63 CA at 5 (W.D.Mich. Jan. 24, 1989) (order denying motion to modify or set aside Nov. 3 and 6 orders) [hereinafter Jan. 24 Order Denying Motion to Modify]. All three orders were timely appealed by Michigan and assigned case number 90-1366 for appellate review.
Also on January 24, 1990, in a separate, concurrent order, the district court amplified and extended its two previous orders entered on November 3 and 6, 1989 by directing an annual projection of the state's prison population to the year 2000 to be "developed by an independent contractor, and not by the Department of Corrections or by employees of the State of Michigan.... The contractor ... and the scope of service must be approved by the Court following notice to the plaintiff and amici." United States v. Michigan, No. G84-63 CA at 30-31 (W.D.Mich. Jan. 24, 1990) (contempt order) [hereinafter Jan. 24 Contempt Order]. In the same entry, the district court adjudged Michigan in contempt of two previous orders dated March 31, 1988 and September 28, 1988. This decision was appealed on February 22, 1990 and was assigned appellate number 90-1367.
The fifth judgment on appeal was issued April 4, 1990. To further support the validation procedure addressed by its order of January 24, 1990, in conjunction with its findings of contempt, the trial court modified the consent decree and state plan of July 16, 1984 by mandating the disclosure of privileged medical/mental health/dental care internal peer audits in lieu of summaries thereof. That related appeal was designated as case number 90-1537.
On June 29, 1990, this court granted a temporary stay of execution of the orders dated November 3 and 6, 1989, and January 24, 1990, which stay, following a hearing on July 27, 1990, was continued pending further order. On September 7, 1990, this court granted a temporary stay of execution of the April 4, 1990 order.[1] Because of their common origins in the July 16, 1984 consent decree, the five orders were consolidated into one appeal. Oral arguments were entertained by this court on September 19, 1990.
For purposes of orientation, the evolution of this proceeding may be briefly summarized by an overview of the events that gave rise to this case. In January of 1984, the United States filed a complaint against Michigan 146 pursuant to CRIPA, 42 U.S.C. § 1997,[2] in which it alleged that Michigan *146 violated the eighth and fourteenth amendments to the United States Constitution by perpetuating conditions and practices which constituted cruel and unusual punishment at the State Prison of Southern Michigan (including the Reception and Guidance Center), the Michigan Reformatory, and the Marquette Branch Prison (including the Michigan Intensive Programming Center) (collectively "the subject prisons") in the following manner:
18. The subject prisons fail to provide and maintain basic elements of a safe and sanitary physical and environmental plant (including fire safety) for the inmates.
19. The subject prisons fail to provide medical services (including services for suicidal, psychotic, and self-mutilating inmates) minimally necessary to meet the inmates' serious needs, where the failure to provide such care manifests a deliberate indifference to these needs.
20. The subject prisons fail to protect inmates from harm, including harm from increased violence and serious threats to health associated with over-crowding.
Complaint at 5, United States v. Michigan, No. G84-63 CA (W.D.Mich. filed Jan. 18, 1984) (emphasis added).
The United States also charged that Michigan had violated the guarantees of the first, sixth, and fourteenth amendments to the United States Constitution by depriving inmates access to the courts in that the subject prisons (1) failed to provide inmates access by mail to their attorneys, to courts, and to government officials, and (2) failed to provide inmates sufficient access to law library resources and/or legal assistance. The United States petitioned for preliminary and permanent injunctive relief.

On January 18, 1984, contemporaneously with the filing of the complaint, the United States moved the trial court to enter a judgment memorializing an agreement and a plan of implementation between it and Michigan that, to the full satisfaction of the United States, corrected the totality of the conditions which anchored its constitutional infringement charges.
On February 24, 1984, prior to the hearing on the consent decree, the National Prison Project of the American Civil Liberties Union (NPP-ACLU) and the American Civil Liberties Union Foundation of Michigan (ACLUFM) requested leave to "intervene" as "litigating amici curiae" with the full litigating rights of a named party to the controversy. On March 23, 1984, before the entry of the consent decree, the district court denied the motions of the NPP-ACLU and the ACLUFM for "litigating status," and the motion of the "Hadix class" of prisoners for intervention pursuant to Fed.R.Civ.P. 24,[3] but permitted their appearance in the traditional role of amici to address, by brief and oral argument, the proposed consent decree. United States v. Michigan, 680 F.Supp. 928, 935-43 (W.D.Mich.1987) (order granting amicus curiae status). The court also ordered the real parties in interest, 147 the United States and Michigan, to redraft their agreement to *147 conform with various court suggestions as a condition to endorsing and adopting the consent decree as its judgment. Id. at 945-49 (order rejecting proposed consent decree). A hearing on the revised agreement was scheduled for June 22, 1984.
Early in June 1984, the NPP-ACLU and the ACLUFM filed a 42 U.S.C. § 1983 class action styled Knop v. Johnson, Civ. No. G84-651-CA5 (W.D.Mich.) that challenged many of the same conditions of confinement in Michigan prisons as those already challenged by the United States in the instant case. See Knop v. Johnson, 667 F.Supp. 467 (W.D.Mich.1987). Sometime subsequent to initiating its class action, the Knop class, with the approval of the district court, replaced the NPP-ACLU and the ACLUFM as amicus curiae in the instant case and became the surrogate of both special interest groups, which remained as its legal counsel. The Knop class thereafter filed formal motions to intervene pursuant to Fed.R.Civ.P. 24 as a real party in interest in the instant case, as did the plaintiffs in a similar section 1983 action, Jansson v. Johnson, Civ. No. 84-1263 DT (E.D.Mich.). On June 22, 1984, the district court denied the motions, concluding that the Knop class and the Jansson plaintiffs did not and could not qualify as intervenors of right or as permissive intervenors pursuant to Fed.R.Civ.P. 24. United States v. Michigan, 680 F.Supp. at 950-53 (order denying intervention). That decision was not appealed and remains the law of the case.
On March 31, 1986, the Knop class again requested to intervene as "litigating amicus curiae" with the full litigating rights of a named party in the case. The court, in an opinion and order entered August 28, 1987, granted the Knop class motion. Accordingly, after previously denying the same status to the NPP-ACLU and the ACLUFM and after denying intervention by the Knop class, the court indirectly conferred upon the Knop class as "litigating amicus curiae" all of the participating rights of a named party in interest to the instant controversy, including the right to file pleadings, to compel discovery, to initiate contempt proceedings, to formulate and join issues, to issue and enforce subpoenas, to compel attendance at compliance hearings, and to file motions to modify and amend the consent decree between the named parties in interest. After receiving "litigating amicus curiae" status, the Knop class dismissed its separate section 1983 action. Michigan appealed the order granting "litigating status" to the Knop amicus, but this court refused to address the merits of the appeal by concluding that the order granting "litigating amicus curiae" status to the Knop class was not a final appealable order. United States v. Michigan, No. 88-1869, 1990 WL 46637 (6th Cir. April 20, 1990) (unpublished).
On July 16, 1984, the district court entered its judgment, which embraced the court-mandated, revised agreement and state plan between the United States and Michigan. In deference to defined Supreme Court precedent, the United States in its complaint and petition for relief, the State of Michigan in executing the consent agreement, and the trial court in accepting the consent agreement addressed only those physical conditions of confinement that rose to the level of constitutional prohibitions against cruel and unusual punishment by resulting "in unquestioned and serious deprivation of basic human needs" or by depriving "inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (emphasis added). Thus, consistent with existing legal precedent, the parameters of the trial court's July 16, 1984 consent decree embraced only the following physical conditions of confinement:
1. Medical and Mental Health Care

2. Fire Safety
3. Sanitation Safety and Hygiene
4. Crowding and Protection from Harm
5. Access to Courts and Legal Mail.
Integral to the effective correction of the alleged constitutional infringements identified in the judgment of July 16, 1984 was the design and development of a professionally-based and professionally-administered plan for entry148 level screening and *148 classification of inmates, and the subsequent reclassification of inmates for assignment to appropriate prisoner profile categories. However, professional correctional practices characterized by the trial court and its independent expert as "programming needs," such as vocational guidance, job assignments, educational counseling, limited work hours, recreational activities, sociological counseling, forced inmate idleness, available educational opportunities, and similar sociologically oriented programs that did not "involve the unnecessary and wanton infliction of pain," Chapman, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)), were not addressed in the consent decree.
The consent decree required Michigan to "design and implement a professionally based classification plan ... by June 30 of 1988." Consent Decree at 6, United States v. Michigan, No. G84-63 CA (W.D.Mich. entered July 16, 1984). Pursuant to the consent decree, Michigan submitted a classification proposal to assign inmates to an institution consistent with their respective classification designations as early as July 21, 1986. The trial court ordered that plan to be implemented by 1989. However, for reasons not clarified by the record, Michigan submitted a replacement proposal on June 3, 1988. In essence, this plan defined its security classifications as follows:

NEW Level I Level II Level III Level IV Level V Level VI

OLD minimum medium medium close maximum (no previous equivalent)

Although inmates retained an assigned permanent classification, they could, nevertheless, be temporarily classified in "segregation" or "community status." Under the proposed plan, inmates were to be classified immediately upon entry. Assigned classifications were to be reviewed at least annually or upon request initiated pursuant to a prescribed procedure.

Classification was predicated upon two scales. The first scale reflected the prisoner's "confinement" level, defined as the "level of physical restraint determined necessary to reduce escape risk." The second scale reflected the prisoner's "management" level, defined as the "level of physical restraint necessary to maintain good institutional order and to protect prisoners and staff from harm." A prisoner's "security" level or "true security classification" was the level of control and custody determined by the higher of the confinement and management levels. For example, a prisoner with a confinement level of IV and a management level of III would be assigned security classification level IV. "Wherever possible," a prisoner would be "placed at a facility of the security level indicated as his/her true security level." However, the proposal recognized that "[t]here may be reasons unrelated to security, such as medical needs or lack of bed space of the appropriate level, which preclude such placement." Reasons for placement inconsistent with the prisoner's true security level classification were to be entered in the prisoner's file. Michigan also assigned a security level to each of its prison facilities throughout the state. Certain facilities included several physically separated areas of confinement with differing security classifications.

Michigan had not incorporated programming classifications or "program needs" into its proposal, which it asserted were intentionally excluded from the July 16, 1984 consent decree, because prisoner program needs

were already being professionally accommodated and such sociological activities did not spring from constitutional requirements.

The United States and amicus curiae entered objections to Michigan's June 3, 1988 proposals and charged, among other things, that:

1. entry level screening evaluations and classification assignments failed to accurately reflect inmate security risk propensities;

149

*149 2. only 50 percent of housing placements coincided with assigned classifications;

3. an unusually high 80 percent of entry level inmates were initially assigned to the two lowest security risk levels resulting in an inordinately high number of prisoners later being reassigned to higher security levels, which purportedly indicated that a significant number of dangerous prisoners were being commingled and confined with less dangerous inmates; and

4. the proposal failed to couple "program needs" defined as socio-rehabilitation considerations with security and medical criteria in class evaluations and assignments.

On November 3, 1989, subsequent to a hearing conducted on the previous day, the trial court concluded that Michigan's June 3, 1988 plan did not comply with the consent judgment of July 16, 1984 because (1) the defendants had "not `designed and implemented a professionally-based classification system' as required by the Decree," (2) the disputed term "implementation" meant "that the classification plan must be operated so as to have force and effect on the actual operation of correctional facilities, programs, staff, and prisoners," United States v. Michigan, No. G84-63 CA at 1-2 (W.D.Mich. Nov. 3, 1989) (order) [hereinafter Nov. 3 Order],[4] and (3) the scope of the required classification plan "corresponds with the scope of the Decree itself." Jan. 24 Order Denying Motion to Modify at 5.

In rejecting Michigan's proposed classification plan, the court observed that, as a result of improperly implementing its classification instrument dated June 3, 1986, there was an "excessive disparity between the designated classification (according to the classification system) and actual placement (the classification level of the facility to which the prisoner is actually assigned). This renders the classification almost meaningless." Nov. 3 Order at 3. The court also observed that the state's proposal was severely limited in scope to addressing only inmate medical, mental, safety, and security criteria and ignored prisoner sociological "program needs," which the United States, the court's independent expert, and amicus insisted were a necessary and integral part of any classification system. Finally, the trial court prescribed, in detail, the nature, scope, and extent of the compliance validating procedure that the state would be required to incorporate into a revised classification plan to be submitted on or before April 2, 1990.

In an interrelated order issued November 6, 1989, the district court noted that Michigan had failed to address a projected short-fall of 16,000 cell spaces by 1992. Thus, the district court ordered Michigan to evolve a plan "to manage the [projected] correctional population." Nov. 6 Order at 3.

Michigan moved for reconsideration of the trial court's orders, arguing that the court materially modified the July 14, 1984 consent decree by:

1. ordering relief that exceeded the parameters of the consent decree without finding further constitutional violations;

2. ordering implementation of overly intrusive remedies;

3. expanding the scope of the consent decree to embrace the entire correctional system of the State of Michigan; and

4. expanding the consent decree to include sociological programming characterized as "program needs" which did not rise to the level of eighth amendment infringements and which were intentionally excluded from the consent decree.

On January 24, the trial court, treating the motion for reconsideration as a motion to modify or set aside, affirmed 150 its orders of November 3 and 6, 1989. See Jan. 24 Order *150 Denying Motion to Modify. The district court
acknowledged that the two orders were final, appealable injunctive orders: "Thus, my orders of November 3 and November 6 now become final orders for the purposes of appeal...." Id. at 2.
In a separate order issued on the same day, the district court addressed a motion filed by amicus, but without support from the United States, seeking sanctions for contempt against the governor, attorney general, the Michigan Department of Corrections, and others.[5] However, after several hearings, the court adjudged only the Michigan Department of Corrections in contempt (1) for failing to submit a revised mental health program statement based on prison population projections to the year 2000, and (2) for failing to report that the Marquette Branch Prison had discontinued general library services. Jan. 24 Contempt Order at 15-23.
This appeal arises from various orders that are indisputably modifications of the consent decree, which are injunctive in nature, to which appellate jurisdiction attaches by congressional decree. 28 U.S.C. § 1292(a)(1);[6] United States v. Michigan, No. 88-1869, slip op. at 7-8 (6th Cir. April 20, 1990) (unpublished). See Musto v. American General Corp., 861 F.2d 897, 914 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989); Bradley v. Milliken, 772 F.2d 266, 270-71 (6th Cir.1985). See also United States v. WheelingPittsburgh Steel Corp., 818 F.2d 1077, 1082 (3d Cir.1987); King v. Ionization Int'l, Inc., 825 F.2d 1180, 1184-85 (7th Cir.1987); Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir.1986) (per curiam); Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114 (3d Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980); Gary W. v. State of Louisiana, 601 F.2d 240, 243-44 (5th Cir.1979); Mayberry v. Maroney, 558 F.2d 1159 (3d Cir.1977); In re Grand Jury Proceedings (U.S. Steel-Clairton Works), 525 F.2d 151, 154-56 (3d Cir.1975).
Supreme Court jurisprudence, as well as the pronouncements of this court, firmly supports the principal that this court has appellate jurisdiction over the modifications of the consent decree. The Supreme Court, in a case involving pretrial injunctions, has stated that the policy behind 28 U.S.C. § 1292(a)(1) was to "permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1957)). As demonstrated, courts have traditionally considered the modification of a consent decree to be serious, leading to "perhaps irreparable" consequences. "A consent decree has attributes of both a contract and a judicial act." Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). As a contract, a decree does not have a purpose, but reflects a compromise or agreement negotiated between parties who each have a purpose. See United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). "Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties." Williams, 720 F.2d at 920 (emphasis added). The standard for justifying the modification of a consent decree is a strict one and "a consent decree is, after all, a judgment and entitled to a presumption of finality." Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 674 F.2d 976, 980-81 (3d Cir.), cert. denied, 459 U.S. 905, 103 S.Ct. 206, 74 L.Ed.2d 165 (1982).
151 Amicus's argument, citing to Groseclose v. Dutton, 788 F.2d 356 (6th Cir.1986), that *151 the November 3, 1989 order to design and implement a revised professionally-based classification plan and validating procedure was not a final appealable order is misconceived. Assuming, arguendo, the correctness of amicus curiae's position, it should be noted that the orders of November 3 and November 6, 1989, the two separate orders dated January 24, 1990, as well as the decision of April 4, 1990, had their common origin in the July 16, 1984 consent decree and incorporated state plan.
Read in pari materia, the district court's orders dated November 3, 1989, November 6, 1989, and January 24, 1990 mandated, in detail, the content, nature, and scope of the validating procedures that Michigan was to implement in performing its future compliance audits to satisfy its commitments in the July 16, 1984 consent decree. A comparison of Michigan's June 3, 1988 professionally-based classification plan and validating procedures with the court's prescribed classification plan and monitoring procedures, which were mandated to be incorporated into Michigan's revised classification plan, disclosed that they joined legal issues that could be decided without further factual elaboration.

Thus, they were immediately reviewable upon appeal even though the appeal was from an entry of a preliminary injunction. Any future action that could have been taken by the district court would not have changed or affected the legal issues presented in this appeal. Accordingly, appellate review of the injunctive orders of the district court dated November 3, 1989, November 6, 1989, and January 24, 1990 would not be premature. Groseclose, 788 F.2d at 359-60; Liddell v. Board of Educ. of St. Louis, 693 F.2d 721 (8th Cir.1981); Spates v. Manson, 619 F.2d 204 (2d Cir.1980); Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340 (3d Cir.1978); Frederick L. v. Thomas, 557 F.2d 373 (3d Cir.1977); Taylor v. Board of Educ., 288 F.2d 600 (2d Cir.1961).

Although the district court's January 24, 1990 contempt citation and its April 4, 1990 order modifying the consent decree by mandating the disclosure of privileged medical/mental health/dental care internal peer audits are independently appealable final orders to this court, as more fully hereinafter addressed, because of their common genesis with the November 3, 1989, November 6, 1989 and January 24, 1990 orders in the seminal July 16, 1984 consent decree, and because they are inextricably entangled with the November 3, 1989 and November 6, 1989 orders, they may also be umbrellaed under the appeal from those decisions which otherwise invoked the appellate jurisdiction of this court:

[A]s the[] cases indicate, if a district court's ruling rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance, that ruling may be reviewed even though the appeal is from the entry of a preliminary injunction. The Court of Appeals in this case properly recognized and applied these principles when it observed:

"Thus, although this appeal arises from a ruling on a request for a preliminary injunction, we have before us an unusually complete factual and legal presentation from which to address the important constitutional issues at stake. The customary discretion accorded to a District Court's ruling on a preliminary injunction yields to our plenary scope of review as to the applicable law."

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 757, 106 S.Ct. 2169, 2177, 90 L.Ed.2d 779 (1986) (footnotes omitted) (quoting American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 290 (3d Cir.1984)).

This court has also recognized the scope of appellate jurisdiction over issues involving injunctive relief:

It is elementary that an appeal from the denial of injunctive relief brings the whole record before

the appellate court and that the "scope of review may extend further [than the immediate question

152

on which the District Court ruled] to allow disposition of all matters appropriately *152 raised by

the record, including entry of final judgment." 16 Wright & Miller Federal Practice § 3921 (1977).

We have "jurisdiction to deal with all aspects of the case that have been sufficiently illuminated to

enable decision by the Court of Appeals without further trial court development." Ibid. This

principle is supported by numerous precedents and by policy considerations. See, e.g., Hurwitz v.

Directors Guild of America, Inc., 364 F.2d 67, 69-70 (2d Cir.1966), and the cases cited in Wright &

Miller supra, § [3921].

Brown & Williamson Tobacco Corp. v. FTC, 717 F.2d 963, 964 (6th Cir.1983) (order denying petition for rehearing en banc).

In particular, when litigation involves a remedial plan, revisions to the plan, and efforts to enforce compliance, an assessment of the afforded injunctive relief will, of necessity, require plenary review of the entire record:

Although an order requiring a party to litigation to submit a proposed remedial plan is not itself an injunctive order appealable under 28 U.S.C.A. § 1292(a)(1), where an order issued by a district court also incorporates injunctive measures which are properly appealable under § 1292(a)(1), the court of appeals has jurisdiction to review the entire order of the district court including the requirement that a defendant submit a remedial plan.

* * * * * *

... Because the district court did award injunctive relief in the order from which the appellants perfected an appeal, this court's jurisdiction has been properly invoked to consider all issues joined in that order, including the mandate that the appellants submit a remedial plan

....

Newsom v. Norris, 888 F.2d 371, 380 (6th Cir.1989) (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 72 S.Ct. 863, 865-66, 96 L.Ed. 1153 (1952); Highland Avenue & Belt R.R. Co. v. Columbian Equipment Co., 168 U.S. 627, 630, 18 S.Ct. 240, 241, 42 L.Ed. 605 (1898); Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 41 L.Ed. 810 (1897); Kohn v. American Metal Climax, Inc., 458 F.2d 255, 262 (3d Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972); Allstate Ins. Co. v. McNeill, 382 F.2d 84, 87 (4th Cir.1967), cert. denied, 392 U.S. 931, 88 S.Ct. 2290, 20 L.Ed.2d 1390 (1968); McNally v. Pulitzer Publ. Co., 532 F.2d 69 (8th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d 131 (1976); Sierra Club v. Marsh, 816 F.2d 1376, 1382 (9th Cir.1987); Noxell Corp. v. Firehouse No. 1 Bar-B-Que Restaurant, 760 F.2d 312, 315 (D.C.Cir.1985); King Instrument Corp. v. Otari Corp., 814 F.2d 1560, 1562 (Fed.Cir.1987)).

Because, in the instant case, the district court did award injunctive relief in the interrelated orders of November 3, 1989, November 6, 1989, and January 24, 1990, from which appellants perfected timely appeals, this court's jurisdiction has been properly invoked to review and consider the entire record, including all related issues having a common nexus with issues joined in those appeals. Those related issues include the citations for contempt and the mandate to disclose privileged medical/mental health/dental care internal draft peer audits.

The eighth amendment limitations on conditions of penal confinement, imposed upon the states through the fourteenth amendment, do not join issues of first impression. The Supreme Court turned its attention and consideration to that area over twenty years ago and, among its more current teachings, summarized its unwavering convictions:

Today the Eighth Amendment prohibits punishments which, although not physically barbarous,

"involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, [428 U.S.] at

173, 96 S.Ct., at 2925, or are grossly disproportionate to the severity of the crime, Coker v.

Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (plurality opinion);

Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Among "unnecessary

153

and wanton" inflictions of pain are those that are "totally without penological *153 justification."

Gregg v. Georgia, supra, 428 U.S., at 183, 96 S.Ct., at 2929; Estelle v. Gamble, 429 U.S. 97, 103,

97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).

* * * * * *

... But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.

* * * * * *

... [T]he Constitution does not mandate comfortable prisons, and prisons ... which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court.

Chapman, 452 U.S. at 346-47, 349, 101 S.Ct. at 2399-2400 (footnote omitted).

In Bell v. Wolfish, the court elaborated on the limits placed by the Constitution on conditions of confinement:

[O]ur cases also have insisted on a second proposition: simply because prison inmates retain certain constitutional rights does not mean that these rights are not subject to restrictions and limitations. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the consideration underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948); see Jones v. North

Carolina Prisoners' Labor Union, supra, 433 U.S. [119], at 125, 97 S.Ct. [2532], at 2538 [53 L.Ed.2d 629 (1977)]; Wolff v. McDonnell, supra, 418 U.S. [539], at 555, 94 S.Ct. [2963], at 2974 [ 41 L.Ed.2d 935 (1974)]; Pell v. Procunier, supra, 417 U.S. [817], at 822, 94 S.Ct. [2800], at 2804 [41 L.Ed.2d 495 (1974)]. The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 125, 97 S.Ct., at 2538; Pell v. Procunier, supra, 417 U.S., at 822, 94 S.Ct., at 2804. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application." Wolff v. McDonnell, supra, 418 U.S., at 556, 94 S.Ct., at 2975. This principle applies equally to pretrial detainees and convicted prisoners. A detainee simply does not possess the full range of freedoms of an unincarcerated individual.
Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S.Ct. 1861, 1877-78, 60 L.Ed.2d 447 (1979). The Court has consistently declared that, even under circumstances when valid institutional security restrictions infringe upon constitutional guarantees, the latter must give way to the former in the interests of safeguarding institutional security:
[M]aintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees. "[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves." Pell v. Procunier, supra, 417 U.S., at 823, 94 S.Ct., at 2804; see Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 129, 97 S.Ct., at 2540; Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1810, 40 L.Ed.2d 224 (1974). Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry. Accordingly, we have held that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security. Jones v. North Carolina Prisoners' Labor Union, supra, 433 U.S., at 129, 97 S.Ct., at 2540; Pell v. Procunier, supra, 417 U.S., at 822, 826, 94 S.Ct., at 2804, 2806; Procunier v. Martinez, supra, 416 U.S., at 412-414, 94 S.Ct., at 1810-1812.
154 *154 Id. 441 U.S. at 546-47, 99 S.Ct. at 1878 (footnote omitted).
Having identified the boundaries that the eighth amendment has imposed upon the conditions of prisoner detention, the Court later admonished lower courts as to the standards of judicial discretion to be exercised in assessing the validity of inmate-asserted eighth amendment infringements:
No static "test" can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 596 [630] (1958) (plurality opinion). The Court has held, however, that "Eighth Amendment judgments should neither be nor appear to be merely the subjective views" of judges. Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980). To be sure, "the Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a given punishment. Coker v. Georgia, supra, 433 U.S., at 597, 97 S.Ct., at 2868 (plurality opinion); Gregg v. Georgia, supra, 428 U.S., at 182, 96 S.Ct., at 2929 (joint opinion). But such "`judgment[s] should be informed by objective factors to the maximum possible extent.'" Rummel v. Estelle, supra, 445 U.S., at 274-275, 100 S.Ct., at 1139, quoting Coker v. Georgia, supra, at 592, 97 S.Ct., at 2866 (plurality opinion).
Chapman, 452 U.S. at 346, 101 S.Ct. at 2399 (emphasis added).[7]
Perhaps the most perceptive of the Court's cautionary observations, which, incidentally, addresses the prevailing under-current of the case at bar, was incorporated in the following caveat to the judiciary: "Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect

that fact rather than a court's idea of how best to operate a detention facility." Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (emphasis added). The court amplified this caveat with a compelling rationale:

[T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of

easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security. Jones v. North Carolina

Prisoners' Labor Union, supra, 433 U.S., at 128, 97 S.Ct., at 2539; Procunier v. Martinez, supra,

416 U.S., at 404-405, 94 S.Ct., at 1807-1808; Cruz v. Beto, supra, 405 U.S. [319], at 321, 92 S.Ct.

[1079], at 1081 [31 L.Ed.2d 263 (1972)]; see Meachum v. Fano, 427 U.S. [215], at 228-229, 96

S.Ct. [2532] at 2540-2541, 49 L.Ed.2d 451 (1976)]. "Such considerations are peculiarly within the

province and professional expertise of corrections officials, and, in the absence of substantial

evidence in the record to indicate that the officials have exaggerated their response to these

considerations, courts should ordinarily defer to their expert judgment in such matters." Pell v.

Procunier, 417 U.S., at 827, 94 S.Ct., at 2806. We further observe that, on occasion, prison

administrators may be "experts" only by Act of Congress or of a state legislature. But judicial

deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a

155

particular case, have a better grasp of his domain than the reviewing judge, but *155 also because

the operation of our correctional facilities is peculiarly the province of the Legislative and

Executive Branches of our Government, not the Judicial. Procunier v. Martinez, supra, 416 U.S.,

at 405, 94 S.Ct., at 1807; cf. Meachum v. Fano, supra, 427 U.S., at 229, 96 S.Ct., at 2540. With

these teachings of our cases in mind, we turn to an examination of the ... security practices that

are alleged to violate the Constitution.

Wolfish, 441 U.S. at 547-48, 99 S.Ct. at 1878-79 (1979) (footnotes omitted) (emphasis added).

The unabridged teachings of the Court convey the Court's own unequivocal commitment to and its adamant recognition of the state's sovereign authority to operate its penal institutions. Anchored in the sensitive principles of federalism, this sovereign authority is a prerogative of the state, not a privilege recognized through comity.

Apart from the Supreme Court's limitations imposed upon lower courts in eighth amendment prisoner detention cases, the parameters of consideration in the instant case have been further confined by the consent decree executed by the United States and Michigan, dated July 16, 1984, and adopted by the district court as its judgment.

The complaint by the United States charged Michigan with constitutional infringements arising from physical conditions of confinement in "fail[ing] to provide and maintain basic elements of a safe and sanitary physical and environmental plant (including fire safety) for inmates," failing "to provide medical services (including services for suicidal, psychotic, and self-mutilating inmates)," and failing "to protect inmates from harm" at the named institutions here in controversy. Complaint at 5. Michigan denied the allegations and the issues were never adjudicated. Consequently, the record fails to disclose the existence, scope, or degree, if any, of the asserted constitutional infringements. The controversy was resolved by a consent decree, including a state plan of implementation which was limited in application to the named facilities. The consent decree, as approved by the trial court, was intended to be "in resolution of all claims asserted and relief sought, and without a finding of liability or other determination on the merits." Consent Decree at 2.

In Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1984), the Supreme Court directed courts of lesser jurisdiction to interpret the scope of consent decrees disposing of institutional litigation with the following cautionary instruction: "[T]he `scope of a consent decree must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to it' or by what `might have been written had the plaintiff established his factual claims and legal theories in litigation.'" Id. at 574, 104 S.Ct. at 2585 (emphasis added) (quoting United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971)).

Courts, nevertheless, retain the authority to modify consent decrees upon affirmative proof of a defect or deficiency in an original decree which impedes achieving the objectives of the decree because experience has

proved the provisions of the decree to be less effective than anticipated or because circumstances and conditions have changed which warrant modifications, provided that the ordered modifications further the purpose of the original decree without upsetting the core intent, purpose, and scope of the basic agreement between the parties. Heath v. De Courcy, 888 F.2d 1105, 1108-09 (6th Cir.1989). Moreover, any modification must be fashioned to achieve the goals of the enabling legislation, in this case CRIPA, and must be tailored to address conditions giving rise to a constitutional infringement. Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982); Park View Heights Corp. v. City of Black Jack, 605 F.2d 1033, 1036, 1040 (8th Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1081, 63 L.Ed.2d 321 (1980).
Having revisited prevailing Supreme Court precedent, which has charted the course for this court in resolving the 156 issues of the instant appellate review, and having *156 juxtaposed the consent decree dated July 16, 1984 and
the state's proposed professionally-based classification plan of June 3, 1988 with the court's material extensions and modifications of those proposals as mandated by its five orders here in controversy, this court finds it appropriate to address the controversial issues more precisely.[8]
It is apparent from the agreement that Michigan committed itself to fund a multi-million dollar expenditure to restructure, realign, and upgrade the physical conditions of inmate detention at the subject prisons. Michigan's obligations included programs of new construction, rehabilitation of existing structures, professional medical and psychiatric recruitment, and extensive recruitment and training of non-professional, technical, and other supporting personnel, together with a reassessment of existing practices and procedures at the subject prisons. The agreement, as approved by the trial court, essentially tracked the allegations of the complaint and was limited in its scope to the following physical conditions of confinement:
1. Medical care
2. Fire safety
3. Sanitation, safety and hygiene
4. Crowding and protection from harm
5. Access to the courts.
Of the above five areas identified in the consent decree as the sources of alleged inmate constitutional infringements, the instant appeals implicate only the conditions numbered 1, 4, and 5: Michigan's failure to adequately project the needs for mental health facilities; Michigan's alleged failure to develop and effectively implement a professionally-based classification plan designed to protect prisoners from harm; and Michigan's failure to report the closure of a library at one of its facilities.
The record reflects that Michigan's proposed inmate classification plan, submitted on June 3, 1988, as subsequently revised to incorporate various recommendations suggested by plaintiff's experts, was professionally designed and developed by William L. Kime and endorsed by Robert A. Buchanan II, both recognized expert consultants on penal classification systems. The plan was essentially modeled after systems that had been adopted and successfully implemented by other state correction authorities as well as the Federal Bureau of Prisons. The primary objection of amicus and the United States to Michigan's proposed plan was lodged in the charge that inmates were not actually placed or housed in accordance with their individually developed classification profiles and that Michigan's plan was limited to security considerations and ignored inmate "program needs."
In its decisions, the trial court was primarily concerned with Michigan's implementation of the proposed classification instrument, as is reflected by the court's remarks:
There is excessive disparity between designated classification (according to the classification system) and actual placement (the classification level of the facility to which the prisoner is actually assigned). This renders classification almost meaningless.
Nov. 3 Order at 3.

157 The Court finds that the term "implementation" means that the classification *157 plan must be operated so as to have force and effect on the actual operation of correctional facilities, programs, staff, and prisoners. Thus, it will not be sufficient to merely label prisoners if the actions warranted by the labels are not carried out.

Id. at 2. It is apparent from the record that the trial court's assessment was well-taken and that the percentage of "overrides" of designated security classifications have been excessive.[9] This conclusion was not seriously rejected by Michigan, although it did contest the degree of excessive "override" percentages alleged by amicus and the plaintiff.

In any event, the trial court's concerns are endorsed by this court. Although there is no absolute consensus between the six-odd experts who addressed the issue of an acceptable fixed percentage of "overrides" in designated security classifications, a range of between 10 percent and 20 percent received favorable comment from the participating penological experts. It appears that the overrides have been more a function of implementation than of the composition of Michigan's security classification instrument. Waivers of designated classifications apparently have resulted from the lack of available appropriate housing facilities combined with a practice of convenience in "waiving" inmates into a lower classified facility.

This court concludes that, although Michigan's proposed security classification instrument is professionally-based and designed to track essentially the same configurations that have been adopted and successfully administered by other states and the Federal Bureau of Prisons, and although the record reflects no evidence that Michigan has deliberately attempted to avoid its commitments under the consent decree and the June 3, 1988 proposed classification plan by initially assigning prisoners to less effective quarters, Michigan's implementation of that plan leaves much to be desired.

Accordingly, Michigan shall meaningfully implement the security classification plan filed on June 3, 1988 by actually placing individual inmates in accordance with their classification profiles, recognizing that misplacements due to temporary unavailability of appropriate space does not necessarily require a change in classification designation or the system itself. Upon remand, the trial court shall direct Michigan and the United States to structure a reasonable time frame within which Michigan shall bring the overrides into an acceptable range of 20 percent. Defendants and the United States shall effectively monitor the progress of their efforts with periodic reports to be submitted by the defendants at agreed upon intervals disclosing the level of overrides in the system and assessing those levels in relation to a general norm of 20 percent or less.

In considering the district court's order directing the defendants to incorporate inmate "program needs" into its classification system, this court's attention is directed to the Supreme Court's pronouncements that have recognized and addressed the relationship between "program needs" 0907 such as vocational, educational, recreational, guidance, and other similar sociological programs 0907 and eighth amendment infringements. In characterizing those aids as desirable, the Court has emphasized that a failure to incorporate programming needs into a classification system does not inflict pain, much less unnecessary and wanton pain. Consequently, such failure does not rise to the level of an eighth amendment violation:

158

[J]ob and educational opportunities[, more particularly] limited work hours *158 and delay before

receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of

this kind simply are not punishments. We would have to wrench the Eighth Amendment from its

language and history to hold that delay of these desirable aids to rehabilitation violates the

Constitution.

Chapman, 452 U.S. at 348, 101 S.Ct. at 2400 (emphasis added). Moreover, the record reflects that security classifications were and are separate and distinct procedures in Michigan's penal system.

Although an incidental connection was recognized during the negotiation of the consent decree between security levels and some programming classifications in that a limited number of programs were unavailable at particular security levels, programming classification was excluded from the consent decree. Michigan, prior to the execution of the consent decree, had already been implementing an existing programming classification within its penal system. Moreover, a review of the consent decree fails to support any intention of the parties to include a

programming classification in either the consent decree or the state plan of implementation. There is no affirmative evidence to support an eighth amendment constitutional basis for extending the consent decree as implemented by the state plan and the security classification instrument dated June 3, 1988 to include programming classification. Thus, the district court-ordered modifications of those instruments to incorporate programming needs as mandated by its various orders here in controversy, including, but not limited to, part I, sections 4, 20, 21, 22, and 23[10] of the November 3, 1990 order, are REVERSED.[11]
This court has also conducted an analysis of Michigan's proposed validation procedures, designed to monitor compliance with the classification instrument, and the court-adopted work product of amicus, the United States, and the independent expert. This court concludes that both validation plans are equally effective and comparable in that both procedures generate essentially the same information necessary to adequately evaluate Michigan's compliance efforts. Recognizing the wide diversity of expert opinion available within any given professional peer group to convincingly support an almost unlimited spectrum of desired predicates, one of which may be more appealing to a judicial evaluator than another, when the proposals are comparably equal, as they are here, a court should defer to the expertise of the prison's administrators.
There is no affirmative evidence disclosed in the record before this court that reflects a defect or deficiency of substance in the consent decree, the state plan, or the June 3, 1988 classification plan and its validation procedures that would impede the objectives of the consent decree. There is no affirmative evidence that Michigan's classification and validation proposals are inadequate or would contribute to the potential for violence or pose a threat to the safety of inmates, nor is there affirmative proof that the provisions of the consent decree would be less effective than initially anticipated by the real parties in interest and the court or that conditions had 159 changed to such a degree as to warrant the material modifications and extensions mandated *159 by the district court. It would appear from the record that the trial court has permitted itself to become inextricably entangled in details of prison administration best left to the judgment of the sovereign State of Michigan.
Moreover, the district court extended the classification plan to prison facilities statewide, in derogation of the consent decree, which, by agreement of the parties, limited the application of the classification plan to the named institutions. Conditions have not changed to such an extent that the trial court could look outside the four corners of the consent degree in determining the obligations of the parties. In addition, the record reveals no affirmative factual proof of constitutional violations to support this material extension and modification of the consent decree. Under the circumstances of this case, it is for Michigan to decide the feasibility of extending the professionallybased classification plan beyond the prisons named in the consent decree to prison facilities statewide.
The dispositive issues considered by this court are summarized with clarity by the Supreme Court in its discussion of the sensitive area of state sovereignty that may be impacted by judicially-imposed federal penal reform:
There was a time not too long ago when the federal judiciary took a completely "hands-off" approach to the problem of prison administration. In recent years, however, these courts largely have discarded this "hands-off" attitude and have waded into this complex arena. The deplorable conditions and Draconian restrictions of some of our Nation's prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison systems. But many of these same courts have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution or, in the case of a federal prison, a statute. The wide range of "judgment calls" that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government.

Wolfish, 441 U.S. at 562, 99 S.Ct. at 1886 (emphasis added).
The Court went on to counsel: "Concern with minutiae of prison administration can only district the court from detached consideration of the one overriding question presented to it: does the practice or condition violate the Constitution?" Id. at 544, 99 S.Ct. at 1877.
The June 3, 1988 professionally-based classification plan and attendant validating techniques were and are at least comparable to the imposed methodology mandated by the November 3, 1989 district court order, as well as subsequent orders that address the issue of a professionally-based classification plan. The district court abused its discretion in overly intruding upon the sovereignty of Michigan and the terms and conditions of the consent decree by materially extending and modifying the consent decree as it relates to affected prison facilities. Thus, the district court's orders, to the extent that they modified or extended Michigan's submitted classification plan, including any requirements to justify, explain, or further validate the classification instrument, and including all requirements that the plan encompass a statewide system of classification, including, but not necessarily limited 160 to, the first full paragraph of page 10, the first full *160 paragraph of page 11, the first full paragraph of page 12, the first sentence of the second paragraph on page 12, all of section 4 on pages 13 and 14, and all of section 6, on page 15 of the November 3, 1989 opinion are REVERSED.
Although the protracted interim litigation has interrupted a fine-tuned evaluation of its validation efforts, Michigan has committed to conduct ongoing studies, assessments, and reassignments of both the classification instrument and its validation criteria to insure the effectiveness of its overall classification plan. This court concludes from the record that Michigan's proposed validating procedures are equal and comparable to those evolved by amicus and the United States as adopted by the court. Both proposals generate essentially the same data. Accordingly, this court follows the dictates of the Supreme Court in this area of penal administration, which requires the lower courts to avoid intrusion, either directly or indirectly through special masters, independent experts, or other extraneous participants, into the realm of "expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the [state] legislative and executive branches of government." Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). Thus, this court concludes that Michigan should be permitted to continue developing its implementation of the professionally-based classification instrument and validation procedures until it appears from affirmative proof that the plan and procedures result in a constitutional infringement.
Recognizing that, according to the United States Bureau of Prisons, the constantly fluctuating number of arrests and the dynamics of prosecution policies, sentencing, and parole decisions all directly influence prison populations, and, consequently, make it extremely difficult to project, with any degree of accuracy, extended future prison populations, their management, and facility requirements, this court, nevertheless, AFFIRMS that part of the district court's orders of November 6, 1989 and January 24, 1990 directing Michigan to "develop ... a plan illustrating how they plan to manage the correctional population projected by their research." Issued pursuant to section K of the consent decree, the district court's orders require nothing more than a noncommittal forecast illustrating how Michigan intended to cope with controlling overcrowding, with placing prisoners in accordance with their profile classifications, and with providing adequate capacity for inmate mental health care.
The district court's first judgment of contempt against Michigan was conceived in its September 29, 1988 order directing Michigan to submit a revised program statement for a new mental health facility designed to provide acute and comprehensive mental health care for a population projected to at least the year 2000. Michigan responded by presenting a program that addressed the future needs of an inmate population through at least the year 1990. The program was to be implemented by a 400-bed facility readily expandable to a capacity of 500 beds if additional requirements demanded. A review of the record prompts this court to AFFIRM the district court's adjudication of contempt.
Accordingly, Michigan shall provide a population projection as mandated by the district court order of September 29, 1988 within a reasonable time frame to be determined by the United States and Michigan as approved by the court. The program shall also conform to the district court's directives incorporated in its order of January 24, 1990 in (1) the first sentence of the last paragraph on page 31; and (2) paragraphs 1 and 2 on page 32.

This court further concludes that Michigan is capable of developing the mandated projections without the assistance of an outside independent contractor. The district court's order to the contrary is an overly intrusive directive and an abuse of discretion. The requirement that Michigan retain an independent contractor to develop the projection is, therefore, REVERSED.
Michigan has acknowledged its error in removing from the March 1989 final audit report information disclosing 161 the discontinued *161 library services at Marquette Branch Prison, information that it initially included in its draft
audits. Initially, this court notes that the evidence of record fails to disclose any bad faith or intentional effort to withhold information by Barbara Hladki, the consent decree coordinator, or by the Department of Corrections. Considering the compliance provisions of the consent decree that demand the monitoring of literally hundreds of conditions at the subject prisons, which house over 7500 prisoners, coupled with the virtually free access Michigan has accorded amicus and the United States, including their respective representatives and experts, to the various facilities and to the volume of documents, surveys, and reports generated by the Department of Corrections, the significance of a single oversight, misinterpretation, or misjudgment concerning a condition as obvious as discontinuing library services at Marquette is of little, or no, substantial consequence. The adjudication of contempt for this insignificant infraction constituted an abuse of discretion and is REVERSED.
In ordering its related injunction to restructure the compliance reporting procedures, presently conducted by the consent decree coordinator, the district court found "it impossible to reconcile the defendants' new assertive and aggressive litigating posture, with the defendants' obligation to report the facts of compliance with the degree of candor and particularity required by ... paragraph L of the Consent Decree." Jan. 24 Contempt Order at 8. The compliance procedures were, by the conditions of the consent decree, reserved exclusively to Michigan, and the district court's restructuring order appears to be anchored, not in the record, but rather in displeasure arising from Michigan's reluctance to passively submit to a series of recently evolving decisions including the trial court's decision to confer litigating rights equal to those of a named party/real party in interest upon the Knop class under the appellation of "litigating amicus curiae," and Michigan's aggressive opposition to litigating amicus's efforts to exercise those litigating rights by initiating contempt proceedings, without the support of the United States, charging the governor, the attorney general, and other state officials with nonfeasance and misfeasance. Moreover, the record failed to disclose that the existing compliance reporting procedures were defective or deficient in achieving the objectives of the consent decree or that circumstances and conditions had changed since the entry of the consent judgment to warrant the court-ordered restructuring.
Perhaps the most convincing argument advanced by Michigan against the district court's restructuring was that the order preempted the state's sovereign domain over employment, tables of administrative organization, personnel assignments, and reporting responsibilities. Under the court's order, the appointment of the consent decree coordinator would be subject to approval by the amicus, the United States, and the court. In addition, the order directed the coordinator to withhold initial examination and review of all compliance reports developed by the decree coordinator and staff members from the Michigan Department of Corrections, its employees, the executive branch of state government, and its legal counsel, the state attorney general, until those documents were released to the United States and amici. The district court having abused its discretion, its overly intrusive sanction is accordingly REVERSED in its entirety.
Michigan's final assignment of error challenges the district court's order of April 4, 1990, which, like the district court's orders of November 3, 1989, November 6, 1989, and January 24, 1990, has its common origin in the 1623 consent decree and incorporated state plan dated July 16, 1984.[12] In *162 *163 addressing this issue, Michigan initially challenged the standing of the Knop class as "litigating amicus curiae" to compel the disclosure of confidential internal draft medical/mental health/dental care peer audits and its right to exercise the litigating rights of a real party in interest.
As discussed earlier, the "Knop plaintiffs," inmates in the subject prisons, were denied the right to intervene in this action. However, the district court permitted them to participate in the traditional role of amicus curiae. In July 1984, Michigan and the United States entered into a consent decree and extended the traditional role of amicus curiae to the extent that the defendants were to furnish amicus curiae with reports, plans, pleadings, memoranda, and other documents submitted to the United States and the court pursuant to paragraphs I, J, K, and L of the

consent decree. The United States was also to furnish amicus with its responses, if any. The consent decree also permitted the Knop class to respond to any of those materials and to exercise, within the discretion of the trial court, its traditional privileges of participating in any hearing conducted by the court by brief and oral argument.
In July, 1988, after several years of compliance litigation, chronicled in part in United States v. Michigan, 680 F.Supp. 928 (W.D.Mich.1987), and Knop v. Johnson, 700 F.Supp. 1457 (W.D.Mich.1988), and over the objections of the United States and Michigan, the district court conferred "litigating amicus curiae" status upon the Knop class. The Knop class subsequently dismissed its pending, parallel civil rights action. This change of status expanded the Knop plaintiffs' role in this action beyond that specified in the consent decree. As ordered by the court, the Knop class as "litigating amicus curiae" was extended full litigating rights of a named party to the action including, but not limited to, the right to file pleadings, conduct discovery, introduce evidence at proceedings, issue and enforce subpoenas, present and enforce the attendance of witnesses, initiate and pursue proceedings 164 in contempt, and file motions to modify and amend the *164 agreement between the United States and Michigan embodied in the July 16, 1984 consent decree and state plan.
There can be little doubt from the record of this appeal that the Knop class, in its role of "litigating amicus curiae" and exercising the authority of a named party/real party in interest, has virtually assumed effective control of the proceedings in derogation of the original parties to this controversy. The creation of this legal mutant characterized as "litigating amicus curiae," as demonstrated by the cascading acrimony among the participants to this litigation, if accorded precedential viability, will implicate and erode the future core stability of American adversary jurisprudence as we know it today. Neither the appellees nor the trial court have advanced, beyond conclusory generalizations and conjecture, a persuasive argument that the trial court's "litigating amicus curiae" order, whatever that term implies, does not seriously impinge the inherent rights of the only real parties in interest to this CRIPA litigation between the United States and Michigan. The district court's order has, by extrajudicial edict, impressed upon the United States and Michigan a third-party legal interloper in the persona of the NPPACLU and the ACLUFM acting through their structured willing surrogate, the Knop class, all of whom had been denied real-party-in-interest status and whose efforts to achieve that end had been earlier barred by the trial court. The legal consequence of the district court's order was to achieve, by circumvention, a result that effectively and impermissibly abused all conventional laws and judicial rules of civil practice and procedure for acquiring the status and rights of a named party/real party in interest, including Fed.R.Civ.P. 14 and 17 through 25.
Challenged by the characterization of "litigating amicus curiae," which is not referenced in any legal dictionary, congressional enactment, judicial promulgation, the Federal Criminal Code and Rules, nor the Federal Civil Judicial Procedures and Rules, this court conducted exhaustive research in an effort to search for the identity of this illusive trial court-created mutant. Although a limited number of district courts within the Fifth, Ninth, and Eleventh Circuits and the Ninth Circuit Court of Appeals on a single occasion have applied the characterization of "litigating amicus curiae" to nonparties in interest to a cause of action, the cases afford no assistance in defining or positioning the concept within the evolution of American adversary jurisprudence because, in each instance, the participation of a "litigating amicus curiae" was permitted by agreement of the named parties to the controversy.[13] Accordingly, integral to this appeal as an issue of first impression is the identification of this elusive apparition "litigating amicus curiae."
Historically, "amicus curiae" was defined as one who interposes "in a judicial proceeding to assist the court by giving information, or otherwise, or who conduct[s] an investigation or other proceeding on request or appointment therefor by the court." 4 Am.Jur.2d, Am.Cur. § 1, at 109 (1962). See Leigh v. Engle, 535 F.Supp. 418, 419-20 (N.D.Ill.1982). Its purpose was to provide impartial information on matters of law about which there was doubt, especially in matters of public interest. Miller-Wohl Co. v. Commissioner of Labor & Indus., State of Montana, 694 F.2d 203, 204 (9th Cir.1982); 4 Am.Jur.2d, Am.Cur. §§ 1, 2 at 109-10; Leigh, 535 F.Supp. at 420. 165 The orthodox view of amicus curiae *165 was, and is, that of an impartial friend of the court 0907 not an adversary party in interest in the litigation. Miller-Wohl, 694 F.2d at 204. The position of classical amicus in litigation was not to provide a highly partisan account of the facts, but rather to aid the court in resolving doubtful issues of law. New England Patriots Football Club, Inc. v. University of Colorado, 592 F.2d 1196, 1198 n. 3 (1st Cir.1979); Leigh, 535 F.Supp. at 420. Over the years, however, some courts have departed from the orthodoxy of amicus curiae as an impartial friend of the court and have recognized a very limited adversary support of given issues

through brief and/or oral argument. Funbus Sys., Inc. v. California Pub. Util. Comm'n, 801 F.2d 1120, 1124-25 (9th Cir.1986); Krislov, The Amicus Curiae Brief: from Friendship to Advocacy, 72 Yale L.J. 694 (1963).
Classical participation as an amicus to brief and argue as a friend of the court was, and continues to be, a privilege within "the sound discretion of the courts," see Northern Sec. Co. v. United States, 191 U.S. 555, 24 S.Ct. 119, 48 L.Ed. 299 (1903); 4 Am.Jur.2d, Am.Cur § 4 at 113, depending upon a finding that the proffered information of amicus is timely, useful, or otherwise necessary to the administration of justice. Leigh, 535 F.Supp. at 420 . Amicus, however, has never been recognized, elevated to, or accorded the full litigating status of a named party or a real party in interest, Miller-Wohl Co., 694 F.2d at 204, and amicus has been consistently precluded from initiating legal proceedings, filing pleadings, or otherwise participating and assuming control of the controversy in a totally adversarial fashion. Moten v. Bricklayers, Masons and Plasterers Int'l Union of Am., 543 F.2d 224, 227 (D.C.Cir.1976) (per curiam) (amicus may not appeal judgments); State ex rel. Baxley v. Johnson, 293 Ala. 69, 300 So.2d 106, 111 (1974) (per curiam) (amicus is not a party and cannot assume the functions of a party nor control litigation); Silverberg v. Industrial Comm'n, 24 Wis.2d 144, 128 N.W.2d 674, 680 (1964) (amicus brief seeking to challenge validity of testimony in the record stricken because attempt to challenge was not a proper function of amicus); 4 Am.Jur.2d, Am.Cur. §§ 3, 6 at 111, 114. See City of Winter Haven v. Gillespie, 84 F.2d 285 (5th Cir.), cert. denied, 299 U.S. 606, 57 S.Ct. 232, 81 L.Ed. 447 (1936). Historically, an amicus could not join issues not joined by the parties in interest, e.g., National Comm'n on Egg Nutrition v. F.T.C., 570 F.2d 157, 160 n. 3 (7th Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978); In re Buffalo, 57 A.D.2d 47, 394 N.Y.S.2d 919, 921 (1977); Phoenix v. Phoenix Civic Auditorium & Convention Center Ass'n, 99 Ariz. 270, 408 P.2d 818, 821 (1965) (amicus cannot create, extend, or enlarge issue), and was not bound by the judgments in actions in which amicus was permitted to brief or argue. Munoz v. County of Imperial, 667 F.2d 811, 816-17 (9th Cir.), cert. denied, 459 U.S. 825, 103 S.Ct. 58, 74 L.Ed.2d 62 (1982); TRW, Inc. v. Ellipse Corp., 495 F.2d 314, 318 (7th Cir.1974); 4 Am.Jur.2d, Am.Cur. § 3, at 112.
Historically, there has been a bright-line distinction between amicus curiae and named parties/real parties in interest in a case or controversy. Standing to litigate equal to that exercised by named parties/real parties in interest may be acquired or conferred only pursuant to Fed.R.Civ.P. 14 and 17 through 25. See Ex parte Cutting, 94 U.S. 12, 20-21, 24 L.Ed. 69 (1876) (in pre-Civil Rules case, Supreme Court recognized intervention only upon petition for formal intervention, which was granted either expressly or through the actions of the lower court consistent with intervention); Miller-Wohl, 694 F.2d at 204 ("A petition to intervene and its express or tacit grant are prerequisites to this treatment [as an intervenor].") The intent and purpose of the Federal Rules should not be evaded by acts of judicial legerdemain. Amicus curiae may not and, at least traditionally, has never been permitted to rise to the level of a named party/real party in interest nor has an amicus curiae been conferred with the authority of an intervening party of right without complying with the requirements of Fed.R.Civ.P. 24(a), nor 166 accorded permissible intervention without meeting the criteria of Fed.R.Civ.P. 24(b). *166 Only a named party or an intervening real party in interest is entitled to litigate on the merits, e.g., Miller-Wohl, 694 F.2d at 204; Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1017 (D.C.Cir.1985); Gilbert v. Johnson, 601 F.2d 761, 768 (5th Cir.1979) (Rubin, J., concurring); cf. Ross v. Bernhard, 396 U.S. 531, 541 n. 15, 90 S.Ct. 733, 740 n. 15, 24 L.Ed.2d 729 (1970), and there is little doubt from the record that the district court, in the instant case, has conferred named party/real party in interest status upon the Knop class under the appellation of "litigating amicus curiae" and has invested the Knop class with equal standing to litigate this CRIPA action on the merits, thus divesting the original parties, the United States and the State of Michigan, of effective control of their litigation. It is reasonable to conclude from the evolution of amicus curiae that the judicial fiat of "litigating amicus curiae" in the instant case transcends the traditional concept of that term within accepted jurisprudence.
Forgetting, for the moment, the lexicology applied by the trial court to its judicial creativity and juxtaposing the broad authority conferred upon the Knop class with the rights equal to those of a named party/real party in interest, it becomes facially apparent that the trial court has, subsequent to the execution of the court-approved consent decree, by judicial legislation, impressed upon the United States as plaintiff and the State of Michigan as defendant in this CRIPA action an intruder with equal litigating rights of a named party/real party in interest, thereby subverting the right of the United States and Michigan to effectively control the future course of the proceedings.

The record of these turbulent proceedings attests to the position, declared in open court, of the NPP-ACLU and the ACLUFM that their interests and the interests of the Knop class were and continue to be adverse to the interests of both the United States and Michigan, the real parties in interest to this litigation. The unnecessary, overly intrusive, and indiscriminate course of litigating conduct demonstrated by the Knop amicus curiae in exercising the court-conferred litigating rights equal to a named party/real party in interest have exacerbated, if not caused, much of the discord, bitter confrontation, and continuing acrimony that has pervaded these proceedings since it moved to secure its domination over the directional course and objectives of these postjudgment proceedings, all of which has noticeably protracted and impeded the orderly implementation of the consent decree and delayed the benefits and results anticipated to be derived therefrom. To condone the fiction of "litigating amicus curiae," in reality an extrajudicial, de facto named party/real party in interest, would extend carte blanche discretion to a trial judge to convert the trial court into a free-wheeling forum of competing special interest groups capable of frustrating and undermining the ability of the named parties/real parties in interest to expeditiously resolve their own dispute and capable of complicating the court's ability to perform its judicial function. The record fails to disclose any result, beyond disrupting the implementation of a court-approved, negotiated consent decree, that the NPP-ACLU, the ACLUFM, and the Knop class cannot achieve as traditional amicus curiae without the necessity of opening this judicial Pandora's box and releasing a prolific source of legal confusion upon the bench, the bar, and the public in this and future cases in controversy.
Accordingly, it is the conclusion of this court that the Knop class is without standing to compel the disclosure of internal medical/mental health/dental care draft peer audits pursuant to the district court's order of April 4, 1990, or to exercise any litigating rights equal to a named party/real party in interest conferred by the district court under the characterization of "litigating amicus curiae" including, as a condition precedent for court consideration, the right to endorse or veto any state-proposed action. The Knop class is, however, not precluded from continued participation in this action in the traditional role of amicus curiae, and may, within the discretion of the court, argue 167 its adversarial position either orally or by written briefs. Michigan *167 shall continue to furnish the Knop class with informational copies of all "reports, plans, pleadings, memoranda, or other documentation" it has agreed to furnish to the court and the United States pursuant to paragraphs I, J, K, and L of the consent decree. Accordingly, the April 4, 1990 order of the district court is REVERSED.
To summarize, the common thread of inquiry confronting this appellate review is whether the district court has overzealously breached precepts of federalism and comity by fashioning and imposing overly intrusive prison administrative procedures, more appropriately left to the better understanding, grasp, and expertise of prison administrators and which are within the peculiar province of state executive and legislative sovereignty. The clarion edict of the Supreme Court more than a decade ago, in language that needs no interpretation, declared:
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons. * * * The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prison.
Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1937-38, 36 L.Ed.2d 439 (1973). See also Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983); Chapman, 452 U.S. at 349 n. 14, 101 S.Ct. at 2400 n. 14; Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974).
The court's pronouncements in Rodriguez have been consistently echoed in a proliferation of its progeny without erosion or departure and adopted by this circuit and virtually every other circuit addressing issues of prison administration:
[The] underlying and restrictive principles of comity and federalism are perhaps nowhere more compelling than in actions seeking relief against unconstitutional practices, policies and conduct manifest in state penal institutions. The rationale was articulated by the Supreme Court more than a decade ago[.]
* * * * * *

Federal restraint into intrusion of a state penal institution is counseled for at least two reasons:
[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence of the Legislative and Executive Branches of our Government not the Judicial.
Kendrick v. Bland, 740 F.2d 432, 437-38 (6th Cir.1984) (quoting Wolfish, 441 U.S. at 548, 99 S.Ct. at 1879) (citing Arruda v. Fair, 710 F.2d 886 (1st Cir.1983); Sampson v. King, 693 F.2d 566 (5th Cir.1982); Newman v. Alabama, 683 F.2d 1312, 1320 (11th Cir.1982)).
This circuit has also directed that federal equity courts, in fashioning a remedy designed to correct constitutional infringements, must afford relief which is "no broader than necessary to remedy the constitutional violation." Newman v. Alabama, 683 F.2d 1312, 1319 (11th Cir.1982) (quoted in Kendrick, 740 F.2d at 437). See also Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419-20, 97 S.Ct. 2766, 2775, 53 L.Ed.2d 851, 862-63 (1977); Hills v. Gautreaux, 425 U.S. 284, 293-94, 96 S.Ct. 1538, 1544-45, 47 L.Ed.2d 792, 801 (1976); Ruiz v. Estelle, 679 F.2d 1115, 1145 (5th Cir.1982) vacated in part on other grounds, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983) ("We should, therefore, fashion `the least intrusive remedy that will still be effective'"); Newman v. Alabama, 559 F.2d 283, 287 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). Accordingly, it was incumbent upon the district court in the action 168 sub judice to impose the least intrusive remedies available in resolving the issues *168 reviewed in this appeal. The trial court, having acknowledged the teachings of the Supreme Court addressing state penal institutional administration, was remiss in not fashioning its dispositions in accordance with those directional dictates:
[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible to resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism.
Martinez, 416 U.S. at 404-05, 94 S.Ct. at 1807 (footnote omitted) (quoted in Chapman, 452 U.S. at 351 n. 16, 101 S.Ct. at 2401-02 n. 16). See also Wolff v. McDonnell, 418 U.S. 539, 561-62, 568, 94 S.Ct. 2963, 2977, 41 L.Ed.2d 935 (1974); North Carolina Prisoners' Labor Union, 433 U.S. at 125, 97 S.Ct. at 2537.
Recognizing the oversight responsibility of the trial court in the instant case to scrutinize charges of cruel and unusual conditions of confinement in the identified institutions of correction here in controversy and to discharge its duty to protect the constitutional rights of inmates detained therein, the trial court should not have assumed that Michigan's legislature and prison officials were and continue to be insensitive to requirements of the Constitution or to the perplexing problems of how best to achieve the ultimate objectives of the penal function in the criminal justice system. Chapman, 452 U.S. at 352, 101 S.Ct. at 2402. The trial court should have assiduously avoided its inextricable entanglements in the minutiae of prison administration which only distracted it from a detached consideration and resolution of the single overriding issue of the constitutional infringements seeking resolution. The trial court should have been mindful that charges of cruel and unusual punishment spring from affirmative proof of constitutional infringements and that judicial answers "must reflect that fact rather [a] trial court's idea of how best to operate a detention facility." Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (emphasis added).
Michigan has demonstrated a good faith effort to accomplish prison reforms of magnitude at the institutions named in the complaint involving a commitment of millions of dollars as evidenced by the scope of its agreement with the United States memorialized in the consent decree and state plan endorsed by the trial court on July 16, 1984. The United States, with its unlimited pool of financial and capable professional resources, has aggressively and effectively pursued the implementation of that decree with Michigan within the congressional intent of CRIPA, and the trial court, should not, directly or indirectly through a special master, independent expert, or some

extraneous participant, impose overly intrusive remedies upon the state, but should exercise restraint and reason in performing its oversight responsibility.
It is ordered that this consolidated appeal is REMANDED to the district court for further proceedings not inconsistent with this decision.
Judge BOGGS concurs in the result only.
[1] The appellate history of this case discloses an egregious dissipation of the appellate judicial resource induced by escalating personality conflicts, mutual distrusts, and suspicions, which have, to date, generated ten appeals involving three panels and eight judges of this court. Three additional petitions for review have yet to be scheduled for oral arguments. This calculation excludes three decisions from the United States District Court for the Eastern District of Michigan in Hadix v. Johnson, in which essentially identical factual and constitutional issues are being litigated. See note 3.
[2] CRIPA provides, in pertinent part:
Whenever the Attorney General has reasonable cause to believe that any State ... is subjecting persons residing in or confined to an institution, as defined in section 1997 of this title, to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action ... for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to ensure the full enjoyment of such rights, privileges, or immunities, except that such equitable relief shall be available under this subchapter to persons residing in or confined to an institution as defined in section 1997(1)(B)(ii) of this title only insofar as such persons are subjected to conditions which deprive them of rights, privileges, or immunities secured or protected by the Constitution of the United States.
42 U.S.C. § 1997a(a) (emphasis added). Section 1997 defines "institution" as, inter alia, "a jail, prison, or other correctional facility" that is "is owned, operated, or managed by, or provides services on behalf of any State." 42 U.S.C. § 1997(1).
CRIPA also requires that prior to filing an action pursuant to section 1997a(a), the Attorney General must notify the state against whom the action will be initiated, detailing the perceived constitutional violations and the minimum measures that the Attorney General deems necessary to remedy the alleged conditions. 42 U.S.C. § 1997b(a)(1). The Attorney General must also aid the target state in locating federal funds that may be available to help defray the costs of remedial measures and must make an effort to correct the alleged conditions informally. 42 U.S.C. § 1997b(a)(2).
[3] The "Hadix class" prisoners were plaintiffs in Hadix v. Johnson, Civ. No. 80-73501 (E.D.Mich.), a section 1983 class action that addressed conditions similar to those addressed by the case at bar.
[4] On November 3, 1989, the district court entered both an opinion and an order implementing the terms of the opinion. The district court, the parties, and amicus have consistently referred only to the "order" entered on November 3, although actually referring to the terms of the "opinion." This court, therefore, as a convenience, will continue the practice.
[5] The Knop amicus not only sought findings in contempt, but also attorney fees and costs in the amount of $60,575.18.
[6] Section 1292(a)(1) provides, in part:
(a) [C]ourts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of district courts ... or the judges thereof, ... granting, continuing, modifying, refusing or dissolving injunctions ....

28 U.S.C. § 1292(a)(1).
[7] This court notes the recent decision of the Supreme Court in Wilson v. Seiter, No. 89-7376, ___ U.S. ___, 111 S.Ct. 2321, 115 L.Ed.2d 271 1991 U.S. LEXIS 3490 (June 17, 1991), which has not only reaffirmed the principle that eighth amendment impingements anchored in conditions of confinement must be objectively demonstrated, id. at ___-___, 111 S.Ct. at 2326-27 but also has announced that the plaintiff has the burden of proving that prison authorities subjectively intended such violations. Id. at ___-___, 111 S.Ct. at 2326-27. It is noted, however, that the subjective intentions of prison authorities must be demonstrated by objective manifestations of such intent, and cannot be proved by factually unsupported, conclusory opinions of the court or of the prisoners or their representatives.
[8] This court has been handicapped in considering and disposing of individual findings and conclusions incorporated into the various decrees here under review. It has been difficult to precisely correlate the injunctions addressing the consent decree requirement to design and develop a professionally-based classification plan with the testimony of United States and amicus experts. This is due, in part, to a failure by the parties and the trial court to adopt a common terminology in discussing the various classification plans proffered by the parties and the district court, and because of various conflicting statements by the district court.
It would appear from the expert testimony that the classification plan is composed of three components. The "classification instrument" identifies various security level categories and defines the criteria to be applied in assigning inmates to a security level that differentiates probabilities of misconduct. Thus, by determining the inmates' security-level profile, the classification instrument indicates where the inmates should be housed or assigned. "Implementation" of the classification instrument is a function of coordinating the actual placement of inmates into available physical facilities. "Validation" of the classification instrument and its implementation is the methodology designed to evaluate their operational effectiveness: the degree and manner of the state's compliance with the demands of the classification instrument.
[9] As closely as can be determined from the record, "overrides" encompass two distinct concepts. A "departure," an integral part of the security classification system, involves a discretionary professional judgment to adjust the objectively factored security level to improve an inmate's classification. A "waiver," however, essentially ignores the inmate's true classification and results in a placement in accordance with available resources. Waivers, consequently, indicate a resource availability rather than a classification defect. A Michigan Security Classification Audit of May 1988 disclosed a 15.5 percent actual or a 23.1 percent effective "departure" override and a 42.3 percent actual or a 54.7 percent effective "waiver" override.
[10] Sections 20, 21, and 23 of part I may be implemented to the extent that they permit, pursuant to the consent decree, the provision of minimally acceptable medical (including mental health) care and to protect persons from self-inflicted harm or harm to others, but not for purposes of classifying prisoners for "program needs" as that term is used in this opinion.
[11] This does not affect Michigan's obligations to provide programming where it has separately so agreed pursuant to the state plan 0907 e.g., State Plan § IV(J)(6) 0907 unless Michigan has been otherwise relieved from such obligations by the district court. Nor does this affect any prior court order requiring provision of specific programming where Michigan failed to appeal the order, or an order that has previously been affirmed by this court. But, those separately contracted obligations do not affect the scope or content of the security classification plan that is required by section D(1) of the consent decree. The consent decree is otherwise confined in scope by the limited purpose of CRIPA to enforce constitutional rights and the Supreme Court's narrow definition of those rights as they relate to "conditions of confinement."
[12] The methodology for reporting medical, mental health, and dental audits was an issue extensively negotiated between the United States and Michigan. The procedure, intended to accommodate and incorporate the dictates of Mich.Comp.Laws §§ 333.20175(6) and 333.21515 with the state plan, was agreed upon by the United States and the Knop amicus and was approved by the court. The relevant statutes provide:

(6) The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.
Mich.Comp.Laws § 333.20175(6) (Supp.1991) (formerly § 333.20175(5) (1980)).
The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena.
Mich.Comp.Laws § 333.21515 (1980).
The pertinent language in the state plan specified only summaries of the findings of each audit:
Consistent with principles of peer review confidentiality, a professional report shall summarize the findings of each audit including an enumeration of any condition inconsistent with contemporary professional health care standards.
State Plan of Compliance at 24. (App. A of Consent Decree).
To totally disregard the precise condition of the agreement between the parties by materially restructuring the reporting procedure to require disclosure of the actual internal peer review audits for medical/mental health/dental care in lieu of summaries was a material modification of magnitude of the terms of the agreement between the named parties to this case in controversy.
Here again, a review of the record fails to disclose any factual support for the magistrate's order of March 16, 1990, as affirmed by the district court on April 4, 1990. The reasoning advanced by the district court on April 4, 1990 to justify its modification of the consent decree, implying, without factual support, a bad faith effort on behalf of Michigan to evade its responsibilities to accurately summarize its internal medical/mental health/dental care peer review audits is less than convincing when considered within the context of its previous complimentary comments addressing the integrity and professionalism of those same summaries thirty-nine days earlier in its January 24, 1990 order wherein it attested:
The Court has been impressed with the medical and mental health audits required under Section II.M of the State Plan for Compliance. These audits were conducted by departmental staff along with independent professionals who are not employees of the department. The Court believes that the application of this concept to the other areas of the Consent Decree would do much to strengthen the factfinding process.
Jan. 24 Contempt Order at 8.
Justification for the court's radical revision of the consent order by requiring the disclosure of internal peer review audits in lieu of summaries was the speculation that the internal audits might contain relevant information that could possibly discredit Michigan's integrity in accurately summarizing the internal medical/mental health/dental care audits, citing to the district court's adjudication of contempt arising from Michigan's inadvertent failure to report the discontinuation of library services at Marquette, which order has now been reversed. In any event, an inaccuracy in another unrelated audit generated by a totally foreign procedure is not imputable to the integrity of the medical/mental health/dental care summarized versions of the internal draft audits of those services. Unfortunately, modification of the consent decree, compelling the submission of privileged draft internal audit reports in lieu of summaries, has been, like a number of the issues joined in these appeals, considered and decided by the district court in the abstract, rather than upon actual factual proof of existing predicate constitutional infringement, contrary to the admonitions of the Supreme Court.
Mindful of the district court's earlier expressed confidence in the accuracy, all inclusive scope, and reliability of the summarized internal audits, based upon an experience factor of approximately five years, a conclusion endorsed by the district court's independent expert, and in the absence of proof of bad faith by Michigan to knowingly suppress or omit material facts and information in an effort to intentionally distort the summarized internal medical/mental health/dental care draft audits; in the absence of proof of a defect or deficiency in the district

court's original decree approving the consent agreement that impeded achieving the objectives of the original decree, either because experience proved the provisions of the original decree to be less effective than anticipated or circumstances and conditions had changed to warrant modification; and in the absence of proof that the modification was tailored to address conditions giving rise to a constitutional infringement, this court concludes that the April 4, 1990 order is overly intrusive. This conclusion is reinforced by the record, which disclosed that the court-ordered modification is in derogation of the intent, scope, and purpose of the July 14, 1984 consent decree in that compliance commands Michigan to violate its own statutes and to destroy the statutory privilege designed to protect the confidentiality integral to any peer review and evaluation of the medical/mental health/dental care peer audits thereby eviscerating the objectivity, integrity, and reliability of those audits, which, in turn, serve to materially erode accuracy, objectivity, integrity, and reliability of the summarized audits prepared to track Michigan's compliance with the consent decree. The record also reflects that the wide range of freedom accorded to the independent expert, the Knop and Hadix amici, the United States, their attorneys, and their experts to tour and inspect the various prisons, to review virtually all prison administration documents and generated reports, and to interview inmates affords a broad collateral information source to verify the accuracy, integrity, and reliability of the summarized internal draft audits without the necessity of an overt intrusion into Michigan's executive and legislative sovereignty.
The district court's reliance upon the Supreme Court's decision in University of Pennsylvania v. EEOC, 493 U.S. 182, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), to support its conclusion to order disclosure of peer review documents is misplaced and easily distinguished from the case at hand. The most obvious of those distinctions include the absence, in Pennsylvania, of a legislatively created privilege to protect the confidentiality of peer review material to insure the objectivity, accuracy, integrity, and reliability of the audit, the absence of a consent decree agreement that endorsed the requirement of confidentiality to ensure the objectivity and integrity of the peer review procedure and approved the summarized reporting of the internal audit results, and the ready availability, in the instant case, of collateral sources from which to generate the information without disturbing the confidentiality of the peer review procedures and without forcing Michigan to violate existing valid statutory enactments.
Contrary to the district court's assertions, its concession to permit Michigan to redact individual names from the medical/mental health/dental care internal draft audits does not effectively protect the confidentiality of the procedure because pragmatism dictates that criticisms by the relatively few members of the health care supervisory staff at consent decree institutions are easily attributable to individual peer members charged with conducting the reviews. Accordingly, this court concludes that the summarized reports of the internal draft medical/mental health/dental care audits, which have been available to the participating parties during the last five years of this litigation, and which the court has characterized as all-inclusive, objective, accurate, and reliable, satisfy the dictates of the consent decree and more than adequately ensure that appropriate services are provided prisoners, that those services are timely and performed by qualified providers in accordance with contemporary standards of professional practice, and that any problems, shortcomings, or inadequacies in providing health care are timely identified and corrected. Standing alone, the district court's conjecture that the mandated modification of the consent decree might lead to relevant evidence, without valid probative factual support, falls short of convincing this court that the modification here in controversy was justified or that its injunction did not constitute an abuse of discretion.
Neither amicus, the United States, the magistrate, nor the district court have presented a compelling reason to support a departure from the agreement expressed in the consent decree. The mandate of the April 4, 1990 order is, for the reasons discussed herein, an overly intrusive and unnecessary incursion into Michigan's executive and legislative sovereignty which offends the principles of federalism and comity.
[13] Appellees have cited the following cases to support their claim that a "litigating amicus" is an entity recognized by the federal court system: Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982); Dove v. Chattanooga Area Regional Transp. Auth., 701 F.2d 50 (6th Cir.1983), aff'g 539 F.Supp. 36 (E.D.Tenn.1981); In re Estelle, 516 F.2d 480 (5th Cir.1975); DeVonish v. Garza, 510 F.Supp. 658 (W.D.Tex.1981); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976); Morales v. Turman, 364 F.Supp. 166 (E.D.Tex.1973); Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972). These cases do not, however, aid appellee's proposition. In none of the cases was the concept of "litigating amicus curiae" nor the scope of their participation addressed by the court as an issue, nor was the

term defined within the context of a "case or controversy" seeking the resolution of the court. The term "litigating amicus curiae" does not appear nor is it alluded to in the Estelle, Wyatt, Pugh, Morales, or Dove opinions.
Save trees - read court opinions online on Google Scholar.

 
 18 F.3d 348 (1994)
UNITED STATES of America, Plaintiff-Appellee, v.
STATE OF MICHIGAN; John Engler; Michigan Department of Corrections; Gwen Andrew; Thomas Eardley; Duane L. Waters; Don P. LeDuc; Kenneth L. McGinnis; Dan Bolden; John Jabe; Pamela Withrow; John Hawley; James Pogats; Jack Bergman, DefendantsAppellants.
Nos. 93-1222, 93-1810.
United States Court of Appeals, Sixth Circuit.
Argued January 25, 1994. Decided March 4, 1994.
349 *349 William L. Fette, American Civil Liberties Fund of Michigan, Kalamazoo, MI, Delmer C. Gowing, III, Ocean Ridge, FL, Elizabeth R. Alexander, Chief Staff Counsel, Washington, DC, Alan M. Gershal, Asst. U.S. Atty., Office of the U.S. Atty., Detroit, MI, for Gary Knop.
Patricia A. Streeter, Detroit, MI, William L. Fette, American Civil Liberties Fund of Michigan, Kalamazoo, MI, Elizabeth R. Alexander, Chief Staff Counsel, Washington, DC, for remaining amici curiae.
Lisa J. Stark (argued & briefed), Susan D. Carle, U.S. Dept. of Justice, Civ. Rights Div., Appellate Section, Arthur E. Peabody, Jr., Chief, William Bradford Reynolds, Asst. Atty. Gen., U.S. Dept. of Justice, Sp. Litigation Section, Washington, DC, John A. Smietanka, U.S. Atty., Office of the U.S. Atty., Grand Rapids, MI, for U.S.
Barbara A. Schmidt, Susan Przekop-Shaw (argued & briefed), Office of the Atty. Gen., Corrections Div., Lansing, MI, for State of Mich. in No. 93-1222.
Frank J. Kelley, Office of Atty. Gen., Appellate Div., Barbara A. Schmidt, Susan Przekop-Shaw (argued & briefed), Office of the Atty. Gen., Corrections Div., Lansing, MI, for defendants-appellants in No. 93-1810.
Before: KEITH and RYAN, Circuit Judges, and JOHNSTONE, Senior District Judge.[*]
RYAN, Circuit Judge.
The United States filed this case to require the State of Michigan to bring the conditions in several Michigan prisons up to constitutional standards. In 1984, the United States and Michigan agreed to a consent decree, which was entered by the district court. In April 1992, the parties filed a joint motion requesting that the court dismiss portions of the consent decree because Michigan had substantially complied with the terms of the decree and because all but one of the disputed conditions had been brought into compliance with constitutional standards. The parties requested that the consent decree remain in place with respect to mental health issues, which were still in dispute. The district court refused to adopt the parties' stipulation in its entirety, and the State of Michigan appeals that decision.
The issue for decision is whether the district court was bound to act in conformance with the stipulation of the parties. We hold that it was not, and affirm.
I.
This case has already made one trip to the Sixth Circuit, and the general background facts are succinctly set forth in this court's prior opinion. We will not repeat them here. See United States v. Michigan, 940 F.2d 143 (6th Cir.1991). Instead, we recount only the facts necessary to our decision.

The consent decree entered by the court sets forth broad, generalized goals for Michigan to meet in each of five areas. The decree also references a "state plan" for achieving these goals:

350

H. Defendants have developed their own comprehensive plan, entitled "State *350 Plan for

Compliance" (State Plan), specifying measures they intend to take at [the subject prisons] in order

to assure constitutional conditions therein, and to address a number of other matters designed to

improve conditions of confinement. Defendants intend to fully implement the State Plan unless

implementation is excused or modified in accordance with the terms of this Decree. A copy of the

State Plan is attached to this Decree as Exhibit A.

I. Implementation of the various provisions of the State Plan will be adequate to bring Defendants into full compliance and thereby satisfy the terms and provisions of this Decree. The Court shall be advised as to each failure to comply with the provisions of the State Plan and, on request of either party or on the Court's own motion, a hearing may be held as to the constitutional implications of said failure and Defendants' non-compliance. Nothing in this Decree shall be interpreted as requiring Defendants to specifically comply with any State law, or any other provision of the State Plan that does not implicate constitutional rights of inmates.

J. Defendants shall report to the Court and to the United States any time they intend to modify their Plan, and shall advise the Court and the United States, by legal memoranda, whether the modification sought raises constitutional issues.

After several years of monitoring, compliance hearings, and an appeal to this court, the parties filed a joint motion on April 29, 1992, to dismiss portions of the consent decree. In the motion, the parties stated that they "agree that Defendants are in substantial compliance, and have achieved the goals of the Decree by assuring at least constitutional conditions" with respect to all disputed conditions except mental health care. According to paragraph R of the consent decree, however, termination was an all or nothing matter:

R. After Defendants have complied with all of the terms of this Decree, Defendants may apply to terminate the jurisdiction of this Court.

Consequently, the joint motion also requested that the district court amend paragraph R to read:

Termination of the Court's jurisdiction may be sought by either party as to any provision of the Decree when Defendants are in compliance with constitutional requirements.

The joint motion was accompanied by a stipulation to dismiss all issues except those relating to the mental health of the inmates.

The district court entered its first opinion and order with respect to the joint motion on July 2, 1992. The district court refused to adopt the amendment proposed by the parties to the termination clause of the decree. While the court was willing to dismiss portions of the decree on a piecemeal basis, it felt that the language proposed by the parties substituted compliance with the Constitution for compliance with the consent decree.

The court's order vacated paragraph R of the decree and allowed piecemeal dismissal of the decree provided the State complied with the pertinent terms of the decree.

The court next refused to dismiss any portion of the decree without receiving an updated report on the status of compliance. To that end, the court ordered a review by the independent expert assigned to monitor the consent decree. The expert was directed to develop a list of the various provisions of the decree and determine whether each provision had been complied with. The expert was also asked to determine the relationship, if any, between provisions for which there was compliance and those where compliance had not been achieved.

The court's order explicitly declined to dismiss the portions of the consent decree related to medical care because the court found that these provisions were inextricably linked to the mental health requirements such that the two should be reviewed together. The court also specified that the first round of compliance investigations should relate only to the Marquette Branch Prison and the Michigan Reformatory. The court

judicially noticed that the State was in the process of implementing the final round of changes at the State Prison 351 of Southern Michigan required by the consent decree in a prisoner *351 civil rights case known as Hadix v.
Johnson, 694 F.Supp. 259 (E.D.Mich.1988). The court felt that the implementation of these requirements might warrant dismissal of various provisions of the United States v. Michigan decree in favor of the Hadix decree. The court concluded its order by stating:
Following receipt of the Independent Expert's Report and the comments by the parties and amici, and following a hearing if necessary, the Court will enter an order dismissing jurisdiction over provisions where compliance has been achieved. If provisions remain where compliance has not been achieved, the Court will entertain motions with respect to those provisions, which may include motions to modify the Decree based on the parties' positions concerning constitutional requirements.
II.
With this background in mind, we now reach the subject of the first notice of appeal to this court, an appeal from a December 1, 1992, opinion and order of the district court granting portions of the parties' joint motion and deferring decision on the balance of the motion. The district court issued this opinion and order after receiving the requested reports from the expert. The court's opinion addressed the terms of the state plan attached to the consent decree. The court found that there had been compliance with selected portions of the state plan concerning 1) sanitation, safety, and health; 2) fire safety; and 3) overcrowding and protection from harm, and therefore "dismissed" those portions of the state plan.
The court declined, however, to dismiss any of the portions of the decree concerning access to courts. The court believed that a new state plan was required in light of this court's decisions in the consolidated appeal of Knop v. Johnson and Hadix v. Johnson, 977 F.2d 996 (6th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1415, 122 L.Ed.2d 786 (1993). In that opinion, this court held that meaningful access to the courts may require more than simply law books and simplified pleading forms. Thus, the district court found that the state plan portions of the decree concerning access to the courts no longer complied with the relevant constitutional requirements. The court also ordered further reports on portions of the consent decree which it did not dismiss. The State of Michigan appealed.
A second notice of appeal was also filed with respect to a March 30, 1993, order entered by the district court. That order, however, has no substantive effect for reasons we need not detail. Accordingly, we follow the parties' lead in treating the two orders as one. All of the issues raised in this appeal are questions of law; therefore, we review the decisions of the district court de novo.
III.
Although Michigan identifies several different legal theories on appeal, it essentially is challenging the district court's authority to refuse to implement the parties' stipulation to dismiss the majority of the consent decree. A consent decree is a unique legal document. This court has described it as follows:
It is at once "a voluntary settlement agreement which could be fully effective without judicial intervention" and "a final judicial order ... plac[ing] the power and prestige of the court behind the compromise struck by the parties."
... Thus, a consent decree is aptly described as "a settlement agreement subject to continued judicial policing."
Lorain NAACP v. Lorain Bd. of Educ., 979 F.2d 1141, 1148 (6th Cir.1992) (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983)), cert. denied, ___ U.S. ___, 113 S.Ct. 2998, 125 L.Ed.2d 691 (1993).
Because the "power and prestige" of the court rests behind a consent decree, a district court is not simply empowered, but is actually obligated, to exercise its independent judgment regarding compliance with a decree.

Otherwise, a court would simply become a rubber stamp for the parties, and the policing role of the court would become meaningless. A consent decree is a judgment. The United States and the State of Michigan stipulated to 352 the entry of a consent decree which was then submitted to the district court for approval and for entry of *352 judgment. Once entered, the decree became the court's judgment, subject to its monitoring. Once the jurisdiction of the court has been invoked, that court has an obligation to exercise its jurisdiction meaningfully; it may not blindly defer to the stipulation of the parties. The State contends that it is not arguing for blind acceptance; it concedes that the district court has authority to review the stipulation to determine whether it is unworkable or unconstitutional. We think the district court's authority is greater than that.
Under Fed.R.Civ.P. 60(b), a court has the authority to modify a judgment when that judgment has been released or satisfied or for any other reason which makes continuance of the judgment unjust.[1] This authority, however, is discretionary. Necessarily, then, the court must exercise its judgment whether to accede to a stipulation by the parties; a stipulation does not deprive a court of its inherent supervisory authority under Fed.R.Civ.P. 60(b).
Moreover, the consent decree itself requires the district court to exercise its judgment concerning compliance with its terms. The decree provides that the district court is to monitor compliance with the state plan attached to the decree and is to consider and rule upon any proposed modifications to that plan. The termination provision of the decree, paragraph R, states that "[a]fter Defendants have complied with all of the terms of this Decree, Defendants may apply to terminate the jurisdiction of this Court." (Emphasis added.) The requirement that Michigan apply to the district court for termination implies that the court is obligated to exercise its judgment and determine whether compliance has been achieved and whether termination is warranted.
Michigan also maintains that the district court's jurisdiction under the decree is limited by the Constitution, not by the terms of the state plan. The State contends that the lower court's jurisdiction ceased once the parties stipulated to constitutional compliance. We need not, however, decide this issue. The plain language of the consent decree provides that compliance with the state plan would be considered compliance with the Constitution. Michigan is correct that the consent decree does not explicitly provide that compliance with the state plan is the only means to satisfy compliance with the Constitution. The lower court, however, never took this position.
The state plan is an integral and important component of the consent decree. The plan provides a detailed, concrete way to satisfy the broad goals laid out in the decree. The decree requires Michigan to seek the court's approval prior to modifying the plan; specifically, the court must determine whether proposed changes comply with constitutional standards. The record also shows that the compliance hearings monitored implementation of the state plan, as well as compliance with the broad goals of the consent decree.
The July 2 order of the district court set forth the procedure the court would follow in addressing the parties' joint motion for dismissal. In that order, the court rejected the termination language proposed by the parties and substituted its own language. The district court felt that, since compliance had always been measured against the state plan, that was the easiest place to begin. The court held that the termination language proposed by the parties did not recognize the significance of the plan component of the decree. The court did not, however, require compliance with all the terms of the plan before it would dismiss any provision of the consent decree. Instead, the court set up a two step procedure. The court would first review compliance under the plan and would dismiss any portions of the decree for which it found compliance. Second, the court would entertain motions regarding the portions of the decree and the plan for which the court did not find compliance. In these motions, 353 the parties could argue the relevant *353 constitutional standards and show that compliance with the full terms of the plan should not be required. This procedure conforms to the modification provisions of the decree and with existing law.
If Michigan wishes to argue that the plan goes too far and that constitutional requirements have already been met, it should first raise these issues in the district court, following the procedure provided by that court and the consent decree.

IV.
For the foregoing reasons, we AFFIRM the judgment of the district court.
[*] The Honorable Edward H. Johnstone, Senior United States District Judge for the Western District of Kentucky, sitting by designation. [1] Fed.R.Civ.P. 60(b) provides: On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, ... or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Save trees - read court opinions online on Google Scholar.

 
 134 F.3d 745 (1998)
UNITED STATES of America, Plaintiff-Appellee, v.
STATE OF MICHIGAN; John Engler, Governor of Michigan; Michigan Department of Corrections; Kenneth L. McGinnis, Director, Michigan Department of Corrections; Dan L.
Bolden, Deputy Director, Michigan Department of Corrections; John Jabe, Regional Administrator, State Prison of Southern Michigan; Pamela K. Withrow, Warden, Michigan
Reformatory; and John Hawley, Warden, Marquette Branch Prison, DefendantsAppellants.
No. 96-2464.
United States Court of Appeals, Sixth Circuit.
Argued December 8, 1997. Decided January 14, 1998.
746 *746 David K. Flynn, Marie K. McElderry (argued and briefed), U.S. Department of Justice, Civil Rights Division, Washington, DC, Laurie J. Weinstein, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Plaintiff-Appellee.
Susan Przekop-Shaw (argued and briefed), Office of the Attorney General, Corrections Division, Lansing, MI, for Defendants-Appellants.
Before: GUY, NELSON, and DAUGHTREY, Circuit Judges.
OPINION
PER CURIAM.
Defendants appeal the district court's order granting plaintiff access to certain State of Michigan prison facilities, staff, and documents for discovery purposes. Because we conclude the order is neither a final order under 28 U.S.C. § 1291 nor an interlocutory order properly appealable under 28 U.S.C. § 1292, we dismiss the appeal for lack of jurisdiction.
747 *747 I.
In 1984, plaintiff sued defendants, the State of Michigan and various officials, under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997 et seq., alleging unconstitutional prison conditions. Shortly after the lawsuit was filed, the parties entered into a consent decree, which included a compliance plan. The plan dealt with such conditions of confinement as medical and mental health care, fire safety, sanitation, hygiene, crowding, and protection from harm. Since that time, the district court has overseen implementation of the plan, and various implementation orders have issued, some of which have been before this court on appeal. See, e.g., United States v. Michigan, No. 94-2391, 1995 WL 469430 (6th Cir.1995) (affirming in part denial of defendants' motion to modify remedial orders).
In 1996, the Prison Litigation Reform Act (PLRA), Pub.L. No. 104-134, 110 Stat. 1321-66 (1996) (codified in relevant part at 18 U.S.C. § 3626), was enacted in an attempt to curb judicial involvement in prison administration. That Act provides in pertinent part that
[i]n any civil action with respect to prison conditions, a defendant ... shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the

absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
Id. § 3626(b)(2). No findings of liability were made in this case, since it was initially resolved by a consent decree. Accordingly, defendants moved for immediate termination of the consent decree.[1] Defendants further invoked the automatic stay provision under the PLRA, id. § 3626(e)(2), which provides that prospective relief shall be automatically stayed beginning 30 days after a motion to terminate is filed.[2]
Shortly after defendants filed their motion, on July 3, 1996, the district court issued a decision stating that, in light of the "complexity of the issues presented" and the need for briefing, there was "no possible way" that it could decide the motion to terminate before the automatic stay provision would take effect. (App.691.) It held that the stay provision was unconstitutional. That decision is the subject of a separate appeal pending before this court in United States v. Michigan, No. 96-1907 (6th Cir. filed July 19, 1996).
The district court in its July 3 order further referred to the need for evidentiary hearings to decide the motion to terminate. In that regard, the PLRA provides that
[p]rospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current or ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
18 U.S.C. § 3626(b)(3).[3] On August 26, 1996, the United States filed a motion for access to prison facilities, staff and documents covered under the decree "to formulate its position and present argument" in response to defendants' motion to terminate.
748 On September 12, 1996, the district court granted plaintiffs motion for access. In anticipation *748 of further factfinding, the court did not address the merits of defendants' motion to terminate in its order granting discovery. It did, however, opine that based on recent hearings on the issue of mental health care the existing record was sufficient to establish that a current or ongoing violation of a federal right existed regarding that issue. The court noted, however, that plaintiffs proposed tour of the prison facilities would assist the court on the issue of whether the relief contained in the decree was consistent with the PLRA requirements that relief be "narrowly drawn," "extend[] no further than necessary to correct the violation of the Federal right," and be "the least intrusive means to correct the violation," 18 U.S.C. § 3626(b)(3), when it decides defendants' motion to terminate.
Defendants filed an appeal of the September 12 order. On appeal, plaintiff filed a motion to dismiss the appeal. The motion was denied, deferring a final jurisdictional ruling to the hearing panel on the appeal.
II.
Before considering the merits of any appeal this court must satisfy itself that appellate jurisdiction exists to hear the appeal. See, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 540, 106 S.Ct. 1326, 1330-31, 89 L.Ed.2d 501 (1986). This court has jurisdiction to review final decisions of the district court. 28 U.S.C. § 1291. In addition, it has jurisdiction over certain interlocutory orders, including those "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions." 28 U.S.C. § 1292(a)(1). It is under this latter provision that defendants contend appellate jurisdiction lies.
Defendants assert three grounds for jurisdiction: (1) the district court refused to terminate the prospective mental health relief contained in the remedial plan; (2) the order grants the United States access to the prison facilities and permits creation of an evidentiary record to discover any constitutional violations before the court will decide defendants' motion for immediate termination; and (3) the order represents evidence of the district court's failure to expeditiously address defendants' termination motion and such delay effectively constitutes a refusal to dissolve injunctive relief. We address these grounds in turn.

A. Refusal to Terminate Prospective Mental Health Relief
Defendants' first argument in support of appellate jurisdiction is based on the false premise that the district court refused to terminate prospective mental health relief. First, although defendants' request for termination of relief was pending before the court for decision, the court's order decided only plaintiff's request for discovery. Second, although the court did opine that current constitutional violations existed as to mental health care, the order explicitly provided that a decision whether to terminate mental health relief will not be made until the ordered discovery is conducted and the court has an opportunity following evidentiary hearings to consider whether the relief provided under the decree is narrowly drawn to satisfy the PLRA.
B. Creation of an Evidentiary Record
Defendants next argue that appellate jurisdiction is appropriate because the district court's grant of the discovery motion sets in motion the creation of an evidentiary record not contemplated by the PLRA. We fail to see how this is a jurisdictional argument rather than an argument on the merits, challenging the court's decision to conduct fact-finding before deciding the motion to terminate. If the court wrongfully creates an evidentiary record in ultimately deciding defendants' motion to terminate, defendants can raise that issue on appeal at that time.[4]See Rodgers v. United States Steel Corp., 508 F.2d 152, 160 (3d Cir.1975) (order that does not reach merits of claim is "nothing more than a step in the processing of the case and does not fall within § 1292(a)(1)").
C. Failure to Expeditiously Address Defendants' Motion to Terminate
749 As their final justification for appellate jurisdiction, defendants argue that the *749 court's grant of plaintiffs discovery motion denies the dissolution of injunctive relief. While in a practical sense, any determination that defers a decision on the termination motion at least temporarily denies dissolution of injunctive relief, defendants' argument proves too much, since any interlocutory order, to the extent it diverts the court's attention and consideration from pending matters, necessarily prolongs litigation. See, e.g., R.R. Donnelley & Sons Co. v. FTC, 931 F.2d 430, 431 (7th Cir.1991) ("[i]f the cost, delay, and aggravation of litigation" made an order appealable, courts of appeals would be deluged). Defendants' sense of urgency in resolving this matter is understandable, particularly in light of the duration and complexity of this litigation. The merits of defendants' appeal, however, as they relate to defendants' motion to terminate, will be properly addressed to the extent they are raised on any appeal from an adjudication of that motion.[5]
DISMISSED.
[1] At the same time, defendants filed motions with this court to terminate the relief granted in the orders on appeal in United States v. Michigan, No. 96-1129 (6th Cir. July 3, 1996) and United States v. Michigan, No. 90-1701, 1996 WL 382238 (6th Cir.1996). Those motions were denied in the first instance by the district court and the district court orders on appeal were remanded for reconsideration in light of the enactment of the PLRA.
[2] That provision has subsequently been amended to permit postponement of the effective date of an automatic stay by 60 days for good cause. Department of Justice Appropriations Act, 1998, Pub.L. No. 105-119, § 123(a)(3) (C), 111 Stat. 2440, 2470 (1997).
[3] The phrase, "current or ongoing violation" was recently amended to provide "current and ongoing violation." § 123(a)(2), 111 Stat. at 2470. The amendment is not material, however, for purposes of this appeal.
[4] The State sought a writ of mandamus on this issue, which this court denied. United States v. Michigan, No. 96-1907 (6th Cir. Sept. 17, 1996).
[5] Although on occasion this court has reviewed discovery orders that raised "`questions of unusual importance necessary to the economical and efficient administration of justice,'" FDIC v. Ernst & Whinney, 921 F.2d 83, 85

(6th Cir.1990) (quoting EEOC v. K-Mart Corp., 694 F.2d 1055, 1060 (6th Cir.1982)), we conclude that standard is not met here. For example, defendants would have this court review in piecemeal fashion the district court's findings relating to mental health in this appeal, which are only dicta, and later review findings as to other aspects of the decree in any subsequent appeal relating to the district court's disposition of defendants' motion to terminate.
Save trees - read court opinions online on Google Scholar.

 
 U.S. v. State of Mich., 116 F.R.D. 655 (1987)
116 F.R.D. 655 United States District Court,
W.D. Michigan.
UNITED STATES of America, Plaintiff, v.
STATE OF MICHIGAN, James J. Blanchard, Governor of Michigan, Michigan Corrections Commission; Gwen Andrew, Chairman, Michigan Corrections Commission, Thomas Eardley, G. Robert Cotton, Dwayne Waters, Don Le Duc, Members, Michigan Corrections Commission, Michigan Department of Corrections, Perry M. Johnson, Director, Michigan Department of Corrections, Robert Brown, Jr., Deputy Director, Michigan Department of Corrections, Dale Foltz, Regional Administrator, State Prison of Southern
Michigan, John Jabe, Warden, Michigan Reformatory, Theodore Koehler, Warden, Marquette Branch Prison, John Prelesnik, Administrator, Reception and Guidance Center, State Prison of Southern Michigan, and Jack Bergman, Administrator, Michigan Intensive
Programming Center, Defendants.
No. G84–63. | Aug. 28, 1987.
Attorneys and Law Firms
*656 Wm. Bradford Reynolds, Atty. Gen., Patrick M. Joyce, Andrew J. Barrick, Asst. Attys. Gen., Washington, D.C., for plaintiff.
Frank J. Kelly, Atty. Gen., Tom Nelson, Brian MacKenzie, Asst. Attys. Gen., Lansing, Mich., for defendants.
Opinion
OPINION
ENSLEN, District Judge.
The National Prison Project of the American Civil Liberties Union Foundation (the “NPP”) has since the beginning of this prison conditions case sought to have a voice in the approval and implementation of the Consent Decree and the State Plan for Compliance. Initially, the NPP sought to intervene as a litigating amicus curiae for the purpose of assisting the Court, on behalf of the inmates confined at the facilities subject to the Decree and the State Plan, “in its deliberations regarding the entry of” the then-proposed decree. Memorandum in Support of

Motion for Leave to Appear as Litigating Amici Curiae at 11. The NPP stated that its “primary purpose in seeking amicus status [was] not to challenge directly the substantive provisions negotiated by the parties and set forth in the 54–page ‘plan’ but to ensure that the decree imposes truly enforceable and binding obligations on the parties and incorporates an effective monitoring system.” *657 Id. at 9. Later, after the NPP had filed an action against various prison officials on behalf of the inmates confined at the subject institutions, Knop v. Johnson, No. G84–651 (W.D.Mich.), it sought leave on behalf of its clients to intervene as a plaintiff in this action. The Court granted the NPP’s initial request for litigating amicus status in part, allowing it to intervene for the purpose of arguing the proposed Consent Decree. Transcript (“T”) of March 23, 1984 Hearing at 89. Later, it denied the Knop plaintiffs’ request to intervene as a party, but granted them amicus status in this case. Consent Decree ¶ O; T of June 22, 1984 Hearing at 47.
At the March 31, 1986 compliance hearing the Knop amicus requested the Court to grant it status as “fully litigating amici” in the case. T of Mar. 31, 1986 Compliance Hearing at 508. The parties and the Knop amicus filed briefs on that issue in June of 1986. The Court took the issue under advisement. On March 25, 1987, in light of further developments in this case as well as in the Knop proceeding, the Court issued an Order stating that it was considering “granting the Knop amicus’ request for litigating status—either as amicus curiae or in a position as a plaintiff—conditioned on its acceptance of the Consent Decree in this case as a full and complete settlement of the Knop issues that the Decree covers.” Order of March 25, 1987 at 2. The Court subsequently received briefs from the parties and the Knop amicus on its proposal, as well as a renewed application to intervene as a plaintiff under rule 24(a)(2) from the Knop amicus, and heard oral argument on the issue on April 30, 1987. For the following reasons, the Court concludes that it should grant the Knop amicus’ request for litigating status and will make it a litigating amicus. This allowance is conditioned, however, on the Knop amicus’ acceptance of the Consent Decree and the State Plan for Compliance as satisfaction of the claims that have yet to be tried in the Knop proceeding.
The Present Status of the Knop Amicus
This case was formally initiated on January 18, 1984 by the United States Department of Justice pursuant to its authority under the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. §§ 1997–1997j. The United States filed suit after approximately two years of investigation and negotiation with the State of Michigan
1

U.S. v. State of Mich., 116 F.R.D. 655 (1987)

concerning conditions of confinement at three major institutions: the State Prison of Southern Michigan; the Michigan Reformatory; and the Marquette Branch Prison. Concurrent with the filing of its complaint, the United States filed a motion for dismissal of the case and for entry of a proposed consent decree. Shortly thereafter, on February 23, 1984, the NPP filed its request for leave to appear as a litigating amici. The United States and the State of Michigan opposed the NPP’s request. As I already have mentioned, the NPP eventually became involved in this case as an amicus curiae representing the interests of the Knop plaintiffs.
Section O of the Consent Decree clearly defines the Knop amicus’ present role.1 *658 The amicus receives copies of all materials filed in the case and exchanged between the parties; the Court has allowed it to file memorandums and briefs concerning compliance issues and to participate in compliance hearings, in part by introducing evidence on certain issues; and the amicus has filed suggestions regarding measures the Court should take to enforce compliance with the Consent Decree and the State Plan. In addition, the amicus has participated in pre-hearing conferences with the parties and the Court’s Independent Expert on compliance issues. I think the parties and the amicus will agree that these conferences have significantly aided the compliance process. The Knop amicus does not, however, have an unqualified right to present evidence at compliance hearings, and it cannot file motions to modify or to enforce either the Consent Decree or the State Plan. See T of Aug. 21, 1985 Hearing at 6–9. Thus, although the Knop plaintiffs (i.e., the inmates at the subject facilities) can inform the Court of their concerns, the Consent Decree and the past rulings of the Court limit the measures they can take to protect their interests in this litigation.

1

Paragraph O provides as follows:

O. The parties by agreeing to this Decree do not

intend to create any rights or obligations

enforceable by inmates. It is nonetheless

recognized that, for purposes of entry of this

Decree, the Court has granted limited intervention

to the plaintiffs in the pending action of Hadix v.

Johnson, et al., Civ. No. 80–73581, E.D. Michigan

(the “Hadix plaintiffs”), and the plaintiffs in the

pending case of Knop, et al. v. Johnson, et al., Civ.

No. 84–651, W.D. Michigan (the “Knop

plaintiffs”), to participate as amicus curiae. To the

extent Defendants are required by paragraphs I, J,

K and L of this Decree to furnish reports, plans,

pleadings, memoranda or other documentation to

the Court and the United States, an informational

copy shall be provided at the same time to the

amicus curiae. Any responses of the United States,

shall be similarly circulated. Within 20 days after

receipt of said reports, plans, pleadings,

memoranda or other documentation, Hadix and

Knop plaintiffs may respond to the Court and

parties as amicus curiae. Further, Hadix and Knop plaintiffs have a limited right, at the Court’s discretion, to participate as amicus curiae at any hearing which may be called. Consent Decree ¶ O.
Throughout this litigation, the Knop plaintiffs have requested greater authority or an enhanced status in the case. They have made these requests primarily for two reasons. First, they argue that the United States, because of policies pursued by the Department of Justice’s Civil Rights Division, is simply a nominal plaintiff and has failed to enforce vigorously the Consent Decree and the State Plan. Secondly, they argue that the existence and progress of this action is adversely affecting their ability to prosecute their own case and that as an amicus they possess insufficient authority to protect their interests. The United States responds that it is vigorously prosecuting this action in accordance with its authority under CRIPA, and that the Consent Decree is not precluding the Knop amicus from pursuing its own action. See 42 U.S.C. § 1997j; Consent Decree ¶ M. The defendants join in plaintiff’s arguments, and add that to grant the Knop amicus greater authority would violate the parties’ intent in agreeing to entry of the Consent Decree and the State Plan.
It was clear to the Court by the end of the March 1986 compliance hearing that the Knop amicus and the United States disagree, inter alia, about the scope of the Consent Decree, the relationship between the Decree and the State Plan, and which compliance issues the Court should address. These disagreements do not impugn the motives or actions of the United States’ Department of Justice, although the record reflects the Court’s displeasure with some of the Department’s actions in this case. They reflect, rather, differences arising from the United States’ perception of its authority under CRIPA and the Knop amicus’ more personal interest in the conditions of confinement at the subject facilities. Because the United States and the Knop amicus clearly disagree on how the Court should interpret the Consent Decree and the State Plan and on how it should monitor defendants’ compliance with their obligations under those documents, the Court allowed the Knop amicus to raise and to brief the issue of whether it should be given greater authority in the case.
Between the March 1986 compliance hearing and the Court’s March 25, 1987 Order the Knop case proceeded to trial on five issues the Court had severed from the rest of the case for immediate consideration, and the Court conducted numerous compliance hearings in this case. It remained evident during that year that the United States and the Knop amicus continue to share differing views about important compliance issues in this case and that
2

U.S. v. State of Mich., 116 F.R.D. 655 (1987)
they do not always have common goals and interests. It also became evident that to try the entire Knop case would require an enormous expenditure of judicial resources, in addition to time and money by the parties to that case. It took the Court thirty-five days just to try the five severed issues, which are less than one-half of the issues in the case. See Knop v. Johnson, No. G84–651, slip op. at 3 (W.D.Mich. Aug. 10, 1987). Finally, it became increasingly clear that to *659 monitor the implementation of the Consent Decree and the State Plan in this case also will require a major commitment of judicial resources. The Court accordingly issued its March 25, 1987 Order, and received additional briefing from the parties and heard oral arguments on the issue of whether it should grant the Knop amicus litigating status in this case.
Positions of the Parties and the Amicus
The Knop amicus requests litigating status for two reasons. First, it argues that the United States is not acting as a true plaintiff in this case. The amicus contends that because of policy concerns, the plaintiff will not advocate certain positions or attack certain compliance problems, and accordingly cannot effectively protect the interests of the inmates. The amicus also argues that the presence of the Consent Decree in this case is adversely affecting its ability to pursue its claims in the Knop proceeding. Although the Consent Decree technically does not preclude the amicus from pursuing its own claims, it has had two practical effects that have harmed the amicus’ interests. The first is that as the State implements the changes required by the Decree and the State Plan, it becomes more difficult for the amicus to prove that the inmates’ constitutional rights are being violated. The second effect, and from the Court’s perspective the only effect it should consider, is that the Court has deferred consideration of certain issues in the Knop case because they are the subject of compliance hearings in this case. In particular, the Court declined to conduct an immediate trial on the Knop plaintiffs’ claim of inadequate mental health care because it has devoted considerable time to that issue in this case.
The amicus requests the Court to grant it either status as a litigating amicus or status as a party, and has no preference between the two options. It argues that the Court’s inherent authority to enforce the Consent Decree and the State Plan supports its request for litigating amicus status and provides a sound basis for the Court to grant the request. Amicus observes in particular that the order it requests the Court to enter will not alter the substantive provisions of the Decree and the Plan, but rather is more of a compliance measure akin to the Court’s decision to appoint an Independent Expert. It also contends that the Decree’s designation of its status as only

that of an amicus curiae cannot restrict the Court’s authority to alter that status as necessary to ensure that the goals and intent of the Consent Decree and the State Plan are fulfilled. Alternatively, the Knop amicus argues that it satisfies rule 24(a)(2)’s requirements for intervention as a plaintiff as a matter of right.
The amicus attached to its brief in support of its request for litigating status an appendix in which it addresses its views on the Consent Decree and the State Plan and on whether its counsel can recommend that the plaintiff class accept the Decree and the Plan in lieu of continuing with the Knop litigation. In this appendix, the amicus discusses in detail its views on how the Court should interpret the Decree and the Plan and how it should view the relationship between the two documents. Amicus contends, for example, that the Court should not modify the Plan unless defendants can demonstrate that any proposed modification would not pose a significant risk of a constitutional violation, and that under the Consent Decree, and pursuant to its inherent authority, the Court can modify the Decree and the Plan as needed to protect the constitutional rights of the inmates. The amicus states that given its understanding of the proper interpretation of the Decree and the Plan, and the Court’s past interpretations of the documents, the Decree is a satisfactory vehicle for resolving what it perceives to be continuing deficiencies in the Plan’s requirements. It thus concludes that it can accept the Decree and the Plan as a fair and adequate resolution of the issues that remain to be tried in the Knop case, and suggests that the Court conduct a hearing on the issue pursuant to rule 23(e).
*660 The plaintiff vigorously opposes any expansion of the Knop amicus’ role in this proceeding. It argues that the record more than adequately demonstrates that it has taken a sincere interest in this case and has actively sought to ensure that the defendants comply with the requirements of the Consent Decree and the State Plan. The United States contends that it has devoted considerable time and resources to this case and remains committed to ensuring a successful completion of it. It observes, moreover, that paragraph O of the Decree defines the amicus’ authority in this case, and precludes it from filing motions to amend either the Decree or the Plan. The plaintiff accordingly concludes that the amicus does not possess even the authority to request litigating status.
Plaintiff also argues that even if the Court accepts the amicus’ motion or request, the amicus has not satisfied the strict standard for modifying a consent decree and therefore is not entitled to a modification of paragraph O to enhance its status. With regard to the amicus’ request to intervene, plaintiff argues that the amicus has not satisfied the requirements of rule 24(a)(2) and cannot intervene for the sole purpose of enforcing the Consent Decree and the State Plan. It thus requests the Court to
3

U.S. v. State of Mich., 116 F.R.D. 655 (1987)
deny the amicus’ request in its entirety.
Defendants concur in many of the plaintiff’s arguments on this issue. They argue that any expansion of the amicus’ role in this case will require the Court to modify the Consent Decree and that the amicus has not met the strict standard for requesting a modification of a consent decree. In particular, defendants argue that the Court cannot ignore the parties’ express intent, embodied in paragraph O of the Decree, to limit the Knop amicus’ involvement in this proceeding. They acknowledge the Court’s authority to modify the Decree to achieve its intended purposes, but argue that the proceedings to date in this case demonstrate that the Court does not have to grant the Knop amicus litigating status to ensure full and complete implementation of the Decree and the State Plan.
Finally, defendants argue that to grant the Knop amicus’ request would raise a number of subsidiary issues concerning the effect of the Eleventh Amendment on the amicus’ status and authority; defendants’ potential liability for attorney fees; and the effect of the amicus’ enhanced status on the issues in the Knop case. At oral argument both the plaintiff and the defendants raised additional issues concerning the practical effect on the parties’ cooperative efforts of granting the amicus litigating status; whether to grant the amicus’ request would advance the interests of the inmates; and whether the amicus really has agreed to accept the Decree and the State Plan in satisfaction of the remaining issues in Knop.
Discussion
[1] The Court has carefully considered the arguments of the parties and of the Knop amicus, and has concluded that it should grant the amicus litigating status in this case. I believe that my decision is proper under my inherent authority to appoint persons to appear in a case as litigating amici curiae. This grant of litigating status is conditioned, however, on the amicus’ acceptance of the Decree and the State Plan as a fair and reasonable resolution of the remaining issues in Knop (which excludes the access to courts and legal mail issues). I cannot, moreover, state that I will interpret the Consent Decree and the State Plan in accordance with the amicus’ views. I can only guarantee that the amicus, like the plaintiff and the defendants, will be able to present its views to me. Finally, since I have granted the amicus’ request for litigating amicus status, I will deny without prejudice its renewed motion to intervene under rule 24(a)(2).
[2] A district court has the inherent authority to appoint amici curiae to assist it in a proceeding. See Hoptowit v.

Ray, 682 F.2d 1237, 1260 (9th Cir.1982). In this case, the Knop amicus already is involved in these proceedings as a traditional amicus curiae, i.e., with the authority to comment *661 on compliance issues and to offer suggestions to the Court, and with a limited authority to present evidence and to cross-examine witnesses at compliance hearings. As the parties argue, to enhance this status, and to make the Knop amicus one of the rather strange creatures known as a litigating amicus, requires a modification of paragraph O of the Consent Decree, and probably of paragraph M of the Decree as well.
[3] A consent decree is a hybrid document that “has attributes of both a contract and of a judicial act.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983). As a contract, a consent decree reflects the parties careful negotiations and agreement to precise terms. United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971). By entering into a decree, the parties waive their right to further litigation and compromise on their claims. Id. Thus, “the decree itself cannot be said to have a purpose; rather the parties have purposes, generally opposed to each other, and the resultant decree embodies as much of those opposing purposes as the respective parties have the bargaining power and skill to achieve.” Id. at 681–82, 91 S.Ct. at 1757 (emphasis in original). In determining these purposes, and divining the scope of a consent decree, a court must construe the document as written. Id. at 682, 91 S.Ct. at 1757–58; see United States v. ITT Continental Baking Co., 420 U.S. 223, 235–37, 95 S.Ct. 926, 933–35, 43 L.Ed.2d 148 (1975).
In this case, the parties, after much negotiation, reached an agreement on certain steps defendants will take to improve conditions of confinement at the subject institutions and on how the plaintiff will monitor defendants’ compliance with the Decree. The parties’ purposes, in accordance with the provisions of CRIPA, were to protect the inmates’ constitutional rights and to do so in a manner consistent with the precepts of comity and federalism. With regard to the issue presently before the Court, the parties agreed to allow the Knop plaintiffs to participate in this case as an amicus curiae.
[4] A consent decree, however, particularly one that implicates the interests of the public and of specific groups of persons who are not parties to the decree, is more than simply a contract between two parties. It also is a judicial order and a continuing decree of injunctive relief. “Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties.” Williams, 720 F.2d at 920. The Court thus maintains a significant interest in the implementation of the decree, and always maintains the authority to modify the injunction “in adaptation to changed conditions.” United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). In
4

U.S. v. State of Mich., 116 F.R.D. 655 (1987)
particular, a court retains the authority to modify a decree in light of changed conditions so as to ensure that its purposes are fully implemented. United States v. United Shoe Corp., 391 U.S. 244, 249, 88 S.Ct. 1496, 1499–1500, 20 L.Ed.2d 562 (1968).
The Court thus can modify the Consent Decree in this case if it determines that a modification is needed to achieve the Decree’s purposes, i.e., to improve the conditions of confinement at the subject institutions, and thus protect the constitutional rights of the inmates, in a manner consistent with the precepts of comity and federalism. The record reflects that I have done that in the past, such as by appointing an Independent Expert and requiring defendants to take additional limited measures not required by the Decree or the State Plan, in order to achieve full compliance with the requirements of these documents. In deciding the Knop amicus’ request for litigating status, the Court must address two concerns. First, it must determine whether there is a need to grant the Knop amicus litigating status. Secondly, it must address the fact that both parties to the Decree vigorously oppose the amicus’ request.
I agree with the parties that between the Independent Expert’s reports and defendant’s *662 own thorough reporting mechanisms, the facts regarding defendants’ compliance efforts generally are well-known and not subject to substantial dispute. I believe, however, that granting the Knop amicus litigating status would assist me in interpreting those facts and in determining whether they constitute a violation of the Consent Decree or the State Plan. More importantly, to grant the Knop amicus litigating status would enhance my ability to ensure that the Decree’s underlying purpose of protecting “the constitutionality of the conditions under which prisoners are incarcerated in the subject prisons,” Consent Decree ¶ 2, is achieved. The Knop amicus currently must present its concerns to the Court in an indirect fashion; it can not file enforcement motions or request directly that the Court interpret the Decree and the Plan in a particular way. Granting the Knop amicus litigating status would enhance its ability to present its concerns to the Court.
I cannot, moreover, forget that the Knop amicus represents the inmates confined at the subject institutions. It is their concerns, along with the defendants’ concern that they not be required to do more than what is needed to protect the inmates’ constitutional rights or what is required by the Consent Decree and the State Plan, that are the focus of my attention. As the implementation of the Consent Decree and the Plan has progressed, it has become increasingly important for the inmates to have an effective voice in the compliance process. It also is evident that although the Consent Decree theoretically does not preclude the inmates from maintaining their own action in Knop, as a practical manner it has impaired their ability to protect their interests. Most significantly, the

Court has deferred action on certain issues in Knop because it has devoted considerable time to those issues in this case.
This last factor ties into one of the Court’s primary concerns in this case, and with the Knop amicus’ request: the significant amount of judicial resources it is expending on prison cases. The Court is spending a significant amount of time monitoring defendants’ compliance efforts in this case. It just spent a significant amount of time trying some of the Knop issues, and anticipates that it will take much more time for it to try the remaining issues in that case. While the Court’s concerns with its caseload and the amount of time it is spending on this case and the Knop litigation do not, of course, by themselves justify modifying the Consent Decree to grant the Knop amicus litigating status, the Court can consider them to the extent that its caseload precludes it from giving immediate attention to the Knop plaintiffs’ claims, and thus in a practical sense impairs their pursuit of their case.
The Court has only so much time it can spend on these cases. Although CRIPA states that a suit brought by the United States “shall not be grounds for delay of or prejudice to any litigation on behalf of parties other than the United States,” 42 U.S.C. § 1997j, as a practical manner I believe that many, if not most, courts would defer action on a case brought by a group of inmates if they believed that a CRIPA suit would address the inmates’ concerns. To the extent that this occurs, the inmates have a direct and significant interest in the progress of the CRIPA suit.
For the above reasons, the Court believes that the Knop amicus has established good cause for being granted litigating status in this case. Under the circumstances of this case, absent litigating status the Knop plaintiffs will not be able to protect effectively their interests in this matter. The next issue I must resolve, then, is whether I should grant the Knop amicus litigating status in light of the parties’ opposition to its request.
[5] Initially, the Court observes that since both of the parties to this case are government entities who represent the interests of the public, and since the subject matter of this case also is a matter of public interest and public concern, it must apply slightly different standards for the modification of the Consent Decree than it would apply to decrees that embody agreements *663 between private parties. In a public interest consent decree situation, a court must be flexible and willing to take actions to ensure that the purposes of the decree are achieved. New York State Association for Retarded Children v. Carey, 706 F.2d 956, 970–71 (2d Cir.1983). It must recognize, moreover, that the decree may affect the interests of persons other than those who are parties to it. Id. at 969. It must ensure that the decree, which bears its imprimatur, is
5

U.S. v. State of Mich., 116 F.R.D. 655 (1987)
implemented in a manner consistent with the public interest and with the rights of those affected by its provisions. These concerns lessen the effect of the finality doctrines that apply to consent decrees, as well as other judicial orders.
In this case, the Decree’s effect on the inmates confined at the subject institutions creates a presumption that they should have an effective role in the Decree’s implementation. That presumption can be overcome, however, by evidence that to grant the inmates litigating status would unduly prejudice the parties to the Decree. The Court thus must examine the parties’ interests in this matter. I shall first discuss the plaintiff’s interest in opposing the amicus’ request.
Under CRIPA, the United States may request a court to grant “such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment” by inmates of their constitutional rights, privileges and immunities. 42 U.S.C. § 1997a(a). Congress enacted CRIPA because institutionalized persons often lack the resources and the ability to protect their constitutional rights and the Department of Justice has the ability to act on their behalf. S.Rep. No. 416, 96th Cong., 2d sess. 19–24, reprinted in 1980 U.S.Code Cong. & Admin.News 787, 800–06. Congress authorized the United States Department of Justice to initiate actions in cases where institutionalized persons are subject to egregious and flagrant conditions which deprive them of their constitutional rights, 42 U.S.C. § 1997a(a), and to intervene in actions where its assistance may be necessary. Id. § 1997c. Congress expected the Department of Justice to exercise its authority under CRIPA so as to assist inmates and persons acting on their behalf. H.Conf.Rep. 897, 96th Cong., 2d sess. 18, reprinted in 1980 U.S.Code Cong. & Admin.News 832, 842.
In this case, the Court fails to see how the United States will be prejudiced if it grants the Knop amicus’ request for litigating status. Consistent with the United States’ interests under CRIPA, the Knop amicus seeks to protect the inmates’ constitutional rights. I appreciate plaintiff’s concern that under CRIPA it can ensure only that defendants take the minimum corrective measures necessary to protect the inmates’ constitutional rights. By accepting litigating status, however, the Knop amicus agrees to be bound by the provisions of the Decree and the Plan, which are designed to ensure that defendants take the minimum measures necessary to protect the inmates’ constitutional rights. To the extent, moreover, that the Knop amicus may request the Court to require defendants to take measures that exceed those minimally necessary under the Constitution, whatever that may be, plaintiff is free to argue that the Decree and the Plan do not require defendants to take such measures. The Court then will decide what the Decree and the Plan require of

the defendants.
My power, moreover, is coextensive with that of the plaintiff under CRIPA to the extent that I can only order defendants to take those measures necessary to ensure that the inmates’ constitutional rights are protected. In that respect, I cannot distinguish between “minimum corrective measures” and measures necessary to protect the inmates’ constitutional rights. Finally, the Knop amicus will have to abide by the provisions of the Consent Decree that are designed to allow the parties to settle compliance disputes between themselves as much as possible, without the need for judicial intervention. I thus believe that to grant the Knop amicus litigating status is consistent with CRIPA’s requirement that *664 the plaintiff respect the limitations required by comity and federalism.
The Court similarly does not believe that to grant the Knop amicus litigating status would unduly prejudice the defendants’ position. The action would not alter defendants’ substantive obligations under the Decree and the State Plan. I anticipate, moreover, that the action will not significantly enhance the adversarial nature of this proceeding. I think the amicus is committed to resolving compliance disputes without judicial intervention as much as possible, and I expect that it will abide by the procedural requirements of the Consent Decree in good faith. The resources defendants will save by not having to continue with the Knop litigation, moreover, should more than outweigh whatever additional expense granting the Knop amicus’ request in this case will cause them.
Finally, the Court acknowledges the validity of defendants’ argument that they do not want to subject themselves to liability for the amicus’ attorney fees in connection with the compliance measures. It is not the Court’s intent to subject defendants to attorney fees liability by granting the Knop amicus’ request. If the Knop amicus does request payment of its attorneys fees, moreover, the Court anticipates, without prejudging the issue, that defendants legitimately could argue that the Knop amicus is not a prevailing “party” because defendants have not agreed to a settlement of the remaining Knop issues. The Knop plaintiffs, rather, would have voluntarily dismissed their claims on those issues under rule 41(a)(2) in exchange for being given litigating status in this case. Alternatively, a waiver of attorney fees could be a condition of the Knop plaintiffs’ dismissal under rule 41(a)(2) of their remaining claims in Knop.
In summary, the Court believes it is justified in modifying paragraph O of the Consent Decree to grant the Knop amicus litigating status in this action. In accordance with that status, the Knop amicus will be able to present evidence at compliance hearings, to comment on compliance matters, and to seek enforcement of the Consent Decree and the State Plan for Compliance in
6

U.S. v. State of Mich., 116 F.R.D. 655 (1987)
accordance with the Decree’s provisions. See Consent Decree ¶ P. Concurrently, however, it may not litigate further in the Knop proceeding those issues that the Consent Decree and the State Plan cover, except the access to courts and legal mail issues, which are only briefly covered by the documents in this case and which have been fully litigated in the Knop proceeding. It must, moreover, abide by the procedural requirements of the Consent Decree. See, e.g., Consent Decree ¶¶ K, N, & P. Of course, since it can pursue the access to courts and legal mail issues in the Knop proceeding, it may not seek to enforce those issues under the Consent Decree and the State Plan. Finally, given the Eleventh Amendment, the Knop amicus is granted litigating status only with regard to the individual defendants.
In accordance with this opinion the Court will enter an order granting the Knop amicus’ March 31, 1986 oral request for status as a litigating amicus and denying without prejudice its April 15, 1987 renewal of application to intervene as a plaintiff under rule 24(a)(2). I simply cannot justify requiring the Knop case to proceed on the remaining issues when the Consent Decree and the State Plan already cover them, and the Knop plaintiffs are willing to dismiss them in exchange for being granted litigating status in this case. Such an arrangement, moreover, will not prejudice either of the parties to this case. Granting the Knop amicus litigating status is consistent with the plaintiff’s obligations and authority under CRIPA; in particular, its obligation to assist inmates who are seeking to protect their constitutional rights. In that respect, I cannot understand why the plaintiff opposes the amicus’ request. As for the defendants, granting the Knop amicus litigating status will not alter the substantive provisions of the Decree and the State Plan, and the Knop plaintiffs’ dismissal of their own suit will save the defendants substantial time and expense. Finally, I cannot justify denying the Knop amicus’ request when in a practical sense, the existence *665 of this case is adversely affecting its ability to pursue its own litigation.
I agree with the amicus that its “acceptance of the consent decree in return for litigating amicus ... status in this case would, in practical effect, constitute a partial dismissal or compromise of a class action, and would thus invoke the notice requirements of F.R.Civ.P. 23(e).” Appendix at 5–6. In particular, the Court envisions that if the Knop

amicus accepts the Consent Decree (along with the State Plan) as settlement of its remaining claims, it will voluntarily dismiss those claims pursuant to rule 41(a)(2). I order the amicus to submit a proposed notice of hearing to the Court within ten (10) days of the date of this opinion. The Court thereafter will establish a deadline for the Knop class members to submit comments on the proposed dismissal of their remaining claims and will schedule a hearing date on the issue. Since it remains unclear whether the Knop plaintiffs will accept the Decree and the Plan as a fair and reasonable resolution of their remaining claims, and whether they will voluntarily dismiss their remaining claims in exchange for being granted litigating status in this case, the Court’s decision to grant them litigating status will not become final and effective until after the hearing to be scheduled on this issue and until the Knop plaintiffs finally agree to a dismissal of their remaining claims.
ORDER
In accordance with the opinion dated August 28, 1987;
IT IS HEREBY ORDERED that the Knop amicus’ March 31, 1986 oral request for litigating amicus status is GRANTED, conditioned on the amicus acceptance of the Consent Decree and the State Plan for Compliance as a full and complete settlement of the remaining claims in the Knop v. Johnson, G84–651, case, and on its agreement to dismiss such claims voluntarily under rule 41(a)(2); this portion of the Order shall not become final and effective until the Knop plaintiffs have agreed to a dismissal of their remaining claims;
IT IS FURTHER ORDERED that the Knop plaintiffs’ April 15, 1987 Renewal of Application to Intervene as Plaintiffs Under Rule 24(a)(2) is DENIED without prejudice;
IT IS FURTHER ORDERED that counsel for the Knop amicus shall submit a proposed notice of hearing to the Court within ten (10) days of the date of the opinion.
	  

7

 
 U.S. v. State of Mich., 680 F.Supp. 928 (1987)

680 F.Supp. 928 United States District Court,
W.D. Michigan.
UNITED STATES of America, Plaintiff, v.
STATE OF MICHIGAN, James J. Blanchard, Governor of Michigan, Michigan Corrections Commission; Gwen Andrew, Chairman, Michigan Corrections Commission, Thomas Eardley, G. Robert Cotton, Dwayne Waters, Don Le Duc, Members, Michigan Corrections Commission, Michigan Department of Corrections, Perry M. Johnson, Director, Michigan Department of Corrections, Robert Brown, Jr., Deputy Director, Michigan Department of Corrections, Dale Foltz, Regional Administrator, State Prison of Southern
Michigan, John Jabe, Warden, Michigan Reformatory, Theodore Koehler, Warden, Marquette Branch Prison, John Prelesnik, Administrator, Reception and Guidance Center, State Prison of Southern Michigan, and Jack Bergman, Administrator, Michigan Intensive
Programming Center, Defendants.
No. G84–63. | COMPILATION OF OPINIONS AND ORDERS(Through July 27, 1987).
The United States brought action against Michigan prison officials under Civil Rights of Institutionalized Persons Act. A consent decree was ordered and the District Court, Enslen, J., entered various orders concerning compliance with decree.
Ordered accordingly.
Opinion
Bench Opinion Rejecting Proposed Consent Decree
Attorneys and Law Firms
*933 Arthur E. Peabody, Jr., Chief, Special Litigation Section, U.S. Dept. of Justice, Civil Rights Div., Washington, D.C., by Andrew J. Barrick, for plaintiff.
Patricia A. Streeter, Detroit, Mich., for amicus curiae Hadix plaintiffs.
Elizabeth Alexander, Adjoa Aiyetoro, for National Prison Project of the American Civil Liberties Union,

Washington, D.C.
William Fette, Kalamazoo, Mich., for Michigan American Civil Liberties Union Foundation.
Frank J. Kelly, Atty. Gen., State of Mich., Lansing, Mich., by Thomas Nelson, Brian MacKenzie, for defendants.
COMPILATION OF OPINIONS AND ORDERS
(Through July 27, 1987)
INTRODUCTORY STATEMENT AND TABLE OF CONTENTS
ENSLEN, District Judge.
The following is a collection of opinions the United States District Court for the Western District of Michigan has issued in the case of United States v. Michigan, No. G84– 63. The United States Department of Justice filed the case on January 18, 1984 under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §§ 1997–1997j, following a two-year investigation into conditions in three Michigan prisons. On July 13, 1984 the Court approved a Consent Decree setting forth the parties’ agreement to settle the suit. The Court has been overseeing the implementation of the Consent Decree for the past three years, during which time it has conducted numerous hearings on compliance issues and has issued numerous opinions. The opinions that are labeled “bench opinion” were issued from the bench during those hearings. The Court has not edited these opinions; what appears in written form here was taken almost verbatim from the transcripts of the hearings. The reader accordingly *934 occasionally may find it difficult to follow the bench opinions. The Court felt, however, that it should remain faithful to the actual record of the case.
TABLE OF CONTENTS
1. Bench Opinion of March 23, 1984 Granting Hadix Plaintiffs and the National Prison Project Amicus Curiae Status, page 935.
2. Bench Opinion of March 23, 1984 Rejecting Proposed Consent Decree, page 944.
1

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

3. Bench Opinion of June 22, 1984 Denying Jasson Plaintiff’s and Knop Plaintiffs’ Motions to Intervene and Approving Consent Decree, page 949.
4. Bench Opinion of June 21, 1985 Approving Parties’ Stipulation and Announcing Intent to Appoint a Special Master, page 953.
5. Memorandum Opinion and Order of August 5, 1985 Announcing Intent to Appoint an Independent Expert, page 956.
6. Bench Opinion of August 21, 1985 Extending the Parties’ Stipulation; Denying the Knop Amicus’ Motion to Amend the State Plan; and Denying the United States’ Request for Sanctions Against the Knop Amicus, page 957.
7. October 2, 1985 Appointment of F. Warren Benton as Independent Expert and Order for Instructions, page 962.
8. Opinion of December 2, 1985 Denying the Hadix Plaintiffs’ Request to Exclude the Central Complex and the Reception and Guidance Center from Coverage Under the Consent Decree, page 964.
9. Bench Opinion of February 13, 1986 Denying Defendants’ Motion to Modify the State Plan Regarding a Mental Health Plan and Granting the United States’ Motion to Enforce the Consent Decree Regarding Mental Health, page 970.
10. Order of February 21, 1986 Establishing Supplementary Mental Health Care Requirements, page 978.
11. Memorandum Opinion and Order of March 19, 1986 Regarding an Independent Psychiatric Expert, page 983.
12. Bench Opinion of March 27, 1986 Allowing Knop Amicus to Present Witnesses and Appointing an Independent Psychiatric Expert, page 984.
13. Order of April 2, 1986 Appointing an Independent Psychiatric Expert, page 988.
14. Memorandum Opinion and Order of April 3, 1986 Granting Defendants’ Motion to Modify in Part, page 988.
15. Bench Opinion of May 9, 1986 Granting United States’ Motion for Relief and Sanctions Regarding Mental Health; Denying United States’ Motion to Terminate the Authority of the Independent Expert; and Rejecting Parties’ Stipulation Clarifying Issues Under the Consent Decree, page 989.

16. Order of May 12, 1986 Granting the United States’ Motion for Relief and Sanctions, page 999.
17. Order of June 30, 1986 Extending and Revising the Independent Expert’s Order of Appointment, page 1001.
18. Opinion of July 15, 1986 Interpreting Certain Provisions of the Consent Decree and the State Plan for Compliance, page 1001.
19. Opinion of July 15, 1986 Granting in Part and Denying in Part Defendants’ Motion for Relief from Order, page 1005.
20. Opinion of July 22, 1986 Regarding March 1986 Compliance Hearing, page 1007.
21. Order of July 22, 1986 Granting Plaintiffs’ Motion for Order Enforcing Consent Decree and Stipulation, page 1015.
22. Opinion of August 29, 1986 Scheduling a Mental Health Hearing, page 1018.
23. Opinion of August 29, 1986 Resolving Various Motions, page 1019.
24. Opinion of September 26, 1986 Extending Authority of Independent Psychiatric Expert, page 1021.
25. Bench Opinion of October 24, 1986 Purging the Defendants of Contempt Regarding Mental Health, page 1022.
26. Order of October 29, 1986 Purging Defendants of Contempt, page 1025.
*935 27. Opinion and Order of January 29, 1987 Enforcing the Fire Safety Provisions of the Consent Decree, the State Plan for Compliance, and the Stipulation, and Granting Defendants’ Request for Modification of the State Plan, page 1025.
28. Opinion of March 27, 1987 Modifying in Part the Parties’ Stipulation Regarding Mental Health Care, page 1037.
29. Show Cause Order of April 1, 1987 Regarding Overcrowding, page 1038.
30. Opinion of May 8, 1987 Enforcing the Medical Care Requirements of the Consent Decree, the State Plan for Compliance, and the Stipulation, page 1039.
31. Bench Opinion of May 21, 1987 Issuing Temporary Restraining Order Regarding Overcrowding at the
2

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Reception and Guidance Center, page 1045.
32. May 22, 1987 Temporary Restraining Order, page 1047.
33. Bench Opinion of May 22, 1987 Finding the Defendants in Contempt of Court Regarding Overcrowding at the Decree Institutions, page 1047.
34. Order of May 28, 1987 Holding Defendants in Contempt of Court, page 1053.
35. Opinion of July 2, 1987 Scheduling Mental Health Hearing, page 1054.
36. Opinion of July 20, 1987 Denying Pro Se Motion to Intervene and Motion for Order of Contempt, page 1055.
37. Opinion and Order of July 28, 1987 Enforcing Provisions of the Consent Decree, the State Plan for Compliance, and the Stipulation Regarding Overcrowding and Protection from Harm and Sanitation, Safety, and Hygiene, page 1056.
BENCH OPINION OF MARCH 23, 1984 GRANTING HADIX PLAINTIFFS AND THE NATIONAL PRISON PROJECT AMICUS CURIAE
STATUS
The Court has before it two motions. One is the motion to intervene on behalf of the Hadix plaintiffs, so-called Hadix plaintiffs, or in the alternative for status as amicus curiae. And the motion on behalf of the A.C.L.U. group, to be amicus curiae only, and, of course, the Hadix interest is only in a portion of the proposed consent decree. That is to say, the Jackson Prison portion. I am taking the Hadix motion first, since that is the way that we listened to arguments. The Hadix applicant or applicants move for grant of intervention pursuant to Rule 24(a)(2). They are the plaintiff class in an action pending in the United States District Court, Eastern District of Michigan, before Judge John Feikens, Chief Judge, styled Hadix, et al. vs. Johnson, et al. That suit as I understand it is against various officials of the State of Michigan Department of Corrections and the State Prison of Southern Michigan at Jackson only. They are not involved, as I indicated earlier, in the Ionia or Marquette situation.
Pursuant to an order of the court in Hadix, the applicant claims, the Michigan Attorney General representing the defendant was ordered to appear to explain the relationship if any existing between the proposed consent decree herein and the Hadix case. In fact, I had first heard about the Hadix interest by means of a letter from counsel

for Hadix, and later, and I responded to that letter, and to counsel for all sides with a copy of the letter to Judge Feikens. I think that may have been in January or perhaps early February. On February 16, 1984, the applicants claim Elaine Fischhoff took the position in the open courtroom that the proposed decree will not be made the basis for a legal claim of mootness as to any similar constitutional issues in Hadix, but that it may have an impact on the negotiations and possible litigation in Hadix. The transcript never arrived, and I don’t know what was said. But, I have heard Mr. Quinn’s representation, and I have heard Mr. Bennett’s representation. I am not so sure that it makes any difference.
Applicants state in the written motion that based upon the statement of the Attorney General they ought to be entitled to intervention herein as a matter of right. They contend, as I understand it, that they seek intervention for the sole purpose of excluding the State Prison of Southern Michigan, *936 the Central Complex of that prison, including the Reception and Guidance Center, from these proceedings, and they argue that, or they kind of alternatively argue, that if they are granted some kind of intervention status or amicus status their interest is limited to the Jackson penitentiary, the state prison at Jackson. As reported by the applicants with portions disputed by the defendant State, Hadix was filed in 1980, as I understand it, at least, in propria persona. Since that date, it evidently has become a class action. There was an amended complaint filed, and I assume by counsel for the Hadix group, in 1982, I think in July.
The subject of that amended complaint, which has been furnished to the Court and summarized by the applicants, touches virtually all of the conditions of confinement at that facility located in Jackson. According to the defendant, the Hadix complaint is in reality a “totality of conditions” claim. This appears to be correct to me from a reading of the language of the amended complaint, but it doesn’t seem to have a lot of relevance to what is before us.
Trial, apparently, in the Hadix case was scheduled in 1983 in the early part of the year, but before the trial, either the defendants requested an opportunity to negotiate or the plaintiffs, and the defendants told Judge Feikens that they would like to negotiate, and they would like to have a court-supervised settlement discussion. Negotiations took place, whoever suggested them, and whoever was the moving party, and they continued throughout the summer of 1983. Numerous documents were compiled and exchanged, and, apparently, some discovery goes on today as I understand the arguments. In July of 1983, the applicants argue that there were only some unresolved issues remaining which required Judge Feikens’ intervention, and the court then issued an order
3

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
establishing a time schedule for proceedings and a possible trial date. And that has been furnished to me. The negotiations continued into the fall involving, mainly, and I think argued by Mr. Bennett today, the physical structure of the facilities involved both—well, all the facilities were argued on today, and the sufficiency of the administrative staff if that is part of the structure argument, and I guess it is.
Applicants assert that Judge Feikens was assured by Governor Blanchard that defendant Perry Johnson was authorized to negotiate regarding this issue of the overall operation of the Jackson facility. Defendants say the evidence shows that the statement that by July, 1983 they had reached agreement on most issues is imprecise at best, and seem to deny, and I believe deny, Johnson’s authority. They also say that there is privileged information which is not relevant to this case.
In any event, shortly after Judge Feikens’ meeting with Governor Blanchard—and I understand they met—there was a settlement between Justice and the State in this case. Defendants did not thereafter return to the negotiation table with the applicants. The defendants argue this is because of the applicant’s counsel. I don’t know the answer to that.
Judge Feikens issued the order requiring the Attorney General, that I mentioned earlier, to explain the impact on Hadix, and it obviously bothered Judge Feikens. It was in response to this order that the applicants alleged the Attorney General represented that the case before me would not be made a basis of a claim for mootness, but would impact negotiations and possibly litigation. But there is no question about that now. The defendants now state they reserve the right to raise the claims of mootness should the negotiations fail in Hadix, and, perhaps, that is what they said in front of Judge Feikens, or perhaps it isn’t. But it is absolutely clear to me that is what they said in their written pleadings, and that is what Mr. Quinn argued today.
The applicants as I indicated advised me of this by letter and then later filed a motion. The motion is for leave to intervene as a matter of right under Rule 24(a)(2). 24(a)(2) says, in part:
Intervention of Right. Upon a timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to *937 the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to

protect that interest, unless the applicant’s interest is adequately represented by existing parties.
The parties do not appear to me to dispute the elements necessary to establish non-statutory intervention as a matter of right. The four elements that the parties agree on are: First, the application must be timely; Second, the applicants must show an interest relating to the property or transaction which is the subject of the action; Third, the applicants must show that the protection of the interest may as a practical matter be impaired or impeded by the disposition of the action; and Fourth, and finally, the applicants must show that their interest is not adequately represented by an existing party. That comes out of Moore on Federal Practice, not cited by the lawyers. But I have read Blanchard v. Johnson, which is a Sixth Circuit case in 1976; also County of Fresno v. Andrus, which is a Ninth Circuit case in 1980; and also my fellow District Judge Gibson’s decision in Usery v. Brandel, 87 F.R.D. 670 (W.D.Mich.1980). It is clear to me that the applicants have the burden of showing that 24(a)(2)’s requirements are satisfied because Blanchard v. Johnson says so. Blanchard ‘s cite, by the way, since it wasn’t cited by the parties, is 532 F.2d 1074. The Fresno cite is 622 F.2d 436.
First, then as to the timeliness. The applicants make no argument in their written pleadings whatsoever concerning the requirement of timeliness, but Mr. Bennett does make that argument today. The defendants argue that this motion should be denied solely on timeliness grounds.
Defendants argue that the applicants have known or should have known of the Department of Justice’s proceedings under CRIPA since at least as late as 1982. It sounded to me that in argument Mr. Bennett may have known about it about that time or perhaps before then. Defendants argue that the applicants did not attempt to consolidate an approach to remediation of allegedly violative conditions in Michigan prisons. Defendants cite two cases in support of their argument. The first is NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648, a 1973 Voting Rights Act case, from the Supreme Court. The Court stated in NAACP that timeliness is to be determined from all the circumstances involved. This determination is left to the sound discretion of the trial court. The Court found in the NAACP case that the applicant’s motion to intervene was untimely. In reaching that conclusion, the Court stated that applicants knew or should have known of the pendency of the action involved because of a New York Times article discussing the lawsuit, the public comment by community leaders, and the size and astuteness of the membership of the organizational applicants, and the questioning of two of the applicants by Department of
4

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Justice attorneys investigating the matter. The Court also found that applicants had failed to protect their interest in a timely fashion after the date they allege they were first informed of the pendency of the action. At that point, the suit was three months old, and it had reached a critical stage, or at least the Supreme Court said that it was a critical stage because among other things a summary judgment was pending.
Defendants also cite for me Stallworth v. Monsanto Company, 558 F.2d 257, which is a Fifth Circuit case in 1977 wherein the court in Monsanto enunciated four factors that ought to be considered in making a timeliness determination. In brief, those four factors from Monsanto were: First, the length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene; Two, the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case; Third, the extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied; Fourth, and finally, the existence of unusual *938 circumstances militating either for or against a determination that an application is timely.
In the Usery case, which is my Brother Gibson’s opinion, not cited by the defendants for timeliness, Judge Gibson found that a motion to intervene filed ten months after the complaint was not untimely. I note that not only did he find that, but also the brief was filed fourteen months after the motion. So Judge Gibson was facing a 24–month delay. Judge Gibson noted that alacrity is but one of the factors among several to be addressed by the court, and the primary attention must be focused on the stage of the proceedings in which the application to intervene is made. Assessment must be made as to whether the intervention will: “One, prejudice the rights of the existing parties to the litigation, or, two, substantially interfere with the orderly processes of the court.” That is a quote, essentially.
In EEOC v. United Air Lines, 515 F.2d 946, a Seventh Circuit case in 1975, also not cited by the defendants in this section of their brief, the EEOC court opined that the trial court should be more lenient with timeliness requirements in cases of intervention as of right as opposed to permissive intervention. I find no merit whatsoever in defendant’s timeliness argument. The fatal flaw in the argument is that there wasn’t any action whatsoever in which to intervene until the complaint was filed. The complaint was not filed until January of 1984. The case law deals with timely applications to intervene in pending lawsuits, not in pre-lawsuit governmental investigations. It would be unreasonable for me to hold

that the applicants should somehow have tried to intervene in the Justice Department’s investigation, it seems to me for obvious reasons.
[1] The complaint was filed on January 18, 1984. The applicants sent the letter to me that I referred to earlier on February 2nd, and the instant motion was filed February 27th, a little bit over a month after the instant action was filed, which Mr. Bennett argues he heard about by reading in the newspaper. The Court believes that the applicant acted in a timely fashion, and without having to go over all of that again as far as timeliness is concerned, I make the same finding with regard to the A.C.L.U. application. There is no merit that the applications are not timely.
[2] Second, the second condition for mandatory intervention is whether or not there is an interest relating to the property or the transaction which is the subject matter of the action. 24(a)(2) requires a significant protectable interest in the pending litigation. In Donaldson v. United States, according to the District of Columbia and Ninth Circuits, the “interest” test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. Two cases not cited by the parties, one from the D.C. Circuit is Nuesse v. Camp, 385 F.2d 694 (1967), which is the District Court for the District of Columbia, and second is the County of Fresno v. Andrus, which I mentioned earlier. But one can also look at other cases. From the District of Minnesota comes the U.S. v. Reserve Mining Company case. Thus, the interest requirement is viewed as a prerequisite to intervention rather than a determinative criterion. The interest requirement should be considered in light of the type of case with which the Court is concerned.
[3] In this case, the applicants argue that since a substantial number of the issues raised in the Hadix action are encompassed in the proposed consent decree, and thus subject to interpretation by this Court, the requirement that they have a protectable interest is met. The Justice Department makes no specific argument regarding this second requirement. However, the Department in arguing that it adequately represents the interests of applicants points out that the Hadix class and the Department in this case both seek to remedy federal constitutional violations, which is true. In addition, the Hadix class seeks to vindicate Michigan constitutional and statutory rights. Therefore, although the interest of the United States may be more limited than that of applicants, they basically *939 are identical, and in fact both seek the same goal, that is, of course, the operation of a correctional facility consistent with the constitutional requirements. This appears to me to be a recognition by the Department that the interest requirement of Rule 24(a)(2) is met, and I don’t think the Department of Justice seriously challenges
5

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
that.
The defendants, on the other hand, argue that the applicants have no interest that is significant or protectable herein. In support of this argument, defendants contend it is significant that applicants have raised no specified objection to the adequacy and fairness of the relief proposed in the consent decree. In my opinion, the applicants satisfied the second requirement of 24(a)(2). I think that the United States Department of Justice’s analysis is correct. The Hadix case seeks broader relief, but both that class and the Department are concerned with conditions at Jackson for federal constitutional purposes. CRIPA was after all designed to protect the applicants and others like them. This surely creates a sufficient “interest,” with I guess quotes around the word “interest,” on their part to be involved in the subject matter of these proceedings. So I find the second test of the applicants is met.
[4] The third test, the protection of the interest may as a practical matter be impaired or impeded by the disposition of this action. In Usery, once again, my Brother Gibson recognized that an undesired precedent on the same facts is a practical impairment. However, in United States v. City of Jackson, 519 F.2d 1147, from the Fifth Circuit in 1975, it was noted by the Fifth Circuit that courts “fully understand” that consent decrees do not purport to be “definitive statements of the parties’ legal rights and will accord them little or no weight in the determination of the rights of persons not party to them.” CRIPA provides in section 1997j that its provisions do not expand or restrict the authority of private parties to enforce their legal rights.
Applicants argue that entry of the consent decree will impair and/or impede their ability to protect their interests in the pending Hadix case. They cite the fact that they have been negotiating for more than twelve months in that action, which has been pending for four years. Applicants believe that statements by the Attorney General that the decree will have an impact on the negotiating process therein establishes this element, and also that the mootness argument put forth by the Attorney General satisfies that interest.
Defendants, however, point out that the applicants do not argue that their interests will not be served by the implementation of the consent decree. The Justice Department argues that the mere conclusory allegation that there will be impact upon the private cause of action is insufficient, is not sufficient. Applicants are free in the Hadix litigation to pursue all of the rights and remedies they deem appropriate. The Department contends there has been no demonstration that the relief applicants seek privately will be impaired, impeded, or is even in conflict with that afforded in the consent decree.

The Court believes that the applicants, however, satisfy this third requirement of Rule 24(a)(2). The rule requires that there be a showing that protection of applicants’ interest may as a practical matter be impaired or impeded, not that it will. Applicants have been involved in a class action lawsuit involving conditions at the facility at Jackson for four years. Extensive negotiations have taken place. Included in the issues involved are federal constitutional questions, some of the very same questions involved in the instant litigation. Although applicants would be free to pursue federal constitutional remedies in the Hadix case even after entry of this proposed consent decree, I believe the decree’s provisions regarding actions constitutionally mandated at Michigan prisons, including Jackson, may quite possibly impair and/or impede their efforts to seek relief therein. I am convinced this is true as to any future settlement negotiations in the case, and after listening to the arguments today, any future trial. The defendant’s apparent contradictory statements concerning the effect *940 of the consent decree support my conclusion with regard to item number three.
I also believe that the impact—and I am not sure that I can make this clear. I also think that the impact argument is strengthened of the applicants by the comparison to a decree with a voluntary plan attached. That plaintiffs lose in Hadix on the grounds of mootness, and later the State, which has the power to amend the agreement ex parte, will have one effect on the clients of the plaintiffs, versus, on the other hand, a more comprehensive decree which includes mandatory language and injunctive language, and the plaintiffs lose the Hadix litigation on mootness, which leaves their client in a very different position. And, therefore, I find that argument, while I don’t know the answer to the argument, supports the impact requirement, the third requirement of Rule 24.
[5] And finally, is the interest of the applicants adequately represented by an existing party? In Trbovich v. United Mine Workers, 404 U.S. 528, 92 S.Ct. 630, 30 L.Ed.2d 686, a 1977 Supreme Court case, the Supreme Court indicated that the requirement that there is inadequate representation by existing parties is satisfied if the applicants show the representation of their interest may be—and the words “may be” come directly from Trbovich—“may be” inadequate; and the “burden of making that showing should be treated as minimal.” That is an absolute quote. And by the way, the Supreme Court at that moment decided to cite and did cite Moore on Federal Practice. So the standard in Trbovich is a very simple one. “May be”—the representation may be inadequate, and “the burden on the applicants is minimal.” That is also Judge Gibson’s finding in Usery v. Brandel that I have cited at least three times.
The burden, however, whether it is minimal or not,
6

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
remains with the applicants. There have been case holdings that the government is inadequate to represent the interests of private parties. See National Farm Lines v. I.C.C., 564 F.2d 381 (10th Cir.1977) and other cases cited by the parties. These decisions frequently turn on the conflict created when the government is attempting to protect both the public interest and the private interests of the applicants. That is sort of from National Farm Lines. In making this determination, practical as well as formal representation of the applicants’ interest should be assessed. That is what Gibson said in Usery. Judge Gibson in that case indicated that applicants’ burden may be met by demonstrating collusion, disinterest in the case, or imcompetence. Also, if the interests of the applicants and the party in question are divergent so that their interests are similar but not identical, intervention should ordinarily be allowed, Judge Gibson argues, citing Wright & Miller, Federal Practice and Procedure. Nevertheless, slight differences in interests between applicant and the existing party do not show inadequacy if they both seek the same outcome.
In the County of Fresno case that I mentioned earlier, the Ninth Circuit stated that a “would-be intervenor is adequately represented if: (1) the interests of a party to the suit are such that it will undoubtedly make all of the intervenor’s arguments; (2) the present party is capable of and willing to make such arguments; and (3) the intervenor would not offer any necessary element to the proceedings that the other parties would neglect.” County of Fresno, 662 F.2d 439. The plaintiff Department also cites U.S. v. South Bend Community School Corporation, 692 F.2d 623, a Seventh Circuit case in 1982 in Indiana, coming out of Indiana. There the court held that the NAACP would not be allowed intervention as of right in a school desegregation case brought by the federal government. The NAACP first sought to represent as of right all black students in the district and their parents, even though the interests of that class were represented by the government under the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974. The NAACP conceded that it and the government had a similar objective, desegregation of students and staff, but they disagreed as to the appropriate method to achieve that goal.
*941 The court held that since the NAACP and the government had the same ultimate objective, it would be presumed that the government adequately represents the NAACP. The court found this conclusion especially appropriate because the government was charged by law with representing the interests of the absentee, and there had been no showing of gross negligence or bad faith on the part of the government. Nor had there been any collusion between the parties, nor, the court also found, did the government represent any interest adverse to those of the NAACP, or that the government counsel was

ineffective—or, it was effective, in other words. The NAACP had not attacked the proposed consent decree as constitutionally or otherwise inadequate, but had merely suggested improvements in it.
This case before us today is, of course, distinguishable from the circumstances involved herein, because applicants do attack the proposed consent decree as inadequate. Furthermore, they believe that the United States does not seek the same goal as they do in Hadix. The applicants, remembering that they only have to show that they may be inadequately represented and have a minimal burden, make the following arguments in a general sense—and this I gleaned not very much from the written briefs, but from the arguments I heard today: The applicants argue that the United States admitted today, and that is true, that it does not represent the inmates. That was one of Ms. Russell’s first statements. Only the United States. So that there is a distinction with regard to whether or not the Hadix group is adequately represented. Second, it is not proven by any means, but there is an allegation made in this courtroom that the United States accepted less than the State of Michigan offered. That is hotly contested by the defendants, but it is an allegation made by the applicant group. Third, applicants argue that the constitutional interpretation of the Justice Department’s Civil Rights Division is not the same as the plaintiff’s constitutional interpretation of CRIPA, and, therefore, argue the applicants, how could we be adequately represented when on the face of it we view the constitutional questions differently as lawyers. As kind of in support of that argument, the applicants argue that the United States is not as vigorous as we are in representing our clients. Fourth, the applicants claim that the State has the ability to amend ex parte and monitor the plan by itself without involvement of the Justice Department which is, argues the plaintiffs and the applicants, not sufficient representation for plaintiffs’ group. Then there is the argument about the voluntary plan and the mootness argument that I have already gone over, and in an earlier section which is simply another argument—it is an adverse impact argument. It is also an adequacy of representation argument. I won’t burden the record further by that.
Next there are, the Court is in receipt of two separate petitions coming, I think from Hadix, one clearly from Hadix, and the other I think. One is in the form of a letter by a prisoner named Frederick Spalla. He starts his letter by saying that he favors the American Civil Liberties Union and the National Prison Project intervention, makes no particular reference to the Hadix litigation except he makes the comment that, as follows—it is only a letter. It is open to more than one conclusion. He says that:
On more than one occasion I have contacted the Justice Department
7

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

Civil Division. I have requested

pursuant to the Freedom of

Information

Act

the

correspondence that has been

generated between Justice and

Michigan Department of

Corrections as a result of the

former’s 1981 report on Michigan

prison conditions. To date I have

not received any information.

Months have passed.... I request

that this failure of the Justice

Department to disclose the

requested information amounts to

no more than mere indifference.

The whole scenario reminds me of

a sweetheart deal. All too often the

approach has been utilized....

The sum and substance of the Spalla letter, perhaps on behalf of the ACLU, perhaps not on behalf of the Hadix people, is that he doesn’t believe that a proper representation *942 is happening to him as a member of the Hadix group. This morning I received a petition signed by numerous prisoners. I have no idea how many—a substantial amount of prisoners—under a Re Hadix v. Perry Johnson heading, with a case number that is not my case number. It is Judge Feikens’ case number. John R. Ford, a prisoner, with his number, essentially is suggesting that the class of Hadix people are not being well represented by the Department of Justice, asks any prisoners who agree with that proposition to sign the petition. The petition as I have indicated bears the signatures of many, many, many prisoners, and was only filed today. The letter to his fellow prisoners was written, he alleges, on March 20th and 21st. The postmark is dated the 22nd, but it arrived at this Court today. I also believe that, although it is subject to a motion to strike by the defendants, that the testimony of two U.S. Justice Department lawyers indicates that the representation by the Justice Department, not by the State of Michigan, is inadequate.

Although the showing, as I have indicated, is of a mere showing with regard to element four that they may not be properly represented, and that the burden which is theirs is minimal, based upon that, I believe the applicants have satisfied the burden of demonstrating that the United States’ representation of their interests may, certainly not is, may be inadequate. The applicants among other things, as I have just summarized in great length, seek much broader relief than advocated by the plaintiff. The interests are the same in many respects. The interest of the United States is a little bit more limited. It is likely that the United States would not make the same arguments that the plaintiffs make. Furthermore, I have at least some concern about the allegations made in these various

documents that have been furnished to me. There is absolutely no proof of any of the allegations. Nevertheless, because the applicants’ issue is minimal, I am going to grant their motion to intervene on a limited basis. The limited basis is on the basis of their interest in the Jackson Prison case in this case, and I am not extending it any broader at this moment than their right to argue about the consent decree in the litigation pending before us.
With regard to the amicus curiae proposition, motion of the applicants to intervene on a limited basis is granted.
[6] The ACLU argument, they don’t seek to intervene—it doesn’t seek to intervene. The two plaintiffs don’t seek to intervene. The Michigan Civil Liberties Union Foundation and the National Prison Project of the American Civil Liberties Union merely request to appear as what they describe as litigating amicus curiae. Their litigating position in this case is identical, they claim, because both organizations are represented by the same two counsel that signed the pleadings. They are simply petitioners.
They have filed this motion following a review, apparently, only of the proposed consent decree. At least, I heard the argument that they were not privy to all of the pleadings. They argue to me that the particular circumstances surrounding the filing of litigation and the substance of the proposed decree raise serious and troubling questions as to whether the decree should enter in its present form. The proposed decree, they argue, will have a major impact on the conditions of confinement of Michigan inmates, none of whom had any voice in the proposed decree.
As I indicated earlier, I can’t be sure that the two prisoner applications I have don’t refer to them instead of the Hadix people, but it appears in one case to relate to both. The petitioner believes that prior to the entry of a decree the Court should hear from a source other than the parties. Petitioners make a long argument in their petition, and cite the two, or add the materials that are objected to by the defendants.
They talk about the fact that when the case was filed three and one-half years had passed since the passage of CRIPA. They argue that it was only the second time that the Department utilized its authorization under the statute. They make some argument with regard to internal policy within the Department of Justice which is not *943 before the Court unless it is before the Court in the limited sense that they argue that there is somehow an inadequate representation of the interests they serve, namely, the inmates in all three of the prisons as opposed to the Hadix petition which is only at Jackson.
8

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Regarding the proposed consent decree, the petitioners believe its provisions deserve close scrutiny. I think I will save their arguments for the arguments made on the decree itself because they, in their petition, specifically attack the decree in some major fashion. That is why they added the two, the testimony of the two ex-Justice Department lawyers, and make the allegation that was spoken to briefly by Mr. Curry. I think that even besides that, of the two lawyers involved in U.S. v. Michigan before us here, one has quit the Department entirely, and the other has left the case. That we will find out when we listen to arguments in a few minutes, but that is the substance of what they say.
They only seek amicus status as I understand it for the limited purpose of arguing about the decree. They talk about litigating status, and I am not certain even after I hear their arguments what it is that they intend to litigate. The plaintiff Department and the defendant Attorney General oppose the involvement of the two ACLU groups on many grounds as amici. One ground is that they are serving an interest and are not in fact a friend, friends of the Court. The plaintiff Department also argues that if the Court is persuaded that the petitioners are prepared to submit an objective legal memorandum, the U.S. would not oppose the filing with amicus brief, at least in the case of the Hadix people, and I presume meaning the same thing with regard to the ACLU. The Department states, however, that it is not sure what the applicants’ interest in Hadix is, and I, therefore, take that to mean it is not sure of the ACLU’s position, either.
The defendants oppose the applicants and the petitioner’s amicus status. The applicants don’t need an amicus status because I have permitted them to come in as stated. The argument is that there could be no value to the Court whatsoever. They are partisan, argues both the United States and the defendant State of Michigan. In Bradley v. Milliken, 460 F.Supp. 320 (E.D.Mich.1978), which is a case that all of the lawyers know about, the court denied intervention to representatives of a Hispanic community in the remedial phase of a school desegregation case. The court found that the applicants could protect their interest, which was recognized as legitimate and substantial, by petitioning to be allowed to speak as amici curiae in future proceedings if there happened to be a remand. In Brewer v. Republic Steel Corporation, 513 F.2d 1222 (6th Cir.1975), in this Circuit, not cited by any of the lawyers that I know of, the court denied a motion by the Ohio Civil Rights Commission to intervene in a private employment discrimination case, but invited the Commission to participate as amicus curiae by filing briefs and making evidentiary presentations.
The defendants cite three cases on the Hadix brief in support of their opposition to amicus position on behalf of the Hadix people, and I take it make the same argument

with regard to amicus positions sought by the ACLU. In this case, it appears to the Court that the ACLU at least on the face of it is not a partisan in the matter. It is an organization devoted to concerns about such rights as the rights of prisoners who are incarcerated or are mentally retarded as the Act talks about, or juveniles. It doesn’t seem to me to harm anyone to permit the two organizations to intervene as amicus or amici since there are two of them. I don’t, however, act upon their motion to be a litigating amici. I think that awaits a decision as to what to do on the consent decree. The purpose of allowing them amicus status or amici status is for them to be able to argue the consent decree which is before the Court today, and which is of the greatest importance to everybody.
Therefore, I grant the petition of the two ACLU plaintiffs to act as amici curiae for the limited purpose of arguing the consent decree.
*944 BENCH OPINION OF MARCH 23, 1984 REJECTING PROPOSED CONSENT DECREE
Well, there are a number of things that I want to say, and I guess that I will say them as briefly as possible. The hour is late. I thought some while I was stretching my legs, and trying to figure out if there were any blood left between the top of my head and the toes, and thought maybe I ought to have you come back tomorrow. And I though that might be a cruel and unusual punishment against lawyers, especially Mr. LaVille who has been sitting here from Grand Rapids doing nothing except accompanying the Justice Department lawyers. But I don’t think that there is a plane out of Kalamazoo this late anyways, but just the same I don’t think people ought to have to come back.
I think the briefing done in this case was extraordinarily well done by everybody in the room, and most helpful to me, although terribly voluminous in its nature. I think the arguments done by the lawyers were fine oratorical experiences for me. It is a very important case.
I hesitate to do things when it is late at night and when I am tired, and when I have been suffering some kind of a Michigan virus, I guess curious to Michigan, but perhaps not. When I first heard about this case, I did not realize it was a case as a matter of fact. I read about it in the newspapers, and I thought that it was a case that had been assigned to some court and settled, and I was, as any citizen would be, pleased that the United States and the State of Michigan had gotten together and made some kind of an agreement involving the penal situation in Michigan. And lo and behold, a day or two later, the case
9

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
was filed in the Western District of Michigan, for whatever reason I don’t know, and assigned to me for whatever reason I don’t know, either. All I knew at the time was what one newspaper article said, and what the consent decree with the plan attached to it said. And since I didn’t understand much of anything, events went from there.
I start off as a judge terribly interested in the settlement of lawsuits. We, as any other district court, are burdened to the point of almost being unable to continue with the caseload. I don’t know a federal judge in the country that wants a massive prison suit dumped on him or her, or a school case, or any other case that goes on forever. There are lots of reasons for it, but the principal reason is that it eats up so much of the court’s time that the court has very little time for other litigants who are as deserving of being heard as anyone is. It is a constant problem. It seems to me that the federal district court, whatever its failings or merits, is the workhorse of the federal government, and who else, what other judge in his right mind would be sitting in a courtroom a quarter to seven on Friday night with tickets to Peter, Paul and Mary—and I am, I am not going to see Peter, Paul and Mary which would have taken me perhaps, back to my youthful days to the sixties. I guess that is beside the point, too.
By the same token, of course, I don’t want to enter something that is meaningless and continues to plug up the docket for many years. I am not as familiar as all of the counsel here are with the prison problems of the United States, or as Mr. Quinn is with the State of Michigan, or as Mr. Bennett is with the State of Michigan. I have—this is not my first jail or prison case, however, and it looks like it may be one of the worst, but it is not the first.
The problem, it seems to me is, it is oftentimes like a dog chasing its tail. There are good-willed people that are trying to resolve the issues involved in overcrowding, for example, which leads to the myriad of other sins that have occurred in our prisons. But it is judges that put people in jail, not the lawyers in this room, or who deny bond, and it is for those reasons that the overcrowding situation occurs.
It is particularly a relevant personal issue because the public in the political atmosphere in which we live cries for swift justice and the incarceration of people charged with crimes. Elected state judges are not un-hearing of those loud cries. So it is left to somebody else to try to resolve the problems, and the lawyers in this room, *945 it seems to me, are morally and legally dedicated to a resolution.
I particularly like the arguments made by Mr. Quinn this last time that he argued to me with regard to what the

State of Michigan was prepared to do from his point of view without any decree, or in terms of modifying any decree as the case may be. Mr. Bennett to some degree contests that by saying with all of the goodwill Mr. Quinn may have, and all of the legal talent he has, one of his clients, to-wit, the Department of State Prisons, is not as compliant with Mr. Quinn’s desires as Mr. Quinn may want it to be. However that is, I don’t know. I have had in this courtroom a member of that department recently in the Grand Rapids prison case, county jail case, and he strikes me as a man who is after a resolution to the problems of the overcrowded county jails, and is not falling over for the Kent County argument that it has solved its problem. I am very impressed with his background and the amount of time that he has spent in the system, what he is trying to do for it.
So as an initial proposition, I start out, one, absolutely wanting to resolve the lawsuit without a lawsuit on just general principles, and, two, I start off wanting to be in any way possible helpful to the parties who have reached agreement here, that is to say, the United States of America and the State of Michigan.
The question, of course, is, can I be of that assistance with regard to the proposed decree that is in front of me. The Court has spent a good deal of time thinking about what my role is when parties come to an agreement. It happens all the time, and it happens in litigation that is more private than this litigation. Particularly in tort litigation do I find parties coming into the courtroom and agreeing to a settlement of a longstanding lawsuit, breathing a sigh of relief, being doubly anxious to, oh, resolve the matter as the parties want to resolve it, and simply become a scrivener. On one occasion in the short four years that I have sat on this bench, I did such a thing only to find that heirs who were not represented at the hearing did not agree with the consent that had been reached by others, that I was not aware were involved, and it led to a protracted problem which was finally resolved. With that single exception, however, every consent judgment I have been asked to enter I have entered. I want to enter this one. Let’s see if I can on the basis of what is in front of me.
In general, the fact that the judgment is entered by means of a consent decree does not affects its validity or enforceability. Of course, the law favors, encourages compromise settlements for the reasons that I have just set forth. Nevertheless, a court cannot enter a consent decree without an appropriate review. The lawyers have cited to me, and I cite simply back to the record, some of the cases that they have called to my attention. Williams v. Vukovich, 720 F.2d 909, is a case out of this circuit. It is a very recent case. It is a 1983 case. The Sixth Circuit there addressed specifically the test for approval of the consent decree.
10

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
In the Williams v. Vukovich case, which was a case involving black police officers who had filed a class action against the city of Youngstown, Ohio, and city officials, alleging that the city had engaged in racially discriminatory hiring and promotion practices, unlike this case, in the Williams case, there had been a five and onehalf year period of negotiations, and a consent decree that finally resolved the hiring and promotion issues that were involved in the Youngstown case. Several class members, however, objected to the decree. The district court in Ohio held that it was unreasonable, but granted a stay for appeal.
[7] The Circuit then held that the decree was illegal and contrary to the public interest because it embodied impermissible waivers of future discrimination. The Court then outlined a procedure for approving consent decrees. And, the procedure was, as follows: The consent decree, said the Sixth Circuit, is essentially a settlement agreement subject to continued judicial policing. The terms of the decree unlike those of a simple contract have unique properties. A consent decree has attributes of both contract and of a judicial act. *946 On the one hand, a consent decree is a voluntary settlement agreement which can be fully effective without judicial intervention. In this sense, the decree merely memorializes the bargained-for position of the parties. The consent decree, therefore, should be strictly construed to preserve the bargained-for position of the parties. The court has no occasion to resolve the merits of the disputed issues or the factual underpinnings of the various legal theories advanced by the parties. This is a random quote, and not entirely a quote. I have skipped, but it is, what I have read, was a quote.
Skipping some more:
A consent decree, however, is also a final judicial order. Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties. Judicial approval, therefore, may not be obtained for an agreement which is illegal, a product of collusion, or contrary to the public interest. Once approved, the prospective provisions of the consent decree operate as an injunction. The injunctive quality of the consent decree compels the court to, one, retain jurisdiction over the decree during the term of its existence, two, protect the integrity of the decree with its contempt powers, and, three,

modify the decree should changed circumstances subvert its intended purposes.
That essentially comes from page 920 of Williams v. Vukovich, some eleven pages into the opinion. The court also cited another Sixth Circuit opinion, Stotts v. Memphis Fire Department, which was also a recent case, a 1982 case, which was cited in the litigation by the plaintiff Department of Justice, but not by the defendants, for the proposition that suggested procedures for approving consent decrees, which was a class action, involved three steps:
First, preliminary approval—in order to determine if a compromise is illegal or tainted with collusion. To determine if the decree is a product of an arm’s length negotiation, the party who objects has a heavy burden of demonstrating that the decree is unreasonable.
Second, notice should be given to all individuals who may be affected by the decree, which of course discusses giving class members the best notice practicable. And this is not a class action. The Stotts case is.
[8] [9] Third, a reasonableness determination after a hearing is held in which all interested parties may comment on the proposed decree. The court will then determine if the decree is fair, adequate and reasonable. The court must consider the fairness of the decree to those affected, the adequacy of the settlement of the class, and the public interest. Articulated reasons should be given for rejecting a decree. The Court must also evaluate the adequacy of the decree by weighing the plaintiff’s likelihood of success on the merits against the amount and the form of the relief offered in the settlement, which, of course, is another way of talking about the Mason County standard and the first test of the Mason County standard.
[10] Finally, the court should consider whether the proposed consent decree is consistent with the public interest. In Stotts, the court elaborated on the reasonableness determination that should be made by a court. “The reasonableness determination is an issue of law,” said Stotts, “to be determined by the court, not by others.” This reasonableness determination is an issue of law, and in making it the court is under a duty to evaluate three factors:
[11] First, the court must consider whether the decree is a fair and adequate resolution of the allegations contained in the complaint. Ordinarily, the following factors should be considered: The complexity, suspense, and likely duration of the litigation; the state of proceedings, and the amount of discovery completed; the risks of litigation; the resources of the defendant; and the reasonableness of the settlement in light of the best possible recovery.
11

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

The Court notes that because both Williams and Stotts involved class actions *947 both parties to the lawsuit here argue that the procedures outlined in those cases need not be strictly followed by me here. In that regard, either the intervening party or the amicus curiae called my attention to the Fifth Circuit’s statement in the case of United States v. City of Miami, Florida, 664 F.2d 435, which is a 1981 Fifth Circuit case, that a court’s duty when presented with a consent decree is to give it greater scrutiny than would be given a proposed compromise in a class action.

In discussing intense scrutiny, the Fifth Circuit, discussing intense scrutiny, said:

Because the decree does not merely

validate a compromise, but by

virtue of its injunctive provisions

reaches into the future, and has a

continuing

effect,

its

determinations require more than

careful scrutiny. Even when it

affects only the parties, the court

should examine it carefully to

ascertain not only that it is a fair

settlement, but also that it does not

put the court’s sanction and power

behind a decree that violates the

Constitution,

statute

or

jurisprudence. This involves the

determination that the proposal

involves a reasonable factual and

legal determination based upon the

facts of record, whether established

by evidence, affidavit or

stipulation. If the decree also

affects third parties, the court must

be satisfied that the effect on them

is neither unreasonable nor

proscribed. In assessing the

problem of giving judicial

imprimature to the consent decree,

the court must also consider the

nature of the litigation and the

purpose to be served by the decree.

If the suit seeks to enforce a statute,

the decree must be consistent with

the public objectives sought to be

obtained by the Congress.

That comes, in essence, from page 441 of the City of Miami. The Court’s first look at the two documents gave the Court considerable concern long before I heard any kind of, perhaps, not altogether relevant issues about policies of the Justice Department. The five-page consent

decree did not read to me like a consent decree has ever read.
[12] I realize that I have only been in the profession twenty-six years, but I have never seen a consent, fivepage document like this five-page document. I couldn’t read it. I couldn’t decide what I was doing or what I was being asked to do. It didn’t seem like I was being asked to do anything. Then I read the forty-two page plan or fiftyfour page plan, however many pages it is. It doesn’t come to fifty-four to me, because it stops before that and has some appendixes that are important. And I saw things in there that I thought were extraordinarily well done by the parties, and some not so well done. I recognized some problems.
I recognized, number one, that Pennhurst, a very recent case, does not allow me as the federal district judge to order the State of Michigan to comply with state law, and there are provisions in the plan document—I am going to call it the plan document as opposed to the five-page decree—which could require a court to do that.
The lawyers are bright here and know that I can’t do that. So we put that aside. There are also some things in the forty or fifty plus page document, however many pages it is, which I don’t think rise to a level of a constitutional question. They vary. They have been addressed by the lawyers here. There are others that very clearly do come to a constitutional issue, very clearly come to a constitutional issue. The lawyers know what they are. They are included, but not limited to the overcrowding, the supervision of prisoners so that they don’t harm each other, the fire protection problems which appear to be difficult in the Michigan prisons mentioned here if I believe what I read in the documents, the medical, psychiatric care, and so forth. These are areas that I think lawyers on both sides of all tables agree are of constitutional magnitude.
The point is that in its present form it seems to me that I do nothing by signing the five-page consent decree. I don’t know what it means, and if I don’t know what it means, I can’t see how anybody else does. And I agree with one of the lawyers who argued I will have to litigate this case from *948 now until the end of my term inasmuch as I will not be able to understand what it is a) that is claimed to be a constitutional violation, and b) if it is a constitutional violation, what it is that I am supposed to do or what evidence I am going to have to hear to make a determination if that really happened. “Minimally adequate” language doesn’t particularly distress me because the statute talks about minimally adequate. I would have preferred, I suppose, to see the word “adequate” instead of “minimally adequate,” but that doesn’t bother me. The term, however, as I relate it to the remainder of the forty-two page document is indefinite,
12

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
and in my determination potentially unenforceable.
I have particular concern with a part of the decree—and the record should show that when I am talking about the decree I am talking only about the five page document. I am not talking about the whole decree as some of the parties have characterized, but I am only talking about the five pages. There is a statement that I am going to have to find. It is on page four of the five page document. It says: “Such plan shall not be construed as a specification per se of constitutional required acts on the part of the state.” That is a most perplexing sentence. I think that I know what the parties meant to say there, but I don’t think that they said it, and that seems to me to present an argument on any enforcement attempt by the United States that opens up the Pandora’s box of deciding what parts of the fifty page document relate to constitutional acts and which do not. A most distressing sentence to me.
There are other sentences that I am distressed about in the first five or six pages. “Defendant’s failure to comply with provisions of the plan shall not be construed as a constitutional violation of any sort whatsoever.” “Compliance with the plan shall constitute full and complete compliance with the decree.” That language bothers me greatly. If defendants are as it says willing— as they say today—willing to comply with the entire plan, why not make it a requirement in the consent decree? I don’t understand what the language is intended to mean. I don’t know what the defendants are promising.
I am concerned about a portion of the five page document that I mentioned to counsel during the arguments. The decree states that after the defendants have complied with the terms of the degree, “they may apply to terminate this Court’s jurisdiction, and this Court shall grant the application upon a showing of pattern and practice of ongoing full compliance.” That sentence can be read, I suspect, to say that a hearing would have to be held in which I would have to decide if there was full compliance, which I can’t do because I can’t read the decree; but if I do, an argument could be made about the State of Michigan that I would have no option except to grant the application made by the defendant. Perhaps, perhaps, that is not the way it was intended to read. It is the only way that I read it the first time. That is why I asked a question about it today. It doesn’t comply as I indicated to counsel in argument even with the complaint filed. It looks to the Court like a complaint was prepared prior to the time the consent was altered, but for whatever reason.
The remedy section of the, in fact, paragraph 26 and paragraph 27 of the United States’ compliant signed by William French Smith is the kind of remedy that I would have expected the government to ask for, and it is the kind of language that I would have expected to find in the five-

page consent decree. It is exactly the way that I would expect the consent decree on this kind of a matter to go. Whether the defendant had agreed to do additional things that were not of a constitutional nature or whether it hadn’t—it simply seems obvious to me. Well, I am not going to keep everybody all night.
I have examined the proposed consent decree, and I believe under the standards of the Sixth Circuit, and certainly under the standards of the Fifth Circuit, and I think any circuit, the decree as I read it is inadequate. It says very little. It is impossible for me to know what has been agreed upon, and I don’t know how such an agreement is to be enforced. I will, therefore, *949 not sign the consent decree in its present form.
That is not to say, however, that the attached plan is deficient. I find much in the attached plan that is efficient, and very much that ought to be a part of a consent decree. That plan with modifications to remove any possible Eleventh Amendment Pennhurst problems may or may not be adequate to withstand my scrutiny, but I suspect that it may be adequate. That is without deciding what that does directly right now to the intervening parties in the Eastern District matter. Because I find it inadequate, I issue the following order:
I order the plaintiff and the defendants to meet with an attempt to redraft into enforceable language a new consent decree for the Court to consider. I give them thirty (30) days to accomplish that task from this date, and to immediately submit their new effort to me for scrutiny. At that moment, they shall serve on the amici curiae and the intervening parties copies only of the proposed consent decree. Those two parties, meaning the intervening and the amicus curiae parties, shall have fifteen (15) days to respond in any fashion they wish to in writing as to their feelings about the proposed consent. In fairness, I give the United States and the State of Michigan fifteen (15) days from the day to reply to any objections raised by an intervening party or by the amici curiae. That will consume sixty (60) days. And to me it is a matter of some sadness because I want to have the consent decree signed so that the plan can get on its way. I am heartened, Mr. Quinn, by your remarks to me today, and hope that during those sixty (60) days those things that you have indicated to me so clearly as an officer of this court go forward.
....
That will consume sixty (60) days. I then want to set a hearing in which all the parties will have submitted all of their materials to me and will once again try to, we will
13

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
once again try to see if it isn’t possible that the United States of America and the State of Michigan can’t provide a consent decree to me that I can sign that can pass the muster and can comply with the Sixth Circuit standards as I believe to be correct. I think that I set that day for June 11, but I left—is that correct? At 9:30. June 11th is a Monday which I think will cause minimal problems with the movement of the lawyers from various places. I set it in the morning so that we wouldn’t have a repeat of this miserable afternoon and evening affair. I will be most anxious to see what has happened by that time. I consider this order to be an ongoing order, and that the State of Michigan and the United States of America can continue to amend their agreement up to the time of the hearing.
Of course, I want as much notice as possible as to what is in it, but just because I have only given them thirty (30) days it could be that they will see a suggestion made or an objection made by the intervening party or parties or the amici curiae and want to make an alteration to overcome that objection. I have no reason to be concerned about that, either. I could string out the time problem, but this is such an important case involving such an important issue that I don’t want it to slip away from me. Neither do I want to try it piecemeal, little by little, as I would have to do in my judgment if I entered the matter set before me. I don’t intend to do that, and I hope that it continues to be a consent decree. I certainly never want to be any part of having to litigate this case in its entirety.
BENCH OPINION OF JUNE 22, 1984 DENYING JANSSON PLAINTIFFS’ AND KNOP PLAINTIFFS’
MOTIONS TO INTERVENE AND APPROVING CONSENT DECREE
I want the lawyers to know, and through the media to know, the public to know, that I believe the decree ought to be signed, and I can’t imagine why the single sentence would cause any great difficulty after my explanation. It may not be the most perfect consent decree ever issued, but I am satisfied with it, and we have worked hard at it. Everybody has had an opportunity to have input, and I believe that is important in matters of public concern. And I have *950 some confidence in the lawyers that have appeared in this courtroom, and in an effort to resolve the issue. As far as I am concerned, there is a consent decree—I will sign it if we have all of the things that we have before us today, and I am pleased with the whole thing.
I turn to the question of intervention because I must resolve without—and I do this at this stage to assist the lawyers that are in this room from having to answer things, and try to put this matter to bed. I don’t think that I

have to really address the non-intervention because of the comment made by Ms. Alexander, but I do have to address the Jansson case.
The motions to intervene were both brought under 24(a)(2). The first was filed on May 16, 1984, and involves an action brought in pro per by several inmates of Jackson Prison. The action which is styled Jansson, Ja-n-s-s-o-n, v. Michigan, and is our file number 84–1263, is currently pending in the Eastern District of Michigan before Judge Thornton, having been filed on February 8, 1984, in that district. In a complaint naming various officials of the Michigan Department of Corrections and the State Prison of Southern Michigan, the named plaintiffs complain generally of the conditions of confinement at the South and North Complexes of Jackson. In support of their motion to intervene, these plaintiffs allege that the consent decree in this case will impair or impede their ability to protect their interests that they have expressed in their own district action. They base this argument upon prior statements that they claim the Attorney General of Michigan made in Hadix, and argue that since the Attorney General has, “said that the agreement will have an impact in Hadix, applicants having similar claims will also be impacted.” End of quote, out of their pleading. They seek to exclude the South and North Complexes from the consent decree as in Hadix.
The second motion to intervene before the Court was filed June 11th, 1984, the same day the case was filed, and that is the Knop case v. Johnson, that we have talked about, and is G84–651. Somewhat like the Jansson action, this action names various officials of the Michigan Department of Corrections, the State Prison of Southern Michigan, Michigan Reformatory of Ionia, and the Prison at Marquette, and raises claims based upon the totality of conditions at these institutions. This case is styled as a class action, but has not been certified as such by me. Attorneys for plaintiffs are the same as represent the amici, to-wit, William Fette and Elizabeth Alexander. In support of their motion to intervene, the Knop plaintiffs originally asserted that the entry of the proposed consent decree in this case will have a practical impact on their ability to litigate their case.
In a supplemental pleading filed yesterday, June 21st, 1984, applicants assert that they should be allowed to intervene in the enforcement of this litigation, stating, “Despite serious reservations applicants do not oppose the entry of the revised consent decree if an appropriate mechanism for monitoring enforcement will exist.” And in my judgment, such a mechanism now exists in the event that the last sentence is worked out. Applicants believe that it is necessary that this Court hear from someone other than the parties when an issue of enforcement or modification emerges. Although both
14

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
plaintiff and defendants have had notice of these motions, I have received no response whatsoever to Jansson, and the response to the Knop motion came only from the State defendants and was filed only yesterday.
As everyone knows, I have previously rendered a lengthy oral opinion on the question of limited intervention for the Hadix group. I now attempt to be very brief today and simply draw the parties’ attention to the previous ruling, and specifically incorporate and rely upon the facts and case law that I recited at that time.
Rule 24(a)(2) provides:
(a) Intervention of Right. Upon a timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action *951 may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
The parties previously were not in disagreement as to the elements necessary to establish the nonstatutory intervention as of right. Those elements are: First, the application must be timely; second, the applicants must show an interest relating to the property or transaction which is the subject of the action; third, the applicants must show that the protection of the interest may as a practical matter be impaired or impeded by the disposition of the action; and fourth, the applicants must show that their interest is not adequately represented by an existing party. For those four propositions, I cite Moore’s Federal Practice, 24.07(1), pages 24 to 50; Blanchard v. Johnson, from the Sixth Circuit, 532 F.2d 1074; County of Fresno v. Andrus, 622 F.2d 436, from the Ninth Circuit; Usery v. Brandel, from the Western District of Michigan, 87 F.R.D 670 (1980). Applicants bear the burden of showing that the Rule 24(a)(2) requirements are satisfied.
As to timeliness, number one, in NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648, the Court stated in 1973 that timeliness is to be determined from all the circumstances involved. This determination is left to the sound discretion of the trial court. I also draw your attention to Stallworth v. Monsanto Company, 558 F.2d 257, from the Fifth Circuit in 1977, and Usery v. Brandel that I have already cited, and EEOC v. United Air Lines, 515 F.2d 946, a Seventh Circuit case in 1975, cited and elaborated upon by me in my ruling in the Hadix motion,

and considered again relative to the instant motions. I have also considered Johnson v. North Carolina State Highway Patrol, in the Eastern District of North Carolina, 1980, 91 F.R.D. 406, not cited previously.
Unlike the motion in Hadix, I do not believe either of the instant motions to be timely. It is clear that the applicants were aware or should have been aware in the Jansson case of this action in January, as were the plaintiffs in Hadix. Unlike the plaintiffs in Hadix, who filed a motion to intervene immediately, the applicants delayed filing until several months after the institution of this lawsuit, and at a time when the matter had reached a critical stage with entry of the consent decree looming. I believe there would be substantial prejudice to the parties to this action caused by the untimeliness of these motions should they be granted. On the other hand, as will be explained more fully in a moment, I do not believe there is prejudice to the applicants in denial of their motions.
Second, the interest relating to the property or transaction which is the subject of the action. Rule 24(a)(2) requires a “significant protectable interest” in the pending litigation. While I find it unnecessary to make a specific ruling as to this element of the intervention prerequisites because of my conclusions regarding the other elements, it is likely that both applicant actions would be able to satisfy this test.
Third, the protection of the interest may as a practical matter be impaired. As pointed out in my prior ruling, CRIPA provides in section 1997j that its provisions do not expand or restrict the authority of private parties to enforce their legal rights. Furthermore, consent decrees are generally accorded little or no weight in the determination of the right of persons not a party to them. In that latter regard, I cite the lawyers here to United States v. City of Jackson, cited in my previous rulings, from the Fifth Circuit in 1975.
When considering the Hadix motion, I found myself faced with concerns I do not find present in Knop and Jansson. Hadix was a class action that had been pending for four years when this case was filed. The parties had been negotiating toward settlement for more than twelve months. By contrast, Jansson has been pending since February 8th of this year, and it is not a class action. Although I am not privy to information as to the current status of that case, I can only assume that there has been little if any discussion of settlement. The Knop action is even younger, having been filed June 11th. There has been as yet no answer filed to *952 the complaint that I know of. Obviously, any discussion of settlement has been limited. These two actions may, of course, proceed despite the entry of this consent decree.
More importantly, there was some confusion at the time
15

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
that I ruled on the Hadix motion concerning the Attorney General’s position on the question of mootness and the effect of this consent decree on negotiations and litigation in that lawsuit. These concerns led me to look favorably upon intervention because I believed entry of the decree could impair or impede the disposition of Hadix. These concerns are no longer present. While Hadix is not settled, it appears to be that it is so far down the line to settlement that it will settle, and I cannot think of any way that the State or the defendants in that case can lack motivation based upon the comments made in this court today, and based upon the representations that I believe they have made to Judge Feikens.
However, even though it has not been resolved—and maybe in some weird way it will never be resolved—the consent decree as it presently stands before me contains a specific disclaimer of the mootness argument, and this statement in my opinion now relates and directly responds to Jansson concerns as well, and should be treated in the same manner as the Hadix concerns, and it is based upon the consent agreed upon here. It must be remembered that Knop and Jansson plaintiffs are free to continue to pursue the remedies they deem appropriate in spite of the entry of this consent decree. The State defendants must, of course, respond, and I am certain will respond, to those lawsuits. I do not believe under the circumstances as I understand them that the applicants have demonstrated that their plight may be impaired or impeded by the entry of this consent decree.
Fourth, and finally, the interest not being adequately represented by an existing party. On this, the final prerequisite under Rule 24(a)(2), I find that applicants have completely failed to make the requisite showing. The Jansson applicants are unrepresented and are currently incarcerated. The Knop applicants are represented by the same attorneys presently representing the ACLU in this case. In their role as amicus curiae, these attorneys on behalf of the ACLU, have vigorously pursued a just and proper resolution of this dispute. They are more than adequate to represent the interests of every inmate in the three prisons subject to this consent decree. As I indicated in the decree, amici, the ACLU and Hadix group, will be provided with all documentation relative to this case. They will have the opportunity to respond in writing and to appear and argue at hearings. They surely will make all of the prisoners’ arguments. Based upon the impressive pleadings and arguments presented thus far by amici, I do not believe applicants could hope to be better represented.
The important considerations in ruling on the Hadix motion to intervene, and also the ACLU motion to appear as amicus curiae, were allegations without proof that the Department of Justice would not vigorously pursue compliance with a consent decree, that it had accepted

less than the State of Michigan was offering, that its internal policies were inconsistent with the protected rights of inmates, and that there were differences of opinion on constitutional interpretation. The transcripts of Congressional testimony of two ex-Justice Department attorneys added to this concern and uncertainty. Intimately tied with these issues was the concern that the proposed decree was vague and unenforceable, and subject to ex parte amendment by defendants. These latter concerns have been alleviated in my mind by the revisions of the consent decree. The former concerns, as I have indicated, are adequately addressed by the capable representation of amici. I find no reason to conclude applicants should be any further represented.
For all of these reasons, I deny the motions to intervene of both the Jansson and Knop applicants without prejudice, and on the assumption that the language the Court suggests in the one sentence not yet resolved is ultimately agreed upon by the State and the federal government.
*953 Finally, there is a document entitled, quote, “Laymans Pleading,” filed on June 15, 1984, by a prisoner at Jackson named Robert Carl Marr, M-a-r-r. Mr. Marr alleges that he has been incarcerated within the Michigan Prison System for the better part of the last thirty-eight (38) years. He claims to be qualified as an expert, friend of the court, party, or “anything else that this court will allow in the court’s endeavor to arrive at a fair, lawful and just decision in this matter.” Mr. Marr would like to testify as to the conditions at the various Michigan prisons, and as to the competence of Perry Johnson. The Court has already ruled that the consent decree, as amended, is fair, just and lawful, and shall be entered by this Court, provisionally, if that last sentence is agreed upon, and I do not believe that there is any need for the testimony or anything else from Mr. Marr.
BENCH OPINION OF JUNE 21, 1985 APPROVING PARTIES’ STIPULATION AND ANNOUNCING INTENT TO APPOINT A SPECIAL MASTER
The past few months, it seems like this Court has spent an unusual amount of time in litigation styled the United States v. State of Michigan. Not, of course, the same litigation. But their submissions have been so voluminous here that it has taken a long time to try to understand what has happened here since we last met or approximately last met. In my judgment, this problem came to me in an unfortunate manner inasmuch as I was dissatisfied with the proposed consent decree when it first came to me, and felt very much like a vehicle just passing through some political considerations on to the other branches of government, and wouldn’t do it because it was pointless;
16

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
and after a while, as we got together, and worked on it, and negotiated really, came up with what I thought at least was a reasonable consent decree that the Court could interpret and enforce, make certain that the object of the, the objects of the consent decree were complied with; and I must say that I have read with interest all of the submissions that have come.
It seems to me as an initial matter that when you get a hearing like this, and I did not know what to expect at the hearing—I certainly knew, I certainly knew what were the written positions of the state and the United States of America. I did not know the positions of the amici except on the limited issue of the mental health plan. I would have expected as the years went by that I would have heard from the amici in the event that the amici believed that the State of Michigan’s compliance was not sufficient to satisfy the requirements of the consent decree, and I did not with that single exception. There are three, at least three possible reasons why I didn’t hear from the amici.
One is because the amici through their counsel were not aware of what was happening within the penal system of the State of Michigan. It seems to me that that is partly true and partly untrue. Ms. Alexander has indicated to me discontent in her visits to the prisons in the form of her dissatisfaction with being cast in the apparent role of a Justice Department employee, which of course she is not. Secondly, it would appear that she has not gotten all of the submissions called for in paragraph “O” of the consent decree. So she was in part ignorant of what was happening through no fault of her own, and I suppose it could also be argued that she was in large part satisfied with some things that were happening, which is why I didn’t receive any reports.
Really, I come out here today, and I think you can boil down and summarize what I heard this morning in two fashions: First of all, you have the State of Michigan and the United States saying—well, you have the State of Michigan saying we have complied as best we can, we have not totally complied for reasons that were unknown to us at the time of the consent decree, including the illness of a psychiatrist, and including the time deadlines which were not realistic, including lots of other things having to do with construction and construction contracts, and the bureaucratic process that every government faces. The United States comes in and says, both, there has been some compliance, and we *954 are pleased with it, and where there has not been compliance we have insisted on a better situation within the realities of the real world.
Then the amici come in and say essentially there is a collusive situation between the two competing sovereigns in this litigation and what I have heard is not true. One I think could make—one has to make some conclusions. I am in a very unenviable position it seems to me for a

number of reasons. First of all, some of the matters are impossible for me to correct because the deadlines weren’t met. What can I do except hold somebody in contempt who hasn’t met a deadline? That is the first unenviable position. The second one is, how do I cull the truth from what is being said to me today. After all, in the final analysis, isn’t that my job? That is what I am paid to do, is to find the truth.
I can make some tentative conclusions, and I will make them. It does seem to me there has been substantial progress and the State of Michigan in many respects has to be complimented in what it has done in the year that has gone by. It sounds to me as though there has been a good faith effort on the part of the State of Michigan to do what is difficult to do. I cannot but sympathize with correction officials in this state or any state as not being an enviable job for them, either.
It seems to me like the United States has kept its word from what I am hearing in the courtroom. It has not simply agreed with the State of Michigan on all of its requests to put things off, and to come up with new deadlines, and I have to compliment the United States and the State of Michigan for that. And I do. It certainly sounds better than it did a year ago.
Like all other citizens, I do read the newspapers, and I see there has been some unrest, particularly at Jackson. Whether that unrest has any causal relationship to the issues before this Court, I don’t know, but I have to suspect that it is so. I also recognize the realities of the need for the sovereigns through their counsel to put the executive branches of their respective governments in a good posture before the media that is attending this hearing. It is a reality that I have to deal with, I have to consider. I have to think if it makes any difference, does posturing in the courtroom have anything to do with the matter before the Court. I don’t think it does. But I guess there is not much I can do about political considerations.
When you get right down to it, Ms. Alexander is saying two things: First, she is saying I haven’t been fairly treated procedurally. So I can’t get my interests before the Court because I haven’t the material to do it. I haven’t had the twenty (20) days promised by paragraph “O”. But, and she says that is all she wants is for me not to sign the stipulation today because she hasn’t had a fair opportunity. And she hasn’t had a fair opportunity. She is right. That is easy. Obvious. Why, I don’t know. Certainly the paragraph wasn’t complied with. Then secondly she predicts that if I knew the real truth I wouldn’t sign the decree anyway, if after her twenty (20) days we had another hearing and she could parade some witnesses before me or something I would find there hadn’t been enough compliance. The answer to that is I don’t know.
17

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
I am disinterested in the Knop litigation. That is a matter beyond this Court. I agree with Ms. Russell on that. I don’t intend to improve her posture in the Knop case one way or the other, or hurt it one way or the other. I am just disinterested. I am interested only in the United States v. Michigan case. So how do I cull the truth out of that? Well, I don’t know as much about the administration of penal institutions as I do about the people in this room, but I believe if I had two months or a month and one-half, I could myself find the truth by simply going to where I have to go, and that is, to the institutions, to the correction officers, to the inmates, to the, probably, the legislative officials and executive officials, and make my own mind up about compliance. I don’t think that any court would do that or has the time to do it; and I am not going to do it. Therefore, I am going to remain in the dark. And that is not a hopeful thing, either.
*955 Ordinarily, it seems to me that in a consent decree situation, in a consent judgment situation, when the parties are in substantial agreement, ordinarily it is the job of the Court to put an imprimature on that agreement, and I suspect courts for the most part in the ordinary situation do that. I certainly have found myself doing it on occasion, and I am sure that I will again. But this is public interest litigation, and it affects all the people of the State of Michigan and to some degree the United States. Furthermore, the subject matter of the litigation, the constitutional rights of the inmates, are in this litigation almost unrepresented. That is to say, the amici appear for the inmates, but the inmates have no counsel in these institutions, and it is the Eighth Amendment that brought this matter into the courtroom in the first place. I don’t think it is analogous really to school children in a school desegregation case because the interests are represented for the most part, usually by a class of either plaintiffs or defendants including the governmental entities involved in that. This just has a group of people, numerous—I don’t know how numerous, but numerous—who aren’t here, and they are telling me something.
From time to time I have received letters from inmates. The parties know about that because I have always sent those letters right on to the parties, and I get the expected response, quote, we will look into that, end quote, and nothing else. So I act like kind of a clearinghouse for the inmates that are upset and write to me about their upset. That is kind of ex parteing the Judge, and I just send them on to the parties, the amici, and get no response except as I indicated, someday maybe we will get around to answering that.
Well, there are really two options in front of me right now. One is the option to sign the stipulation which of course I have read; and one is not to sign. What else can I do?

What I am going to do is the following: I am going to sign the stipulation. It will expire at 5:00 p.m. on August 21st. I have written that into the order. The order reads that the above stipulated agreement is an order of this Court hereby entered the 21st of June, 1985, at Kalamazoo, Michigan, and it expires on August 21st, 1985, 5:00 p.m.
That is of course about sixty (60) days from today. It is two months from today. In the United States v. Michigan involved in the Indian fishing rights case, I appointed a special master for the purpose of trying to expedite a settlement, and for that purpose principally alone. It was of help to the Court in the final analysis. And from the day this litigation was filed, I began to, this instant litigation, U.S. v. Michigan slash Prisons, I began to think about a special master, because I began to think that I would never be able to learn what I needed to learn about the conditions in Michigan’s prisons, and probably might not recognize them myself if I saw them.
From that date to this date, I have seen two separate individuals in this courtroom on different litigation who have presented themselves to the Court, called by the litigating parties as ex-prison—they were both ex-prison administrators of some standing in the country. Both had been wardens as I recall it, and they helped the Court with their testimony with regard to the issues that I was facing then. One was, I specifically recall, involved in the case where an inmate was alleging that he had been raped at one of the institutions involved in this litigation maybe— maybe not—but with regard to the conditions of confinement; and I thought about this case at the time.
I intend to appoint a special master in this case pursuant to Rule 53 who will tell me, I hope, what the truth is with regard to implementation. I am going to give the parties the following assignment. I want them to—the parties include amici. I want them to brief by July 5th, that is, two weeks from today, issues involving a special master, including the following issues: The role of the master as the parties and amici see it; the question of funding provisions; and whether or not the master’s fee ought to be shared by both governments, and if so to what degree. That is to say, *956 should it be 50–50 or something different. Funding provisions as the parties see it.
I will be interested in comments from the parties and amici about the value of the special master in this case; although I think that I have said to the parties the reason I feel the necessity. I need some independent person not bound to the United States, not bound to the State of Michigan, not bound to the amici, not bound to the inmates, but knowledgeable about the issues facing this Court; and I don’t see that there is any other way that I can do that. I am about 85 percent convinced, but not 100 percent, that the United States and the State of Michigan are telling it to me like it is. But I need to have a
18

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
percentage much greater. I need to get as close to 100 percent as I can.
I am also ordering that Ms. Alexander be served with all documents which paragraph “O” contemplates, that she hasn’t been, by July 1st and no later, and I am ordering that the stipulation that I just signed be amended when it talks about service on the opposite party and the Court, that there be an amendment to that saying “and the amici ” in each place where it appears in this 13, 14–page document, actually a 13–page document, a signature page. I did not make the amendments in pen. I am ordering it amended that way. Then I am ordering the parties and the amici to submit to this Court motions if they have any with regard to what ought to happen on August 21st together with briefs and supporting memoranda regarding what has been complied with from this date, June 21st, until that date, August 1st.
Some of the deadlines in the stipulation will have already occurred, and some will not have occurred as everyone here knows. And those briefs and motions should stop the legal paper unless it is necessary after August 1st. On August 21st, 1985, the day the stipulation and order expire, I order a hearing in this courtroom at 9:00 a.m. I hope to be able then to take the step that seems appropriate at that time. The master may or may not be in place by that date. I would hope to be able to issue an order of reference by mid to early part of the latter part of the month of July, which would only give that master thirty (30) days at best.
But something has to be done. One of the things that disturbed me when I took the recess was that Ms. Alexander wanted me to delay the matter further by not signing the stipulation, and I don’t want to delay the matter further. It creates by itself, obviously, delay. It is a problem that—it is the same problem on the same problem. I don’t see any value in doing that. That is why I am not doing it.
We will meet again on August 21st. We will have more knowledge then than we have today. I hope that in the next two months the stipulated order works out—but I don’t know the answer to that. There will be no further written notice from this Court I say to the parties, about the hearing date or about the briefing dates, other than this oral order. The stipulation that I have talked about is signed, and I will hand it to you, Ms. Chapman. I am not going to bother as I indicated making the corrections, inserting the amici in the stipulation, because it has just been done by my oral order.
MEMORANDUM OPINION AND ORDER OF

AUGUST 5, 1985
On June 21, 1985, a hearing was held in the abovecaptioned case on the subject of Defendants’ (hereinafter referred to as “the State”) compliance with the terms of the Consent Decree entered July 16, 1984. After being presented by the parties and amici curiae (amici) with seemingly incompatible versions of the State’s compliance efforts, I indicated an intention to appoint an independent person; i.e., a Special Master, to assist the Court in overseeing implementation of the Consent Decree. The parties and amici were ordered to submit briefs on the subject of a Special Master by July 5, 1985.
The Court has, since July 5, 1985, received numerous pleadings from the parties and amici. The Plaintiff and Defendants strenuously object, on several grounds, to the appointment of a Special Master. Amici strongly favor the appointment. *957 Having carefully considered the arguments made in these pleadings, both on the issue of the appropriateness of utilizing a Special Master and on the issue of the State’s compliance efforts, I am still unable to make a comfortable and accurate assessment of the State’s progress. Therefore, I remain of the opinion that input from an independent person on this important subject is necessary. However, I am persuaded by the parties that the Court’s inquiries may be adequately addressed, and in the least intrusive manner, by the appointment of an independent expert rather than a Special Master. Should the selection of an independent expert prove to be an unsatisfactory manner in which to address the Court’s concerns, the appointment of a Special Master will again be considered. Therefore,
IT IS HEREBY ORDERED that pursuant to Federal Rule of Evidence 706 and 28 U.S.C. § 1920, an independent expert shall be appointed to study and report upon efforts of the State of Michigan to comply with the Consent Decree entered July 16, 1984.
IT IS FURTHER ORDERED that the fees for said independent expert shall be shared jointly by Plaintiff, United States of America, and Defendant, State of Michigan.
IT IS FURTHER ORDERED that the parties and amici shall submit to the Court names and resumes of proposed independent experts within fifteen (15) days from the date of this Order. The Court will immediately thereafter select a qualified expert. If unsatisfied with any of the names suggested, the Court will make its own independent selection of a qualified expert.
IT IS FURTHER ORDERED that the hearing previously set for August 21, 1985 remains as scheduled. The issues of the implementation of the Consent Decree and the appointment of an independent expert will be addressed.
19

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
IT IS SO ORDERED.
BENCH OPINION OF AUGUST 21, 1985 EXTENDING THE PARTIES’ STIPULATION; DENYING THE KNOP AMICUS MOTION TO AMEND THE STATE PLAN; AND DENYING THE UNITED STATES’ REQUEST FOR SANCTIONS
AGAINST THE KNOP AMICUS
The Court takes up the issue, I guess, joint issues of the Knop plaintiffs, Knop amici, motion to amend, and the other motions to strike the pleadings which were the argument that we heard just before I took the recess. In a motion and brief with attachments which exceeded 150 pages, the amici now move the Court for an order amending the substantive provisions of the state plan for compliance and the supplemental plans associated with the consent decree issued last year. These provisions include among other things psychiatric care, medical care, physical plant conditions, and sanitation and crowding, and protection from harm, and access to the courts.
The motion and brief also ask the defendants to cease to inform inmates that administrative actions result from the consent decree unless that turns out to be in fact true. In terms of what the brief contains, which is summarized briefly by counsel today, I think it is sufficient to say that it states amici ‘s view of the present conditions in the areas listed and the law as to what they believe is constitutionally required. They believe these modifications are necessary to the state plan in order to effectuate the purposes of the consent decree. Also cited in the brief are areas in which the state plan as it exists now is being complied with.
[13] [14] Prior to addressing the question of whether the amici should be allowed, that is to say, have standing, if that is the proper term, to bring this motion, a comment is proper as far as the brief is concerned. It is exhaustive and well written, and if one has enough patience to read the 150 pages as I did there is interesting material there. However, as with all of the pleadings that I have read for the past several months, there is absolutely no way *958 for me to ascertain the truth of the allegations. Without being vulgar about it, it is the same stuff that I keep seeing over and over again; and although in the responsive briefs of the United States and the State the substantive arguments are not addressed, the substantive arguments have been addressed in the past and, I am sure, could be exhaustively treated if the United States and the State wanted to do that. The whole reason for my wanting to appoint a special master, or as I have altered that order, independent expert, was to give me some information,

and that has not been done. I, therefore, as a preliminary ruling would indicate that the motion if allowable, if I were to allow it, is in my judgment premature because I have the same lack of information that I had in June.
It is obvious to me from reading the voluminous pleadings, the paper war that is going on between angry counsel and of which I am the unfortunate beneficiary, that the only way that I can determine what conditions are and what has been done by the State, or what has not been done by the State, as well as any extensions that might be necessary, is after I get the report or consult with the independent expert, which I haven’t had the opportunity to do for a host of reasons that I will address in a few moments. The only option that I would have after reading that brief and the response is, without an independent expert, to conduct some kind of a trial, which I suspect would be very long and complicated, and which I suspect would be mostly unproductive.
I am concerned with the status of the amici here as far as the prison project is concerned. I am not unaware that they are the Knop plaintiffs. That is exactly the position they have here. The potential class action involves the totality of the conditions of the prisons involved in this case. I tend to agree with the parties in the case herein when they argue that the amici appear to be trying to litigate Knop in part at least. I know, and I assume that the lawyers know, that CRIPA requires only the, quote, “constitutional minimum.” While there may be no way in this world to accurately determine what satisfies a constitutional minimum, I note that amici, the Knop amici, were at one time satisfied with the terms of the consent decree and the state plan. In fact, the Knop plaintiffs stated they were not here to challenge the substantive provisions of the decree or the plan, only to be sure there were provisions for adequate monitoring and/or enforcement.
By reading between the lines of the pleadings, and that is all I can do, it appears to me that the Knop plaintiffs have changed their minds. It may be that they are seeking extra relief as plaintiffs in Knop rather than the limited status of amici in this case. As in all other matters in this case, I continue to be frustrated because I don’t think anyone in this room, myself included, really knows what is constitutionally required as a minimum. If that is true, and I am persuaded by all that I have heard that it is, how can I be expected to make a judgment as to what should or shouldn’t happen with regard to the issues set forth in the 150–page brief of the Knop plaintiffs? As I have indicated a few minutes ago, I do not believe that the Knop plaintiffs have standing or authority to bring a motion to change the state plan. 42 U.S.C. 1997 or the CRIPA Act clearly gives standing to seek remedies only to the United States. The Knop plaintiff or the Knop amicus is not a party, never was a party. Although Hadix was once an
20

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
intervening plaintiff, Hadix isn’t anymore, and if I have my way, and I think I will, Hadix will be out of this case altogether.
The pertinent provisions of the consent decree do not in my opinion support amici ‘s ability to bring this motion. The decree refers very specifically to parties, and I would underscore the word “parties,” having stipulated and agreed to the entry of the decree. After addressing various conditions involved in the decree—and I call the record’s attention and the lawyer’s attention to paragraphs H, I, J, K, and L—I specifically stopped at paragraph O which in substantial part reads as follows: “The parties by agreeing to this decree do not intend to create any rights and obligations *959 enforceable by inmates. It is, nonetheless, recognized that for the purpose of entry of this decree the Court has granted limited intervention to the plaintiffs in the pending action of Hadix”—citation omitted—“and to the plaintiffs in the pending case of Knop”—citation omitted—“to participate as amicus curiae. To the extent that the defendants are required by paragraphs I, J, K, and L to this decree to furnish reports, plans, pleadings, memoranda or other documentation to the Court and the United States, an informational copy shall be provided at the same time to the amicus curiae. Any responses of the United States shall be similarly circulated. Within 20 days after receipt of said reports, plans, pleadings, memoranda or other documentation, Hadix and Knop plaintiffs may respond to the Court and parties as amicus curiae.” Those are two words that ought to be underlined, it seems to me. “Further, Hadix and Knop plaintiffs have a limited right at the Court’s discretion to participate as amicus curiae at any hearing which may be called.”
That is a substantial reading of paragraph O of the consent decree previously entered. Paragraphs P and Q are of some assistance as well. Paragraph P indicates that the United States may seek appropriate orders for enforcement of the decree, but will not do so until first consulting with the defendants in an effort toward an informal resolution of the dispute; and Q says the Court shall continue its jurisdiction of this matter until further notice. “One year following the decree”—some material omitted—“the Court shall hold a hearing to determine whether the decree to the extent then implemented in accordance with the terms and provisions thereof is fulfilling its stated purpose to bring SPSM, RFC, MR, MBP and MIPC into constitutional compliance. Should it be determined at such hearing that the decree is in some respect deficient in such requirements, the Court may entertain motions for modification of the decree so as to correct the deficiency. The Hadix and Knop plaintiffs may participate as amicus curiae in said hearing.” End Quote. Quite clearly Q and O indicate the status of the Knop plaintiffs, and that status is not as a party. Nor does it give the Knop plaintiffs any right to make a motion to amend. I

believe these provisions grant the amicus, therefore, very limited authority, the type of authority usually granted to a person or an entity with an amicus status.
[15] I have to agree with the parties that the amicus does not have authority to make a motion to modify. Also, even if it did, or they did have the authority, it seems to me very untimely, over one year after the decree was entered and subsequent to the compliance hearing of June 21st, 1985. I think that the past briefs of amicus were very proper. They presented the Court with a third view of the facts and assisted me in understanding the requirements of the Constitution with regard to this legislation.
It seems to me this is the only role of an amicus at this stage. In fact, as you all will recall, I reduced the Knop plaintiff from litigating amicus to plain old amicus when the decree was entered. I disagree with the argument of amici that somehow my statement on June 21st in effect that the parties and the amici submit by August 21st such motions that they may have, about what should happen today, August 21st, was any kind of an open invitation to amici to make a motion to amend. I interpret my own remarks as an invitation to make motions, submit pleadings, regarding whether the stipulation should be extended past August 21st, nothing more, nothing less. I am hard-pressed to understand that it was a grant of some kind of authority to amici which hadn’t been in the litigation before and isn’t today. The ruling that I make, therefore, on the motion pending is that I grant the motion to strike the motion to amend as requested. I will continue. I will keep, however, the brief on file for use by me since it is well written, and since it may be of assistance to the Court and to the expert the Court appoints. The motion is stricken. The brief is not. The brief is still part of the Court’s material.
Because the United States and because the State of Michigan responded to that motion by outrage, which is understandable *960 to me, they did not address any of the substantive portions of the materials contained in the Knop brief. If the government wants to do, governments want to do that, Michigan or the United States—and they may not want to as there is already a bevy of material here that addresses most of those issues—I am going to permit that to be done because certainly the expert that I appoint is going to have access to the Knop brief, and it seems to me only fair to permit the United States and the State of Michigan if they desire to submit responsive briefs as to the substantive portions of the Knop amici ‘s brief. I will give them twenty days to do that, twenty days from today. They are not required to. Neither entity is required. If they want to, they have the right to do that. Thus endeth that matter.
Also before the Court is a motion for sanctions regarding some of the background material involving the Knop
21

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
plaintiff’s counsel who unfortunately doesn’t appear today because she is on vacation. The motion was brought pursuant to paragraph P of the consent decree. In part, the United States, it says the United States may seek appropriate orders for enforcement of this decree, but will not do so until first consulting with the defendants in an effort toward informal resolution of any dispute. The motion seeking sanctions against amici is in my judgment, has nothing to do with that paragraph, despite the fact that that is what I was pointed to, to do something about it. I don’t think that I will go into all of the issues, but I certainly don’t intend to hold a long evidentiary hearing in which—and there are already affidavits from both sides, and there is already animus that is not of benefit, that is reflected in the pleadings and is not to the benefit of any lawyer in this room or any lawyer not in this room. It is the kind of paper that I think no judge in the country wants to read. I certainly don’t. It diminishes this professional greatly. My analyzation of the motion, and what all of the bevy of materials that have been sent to me, is essentially, as follows:
First of all, there is in my judgment apparent misunderstanding by amici as to their authority in this case as I have just ruled. They are, as I have indicated, and will be treated as, traditional amici. I have read the pleadings, and from the pleadings and the materials that appeared, it appears to me that Elizabeth Alexander did not intend to act improperly. It does appear that she misunderstood the role of these experts vis-a-vis the United States. I, of course, have no way of knowing the truth here, and I wouldn’t if we had a full evidentiary hearing. I, therefore, do not intend to hold an evidentiary hearing, a you did, you didn’t kind of thing. I am not going to raise that issue to the level of dignifying it with a hearing. I expect, of course, that the matters contained in that motion, and the background from that motion, which was only filed August 13th, will not occur in the future. I am denying the motion for sanctions without prejudice in the sense that if problems occur in the future that motion may be raised again, and I will keep all of the materials that have been furnished to me including the affidavits for reference.
The motion for sanctions against Elizabeth Alexander is denied. That leaves on the agenda the principal issues for which I had set the hearing today, and that is what to do about the extension of the stipulation entered June 21st, what to do about the State’s motion for relief from the order, what to do about the expert situation.
The Court was in the midst of concern with the issues that were the same issues that I had back in June. In terms of the paper flow, the paper war, it is unfortunate, and I must confess as I have, it is becoming wearisome to me and to my whole staff. The background was not very helpful, either. It was on July 16, 1984, that the consent decree

was finally signed by me after considerable difficulties. Paragraph Q of that decree provided that I would continue jurisdiction of this matter until further notice, and that one year following the entry, and specifically on June 21st, I would hold a hearing to determine whether the decree, to the extent then implemented in accordance with the terms *961 and provisions thereof, is fulfilling its stead purpose to bring the institutions into constitutional compliance. Should it be determined, the order reads, in such hearing that the decree is in some respect deficient in its requirements, the Court may entertain motions for modification of the decree so as to correct the deficiency. The Hadix and Knop plaintiffs as I previously indicated were permitted to participate as amicus curiae in that hearing.
The next year, I received copies of periodic reports from the State and copies from the United States on the steps being taken to comply with the decree. No objections or any comments whatsoever were ever received from amici. Just prior to the June 21st hearing, I received a motion from the State to modify the decree. That is, to extend some dates for compliance in various areas. The United States and State submitted a stipulation of their agreed upon time extensions. The A.C.L.U. Prison Project strenuously objected and submitted lengthy arguments and reports stating that the conditions of the prisons were not as indicated by the United States and the State. The United States and the State contended that the A.C.L.U. position was incorrect in every respect. Allegations flew back and forth, of no assistance to the Court.
And frustration, in frustration and not much else, I stated at that June 21st hearing that I could not ascertain the truth as to the compliance efforts of the State, and I ordered at that time that I would appoint a special master to help in making evaluations and reporting to me about his evaluations or her evaluations. I ordered the parties and the amici to brief by July 5th the issues involving the appointment of a special master. I also ruled that I had signed the stipulation to extend the date, that it would expire today, August 21st, on which date there would be another hearing. Then from the transcript I ordered the parties and the amici to submit to me motions—I covered that matter. I don’t see any point in covering it again, I guess.
By July 5th anyway, I received a huge stack of papers on the question of the appointment of the special master. After listening to this material from my own office, since I was absent, I decided in my absence to appoint an independent expert instead of a special master. I reserved the possibility of appointing a special master at a later date if the expert proved to be an unsatisfactory manner in which to address my concerns. As of today, and only as of today, as far as I am—maybe it was yesterday or the day before—not very long ago—I received from the United
22

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
States the names and resumes of three proposed experts. I received the names and resumes from the State of Michigan of three proposed experts; and I received from the Knop plaintiffs the names and resumes of three proposed experts. I have received one or two, possibly three, requests from individuals who simply knew about the litigation and submitted their own resumes.
I do not know whether the two governments and the amici know of each other’s experts. I just got them myself, and I haven’t actually had the opportunity to analyze the material therein. There are no names repeated. So I can tell at first blush that there is no single individual who bears the recommendation of either of the sovereigns or of the amici. What I don’t know is if that may be true if all sides are privy to the individual recommendations made. What I am going to do about the expert problem then is this: I am going to order that the lawyers present today meet to discuss the expert issue with regard to the names and resumes submitted, and if the lawyers here don’t have the resumes of certain individuals, we will get them Xeroxed so they do have them. The purpose of the meeting is to see, is to have me learn two things before the day is out: One, are there, is there a person or persons which are agreeable to the lawyers representing the United States and the State of Michigan, and the amici if possible. But my judgment is that, or my observation is that nothing is agreeable to the lawyers in this room. So I wouldn’t expect that I would have any agreement. Nevertheless, in frustration, I try.
At the same meeting, perhaps, we can identify those experts who are not agreeable *962 for one reason or another based upon their resumes or other things. Several of the resumes that I have looked at, they appear to contain significant qualifications for the people who submitted them, and it could be that the lawyers haven’t had an opportunity to see each other on the subject. That today may not resolve that issue. I hope it resolves that issue if the lawyers talk with each other in good faith. If it doesn’t, I am going to give the government of the United States and the government of the State of Michigan ten days from this date to respond to me about all of the experts who have been submitted for my consideration.
I intend within one day of receiving those briefs to appoint the expert so that there will be no more delay. One of the significant problems that has occurred between June and today is that no progress has been made toward appointing an independent person to assist the Court in understanding what the problems of compliance with the Court’s consent decree are. And that will continue ad infinitum, it appears to me, unless I get busy and appoint the expert.
For the reason that I don’t have the expert, for the reasons that I have stated before, I continue to be in an unenviable

position of not being able to do anything except what the parties want me to do. That is, I can either rubber-stamp the parties’ request for extension, not being sure that I should, or I can deny it and just leave chaos in the case. So if I can’t deny it, and I don’t know the truth of the allegations, all I can do is extend it; and without any happiness at all I do extend it until January 17, 1986, at which time I hope to have heard from the expert on his or her views as to what happens with compliance. There will obviously have to be additional orders from the Court on briefing and other things. That is all I am doing right now is extending the stipulation of June 21st to January 16 (sic), 1986, at the close of business that day. I am ordering a hearing for that day at 9:00 a.m.
OCTOBER 2, 1985 APPOINTMENT OF F. WARREN BENTON AS INDEPENDENT EXPERT
AND ORDER FOR INSTRUCTIONS
[16] Due to its difficulty in determining from the submissions of the parties and amici the degree of the State’s compliance with the Consent Decree entered July 16, 1984, the State Plan for Compliance, and the Stipulation entered August 21, 1985, the Court finds it necessary to appoint an Independent Expert to study and report to it on the efforts of the State of Michigan to comply with the provisions of such documents. The Court believes the Independent Expert’s report will provide it with an objective and thorough analysis of the status of the State’s compliance in the subject prison facilities. The Court has considered carefully the qualifications of the candidates submitted by the parties and amici. Therefore, pursuant to Federal Rule of Evidence 706 and 28 U.S.C. § 1920, and with the consent of the parties,
IT IS ORDERED that F. Warren Benton is hereby appointed by the Court as its Independent Expert empowered to study and report on the State’s efforts to comply with the Consent Decree, the State Plan for Compliance, the Stipulation entered August 21, 1985, and other plans and orders entered in this case. In furtherance of his duties, the Independent Expert shall have the authority set forth below.
I. Authority 1. The Independent Expert shall have unlimited access to all facilities, buildings, or premises under the control of the Michigan Department of Corrections (hereinafter DOC) that are subject to this action, i.e., those facilities, buildings, and premises at the State Prison of Southern Michigan (“SPSM”) at Jackson, the Reception and Guidance Center (“RGC”), the Michigan Reformatory
23

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
(“MR”) at Ionia, the Marquette Branch Prison (“MBP”) at Marquette, including the Michigan Intensive Programming Center (“MIPC”), and the Riverside Psychiatric Center. He shall have the authority to conduct tours of these facilities, buildings, and premises as *963 necessary. This access includes the DOC central administration facilities.
2. The Independent Expert shall have unlimited access to all relevant records, files, and papers maintained by the DOC and the Department of Justice (hereinafter DOJ) to the extent necessary to perform his duties as detailed in this Order. The DOC and the DOJ shall refuse no reasonable request for documents. The Independent Expert may, upon specific request, view in camera any relevant confidential documents in the possession of the parties, including individual inmate records and the consultant reports of the United States. The Independent Expert shall maintain the confidentiality of such information. The Independent Expert shall receive the following documents at the time of appointment:
A. The Consent Decree;
B. The State Plan for Compliance;
C. All Supplemental State Plans submitted to date, together with all comment letters from the United States and amici;
D. The Stipulation;
E. The semi-annual compliance reports of December 1984 and June 1985;
F. The amici’s memorandum to amend the State Plan and the United States’ responsive memorandum; and
G. Any other documents the Court may wish to provide.
The Independent Expert shall have ready access to all other papers filed with the Court.
3. The Independent Expert shall have access to all pertinent staff members and employees of the DOC and the DOJ. He may engage in both formal and informal conferences with such staff members and employees, including confidential personal or group interviews, and such persons shall cooperate with him fully and shall respond to all reasonable inquiries and requests relating to the State’s compliance efforts. The State shall designate a representative to have the sole responsibility to coordinate tours of the relevant institutions or facilities, to assist in gathering documents, and to provide any additional material or information the Independent Expert may request. Lawyers representing the parties and amici or otherwise associated with this action, or with the Hadix

and Knop actions, shall not attend tours undertaken by the Independent Expert or otherwise participate in the Independent Expert’s activities without notice to the parties and permission of the Court. Such lawyers shall not contact the Independent Expert except by Order of the Court. Such lawyers may, however, respond to any written questions or other submissions the Independent Expert may have, provided such responses are in writing, and provided further that the lawyers for the parties to this action and for amici in this action shall receive copies of such questions or other submissions and the responses. All communications between the Independent Expert and counsel for either party or for amici concerning substantive issues pertaining to compliance shall be reported to the Court, the parties, and amici.
4. The Independent Expert may conduct confidential interviews and meetings with any prisoner or groups of prisoners incarcerated at the subject facilities.
5. The Independent Expert may attend, upon his oral or written request, any formal or informal institutional, or central administration, meeting(s) or proceeding(s) conducted by DOC staff. The DOC shall not refuse any such requests.
6. The Independent Expert may require DOC or DOJ staff to prepare, where appropriate, written responses to any questions raised by him.
7. The Independent Expert is authorized to hire Mr. Don Stoughton to assist him with his study and report. The amount, coverage, and payment of Mr. Stoughton’s fees and expenses shall be governed by the same terms governing the Independent Expert’s fees and expenses, as provided for in part III of this Order. The Independent Expert may, subject to the Court’s approval and with the consent of the parties, employ such other persons as he feels are needed for him to carry out his duties. The parties shall divide equally the *964 fees and other costs of such individuals, who shall be under the Independent Expert’s supervision and control.
II. Procedure 1. The Independent Expert shall give state officials reasonable notice of all tours, unless he believes such notice will interfere with the factfinding process. The Independent Expert, when possible, shall notify the State in advance of each tour of any special needs or arrangements that should be made, e.g., staff interviews or confidential interviews with inmates.
2. Upon conclusion of the compliance hearing scheduled for March 7, 1986, either party or amici may petition the Court to terminate the grant of authority to the
24

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Independent Expert contained in this Order. The Court, however, retains the authority to order the Independent Expert, upon conclusion of such hearing and notwithstanding any petition for termination of the Independent Expert’s authority, to perform such additional duties with respect to this action as it may direct or which the parties or amici may petition the Court to, within its discretion, direct, and which are agreeable to the Independent Expert.
3. Any and all disputes concerning the interpretation of this Order shall be resolved by the Court, with appropriate notice and opportunity to respond to the parties and amici. The Independent Expert shall have the unqualified right to contact the Court, without notice to either party or amici, with any questions he may have regarding this Order or any other aspect of this action. The Court, except as noted in the first sentence of this paragraph, shall respond to such contacts with or without notice to the parties or amici.
4. The Independent Expert shall submit his report to the Court, the parties, and amici on or before February 1, 1986.
5. The parties and amici shall have until February 14, 1986, to file with the Court any responses to the Independent Expert’s report they may wish to make. The parties and amici shall have until February 21, 1986, to file with the Court any replies to such responses they may wish to make.
6. The Independent Expert shall be prepared to testify at a compliance hearing, scheduled for March 7, 1986, at 9:00 a.m.
III. Authorized Fees and Expenses 1. It is understood that the parties shall divide equally all fees and reasonable expenses submitted by the Independent Expert, and approved by the Court.
2. The Independent Expert shall be compensated at the rate of four hundred dollars ($400.00) per day for services performed in accordance with this Order. The Independent Expert shall also be reimbursed for all reasonable and customary expenses incurred in the course of the performance of the duties outlined in this Order, including but not limited to airfare, cabfare, car rentals, parking, hotels, meals, tips, telephone calls, postage, and photocopying costs. Typist expenses are specifically excluded from the reimbursement provisions of this Order.
3. If an expense arises which is not customary and is over twenty-five dollars ($25.00), the Independent Expert shall

seek authorization from the parties prior to submitting a bill. Authorization of the parties shall be in writing. No reasonable expense will be denied.
4. The parties shall provide the Independent Expert with appropriate billing instructions within ten (10) days of the entry of this Order.
IT IS SO ORDERED.
OPINION OF DECEMBER 2, 1985 DENYING THE HADIX PLAINTIFFS’ REQUEST TO EXCLUDE THE CENTRAL COMPLEX AND THE RECEPTION AND GUIDANCE CENTER FROM COVERAGE UNDER THE CONSENT DECREE
Introduction
Currently before the Court is a “request” by amicus curiae the Hadix Plaintiffs for permission to intervene as a party plaintiff and for the Court to exclude the inmates confined at the Central Complex of the State Prison of Southern Michigan *965 (“SPSM”), including the Reception and Guidance Center (“RGC”), from coverage under the Consent Decree entered July 16, 1984, as amended August 21, 1985. On March 23, 1984, the Court granted the Hadix Plaintiffs a limited right to intervene as a party in this action so they could protect their interest in their own action before Judge Feikens of the United States District Court for the Eastern District of Michigan. The Court at that time, however, and at subsequent hearings, declined to exclude the Central Complex and the RGC from this action. After giving serious consideration to the Hadix Plaintiffs’ latest request for exclusion, I still find, although it is a close question, that for the reasons discussed below the Central Complex and the RGC should—at least for the present—remain covered by the Consent Decree.
Facts
The United States Department of Justice, through the Attorney General, initiated this action on January 18, 1984, pursuant to its authority under the Civil Rights of Institutionalized Persons Act (“CRIPA”). 42 U.S.C. § 1997 et seq. Concurrent with its filing of the complaint, the United States filed a motion to dismiss pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure (“FRCP”) in which it requested the Court to accept and to enter a Consent Decree it had negotiated with the State of
25

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Michigan as the parties’ settlement of the issues raised in the complaint. The Court set March 2, 1984, as the date for a hearing on the adequacy of the proposed consent judgment.
On February 2, 1984, the Court received a letter from the attorneys for the Hadix Plaintiffs advising it of their own action in the Eastern District of Michigan. The Court responded to this letter by inviting the Hadix Plaintiffs to participate in the hearing on the proposed consent judgment. On February 24, 1984, the Hadix Plaintiffs filed a motion to intervene as Plaintiffs in this action or, alternatively, for status as amicus curiae. The Hadix Plaintiffs stated in their motion that they sought to intervene for the sole purpose of excluding the Central Complex and the RGC from the proceedings before the Court. In an oral opinion rendered on March 23, 1984, the Court found that the Hadix Plaintiffs’ satisfied Rule 24(a)(2)’s criteria for intervention as a matter of right, and accordingly allowed them to intervene “on the basis of their limited interest in the Jackson Prison.” Transcript of March 23, 1984 Hearing, Vol. I, at 84. The Court also granted them status as amicus curiae. Id. at 85.
The Court indicated at subsequent hearings on the adequacy of the proposed Consent Decree that it was seriously considering excluding the Hadix Plaintiffs, i.e., the Central Complex and the RGC, from this action and thus from the scope of the decree. See Transcript of June 12, 1984 Discussions on Consent Decree at 6. The Court nevertheless approved the Consent Decree with the Central Complex and the RGC included among the institutions subject to the decree, and changed the status of the Hadix Plaintiffs to that of strictly amicus curiae. Transcript of June 22, 1984 Hearing at 26; Consent Decree, para. O.
On August 20, 1985, the Hadix Plaintiffs, having negotiated a settlement of their own action with the State of Michigan, renewed their request for exclusion from the Consent Decree. They argued, among other things, that failure to exclude them from the Consent Decree would constitute a waste of judicial resources and that the inmates were confused by the two decrees. At the compliance hearing held on August 21, 1985, the Court once again indicated its desire to exclude the Hadix Plaintiffs from coverage by the Consent Decree. Transcript of August 21, 1985 Rulings at 7 & 15. The State of Michigan indicated at the hearing that although it felt there was no conflict between the two decrees, it would not object to the exclusion of the Hadix Plaintiffs. Transcript of Statements of Attorneys, Scheduling by Court, of August 21, 1985, at 11. The United States, however, objected strenuously to the proposed exclusion, id. at 7–9, and subsequently filed a brief on the issue. The Hadix Plaintiffs then filed a reply to *966 the United States’ response to their request.

The Parties’ Positions
The Hadix Plaintiffs’ motion or request presents two issues for the Court to resolve: (1) whether the Court should allow the Hadix Plaintiffs to intervene as a party for the sole purpose of seeking exclusion from the Consent Decree; and (2) if it should allow them to intervene for that purpose, whether it should grant their motion or request for exclusion. The Hadix Plaintiffs presented three arguments in support of their request in the motion they filed on August 20, 1985: (1) judicial supervision of the implementation of two separate consent decrees, in two different courts, covering the same institution, would constitute a waste of judicial resources and could lead to conflicting interpretations and enforcement measures; (2) the implementation of two separate consent decrees has created confusion and disharmony among the inmates at the Central Complex and the RGC, which in turn has created problems for the Hadix attorneys, who often have to explain that corrective measures to which the inmates object, and for which they blame the Hadix attorneys, are necessitated by the Consent Decree entered in this case; and (3) the entry of their consent decree has obviated the legal basis for continuing this Consent Decree with respect to the inmates they represent by removing the threat of irreparable injury required to support injunctive relief.
The United States filed a five-fold response to the Hadix Plaintiffs’ request for exclusion. First, it argued that the Hadix Plaintiffs, pursuant to their status as amicus in this action, lack authority to file such a request, and that exclusion of the Central Complex and the RGC (which contain approximately 37.4% of the inmates affected by the decree and in which conditions are the worst) from the Consent Decree would significantly impair the United States’ efforts to implement badly needed changes. Second, the United States argued that there are no conflicts between this Consent Decree and the one recently entered in Hadix that would justify excluding the Central Complex and the RGC from this action. It noted that the Consent Decree contains procedures for resolving any conflicts which may arise and that the State of Michigan stated at the August 21, 1985 hearing that it has taken the requisite steps to comply with the terms of both decrees.
The United States argued for its third ground that the Hadix Plaintiffs do not meet Rule 24(a)(2)’s requirements for intervention as a matter of right. It asserted in particular (1) that the Hadix Plaintiffs’ request was untimely, (2) that the Hadix Plaintiffs do not have a “significantly protectable interest” in the Consent Decree,
26

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
(3) that any interest they may have in the decree would not be subject to impairment, and (4) that the United States will adequately represent the Hadix Plaintiffs’ interests. The United States argued as its fourth ground that the Hadix Plaintiffs have not established the requisite justification for changing or modifying the Consent Decree. Finally, the United States argued that exclusion of the Hadix Plaintiffs would subvert its efforts pursuant to its authority under CRIPA and the decree to remedy the egregious conditions existing at the subject institutions.
The Hadix Plaintiffs subsequently filed a vigorous reply to the United States’ response to their request for exclusion. They stated that the decision to grant or to deny their request is not subject to any statutory bar but rather is committed to the sound discretion of the Court. The Hadix Plaintiffs noted that the Court had indicated at the August 21, 1985 hearing its desire to exclude them from this action, and argued that there exist strong reasons why the Court should modify the Consent Decree so as to accomplish that result. Amicus Curiae The National Prison Project filed a letter in support of the Hadix Plaintiffs’ request.
Analysis
[17] The Hadix Plaintiffs’ request has presented the Court with a peculiar problem to which it can find no firm answer in *967 the statutes or case law. The Court notes initially that because the Consent Decree is a final judgment, Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983), the first issue it must resolve is whether it should allow the Hadix Plaintiffs to intervene as a party so they can request, under FRCP 60(b), the Court to modify the Consent Decree. I discuss this issue, even though I will deny the Hadix Plaintiffs’ motion to exclude, to resolve any uncertainty regarding their right to intervene for the purpose of seeking exclusion.
The Court exhaustively discussed this intervention question at the hearing held on March 23, 1984, when it allowed the Hadix Plaintiffs to intervene “on the basis of their interest in the Jackson Prison case.” Transcript of March 23, 1984 Hearing, Vol. I, at 62–85. I will not repeat that discussion and analysis here other than to update it to take into account certain changed circumstances and to answer the objections of the United States.
A proposed intervenor as a matter of right under Rule 24(a)(2) must satisfy four conditions: (1) the application to intervene must be timely; (2) the intervenor must have a significant protectable interest in the subject matter of the litigation; (3) the intervenor must show that the

disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (4) the intervenor must show that the parties already in the litigation cannot adequately protect that interest. Triax Co. v. TRW, Inc., 724 F.2d 1224, 1227 (6th Cir.1984). The Court will discuss these factors in the order presented.
First, I find that the Hadix Plaintiffs’ motion to intervene is timely. See Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981) (factors to consider in judging timeliness). As the Hadix Plaintiffs state in their brief, the United States answered its own objection of timeliness by noting in its brief that the Hadix Plaintiffs have on at least four occasions indicated their opinion that they should not be in this action. The Court thus does not find that their latest request should have surprised the United States. It also does not believe that granting their request to intervene would unduly prejudice either the United States or the State of Michigan. This is not a case where the proposed intervenor has kept quiet until after entry of the consent judgment and seeks to intervene only after the original parties have finally settled their dispute. Compare id. at 105. The Hadix Plaintiffs have consistently made their desires known to the Court and to the parties. Finally, it is clear that the presence of the Consent Decree does not create an absolute bar to the proposed intervention. See id. at 105 (court considered request for intervention filed one month after entry of consent decree); Stallworth v. Monsanto Co., 558 F.2d 257, 261–62 (5th Cir.1977); EEOC v. ET & WNC Transportation Co., 81 F.R.D. 371, 373–76 (W.D.Tenn.1978).
Second, the Court finds that the Hadix Plaintiffs have a significant protectable interest in this litigation. A proposed intervenor under Rule 24(a)(2) must claim “an interest relating to the property or transaction which is the subject of the action.” FRCP 24(a)(2). The Hadix Plaintiffs can claim two interests that certainly relate to the transactions which are the subject of this action—i.e., the conditions of confinement in Michigan prisons and the consent decree—and which certainly are significant. The first is their constitutional interest in being free from cruel and inhumane treatment. The second is their interest in the effective implementation of their own consent decree, which may be affected by the implementation of the decree in this case.
The United States’ argument that the Hadix Plaintiffs do not have a “significantly protectable interest” because the Consent Decree in this case will fully protect whatever interest they may have goes more toward the third requirement for intervention: that the Hadix Plaintiffs are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest.” FRCP 24(a)(2). In this case, the relevant
27

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
“disposition” would be the implementation of the Consent Decree. This disposition may impair or impede the Hadix *968 Plaintiffs’ ability to protect their interests by adversely affecting their efforts to enforce their right to be free from cruel and inhumane treatment through the effective implementation of their own decree. The Hadix Plaintiffs cannot effectively protect their interests in their present status as amicus curiae, moreover, because, as the United States argues, they cannot file a motion as amicus curiae for exclusion from the Consent Decree. The Hadix Plaintiffs are so situated that implementation of the decree may, at some point in the future, as a practical matter impair or impede their ability to protect their interests in this matter. Rule 24(a)(2) requires no more to justify intervention. See Little Rock School District v. Pulaski County Special School District No. 1, 738 F.2d 82, 84 (8th Cir.1984).
With regard to the final factor, the Court must determine whether the Hadix Plaintiffs’ interests are adequately represented by an existing party, namely, the United States. The Court need not question the United States’ efforts to enforce the Consent Decree to determine that for two reasons, the United States cannot adequately represent the Hadix Plaintiffs’ interests. First, under CRIPA the United States does not represent the inmates directly but rather the public interest in seeing constitutional rights upheld. 42 U.S.C. § 1997a(a); S.Rep. No. 416, 96 Cong., 2d Sess., at 31, reprinted in 1980 U.S.Code Cong. & Adm.News 787, 813; Transcript of March 23, 1984 Hearing, Vol. I, at 28. The inmates at the affected institutions in fact have no right to seek to enforce the terms of the Consent Decree. Consent Decree, para. O. The Hadix Plaintiffs, however, directly represent the inmates at the Central Complex and the RGC. Second, the United States cannot represent the Hadix Plaintiffs’ interest in seeing their own decree effectively implemented. These two reasons suffice to satisfy the “minimal burden” of proof the inadequate representation requirement imposes on the Hadix Plaintiffs. See Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972). The Court therefore will grant the Hadix Plaintiffs’ motion to intervene for the purpose of seeking exclusion of the Central Complex and the RGC from the Consent Decree.
Having found that the Hadix Plaintiffs are entitled to intervene in this action, the Court must now decide whether to grant their motion for exclusion. The Court finds that the Hadix Plaintiffs have not proven sufficient changed circumstances since the entry of the decree, or other extenuating factors, that would justify modification of the decree so as to exclude them from its coverage. The Court’s discussion of this issue consists of two parts: (1) a discussion of the appropriate standards for determining whether a modification of the decree is justified, and (2) a discussion of whether the Hadix Plaintiffs have satisfied

those standards.
[18] [19] The Hadix Plaintiffs’ request does not fit any of the established standards for determining whether a consent decree should be modified. The Court notes initially, however, that in general it has the power to modify the decree if it believes modification is required either to prevent the decree from being turned into an instrument of injustice or to fulfill the intent of the decree. “A consent decree is essentially a settlement agreement subject to continued judicial policing.” Williams, 720 F.2d at 920. The prospective features of the decree, moreover, are analogous to a permanent injunction and as such are subject to modification as needed to meet the decree’s intended purpose. Id.; see System Federation No. 91 v. Wright, 364 U.S. 642, 646–48, 81 S.Ct. 368, 370–71, 5 L.Ed.2d 349 (1961). The Court in addition has explicitly retained jurisdiction over this decree “until further notice.” Consent Decree, para. Q; see United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932).
Thus, although the Consent Decree is entitled to some respect under general principals of finality such as res judicata and law of the case as a final judgment of the Court, the Court has retained jurisdiction over it and has the discretionary power to modify it as necessary. In this case, moreover, principals of finality are entitled to *969 less weight because the underlying issues, although the subject of much negotiation between the parties, have not been subject to the crucible of litigation nor—in effect— resolved by the judicial branch. Compare Arizona v. California, 460 U.S. 605, 619, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983) (“an issue once determined by a court of competent jurisdiction is conclusive”) (emphasis supplied); Swift & Co., 286 U.S. at 119, 52 S.Ct. at 464. The Court thus rejects the United States’ argument that “principals of finality absolutely foreclose the reopening of the parties’ final judgment for the purpose of implementing the Hadix amici’s requested exclusion.” United States’ Response at 15.
[20] [21] [22] The standards for determining when a court should exercise its discretion to modify a decree may differ depending on whether the plaintiff or the defendant is requesting relief. See New York State Association for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967–69 (2nd Cir.1983), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 757 (1984). A defendant seeking relief from the terms of a consent decree generally must show that the decree “has been turned through changing circumstances into an instrument of wrong” or that—even though the purposes of the decree have not been achieved—he is suffering a “grievous wrong evoked by new and unforeseen conditions.” Swift & Co., 286 U.S. at 114–15 & 119, 52 S.Ct. at 462 & 464; see also Carey, 706 F.2d at 968–69 (noting that a lesser standard may apply in some
28

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

cases). A plaintiff, though, need only show that modification is necessary to achieve the intended effect of the decree. United States v. United Shoe Machinery Co., 391 U.S. 244, 249, 88 S.Ct. 1496, 1500, 20 L.Ed.2d 562 (1968). In general, however, courts should employ their power to modify consent decrees—whether at the defendant’s or the plaintiff’s behest—only for the purpose of insuring in light of changing circumstances that the intended effect of the decree is achieved. See United Shoe Machinery Co., 391 U.S. at 249, 88 S.Ct. at 1500; Carey, 706 F.2d at 969.1

1

The Second Circuit has stated, moreover, that a court

should be particularly willing to modify a consent

decree in institutional reform litigation, in which

unforeseen obstacles are more likely to present

themselves, a better understanding of the problem may

emerge only after a decree is entered, and a court may

have to consider a wider constellation of interest than is

represented in the adversarial setting of the courtroom.

Carey, 706 F.2d at 969–70; see Brown v. Neeb, 644

F.2d 551, 560 n. 17 (6th Cir.1981). The Court also

believes it is significant that granting the Hadix

Plaintiffs’ request would decrease neither the benefits

enuring to the inmates at the subject institutions nor the

obligations imposed on the Defendants.

[23] The intended effect of the decree in this case, as well as the Hadix decree, is to improve the conditions of confinement at the subject institutions. The Court’s primary concern thus is whether exclusion of the Central Complex and the RGC from the Consent Decree would hinder or facilitate implementation of the improvements this decree and the decree in Hadix require Defendants to make in the subject institutions. The Hadix Plaintiffs present some compelling arguments in favor of the latter conclusion. There appear to be several areas, for example, in which the provisions of the Hadix decree provide more protection for the inmates than the decree in this case. The Court has serious doubts, moreover, as to whether it is desirable—in terms of judicial economy, administrative convenience, and confusion among the inmates—to subject the Hadix Plaintiffs to both decrees.
The Court nevertheless believes that the Hadix Plaintiffs have not sufficiently supported their request for exclusion from the Consent Decree. The Central Complex and the RGC are in many ways at the core of the Michigan prison system, and the Court feels that it would not be appropriate to exclude them from the decree at this stage of its implementation. Such exclusion may hinder the United States’ efforts to implement the decree as an integrated package of reforms. The finality to be accorded the Consent Decree, moreover, although not a bar to subsequent modifications of the decree, requires that the Court at least deny the Hadix Plaintiffs’ request until it

has more accurate and detailed information regarding the implementation of the decree.
*970 Such information should be produced at the compliance hearing scheduled for March 7, 1986. The Court therefore will deny the Hadix Plaintiffs’ motion without prejudice for them to renew it following the March 7th compliance hearing. The Court will add that, for a couple of reasons, it would give serious consideration to granting a renewed motion. First, it cannot see the sense of having two separate comprehensive decrees covering the same institution. Second, and perhaps more importantly, there are significant issues arising out of the differing positions of the Hadix Plaintiffs and the United States. One strong argument favoring exclusion is that the Hadix Plaintiffs represent the inmates at the Central Complex and the RGC directly, whereas the United States under CRIPA represents its own interest or the “public interest” in seeing constitutional rights enforced. One need not cast any doubt on the United States’ willingness or ability to enforce the terms of the Consent Decree to appreciate that the Hadix Plaintiffs have a more personal interest in seeing their decree enforced and thus may be more vigorous in pressing the Defendants to meet their obligations.
The Court also finds significant the United States’ obligation under CRIPA not to take any actions that would “restrict the authority of parties other than the United States to enforce the legal rights which they may have pursuant to existing law.” The legislative history states more explicitly that the authority granted the Attorney General under CRIPA “is in no way intended to preclude, delay or prejudice private litigants from enforcing any cause of action they may have.” S.Rep. No. 96–416 at 31, reprinted in 1980 U.S.Code Cong. & Adm.News at 813. The Court quite frankly was surprised at the strength of the United States’ opposition to the Hadix Plaintiffs’ request. It rejects the United States’ insinuation that the Hadix Plaintiffs may not be able to implement successfully their own consent decree. United States’ Response at 22 n. 15. There is no indication that such is the case. If later events prove, moreover, that inclusion of the Hadix Plaintiffs in this decree is impairing or impeding their efforts to implement their own consent decree, and that they are receiving no benefits under this decree that they are not or would not be receiving under their own decree, then the Court would consider it to be the United States’ obligation under CRIPA to accede to the Hadix Plaintiffs’ exclusion from coverage under this Consent Decree.
The Court will enter an appropriate order in accordance with this opinion.
29

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
ORDER
In accordance with the opinion dated December 2, 1985;
IT IS HEREBY ORDERED that amicus curiae the Hadix Plaintiffs’ request to exclude the Central Complex and the Reception and Guidance Center from coverage under the Consent Decree is DENIED without prejudice.
BENCH OPINION OF FEBRUARY 13, 1986 DENYING DEFENDANTS’ MOTION TO MODIFY
THE STATE PLAN REGARDING A MENTAL HEALTH PLAN AND GRANTING THE UNITED STATES’ MOTION TO ENFORCE THE CONSENT
DECREE REGARDING MENTAL HEALTH
[24] The Court convenes a little late, having been buried in the mass of paper for the last several weeks in this case, needing a starting place, I think. The State of Michigan has been under an order to submit a comprehensive mental health care plan, or as the plan is labeled, Comprehensive Psychiatric Services Plan, for some considerable period of time. The Court granted extensions on numerous occasions to the State, and finally on October 9th the State submitted this plan which I have in front of me, and its bulk and volume can be seen.
The Court looks to the decree and notes in the decree in paragraph “K” that each plan upon submission shall be submitted to the United States for review, as this plan has been since October 9th. If there is no objection to the defendant’s proposed plan, “the plan shall be appended to the state *971 plan and be subject to enforcement in accordance with the provisions of the decree.” Before the Court, the Court turns to the question of modification which was simultaneously filed with the Court on October 9th. The most curious position. The State filed its longawaited plan, on the same date, the same moment, requested modification.
Before I take up the question of modification, it seems to me the Court has to decide where it is, what does it have, and the Court believes there—well, for a number of reasons the Court believes the plan is part of the state plan for compliance and, therefore, part of the decree, and, therefore, subject to enforcement by the Court. I believe that I should accept the Comprehensive Psychiatric Services Plan or the Comprehensive Mental Health Plan for at least three reasons: First, because it is very late; Secondly, and more importantly I suppose, because there has been no substantive objection by any party or amicus or amici in this case whatsoever as the decree permitted. There just aren’t any objections. The Court believes that the plan, that is to say, the Comprehensive Psychiatric

Services Plan or the Comprehensive Mental Health Plan, whatever it is supposed to be labeled, meets constitutional standards. The issue is going to be, apparently, whether it exceeds constitutional standards, but there is no objection that it meets it from anything that I can see. The third reason that the Court believes it should accept the plan is because the inmates deserve a remedy to the problem identified in the original decree, and the remedy is already a year behind. We have just been slowly moving at all times. I understand that that should be done. I am doing it.
Therefore, I am ruling that the CPSP is in fact a plan not objected to and shall be, and hereby is, appended to the state plan and subject to enforcement in accordance with the provisions of the decree entered by the Court in 1984.
Now the Court meets for two purposes today having—we need a starting place. The starting place is the plan. That is the starting place, and it is part of the decree, or it is appended to the decree and subject to enforcement. As I indicated earlier, simultaneously, the defendants propose to modify the plan, and, as follows: The second paragraph of II.H.4 states that the professionally designed plan which is intended to assure that prisoners with serious mental illnesses have adequate access to care facilities, quote, “shall provide for full and continuous implementation of the entire said plan within an additional three years after its adoption or approval.” The State proposes to amend the sentence to read, as follows: “The Department shall fully and continuously implement the plan to the extent necessary to assure provisions of constitutionally adequate mental health care to prisoners with serious mental illnesses as defined above.” End quote. The State as I understand it thus is not willing to commit itself to full implementation of its own plan, but, rather, would implement the plan only to the extent, quote, “necessary to assure,” end quote, of what it, the State, defines to be constitutionally adequate mental health care.
The State from its pleadings presents two arguments in support of this request. First, it argues that the plan purports to mandate treatment for inmates who fall beyond the legal definition of seriously mentally ill. The State also argues in this regard that the plan proposes unsupported, quote, “legal due process requirements for involuntary treatment and transfer of mentally ill prisoners.” End quote. Secondly, the State argues that the plan overestimates the number of inmates in need of mental health care as defined by the Consent Decree and the state plan for compliance.
The State proposes first to identify the actual number of seriously mentally ill prisoners during the implementation phase of the plan and then to develop the precise type of care required by each subgroup pursuant to the reports’ recommendations. The United States agrees with the
30

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
State’s proposal for three reasons: First, it believes that the proposed modification focuses the State’s attention on constitutional requirements. The Department of Justice *972 states that the new mental health care plan apparently—I underscore the word apparently, the Justice Department did not—apparently recommends the adoption of certain practices that exceed the minimum requirements of the Constitution. That is the end of the quote. The modification would simply relieve the State of any self-imposed duty to carry out each proposed recommendation of the plan. Secondly, the DOJ argues the modification’s insertion of the language, quote, “serious mental illness” to define the inmates the plan would cover is surplus and thus not objectionable since the Consent Decree already defines seriously mentally ill inmates as those requiring treatment under the plan. Finally, the proposed modification would not change the State’s obligation to implement the plan by October 9th, 1988. The United States also notes that the implementation of the plan would not by itself satisfy all of the State’s mental health obligations, but, rather, would be targeted primarily at items A.5 and .6 of the Consent Decree.
The amici object to the State’s proposal. They note that the State has received several extensions on its obligation to present a professionally designed mental health plan, and now seek to have the Court relieve it of any obligation to commit itself to definite staffing or bed requirements.
The amici also argue, one, that the plan does not purport to treat inmates who are not seriously mentally ill, noting that the consultants explicitly stated in the plan that they were considering constitutional standards in developing the plan and, secondly, that numerous studies including the report of the Task Force that designed the plan have identified the, quote, “desperately inadequate” nature of the State’s mental health care system.
The amici also object to the United States’ position with regard to the defendant’s request. They note the United States and the State seek to have the Court adopt a position that it rejected at the very beginning of this case, i.e., that it is sufficient if the Court does nothing except order the State to obey the Constitution. The problem with this approach, the amici argue, is that it allows the State and the United States to self-define what the Constitution requires and would force the Court to hold a trial on constitutional issues to determine if the defendants were obeying the Constitution. They note that the State repeatedly has refused to recognize the dimensions of the mental health care problem and urge the Court to reject the State’s efforts to avoid direct consideration by the Court of the magnitude of the deficiencies in the State’s system.

That is, in essence, the posture of the three litigating parties today as I understand their postures. Now I will start in a few minutes to hear what the lawyers want to say about the modification, modification requests, but I think I ought to say also that the fact that I accepted the plan as part of the Consent Decree does not mean that I would not be willing to listen to modification requests properly presented to the Court by any of the parties at any time; for it is certainly possible that the plan may need modification. I am not saying that the plan does not need modification by accepting the plan. I am saying that we have waited long enough to have a plan, and it is part of the decree. I am not sure who is going to be testifying today, and as a starting place I am looking at the United States’ answers to or the State of Michigan’s answers to some interrogatories with regard to who is going to testify.
I think that we should be interested in modifications. The State may well be right. But how does it help [the State] to attack the plan submitted by the State without giving me and the parties modifications? It leads nowhere. This morning when we started, the State started off by saying it was shocked about the Task Force report, but submitted it anyway in order to comply with the Court’s extended deadline. Well, now I wonder about that, and I am going to indicate very clearly why I don’t think the State is shocked. I call the record’s attention and the parties’ attention to the letter dated May 3rd, 1985, not from any consultant, but from Kenneth Faiver, the Associate Director of Health *973 Care for the Department of Corrections, written on Department of Corrections stationery. The purpose of that letter was to advise me why the State couldn’t meet its deadline. Let me read the third paragraph into the record: “To meet the requirement for a professionally designed plan”—quotes around professionally designed—“the Department of Corrections has contracted with a number of outside mental health professionals. An initial group of consultants has been developed; however, approval was withheld by the Michigan Department of Management and Budget; and it was not until mid-March that final approval was received.” End quote.
What does that say to me? That says to me that the State was carefully selective in consulting people to assist in developing a comprehensive plan, that OMB, the financial wing of the State government, had a shot at who those people were and held up the process, and then approved the process. That goes to the issue of the impeachment we are talking about. How can you impeach your own consultants when you spent this much time getting your consultants approved, not only by the Department of Corrections, not by the Department of Mental Health, but by the Office of Management and Budget?
31

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Of greater concern to me in that same letter, on page two, is the first entire paragraph, and I am most concerned about that one. Again, Mr. Faiver writing to me: “The first meeting of the consultant group consisted of a discussion of materials written by the Office of Health Care staff”—repeat, Office of Health Care staff. Repeat, Office of Health Care staff, not the consultants. This is the defendant itself. Picking up the quote: “These materials encompassed an introduction to the project and to the requirements of the Consent Decree and the State Plan for Compliance; a review of scientific research and findings into the prevalence of mental disorders in the general community; an analysis of the impact of deinstitutionalization”—the testimony that we were hearing just a few moments ago—“homelessness, and the criminalization of disordered behavior on the prison population; and a summary of studies dealing with the prevalence of mental disorders within the prison community. This last part, which included studies from a variety of states, including several studies from Michigan, was completed at our two-day meeting.” That is the end of the quote. I cannot emphasize enough how that negates the surprise comment, shock comment I heard this morning. You couldn’t be shocked. That is exactly what Mr. Faiver was telling us in May of 1985 when the State couldn’t come up with any plan at all.
Now I am trying to get, gain some, or get some order out of this amorphous hearing. The bottom line is going to be this, and I am going to return to it in a minute. I need specifics of modification requests, and I don’t have them. If the State wants to modify its plan, I will with an open mind consider that, and I suspect it needs to be modified. The earlier testimony of Dr. Adams, which hasn’t had a chance to be cross-examined, or, by anyone, suggests that. And I am going to listen to that. But I am not going to listen to it without the modification being in front of me. And before I, when I finish these remarks that I am making here, I am going to invite the parties, especially the defendant, to indicate to me what its proposed modification is, even though it is not prepared, and that will give us something, someplace to go.
But I hope it is clear what I am saying. How in the world does it help advance the problem to say that the report we submitted wasn’t any good even though we submitted it, and our own staff prepared it, and we don’t like our consultants, without saying and here is specifically what we can do that is constitutionally, minimally required? And the State hasn’t done that, and I am going to give it every opportunity to do so. I am going to deal right now with the issue of the modification request before me because I can dispose of that in short order and still get, I hope, in the time left to the real important issues before us.
I might say just in passing before I do that that if I were to

accept the proffered testimony of Dr. Adams and any other witnesses the State wanted to offer to impeach *974 its own plan I am left with no alternative. What do I do? Go back to zero plan? That is why I accepted the plan when I came in today. After over a year’s working for it, I refuse to do that, and I don’t think any reasonable person should expect to, expect me to. That is why it doesn’t take me anyplace. The State presents evidence that may even be persuasive. I don’t know if it is or isn’t. To say our plan isn’t any good, but we have no alternative, Judge, doesn’t help much.
The Court has been consistently troubled by the State’s position with regard to the mental health issue. It appears to the Court that the State initially took the position that its present system of mental health care is constitutionally adequate. It maintained that position despite numerous reports beginning with Dr. Terry Kypers’ 1982 report, and despite numerous admissions from the defendants’ own staff members that the system is not adequate to meet the needs of seriously mentally ill inmates. In its memorandum in support of its motion of May 8, 1985, for an extension of time in which to submit a comprehensive mental health care plan, the State opined that its, quote, “current system provides necessary mental health care to those inmates with serious mental illness in accordance with,” end quote, Eighth Amendment standards, and that the comprehensive plan is designed merely, quote, “to improve the delivery of these services if necessary in order to assure continual compliance with the requirements of the Constitution.” End quote. And part of that was, the request, is where the Kenneth Faiver letter appeared. As the United States stated in its response to the defendant’s May 8 motion, however, submission and implementation of a mental health care plan do raise constitutional issues. It is clear to me that the defendant’s present mental health care system probably does not meet constitutional standards.
The Task Force that designed the plan indicated that there are several areas in which the defendants’ present system is inadequate, and recent reports from psychiatric experts indicate defendants are not providing constitutionally adequate care for seriously mentally ill inmates of that system. The State apparently supported the work of the Task Force some of the time as is clearly indicated and right up to the time that it submitted its plan. The State submitted no documents to the Court prior to the present motion to modify indicating it either was dissatisfied with the work of the Task Force or that it was not planning to support the Task Force’s final product.
As I have indicated, Kenneth Faiver, the Acting Director—the Director, he is acting I guess—sent that letter to me that I have put on the record, in part indicating that the consultant group was proceeding well with its plans, that the department hoped to submit a plan
32

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
by October 9th, and it did. The members of the group were apparently approved by the department, and the group was headed by one of the department’s own staff members, Dr. Ort, that I have spoken about earlier. The Office of Health Care’s narrative statement concerning the plan, moreover, indicated that the department through the Office of Health Care would keep tabs on and review the consultant’s work.
The Court cannot see how the department can now disclaim responsibility for the final product. The State, nevertheless, is before the Court arguing that the Court should not require it to implement fully the plan that it submitted on October 9th. Initially, the Court should make clear that it considers the plan defendant submitted on October 9th, as I have indicated earlier today, to be the State’s plan, and believes that defendants are obligated to implement such plan fully absent a modification proposed and approved in accordance with the Consent Decree and the state plan for compliance. The Court does not consider the defendant’s current proposal to be appropriate. If the Court were to accept defendant’s proposed modification of the state plan for compliance I would be effectively allowing the defendants to decide, absent any judicial supervision, which inmates they must treat and what level of treatment they must provide, which is precisely *975 the problem that I was confronted with when the decree was first presented to me.
Furthermore, I can imagine easily, and it is clear today I think, a situation arising where the Court would be forced to conduct a mini-trial or a series of mini-trials on the issue of whether the treatment defendants are providing satisfies constitutional requirements. The purpose of the, the very purpose of the Consent Decree, the very purpose of the state plan for compliance and the various plans required by the State for compliance, was to modify this very situation, this very mini-trial situation.
The Court then must reject the State’s proposed modification of the state plan for compliance. If the State believes that the mental health care plan it submitted on October 9th is defective in some respect, and it does, then its proper course of action is to submit a modified plan that meets the requirement of Section “K” of the Consent Decree. This means, among other things, that the plan must include, quote, “a detailed statement of the measures that the defendants will take to achieve timely compliance with the plan along with a detailed timetable setting forth dates for interim and final compliance measures.”
The State indicated in its Stipulation Update of December 3, 1985, attachment “F”, that it had hired a Mr. Fred Cohen to review the Comprehensive Psychiatric Services Plan and that it plans to, quote, “issue a definitive response and plan of action to the psych plan.” The Court notes that whatever modified plan the State chooses to

submit will be submitted well past the State’s October 9th, 1985 deadline for submitting a Comprehensive Psychiatric Services Plan that it is willing to implement fully. The Court believes that the State’s proposal would put it in a position of having no control over whether the State is providing constitutionally adequate mental health care to the inmate population. I cannot, and I will not, allow the State to determine by itself what level of implementation of the October 9th plan, and thus what level of mental health care, is constitutionally required.
Having reached that conclusion, however, puts the Court in a bit of an unusual position. In accordance with the State Plan for Compliance, the State was to have submitted a professionally designed plan to assure that prisoners with serious mental illnesses have adequate access to appropriate care. Given its current position, the State apparently believes it has yet to submit such a plan, even though almost a year has gone by since the State’s original deadline of April 9, 1985 for submitting a plan. As I have discussed, I believe that the October 9th plan is the State’s plan, and that the issue is whether I should allow the State to modify that plan on the basis of the October 9th modification request.
That issue raises a number of subsidiary issues that the process for submissions of plans established by the Consent Decree was designed to avoid entirely. For example, I do not know whether the plan submitted in October, on October 9th, merely satisfies the constitutional minimum, or rather provides more than the Constitution requires. I do not know whether the State’s intended modifications, whatever they may be, would satisfy constitutional standards. It appears to the Court that the consultant group that designed the Comprehensive Psychiatric Services Plan stuck pretty close to constitutional requirements, such as in their definition of seriously mentally ill inmates, but I cannot tell for sure since I am not, of course, a psychiatric expert, and no one has had an opportunity to brief that issue for me. I do not, on the other hand, look forward to reviewing numerous briefs, supporting documents, and cases to determine what kind of plan or level of implementation of the present plan would meet constitutional requirements. The Court believes there are three or four ways that I have thought we could proceed. I am going to suggest a way for the lawyers to think about and tell me before the day is over, and we will be recessing after awhile.
Well, I want this hearing to continue, particularly with regard to the State presenting to me what it believes its plan is going to be, to give us some guidelines; but as a first step it seems to me the Court *976 has to require the defendants to submit a plan that the defendants believe satisfies the requirements of the Consent Decree and state plan for compliance, and one which they will be willing to fully implement. This plan may well be merely a
33

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
variation of the October 9th plan, and tentatively, tentatively—let the lawyers think about this for a minute and maybe even consult with Dr. Benton—tentatively I want that plan by February 28th. If that happens, then the plaintiff, United States, and the amici might want to file comments they have regarding the plan sometime before the 27th of March, and my suggestion would be March 20th.
Specifically, I want Dr. Benton to comment on the plan. It seems to me that to assist Dr. Benton, and mostly to assist me, the Court ought to authorize him to contract with the psychiatric expert of his own choosing to evaluate the plan in light of the requirements of the Consent Decree and the State Plan for Compliance. Dr. Benton’s current order of appointment provides that he may, quote, “subject to the Court’s approval and with the consent of the parties, employ such other persons as he feels are needed for him to carry out his duties.” End quote. Reading that as literally as it is, the defendants and the United States ought to agree to allow Dr. Benton to hire a psychiatric consultant. If they don’t agree, I guess I could appoint Dr. Benton as a psychiatric expert under Rule 53. I would prefer not to do that. I prefer to do what I suggested.
I believe, moreover, that authorizing Dr. Benton to comment on the State’s modified plan is absolutely consistent with his original authorization to, quote, “study and report on the state’s efforts,” end quote, at compliance. Whenever that is done, whether it is done by March 27th or not, and perhaps it can’t be, I am going to make a comment about this in a minute—probably it can’t be—but I am going to listen to input from the lawyers for the parties this afternoon. I will eventually consider the State’s plan or any other modified proposals by the government or even the amici, and Dr. Benton; his comments will be of considerable importance to me. I end up deciding whether it is March 27th or whether it is not, whether the modified plan is acceptable or whether some other modified plan is acceptable. I could then hold a hearing later if the time frame is insufficient to allow everyone, particularly Dr. Benton, a full opportunity to comment on the plan.
If the Court finds at the conclusion of the hearing or whatever hearings it holds to consider the state plan that the state plan turns out to be inadequate—and it may well be adequate—I can appoint Dr. Benton to work with the parties and the amici in formulating a plan that will be acceptable to the Court. Placing this responsibility on Dr. Benton would constitute an enlargement of his duties under the original order of appointment because that order provides, quote, “the Court retains the authority to order the independent expert upon conclusion of such compliance hearing, and notwithstanding any petition for termination of the independent expert’s authority, to

perform such additional duties with respect to this action as it may direct, and which are agreeable to the independent expert.” End quote. So that power probably exists already.
The Court’s order then is with regard to the current modification request of the defendants; that modification request is denied. However, the Court as indicated is open to whatever plan even tentatively the State has, and I would continue this modification hearing on the limited basis of letting the Court be informed as to how the State wants to modify the comprehensive plan even though it is not finalized.
The Court is going to modify what it has said in the schedule and ask the lawyers—I have it written down someplace. During our recess before the doctors showed up I had, I had opined without putting it in concrete—I now put it in concrete—that the State has until Monday, March 17th—that is two days more than the State asks— to submit a modified plan. I discovered that the 15th was on a Saturday, and the record I think discloses that not only did *977 the State’s witness, Ms. Burke, say that she believed the State could come up with a plan, but counsel agreed. So the Court takes that as a reasonable period of time, having waited since, having waited almost a year for that plan. Monday, March 17th the plan is due.
The United States may respond to the plan and may submit a modification request if it requires, if it desires, by April 18th, 1986, a Thursday. And the amici may submit memoranda with regard to the State’s modified plan on the same date. That is to say, April 18th, 1986. That happens to be a Thursday. No submissions should be submitted after that time. I think the Court will set May 8th and 9th for a hearing, which is a reasonable time for me and my staff to be able to look at the documentation submitted by both the State and the United States and the amici. May 8th and 9th is a Thursday and a Friday, and that is why I asked Dr. Ort if he were going to be free on that date, at which time on those two days—if we need more time than that, I will deal with it when we start. If I have to extend it, I will extend it.
How to structure the hearing I think is something we will have to wait and see when we see what the State’s plan is. The Court had also considered the question of contempt with regard to the State, without leave to have a suggestion made by the ACLU or anybody else. That is premature at this time for at least one major reason. That is to say, that the State is entitled to a due process response to any such thing. Because I am concerned that the modified plan may not help—and I certainly hope that it does. I simply express that as a concern—I am ordering the State to show cause during the May 8th and 9th hearings why it should not be held in contempt for failure to produce a plan within the time specified by the Consent
34

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Decree that it itself could comply with. The Court granted an extension until October 9th only to find on October 9th that the State wasn’t prepared to comply with its own plan.
It could entirely be that there will be an ability on behalf of the State to show that cause, but I am giving fairness notice to the State so that the State can come prepared to offer testimony with regard to this problem, and also I am doing it—I should be aboveboard with counsel—because I am trying to implore the State to come up with a plan that it can implement. That will also be a part of that hearing.
I am ordering you, Dr. Ort, to come as the Court’s witness since nobody apparently wants to call you, and I will be in touch with your office as to the date, but there is no reason for you to be here two days, May 8th and May 9th. I will be in touch with you, and if I don’t please get in touch with my office shortly before that, and we will let you know what date is convenient.
I think that the Court’s concerns are matters of record today, and I am hopeful that—maybe a false hope on my part—but some progress will be made by then, by the middle of May, and I am hopeful that the State’s plan is something of substance, I think if Ms. Burke has anything to do with it it will be. I just don’t know how much Ms. Burke will have to say about the plan.
Okay, thank you. As to the state of the record with regard to this issue, the plaintiff’s motion to enforce the Consent Decree and the stipulation, it is basically an undisputed record. The Court makes an easy finding of fact of violation in all of the areas described but not rebutted by the State in the slightest as far as I am concerned. There is no question but what the inmate population at the affected institutions are suffering unconstitutional conditions at this very moment in violation of the decree and in violation of the stipulation, and, of course, in violation of the Eighth Amendment to the Constitution.
The problem the Court faces is obvious. No one presented to me during the hearing—and I got some assistance— how to rectify that immediately. The Court is going to do the following, therefore. I am going to order the United States to prepare a proposed order as it suggested, but the order shall be in my hands by next Tuesday, which is the 18th day of February, 1986; and I will within 48 hours issue a *978 detailed written order. The order shall include in it, however, the following provisions: First of all, with regard to the psychotropic, well, with regard to the polypharmacy problem, the suggestions made by Dr. Sovner just now shall be incorporated in the order. That is why I had him make them. I take it the lawyers heard what he had to say. The problem in rectifying the situation is as he says. It is a case-by-case basis, and we

don’t have data on the length of time. But some things can be ordered right now.
One of the things the order should contain is that there should not be the prescription of psychotropic drugs in administrative segregation cases. With regard to the issue of seclusion, the order should contain a provision that the State immediately abandon the practice of secluding people in the Riverside facility for 48 hours; and the Court will adopt the suggestion of both physicians who testified, that it must be on a case-by-case basis, and there must be a rational reason to seclude someone immediately upon entry at the Riverside facility or any of the other facilities covered by the decree. The order should also contain a provision with regard to the recommendation of Dr. Sovner that there be no seclusion unless within one hour of seclusion a psychiatrist orders it, to give enough leeway to the Department of Corrections with regard to emergencies.
I don’t know what to tell you, Mr. Wynn, what to do about the monitoring system now for reasons that are it seems to me apparent. The order should contain the suggestion made by Dr. Sovner that there be a computerized effort with the available software to be administered by the psychiatric heads in the corrections system. Unfortunately, that is probably going to take some time, and I don’t know what to do; but I am going to be thinking about it between now and next Tuesday.
With regard to stiffening the audit procedures that are now in effect, I don’t know what to do. That is very frustrating because the system is not working, and it can’t work tomorrow morning, and I want it to work tomorrow morning; and I don’t know how to do it. Let me say some other things that ought to occur. It ought to cover the suggestion made also for the development of broad guidelines, specific guidelines, for prescribing physicians as suggested. Those guidelines ought to be in effect within fifteen days of the date of my order of sometime next week. Among other things, they ought to define the standard of care of physicians prescribing within the affected institutions, including a detailed description of what physicians must do or not do before prescribing additional psychotropic medication or any medications that are psychotropic in nature.
Perhaps, Mr. Wynn, you would think of other things, and I will certainly be anxious to see what you come up with when you do. The Court will ultimately design its own order, but I have to have a place to start somewhere. At this late hour, I don’t know much more that I can do.
ORDER OF FEBRUARY 21, 1986 ESTABLISHING
35

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
SUPPLEMENTARY MENTAL HEALTH CARE REQUIREMENTS
In accordance with the oral opinion rendered at the hearing held on February 13, 1986;
IT IS HEREBY ORDERED that defendants’ Request for Modification of section II.H.4 of the State Plan for Compliance is DENIED;
IT IS FURTHER ORDERED that the Court hereby accepts the Comprehensive Psychiatric Services Plan submitted by defendants on October 9, 1985 as the plan required by section II.H.4 of the State Plan for Compliance;
IT IS FURTHER ORDERED that defendants shall have until March 17, 1986 to submit a modified comprehensive mental health plan to the Court, and that plaintiff and amici shall have until April 18, 1986 to submit comments on such plan;
IT IS FURTHER ORDERED that the Court’s Independent Expert and his associate are authorized to study and to report on any modified plan(s) defendants may propose, and that they are authorized to *979 secure the services of a psychiatrist of their choosing to assist them in such effort. Defendants have agreed to pay the fees and expenses of such psychiatrist, subject to a reasonable limitation to be agreed upon by defendants, the Court, and the Independent Expert. The fees and expenses of the Independent Expert and his associate will be paid in accordance with the Order of Appointment. The Independent Expert’s evaluation will be due on April 18, 1986 also, and defendants, plaintiff, and amici shall have until April 25, 1986 to submit comments on such evaluation;
IT IS FURTHER ORDERED that Plaintiff’s Motion for Enforcement of the Consent Decree and the Stipulation is GRANTED. After considering the evidence presented at the hearing, the Court finds that defendants are failing to meet certain Consent Decree requirements regarding the provision of mental health care to seriously mentally ill inmates in the prison facilities covered by the Decree. Specifically, the Court finds that defendants’ drug prescription practices, including polypharmacy; monitoring of drug induced side effects; use of seclusion and restraint; and practice of housing seriously mentally ill inmates in administrative segregation units violate paragraphs A.5, A.7, and A.9 of the Consent Decree and paragraph II.2. of the Stipulation dated June 21, 1985. Accordingly, the Court orders defendants to take the following steps to ensure compliance with the requirements of the Consent Decree and the Stipulation.

I. Diagnostic Practices, Drug Prescription Practices, and Monitoring of Drug Induced Side Effects
A. Definition of Terms
1. Acute Treatment:
Any time during the course of administration of psychotropic drugs when four or more changes in the dose or type of medication prescribed are made within any 30 day period. Stat doses, prn doses, and the use of pharmacological agents to treat psychotropic drug side effects are to be counted for the purpose of determining whether four or more changes in the dose or type of medication have occurred.
2. Maintenance Treatment:
Any time during the course of administration of psychotropic drugs when less than four changes in the dose or type of medication prescribed are made within any 30 day period. Stat doses, prn doses, and the use of pharmacological agents to treat psychotropic drug side effects are to be counted for the purpose of determining whether fewer than four changes in the dose or type of medication have occurred.
B. Establishment of a Central Drug Monitoring System 1. Defendants shall establish a central, computer-based system to track the prescription of medications and to monitor harmful side effects of such medications. The system shall be fully operational no later than 180 days from the date of this Order. Defendants may develop the system in conjunction with the chronic disease monitoring system presently under development.
2. The central drug monitoring system shall contain a file on each inmate receiving drugs.
3. Each file shall contain the inmate’s name, identification number, and, at a minimum, the following information:
(a) Current medical diagnoses;
(b) Drugs prescribed, by name;
(c) The drug dosage and times per day administered; and
(d) The date when each drug was first administered.
36

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
4. The monitoring system shall be used to monitor daily doses of medication; to *980 prevent unjustified polypharmacy, in particular by identifying any combinations of medications not authorized by appropriate protocols; to ensure that diagnosed mental disorders are treated with appropriate medication; and to schedule ongoing monitoring for harmful side effects.
C. Protocols Within sixty (60) days from the date of this Order, defendants shall submit to the Court, the United States, and amici specific protocols as to the use of all psychotropic medications, including the specific conditions and associated medications for which copharmacy will be permitted, and the limited and specific conditions and associated medications for which polypharmacy will be permitted. The protocols will also include specific requirements relating to monitoring for harmful side effects caused by the medications. Defendants shall consider the following principles in developing these protocols:
—Avoidance or minimal use of polypharmacy, with explicit documentation and review.
—Use of the lowest dosage of anti-psychotic medication necessary for effective treatment.
—Documentation of the clinical gains associated with the initial and continued use of an anti-psychotic medication.
—Documented use of the AIMS or Rockland scales on any patient receiving anti-psychotic medication on at least a quarterly, and preferably monthly, basis.
—Selection of psychotropic drug(s) in accordance with the patient’s psychiatric diagnosis and accepted standards in the medical profession.
—Justification in the record of departures from standard prescription practices.
—Development of a list of approved inter-class polypharmacy regimens and the mental disorders for which the regimens can be prescribed.
—Development of a list of maximum daily drug doses for each psychotropic drug class, and inclusion of stat doses and PRN orders in the maximum daily dose calculations.
The protocols, moreover, shall provide for the following procedures: 1. Establishment of a Diagnosis

Prior to the initiation of any psychotropic drug regimen, a psychiatric diagnosis consistent with the terminology used in the Diagnostic and Statistical Manual of Mental Disorders, 3rd edition, (DSM III), shall be made and the mental disorder to be treated shall be identified.
The diagnosis and the justification for the diagnosis shall be written in the patient’s chart or record; the diagnosis must be updated every three (3) months.
2. Establishment of Objectives
Prior to the initiation of any psychotropic drug regimen, the objectives to be achieved by use of the drugs, i.e., the target signs and symptoms to be treated, shall be listed in the patient’s chart or record. The objectives shall be updated every three (3) months.
3. Pretreatment Medical Evaluation
Prior to the initiation of any psychotropic drug regimen, defendants shall perform a medical evaluation of the patient who is to receive such drugs.
4. Renewal of Drug Orders
(a) Acute Treatment
During acute treatment, as defined in section I.A.1 of this Order, standing psychotropic drug orders must be renewed in writing every seven (7) days.
(b) Maintenance Treatment
During maintenance treatment, as defined in section I.A.2 of this Order, standing psychotropic drug orders must be renewed in writing every two (2) months.
5. PRN Orders
(a) PRN orders for psychotropic drugs must be in writing.
*981 (b) PRN medication cannot be ordered by telephone.
(c) PRN orders must be renewed in writing every 72 hours.
(d) PRN orders cannot be written during maintenance treatment.
37

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
6. Stat Dose Orders
Only one Stat dose of a psychotropic drug for each 24 hour period shall be ordered by telephone.
7. Documentation of Drug Effects
The following documentation shall be maintained in the medical record of each seriously mentally ill inmate receiving psychotropic drugs:
(a) Acute Treatment Documentation
(i) A progress note pertaining to the use of psychotropic drugs shall be written at least every seven (7) days.
(ii) Progress notes shall contain the following information:
(A) Changes in the patient’s target symptoms;
(B) Changes in side effects and their management;
(C) The rationale for any changes in daily drug dose;
(D) The rationale for changing the type of psychotropic drug prescribed;
(iii) A progress note shall be written each time PRN psychotropic drug therapy is ordered.
(b) Maintenance Treatment Documentation
(i) A progress note pertaining to the use of psychotropic drugs shall be written every two (2) months.
(ii) Progress notes shall contain the following information:
(A) Changes in the patient’s target symptoms;
(B) Changes in side effects and their management;
(C) The rationale for any changes in daily drug dose;
(D) The rationale for changing the type of psychotropic drug prescribed.
(iii) A progress note shall be written each time PRN psychotropic drug therapy is ordered.
D. Within sixty (60) days from the date of this Order, defendants shall cease the distribution, by nonmedical staff, of psychotropic medications to inmates housed in segregation units in the subject institutions. On at least one shift per day, medication distribution within segregation units shall be performed by a psychiatric

nurse practitioner.
E. Within thirty (30) days from the date of this Order, defendants shall develop, implement, and submit to the court, the United States, and amici, a procedure by which the prescribing physician will be notified daily of those inmates who fail to receive or decline to receive prescribed medication, except in those cases where the physician explicitly indicates on the prescription that the medication is to be provided “as needed” or upon the inmate’s request. This procedure will apply to all psychotropic medications whether delivered by medical or correctional staff.
F. Within thirty (30) days from the date of this Order, defendants shall require the pharmacies servicing SPSM, MR, MBP, MICP, and RPC to maintain a log of all inmates receiving psychotropic medications. The pharmacy will notify the prescribing physician on any prescription that falls outside of a medication protocol or is a departure from standard prescription practices.
G. Within sixty (60) days from the date of this Order, defendants shall initiate monthly audits of all prescriptions of anti-psychotic medications. The audits shall include a summary review of all anti-psychotic medication prescriptions in effect, to ensure that all dosages and combinations fall within the limitations of the medication protocols. For a more intensive sample consisting of not less than 10% of all instances in which anti-psychotic medications are prescribed as well as all cases in which two anti-psychotic medications are prescribed simultaneously, the audit will assess compliance with the substantive provisions of the applicable medication protocol.
H. The protocols required by section I.C. of this Order and the procedure required by Section I.E. of this Order will be *982 subject to review by the United States in accordance with section K of the Consent Decree. The Court, however, retains the authority to review and to modify on its own motion such protocols and procedures.
II. Seclusion and Restraint A. Defendants shall comply with the requirements of Procedure OP–RPH 42.06, as approved for implementation in 12/85–1/86, entitled “Seclusion as a Therapeutic Intervention in Management of Mentally Ill Patients.” Compliance with this procedure shall also encompass orders requiring restraint and shall include, but not be limited to, the following elements:
—Examination of the inmate by a physician, or by a qualified mental health professional specifically designated by the physician, within one hour after the
38

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
patient has been placed in seclusion or restraint. The physician or other professional must:
a. Examine the inmate;
b. Sign a seclusion or restraint order; and
c. Write a progress note documenting the mental state of the inmate and why the seclusion or restraint is necessary.
—Placement of a seriously mentally ill inmate in seclusion for no longer than six (6) hours unless a physician again examines the inmate, signs a seclusion order, and documents both the mental state of the inmate and why continuing seclusion is necessary.
—Placement of a seriously mentally ill inmate in restraints for no longer than two (2) hours unless a physician again examines the inmate, signs a restraint order, and documents both the mental state of the inmate and why continuing restraint is necessary.
—Examination by a physician every 24 hours thereafter, who will write a new order and justification if continued seclusion or restraint is necessary.
—Observation of the inmate every 15 minutes, or more frequently when needed, and recordation of each such observation.
Defendants shall modify Procedure OP–RPH 42.06 as necessary to satisfy these requirements.
B. Defendants shall issue copies of the above procedure to the United States, the Court, and amici within thirty (30) days of the issuance of this order, and shall notify the United States, the Court, and amici as to any modification of the above procedure. The United States and amici shall then have thirty (30) days to review the above procedure and to present to the Court proposals to correct any deficiencies that may exist in such procedure.
C. Defendants shall initiate monthly audits of all instances of the use of seclusion and restraint for mentally ill inmates or for inmates receiving anti-psychotic medications. The audits will include a summary review of all records of instances of seclusion or restraint for such inmates to determine that appropriate documentation is provided. For a more intensive sample of instances, to include not less than 10% of all instances in which antipsychotic medications are prescribed as well as all cases in which two anti-psychotic medications are prescribed simultaneously, the audit, performed by competent medical authorities, will assess compliance with each element of the above procedure.

D. Within thirty (30) days of the issuance of this Order, the use of seclusion as a therapeutic intervention at SPSM, MR, MPB, and MIPC shall be consistent with the provisions of OP–RPH 42.06 and paragraph II.A. of this Order. This provision does not preclude the use of seclusion at SPSM, MR, MBP, and MIPC as a security or sanitation measure as may be provided for in other procedures. However, seclusion of any inmate who is seriously mentally ill, or for whom psychotropic medication is currently prescribed, must comply with the provisions of OP–RPH 42.06 and paragraph II.A. of this Order.
E. Within seventy-two (72) hours of the issuance of this Order, the Riverside Psychiatric Center will discontinue restrictions associated with the “Diagnostic Room Restriction Status” that have been applied on a general basis to newly admitted inmates. *983 Newly admitted inmates may be assigned to D status as this status relates to the general patient population, but further restriction must be based on a documented need as defined in Procedure OP–RPH 42.06, specifically: a danger to self, a danger to others, a danger of causing substantial property damage, or serious interference with another patient’s treatment. Use of seclusion and restraint must comply with Procedure OP–RPH 42.06 and paragraph II.A. of this Order.
F. Each unit covered by the Consent Decree shall maintain a log of the hours and reason each mentally ill inmate is secluded or restrained. The Chief of Psychiatry at each unit shall examine the logs monthly, prepare a monthly report detailing the hours and the reason each seriously mentally ill inmate was secluded or restrained, and send a copy of the report to the Assistant Director of Health Care, Psychiatry for review.
III. Identification and Treatment of Seriously Mentally Ill Inmates in Segregation Units A. Within sixty (60) days of the issuance of this Order, any inmate assigned to disciplinary or administrative segregation, for whom an anti-psychotic medication has been prescribed, shall be examined by a psychiatrist within seventy-two (72) hours of initial placement on the segregation unit, and shall be examined on a daily basis by a psychiatric nurse practitioner. Following seven days of confinement, such inmate shall be interviewed by a psychologist weekly, and by a psychiatrist not less than monthly. The findings of such interviews shall be documented in the inmate’s medical record.
B. Within thirty (30) days of the issuance of this Order, defendants shall develop and provide to the Court, the United States, and amici, a procedure for the identification and referral for appropriate housing and
39

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
treatment of seriously mentally ill inmates housed in segregation units. The United States and amici shall have thirty days to review the above procedure and to present to the Court proposals to correct any deficiencies that may exist.
MEMORANDUM OPINION AND ORDER OF MARCH 19, 1986 REGARDING AN INDEPENDENT
PSYCHIATRIC REPORT
[25] Plaintiff has filed a document with the Court entitled United States’ Opposition to Enlarging the Authority of the Independent Expert by Authorizing him to Review and Employ a Psychiatrist to Help him Review the Defendants’ Modified Comprehensive Psychiatric Services Plan. The Court finds that its order enlarging the authority of the Independent Expert was in accordance with the Independent Expert’s Order of Appointment, and therefore will reject plaintiff’s opposition to its order on that ground. I find, however, that plaintiff is correct in its contention that the Court should follow the procedure established in Federal Rule of Evidence 706 in authorizing the Independent Expert to employ a psychiatrist to assist him in reviewing defendants’ modified comprehensive mental health services plan.
Section II.2 of the Order of Appointment entered October 1, 1985, allows the Court, notwithstanding the objections of the parties, to order the Independent Expert “to perform such additional duties with respect to this action as it may direct.” Plaintiff now claims that it never agreed to that language, and hence is not bound thereby. Plaintiff’s Memorandum at 2 n. *. The Court simply notes that plaintiff did not object to the terms of the order of appointment at the time it was entered, and has never filed a motion for the Court to modify or to amend such order. It is too late now for plaintiff to raise such an objection.
The Court has found the Independent Expert’s assistance to be indispensable, and believes it is amply justified in continuing to employ his expertise. The volume and detail of the materials on file in this case reflect its scope and complexity. The Independent Expert has assisted the Court considerably in evaluating this material, and the level of defendants’ compliance with the requirements of the Consent Decree *984 and the Stipulation. The Court does not doubt plaintiff’s ability to monitor defendants’ compliance with such requirements. I must, however, have an independent basis for judging whether defendants’ are in compliance with such requirements, and the case law supports the use of an Independent Expert to accomplish that purpose.
Defendants have lodged no objections to the activities of

the Independent Expert, and I believe his work has been significantly less intrusive, and less expensive to the parties, than the actions of monitors in similar complex prison litigation. Moreover, although heavy caseloads and the press of other work are not reasons, by themselves, to appoint Independent Experts and other such assistants to the Court, if the Court did not have the assistance of the Independent Expert in this case it would be forced to devote significantly more time to this case, and hence less time to other, equally important, matters. The alternative would be for the Court to give true meaning to the phrase “blind justice” and attempt to decide matters in this case without full knowledge of the facts. This I refuse to do. I therefore will decline to reconsider my decision to authorize the Independent Expert to review defendants’ modified comprehensive mental health services plan.
The Court also believes that given defendants’ willingness to bear the cost of such expert, it was justified under the Order of Appointment in authorizing the Independent Expert to hire a psychiatrist to assist him in reviewing defendants’ modified plan. As plaintiff argues, however, it would be more appropriate for the Court to follow the procedure established in Federal Rule of Evidence 706(a) in appointing a psychiatric expert to assist the Independent Expert. An order of appointment issued pursuant to Rule 706 would clarify the psychiatric expert’s ability to testify at the May 8th and 9th hearing on defendants’ modified plan. Therefore, the Court will give the parties until March 26, 1986, to show cause why the Court should not adhere to its prior order authorizing the Independent Expert to employ a psychiatric expert to assist him in reviewing defendants’ modified mental health services plan, and accepting defendants’ offer to bear the expense of such expert. The Court will enter an appropriate order at the compliance hearing scheduled for March 27, 1986.
IT IS SO ORDERED.
BENCH OPINION OF MARCH 27, 1986 ALLOWING KNOP AMICUS TO PRESENT
WITNESSES AND APPOINTING AN INDEPENDENT PSYCHIATRIC EXPERT
Good morning. The Court anticipates four pretty full days based upon the materials that the parties have received and based upon the information that the Court has. And to make it go as well as I can, I am going to do two or three or four things this morning as we get started, to try to help everybody with a focus so that we don’t waste any time. The Court never contemplated there would be any hearing on Wednesday, April 2nd, and there will not be, and it appears to me that we will have at least one issue left over
40

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
for Tuesday, April 1st, which may or may not require the whole day. I hope that we can cover the materials in the fashion that I described in the earlier order. What I am going to do first is the following:
There are four, presently four motions in front of me. First, the United States’ objection to the presentation of witnesses by the Knop amicus at the hearing, which has to be decided and I am going to decide it. Secondly, the designation of a psychiatric expert under 706(a). While that may not have to be decided today, I am going to decide it because it needs to be. Third, the State’s motion to amend the mental health order of February 21st, 1986. I am not going to address that at the outset, but I believe that I am going to address part of it before the hearing ends. Fourth and finally, the Hadix motion, renewed motion, to exclude that group from the Consent Decree. I may or may not address that issue at the conclusion of the hearing, but it is not ripe for resolution at this stage of the hearing. Then I think what I am going to *985 do right now is decide two of the motions, and then we will move to something else. And then we will be able to get into the swing of things, I hope. First, the Knop amicus problem.
The United States objects to the Knop amicus being allowed to present two witnesses, one on mental health, and the other on sanitation and hygiene, for essentially four reasons as I understand the pleadings: First, the Knop amicus does not have the authority under paragraph “O” of the consent decree to present witnesses; Secondly, the introduction of witnesses would result in the Knop plaintiffs litigating Knop v. Johnson in this case; Thirdly, the presentation of witnesses would prejudice the United States which has not had an opportunity to depose the Knop witnesses; and, Fourth, the testimony of the Knop witnesses would be cumulative and unnecessary. I will address the last three of the United States’ objections first rather than in seriatim fashion as I just announced them.
[26] Initially, the Court is well aware of the position of the Knop amicus with respect to both its own case of Knop v. Johnson and this case. The two cases involve some overlapping issues, but each case also raises many unique issues. I have decided to allow the Knop amicus to present two witnesses on areas that I believe present substantial problems for compliance by the State under the Consent Decree. The Court has instructed the Knop amicus and the Hadix amicus that they should limit the testimony of their witnesses strictly to the issues presented in the Consent Decree and the stipulation. It is in my opinion not an abuse of the Court’s discretion to allow the presentation of relevant evidence and to seek to gain a full understanding of the compliance issues in this proceeding today, and tomorrow, and Monday and Tuesday.
These efforts, moreover, cannot constitute unfair prejudice to any party. This latter point is particularly true

since the defendant in this action, the party who today bears the burden of establishing that it is complying with the requirements of the Consent Decree and the stipulation, has had a full opportunity to depose and otherwise discover the testimony of the Knop amicus’ proposed witnesses. I cannot see why allowing the Knop amicus to present two witnesses would prejudice the United States. The United States and amici presumably have the same goal of seeing that the defendant, defendants, comply with the requirements of the Consent Decree and the stipulation. At some point, of course, the introduction of testimony becomes burdensome and becomes unduly cumulative. I do not believe that allowing the Knop amicus to present two witnesses would exceed that point, however.
Third, I am well aware of the testimony that the United States intends to present at this hearing. The Court will not hesitate to cut off the testimony of the Knop witnesses, or the Hadix witnesses, if it feels that such testimony is not adding anything to what has already been introduced. By the same token, the Court will listen to testimony that adds to its understanding of the issues.
Finally, the Court believes that paragraph “O” of the Consent Decree grants it the discretionary authority to allow the amici to present witnesses at compliance hearings. Counsel may recall that there was a lengthy discussion at the hearing held on June 22, 1984, concerning the language in paragraph “O”. The Court at that hearing rejected a proposal by the United States that the amici be allowed only to present oral argument and written submissions in regard to the compliance hearing. A fair reading of the transcript of that hearing, particularly the Court’s comments on pages 35 and 36, indicates that the Court intended to retain, and did retain, the discretion to allow the amici to present witnesses at compliance hearings. As the Court notes, amici were not being granted the privileges of litigating amici, such as the right to participate in discovery or, as the Court demonstrated in its decision of August 21, 1985, to file motions. In summary, however, to participate, those two words, that language found in paragraph “O” of the Consent Decree, encompasses *986 the authority with the Court’s permission to present witnesses.
The Court believes, moreover, that allowing the Knop amicus to present two limited witnesses at this hearing is consistent with the traditional status of amicus curiae. See Hoptowit v. Ray, 682 F.2d 1237, especially at 1260, from the Ninth Circuit in 1982, in which the Ninth Circuit held the court did not abuse its discretion in allowing the United States Department of Justice and the United States Attorney to participate as amicus curiae in the lawsuit in which they had the full rights of a party and advocated almost exclusively in the plaintiff’s behalf. The Court does not intend to allow the Knop amicus to participate in
41

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
these proceedings as litigating amici, as I previously held, but as the United States Department of Justice has done in several cases. See Hoptowit, for example; see In re Estelle, 516 F.2d 480, at pages 482–83, Fifth Circuit in 1975; see DeVonish v. Garza, 510 F.Supp. 658, at 658– 59, from the Western District of Texas in 1981. I do not believe, however, that allowing the Knop amicus to present two witnesses transforms them into litigating amici, and I will permit them to do so in this hearing.
I must now address briefly the State’s response to the United States. As the Court understands the State’s argument, the State is arguing that the Court must vacate paragraph “M” of the Consent Decree, which states in part that entry of the decree, quote, “shall not operate to render moot or otherwise to preclude any issues before ... the Western District of Michigan in Knop v. Johnson,” before it can consider the United States’ objection. The State apparently feels that allowing the Knop amicus to present witnesses at this compliance hearing will transform it into a litigating amicus, and that it would then be unfair to allow the Knop amicus to claim the benefit of paragraph “M” of the Consent Decree. Alternatively, the State argues that notwithstanding paragraph “M” of the Consent Decree, allowing the Knop amicus to present witnesses would render them parties to this proceeding, and thus also subject them to the doctrines of collateral estoppel and res judicata in their own case, meaning, of course, the Knop v. Johnson case.
Initially, as I have noted before, I note that I am not extending litigating status to the Knop amicus, and I have no, absolutely no intention of doing so. The Knop amicus cannot participate in discovery and, more importantly, cannot file motions in this litigation. The amicus’ inability to file motions or take other substantive action to enforce the terms of the Consent Decree and the stipulation is by itself sufficient to refute the State’s argument that they have assumed the status of a party or of litigating amicus. Unlike the situation in Montana v. United States, 440 U.S. 147, 99 S.Ct. 970, 59 L.Ed.2d 210, moreover, the Knop amicus clearly are not directing and/or financing the activities of the plaintiff in this action and should not be subject to the estoppel doctrines. Compare Montana at 147–155 in the U.S. volumes, 440 U.S. at 154, 99 S.Ct. at 974, in 1979.
The Court sees no reason to consider whether it should vacate paragraph “M” of the Consent Decree since the activities of the Knop amicus in this action are not inconsistent with the benefits they derive from such paragraph. The role they will play in this proceeding is fully consistent with the status accorded them under paragraph “O” of the decree, and I see no need to modify that paragraph. The Court also does not see how the Knop amicus can now be considered a party to this proceeding, and thus subject to estoppel doctrines, particularly since it

does not have the right to file motions. I, therefore, reject the State’s argument and do not wish to consider further any arguments it has raised in motions filed in the Knop proceeding.
The second issue the Court must deal with this morning before beginning the hearing concerns its decision to appoint an independent psychiatric expert to assist Dr. Benton in reviewing defendants’ proposed modified Comprehensive Mental Health Services Plan.
On March 19, 1986 the Court issued a Memorandum Opinion and Order in which it declined to reconsider its decision to request *987 Dr. Benton to review defendants’ proposed modified plan, and granted, quote, “the parties until March 26, 1986”—yesterday—“to show cause why the Court should not adhere to its prior order authorizing the Independent Expert to employ a psychiatric expert to assist him in reviewing defendants’ modified mental health services plan, and accepting defendants’ offer to bear the expense of such expert.” End of quote. The Court is in receipt of the United States’ objection to its decision to appoint an independent psychiatric expert to assist Dr. Benton. The United States argues that there is no reasonable basis for the Court to appoint an independent psychiatric expert under Federal Rule of Evidence 706(a), and that it therefore would be an abuse of discretion for it to do so. Plaintiff notes that its own psychiatric expert, Dr. Robert Sovner, will review the plan and provide the Court with sufficient information on its adequacy. It concludes accordingly that there is no need to have yet another expert review the plan.
[27] District courts enjoy broad discretion in deciding whether to appoint independent experts under Rule 706. As the Court of Appeals for the Ninth Circuit has stated, “under Rule 706, the court is free to appoint an expert of its own choosing without the consent of either party. .... Appointments under Rule 706 are reviewable only for abuse of discretion.” That quote comes from Students of California School for the Blind v. Honig, 736 F.2d 538. The quote comes from 549, and the decision of the Ninth Circuit was made in 1984. There is a long history of courts employing independent or special experts to assist them in resolving complex issues of law and fact. See, for example, Hart v. Community School Board of Brooklyn, 383 F.Supp. 699, at 762 and 764, from the Eastern District of New York, sitting across in Brooklyn, in 1974, affirmed by the Second Circuit at 512 F.2d 37, in 1975 also.
District courts, of course, do not enjoy unlimited discretion in deciding whether to employ independent experts to assist them in resolving particular cases or issues. I think I can say that as a district court judge, I have not been one to appoint an independent expert just because I was faced with a difficult issue of law or fact.
42

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
The Court believes it is justified in this case, however, in appointing an independent psychiatric expert to assist Dr. Benton. Both parties recognize that the treatment of seriously mentally ill inmates is one of the most, if not the most, difficult compliance issues defendants face. That was evident at the February 13th hearing. Defendants in particular have had difficulty in preparing a comprehensive mental health services plan that is both acceptable to them and acceptable to the Court. I wish to resolve this issue once and for all and to get defendants busy implementing a satisfactory plan.
Dr. Benton and his associate, Mr. Stoughton, have been extremely helpful to the Court. I believe that the assistance of the psychiatric expert Dr. Benton has chosen, Dr. James, will be of equal benefit to the Court. The Court does not doubt in the slightest the competency of the United States’ psychiatric expert. It believes, however, that it would also benefit from independent advice on this issue, and I have no hesitation in appointing Dr. James to provide me with that advice. This appointment, moreover, will not result in considerable expense to the United States as the State has agreed to bear Dr. James’ fees and expenses.
The Court, therefore, pursuant to its authority under Federal Rule of Evidence 706(a), appoints Dr. James Franklin James to assist its Independent Expert, Dr. F. Warren Benton, to review and to report on defendants’ proposed Modified Comprehensive Plan for Mental Health Services. Dr. James shall work under the authority and at the direction of Dr. Benton. He shall be compensated in accordance with the arrangement Dr. Benton and he have made with defendants. The report he shall prepare, in conjunction with Dr. Benton, on defendants’ proposed modified plan shall be due on April 18, 1986, and shall be served on the parties and the amici as well as submitted to the Court on that same day. In accordance with Rule 706(a), moreover, Dr. James will be subject to deposition by *988 any party and shall be available to testify at the hearing on defendants’ proposed modified plan to be held on May 8th and May 9th, 1986. Now then as required by Rule 706(a), I will enter an appropriate order of appointment in accordance with this opinion sometime in the next two or three days.
ORDER OF APRIL 2, 1986 APPOINTING AN INDEPENDENT PSYCHIATRIC EXPERT
In accordance with the oral opinion rendered at the hearing held on March 27, 1986;
IT IS HEREBY ORDERED that pursuant to Federal Rule of Evidence 706(a), Dr. James Franklin James is

appointed as the Court’s independent psychiatric expert to assist Dr. F. Warren Benton, the Court’s previously appointed Independent Expert, to review and to report on defendants’ proposed modified Comprehensive Plan for Mental Health Services;
IT IS FURTHER ORDERED that Dr. James shall work under the authority and at the direction of Dr. Benton;
IT IS FURTHER ORDERED that Dr. James shall be compensated in accordance with the arrangement Dr. Benton and he have made with defendants;
IT IS FURTHER ORDERED that the report Dr. James shall prepare, in conjunction with Dr. Benton, on defendants’ proposed modified plan shall be due on April 18, 1986, and shall be served on the parties and the amici as well as submitted to the Court on that date;
IT IS FURTHER ORDERED that in accordance with Federal Rule of Evidence 706(a), Dr. James will be subject to deposition by any party, and shall be available to testify at the hearing to be held on defendants’ proposed modified plan on May 8th and May 9th, 1986.
MEMORANDUM OPINION AND ORDER OF APRIL 3, 1986, GRANTING DEFENDANTS’
MOTION TO MODIFY IN PART
Defendants have filed a motion pursuant to Rule 60 of the Federal Rules of Civil Procedure requesting the Court to modify and/or clarify certain aspects of the order it entered on February 21, 1986. Plaintiff has responded to this motion. The Court will grant defendants’ motion in part and withhold ruling on it in part in accordance with the following opinion.
The Court notes initially that plaintiff objects to the following of defendants’ proposed modifications, and requests that the Court not deal with such modifications until the May 8th and 9th hearing on defendants’ proposed modified comprehensive mental health services plan when its expert, Dr. Robert Sovner, will be available to testify on defendants’ proposals: (1) defendants’ proposed modification of section I.C.6 of the Order; (2) defendants’ proposed modification of section I.G. of the Order; and (3) defendants’ proposed modifications of section II.A. of the Order concerning the length of time an inmate can be secluded or restrained without being examined by a physician. The Court believes that plaintiff’s request is reasonable, and will withhold ruling on those portions of defendants’ proposal until the May 8th and 9th hearing. The Court also is concerned by defendants’ request that a psychologist or a physician who
43

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

is not a psychiatrist be allowed to conduct the examination section III.A. of the Order requires within seventy-two (72) hours after an inmate for whom an antipsychotic medication has been prescribed has been assigned to disciplinary or administrative segregation. I thus will also withhold ruling on that request until the May 8th and 9th hearing, and request that Dr. Sovner address that issue as well in his testimony at such hearing. Of course, until the Court has ruled on the above proposals, defendants shall continue to abide by the February 21st Order.

The Court will grant defendants’ remaining requests as follows:
1. Defendants request that the Court limit their computerbased system for tracking the prescription of medications to psychotropic medications. The Court believes that defendants’ request is reasonable *989 and hereby modifies section I.B.1 & 2 of the Order to read as follows:
1. Defendants shall establish a central, computer-based system to track the prescription of medications and to monitor harmful side effects of such medications for all patients receiving psychotropic medications. The system shall be fully operational no later than 180 days from the date of this Order. Defendants may develop the system in conjunction with the chronic disease monitoring system presently under development.
2. The central drug monitoring system shall contain a file on each inmate receiving psychotropic medication.
2. Defendants also request that the Court modify the portion of the Order requiring them to maintain logs of inmates receiving psychotropic medications. The Court will modify section I.F. of the Order to read as follows:

F. Within sixty (60) days from the

date of this Order, defendants shall

require the pharmacies servicing

SPSM, MR, MBP, MIPC, and RPC

to maintain a log of all inmates

receiving

psychotropic

medications. The pharmacy will

notify the prescribing physician on

any prescription that a) falls outside

of a medication protocol submitted

pursuant to section I.C. of this

Order, or of any such protocol as

thereafter modified in accordance

with section I.H. of this Order, or

b) is a departure from standard

prescription practices.

3. With regard to defendants’ request for clarification concerning placement of inmates in seclusion or restraint,

it is allowable for “a qualified mental health professional specifically designated by the physician” to conduct the initial examination of an inmate placed in seclusion or restraint. The follow-up examination must be conducted by a physician.
4. Defendants’ next request concerns the monitoring of inmates confined in seclusion or restraint. The Court will modify the third sentence of section II.C. of the Order to read as follows:
For a more intensive sample of instances, to include not less than 10% of all instances in which patients with current prescriptions of anti-psychotic medications have been secluded or restrained as well as all cases in which two antipsychotic medications are prescribed simultaneously, the audit, performed by competent medical authorities, will assess compliance with each element of the above procedure.
IT IS SO ORDERED.
BENCH OPINION OF MAY 9, 1986 GRANTING UNITED STATES’ MOTION FOR RELIEF AND SANCTIONS REGARDING MENTAL HEALTH;
DENYING UNITED STATES’ MOTION TO TERMINATE THE AUTHORITY OF THE INDEPENDENT EXPERT; AND REJECTING PARTIES’ STIPULATION CLARIFYING ISSUES
UNDER THE CONSENT DECREE
[28] The Court is going to render three opinions, and because they aren’t that lengthy, I would ask that those who are here to remain in court until the Court finishes instead of leaving partway through.
One leftover item, it seems tome, and I don’t need to address the lawyers about this—I will simply take the decision myself—what to do about the additional documents supplied by Dr. Ort. The Court has accepted as the record shows, and as the lawyers know, one exhibit from him. It was bound in black and labeled I think Exhibit No. “A.” And then I put on the record as best I could a label for the other documents that, that he furnished to the Court, and left the parties to view those during the lunch hour. I heard informally that the United States had no objection. I didn’t hear about the amici or the State defendants.
44

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
The Court thinks as a result of some decisions that it has been, that it has arrived at—trying not to finish that in a preposition and failed—the Court isn’t going to consider those documents. It is going to thank Dr. Ort for providing them, but they are not going to be terribly helpful to the Court. I do thank him for his *990 testimony. It was helpful in some respects.
I don’t see the point in getting the documents. I know some would not help. I am already bogged down with more paperwork in this case than one can imagine. So that is the end of that problem. Now turning to the sanctions issue, a lot need be said, I guess, and maybe not much need be said. On the one hand, when I started out considering the problems here, I try to remember and do remember the good will expressed throughout this litigation by the Attorney General’s office, through current counsel and previous counsel, and through the same level of good will demonstrated by Ms. Burke throughout this litigation. It is about the only solace that the Court has had in this lengthy, supposedly consented to decree.
Turning my attention to Plan Two, and the issue of sanctions. I think no one is in terrible disagreement in this courtroom about how the Court should view at least for the moment the totality of Plan Two. I will call it Plan Two because I think it is easier for the record. This hearing started off yesterday by making that reference, I think, through Director Brown and through his counsel, and the Court finds it helpful, rather than trying to repeat either the acronyms or the titles of the two plans. While there are a couple of things about Plan Two that the Court ought to and will accept, in reviewing the plan as a totality, the Court has to announce its dissatisfaction with the plan, as I think comes as no surprise. The reasons that the Court believes that Plan Two on its, in its totality is not compliant include but really are not limited to the following observations that I have made during the twoday hearing:
First of all, to me it is unclear, it is unclear whether it supplants Plan One or supplements Plan One depending upon what witnesses testify and what the witnesses’ view is. But it certainly at the very least one can say is unclear. If it is unclear to the witnesses, it must certainly be unclear to the Court, and it is, and it would be impossible of course to try to implement, implement from that point of view. Secondly, if it does supplement, as I have a tendency to suspect it does, it isn’t clear to me what portions of Plan One it supplements. So I am equally in the dark. Neither plan, that is to say Plan One or Plan Two, provides a detailed blueprint for implementation. That is especially clear from Dr. James’ testimony, but it is also fairly clear from Dr. Sovner’s testimony. Dr. Sovner also testified, and the Court did not hear any real rebuttal of it, that Plan Two has no substance, basically

said maybe it was a plan to have a plan or stated broad principles, but no more than that. The United States tends to look at that as a plan to have a manual, but I tend to look at it the way Dr. Sovner did, as a relatively hurried document that is a precursor or a predecessor to a plan.
Fifth (sic), it seems to the Court that the testimony of the Deputy Director of the Bureau of Health Care Services, Dr. Green, and the generous offer of proof by Mr. MacKenize, indicate that the plan as it is before the Court at the minimum needs the 11 recommendations of the expert witness. That is also under advice—there isn’t any dispute about it. In other words, all 11 recommendations of the Independent Expert need at the minimum to be added to Plan Two to make Plan Two of any value. Because the Court realizes that what the lawyers have said today is of course true, that the Court has been waiting forever for a State mental health plan, it is substantially correct that it, the State, missed its deadline once or twice and the Court got it in October, and has, as I think Ms. Alexander pointed out—to the chagrin of the Court—the plan was being submitted, and the Court was asked not to implement it the same day, the same moment. That is extraordinary, and I think it placed the state, the defendants at that moment in contempt of the Consent Decree. And then to make matters worse, of course, in February we had a hearing, the Court gave the State more time until I believe the middle of March, or the 19th of March, some date like that, and another plan came in, and that is unacceptable for the reasons that I have just indicated, and as I said earlier in the hearing, one could imagine that the *991 Court is in a position that it has three choices. At least, I made this observation yesterday.
The three choices were that I accept Plan One, which the amici still want me to accept even though it contains no implementation and is shy in retardation issues, or, or, and I should stay on that subject—and a plan that the State through its Director of the Department of Corrections doesn’t support. That is not a very enviable position for the Court to be in; or I could accept Plan Two, and for the reasons that I have already stated that is impossible; or go on to some third delay, and I don’t intend to do that.
For the reasons that I have just set forth then, the Court upon consideration of the United States’ Motion for Relief and Sanctions, and all pertinent evidence, and arguments presented at the hearing held these two days, May 8th, May 9th, the Court finds that the State of Michigan, the State of Michigan and some State defendants have violated Section II(A)(2) of the Stipulation, the Court’s oral order of February 13th, 1986, and the February 21st, 1986 order.
It is therefore ordered, adjudged, and decreed on this 9th day of May, 1986, that the United States’ motion is granted. The following relief and sanctions are hereby
45

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
ordered:
First, the State is hereby declared to be in contempt of the 1985 Stipulation and the orders of February 13th and February 21st, 1986.
Secondly, the State may purge its contempt by submitting by June 9th, 1986, a detailed supplementary implementation schedule and specification designed to cure the mental health care deficiencies addressed in the Consent Decree and Stipulation.
Third. That the supplementary implementation schedule and specification shall include or be consistent with the following provisions:
A., a statement assuring that the provisions of the plan and schedule and specification shall apply at a minimum to all inmates with serious mental illness.
B., the schedule and specification will include a definition of serious mental illness that comports with the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, or DSM–III.
C., that the supplementary schedule and specification will clearly define the precise steps the State will take to implement the two plans hereinbefore—excuse heretofore submitted to the Court. These provisions must meet or exceed the recommendations in the April, 1986 Report of the Independent Expert, as well as the applicable Consent Decree provisions.
D., the schedule and specification will provide for compliance with the recommendations of the April, 1986 Report of the Independent Expert according to the following schedule:
(1) Population projections, June 9th, 1986;
(2) Epidemiological study, June 15th, 1987. A parenthetical comment about that date. After listening to Mr. MacKenzie, one would be, would want to put that back six months because of the funding problem. Listening to the testimony of Dr. James, however, Dr. James believes an epidemiological study can be completed in six months. Taking the six months year-end time, and the six months testified to by Dr. James, that makes June 15th, 1987 a realistic date.
(3) Aggregate inpatient population by January 1st, 1987;
(4) Inpatient hospitalization by June 9th, 1986;
(5) Comprehensive care capacity, June 15th, 1987;
(6) Protected environment study by June 15th, 1987;

The numbers that I am using come, of course, from the Independent Expert’s April, 1986 Report.
(6–a) PE corrective action by October 15th, 1987;
(7) Developmentally disabled prisoners by June 15th, 1987;
*992 (10), omitting (8) and (9), outpatient services by September 1st, 1986.
End of numbers. The approach and timetable for implementation of recommendations 8, 9, and 11 will be described in the schedule and specification. I pause and depart from the order to call the lawyers’ attention to page 12 of the Independent Expert’s Report of April, 1986, and particularly with regard to the last paragraph which reads, as follows: “Accreditation by the Joint Commission on Accreditation of Hospitals should be considered. While JCAH has traditionally focused upon more traditional medical and psychiatric hospitals, new certification processes have been developed to address the specialized needs of correctional psychiatric facilities.” End quote. The Court has included the language in the order that I have just read because Dr. James has convinced me that given the Court’s scarce, sparse judicial resources that the most comfort the Court could get would be from an accreditation by JCAH.
Dr. James would opine, secondly, that the next best thing the Court could hope to get without having to police its own order would be both a license and an accreditation certification with regard to Mental Health Care services issued by a state of Michigan agency, probably the Department of Mental Health. The Court by listening to the testimony of one of the defendants recalls that at best ten days from now Riverside facility may get a provisional license without the accreditation. The Court, of course, does not order the State of Michigan or any of its defendants necessarily to obtain JCAH accreditation or necessarily to get accreditation from the State of Michigan, but it is what is on the Court’s mind with regard to that part of the order.
Continuing with the order.
E., the schedule and specification would include adequate description of professional and other staff, a multi-year hiring schedule, and a basis, that is to say, ratios or quantitative standards, by which the adequacy of staff can be determined and monitored. Any facility accredited by the Joint Commission on Accreditation of Hospitals is exempt from the provisions of Section 3(e).
F., the defendants will develop by October, 1986 a manual or system of manuals to include all policies,
46

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
procedures, and treatment protocols related to mental health care. All policies, procedures and treatment protocols will be consistent with the Consent Decree, consistent with the state plan, stipulation, and orders of this Court, and will be submitted to the plaintiff and the amici for review.
G., the schedule and specification will include an appropriate organizational structure for mental health services that ensures continuity of care.
H., all schedules, specifications, and other documents developed pursuant to paragraph three of this order will be submitted directly to the Court with copies to the plaintiff and amici. Plaintiff and amici will have two weeks following the submittal to comment on the adequacy and the sufficiency.
The Court will then accept the submittal or order additional changes along with coercive or punitive sanctions as they may become necessary.
The Court is then looking, of course, at a period of two weeks after June 9th, toward the end of June. The Court simply as advice to the State defendants indicates that it currently considers coercive sanctions in an amount up to $10,000 a day.
Fourth. The defendants will conduct an epidemiological study, of course, to determine the prevalence of serious mental illness and associated treatment needs. In selecting an independent professional researcher or research team to conduct that study, and in the subsequent design and conduct of the study the defendants will comply with the following provisions:
A., the defendants will consult with the plaintiff and the amici to order a researcher or research team acceptable to defendants, plaintiff, and amici if possible;
B., if, by July 1st, 1986, no mutually acceptable researcher or research team is identified, the parties will each submit one recommendation to the Court which will *993 designate the researcher or the research team from the submitted list.
If, in the opinion of the Court, all recommended researchers or research teams are roughly equivalent in competence and credibility to the parties, the Court will defer to the recommendation submitted by the defendants.
C., the study is to be completed and submitted to the Court and the plaintiff and the amici as I indicated earlier by June 15, 1987.
D., and lastly, pursuant to the findings of the study, the defendants may submit a request to modify the plan by

July 15, 1987. The Court will determine whether the modification is to be granted and may conduct a hearing on the merits of the modification.
I have just read from a four-page document completed by me last evening, and modified throughout the day today. The Court has entered the order this second. Copies are available for counsel at the conclusion of this hearing. I don’t believe that I brought enough on the bench with me, but the original order I will hand to the clerk. And one copy is here, and there are at least ten copies or twelve copies of that order. Is that right? Five copies of the order. More copies can be available if people want them.
Turning to the United States’ motion to terminate the authority of the independent expert, at the conclusion of the March compliance hearing the United States filed a— and this is the exact name of it—a Motion to Terminate the Authority of the Independent Expert and Withdrawal of Consent to the Independent Expert’s Continued Service. That is the style of the motion. The United States filed the motion pursuant to Section II(2) of the Court’s order of October 2nd, 1985, which provides in pertinent part that, quote, “Upon conclusion of the compliance hearing scheduled for March 7, 1986, either party or amici may petition the Court to terminate the grant of authority to the Independent Expert contained in this order.” end quote. This section goes on to state, quote: “The Court, however, retains the authority to order the Independent Expert, upon conclusion of such hearing and notwithstanding any petition for termination of the Independent Expert’s authority, to perform such additional duties with respect to this action as it may direct or which the parties and amici may petition the Court to, within its discretion, direct, and which are agreeable to the Independent Expert.” That quote, both quotations come from the “Appointment of F. Warren Benton as Independent Expert and Order for Instructions,” Roman number II, paren (2). The Court stated at the end of the compliance hearing, not having received any petition to terminate the Independent Expert’s authority, that it was going to extend the authority of the Independent Expert in accordance with that section. That appears at page 794 of the transcript of the hearing.
[29] The United States, in a well written brief, sets forth three reasons, however, why the Court should not have extended the authority of the Independent Expert, and why it should not terminate that authority: First, it argues that the Independent Expert has completed the task the Court appointed him to accomplish, and that there thus is nothing left for him to do. It notes that the Independent Expert was appointed to study and report on the State’s efforts to comply with the Consent Decree, the Stipulation, and the State Plan for Compliance, and that the parties had envisioned that his authority would
47

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
terminate at the end of the compliance hearing initially scheduled for January and later rescheduled for March, 1986. The Independent Expert accomplished his appointed task, plaintiff argues, when he produced his report and appeared to testify at the compliance hearing.
Second, the United States argues that there is no reasonable basis, as required by Federal Rule of Evidence 706, for the Court to continue the appointment of the Independent Expert. The United States notes that it is fully capable of monitoring defendants’ compliance with the terms of the Consent Decree and the Stipulation, and, as evinced by its actions with regard *994 to mental health, fire safety, and sanitation, safety, and hygiene, is fully committed to protecting the constitutional rights of the inmates at the subject institutions. It accordingly argues that extension of the Independent Expert’s appointment, quote, “is unnecessary, redundant, and unduly costly.” That is from the motion at seven. The United States notes, moreover, that the Consent Decree establishes an elaborate enforcement mechanism that it is committed to following, and has followed, and argues that continuation of the Independent Expert’s appointment would unduly infringe on its role under that mechanism, and would in effect supplant the United States’ efforts.
Finally, the United States argues that continuation of the Independent Expert’s appointment would convert him into a Special Master, and that, as it argued last summer, there simply do not exist the requisite circumstances to justify the appointment of a Special Master. The United States concludes, moreover, that, quote, “the doctrine of sovereign immunity bars recovery from it of any fees or expenses that may be created by the appointment of a compliance monitor or special master.”
The United States’ motion and supporting memorandum caused the Court to pause and to reflect on the role of Dr. Benton, and his associate, Mr. Stoughton, in this litigation. There is some merit to the United States’ arguments. After reflecting about where the Court was last summer, and where it is now, due in large part to the efforts of the Independent Expert, in terms of its understanding of this case and, more importantly, of the level of defendants’ compliance with the requirement of the Consent Decree, the Stipulation, and the State Plan for Compliance, however, I conclude that the Court is fully justified in continuing the appointment of the Independent Expert in accordance with the terms of the October 2, 1985 order of appointment. Because the United States’ arguments do have some merit, I believe they deserve discussion.
With regard to the first argument, the Court disagrees that the Independent Expert has completed the task for which he was appointed. The Court appointed Dr. Benton, quote, “to study and report on the State’s efforts to comply with

the Consent Decree, the State Plan for Compliance, the Stipulation entered August 21, 1985, and other plans and orders entered in this case.” The Court noted that it believed that Dr. Benton’s report would, quote, “provide it with an objective and thorough analysis of the status of the State’s compliance in the subject prison facilities.” No one disputes that Dr. Benton and his associate, Mr. Stoughton, have accomplished this purpose.
As Section II(2) of the Order indicates, however, the Independent Expert’s appointment was not, contrary to what the United States argues, necessarily meant to be a “one-shot” deal. As I noted in my memorandum opinion and order of March 19, 1986, quote, “the plaintiff did not object to the terms of the order of appointment at the time it was entered, and has never filed a motion for the Court to modify or to amend such order,” end quote, and I think it is too late for it to do so now. The Court does, indeed, thanks to the efforts of the Independent Expert, now possess an accurate portrait of the State’s successes and failures in implementing the Decree. The United States’ use of the word portrait is apt, however. A portrait captures a scene or situation as it is at one particular moment in time. It does not, and cannot, indicate what the scene or situation will be like in the future. The Independent Expert’s report has given the Court a portrait of defendants’ present level of compliance with the requirements of the Decree documents. It cannot, however, indicate what defendants’ level of compliance will be in the future.
As I stated in my March 19th opinion, the Court does not doubt plaintiff’s ability to monitor defendants’ compliance efforts. It needs, however, an independent basis for judging defendants’ compliance efforts, and the case law amply supports the use of an independent expert for this purpose. See, for example, Reed v. Cleveland Board of Education, 607 F.2d 737, at 740–41, from the Sixth Circuit in 1979, which court *995 noted that the district court had appointed two experts to assist a special master in implementing a school desegregation plan. Plaintiff admits that, quote, “the original appointment of Dr. Benton to study and report on mixed questions of fact and opinion certainly comports with Federal Rule of Evidence 706(a).” It is apparent that there still exist mixed questions of fact and opinion regarding defendants’ level of compliance with the Decree documents. The Court accordingly does not agree that the Independent Expert has completed the task for which he was appointed. There still is a need for him to study and to report on defendants’ efforts.
The discussion that I have just addressed also speaks, in part, about plaintiff’s second argument. As the Court discussed in its March 19th opinion, it believes that there is a reasonable basis for it to continue Dr. Benton’s appointment. See the order at page two. I believe that the
48

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
United States’ arguments in this regard evince its misconception that the Court should, for the most part, abdicate its responsibilities with regard to the Consent Decree and entrust the United States to determine, one, whether defendants are complying with the terms of the Consent Decree, the Stipulation, and the State Plan for Compliance, and, two, if they are not, whether such noncompliance implicates the constitutional rights of the inmates. I refuse to so abdicate my responsibilities as an Article III judge entrusted to do justice in this, and all other, proceedings.
The United States also argues that it now wishes to embrace, quote, “all of the procedural protections that an appointment under Rule 706 entails.” I believe the United States has received full procedural protection in this matter. Since the Court first broached the idea of appointing a special master in this litigation last summer, the United States has not hesitated to make known its views regarding the appointment by the Court of an independent person, whether called a Special Master, Monitor, or Independent Expert, to report to the Court on defendants’ level of compliance with the requirements of the Decree documents.
Finally, the Court does not believe that extension of Dr. Benton’s authority as an Independent Expert would convert him into a special master or monitor. See Rule 53 of the Federal Rules of Civil Procedure. I note initially that Dr. Benton’s role in this proceeding is a limited one. He clearly is not supplanting the United States’ efforts to enforce the Decree documents. As the United States notes, both it and the amici have continued to employ their own experts to assess defendants’ compliance with the requirements of the Decree documents, and the United States even notes at least one instance in which its expert was more critical of defendants’ efforts than was the Independent Expert. The United States’ role, of course, as the plaintiff, is to examine critically the defendants’ compliance efforts. The Independent Expert’s role, concurrently but not necessarily similarly, is to provide the Court with an independent and informed view of defendants’ compliance efforts. To the extent that the United States’ more critical comments are supported by the evidence, the Court has not hesitated to accept them, and will not hesitate in the future.
Secondly, the Court believes that its use of Dr. Benton in this litigation fits well within the Sixth Circuit’s indications that district courts are to use the least intrusive means possible to monitor a defendant’s compliance with the terms of a consent decree, particularly in a prison setting. See Kendrick v. Bland, 740 F.2d 432, at pages 438–39, from the Sixth Circuit in 1984, where the court noted that courts often appoint monitors in prison cases to enable the monitor to, quote, “oversee compliance with its continuing order”; also see United States v. City of

Parma, 661 F.2d 562, at 578–79, from the Sixth Circuit in 1981. The Court’s use of Dr. Benton does not constitute a significant intrusion on defendants’ affairs, and nor does it constitute a delegation of the Court’s factfinding and interpretive powers.
Finally, the Court believes that a brief comparison of Dr. Benton’s powers and authority with the powers and authority traditionally delegated to a special master *996 conclusively establishes that an extension of Dr. Benton’s authority will not convert him into a monitor or special master, and thus exempt the United States from liability for his fees and expenses. Dr. Benton has been empowered to study and to report on defendants’ compliance efforts. To accomplish that goal, the Court granted Dr. Benton the powers that an expert witness normally possesses, for example, the right to tour the subject institutions; to have access to documents possessed by the parties; to have access to staff members and employees of the Department of Corrections and the Department of Justice; and to conduct interviews with the inmates.
Significantly, however, Dr. Benton and his associate are empowered only to report on mixed questions of fact and opinion, that is to say, to give their professional view, as penologists, of defendants’ efforts to comply with the requirements of the Decree documents. The Independent Expert was not empowered, and will not be so empowered under the terms of the extension of his authority, to conduct hearings or to resolve factual disputes between the parties, both of which traditionally fall within the duties and powers of a special master. See Federal Rule of Civil Procedure 53(c) indicating that a special master has the power to conduct hearings, receive and report evidence, require the production of documents, rule on the admissibility of evidence, and question witnesses under oath; or 53(e) whereby a special master may be required to make findings of fact and conclusions of law; and in non-jury actions the court, quote, “shall accept the master’s findings of fact unless clearly erroneous”; and Reed v. Rhodes, 691 F.2d 266, at 269, from the Sixth Circuit in 1982, noting that a special master is an appointee of the court who acts, quote, “in a quasi-judicial capacity”; and as in Reed on page 741, where the district court empowered the Special Master to evaluate the practicability of defendants’ desegregation plans and to, quote, “conduct such hearings and investigations as he deems necessary to the performance of his duties.” See also Ruiz v. Estelle, 679 F.2d 1115, at 1162, from the Fifth Circuit in 1982, noting that the special master was given quasi-judicial powers, such as being permitted to hold hearings and make findings of fact that the district court would accept unless clearly erroneous. The Independent Expert will continue solely to study and to report on the defendants’ compliance efforts. He shall continue to advise the parties of his findings, to
49

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
be subject to deposition by any party, and to be available to testify at future compliance hearings, all within the purview of Rule 706(a) of the Federal Rules of Evidence.
The Court, therefore, will reject the United States’ motion to terminate the Independent Expert’s authority, and will continue Dr. Benton’s authorization to study and to report on the defendants’ compliance efforts. The Court anticipates that Dr. Benton and his associate will continue to study defendants’ compliance efforts in accordance with the requirements of the Consent Decree, the Stipulation, and the State Plan for Compliance. Dr. Benton also will be studying defendants’ compliance with the State Plan’s requirements regarding the formulation and implementation of various subsidiary plans.
To the extent, of course, that the parties, or either party, wish to have Dr. Benton perform additional duties, such as to act as a factfinder in the sense of a Special Master or to act as a negotiator between the parties, they may apply to the Court for permission to have him assume such responsibilities. At that point, Dr. Benton would not be acting as an Independent Expert under Rule 706 of the Federal Rules of Evidence, and the parties would have to make different arrangements, other than that available under 28 U.S.C. Section 1920, for payment of his fees and expenses.
With regard to Dr. James, the Court will inquire of Dr. James’ willingness and ability to serve in the capacities suggested by the defendants in this case. If he is willing to serve and able to serve in that capacity, the Court will issue an order continuing, or either continuing or appointing him under different authority, as the case may be. The Court will take that up with Dr. James at the first earliest practicable moment. I *997 am now sorry that I permitted him to leave as quickly as I did, but I can make up for that. The Court will enter an order in a day or two denying the United States’ motion to terminate.
The Court turns next to the parties’ stipulation clarifying issues under the Consent Decree. At the conclusion of the March compliance hearing, the Court requested the parties and amici to address, in writing, a number of interpretive issues concerning the Consent Decree and the State Plan for Compliance. That is found between pages 784 and 787 of the transcript, of the compliance hearing in Volume III. In response to a question from defendants’ counsel, the Court indicated that it would consider, but not necessarily accept, a stipulation from the parties concerning such issues.
On April 18th this year, the parties submitted a “Stipulation Clarifying Issues Under the Consent Decree,” and a motion for the Court to enter the stipulation as an order of the Court. As plaintiff explained in its post-hearing brief, the stipulation evinces the

parties’ belief that only two of the interpretive issues the Court raised at the hearing implicate the constitutional rights of the inmates: Number one, quote, “The continued use of inmate workers at the subject facilities to prepare sick call registers and, two, the possibility that windows at the subject facilities are not being repaired promptly.” That is in the plaintiff’s brief at page 17. It is in the Stipulation at pages 2 and 3. With regard to the remaining interpretive issues, the parties basically take the position that the Court’s concerns do not implicate the constitutional rights of the inmates, and, therefore, cannot properly be considered under the Consent Decree. I believe at best that the parties may have misunderstood the Court’s instructions with regard to these questions of interpretation, and believe that it might be useful to delineate the roles of the parties and the Court under the Consent Decree and the State Plan for Compliance.
First, the Court had envisioned and expected that the parties would address and brief how the issues I had raised were handled by either the Consent Decree or the State Plan for Compliance, not whether the issues presented concerns that are enforceable, because they are explicitly mentioned in the Consent Decree. The 60 square foot requirement of Section IV.A of the State Plan presents a good example of this dilemma or situation. The Court had asked the parties to brief a computational question, that is to say, whether each inmate’s 60 square feet should be explicitly marked, whether areas such as day space should be taken into account in determining the 60 square feet, or whether space for compliance with fire safety requirements should be considered. See pages 786 and 787 of the transcript. Instead of addressing this computational issue, the parties simply stipulated that defendants are required only to, quote, “eliminate overcrowding in accordance with the standard articulated by the United States Supreme Court in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59, in 1981,” end quote, and that the Consent Decree does not require the defendants to provide 60 square feet for every inmate.
I believe that the parties’ proposed stipulation on this point reflects a gross misunderstanding of the Consent Decree. Section “H” of the Decree states that, quote, “defendants intend to fully implement the State Plan unless implementation is excused or modified in accordance with the terms of this Decree.” Defendants have reiterated, both at the March compliance hearing and at this hearing, their intention to implement fully the State Plan—in fact, all the time that this litigation has existed.
As the Court interprets the Consent Decree, the defendants are bound to implement the State Plan, including the 60 square foot requirement, unless excused by the Court in accordance with the Decree. The procedure for excusing the State from full compliance
50

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
with the State Plan is well established in Section “J,” which states, as follows, quote: “Defendants shall report to the Court and to the United States any time they intend to modify their plan, and shall advise the Court and the United States, by legal memoranda, whether the *998 modification sought raises constitutional issues. The United States shall respond to such report within 20 days, by legal memoranda, whether it believes such a modification raises constitutional issues.” The next two sentences the Court underscores once, twice, three times: “The Court will then determine whether to conduct a hearing and will in such event determine the modification request. The United States Department of Justice will monitor compliance with the State Plan.” I could read the last two sentences there more than once to underscore them. I need not. The defendants have not asked to be excused from the 60 square foot requirement; and in any event, neither party has supplied the Court with what it would consider to be legal memoranda addressing the issue. Unless and until the Court modifies the State Plan to excuse the defendants from compliance with the 60 square foot requirement, they are bound under Section “H” of the Consent Decree—not just the State Plan for Compliance—to comply with that requirement.
The United States, moreover, is obligated under Section “J” of the Decree, as quoted above, to monitor the State’s compliance with that requirement. A necessary corollary of the obligation to monitor compliance is the obligation to enforce compliance. The United States’ monitoring and enforcement efforts with regard to the State Plan for Compliance as it is integrated into the Consent Decree is even more explicitly established in Section “I” of the Consent Decree, which provides as follows: “Implementation of the various provisions of the State Plan will be adequate to bring defendants into full compliance and thereby satisfy the terms and provisions of this Decree. The Court shall”—underscore the word shall—“be advised as to each failure”—underscore the words each failure—“to comply with the provisions of the State Plan, and, on request of either party or on the Court’s own motion, a hearing may be held as to the constitutional implications of said failure and defendants’ noncompliance. Nothing in this Decree shall be interpreted as requiring defendants to specifically comply with any state law, or any other provision of the State Plan that does not implicate the constitutional rights of the inmates.”
I draw four basic principles from this section of the Decree and from Section “J.” First, defendants must fully and specifically implement the State Plan for Compliance unless the Court explicitly approves a modification of such Plan. Defendants correspondingly must fully and specifically implement all other plans called for by the State Plan unless implementation is excused by the Court in accordance with the Consent Decree. Secondly,

defendants may propose to modify the State Plan, or any subsidiary plan required by it. Defendants and plaintiff must comment on the constitutional issues raised by such a modification request as well as on such other issues as they deem important. The Court, the Court will then determine whether the modification is to be approved, and in so doing, will determine whether the requested modification implicates the constitutional rights of the inmates at the subject institutions.
Thirdly, the Court shall not interpret the Consent Decree to require defendants to comply specifically with state law. The Court, however, has the authority to require defendants to comply with state law, a., when noncompliance with state law implicates the constitutional rights of the inmates at the subject institutions, and, b., when compliance with state law is the most effective remedy for any specific unconstitutional conditions that may exist at the subject facilities. Citing for myself at least Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S. 1, at page 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971), the court there saying, quote: “Once a right and violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Fourth, the United States shall monitor compliance with the State Plan for Compliance, and the subsidiary plans called for by that plan, and shall advise the Court of each and every failure by the State to comply with *999 the provisions of such plans. The parties, at the request of either party or of the Court, shall submit memoranda on the constitutional implications of such failure. The Court will then determine whether the State’s failure to comply with the requirement of the State Plan, or of the subsidiary plan, implicates the constitutional rights of the inmates at the subject institutions.
In accordance with the above understanding of the Consent Decree, and the State Plan for Compliance, the Court rejects the parties’ proposed stipulation, and orders the parties to submit memoranda on the interpretive issues the Court raised at the compliance hearing. The parties shall limit their briefs to the issue of what interpretation of the issues posed is contemplated by the Consent Decree and the State Plan for Compliance. The parties shall seek to clarify, not modify, the Consent Decree and the State Plan for Compliance. To the extent that such clarification is grounded in constitutional issues, the parties shall fully address such issues in their memoranda. The Court will also invite the amici to submit their comments on these interpretive issues. The parties’ and amici’s memoranda on these interpretive issues are due May 23rd, 1986 at 5:00 p.m.
I note that I agree with the parties that the Consent Decree prohibits inmate workers from access to or participation
51

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
in the creation of sick call registers or rosters at the subject facilities, and that it requires defendants to inspect windows at the subject facilities on a continuing basis and to replace promptly broken or missing glass. Due to the means by which the parties proposed these clarifications of the Consent Decree, however, the Court cannot accept them at this time, and, hence, will not adopt them as an order of the Court.
Speaking, I guess, by means of dicta, I have the following observations to make. The Court notes that the United States has vigorously involved itself in the compliance issues involving mental health, hygiene and sanitation, fire safety in the past few weeks, months, and I am pleased by that position that the United States has taken. I hope that the plaintiff monitors the other issues encompassed by the Consent Decree and the State Plan as vigorously as it has monitored these compliance issues involving mental health; and I hope the United States will leave it to the Court as the representative of the Third Branch of the government to decide what the Constitution requires of the defendants.
To the extent that the United States honestly believes that it does not possess the statutory authority under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997, et seq., to monitor and to enforce the defendants’ obligations to comply with the requirements of the State Plan for Compliance as required by the Consent Decree— see, for example, United States’ Post-hearing Brief at pages one through four in which the United States indicates it will force defendants to implement the State Plan only to the extent that it, the United States, believes that noncompliance implicates the constitutional rights of the inmates—the Court is left to speculate and wonder whether it is employing scarce judicial resources on a true case and controversy as required by the Constitution, and if it is not, whether the CRIPA, at least as it is interpreted by the United States, is constitutional itself.
ORDER OF MAY 12, 1986 GRANTING THE UNITED STATES’ MOTION FOR RELIEF AND
SANCTIONS
Upon consideration of the United States’ Motion for Relief and Sanctions and all pertinent evidence presented at the hearing held on May 8–9, 1986, the Court finds that the State of Michigan has violated § II(A)(2) of the Stipulation, the Court’s oral Order of February 13, 1986, and the Order of February 21, 1986.
It is therefore ORDERED, ADJUDGED, and DECREED on this 9 day of May, 1986, that the United States’ Motion is hereby GRANTED. The following relief and

sanctions are hereby ORDERED:
1. That the State is hereby declared to be in CONTEMPT of the 1985 Stipulation and the orders of February 13 and 21, 1986;
2. That the State may purge its contempt by submitting by June 9, 1986, a *1000 detailed supplementary implementation schedule and specification designed to cure the mental health care deficiencies addressed in the Consent Decree and Stipulation;
3. That the supplementary implementation schedule and specification shall include or be consistent with the following provisions:
a) A statement assuring that the provisions of the plans and schedule/specification shall apply, at a minimum, to all inmates with “serious mental illness.”
b) The schedule and specification will include a definition of “serious mental illness that comports with the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM–III).
c) The supplementary schedule and specification will clearly define the precise steps the State will take to implement the two plans heretofore submitted to the Court. These provisions must meet or exceed the recommendations in the April 1986 Report of the Independent Expert, as well as applicable Consent Decree provisions.
d) The schedule and specification will provide for compliance with recommendations of the April 1986 Report of the Independent Expert according to the following schedule:
1. Population projections—June 9, 1986
2. Epidemiological study (final)—June 15, 1987
3. Aggregate inpatient population—January 1, 1987
4. Inpatient hospitalization—June 9, 1986
5. Comprehensive care capacity—June 15, 1987
6. Protected environment study—June 15, 1987
6a. PE corrective action—October 15, 1987
7. Developmentally disabled prisoners—June 15, 1987
10. Outpatient services—September 1, 1986
The approach and timetable for implementation of recommendations 8, 9, and 11 will be described in the
52

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
schedule and specification.
e) The schedule and specification will include adequate description of professional and other staff, a multi-year hiring schedule, and a basis, i.e. ratios or quantitative standards, by which the adequacy of staff can be determined and monitored. Any facility accredited by the Joint Commission on Accreditation of Hospitals is exempt from the provisions of section 3e.
f) Defendants will develop by October 1986, a manual or system of manuals to include all policies, procedures, and treatment protocols related to mental health care. All policies, procedures, and treatment protocols will be consistent with the Consent Decree, State Plan(s), stipulation, and orders of this Court, and will be submitted to the Plaintiff and Amici for review.
g) The schedule and specification will include an appropriate organizational structure for mental health services, that ensures continuity of care.
h) All schedules, specifications, and other documents developed pursuant to paragraph 3 will be submitted directly to the Court, with copies to the Plaintiff and Amici. Plaintiff and Amici will have two weeks following the submittal to comment on adequacy and sufficiency. The Court will then accept the submittal or order additional changes along with coersive or punitive sanctions as may become necessary.
4. Defendants will conduct an epidemiological study to determine the prevalence of serious mental illness and associated treatment needs. In selecting an independent professional researcher or research team to conduct the study, and in the subsequent design and conduct of the study, Defendants will comply with the following provisions:
a) The Defendants will consult with Plaintiff and Amici to identify a researcher or research team acceptable to Defendants, Plaintiff, and Amici.
*1001 b) If, by July 1, 1986, no mutually acceptable researcher or research team is identified, the parties will each submit one recommendation to the Court, which will designate the researcher or research team from the submitted list. If, in the opinion of the Court, all recommended researchers or research teams are roughly equivalent in competence and credibility to the parties, the Court will defer to the recommendation of the Defendants.
c) The study is to be completed and submitted to the Court and the Plaintiff and Amici by June 15, 1987.
d) Pursuant to the findings of the study, Defendants may

submit a request to modify the plan by July 15, 1987. The Court will determine whether the modification is to be granted, and may conduct a hearing on the merits of the modification.
IT IS SO ORDERED.
ORDER OF JUNE 30, 1986 EXTENDING AND REVISING THE INDEPENDENT EXPERT’S
ORDER OF APPOINTMENT
In accordance with the oral opinion rendered at the hearing held on May 9, 1986, and the Order issued on May 13, 1986;
IT IS HEREBY ORDERED that the authority of the Independent Expert, Dr. F. Warren Benton, and of his associate, Mr. Donald Stoughton, is extended in accordance with the terms of the Order of Appointment and Order for Instructions issued October 2, 1985, until further order of the Court, and except as modified as follows:
a. The parties and all amici shall serve the Independent Expert and his associate with copies of any and all documents, such as motions, memoranda, and reports, they file with the Court.
b. Section I, paragraph 3 of the October 2, 1985 Order is modified to read as follows:
3. The Independent Expert shall have access to all pertinent staff members and employees of the DOC and the DOJ. He may engage in both formal and informal conferences with such staff members and employees, including confidential personal or group interviews, and such persons shall cooperate with him fully and shall respond to all reasonable inquiries and requests relating to the State’s compliance efforts. The State shall designate a representative to have the sole responsibility to coordinate tours of the relevant institutions or facilities, to assist in gathering documents, and to provide any additional material or information the Independent Expert may request. Lawyers representing the parties and amici or otherwise associated with this action, or with
53

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
the Hadix and Knop actions, shall not attend tours undertaken by the Independent Expert or otherwise participate in the Independent Expert’s activities, without notice to the parties and permission of the Court. Such lawyers shall not initiate contacts with the Independent Expert except by Order of the Court. The Independent Expert, however, shall not be precluded from contacting such lawyers, either orally or in writing, and the lawyers shall not be precluded from responding to such contacts, provided that the Independent Expert periodically provide a summary of such contacts and responses to the Court, the parties, and the amici.
c. The Independent Expert and his associate are further authorized to study and to report to the Court on defendants’ efforts to formulate and to implement the subsidiary plans mentioned in section K of the Consent Decree. The Independent Expert shall, as appropriate, submit reports on defendants’ efforts with regard to such plans. The parties and amici shall have fifteen days following the submission of such reports in which to file responses to them.
OPINION OF JULY 15, 1986 INTERPRETING CERTAIN PROVISIONS OF THE CONSENT
DECREE AND THE STATE PLAN FOR COMPLIANCE
At the compliance hearing held on April 1, 1986, the Court ordered the parties to address certain interpretive questions concerning the Consent Decree and the State *1002 Plan for Compliance. Transcript of Compliance Hearing, vol. III, at 784–87. On April 18, 1986, the parties submitted a joint stipulation addressing such questions. The Court, for reasons it will not reiterate here, rejected the parties’ stipulation in an oral opinion rendered at the hearing held on May 9, 1986, and ordered them to submit individual memoranda on the interpretive issues. Transcript, Concluding Statements by the Court, Opinions of the Court, at 23–24. The parties submitted such memoranda on May 23, 1986.
Before discussing the specific issues it had asked the parties to address, the Court will respond briefly to plaintiff’s objections to that portion of its May 9th opinion in which it expressed its views on the proper

relationship between the Consent Decree and the State Plan for Compliance. For the most part, plaintiff simply reiterates views it has made known to the Court at previous hearings and in previous briefs and memoranda. I do not believe that I need to repeat everything I said at the May 9th hearing on this topic. I carefully reviewed and considered plaintiff’s arguments, and found nothing to change my views. Pursuant to Paragraph H of the Consent Decree, defendants must implement the State Plan for Compliance “unless implementation is excused [pursuant to paragraph I of the Decree] or modified [pursuant to paragraph J of the Decree].” Pursuant to paragraph J of the Decree, moreover, plaintiff “will monitor compliance with the State Plan”, and, pursuant to paragraph I, it will advise the Court “as to each failure [by defendants] to comply with the provisions of the State Plan.” Defendants may, of course, defend against a charge of non-compliance at a hearing held pursuant to paragraph I on the ground that such non-compliance “does not implicate constitutional rights of inmates”, Consent Decree ¶ I, and they may seek modification of their obligations under the State Plan on the same ground. In either case, though, the Court expects that the parties would submit appropriate memoranda and evidence on the issues. The Court will not address this issue further, except to note that it expects the parties to adhere to its May 9th ruling.
The parties submitted thorough and useful memoranda on the interpretive issues the Court had raised at the April 1st hearing. For lack of a better method, the Court will consider these issues in the order they are discussed in the United States’ memorandum.
I. Medical Care
A. Prompt Medical Care [30] The Court accepts defendants’ interpretation that they “are mandated by the Plan to provide medical care to individuals as soon as reasonably possible, in a manner consistent with security and medical concerns.” Defendants’ Memorandum (“DM”) at 3. The Court does not believe that a separate transportation system for inmates in need of medical treatment is required by either the Plan or the Consent Decree, or that it should place time limitations on the transfer of such inmates to the appropriate facilities. I am concerned, however, that inmates in need of care receive prompt treatment, and remind defendants that a delay in providing treatment may well, in specific cases, constitute deliberate indifference to serious medical needs. I agree with plaintiff, moreover, that although the “Constitution and the Consent Decree do not require that all inmates be treated for all medical problems within a specified period of time ... the question when patients should be afforded
54

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
medical treatment is a medical decision that must be left to the professional judgment of competent medical practitioners.” Plaintiff’s Memorandum (“PM”) at 8. Defendants thus may not allow security or transportation concerns to override a medical determination that a particular inmate is in need of prompt treatment and must be transported to an appropriate facility.
B. Employees That Serve as Both Psychologists and Resident Unit Managers The Court agrees with the parties that neither the Consent Decree nor the State Plan explicitly prohibit defendants from allowing *1003 the psychologist at MIPC to function also as the Resident Unit Manager. The Court is concerned, however, that this psychologist, and other psychologists who also function as Resident Unit Managers, be aware and fully informed of mental health care procedures. In particular, the psychologist should be aware of all protocols concerning the identification and treatment of seriously mentally ill inmates in segregation units.
C. Housing for Suicidal Inmates at the Michigan Reformatory Defendants state that “[n]o prisoner who exhibits a serious threat of suicide or who attempts suicide is left at the Michigan Reformatory.” DM at 3. Defendants, however, apparently use the “suicide observation cell” at the MR while they are evaluating inmates who may be suicidal. See id. at 3–4. The Independent Expert noted in his report that this cell is not separated from the remaining inmate housing and is not subject to continuous observation. The Court accepts defendants’ representation that inmates are referred to the RPC once a medical professional has made a determination that they may commit suicide. It is concerned, however, that inmates may be confined in an inadequate cell pending this determination. The Court thus believes that section II.H.3 of the State Plan requires that any inmate “who exhibits a serious threat of suicide or who attempts suicide”, or whom defendants strongly suspect may commit or attempt to commit suicide, should not be housed in the “suicide observation cell” at the MR for more than twenty-four (24) hours before being examined by an appropriate medical professional. The Court also assumes that defendants will continue to monitor this cell at least once every fifteen (15) minutes.
D. Development and Implementation of Sick Call Plan The Court accepts the parties’ stipulation that “[t]he Consent Decree prohibits inmate workers from access to

or participation in the creation of sick call registers or rosters at the facilities subject to the Consent Decree.”
II. Sanitation, Safety, Hygiene
A. MIOSHA Inspections The Court accepts the parties’ stipulation that the State Plan does not require defendants to comply with MIOSHA regulations. It would be beneficial, however, although not required, if defendants were to keep the Court, plaintiff, and amici informed as to the outcome of their MIOSHA consultations and their ability to implement any recommendations that may arise from them.
B. Annual Inspections The provision of the State Plan at issue here requires defendants to “obtain complete, annual inspections of the subject prisons by qualified non-corrections Building and Constructions Trades Inspectors, qualified noncorrections agricultural inspectors; and appropriate follow-up inspection or re-inspection.” State Plan ¶ I.C. Defendants state that this section was inserted only to acknowledge their desire “to cooperate with the annual inspections that are required under State law”. DM at 5. The United States has no view regarding the proper interpretation of this part of the State Plan. PM at 13–14. The Court does not believe that the State Plan requires state agencies, such as the Department of Labor, to conduct inspections beyond those required by state law. Paragraph I.C., however, apparently means more than what defendants are willing to acknowledge. This paragraph does not state that these annual inspections must be conducted by personnel from the Department of Labor and the Department of Agriculture. The Court thus would request that defendants investigate means for complying with the requirements of this paragraph other than relying solely on inspections performed by state agencies if such inspections will not be performed on an annual basis.
C. Food Service Sanitation Requirements The Court accepts defendants’ understanding that they are required to obtain a *1004 score of “70 or above at all food service facilities at the affected institutions.” DM at 5; see State Plan ¶ I.I.5. I also believe, moreover, that the last sentence of paragraph I.I.5 requires that defendants achieve full compliance on at least each item for which a score of 4 or 5 is indicated on the inspection form.
55

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
D. Inspections for Broken Glass As it indicated at the May 9th hearing, the Court accepts the parties’ stipulation that the Consent Decree and the State Plan require defendants to inspect the windows at the subject facilities on a continuing basis and to replace promptly broken or missing glass.
III. Fire Safety: Storage of Combustibles It appears that defendants are planning to file a motion to modify the section of the State Plan concerning the storage of inmates’ personal property in their cells. The Court thus will not discuss this issue further, except to note that it agrees with the United States that the inmates should not be prohibited from storing reasonable amounts of personal property in their cells.
IV. Overcrowding and Protection from Harm
A. Surveillance of Inmates The Court accepts defendants’ understanding that surveillance may occur on an irregular basis, as long as the requisite number of rounds (24) will occur in any twenty-four (24) hour period. The Court also believes that defendants should apply the caveat that no more than 90 minutes may lapse between rounds to all of the institutions covered by the Consent Decree. The Court does not, of course, indicate at this time any view on whether defendants are actually in compliance with the applicable requirements of the Consent Decree and the State Plan.
B. Food Loaf The Court will defer ruling on the issue of whether defendants may use “food loaf” as an administrative measure for dealing with inmates who throw their food, etc. I would ask that the parties and amici provide the Court with additional information at the next compliance hearing on defendants’ use of food loaf. The Court is particularly interested in knowing how many inmates are served food loaf in lieu of their regular meals; whether the loaf is consumed by the inmates; whether there is any limitation on the length of time an inmate can be served the loaf; and whether any inmates have suffered mental or physical injury from having to eat the loaf.
C. Food Temperature There was some confusion at the compliance hearing concerning the applicable requirements for the storage, transportation, and service of hot foods. All parties agree

that the Food and Drug Administration Food Service Sanitation Ordinance (1976 Recommendations) (“FDA Ordinance”) governs defendants’ actions with regard to this issue. The Court, after reviewing the FDA standards, finds that it must agree with plaintiff that defendants apparently have misinterpreted such standards. Defendants recognize that food which has an internal temperature within the danger zone of 45° F to 140°>> F should not be served. Testimony of Michael J. Kirkwood, T at 572; Affidavit of Michael J. Kirkwood ¶ 6; see also Testimony of George Butler, T at 261. They apparently adopt the position, however, that hot food can be served at a temperature below 140° F provided that such food has not been maintained below this temperature for longer than four (4) hours. See Affidavit of Michael J. Kirkwood ¶¶ 4–9; T at 276 (statement of counsel for defendants).
It is clear, though, that, as Mr. Duel testified at the compliance hearing, the FDA’s four-hour standard applies only to food that is being cooled for refrigeration. See T at 670–71. In such a case, the standards provide that the cooling period, during which the food is cooled from a temperature in excess of 140° F to a temperature of less than 45° F, “shall not exceed 4 hours”. FDA Ordinance § 2–302(b). Section 2–302(b) indicates, moreover, that the *1005 four-hour standard applies to food that is being “rapidly cooled”. It apparently has no application to food that is merely being transported to cellblocks for service to inmates. Sections 2–303(b), which provides that “[p]otentially hazardous food to be transported shall be held at a temperature of 140° F or above”, and 2–501, which provides that “[p]otentially hazardous food shall be kept at an internal temperature of 140° F or above during display and service”, govern the latter kind of food. The Court thus rejects defendants’ argument that they may take up to four hours to serve potentially hazardous hot food whose internal temperature has fallen below 140° F. Defendants should serve such food as soon as possible.
D. Personal Property in Administrative Segregation Based on the parties’ submissions, the Court does not believe there is an issue for it to interpret or to resolve at this time.
E. Adequate Provision of Space The Court accepts defendants’ interpretation that the areas considered in determining compliance with the sixtysquare foot requirement should be limited to the inmates’ sleeping area and should “not include recreational facilities or other areas.” DM at 6. The Court also agrees that defendants are not necessarily required to “mark off that 60 square foot area in some visual manner.”
56

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
V. Access to Courts The Court raised two issues regarding defendants’ law libraries. With respect to the first issue, the parties argue that defendants’ current stock of law books satisfies constitutional minima, but that they will meet periodically to ensure that defendants maintain this standard. The Court has not received any firm evidence that would lead it to disagree with the parties’ general assessment of this situation. As it stated at the compliance hearing, however, the Court does believe that defendants must replace their treatise on habeas corpus law, which was published in 1969. T at 786. It is ridiculous that defendants have a seventeen year old treatise to guide inmates in this crucial area of the law. Use of such a treatise cannot possibly give inmates “meaningful access to the courts”. Consent Decree ¶ E.
With regard to the second issue, the Court considers the six-month survey requirement as marking the maximum length of time defendants can defer identification and replacement of missing and mutilated volumes. I note, moreover, that the last sentence of section V.3 of the State Plan provides that “[a]ll missing or mutilated volumes, however discovered to be missing or mutilated, must be replaced or restored promptly.” Defendants thus are obligated to replace or to restore missing or mutilated volumes whenever they discover them to be missing or mutilated, not just when they identify such volumes during a semi-annual survey.
OPINION OF JULY 15, 1986 GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION
FOR RELIEF FROM ORDER
On March 4, 1986, defendants filed a motion for relief from the Court’s Order of February 21, 1986, regarding various aspects of their mental health care system. On April 3, 1986, the Court issued a memorandum opinion and order in which it granted defendants’ motion in part and withheld ruling on it in part pending the hearing on defendants’ mental health care plan scheduled for May 8th and 9th. At the May 8th and 9th hearing, plaintiff’s mental health expert, Dr. Sovner, testified regarding the portions of defendants’ motion on which the Court had withheld decision. Having listened to Dr. Sovner’s testimony, and having considered the other evidence presented at the hearing, the Court is prepared to rule on the remaining portions of defendants’ March 4th motion.
[31] The first remaining issue is defendants’ request that the Court modify section I.C. 6 of the February 21st Order, which concerns the use of state doses. Specifically,

defendants request that they be allowed to order more than one stat *1006 dose by telephone in a twenty-four hour period. Dr. Sovner testified that defendants’ requested modification did not comport fully with contemporary community standards, and indicated that the State should not provide emergency services by telephone but rather should have twenty-four hour psychiatric coverage of its facilities.
The Court tends to agree with Dr. Sovner that defendants’ request may not comport with contemporary community standards. Concurrently, however, the Court recognizes that defendants may not presently possess the resources to maintain twenty-four hour psychiatric coverage, and that such coverage is not necessarily required by either the Consent Decree or the State Plan for Compliance, which require that defendants provide “[a]ppropriate use and distribution of psychotropic medications, that fully comports with the standards of use and distribution in the medical profession”, Consent Decree § A.7., and “care of serious mental illness [that] meet[s] contemporary professional standards”. State Plan for Compliance § II.H. The Court believes that the following modification of its February 21st Order best accommodates the competing concerns it must consider while granting priority to the rights of the inmates under the Consent Decree and the State Plan.
6. Stat Dose Orders
Only one Stat dose of a psychotropic drug for each 24 hour period shall be ordered by telephone, except that a physician may, in a subsequent telephone consultation, order one additional individual stat dose according to his or her medical judgment, provided that the physician fully documents the necessity and rationale for such order in the inmate’s medical record on the next working day and that he or she promptly reports and justifies the occurrence in writing to the Medical Director of the facility.
Order of February 21, 1986, § I.C.6.
The second remaining issue is defendants’ request that the Court modify section I.G. of the Order, concerning monthly audits of all prescriptions of anti-psychotic medications. The Court shares Dr. Sovner’s concern that a relaxation of this requirement may allow the improper administration of medications to inmates who are treated for only a month or two to escape the attention of the
57

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

auditors. The Court also appreciates defendants’ concern, however, that the audits may unnecessarily consume valuable staff time. I also note, moreover, that Dr. Sovner appears to be concerned primarily with the improper use of polypharmacy. The Court therefore will amend section I.G. of the Order to read as follows:

G. Within sixty (60) days from the

date of this Order, defendants shall

initiate monthly audits of all

prescriptions of anti-psychotic

medications. The audits shall

include a summary review of all

anti-psychotic

medication

prescriptions in effect, to ensure

that all dosages and combinations

fall within the limitations of the

medication protocols. For a more

intensive sample consisting of not

less than 10% of all instances in

which anti-psychotic medications

are prescribed, defendants shall

conduct quarterly audits to assess

compliance with the substantive

provisions of the applicable

medication protocols. In all cases in

which two anti-psychotic

medications are prescribed

simultaneously, defendants shall

conduct such intensive audits on a

monthly basis.

Order of February 21, 1986, § I.G.

The third leftover issue concerns defendants’ request that the Court modify section II.A. of the Order, concerning the length of time an inmate can be secluded or restrained without being examined by a physician. Defendants’ primary concern seems to be that the February 21st Order places limitations on their use of seclusion and restraint that are more stringent than those contained in the State Mental Health Code or their own policies. As Dr. Sovner noted at the hearing, however, the State Mental Health Code does not necessarily reflect contemporary community standards. More importantly, however, he also noted that one needs to examine the history of the system, and testified that in his opinion modification of the Order in this area may well invite further abuse by inducing *1007 a feeling that it is all right to resume “business as usual”.

In light of plaintiff’s essentially uncontradicted testimony, which it presented at both the February 13th hearing and the May 8th and 9th hearing, concerning the problems associated with defendants’ use of seclusion and restraint, the Court finds no basis for granting defendants’

requested modification at this time. I thus will decline to modify section II.A.’s requirements concerning defendants’ use of seclusion and restraint, and will order defendants to modify their policies to reflect such requirements. After April 1, 1987, however, defendants may again request the Court to modify those requirements. Defendants must, of course, support any such request with appropriate evidence of their success at correcting the abuses that plaintiff has identified.
The final issue the Court must resolve concerns defendants’ request that it modify section III.A. of the Order to allow a psychologist or a physician who is not a psychiatrist to conduct the examination required within seventy-two hours after an inmate for whom an antipsychotic medication has been prescribed has been assigned to disciplinary or administrative segregation. The Court is troubled by the prospect of potentially unqualified personnel conducting this examination. I believe that Dr. Sovner suggested a reasonable solution to defendants’ concerns, however, when he testified that he would be comfortable with a person from any of the following three groups of persons conducting this examination: (1) psychiatrists; (2) Ph.D.-level clinical psychologists; or (3) psychiatric nurse practitioners who have had a one to two year internship in a psychiatric facility. The Court therefore will modify section III.A. of the Order to allow a person from any one of the above three groups to conduct this examination.
OPINION OF JULY 22, 1986 REGARDING MARCH 1986 COMPLIANCE HEARING
Introduction
[32] On March 27, 1986, through April 1, 1986, the Court held its first compliance hearing in this case to evaluate defendants’ efforts to comply with the requirements of the Consent Decree and State Plan for Compliance entered July 16, 1984, and the Stipulation entered June 21, 1985, as approved August 21, 1985. These requirements are intended to ensure the constitutionality of the conditions under which persons are confined at four Michigan institutions: the State Prison for Southern Michigan (SPSM); the Michigan Reformatory (MR); the Marquette Branch Prison (MBP); and the Michigan Intensive Programming Center (MIPC). To assist it in evaluating defendants’ compliance efforts, the Court appointed an Independent Expert on October 2, 1985, and instructed him to study and to report to it, and to the parties and the amici, on such efforts. The Independent Expert submitted his report to the Court, the parties, and the amici on
58

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
February 11, 1986, and the parties and the amici were given an adequate opportunity to comment on such report. The report represented a comprehensive survey of defendants’ compliance efforts in each of the five major areas of concern: Medical Care; Sanitation, Safety and Hygiene; Fire Safety; Overcrowding and Protection from Harm; and Access to Courts. At the compliance hearing, the Court heard further evidence from the parties and the amici on defendants’ compliance efforts. The following opinion, and the accompanying order, are based on the Independent Expert’s findings and conclusions and on the evidence the Court heard at the compliance hearing. As the parties and the amici are aware, the issue of mental health has been effectively segregated from the other compliance areas, and thus will not be covered in this opinion and order.
On March 26, 1986, the United States filed a motion for an order enforcing certain aspects of the Consent Decree and the Stipulation. In particular, the United States was concerned that defendants were not in compliance with paragraphs B.6., C.1., and C.2. of the Consent Decree, and paragraphs II.b.3(4), II.C.3., and II.C.4. of the Stipulation, and requested that the *1008 Court take appropriate action to ensure compliance. The United States’ particular areas of concern involved fire safety and sanitation, safety, and hygiene. The Independent Expert’s report and the evidence presented at the compliance hearing demonstrated, however, that the State is also experiencing compliance problems in the other three areas of concern and that there are problems in the areas of fire safety and sanitation, safety, and hygiene in addition to those the United States discussed in its March 26th motion. Therefore, although the Court is particularly concerned about the areas the United States discussed in its motion for enforcement, it believes that the other areas also deserve its attention. As discussed below, there are significant areas of noncompliance that defendants must address in accordance with this Opinion and its accompanying Order. The Court will discuss those areas in this Opinion. The accompanying Order will list the steps defendants must take to remedy their noncompliance.
The Court also finds that as defendants argue, there has been substantial compliance with the requirements of the Consent Decree, the State Plan for Compliance, and the Stipulation. I also do not believe that I currently have a substantial basis for finding that defendants are not engaged in a good faith effort to comply completely with such requirements. The Court thus will decline, for the moment, to consider whether it should issue an order requiring defendants to show cause why they should not be held in civil contempt of court for failing to comply with all the requirements that are presently due. Defendants should be prepared, however, to show significant improvement in the areas of noncompliance at

the next compliance hearing.
The Court will first discuss its findings on fire safety. I will then discuss sanitation, safety, and hygiene; medical care; access to courts; and overcrowding and protection from harm. Due to the volume of paper that this case has already generated, and the parties and amici’s familiarity with the applicable requirements and the evidence, this discussion will be somewhat summary.
I. Fire Safety In many respects, this area presents the most troublesome problems of noncompliance. The Court finds that there are nine areas in which defendants are experiencing significant compliance problems. As the discussion indicates, the degree of significance varies, and in many areas defendants need only provide the Court with a status report on when they will achieve compliance. There are, however, several, more crucial, areas in fire safety in which compliance is due this month, July, 1986, and yet defendants do not expect to be in compliance. The Court received some idea at the hearing of when it might expect defendants to be in compliance in those areas. It needs, however, a more detailed schedule of when defendants will be in compliance, and an explanation of why they did not achieve compliance by the designated date. I note that attachment b of the Compliance Report Outline defendants submitted to the court on June 30, 1986, contains a memorandum from George Walter to Luella Burke concerning expected completion dates for many of these areas. The Court would ask that defendants provide another such progress report on October 1, 1986. Given the serious danger that fire poses in the prison setting, the Court expects defendants to make these requirements one of their top priorities.
A. Storage of Combustibles Testimony at the hearing revealed this to be the most significant area of noncompliance. The Court has little difficulty in finding that defendants are not in compliance with paragraph B.6. of the Consent Decree, which requires them to “[p]rovide for immediate proper storage or removal of combustible materials.” The June 21, 1985 Stipulation gave defendants until that date (June 21, 1985) to document their full compliance with such requirement, Stipulation, ¶ II.B.4., even though compliance was originally due August 21, 1984. The Independent Expert noted that although many institutions have proper areas for the storage of combustibles, defendants frequently fail *1009 to use such areas. He also noted problems with inmate personal property in their cells; material draped over the bars of the cells; the lack of suitable trash containers at MBP inside and trusty; and the lack of
59

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
proper storage areas in certain places.
Plaintiff’s fire safety expert, Mr. Copeland, more explicitly discussed these problems. He noted that defendants frequently fail to store combustibles properly, even when appropriate areas are available, Transcript (“T”) at 290–91, and that there are excessive amounts of combustibles on the cells bars. T at 299. He also stated that in cellblock 5 at SPSM, defendants store laundry carts, which naturally are often full of clothes, in dangerous proximity to the living areas. T at 296–97; pls. exs. 1 & 3. Mr. Copeland in addition stated that the compressed gas cylinders in the hospital at SPSM are stored improperly, T at 299, and that individual cellblocks often are used for temporary storage of combustibles. T at 333. He gave his opinion that the improper storage of combustibles creates an unreasonable risk of harm to the inmates. T at 290, 291 & 298. Other testimony also supported Mr. Copeland’s observations. T at 120–22 (testimony of Mr. Grossman).
Defendants, on their cross-examination of Mr. Copeland, were able to deflect somewhat the significance of his testimony. Individual defendants testified, moreover, that they are attempting to remedy the problems Mr. Copeland had identified. See, e.g., T at 365–67 (testimony of Warden Foltz). The improper storage of combustibles, however, particularly within the inmates’ living areas, is a significant problem.
B. Equipment Maintenance The Independent Expert noted in his report that defendants are experiencing difficulty in complying with paragraphs B.3. of the Consent Decree and III.H.4. of the State Plan. Testimony at the hearing indicated that defendants believe that they are in compliance with these paragraphs. T at 461–63 (testimony of Mr. Bristol); T at 479 (testimony of Mr. Walter). The Court merely notes that this may be a problem area, and requests that defendants clarify the status of this requirement.
C. Water Flow and Automatic Alarms The Independent Expert’s report indicates that defendants are experiencing major difficulties in this area. As with the immediately preceding area, however, the Court is not sure whether defendants are presently in compliance with this requirement. The Independent Expert noted that each of the three major complexes at SPSM was experiencing major deficiencies. It appears from defendants’ June 1986 compliance report that they are still experiencing problems. The Court therefore will order defendants to provide appropriate documentation of their efforts to comply with this requirement.

D. Replacement of Nonconforming Tiles and Panels Defendants do not dispute that they are not in compliance with this requirement. Mr. Hinds testified at the hearing that a contract had been let at Marquette, and that work should be completed by July, 1986. Mr. Walter testified, apparently with respect to the remaining institutions, that compliance would not occur for another six to nine months. The Court therefore will order defendants to provide appropriate documentation of their efforts to comply with this requirement.
E. Absence of a Fire Safety Office at the MR With regard to this aspect of noncompliance, the Court will order defendants to report on their efforts to fill this position, or when the position was filled if it has been already. They also should report on the qualifications of whomever is or has been selected for the position. Finally, defendants should report on their efforts, if any, to cover this vacancy.
F. Lack of Monthly Inspections at SPSM Mr. Bristol testified at the hearing that defendants would start conducting monthly fire safety inspections at SPSM, as required *1010 by section III.J. of the State Plan, as of June 1, 1986. T at 465–66. Defendants are to report to the Court on whether they are conducting monthly inspections at SPSM and, if they are not, when they expect to start doing so.
G. Lack of Fire Extinguishing Systems on Kitchen Hoods at SPSM and the Magnum Farm Defendants should state whether they have installed the chemical extinguishing systems required by section III.B.3. of the State Plan at the Magnum Farm. With regard to SPSM, defendants shall report on the status of their conversion to the “quick-chill” food preparation system.
H. No Adequate Fire Safety Operations Plan The Court expressed concern at the hearing regarding defendants’ Fire Safety Operations Plan. In the Order dated May 14, 1986, the Court accepted the United States’ limited waiver of rights with regard to its consultant’s report on such plan. I thus will not discuss this issue further, and expect that defendants will modify their plan in accordance with the concerns the Court
60

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
expressed at the compliance hearing. T at 399–417 & 500–05.
I. Removal of Combustible Materials from Cellblock Areas The Independent Expert’s report indicates that the subject facilities are in varying degrees of compliance, or noncompliance, on this requirement, and that it is unclear when defendants will be in compliance at all of the facilities. The Court therefore will order defendants to report on their compliance status, and when they expect to be in full compliance. Exhibit 13b to defendants’ June, 1986 compliance report on the Central Complex indicates that they will be in compliance as of January 31, 1987. The Court will order defendants to report by October 1, 1986, on whether they will meet this deadline.
II. Sanitation, Safety, and Hygiene Sanitation, Safety, and Hygiene appears to be the second most troublesome area in terms of noncompliance. Specifically, the Independent Expert’s report and the evidence presented at the compliance hearing identified five areas in which defendants are experiencing significant compliance difficulty.
A. Housekeeping Practices Paragraph C.1. of the Consent Decree requires defendants to establish, maintain, and implement “[h]ousekeeping systems, to be operated and managed by qualified staff with designated responsibilities, to prevent filth, vermin and rodent infestation.” Attached to the State Plan for Compliance are sanitation plans defendants developed to satisfy this requirement of the Consent Decree. Defendants state that “[a]ll required sanitation systems and plans are in place” and that “[c]leaning supplies and materials are readily available.” Memorandum Regarding Consent Decree Sanitation Requirements at 2. These statements may well be true. As the Independent Expert’s report and testimony at the compliance hearing revealed, however, the problem is that the facilities are not being kept clean.
Specifically, plaintiff’s expert, Mr. Butler, testified that the filth in 5–Block at SPSM was such that he has seen “cleaner zoos.” T at 266. He noted in particular the presence of many birds in the area, T at 269, and opined that the risk of harm posed to inmates as a result of the filth and vermin infestation was “very serious.” T at 281. Messrs. Kirkwood and Vogel testified regarding their efforts to ensure that the cellblocks are maintained in a clean condition, and Warden Bergman testified about his

efforts to keep MIPC clean. E.g., T at 571 & 347–48. It nevertheless is clear that at least some of the institutions, in particular SPSM 5–block and MIPC, are experiencing difficulty in this area.
B. Food Service Sanitation Paragraph C.2. of the Consent Decree requires defendants to establish, maintain, and implement “[s]ystems to ensure safe *1011 and sanitary food service.” Defendants’ noncompliance with this requirement presents troubling issues. These issues break down into two major areas: (1) the presence of vermin, etc. in the food service areas; and (2) the service of food at unsafe temperatures.
Mr. Butler testified that the commissary at the Southern Complex, SPSM, definitely was suffering from a rodent infestation. T at 267. He also noted that in the Central Complex, garbage was improperly maintained near the food service area, T at 267–68, and stated that the application of rodenticides and pesticides would not, by themselves, cure the infestation problem. T at 272. Amici’s expert, Mr. Duel, supported Mr. Butler’s findings. T at 672–74, 676 & 736–37. Mr. McClellan testified that the introduction of the quick-chill food processing method may alleviate some of these problems, since the Central Complex kitchen would no longer be used to prepare most foods. T at 553 & 556–57. Mr. McClain testified regarding recent vermin control efforts at SPSM, T at 559–60, and stated that in his last inspection of the Central Complex, he did not find any rodents or vermin in the food service area. T at 566.
Mr. Kirkwood testified that there presently is not a vermin infestation problem at MBP. T at 571. He did state, however, that the kitchen floor and ceiling must be replaced as they can no longer be cleaned properly. T at 576–78. Finally, Mr. Vogel testified that he was taking steps to cure the vermin problem he had been experiencing at the Michigan Reformatory. T at 588–89. From this testimony, the Court finds that there is strong evidence of noncompliance by defendants in terms of food service sanitation, but that defendants are taking steps to cure the problems.
The second problem area concerns the temperature at which defendants serve hot food. Testimony at the hearing clearly established that at least some hot food is served below the safe temperature of 140° F. See T at 261 & 275 (testimony of Mr. Butler); T at 565–66 (testimony of Mr. McClain); T at 570 (testimony of Mr. Kirkwood); & T at 587 (testimony of Mr. Vogel). There was vigorous disagreement, however, over whether this occurrence constituted a risk of harm to the inmates. After reviewing the testimony, the Court finds that the weight of the authority lies in plaintiff’s favor on this issue.
61

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Mr. Butler testified that maintaining food in the 98° F to 100° F temperature range promotes bacterial growth, T at 281–82, and stated that bacteria in hot food maintained at a temperature of less than 140° F would double every fifteen to twenty minutes. T at 276. Mr. Duel similarly testified that bacteria in food maintained at a temperature below 140° F would go “through a stage of growth every 20 minutes.” T at 670. As the Court explained in its opinion regarding the interpretive issues, moreover, it credits Mr. Duel’s testimony that the “four-hour” rule applies to refrigeration, not serving, time, and finds that defendant’s understanding of the rule is erroneous. See T at 670–71. Given a proper understanding of the temperature at which hot food must be served to avoid the danger of bacterial growth, Mr. McClain’s testimony that it has been taking up to two hours to serve inmates at the Central Complex (T at 560–61) and Mr. Butler’s testimony that food often is stacked awaiting an inmate’s return to his cell (T at 265–66) indicate that inmates may indeed be subject to a significant risk of harm. The Court thus considers it crucial that defendants devise faster methods of serving inmates, and purchase equipment, such as serving trays, that insulate the food better.
C. Pipe Chases, Sewer Lines, and Ports In his report, the Independent Expert noted instances where the defendants had failed to “maintain pipe chases free of all standing water and filth; maintain, as properly closed, all sewer lines; and maintain, with proper plumbing fixtures, all clean-out ports” as required by paragraph I.I.2 of the State Plan. See also C.D. ¶ C.3. Mr. Butler testified that he had noticed several broken or disconnected vent pipes at the MR, T at 263, and Mr. Duel testified *1012 that he had noted unclean pipe chases at the MR. T at 660–61; see also Amici ex. 1. Witnesses for defendants admitted that they were experiencing some difficulty in keeping the pipe chases clean, see T at 568 (testimony of Mr. Kirkwood), but stated that they were correcting the problems. Mr. Kirkwood also testified that there was a cross-connection problem in the kitchen at Marquette, T at 571, but noted that funding had been requested to resolve the problem. T at 576. Many of defendants’ problems in this area, moreover, can be traced to antiquated plumbing that is supposed to be replaced soon. Thus, although the Court finds that defendants are not in full compliance in this area, it is hopeful that this situation will not last long. It will require defendants, however, to maintain a vigorous program of keeping the pipe chases clean and ensuring that all sewer lines are properly closed.
D. Broken Windows

This is a serious problem that defendants must remedy immediately. Defendants acknowledge that they are obligated to repair or to replace broken windows immediately. Compare Amici’s Proposed Order, attachment A. Mr. Butler testified that the presence of the broken windows allows birds and other vermin easy access to the facilities. T at 269 & 274. The Court thus will enjoin defendants to maintain a vigorous repair and/or replacement policy in this area. If such a policy is ineffective in keeping birds and other animals out of the facilities, particularly SPSM 5–Block, the Court will consider requiring defendants to screen problem areas.
E. Training Programs It appears from the Independent Expert’s report and testimony at the hearing that defendants are having difficult ensuring that the appropriate employees receive sanitation training. Report at 47 & 52; see T at 568 (testimony of Mr. Kirkwood) (indicating that training programs for assistant food service directors and food service directors are not yet underway); T at 579 (testimony of Mr. Kirkwood) (indicating that the food service training program for inmates also is not operational); T at 610 & 612 (testimony of Mr. Johnson) (indicating that only 50% of the appropriate personnel at Jackson have received sanitation training). Defendants indicate in their most recent compliance report that they still have achieved only partial compliance in this area. The Court expects, at a minimum, that defendants will complete the appropriate training by the end of this year.
III. Medical Care As the Court stated earlier, one of the key problem areas in the medical care field, mental health, has been and will be dealt with in separate hearings and opinions and orders. With regard to other medical care issues, Dr. Green, Dr. Faiver, and Mr. McMillan presented testimony at the hearing. The Court also notes that it heard testimony from amici’s expert, Dr. Rundle, on various aspects of defendants’ provision of mental health care. The Court will not deal specifically with mental health care in this opinion. It believes, however, that Dr. Rundle presented some valuable testimony, particularly with regard to the provision of mental health care at SPSM, RPC, and MIPC, that it will consider when it deals with defendants’ mental health care plan. The Court is particularly concerned about Dr. Rundle’s conclusions regarding the provision, or lack, of mental health care at MIPC. See T at 443.
With regard to other areas of medical care, the Court finds that there are two areas of concern it should cover at this time: (1) defendants’ training programs; and (2)
62

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
defendants’ staffing levels at the SPSM hospital. I will also note that I considered carefully the suggestions listed on pages ten through thirteen of the amici’s proposed order. The Court does not believe that there is a sufficiently substantial basis at this time for it to adopt such suggestions. The parties should be on notice, however, that I consider the problems amici discuss to be serious and expect them to take appropriate steps to resolve any problems that may exist. The Court is particularly concerned that inmates in need *1013 of emergency medical care receive it; that inmates are not involved in the provision of medical care; that inmates at MIPC and MBP receive adequate mental health care; and that inmates with serious chronic diseases receive appropriate follow-up care.
With regard to defendants’ training programs, the Court notes first that the Independent Expert found that many correctional officers still are not properly distributing medications. See also T at 618 (testimony of Mr. McMillan). The Court does not believe it would be appropriate at this time for it to order that only health care personnel distribute medication. I expect, however, that defendants will act promptly to correct this situation, and I will order appropriate compliance measures. I also expect that all non-medical personnel will receive adequate emergency training. See State Plan ¶ II.I.1.
The Court’s second area of concern is staffing at the new SPSM hospital. Dr. Faiver testified about defendants’ staffing plans at the hearing. T at 631–38. Dr. Green testified that she would like to have twenty-four hour physician coverage at the new hospital. T at 535. It is the Court’s understanding that plaintiff will evaluate the adequacy of defendants’ staffing plan once it is complete. I accordingly will not make any findings concerning staffing at this time, and will merely note my concern that the hospital is adequately staffed.
IV. Access to Courts This area was ignored at the compliance hearing. As amici indicate, however, the Independent Expert found three areas of noncompliance that deserve discussion. The first concerns the situation at the MR, where defendants, despite diligent efforts, have been unable to maintain adequate staffing. As a result, the law library is, or at least was, not open a sufficient number of hours during the evening to meet the requirement of paragraph V.1 of the State Plan. Defendants’ latest compliance report indicates that they are now in compliance with this requirement in the MR–inside. The Court thus would request that defendants clarify the status of their compliance at the MR.
The second area concerns the mini-law library at MBP,

C–Block. The Independent Expert indicated in his report that defendants have plans to develop such a library, but have not yet done so. Defendants indicate in their latest compliance report that they are in compliance on this requirement at MBP. The Court would ask that defendants inform it whether there is a mini-law library at MBP, C–Block.
The final compliance issue in this area concerns the fact that certain of the books in the law libraries may be outof-date. The Court discussed this issue in its separate opinion on the interpretive issues. I thus will not discuss it further here, other than to note that I interpret defendants’ obligation to update each publication “promptly as revised editions, pocket parts, or advance sheets become available” to encompass an obligation to purchase new publications in particular areas if it becomes no longer possible to update the present ones.
V. Overcrowding and Protection from Harm There are seven issues the Court will address in this area.
A. Plan to Decrease Overcrowding The Court accepts defendants’ plan, as outlined in the April 29, 1986 memorandum from William L. Kime to Robert Brown, Jr., to reduce overcrowding at the decree institutions by January 1, 1987, and to end inappropriate security classification placements by 1989. The Court will request defendants to supply it, plaintiff, and amici with tri-monthly updates on their progress in meeting their goals. I will also request that the Independent Expert keep the Court informed on defendants’ progress in this regard. The parties and amici shall have an appropriate opportunity to comment on any reports the Independent Expert may submit.
The Court, in addition, would be remiss if it did not recognize defendants’ commitment *1014 to maintaining single-celling at the subject institutions.
B. Conversion of MIPC The Court also accepts defendants’ plan to convert MIPC to a maximum security protective custody unit. See April 29, 1986 memorandum from Dan Bolden to Robert Brown, Jr. The Court requests that defendants keep it, plaintiff, and amici informed on their progress in this regard. The Court will also request defendants to continue to inform it, plaintiff, and amici on their plans for the old infirmary at SPSM, and the effect of such plans on the operation of 5–Block at SPSM.
63

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
C. Surveillance of Inmates Paragraph D.2 of the Consent Decree requires defendants to “[e]nsure adequate guard surveillance of inmates.” As it discussed in its opinion on the interpretive issues, the Court accepts defendants’ interpretation of the surveillance requirement. It is clear from the Independent Expert’s report and testimony at the compliance hearing, however, that surveillance is not always conducted properly. See Report at 80–81; T at 120–21 & 138–40; see also attachments to amici’s Memorandum in Support of Proposed Supplemental Order (concerning a suicide at MBP and a homicide at RCF). It appears that defendants’ problems in this area are two-fold. First, defendants do not always have sufficient staff to conduct the requisite number of rounds. Second, the staffs view of the cell often is blocked by towels and other items. The Court will enter an appropriate order to ensure compliance with the surveillance requirement.
D. Segregated Housing Paragraph D.3 of the Consent Decree requires defendants to “[d]evelop and implement rules and procedures governing use of segregation housing units.” In the Stipulation, moreover, defendants agreed to take additional measures to ensure that protective custody inmates and administrative segregation inmates are treated properly in accordance with the Consent Decree. Mr. Grossman testified at the hearing, however, that protective custody inmates still suffer significant disparate treatment when compared to general population inmates. T at 122–23 & 135–36. The Court expects defendants to take appropriate measures to end this disparity, and will enter an order to that effect.
A second problem involving protective custody inmates is that they apparently are occasionally exposed to administrative segregation inmates. See T at 122–23. Warden Foltz testified that using protective custody inmates as porters in the administrative segregation block creates a risk of harm. T at 370–72. The Court is aware, however, of defendants’ security concerns with any alternative cleaning arrangements. Id. at 371–72.
Finally, the Court notes that it is concerned with indications that defendants are not complying with section IV.J.1. of the State Plan. I would ask that plaintiff and the Independent Expert keep the Court informed on defendants’ efforts to comply with that requirement.
E. Classification Plaintiff has indicated that it has secured a copy of

defendants’ classification plan, which defendants apparently intend to retain as the plan required by paragraph D.1. of the Consent Decree, and intends to evaluate such plan. The Court would request that plaintiff complete its evaluation by June 1, 1987, or sooner if it wishes, and submit a copy of the evaluation to it, defendants, and amici. Defendants and amici shall then have until August 1, 1987 to comment on plaintiff’s evaluation and/or defendant’s plan. If necessary, the Court will consider obtaining the services of an Independent Expert to evaluate defendants’ plan.
F. 5–Block and MIPC The Court finds from its reading of the Independent Expert’s report, its tour of 5–Block in February, 1986, and the testimony given at the compliance hearing that conditions in 5–Block and MIPC, particularly with respect to sanitation and fire safety, *1015 pose an unreasonable risk of harm to the inmates confined in those facilities. I note, for example, the excessive amount of combustibles present in both facilities and the unsanitary conditions that exist in them. The Court does recognize that defendants’ most recent compliance report on MIPC indicates that conditions have improved significantly at that facility. Given defendants’ plan to convert MIPC to a protective custody facility, moreover, the Court believes that they may soon eliminate any remaining problems.
With regard to 5–Block, the Court hopes that defendants’ recent measures will be effective. I will ask that plaintiff, amici, and the Independent Expert keep the Court informed on defendants’ progress in this area.
Finally, the Court will request plaintiff, defendants, amici, and the Independent Expert to address the issue of whether confinement of an inmate in a cell with solid doors at MIPC constitutes “isolation” within the meaning of paragraph IV.J.9. of the State Plan.
The Court also notes that defendants and amici have filed various comments on the testimony of Mr. Duel and Dr. Rundle. With regard to defendants’ objections to the testimony of Mr. Duel, the Court believes that their first and third objections are effectively moot since it did not rely on such testimony. The Court will reject defendants’ second objection based on its understanding that Mr. Duel was testifying on behalf of the Hadix amicus as well as the Knop amicus. With regard to defendants’ objections to the testimony of Dr. Rundle, the Court rejects each objection. Dr. Rundle’s testimony fell within the limitations imposed by the Court; the Court believes that his testimony concerning the Central Complex was relevant to the claims of the inmates whom the Knop amicus represent; and the Court did not rely on Dr.
64

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Rundle’s testimony concerning the conversion of the infirmary to a segregation unit.
The Court also notes that amici have lodged certain objections to defendants’ cross-examinations of Mr. Duel and Dr. Rundle. With regard to Dr. Rundle, the Court agrees that certain aspects of defendants’ crossexamination were highly objectionable. I therefore will order that lines 19–24 of page 449, vol. II of the Transcript, and lines 16–24 of page 455, vol. II of the Transcript, be stricken from the record. See Federal Rules of Evidence 608 & 611(a). With regard to defendants’ cross-examination of Mr. Duel, the Court will caution defendants not to suggest that certain “facts” are true unless they have a foundation for such questions.
The Court will enter an order in accordance with the above findings and conclusions. It will discuss defendants’ efforts in the mental health area in a separate opinion and order.
ORDER OF JULY 22, 1986 GRANTING PLAINTIFF’S MOTION FOR ORDER ENFORCING
CONSENT DECREE AND STIPULATION
In accordance with the opinion dated July 21, 1986;
IT IS HEREBY ORDERED that plaintiff’s Motion for Order Enforcing Consent Decree and Stipulation is GRANTED, and that defendants are found to be in violation of paragraphs B.6., C.1., C.2., D.2., and D.3. of the Consent Decree, and paragraphs II.B.4., II.C.3., II.C.4., II.D.2.b., and II.D.2.c. of the June 21, 1985 Stipulation;
IT IS FURTHER ORDERED that defendants are found to be in violation of other provisions of the Consent Decree and the State Plan for Compliance, as discussed in the Court’s opinion;
IT IS FURTHER ORDERED that defendants shall take the following steps to ensure their compliance with the Consent Decree, the Stipulation, and, consistent with paragraphs H and I of the Consent Decree, the State Plan for Compliance.
I. With respect to Fire Safety, defendants are enjoined:
A. To immediately and on a continuing basis survey all prison areas subject to the Consent Decree and, with the exception of a reasonable amount of personal property *1016 in inmate cells, immediately remove or store properly all combustible materials.

B. Within ten days of the date of this Order, and thereafter monthly on the 15th day of each month, to submit to the Court, the United States, and amici, affidavits from the Warden or Assistant Deputy Warden for Housing in each institution stating that such persons have personally surveyed all prison areas subject to the Consent Decree and that, as of the dates of the affidavits, all combustible materials, with the exception of a reasonable amount of personal property in inmate cells, have been removed or stored properly.
C. To clarify, by August 30, 1986, whether they are in compliance with paragraphs B.3. of the Consent Decree and III.H.4. of the State Plan at each of the subject facilities, and if they are not in compliance, to submit their plans for bringing such facilities into compliance.
D. To provide, by August 30, 1986, appropriate documentation regarding their efforts to comply with the requirement of paragraph III.B.2. of the State Plan concerning water flow and automatic alarms.
E. To provide, by August 30, 1986, appropriate documentation of their efforts to replace non-conforming tiles and panels in accordance with paragraph III.D. of the State Plan.
F. To report, by August 30, 1986, on their efforts to fill the fire safety officer position at the MR.
G. To report, by August 15, 1986, on whether they are conducting monthly fire safety inspections at SPSM.
H. To report, by August 15, 1986, on whether they have installed a chemical extinguishing system at the Magnum Farm, and on the status of their “quick-chill” food preparation system at the SPSM.
I. To report, by October 1, 1986, on whether they will meet their January 31, 1987 deadline for removing nonstructural combustible materials from cellblock areas.
J. To report, by October 1, 1986, on their efforts to implement the requirements with respect to which compliance was due July, 1986.
II. With respect to Sanitation, Safety, and Hygiene, defendants are enjoined:
A. To remove immediately all trash, litter, and other filth from cellblocks and to maintain them on a continuous basis in sanitary condition.
B. To institute immediately measures necessary to assure the complete and effective eradication and control of all vermin, including birds. Such measures shall include such additional commercial pest control as is necessary to
65

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
ensure complete eradication.
C. To inspect immediately, and on a continuing basis, all windows, and to replace promptly all broken or missing glass. If such a program is not effective in keeping vermin, particularly birds, out of the facilities by October 1, 1986, defendants shall screen all exterior windows which open and shut.
D. To implement immediately and in full each and every requirement specified in sections I and III of the Sanitation Plan attached as Appendix A to the State Plan for Compliance. The Warden and Assistant Deputy Warden for Housing in each institution shall file monthly on the 15th day of each month an affidavit stating that each requirement has been satisfied in full and, if not, the full particulars of non-compliance. The Resident Unit Manager of 5 Block, SPSM, shall likewise file an affidavit certifying performance consistent with sections I and III of Appendix A.
E. To correct as soon as practicable, but by no later than February 1, 1987, all inadequate plumbing in food service areas, including cross-connected plumbing hazards in MBP dishwasher facilities.
F. To implement as soon as practicable, but by no later than December 1, 1986, the Solid Waste Disposal Plan in all food service areas.
G. To take immediately all necessary steps to ensure that food is stored, prepared, transported, and served at safe temperatures. The institutional sanitarian at each facility shall submit an affidavit on the 15th day of each month stating whether *1017 such steps have been taken, and whether food is being served at the appropriate temperatures.
H. Consistent with paragraph G of the Consent Decree, to provide training programs to all food service workers by January 1, 1987, and to provide, on a continuing basis, such supervision of these workers as is necessary to ensure adequate food service sanitation.
I. Within thirty (30) days from the date of this Order, to submit to the Court, the United States, and amici, complete protocols and procedures designed to assure effective food sanitation, including adequate food protection, storage, preparation, and transportation; food handler cleanliness and practices; and effective equipment cleaning and storage. To the extent existing procedures and protocols address these areas, defendants shall review them and submit any revisions necessary to ensure the foregoing to the Court, the United States, and amici.
J. With respect to paragraphs E and F, to notify the Court, the United States, and amici within thirty (30) days of the

date of this Order of the specific date by which they will meet the designated requirements.
K. To maintain a vigorous program of keeping pipe chases clean and ensuring that all sewer lines are properly closed.
III. With respect to Medical Care, defendants are enjoined:
A. To ensure that all correctional officers are properly trained in the distribution of medication, and to provide to the Court, plaintiff, and amici a proposal by September 15, 1986, for ensuring that all medication is distributed properly.
B. To provide appropriate emergency training to all nonmedical personnel by January 1, 1987.
IV. With respect to Access to Courts, defendants are enjoined:
A. To clarify, by August 30, 1986, whether the library hours at the MR–Inside are in compliance.
B. To clarify, by August 30, 1986, whether there is a mini-law library at MBP, C–Block.
V. With respect to Overcrowding and Protection from Harm, defendants are enjoined:
A. To implement their plan to decrease overcrowding and to end inappropriate security classification placements, and to provide the Court, the plaintiff, and amici with trimonthly progress reports on their efforts in this regard.
B. To proceed with their plan to convert MIPC to a maximum security protective custody unit, and to continue to inform the Court, plaintiff, and amici on their plans for the old infirmary at SPSM and the effect of such plans on the operation of 5 Block at SPSM.
C. To institute immediately, and on a continuing basis, direct observation of each cell, and of each inmate within the cell, by a correctional staff member on a schedule that complies with the requirements of the Consent Decree and the State Plan.
D. To remove immediately all combustibles and noncombustibles from cell fronts to the extent that such items prevent the observation required in paragraph C, and to maintain cells sufficiently unobstructed to permit a clear view of inmates for surveillance purposes.
E. To submit, by August 30, 1986, documentation of compliance with the requirements of paragraphs C and D. Such documentation shall include: a) the total number of
66

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
surveillance rounds completed during each twenty-four hour period; and b) evidence that a correctional staff member directly observed each inmate.
F. To implement immediately and in full paragraphs II.D.2.b. and II.D.2.c. of the June 21, 1985 Stipulation, and to submit, by August 30, 1986, documentation evincing that the requirements of such paragraphs have been met, and if they have not, providing the full particulars of noncompliance.
G. To notify the Court, by August 30, 1986, of the status of their compliance with section IV.J.1. of the State Plan.
*1018 IT IS FURTHER ORDERED that plaintiff shall evaluate defendant’s classification plan in accordance with the Court’s opinion;
IT IS FURTHER ORDERED that plaintiff and the Independent Expert shall keep the Court informed as to defendants’ efforts with regard to 5–Block, SPSM;
IT IS FURTHER ORDERED that plaintiff, defendants, amici, and the Independent Expert shall inform the Court by October 1, 1986, on whether confinement of an inmate in a cell with solid doors at MIPC constitutes “isolation” within the meaning of paragraph IV.J.9. of the State Plan;
IT IS FURTHER ORDERED that lines 19–24 of page 449, vol. II of the Transcript, and lines 16–24 of page 455, vol. II of the Transcript, be stricken from the Record.
OPINION OF AUGUST 29, 1986 SCHEDULING A MENTAL HEALTH HEARING
On May 9, 1986 the Court granted the United States’ motion for relief and sanctions with regard to defendants’ failure to submit a satisfactory plan for the provision of mental health services to seriously mentally ill inmates. It found defendants to be in contempt of court, and stated that they may purge their contempt “by submitting by June 9, 1986, a detailed supplementary implementation schedule and specification designed to cure the mental health care deficiencies addressed in the Consent Decree and Stipulation.” Defendants submitted their Implementation Schedule and Specification in accordance with the Court’s order on June 9, 1986. The United States and the Knop amicus submitted criticisms of the schedule and specification, and asked the Court to find that defendants had failed to purge themselves of their contempt. Defendants responded to these criticisms on July 17, 1986. On July 29, 1986 the Knop amicus suggested that the Court allow oral argument on the mental health issues.

The Court finds some merit in the criticisms submitted by the United States and the Knop amicus. It is also evident, however, that defendants are attempting in good faith to comply with the Court’s orders and the requirements of the Consent Decree and the Stipulation, and have developed and are developing specific policies, programs and other means for achieving such compliance. The Court believes that most of the United States’ and the amicus ‘ criticisms are based on defendants’ apparent failure to have refined or communicated sufficiently the means by which they will comply with the Court’s orders, the Consent Decree, and the Stipulation. I also believe that the Court can most expeditiously resolve these criticisms at a hearing preceded by further written submissions from defendants.
The Court accordingly will hold a hearing to consider defendants’ continued efforts to bring their system of mental health care into compliance with the Consent Decree, the Stipulation, and the Court’s prior orders on October 24, 1986 at 2:30 p.m. in Kalamazoo, Michigan. I do not want the parties or amici to present witnesses at the hearing, with the possible exception of Ms. Burke by defendants. The parties and amici should submit any further written information they wish on the mental health issues, including affidavits from appropriate persons, to the Court by October 10, 1986. The Court in particular would like defendants to address in their written submission the questions listed in the appendix attached to this opinion and the status of the compliance measures due on or before the hearing date, such as the opening of the Comprehensive Care Unit at the Riverside Correctional Facility and the implementation of outpatient services. The Court hopes that defendants, either through their written submissions or at the hearing, will be able to allay the concerns expressed by the United States and the Knop amicus and reflected in the Court’s questions.
The Independent Expert may, if he wishes, also express his views on defendants’ compliance efforts on the mental health issues. He should submit his report, if any, by October 17, 1986. The parties and amici may respond to the Independent Expert’s comments at the hearing. The Court will also defer ruling on whether *1019 defendants have purged themselves of contempt until the hearing. Finally, the parties and amici should be prepared to discuss future scheduling of compliance hearings and/or other means for assessing defendants’ level of compliance with the terms of the Consent Decree, the State Plan for Compliance, and the Stipulation.
APPENDIX
67

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
1. How do defendants intend to assure that the provisions of the plans and Schedule/Specification shall apply, at a minimum, to all inmates with serious mental illness?
2. Are all sections of the Schedule/Specification equally binding on defendants?
3. Will the sixty (60) mental health spaces within the Department of Mental Health be fully used? What arrangements are in place to assure this?
4. How will the Comprehensive Care Units be licensed or certified with respect to psychiatric services? What psychiatric services standards will defendants be prepared to meet?
5. How will defendants evaluate the Protected Environments? Who will conduct the evaluations and what questions will the evaluations attempt to have answered? Will experts who are not employed by the Department of Corrections be involved in the evaluations?
6. How do defendants propose to determine and monitor the adequacy of staffing arrangements?
7. How do defendants intend to assure appropriate licensing, qualification, and training of staff?
8. If defendants continue to experience difficulty in recruiting and retaining staff, what additional efforts do they propose to undertake to provide a reasonable assurance that they will meet the applicable staffing requirements?
9. How will defendants staff the upper levels of their Mental Health Services organizational structure? What organizational structures will apply to each type of program unit?
ORDER
In accordance with the opinion dated August 28, 1986;
IT IS HEREBY ORDERED that the Court will hold a hearing on October 24, 1986 at 2:30 p.m. to consider defendants’ compliance efforts in the area of mental health; the parties and amici may submit materials before the hearing in accordance with the opinion.
OPINION OF AUGUST 29, 1986 RESOLVING

VARIOUS MOTIONS
There remain a number of matters for the Court to decide in this case. The following opinion will discuss four of those matters: (1) the United States’ Motion for Order Compelling the Hadix Plaintiff–Intervenors to Answer Interrogatories, and the Hadix Plaintiff–Intervenors’ Motion for Extension of Time to File Response to Plaintiff’s Motion; (2) questions that have arisen concerning defendants’ plans to renovate the old infirmary at the State Prison of Southern Michigan; (3) the United States’ Objection to Defendants’ Revised Procedure OP–DWA–40.02; and (4) the United States’ Motion to Strike Amici ‘s Response to the United States’ Brief Opposing an Expansion of the Role of the Amici Curiae. Before discussing these matters, the Court reminds the parties and amici that in accordance with its Order of June 30, 1986 concerning the Independent Expert and his associate, they are to serve Dr. Benton and Mr. Stoughton “with copies of any and all documents, such as motions, memoranda, and reports, they file with the Court.”
1. Hadix–Related Motions
On February 27, 1986 the United States served the Hadix Plaintiff–Intervenors with four interrogatories concerning the Intervenors’ request to exclude the Central Complex and the Reception and Guidance Center at the State Prison for Southern Michigan from the Consent Decree entered in this case. The Hadix Intervenors filed an objection to the interrogatories on *1020 March 31, 1986. On April 9, 1986 the United States filed a motion to compel the Hadix Intervenors to respond to the interrogatories. On June 30, 1986 the Court ordered the Hadix Intervenors to respond to the United States’ motion by July 10, 1986. On July 18, 1986 the Hadix Intervenors filed their response and a motion for an extension of time in which to file such response. The United States has not responded to the Intervenors’ request for an extension of time to respond. Given the circumstances of this case, the Court believes that the motion should be granted, and it will consider the Hadix Intervenors’ response to the United States’ motion to compel.
[33] The Hadix Intervenors raise two arguments in response to the United States’ motion: (1) that they are not a party to this proceeding, and thus cannot be served with interrogatories pursuant to rule 33 of the Federal Rules of Civil Procedure; and (2) that rule 33 does not apply in post-judgment proceedings. The Court must reject the first argument. The Hadix Intervenors correctly note that the Court reduced them to the status of amicus curiae at the June 22, 1984 hearing. In its opinion of
68

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
December 2, 1985, however, the Court granted the Hadix Intervenors’ motion to intervene “as a party for the sole purpose of seeking exclusion from the Consent Decree.” Opinion of December 2, 1985 at 4 & 9. They thus are a party to this proceeding for that limited purpose. Since the United States’ interrogatories are related to that purpose, the Court finds that it must reject the Hadix Intervenors’ first ground of objection.
[34] The Hadix Intervenors’ second objection is more substantial. In general, the discovery rules, and in particular rule 33, apply only to pre-trial proceedings, and are inapplicable to post-trial proceedings. See Goldy v. Beal, 91 F.R.D. 451, 456 (M.D.Pa.1981); see also H.K. Porter Co. v. Goodyear Tire & Rubber Co., 536 F.2d 1115, 1118–22 (6th Cir.1976). The Sixth Circuit’s decision in H.K. Porter does not, however, completely foreclose the use of discovery procedures in postjudgment proceedings. The Hadix Intervenors’ Motion for exclusion, moreover, does not concern matters that were the subject of pretrial discovery, and it does not represent a direct attack on the merits of the judgment the Court entered in this case. In certain respects, then, the Hadix Intervenors’ motion is more analogous to the filing of a separate action and the arguments against allowing postjudgment discovery are less cogent. I note, moreover, that it is anomalous for the Hadix Intervenors to file a motion requesting to be excluded from the Consent Decree and then to resist revealing information the United States needs to defend against such motion.
Given these peculiar factors, the Court believes that the United States’ interrogatories are proper and will grant its motion to compel. At the March compliance hearing, the Court stated that it would conduct a separate hearing on the Hadix Intervenors’ request for exclusion. Transcript of Compliance Hearing, Vol. I, at 70–72. The Court accordingly will hold a limited two and one-half hour hearing on the Hadix Intervenors’ request for exclusion on Monday, November 3, 1986 at 2:30 p.m. The Hadix Intervenors shall respond to the United States’ interrogatories by October 10, 1986.
2. Renovation of the Infirmary
As was noted at the March compliance hearing, defendants plan to convert the old infirmary at the State Prison of Southern Michigan into a segregation unit. On July 11, 1986 defendants submitted preliminary drawings for the renovation of the infirmary to the Court. On July 29th the Knop amicus expressed concern that the cells would face each other, similar to the design at MIPC. The Court believes that defendants adequately responded to this concern on August 8th by noting that the cell doors

would be solid with only a view window, thereby precluding the throwing of materials from one cell into another. The Court, however, has some other questions regarding the renovation of the infirmary that it would like defendants to address.
a. What are the staffing plans for this segregation unit?
*1021 b. Will the planned use for the infirmary allow defendants to comply with all of the requirements of the Consent Decree and the State Plan, particularly with respect to indoor and outdoor exercise?
c. How much supervision and surveillance will the cell doors allow?
d. What precautions have defendants taken to deal with flooding due to toilet overflows, particularly intentional ones?
e. Are there provisions for any programs involving small groups, such as education, worship, or group therapy?
f. Are there provisions for case management offices and related program support spaces?
Defendants should respond to these questions by September 30, 1986.
3. Procedure OP–DWA–40.02
On April 29, 1986 defendants submitted a revised procedure for the Identification, Referral, Evaluation and Treatment of Prisoners with Serious Mental Disorders Housed in Segregation Units in accordance with the Court’s Order of February 21, 1986. See OP–DWA– 40.02. The United States submitted some objections to defendants’ revised procedure on July 7, 1986. The Court has reviewed the United States’ objections, and believes that they may be well-founded. I also note, however, that the objections are based in part on the United States’ concern that the revised procedure does not comply with the requirements of the Consent Decree even though it may comply with the Court’s February 21st Order. In any event, defendants have not responded to the United States’ objections. The Court accordingly will not make any rulings on the objections at this time, but rather will request the parties to attempt to settle their differences between themselves. Plaintiff shall inform the Court by September 15, 1986 whether defendants have satisfactorily revised OP–DWA–40.02. If the United States still has concerns about the procedure at that time, the Court will schedule a hearing to decide the issue.
69

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
4. United States’ Motion to Strike
At the March compliance hearing the Court decided to allow the parties and amici to submit briefs on the Knop amicus’ request to be allowed to participate in this proceeding as a litigating amicus. I stated that “I will just invite simultaneous briefs, and don’t really want any response because I understand the issue, I understand what everybody is saying to me, and I just want to see if it is developed in any more persuasive manner by counsel between now and the 15th of April.” Transcript of Compliance Hearing, Vol. III, at 520. Contrary to the Court’s statement, the Knop amicus submitted a responsive brief on June 12, 1986. The United States accordingly filed a motion to strike such brief. As amicus argues, the Court did not explicitly forbid the parties from filing response briefs. It appears, moreover, that amicus did not receive the transcript page containing the Court’s statement. The Court therefore will deny the United States’ motion to strike. In fairness to the United States, however, I will give it until September 12th to file its own response brief, if it wishes to do so.
OPINION OF SEPTEMBER 26, 1986 EXTENDING AUTHORITY OF INDEPENDENT PSYCHIATRIC
EXPERT
The Court recently received a letter from Dr. James requesting clarification of his status in this proceeding. The Court has sent the parties and amici a copy of Dr. James’ letter and its response to the letter. In accordance with the offer made by defendants at the May 8th and 9th hearing, the Court has decided to extend Dr. James’ authority as an Independent Expert, with his fees and expenses to be paid by defendants, at least for the purpose of ensuring that defendants properly implement the recommendations which Dr. James and Dr. Benton made in their April, 1986 Review of the Comprehensive Plan for Mental Health Services, and which the Court adopted in its order of May 9, 1986. Transcript of Hearing and Rulings, vol. II, at 379–80 (May 9, 1986). The Court accordingly has requested Dr. James to testify at the October 24, 1986 hearing, and, if he desires, to *1022 submit written comments on defendants’ mental health efforts by October 17, 1986. The parties and amici may respond to Dr. James’ written comments, if any, either before or at the hearing.
The Court realizes that it ordered the parties and amici not to present witnesses at the hearing, with the possible exception of Ms. Burke by defendants. If it becomes

obvious during the course of the hearing that the Court should hear live testimony from persons in addition to Dr. James and Ms. Burke before making any rulings, I will schedule an additional hearing.
ORDER
In accordance with the opinion dated September 25, 1986;
IT IS HEREBY ORDERED that Dr. James’ authority as the Court’s Independent Expert is extended in accordance with such opinion and the prior orders of the Court;
IT IS FURTHER ORDERED that Dr. James shall testify at the October 24, 1986 hearing with regard to defendants’ mental health efforts. Dr. James may submit written comments in advance of the hearing by October 17, 1986. The parties and amici may respond to such comments, if any, either before or at the hearing.
BENCH OPINION OF OCTOBER 24, 1986 PURGING THE DEFENDANTS OF CONTEMPT
REGARDING MENTAL HEALTH
[35] The Court called this hearing today for essentially two reasons: First, to determine whether defendants have purged themselves of contempt with regard to the mental health plan; and, secondly, something I will do in a few minutes, to discuss future scheduling problems. The hearing, of course, delved into questions of defendants’ implementation of the Mental Health Plan as well as the substance of the plan. I believe, however, as I indicated, that the question of implementation is separate, albeit not completely distinguishable, from the issue of whether defendants have purged themselves of contempt.
The Court found defendants to be in contempt of court on May 9th, 1986, because they had failed to produce an acceptable plan for identifying and treating inmates suffering from serious mental illnesses, as required by previous orders of this Court; specifically, section II(A)(2) of the stipulation, the Court’s oral order of February 13th, 1986, and the Court’s written order of February 21st, 1986. At the May 8th and 9th hearing, the Court determined that defendants’ Comprehensive Plan for Mental Health Services, commonly referred to as CPMHS or Plan Two, was unacceptable. I will not reiterate here the bases for that finding. The Court further determined at the May 8th and 9th hearing that defendants could purge themselves of contempt “by submitting by June 9, 1986, a detailed supplementary implementation
70

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
schedule and specification designed to cure the mental health care deficiencies addressed in the Consent Decree and Stipulation.” That is my order of May 9th, 1986, at page one. The Court listed a number of provisions that this schedule and specification should contain, and ordered defendants also to “conduct an epidemiological study to determine the prevalence of serious mental illness and associated treatment needs.” Finally, the Court stated that it would consider the documents submitted pursuant to paragraph three of the order and either “accept the submittal or order additional changes along with coercive or punitive sanctions as may become necessary.” That comes from the order at page three.
Defendants submitted a schedule and specification on June 9th, 1986, in accordance with the Court’s order. Plaintiff and amici thereafter submitted critiques of the schedule and specification that, in the Court’s mind, raised issues that needed further study. I thus scheduled this hearing, ordered defendants to respond to several questions I had about their schedule and specification and Plan Two, and requested Dr. Benton and Dr. James to express their views on defendants’ compliance efforts. Opinion and Order of August 29, 1986; Opinion and Order of September 26, 1986. Defendants responded to the Court’s questions, plaintiff and amici submitted additional *1023 comments, and Dr. Benton and Dr. James prepared an additional report on defendants’ mental health plan prior to this hearing. I believe that these submissions further defined the ambiguities in defendants’ plan and the areas in which further modification and/or clarification was needed.
The Court finds that defendants, with the assistance of Dr. Benton, Dr. James, plaintiff, amici, and this Court, have satisfactorily explained these ambiguities, and for the most part have provided appropriate modifications and/or clarifications of Plan Two and the June 9th implementation schedule and specification, and have otherwise resolved most of the Court’s concerns about Plan Two and the implementation schedule and specifications. The Court further finds that defendants’ Comprehensive Plan for Mental Health Services, as modified, clarified, etc., by the following: A., the June 9th, 1986, Implementation Schedule and Specification; B., the representations defendants made in their July 17, 1986, response to the plaintiff’s and amici’s criticisms of their June 9th submission; C., the representations defendants made in their response to the questions the Court posed in its order of August 29, 1986; and D., the representations defendants made at this hearing, on October 24, 1986, satisfies the requirements of Section II(H)(4) of the State Plan for Compliance and the other applicable orders of the Court, and therefore, should be and is accepted by the Court.
This finding, of course, preempts the Court’s February 21,

1986, acceptance of the Comprehensive Psychiatric Services Plan submitted by defendants on October 9th, 1985, as the plan required by Section II(H)(4) of the State Plan for Compliance. It also means, of course, that the Court accordingly finds that defendants have purged themselves of contempt in accordance with the Court’s May 9th, 1986, order.
The Court’s acceptance of Plan Two, along with its various clarifications, modifications, etc., is, however, subject to the following qualifications: First, defendants are still obligated, of course, to produce the manual or system of manuals required by paragraph 3(f) of the Court’s May 9th order. Secondly, defendants are still obligated to complete and implement the epidemiological study required by paragraph four of the Court’s May 9th order in accordance with the provisions of that paragraph; and I have been told today they will do that. Third, the Court has determined only that defendants’ Plan Two, along with its various clarifications, modifications, etc.,— that I have referred to—is acceptable as a means by which defendants intend to comply with the applicable substantive requirements of the Consent Decree, the Stipulation, the State Plan for Compliance, and the other applicable orders of this Court. The Court is expressing no opinion whatsoever on whether defendants are making adequate progress in implementing the provisions of this Plan or are otherwise in compliance with the substantive requirements found in the above documents. I note, however, that the testimony of Dr. James and other information elicited at this hearing suggests that defendants are experiencing some implementation difficulties. The Court, as evinced by its questions and comments at this hearing, intends to keep a close eye on this situation. I stress again that I have only determined that defendants have produced an acceptable “plan” for the provision of mental health services to inmates suffering from serious mental illnesses. I sincerely hope that defendants will be able to implement this “plan” successfully, and will otherwise be able to comply with the substantive requirements of the applicable orders of the Court.
Fourth, the Court, of course, retains jurisdiction to resolve any disputes that may arise regarding defendants’ modification, clarifications, etc., of the Comprehensive Plan for Mental Health Services. Fifth, I agree with Ms. Alexander with regard to the ratio of outpatient teams with regard to average versus maximum, at page seven of the defendants’ October 13th submission. There is a sentence on page seven which says that this staffing allows for each outpatient team to serve an average case load of approximately 192 patients. The Court, reading page 14 of the original *1024 submission in April of 1986, of Dr. Benton’s and Dr. James’ review of the Comprehensive Plan for Mental Health Services, finds on page 14 the following sentence toward the top of the
71

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
page, quote: “Given the above figures, the average psychiatrist might be able to support an active case load of 192 patients at any time.” End quote. “Average” refers to psychiatrists, not the size of the case load. The Court’s interpretation, therefore, is that the report means that an outpatient team should in no event handle more than 192 patients at any time. Therefore, with that caveat, those five caveats, the Court approves the plan, finds the defendants have purged themselves of contempt.
Now I chose at this stage to say the following, a couple of comments. First of all, I agree with Dr. Benton that this is a happier day for me and for the Court and for the inmates than I found in the past couple of years, particularly with regard to the mental health plan, and I congratulate the State of Michigan and all of the defendants for all the work that they have put in to try to make the situation work. There has rarely been any question of the good faith of the State of Michigan anyway. There has been a question of other things impeding progress. I am pleased with—I was pleased with the reaction of the State of Michigan in the beginning, the settlement of this lawsuit before it was ever filed; and I continue to be pleased with the efforts put in by many, many people, at least six of whom are in this room, and they deserve the accolades and the applause of this Court, and they hereby receive them from me.
A word of, a word of caution—and I don’t think it is even necessary. The fact that I am as pleased as I am with the final, the finalizing of the plan, and the removal of the punitive sanctions should not be interpreted by those not in this room employed by the State of Michigan into believing that now it is time to coast, and that we are over the hurdle of the June 9th submission and the October 24th hearing. I hope that the lawyers here and Ms. Burke will communicate to those who are not here and unable to hear my words. I find it to be a good day, and I am pleased that things were possible. I am pleased by the prospect that we can get some help from the University of Michigan, from Wayne State University, and from Michigan State University.
I think that while we are doing that, and I intend to have the lawyers stay around for a few minutes after we adjourn today so we can talk about what I intend to do with regard to that, that we ought to be looking for the quality assurance person that we have been so concerned about. Here is the ideal place to find a quality assurance person; and I hope that we can do that as well in our recruiting efforts, Ms. Burke, and others. And I am pleased that the State is willing to cooperate with me in this regard. Well, there are some other issues that concern the Court, and the Court wanted to get to today, and simply did not. Particularly am I concerned about the fire safety, the fire safety issue, and I had hoped that we would be able to get to it today. We did not get to it today.

So what I am going to do is, if I can find all of my notes, is the following: I stated in my opinion of August 29th that the parties and amici should be prepared to discuss future scheduling of a compliance hearing and/or other means for assessing the defendants’ level of compliance with the terms of the Consent Decree, the State Plan for Compliance, and the Stipulation. The Court believes that it would be better to hold a series of one to two-day hearings on specific issues as opposed to the four or fiveday hearing on all of the issues. I think this format will be more manageable and would allow me to focus on specific problems, specific areas. In particular, I see a need to examine the areas of fire safety and sanitation, safety and hygiene. Defendants filed a motion on September 29th, less than a month ago, for permission to modify certain parts of the state plan as they relate to fire safety. The Court recognizes the basis for the defendants’ request, but believes that it must be judged in the context of the defendants’ efforts to maintain an adequate level of fire safety *1025 today at the institutions. I therefore believe that we need, and I am going to order, a minihearing of two days on fire safety before I will turn my attention to the defendants’ pending motion.
The times that I selected during the recess for this hearing are January 15th and January 16th, 1987. That is a Thursday and Friday. I have cleared those dates with Dr. Benton, and they are acceptable to him. I am ordering him, however, to accelerate the Independent Experts’ report with regard to the fire safety issue, so that we will have something, all of us, to go on when we have that hearing. If the parties wish to submit any further written communications with regard to the fire safety issue, I already have a lot of submissions, and those submissions are due by January 2nd, 1987. I also want by January 2nd the parties to indicate to the Court what witnesses they intend to produce with regard to the fire safety issue. I am prepared after that to submit to the parties—I will give you some proposed dates with regard to the other issues.
ORDER OF OCTOBER 29, 1986 PURGING DEFENDANTS OF CONTEMPT
In accordance with the opinion rendered at the hearing held on October 24, 1986;
IT IS HEREBY ORDERED that the Court accepts defendants’ Comprehensive Plan for Mental Health Services, as modified, clarified, etc., by the following: (a) the June 9, 1986 Implementation Schedule and Specification; (b) the representations defendants made in their July 17, 1986 response to the plaintiff’s and amici’s criticisms of their June 9th submission; (c) the
72

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
representations defendants made in their response to the questions the Court posed in its order of August 29, 1986; and (d) the representations defendants made at the hearing held on October 24, 1986, as the plan required by Section II.H.4 of the State Plan for Compliance and the other applicable orders of the Court;
IT IS FURTHER ORDERED that the Court accepts this plan subject to the qualifications stated at the hearing;
IT IS FURTHER ORDERED that defendants have purged themselves of contempt in accordance with the Court’s Order of May 9, 1986;
IT IS FURTHER ORDERED that the Court shall conduct a hearing on Fire Safety on January 15 and January 16, 1987, to begin at 9:00 a.m. on each day; plaintiff and defendants shall submit whatever further written information they wish on this issue to the Court by January 2, 1987; amici shall file their written submission by January 9, 1987; the parties and amici shall file their witness lists by January 2, 1987.
OPINION AND ORDER OF JANUARY 29, 1987 ENFORCING THE FIRE SAFETY PROVISIONS OF THE CONSENT DECREE, THE STATE PLAN FOR COMPLIANCE, AND THE STIPULATION, AND GRANTING DEFENDANTS’ REQUEST FOR
MODIFICATION OF THE STATE PLAN
Introduction
On January 16, 1987 the Court held a hearing on defendants’ efforts to comply with the fire safety requirements of the Consent Decree, the State Plan for Compliance, and the Stipulation. The Court considered two issues concerning those requirements: (1) whether defendants were, in general, complying with them; and (2) whether it should grant defendants’ September 29, 1986 Request for Modification of the State Plan, and thereby excuse defendants’ failure to have complied with several of the fire safety requirements. In developing the following opinion and the accompanying order, the Court considered the entire record of this case, and in particular the following evidence, which was prepared specifically for the January 16th hearing: (1) the January 1987 Report of the Independent Expert, which is entitled Compliance Evaluation of Fire Safety Provisions; (2) the testimony the Independent Expert, Dr. F. Warren Benton, presented at the hearing; (3) the testimony defendants’ witnesses, George Walter and *1026 Richard Hinds, presented at the hearing; (4) the testimony plaintiffs’ expert witness,

George Gray, presented at the hearing; (5) defendants’ exhibit 1, which they introduced at the hearing; and (6) plaintiff’s exhibits 1, 2, and 3, which were also introduced at the hearing. The Court stated at the conclusion of the hearing that it would take defendants’ Request for Modification of the State Plan and defendants’ efforts to comply with the fire safety requirements of the decree documents under advisement, and issue a written opinion and order.
As I will discuss in the following opinion, the Court finds that defendants are substantially not in compliance with the fire safety requirements of the decree documents. Defendants’ noncompliance not only violates their solemn agreement with the plaintiff and the Court, as embodied in the Consent Decree, the State Plan for Compliance, and the Stipulation, to remedy dangerous conditions of confinement at the decree institutions, but also presents a serious risk of harm to the physical safety of the inmates confined at those institutions. The Court therefore reluctantly concludes that it must take significant action, as embodied in the order accompanying this opinion, to ensure that all of the defendants do everything within their power to fulfill their commitments to the plaintiff and the Court. As the Court informed the parties at the start of the hearing, it believes that defendants bear the burden of explaining four issues: (1) why they have failed to meet all of the applicable fire safety deadlines; (2) why the Court should in effect excuse their noncompliance and allow them yet more time to meet those requirements; (3) what assurances can they offer that they will in fact meet their new dates; and (4) what can they do to promptly enhance operational fire safety to mitigate the extended period of physical risk to the inmates that their request will cause. Before discussing these issues, defendants’ compliance efforts, and defendants’ Request for Modification of the State Plan, the Court will briefly discuss the history of this case regarding fire safety. I believe that this discussion will help to put current matters in the proper perspective.
Background
The Court record shows that the events that led to the filing of this action began on October 9, 1981, when the United States sent William G. Milliken, who at that time was the governor of the State of Michigan, a letter announcing its intention to commence an investigation into conditions of confinement at the State Prison of Southern Michigan, the Michigan Reformatory, and the Marquette Branch Prison, pursuant to its authority under the Civil Rights of Institutionalized Persons Act of 1980. Attorneys for the plaintiff met with the Governor and other state officials on October 29, 1981 to discuss the
73

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
scope of the investigation and other related matters. Between November 2, 1981 and April 4, 1982 plaintiff conducted six expert tours of the subject institutions, reviewed numerous official documents, and interviewed many witnesses. With regard to fire safety, a Mr. Jay Farbstein toured the institutions between March 29, 1982 and May 4, 1982 on plaintiff’s behalf. Pages five through twenty-three of Mr. Farbstein’s report on this tour, which deal with fire and life safety, make for some very interesting reading. J. Farbstein, Report to the US Department of Justice Civil Rights Division on Life Safety, Architectural and Environmental Conditions in Three Michigan Prisons, attached as part of exh. A. to Plaintiff’s Feb. 24, 1984 Memorandum in Support of Proposed Consent Decree [hereinafter cited as “Farbstein Report”]. I think that it is proper for the Court to quote some portions of Mr. Farbstein’s report at this time, to illustrate the seriousness of the fire safety issue:
Correctional institutions are prone to very serious fire dangers. Because of open grills and bars, smoke can travel freely from one area to another. Since inmates are confined and are not free to remove themselves from exposures to heat or smoke, they are dependent for protection on the structure and for evacuation on the staff.
Studies have shown that [it] is usually the toxic products of combustion which *1027 cause the most serious injury. Relatively few inmates actually burn to death, while many are overcome and killed from inhaling smoke and fumes.
When fires erupt, they test both the ability of the structure to resist flame and smoke spread, and of the staff to control the fire and, if necessary, to release and safely evacuate the inmates. Under these highly stressful circumstances, even well meaning staff often fail with tragic consequences.
Farbstein Report at 5–6. Mr. Farbstein had many specific criticisms of fire safety at the subject institutions:
In general, provision for the protection of life from fire and smoke are appallingly deficient in the institutions visited. With the exception of certain essentially brand new facilities ... or facilities which are administered with a degree of independence ... there appears to be very little regard for life safety at these institutions.
Not only are the facilities entirely outmoded with respect to provision of exists, smoke enclosures, unlocking systems, marking of exits, and other physical facility issues, but of equal concern is the total inadequacy of planning and operations to cope with fire safety.
The only fire and life safety features commonly

(though not universally) found throughout the institutions are fire extinguishers and emergency lighting.
[With regard to facility issues], Due to the size and design of most cell blocks, there are far too many inmates contained within each “smoke enclosure.” From 300 to 500 inmates in each of the larger blocks are exposed to the hazards of their co-inhabitants in a situation where smoke can flow freely from one cell to another through bars and grills. No smoke evacuation system was observed in any of these blocks. Nor was any of the blocks equipped with sprinklers.
Due to outmoded locking systems, it would take staff an inordinantly long time to unlock the cells. Some staff would have to unlock the individual cell doors of an entire tier ... while others would have to operate four gang locks on each of five tiers.... The exit ways (consisting of passages, stairs, and doorways) are totally inadequate for the number of people they serve....
Not only are exit ways far too narrow, but the distance from many living areas to the point of exit from their smoke enclosure are much too great.
In addition a number of living areas have only one means of egress for their inmates, rather than meeting the requirement of two remote exits. If the one path of exit were blocked, many inmates would find no alternative and be stranded in an exposed and dangerous location....
Exit ways are almost universally unmarked, while they are required to have permanently illuminated exit signs....
There is an almost universal lack of smoke and/or heat detectors and of fire alarms which are necessary for the early detection and notification of emergencies. Nor are there automatic linkages to the local fire departments.
Farbstein Report at 8–10 (emphases in original). Similar criticisms are enumerated in the remainder of the report. The Court realizes that defendants have cured some of many of the problems Mr. Farbstein identified in his report and recognize their obligation to attack the remainder of them. I read these excerpts primarily to illustrate defendants’ awareness of the fire safety problems at the subject institutions, and the serious risk of harm those problems pose to the inmates. I note, however, that defendants’ Request for Modification of the State Plan directly implicates some of the more serious problems Mr. Farbstein identified in his report: such as not having ganglocks for all cells, not having two remote exits with appropriate doors, not having appropriate separations between smoke enclosures, not having
74

U.S. v. State of Mich., 680 F.Supp. 928 (1987)

sprinkler systems, and not having appropriate exit and directional signs.

On October 29, 1982 plaintiff officially notified defendants of its conclusion that at the subject institutions it had discovered what it believed “to be a pattern or practice *1028 of egregious or flagrant conditions that are subjecting the prisoners incarcerated in each facility to grievious harm in violation of their Eighth Amendment rights.” Letter of October 29, 1982 from Wm. Bradford Reynolds to Governor Milliken, attached as ex. B to plaintiff’s February 24, 1984 Memorandum in Support of Proposed Consent Decree. Plaintiff had the following to say with regard to fire safety:

... Our life safety expert cautions

that inadequacies in these prisons’

provisions for fire safety threaten a

disaster as major as any seen in a

correctional facility. For example,

facilities often lack necessary

smoke separations, smoke

detectors, alarms, remote exits,

illuminated exit signs, posted

evacuation procedures, and

appropriate

cell

locking

mechanisms. Fire safety and

suppression equipment is

inadequate, and professional

inspections are too infrequent, if

they occur at all. Staff training and

staff and inmate drilling are

inadequate, and certain areas often

are understaffed or unstaffed at

certain times, presenting a severe

fire hazard to inmates locked in

their cells. In addition, there is a

critical overall lack of professional

supervision of maintenance,

sanitation, and fire safety.

Letter at 3. The parties thereafter undertook extensive negotiations to attempt to resolve the problems plaintiff had identified. By January, 1984 the parties had reached a formal agreement on those problems. The Court notes that the parties reached this agreement over two years after plaintiff had initially informed defendants of its concerns, and after over one year of extensive negotiations. These negotiations presumably involved the highest levels of state government.

On January 18, 1984 plaintiff filed its complaint against defendants, and concurrently filed a motion for the Court to accept the parties’ negotiated settlement, which consisted of a five page Consent Decree and a forty-nine page Plan for the Michigan State Prisons. I note here that

the following persons and entities were named as defendants in the complaint: State of Michigan; Governor Blanchard; the Michigan Corrections Commission, and its members; the Michigan Department of Corrections; Perry M. Johnson, the director of the MDOC; Robert Brown, Jr., the Deputy Director of the MDOC; Dale Foltz, Warden at the SPSM; John Jabe, Warden at the Michigan Reformatory; Theodore Koehler, Warden at Marquette; John Prelesnik, the Administrator at the Reception and Guidance Center; and Jack Bergman, the Administrator at the Michigan Intensive Programming Center. Of course, new persons have been substituted for some of the individual defendants. See FRCP 25(d). Following several hearings, the Court finally approved entry of the Consent Decree and the State Plan for Compliance on July 13, 1984. These two documents contain many requirements concerning fire safety, which I will not enumerate at this time.
On June 21, 1985 the Court approved a stipulation between the parties that extended certain of the defendants’ fire safety compliance deadlines. Specifically, defendants received extended deadlines for the installation of fire extinguishers; for the clearing of exitways; for the storage of combustibles; for the establishment of emergency evacuation procedures; and for the development and implementation of a program for the inspection of smoke detection units. In March and April of 1986, the Court held its first compliance hearing in this case. A major concern at the hearing was defendants’ compliance with fire safety requirements. The Court stated in its July 22nd opinion on the hearing that the area of fire safety “[i]n many respects ... presents the most troublesome problems of noncompliance.” The Court proceeded to discuss several deficiencies in defendants’ performance that it will not repeat. I do note, however, two statements that are currently applicable: (1) that “[t]here are ... several ... crucial ... areas in fire safety in which compliance is due this month, July, 1986, and yet defendants do not expect to be in compliance”; and (2) that “[g]iven the serious danger that fire poses in the prison setting, the Court expects defendants to make these requirements one of their top priorities.” Opinion of July 22, *1029 1986 at 4. The areas of fire safety in which compliance was due in July, 1986 are adequately listed and discussed in the Independent Expert’s February, 1986 report and the transcript of the compliance hearing. See February 1986 Report at 72–76; Transcript at 467–92. In the order accompanying the July 22nd decision, the Court ordered defendants “[t]o report, by October 1, 1986, on their efforts to implement the requirements with respect to which compliance was due July, 1986.” Order of July 22, 1986, ¶ I.J.
In accordance with the Court’s order, on September 29, 1986 defendants submitted a report, of sorts, on their efforts to implement the requirements for which
75

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
compliance was due in July, 1986. The “report” consisted of defendants’ Request for Modification of the State Plan. In this request, defendants ask the Court to modify the State Plan, and, as plaintiff and the amici point out, by implication the Consent Decree as well, to extend significantly the deadlines for completion of most of the fire safety construction projects that are required by section III, subsection E, of the State Plan for Compliance. These projects constitute items number 22 through 37 of the Independent Experts’ February, 1986 and January, 1987 reports on fire safety. The Independent Experts’ January, 1987 report indicates that defendants are in complete compliance with respect to only two of these sixteen items: (1) the breathing apparatus requirement (number 26); and (2) the requirement of a fire separation for the control room at MIPC, which is now part of the MBP (number 30). On all of the other requirements, defendants are in either partial or complete noncompliance. The Court will briefly discuss six of these requirements to illustrate its perception of the problem.
The State Plan obligated defendants to provide within two years of the date of the plan’s approval, or by July, 1986, “in each cellblock or other housing area and in each activity, work, or indoor recreation area (including farm basement), no fewer than two operational remote exits with doors properly swinging to facilitate the flow of egress.” Mr. Farbstein discussed the critical nature of this requirement in his 1982 report. Defendants asked in their September request that the Court extend the deadline for completion of this requirement until November 1, 1987 for MBP and MR, and until December 15, 1987 for SPSM. In his February, 1986 report the Independent Expert stated that defendants’ staff had informed him during a tour of the institutions that January 1, 1987 was a realistic deadline for meeting that requirement. Report at 72. At the March compliance hearing, Mr. George Walter testified that October, 1986 was a possible deadline for that requirement. Transcript at 473. He also stated that defendants were proceeding with the work, and that “[t]here is not a tremendous amount of work on second exits, actually.” Id. at 472–73. Indeed, in their request for an extension, defendants note that “[t]he work basically involves installation of new second exit doors and changes in the ‘swing’ of existing doors.” Defendants’ Memorandum in Support of Request for Modification at 4 [hereinafter “Defendants’ Memorandum”].
Despite the apparent ease of this project, however, defendants have given the Court, either directly or indirectly, at least five different deadlines for its completion: the original date of July, 1986; the date of January 1, 1987 mentioned in the IEs’ report; Mr. Walter’s date of October, 1986; the dates listed in the Request for Modification; and, most recently, the dates listed in Defendants’ Exhibit 1, introduced at the hearing. The latter set of dates indicate that defendants will not

achieve full compliance until November, 1988, despite the dangers posed by the lack of second exits and doors that do not swing in the right direction.
A second requirement is for the installation of ganglocks in each housing unit “that will allow for the remote immediate unlocking of cells.” This requirement applies at the SPSM—Central Complex. Defendants estimated a completion date of December 15, 1987, almost one and one-half years behind schedule, in their Request, and a completion date of February 28, 1988 at the hearing. Defendants’ noncompliance *1030 exists, and they request a significant extension of the June, 1986 deadline, despite the presumed importance of being able to release inmates quickly in a fire emergency.
A third requirement is for the enclosure of certain stairwells with two-hour fire resistant construction. The Independent Experts’ January, 1987 report indicates that MR and MBP, but not SPSM, are in compliance with this requirement. Defendants estimated in their Modification Request that SPSM will not be in compliance until September 15, 1987, over one year behind schedule, and stated at the hearing that they will not complete construction until March 1, 1988, even though the project involves only three stairwells within the SPSM complex. Defendants’ Memorandum at 6.
The fourth requirement is for the installation of magnetic hold-open devices on fire and smoke doors in areas where those doors are kept open. The IE indicates that defendants are in complete noncompliance on this requirement. At the hearing, defendants requested extensions for compliance until June 1, 1987 for MBP, July 1, 1987 for MR, and an undetermined date for SPSM. All three proposed extensions far exceed the July, 1986 deadline for what appears to the Court to be a relatively simple project.
The fifth requirement is for the provision of automatic sprinklers in the basement of buildings 18 and 19 at SPSM, the Central Complex. Defendants stated at the hearing that they anticipate that the sprinklers will be installed by no later than November 1, 1987. As I discuss later in this opinion, however, they have failed to provide the Court with any acceptable explanation of why this specific project is more than one year behind schedule.
The final requirement is for the provision of smoke barriers between sleeping areas and other areas in dormitories and farm barracks. Defendants state that MR and MBP should be in compliance on this requirement, but request an extension until March 1, 1988 for the Wing Farm at SPSM. Once again, the Court does not completely understand why defendants have failed to complete this project—which does not appear to be too difficult—on time.
76

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
The Court could continue this discussion for some time— drawing from both the Independent Experts’ report and the defendants’ December, 1986 Semi–Annual Compliance Report—but will save further discussion for later in this opinion. I believe that what I have said suffices to establish the basis for the Court’s concern at the hearing. Before further discussing defendants’ compliance efforts and Request for Modification of the State Plan, I note that in their December report defendants indicated for the requirements that were due in July, 1986 that the Court had already granted the requested extensions on that deadline, as opposed to marking themselves as being noncompliant. So that the record is clear for whomever may bother to read those reports, defendants should have marked themselves as not being in compliance on those requirements rather than as having been granted extensions on the compliance deadline.
Analysis of Defendants’ Compliance Efforts
The Court will divide the fire safety requirements of the decree documents into two major areas, and will discuss separately defendants’ efforts to comply with each set of requirements. The first area covers the capital or physical improvement projects defendants have agreed to perform. This in general covers items number thirteen (13), fourteen (14), and nineteen (19) through thirty-seven (37) of the Independent Experts’ report. The second area covers what I will broadly describe as the operational aspects of defendants’ fire safety commitments. This area covers the remaining items in the Independent Experts’ report. The Independent Experts thoroughly discussed all of the fire safety requirements in their report.
Before discussing specific fire safety requirements, the Court observes that the parties and the amici agree with most of the Independent Experts’ findings and conclusions regarding fire safety. Thus, with *1031 the exception of the following findings and conclusions, the Court adopts the Independent Experts’ January, 1987 Compliance Evaluation of Fire Safety Provisions as a complete and accurate representation of defendants’ compliance efforts. There are seven items that require some clarification and modification.
The first is item number 12, which concerns fire extinguishers. The rating for MBP–Inside for this item should be changed from a two (2) to a four (4). The second is item number fourteen (14), which concerns fixed dry chemical fire extinguishers in kitchen range hoods. The rating for SPSM, central complex, should be changed from a one (1) to a five (5), and the rating for SPSM, south complex, should be changed from a one (1)

to a four (4). Third, the ratings for SPSM central complex, north complex, and the reception and guidance center for item number twenty-eight (28), which requires the installation of fire separation between cellblocks, should be changed from sixes (6s) to ones (1s). Defendants apparently installed fire separators, but they were inadequate and the project needs to be redone. The fourth change is that since MR now has a fire safety officer, the ratings for items number two (2) and ten (10) for that institution should be changed from ones (1s) to sixes (6s).
The fifth change concerns the Independent Experts’ determination that the SPSM central complex and reception and guidance center are deficient in keeping their exits clear and in storing combustibles. I find based on George Gray’s report and testimony at the hearing and on defendants’ representations at the hearing that the defendants are in compliance with items number three and four of the Independent Experts’ report at the CC and the R & GC. The ratings for those items at these institutions thus should be changed from twos (2s) to fives (5s) or sixes (6s). The sixth change concerns the Independent Experts’ finding that SPSM, Central Complex is not in compliance with item number 21, which concerns magnetic hold-open devices for doors. Defendants explained at the hearing that the old infirmary is no longer being used as a hospital, and that the hold-open devices accordingly are not required since the doors are no longer held open. The rating for this item therefore should be changed from a two (2) to a six (6). The final change concerns defendants’ attempts to implement items number twenty (20) and twenty-one (21), which concern ceiling tiles, at the MBP. Defendants explained at the hearing that the areas that still need work are in classrooms and the visiting area, not in inmate housing or exit areas. The Court believes that the one (1) rating should remain since defendants are not in full compliance with this requirement, but does not consider this noncompliance to pose a serious threat to inmate safety.
With the exception of these seven changes, the parties and amici agree with and accept the Independent Experts’ findings and conclusions. Anyone reading the Independent Experts’ report will realize that by accepting these findings and conclusions, defendants have acknowledged that they have failed to comply with many fire safety requirements, and in particular with the requirements that fall within the area of capital improvement projects. The Court does not believe it needs to discuss every aspect of defendants’ noncompliance. Rather, I will simply discuss (1) some of the highlights to illustrate the seriousness of the situation, (2) defendants’ explanations for why they are not in compliance with the fire safety requirements, and (3) the measures the Court can take to ensure compliance in the future.
77

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
A. Capital or Physical Improvement Projects With regard to the capital or physical improvement projects defendants have agreed to perform, the Court discussed the highlights of defendants’ noncompliance in this area earlier in this opinion. I would add only that the testimony at the March, 1986 compliance hearing, defendants’ request for modification of the state plan, the Independent Experts’ January, 1987 report, the exhibit defendants introduced at the January 16th hearing, and the testimony of defendants’ witnesses at that hearing *1032 evince defendants’ repeated and continuing inability to complete these projects in a timely manner. Rather than further detail the extent of defendants’ noncompliance, the Court believes it would be more profitable to examine defendants’ responses to the first two of the four questions the Court posed at the beginning of this opinion: (1) why have defendants failed to meet the fire safety construction deadlines; and (2) why should the Court excuse their noncompliance and allow them more time to complete the construction projects.
Defendants’ primary witness on these two issues was George Walter, who is the supervisor and coordinator for the fire safety construction projects, or at least for those aspects of the projects over which the Department of Corrections has control. In very detailed and extensive testimony on the physical improvement projects, Mr. Walter weaved a sad, and judicially frustrating, tale of bureaucratic incompetence and lack of foresight and initiative at the highest levels of state government. Mr. Walter started his testimony by informing the Court that most of the extensions that defendants had requested in their September 29th Request for Modification of the State Plan—which defendants had formulated only after an extensive meeting with the plaintiff and its expert witness in July, 1986—were inadequate, and that defendants needed yet more time to complete their projects. He then introduced a new schedule of completion dates, this time including interim dates for significant steps in the planning, approval, and construction process. See Defendants’ Ex. 1. Mr. Walter testified that these new completion dates and interim deadlines represented the best effort of department personnel to provide the Court with an accurate schedule with which defendants could comply.
Mr. Walter then proceeded to discuss the requested extensions, explaining why the projects had not proceeded on schedule and how the Department planned to attempt to ensure that the new deadlines will be met. The Court does not believe it needs to repeat Mr. Walter’s testimony in detail. I will, rather, discuss three aspects of Mr. Walter’s explanations that I find significant.
First, Mr. Walter’s testimony revealed a significant and

serious lack of concern about and coordination of these fire safety projects within state government. There was a significant lack of foresight on the part of defendant the State of Michigan on how it was going to complete the physical improvement projects it had agreed to in the State Plan for Compliance. This lack of foresight existed despite the fact that defendants had agreed to the Consent Decree and the State Plan for Compliance only after extensive negotiations with the plaintiff that had presumably involved the highest levels of state government. It is also clear that completion of these projects has not been a major, or even a significant, priority of the State. This lack of concern, foresight, and priority is apparent in the lack of inter-agency cooperation on these fire safety projects. Mr. Walter testified, for example, to several instances of where progress on a project has been delayed pending another agency’s review of a certain aspect of the project. This lack of concern, foresight, and priority is also evident in defendants’ failure to anticipate the need to comply with Department of Labor and State Fire Marshal regulations for projects costing more than $15,000, and in their failure to expedite compliance with those regulations once they became aware of them.
Second, the Court believes that the Department of Corrections itself has failed to make completion of these construction projects a priority, and has failed to coordinate its efforts to complete them. With regard to the first factor, the Court notes that the Department has failed to staff Mr. Walter’s office adequately, has burdened Mr. Walter with many assignments that have adversely affected his ability to coordinate the construction projects, and, perhaps most egregiously, failed to cover for Mr. Walter’s responsibilities when he was out for fourteen (14) weeks with a back injury. With regard to the second factor, Mr. Walter testified to two instances—one involving a study of electrical generator capacity at the subject institutions and the *1033 other involving a decision by the Fire Marshal to reject a smoke detection or smoke barrier project—of where he was not timely informed of decisions, actions, or lack of action that adversely affected defendants’ ability to complete the construction projects. The Court believes that Mr. Walter and other individuals within the Department are making a good faith and concerted effort to complete the projects. Any task of this magnitude, however, requires more than individual effort. Such tasks also test organizational ability, dedication, and competence, which appear to be lacking in this instance.
Finally, it appears that defendants may have tried to accomplish too much at once, without adequately thinking through and examining the ramifications of attempting to plan and to complete several major construction projects simultaneously. Mr. Walter testified, for example, to instances of where defendants’ decision to lump several
78

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
projects together, and to schedule sequential completion times for projects, caused some delay.
Defendants thus attempted to answer the Court’s first two inquiries. Because of Mr. Walter’s testimony, the Court understands why defendants have failed to meet the deadlines for the physical improvement projects. Defendants have not, however, answered the second inquiry to the Court’s satisfaction, and, relatedly and perhaps more importantly, failed to address the third inquiry adequately at the hearing. With regard to the second inquiry, defendants’ justifications indicate that they have failed to devote their full efforts toward complying with the fire safety requirements of the decree documents. As I stated previously, some individuals within the Department of Corrections have made significant efforts to bring the Department into compliance. The Court heard little or no evidence, however, that would indicate that all of the defendants— in particular Governor Blanchard, the State itself, including all of its departments and agencies, and the Corrections Commission—have made significant efforts to ensure compliance with the fire safety requirements. I thus fail to detect a reasonable excuse for defendants’ noncompliance. The Court believes, moreover, that a solid, good faith effort by all of the defendants is a sina qua non for an unfettered extension of the compliance deadlines. Cf. Kendrick v. Bland, 740 F.2d 432, 439 (6th Cir.1984) (indicating that a court should consider a defendant’s “cooperation and good faith” in fashioning a remedy for a constitutional violation).
More importantly, defendants failed at the hearing to offer the Court any reasonable assurances that they will in fact meet the new completion dates that they have proposed. Mr. Walter offered two reasons why the Court should have some confidence in those dates: (1) defendants formulated them after extensive consultation with all of the relevant department personnel; and (2) he will personally do his best to see that defendants meet the new deadlines. Mr. Walter acknowledged, however, that he could not offer the Court an ironclad guarantee, primarily for two reasons: (1) he has no control over the actions of other state departments and agencies; and (2) there are some factors, such as whether materials will be available on the open market when defendants need them, that are beyond even the State’s control.
Defendants do not, of course, have much control over the second factor. They do, however, have control over the first factor, and Mr. Walter admitted toward the end of his testimony that the involvement of some person with the ability to coordinate the efforts and responsibilities of all of the state departments and agencies involved in the construction projects would aid defendants’ compliance efforts significantly. The Independent Experts and plaintiff’s expert, Mr. Gray, similarly indicated that

someone in a position “organizationally superior to the agencies normally involved in the conduct of” the fire safety projects should become involved in the compliance effort. See Independent Experts’ January, 1987 Report at 4; Testimony of George Gray (indicating that the Court should consider whether defendants have made the projects a priority and whether someone with sufficient authority is administering them, and *1034 stating in particular that the Executive Department of the State must make the projects a State priority and not simply a MDOC priority). Defendants failed, though, to offer the Court any suggestions in this regard.
As the Court stated at the conclusion of the hearing, it is an easy finding to make that defendants are not in compliance with the requirements of the decree documents that concern physical improvements in fire safety at the subject institutions. The issue of how to remedy this noncompliance is a more difficult one to resolve, and is intimately connected to defendants’ Request for Modification of the State Plan. The Court thus will defer any further discussion of that issue until it discusses defendants’ Request.
B. Fire Safety Operations The Court was interested in two issues concerning fire safety operations at the January 16th hearing. First, it wanted to know if defendants are in compliance with the fire safety operations requirements of the decree documents. Second, as the Court indicated earlier in this opinion, it wanted to know what steps defendants could promptly take to enhance their fire safety operations and thus to mitigate the extended period of physical risk to which their inability to complete the physical construction projects will subject the inmates. With regard to the first issue, once again, the parties and amici agree that the Independent Experts’ report accurately assesses defendants’ compliance efforts. The Court thus will not discuss the level of defendants’ compliance with the fire safety operations requirements, other than to make a couple of important observations.
First, defendants’ compliance with those requirements, although much better than their compliance with the physical construction project requirements, is far from complete. I note in particular defendants’ failure to conduct monthly inspections at SPSM; their failure to ensure that combustibles are removed from all cell bars at SPSM–CC; their failure to store oxygen bottles properly at the Welding School at SPSM; and their failure to implement in full the fire safety operations plan at SPSM and MR. With regard to the last issue, Mr. Gray testified that some of the posted evacuation diagrams are inaccurate and misleading and that the Scott Air Pack training at the MR and the SPSM obviously is inadequate;
79

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
he noted that out of four guards he asked to demonstrate the pack, only one, who happened to be a trainer, was able to use it properly. The Court realizes, however, that defendants acknowledge their shortcomings in this area and are taking steps to remedy their noncompliance.
The real issue the Court must address in this area is whether there are steps defendants can take to enhance immediately their level of compliance in order to mitigate the danger posed by their failure to have completed the construction projects on time. The Independent Experts observed in their report, and Mr. Richard Hinds testified at the hearing, that defendants are taking a step in that direction by having Mr. Hinds work to coordinate fire safety operations at the three subject institutions, and thus to enhance the effectiveness of the fire safety operations plan. After the hearing, moreover, defendants submitted a document indicating that they are creating a full-time fire safety coordinator position. The Court agrees that this is a step in the right direction, and will discuss later what it wants defendants to do to mitigate the harm posed by their construction delays. For now, I will simply note that once again defendants offered little, if anything, at the hearing in response to the Court’s fourth inquiry of what can be done to enhance operational fire safety immediately.
Defendants’ Request for Modification and Remedies for Noncompliance
Defendants’ failure to have complied with the physical construction fire safety requirements of the decree documents has put the Court in a difficult position. Given that defendants do not dispute their ultimate obligation to complete the construction projects, the standards the Court discussed at the hearing for modifying a consent *1035 decree are not completely relevant, although they do underscore the heavy burden defendants bear in convincing the Court that their requested modifications of the Consent Decree and the State Plan either are not inconsistent with the purposes of the Consent Decree, or if they are, that they can mitigate those inconsistencies by other means. The issue before the Court, rather, is what steps it should take to ensure that defendants come into compliance with the fire safety requirements of the decree documents as soon as possible. This issue breaks down into three subissues: (1) whether defendants’ new proposed deadlines are realistic; (2) what actions the Court should take to ensure that the defendants adhere to those deadlines; and (3) what actions it should take to mitigate the danger posed by defendants’ requested extensions. Again, I emphasize that in addressing these issues, my primary concern is to fullfill, both in the shortterm and in the long-term, the intent of the Consent

Decree and the State Plan for Compliance to ensure the fire safety of inmates at the subject institutions. See New York State Association for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967–71 (2d Cir.1983), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1984).
With regard to the first issue, the Court finds, based on Mr. Walter’s testimony at the hearing, that the final and intermediate deadlines defendants propose in exhibit 1 are realistic. It also finds for the record that defendants have missed the July, 1986 deadline and cannot meet the deadlines they proposed in their September 29th Request for Modification of the State Plan. The Court therefore, with great reluctance and regret, accepts defendants’ proposed extensions in the completion deadlines for the fire safety construction projects as set forth in the document defendants introduced at the January 16th hearing as Defendants’ Exhibit 1. I accordingly will enter an order granting defendants’ September 29, 1986 Request for Modification of the State Plan, as that Request is modified by Exhibit 1. I accept, moreover, not only the final completion dates listed in exhibit 1, but also all of the interim deadlines for completion of relevant phases of the construction projects that defendants list in that exhibit. The Court therefore expects and orders defendants to comply with all of both the interim and the final deadlines given in Exhibit 1.
With regard to the second issue, the Court believes that the Independent Experts, Mr. Walter, and Mr. Gray have suggested a primary part of the answer to it, i.e., all of the defendants in this case must make completion of the fire safety construction projects one of their primary concerns and they must place in control of those projects a person with the authority to monitor and to administer them effectively. This monitor, coordinator, or administrator— whatever job title defendants wish to give her or him— must be in a position where she or he will be kept fully informed of any and all actions taken toward the completion of the projects and of any and all slippages that occur in the project timetables, and must have the authority to coordinate the activities of all of the relevant state agencies and departments and otherwise to ensure that any slippages are remedied immediately and that the projects are completed on time. Defendants’ continuing inability to complete these projects leaves the Court with little choice but to order that they take stronger measures. They also seem to be unable to comply with general requirements, and require specific guidance on their compliance obligations.
With regard to the third issue, the Court believes that defendants need to take measures to ensure that the operational aspects of their fire safety program are sufficiently effective to mitigate the danger posed by the construction delays. The Independent Experts’ Report, the testimony of Mr. Gray, and the testimony of Mr. Hinds
80

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
indicate that the appointment of a full-time coordinator to oversee and to ensure compliance with the fire safety operations requirements of the decree documents would be an effective way to achieve that goal. The Court notes that defendants have indicated that they intend to appoint such a coordinator. The Court *1036 also believes that defendants are fully capable of implementing in full all of the fire safety requirements that do not require physical improvements in the subject institutions.
In the order accompanying this opinion, therefore, I will require defendants to take appropriate actions, including the appointment of a full-time fire safety coordinator for the consent decree institutions, to ensure immediate and full compliance with the operational fire safety requirements of the decree documents. To the extent that any portion of my order may require defendants to take actions beyond those required by the decree documents, I believe that it is fully justified because of the extensive extensions defendants request in their construction deadlines and of the need to mitigate the danger that such extensions pose to the safety of the inmates confined at the subject institutions. With regard to this last statement, I note that Mr. Farbstein identified in his report the critical need for defendants to upgrade the physical structure of the decree institutions and that Mr. Gray recognized at the hearing the relationship between physical improvements at the decree institutions and operational fire safety.
In accordance with the above opinion, the Court will enter an order (1) finding defendants not to be in compliance with the fire safety requirements of the decree documents as set forth in the Independent Experts’ January, 1987 Report and in this opinion, (2) granting defendants’ modified September 29, 1986 Request for Modification of the State Plan, and (3) requiring defendants to take certain actions to ensure that they will come into compliance with the fire safety requirements of the decree documents as soon as possible. The Court realizes that defendants have made substantial improvements in the area of fire safety. I also realize that running a large prison system, particularly while concurrently attempting to implement extensive reforms, is a complex and difficult task. For that reason, the Supreme Court and the Sixth Circuit have consistently admonished district courts to act cautiously in requiring state officials to remedy unconstitutional conditions of confinement. See Kendrick, 740 F.2d at 438. Yet a Court is not required to stand by while a defendant violates the terms of a consent decree, particularly when the decree was entered after extensive negotiations between the parties, such defendant consistently has been unable to achieve compliance, and such defendant offers no compelling justification for its noncompliance. As the Sixth Circuit stated in Kendrick, “[i]n the event that the state fails to avail itself of the deferential opportunity to correct its constitutional defects with minimal federal

intrusion, the federal court may implement a more intrusive remedy.” Id. at 439.
In short, there is a limit to the deference a federal court must accord state officials. In the case of fire safety, I believe that I have just about exhausted my patience and deference. The testimony offered at the March, 1986 compliance hearing, the Independent Experts’ January, 1987 Report, and the testimony offered at the January 16, 1987 compliance hearing demonstrate that the defendants—which include the State of Michigan and the governor of the State of Michigan—have not put forth their best efforts to bring the subject institutions into compliance with the fire safety requirements of the decree documents. The Court therefore believes that it is amply justified in entering the attached order.
ORDER
In accordance with the opinion dated January 29, 1987;
IT IS HEREBY ORDERED that the Court finds defendants not to be in compliance with the fire safety requirements of the Consent Decree, the State Plan for Compliance, and the Stipulation, as identified and discussed in the Independent Experts’ January 1987 Compliance and Evaluation of Fire Safety Provisions and in the Court’s opinion;
IT IS FURTHER ORDERED that the Court GRANTS defendants’ September 29, 1986 Request for Modification of the State Plan, as modified by the document defendants introduced as Defendants’ Exhibit 1 at *1037 the January 16th hearing, and ACCEPTS and ORDERS defendants to comply in full with the interim and final deadlines for completion of the fire safety construction projects that are contained in exhibit 1;
IT IS FURTHER ORDERED that within fifteen (15) days of the date of this opinion and order, Governor Blanchard, as a named defendant and as the chief executive officer of defendant the State of Michigan, shall designate an official who is or shall be located within the Office of the Governor, and who has or will have regular access to the Governor, to monitor the progress of the fire safety construction projects, to ensure the proper coordination, management, and execution of the work on those projects, and to report to the Court in the event that any of the interim and final deadlines set forth in Defendants’ Exhibit 1, and adopted as an order of the Court, are not met. In such an event, the report from this official must (1) explain the reason(s) for the delay, (2) explain what actions defendants, including the State of Michigan and the Governor, have taken to correct the deficiency(ies),
81

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
and (3) demonstrate why defendants should not be held in contempt of court and assessed monetary and other coercive sanctions for failing to meet the deadline(s). This official shall file an appropriate report with the Court within ten (10) days of any missed interim or final deadline;
IT IS FURTHER ORDERED that within ninety (90) days of the date of this opinion and order, the Department of Corrections shall implement and provide to the Court an enhanced fire safety operations program to mitigate the dangers and risks associated with the construction delays that defendants have proposed and the Court has accepted. This program must include, at a minimum, the following:
1. The appointment of a full-time coordinator of fire safety for the Consent Decree Institutions, who shall be approved by the Court;
2. The establishment of two full-time positions to assist the coordinator. One of these positions may be used to provide clerical support for the coordinator; the other position shall be used to provide a person to assist the coordinator in the development and implementation of procedures and training programs;
3. The provision of adequate staff at each Consent Decree Institution to implement the operational fire safety provisions of the Consent Decree, the State Plan for Compliance, the Stipulation, and, in particular, the Fire Safety Operations Plan. This staff shall include not less than one fire safety officer and one clerk for the Michigan Reformatory, one fire safety officer and one clerk for the Marquette Branch Prison, and one fire safety officer and one clerk for each of the three complexes—North, South, and Central—at the State Prison for Southern Michigan, at Jackson. Defendants shall authorize these positions within sixty (60) days of the date of this opinion and order, and shall fill these positions within ninety (90) days of the date of this opinion and order;
IT IS FURTHER ORDERED that defendants may request the Court to dissolve the above provisions concerning a project coordinator and an enhanced fire safety operations program once they have completed all of their fire safety construction projects and can demonstrate to the satisfaction of the Court that they possess the capacity to ensure continuing compliance with the fire safety requirements of the Consent Decree, the State Plan for Compliance, including the Fire Safety Operations Plan, and the Stipulation;
IT IS FURTHER ORDERED that the Court will conduct a compliance hearing on Medical Care, excluding Mental Health issues, on March 27, 1987, and will conduct a hearing on Sanitation, Safety, and Hygiene on May 15,

1987.
OPINION OF MARCH 27, 1987 MODIFYING IN PART THE PARTIES’ STIPULATION
REGARDING MENTAL HEALTH CARE
At the October 24, 1986 mental health hearing the parties presented and placed on the record certain stipulations they had agreed to concerning defendants’ mental health obligations. See Transcript of Oct. *1038 24, 1986 Hrg. at 4–19. On January 16, 1987 the parties submitted a written version of their stipulations. On January 26, 1987 amici filed certain objections to the written stipulations. Independent of the amici ‘s concerns, the Court has its own problems with the parties’ stipulations. Rather than having the parties file amended stipulations, the Court will modify their January 16, 1987 stipulations as follows:
1. In-patient psychiatric hospital beds
The Court has accepted defendants’ use of the sixty (60) beds operated by the Department of Mental Health at the Ypsilanti Forensic Center to meet the one percent (1%) requirement the Court adopted in its May 9, 1986 Order. This acceptance, however, does not foreclose proof that to maintain an adequate level of mental health care, the Department must maintain sufficient unrestricted, actually used, bedspace to service one percent (1%) of the inmate population.
2. Dormitory Space at the Riverside Comprehensive Care Unit
The Court shares amici ‘s concern over this issue. The Court wants to receive defendants’ proposed clinical criteria for placement in the dormitory, plaintiff’s critique of those criteria, and defendants’ final criteria, if I do not already have them. Beyond that, the Court for the present will trust that defendants will not place inappropriate inmates in the dormitory area.
3. Staffing Ratios
The Court accepts defendants’ November 26, 1986 staffing ratios as a starting point. I note that these ratios may be altered during the JCAH accreditation process.
82

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
See Order of May 9, 1986, ¶ 3.e). The Court’s understanding is that JCAH accreditation for the Comprehensive Care Units is a compliance issue, at least for the present, and not a voluntary goal of the defendants. In its May 9th Order, the Court adopted the Independent Experts’ recommendation that defendants seek some form of external accreditation or licensure of the CCUs. Defendants accepted this recommendation in their June 6th submission, and more specifically agreed to pursue JCAH accreditation in their October 14th response to the Court’s August 29, 1986 questions. Implementation Schedule and Specification, § 3c., # 8 & § 3e); Defendants’ Response of Oct. 14, 1986 at 4–5; see also Transcript of Oct. 24, 1986 Hrg. at 6 & 19–20. The Court specifically relied on this acceptance of JCAH accreditation in accepting defendants’ Comprehensive Plan for Mental Health Services and in finding that defendants had purged themselves of contempt. Id. at 83 (relying on representations defendants had made “in their response to the questions the Court posed in its order of August 29, 1986” and on the “representations defendants made at this hearing”); Order of October 29, 1986. The Court thus believes that JCAH accreditation is a compliance issue at this time, and that such accreditation may affect defendants’ staffing levels.
4. Treatment of the Developmentally Disabled
The Court does not interpret the parties’ stipulation as supplanting either recommendation number seven (7) of the Independent Experts’ April, 1986 Report or paragraph 3.d)7. of the Court’s May 9, 1986 Order.
ORDER
In accordance with the opinion dated March 27, 1987;
IT IS HEREBY ORDERED that the parties’ January 16, 1987 Stipulations Clarifying Comprehensive Mental Health Plan and the Implementation Schedule are MODIFIED.
SHOW CAUSE ORDER OF APRIL 1, 1987 REGARDING OVERCROWDING
In accordance with the oral opinion rendered at the hearing held on March 27, 1987;
IT IS HEREBY ORDERED that the Court shall conduct a

hearing on overcrowding and sanitation, safety, and hygiene on May 20, 21, and 22, 1987 in Kalamazoo, Michigan;
IT IS FURTHER ORDERED that at such hearing, defendants shall be prepared *1039 to show cause why they should not be held in contempt of Court for failure to comply with Section D.5. of the Consent Decree, section IV.A. of the State Plan for Compliance, paragraphs I.4. and II.D.1 of the June 21, 1985 Stipulation, and section V.A. of the Court’s July 22, 1986 Order;
IT IS FURTHER ORDERED that the parties and amici shall be prepared to discuss the effects of overcrowding on the following requirements of the Consent Decree and the State Plan for Compliance:
—provisions relating to adequate staffing;
—provisions relating to surveillance and security;
—provisions relating to the delivery of required programs and services;
—provisions relating to out-of-cell activities;
—provisions relating to the appropriate assignment of inmates to housing units;
—provisions assuring that inmates likely to be violent will not be assigned to dormitory units;
—provisions relating to sanitation; and
—provisions relating to physical and operational fire protection.
The parties and amici shall also consider and be prepared to discuss conditions that existed prior to the hearing dates as well as conditions that can be anticipated based on defendants’ plans, projects, and projections.
IT IS FURTHER ORDERED that the parties shall submit any reports of their expert witnesses to the Court, the Independent Expert, the other party, and amici by May 11, 1987.
OPINION OF MAY 8, 1987 ENFORCING THE MEDICAL CARE REQUIREMENTS OF THE CONSENT DECREE, THE STATE PLAN FOR
COMPLIANCE, AND THE STIPULATION
On March 27, 1987 the Court held a hearing on defendants’ efforts to comply with the medical care requirements of the Consent Decree, the State Plan for
83

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Compliance, and the Stipulation, which I shall collectively refer to as the decree documents. The following persons testified at the hearing: the Court’s Independent Expert, Dr. F. Warren Benton; plaintiff’s expert witness, Dr. Charles A. Braslow, M.D.; Defendants’ Consent Decree Coordinator, Ms. Luella Burke; the Director of Nursing at the Marquette Branch Prison (“MBP”), Ms. Gloria Anthony; the Director of Nursing at the State Prison of Southern Michigan (“SPSM”), Ms. Jacklyn Tietlebaum; and the Medical Director at the SPSM, Dr. Silas Norman, M.D. The Court accepted into evidence as exhibits Dr. Braslow’s curriculum vitae, Dr. Braslow’s expert report, and defendants’ March 25, 1987 Status Report on Mental Health Staffing. The Court also has considered the Independent Experts’ March 1987 Compliance Evaluation of Medical Services Provisions, which the parties and amici have had an opportunity to review and to challenge, in preparing this opinion. The following opinion constitutes my findings of facts and conclusions of law concerning defendants’ efforts to comply with the medical care provisions of the decree documents, excluding those provisions relating to mental health care, which will be the subject of a separate hearing later this year.
In general, the Court believes that the Independent Expert’s report and the evidence introduced at the March 27th hearing established that defendants’ efforts to comply with the medical care requirements of the decree documents are succeeding. I observe in particular that defendants are committed to providing medical care to the inmate population that is consistent with contemporary professional standards. They have, for example, opened a new hospital at the SPSM that impressed plaintiff’s expert, and are implementing an annual health care audit program that should allow them to discover, and presumably to correct, any deficiencies that may exist in their system of health care. Defendants are, moreover, aware of most, if not all, of the defects in their health care system and are taking actions to remedy them. In this opinion, the Court will discuss (1) the defects or problem areas that the Independent Expert and the persons who testified at the hearing have identified in defendants’ *1040 health care system and (2) what it believes defendants either have agreed to do or should do to remedy those defects and problem areas.
1. Surgical Backlog at SPSM
The Court understands that due (at least in part) to the delayed opening of the surgical unit at the SPSM hospital, there currently is a backlog of inmates waiting to undergo surgery at the hospital. The IEs’ report and the testimony

at the hearing indicate that the surgical unit is now open and that the hospital staff is beginning to reduce the backlog. I did not, moreover, receive any evidence indicating that the backlog has caused or is causing inmates to suffer any significant harm. The Court therefore simply will note this as a potential problem area and request defendants to include a special notation on their July, 1987 semi-annual compliance report concerning the status of the surgical backlog, if any, at the SPSM hospital.
2. 24–Hour On–Site Physician Coverage at the SPSM Hospital
Defendants currently do not have a physician at the SPSM hospital twenty-four (24) hours a day. Dr. Norman testified that on the night shift, a physician’s assistant (“PA”) is on duty and a physician is on-call. He also stated that a hospital emergency room is only five minutes away and that defendants are prepared to transport any inmate in need of emergency treatment that either the PA or the on-call physician cannot provide. Dr. Norman in addition testified that defendants have no plans to provide 24–hour on-site coverage at the hospital, even though Dr. Lynn Green, the Deputy Director of the Bureau of Health Care Services, testified at the March, 1986 compliance hearing that defendants planned to provide such coverage once they had sufficient staff. Transcript of Compliance Hearing, vol. III, at 535. Dr. Braslow testified, moreover, that given the size of the institution at SPSM and the presence of an operating room and an emergency room at the hospital, there should be 24–hour on-site physician coverage.
The Court does not believe it has sufficient evidence before it at this time to determine whether it should require defendants to provide 24–hour on-site physician coverage at the SPSM hospital. The Consent Decree requires defendants to provide “adequate medical ... services ... to respond to the serious needs of the prisoners,” para. A, while the State Plan provides that “the services and practices” at the new SPSM hospital “shall be no less than those that would be required for licensure in a non-prison setting.” Sec. II.B.1. Defendants argue that their current system is adequate because during the night shift they have a PA on duty, a physician on call, and a hospital emergency room only five minutes away. Dr. Braslow believes that defendants should have 24–hour physician coverage on the hospital premises, and Dr. Green appears committed to that goal. The Court, however, received little evidence indicating that the lack of 24–hour on-site coverage in this context either poses a specific risk of harm to the inmates or falls below contemporary professional standards. I therefore will
84

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
leave the situation as it is for the moment, with the provisos that defendants should clarify at the May 20th hearing whether they intend to provide 24–hour on-site coverage once all of the physician positions at the SPSM are filled, and that plaintiff is free to move the Court to require defendants to provide 24–hour on-site physician coverage at the hospital.
3. Limitations on Surgery at the SPSM Hospital
The SPSM Hospital apparently is not equipped to perform certain kinds of operations, particularly those that require invasive surgical techniques, complex orthopedic procedures, and neurosurgical procedures. Defendants indicated at the hearing that they recognize the hospital’s surgical limitations and will not attempt to perform operations for which the hospital is not properly equipped.
4. Respiratory Therapy Staff at the SPSM Hospital
Dr. Braslow recommended in his report that defendants acquire respiratory therapy *1041 staff “as a necessary service for management of general anesthesia patients and patients with chronic lung disease.” Report at 3. Dr. Norman testified that defendants currently have qualified staff to deliver respiratory therapy at the hospital, but the Court understands that defendants have agreed to establish a respiratory care unit at the hospital anyway. The Court accepts defendants’ agreement, subject to the proviso that plaintiff must approve the care unit.
5. Medical Examination Room at the Michigan Reformatory Dormitory
Dr. Braslow stated in his report that the examining room at the Michigan Reformatory (“MR”) Dormitory is quite small and is employed for on-site sick call evaluations only once a week. At other times during the week, sick inmates must walk to the medical care area inside the reformatory. Dr. Braslow believes that “[e]xpansion of the size and utilization of the medical area within the dorm would be helpful in improving access to medical care of the inmates housed there.” Report at 3. Dr. Braslow testified at the hearing that the sick call area is minimally adequate, but also observed that several inmates perceived difficulty in getting to the main institution for medical care; he noted in particular that several inmates who apparently were unable to walk to

the main institution also were unable to secure transportation there.
The Court is concerned about this situation, but is unsure where to place it in the context of the Consent Decree and the State Plan. The State Plan requires defendants to upgrade the examination room at the dormitory, which they apparently have done, and to ensure that the room complies “with minimal professional standards as necessary to protect inmate health.” Sec. II.B.2. The Plan’s provision on access to health care states, moreover, that defendants will “make adequate provisions to assure that inmates will be transported as needed from housing or other areas to the health care facility.” Sec. II.D.1. I interpret this provision as requiring defendants to transport inmates in need of care who are unable to walk from the dormitory to the main institution at the MR. As an alternative, defendants may wish to expand their onsite sick call evaluations at the dormitory. Regardless of how defendants choose to proceed, the Court believes that they are required to ensure that inmates unable to transport themselves are provided with appropriate access to a medical care area.
6. Prompt Medical Treatment for Transferees
The amici expressed concern that inmates in need of treatment are not being transported quickly enough to institutions where they can receive appropriate care. This problem appears to be particularly acute at the MBP, where inmates in need of treatment often must be transported to the SPSM. In his report, the Independent Expert reported instances of where inmates had to wait three or four weeks to be transported to the SPSM for treatment. The Court received no evidence, however, indicating that inmates are suffering from this transportation delay. I expect, moreover, that defendants are adhering to my July 15, 1986 interpretation of the Consent Decree and the State Plan as requiring them not to “allow security or transportation concerns to override a medical determination that a particular inmate is in need of prompt treatment and must be transported to an appropriate facility.” Opinion of July 15, 1986 at 3. I therefore will take no action on this issue at this time.
7. Involvement of LPNs in Triage Decisions
The Independent Experts, plaintiff, and amici expressed concern that Licensed Practical Nurses (“LPNs”) may be performing triage decisions. The State Plan provides that “uncredentialed staff are not to make triage decisions.”
85

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Sec. II.E.2. The concern apparently is that LPNs constitute “uncredentialed staff” where triage decisions are concerned. The Court is unable to resolve this issue at this time for two reasons. First, I am not sure whether LPNs actually are performing “triage” decisions. Second, I have an insufficient factual basis for determining whether LPNs *1042 are qualified to perform triage decisions. I note that defendants have provided the Court with a description of the LPNs’ duties. The Court therefore will await further comments, arguments, and evidence from the parties and amici before taking any action on this issue. At the present, I am not convinced that there exists a problem I need to resolve, and thus will take no action.
8. Chronic Disease Index Plan
[36] The State Plan requires defendants to establish a “professionally designed plan ... to provide for systematic follow-up care for inmates with serious chronic disease.” Sec. II.G. At the MR and the MBP, defendants have established a computer-based chronic disease index and are in full compliance with the State Plan’s requirement. At the SPSM, however, defendants still are operating a manual card system and apparently are having difficulty keeping the system up-to-date. The Independent Experts indicate that the system was not in operation from May, 1986 until October, 1986, but that as of February, 1987 it was back in operation and in the process of being updated.
The Court believes that a manual system probably is adequate to satisfy the State Plan’s requirement, provided the system is maintained and serviced on a regular basis. I expect that defendants will continue to maintain the system at the SPSM that they had reactivated in October, 1986, and expect them to report to the Court immediately any breakdowns in that system.
9. Staffing at the MR and the SPSM
It is clear from the Independent Experts’ report and from the testimony at the hearing that defendants continue to experience significant staffing problems at the SPSM and, to a lesser extent, at the MR. The primary staffing problem at the MR appears to be a vacancy in a physician’s position. Dr. Braslow indicated that defendants should fill that position as soon as possible. The Court, however, heard no evidence that the vacant position creates an unacceptable risk of harm to the inmates. I thus urge defendants to fill that position as soon

as possible, but will not establish a specific deadline for them to do so.
The staffing problem at the SPSM is more severe. It appears that defendants’ staffing plan for this institution is adequate, provided all of the positions are filled. I thus agree with defendants that the Independent Experts’ 2 rating for the SPSM hospital for requirement number 43 reflects defendants’ failure to have filled all of the positions rather than a defect in the staffing plan itself. Dr. Braslow did testify at the hearing, however, that the SPSM’s current level of staffing is not minimally adequate. Dr. Norman disagreed with that assessment, stating that the current vacancies do not affect defendants’ ability to deliver health care services.
The Court does not believe that the situation at the SPSM is sufficiently serious that it should, as amici suggest, require defendants to contract out for services. I am concerned, however, about the vacancies’ effect on defendants’ ability to provide an adequate level of health care to the inmates. I believe that defendants should fill all vacant medical care positions at the SPSM by July 24, 1987. On that date, defendants shall file a status report on their efforts with the Court. If positions remain vacant, defendants shall describe their efforts to fill those positions and shall provide a detailed assessment of the effect of such vacancies on their ability to comply with the medical care requirements of the decree documents. Plaintiff and amici shall then have until August 10, 1987 to respond to defendants’ submission, and to suggest actions the Court should take to alleviate or to remedy any problems. Defendants shall have until August 17, 1987 to reply to the plaintiff’s and amici ‘s submissions.
10. Medical Administrative Audits
The State Plan requires defendants to conduct annual administrative audits “by Health Care administrators and persons qualified in various specialized support services to assess the organization of health services, quality and quantity of health care staff, adequacy of policies and procedures, processing of grievances, and inmate *1043 perception of quality of care.” Sec. II.M.2. The Independent Experts question whether these audits assess “inmate perception of quality of care.” Defendants acknowledge that they have failed to consider this factor, but agree to do so in the future, such as by examining inmate grievances on the health care system. The Court accepts defendants’ agreement and expects them to follow through on it.
86

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
11. Problem–Oriented Health Record System
The State Plan requires defendants to maintain their modified problem-oriented health record format. The Independent Experts’ report suggests that defendants have had difficulty keeping the records at the SPSM up-to-date. The Court believes that defendants recognize the problem and are taking steps to cure it, and therefore will take no action on the issue at this time.
12. Access to Health Care
The most contentious issue at the hearing concerned defendants’ system for providing inmates access to the health care system. The Consent Decree requires defendants to provide “inmate access to adequate medical facilities and medical staffing including licensed, qualified physicians and psychiatrists, dentists, registered nurses, and such other medical personnel as defendants deem necessary.” Para. A.1. The State Plan establishes more detailed access to health care requirements:
1. Within 60 days from the date of the implementation of this plan the Department will submit a plan pursuant to decree Section VI on Plans, by which all inmates will be afforded daily access on each weekday to a sick call register. Any inmate who registers for sick call shall within 24 hours receive an appointment to be seen by medical staff within a reasonable time given the particular medical complaint, except those registering on a Friday may have their appointments determined on the following Monday. Inmates shall be afforded direct access to a register, which health care staff then collect. The register shall provide an opportunity to request care for serious medical, serious mental health, and serious dental conditions.
The Department’s plan for direct access to health care must provide at least equivalent daily access on weekdays for inmates in segregation units (administrative, punitive, protective) and MIPC. While the procedure may differ for such inmates, the access may be no less.
Sec. II.D.1.
Defendants promptly submitted a plan for access to health care that, in general, establishes a kite system for such access. An inmate in need of care or treatment fills out a kite (a piece of paper) on which he discusses his need and symptoms. The kites are collected on a daily basis, on weekdays, and are reviewed by qualified health care personnel who establish an appointment for the inmate to see a health care specialist. The inmate generally receives an appointment to see someone on the next sick-call day

for his living unit. The health care personnel base their appointment decisions, in general, on a review of the inmate’s kite, sound professional judgment, and applicable procedures and protocols. They are instructed to take further action to investigate the inmate’s complaint if necessary, and are instructed to respond promptly to complaints that require emergency treatment. Depending on the institution, sick-call days are held one to three days a week. In addition, licensed health care providers, who appear to be predominately registered nurses (“RNs”), make daily rounds in the segregation units. Finally, at the SPSM defendants conduct daily afternoon drop-in clinics for inmates who cannot or do not wish to wait for the weekly sick-call day. To access this system, however, an inmate must request a correctional officer for permission to go to the clinic. The kite sick-call system by comparison bypasses the correctional officers.
In his report, Dr. Braslow expresses concern about defendants’ system of access to health care. He states that in his opinion, “the major purpose of the plan, which is to allow inmates ‘to receive health-related services at other times’ than once or twice *1044 weekly, has not been accomplished as the plan has been implemented at MBP and SPSM.” Report at 5. Dr. Braslow’s primary concern is that defendants base their judgment on when an inmate will actually see a health care professional on a paper review of the kite rather than on an actual physical examination of the inmate. He believes that “information on a kite may be insufficient for determining the true urgency of a medical condition, even for those with ‘sound professional judgment.’ ” Id. Dr. Braslow argues that defendants should conduct daily sick-calls, at least on weekdays, as is done at the MR. He also observes that although health care personnel make daily rounds in the segregation units, care must be taken to ensure that the rounds are not rushed, but rather are “conducted thoroughly and carefully in order to pick up signs of significant medical or mental disorders.” Id. at 6.
Dr. Braslow reiterated these concerns at the hearing. He testified that the current system is not adequate to meet inmates’ health needs, primarily because under the current kite system inmates enjoy no direct contact with the medical staff on a daily basis. He acknowledged that defendants could adequately screen medical emergencies based on a review of a kite if inmates could adequately describe their conditions and the severity of their symptoms. He doubted, however, inmates’ ability to do so, and also expressed doubt as to whether defendants could develop a protocol that would allow for proper triaging based on a review of a kite. He believes that one cannot diagnose certain conditions based simply on a kite. Dr. Braslow in addition testified that the afternoon dropin clinic system defendants operate at the SPSM is not an adequate substitute for daily sick-calls because it involves the correctional officers, who must allow an inmate out of
87

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
his cell to attend the clinic.
[37] Defendants’ witnesses, Ms. Anthony, Ms. Tietlebaum, and Dr. Norman, testified that the present kite system is adequate to provide inmate access to the health care system. The Court did not, however, find their testimony sufficient to allay the concerns that Dr. Braslow, who has had extensive experience in the provision of medical care in prison settings, expressed in his report and at the hearing. Ms. Anthony testified that she has had no experience reviewing kites and that she had based her testimony on oral orders she had given her nurses and on what she expects them to do. I also observe that she testified that implementation of a daily sick-call system probably would not increase the number of patients seen or otherwise make much of a difference. Ms. Tietlebaum had been in her present position for only six months and acknowledged that defendants base their handling of an inmate’s request for treatment largely on the information he has supplied on his kite. Finally, Dr. Norman is not directly involved on a daily basis with the review of kites, but rather performs more an oversight function. The Court accepts Dr. Norman’s testimony that in a significant number of cases, a health care professional can adequately judge the severity of an illness on a review of the kite. I also credit Dr. Braslow’s testimony, however, that in an equally significant number of cases a personal examination of the inmate is required, and I cannot accept Dr. Norman’s assertion that defendants generally are able to judge when further investigation is needed. In short, the Court finds that defendants’ present system of access to health care in the general population units at the MR and the SPSM is inadequate to protect the inmates from a serious risk of harm.
The Court also is unsure about the adequacy of defendants’ system for providing regular access to health care to inmates confined in segregation units. Defendants apparently have sick-call in the segregation units once a week. As I stated previously, however, defendants also have health care professionals make daily rounds in the segregation units. Dr. Braslow indicated both in his report and in his testimony at the hearing that these daily rounds could comprise sick-call visits if the persons making such rounds are thorough and are able to identify inmates with problems and to provide them with adequate care. He also indicated that although RNs trained in *1045 physical assessment could fulfill this function, he would prefer to see PAs making the rounds.
In accordance with the above discussion of this issue, the Court will enter an order requiring defendants to produce a revised system of inmate access to health care at the MBP and the SPSM that is acceptable to the plaintiff. The parties shall have thirty (30) days from the date of this Opinion to negotiate an improved system. If they are unable to agree on a revised system within that time

frame, they shall submit their proposals to the Court along with supporting memoranda, and the Court will issue a written decision on the issue. I note here that my strong preference, based on Dr. Braslow’s testimony at the hearing, is for a system that allows inmates daily direct physical access to the health care system (on weekdays) (i.e., daily sick-calls), and that provides for an increased percentage of PAs to perform these sick-calls, particularly in the segregation units. In the segregation units, however, the Court will accept assessments performed by RNs who are adequately trained in that function.
There remain for discussion two additional issues the Court had asked defendants to report on at the March 27th hearing. The first concerns the overcrowding problem at the decree institutions. The Court has scheduled a hearing on this issue for this month and thus will not discuss it further here. Second, the Court had asked defendants to report on their efforts to fill the vacant mental health care positions. Defendants submitted at the hearing an extensive status report that details the actions they have taken to recruit qualified mental health care personnel. I see little that I can do in this area at the present, although I strongly believe that defendants must fill those vacancies as soon as possible. It appears that defendants are making a good faith attempt to do just that, and the Court hopes that their efforts are soon rewarded.
ORDER
In accordance with the Opinion dated May 7, 1987;
IT IS HEREBY ORDERED that defendants shall clarify at the May 20, 1987 compliance hearing whether they intend to provide twenty-four (24) hour, on-site physician coverage at the SPSM hospital;
IT IS FURTHER ORDERED that defendants shall file a status report on July 24, 1987 on their efforts to fill the medical care vacancies at the SPSM; they should make every possible, reasonable, effort to fill those vacancies by that date;
IT IS FURTHER ORDERED that defendants shall have thirty (30) days from the date of the Court’s opinion to produce a revised system for inmate access to health care at the MBP and the SPSM that is acceptable to the plaintiff.
BENCH OPINION OF MAY 21, 1987 ISSUING TEMPORARY RESTRAINING ORDER
88

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
REGARDING OVERCROWDING AT THE RECEPTION AND GUIDANCE CENTER
Have to take a roll. Is everybody here? The Court has heard two full days of testimony. It is 7:00 o’clock at night. There is going to be more testimony tomorrow, and I will have to make my final decision obviously based upon what I hear tomorrow, compared to what I have already heard. What I am going to say now, I am going to modify possibly—or possibly I am not. The Court issues a restraining order at this very moment; and the restraining order is that no prisoners shall be received at the Reception and Guidance Center from this moment, 7:00 o’clock tonight, until at least Tuesday, May 26th, which is the day after the holiday. I may modify that. I may extend it. I may abolish it after I have heard testimony tomorrow. I make this ruling, this restraint, based upon the extreme risk of harm as presented to this Court so far in two days, on the testimony of Mr. Gray, the testimony of Mr. Miller, and especially the testimony of Deputy Director Bolden and all that he said just today, including his being extremely embarrassed by the risk of harm to inmates both from a fire safety point of view, from a sanitation point of view, and from a general *1046 risk of harm point of view. Perhaps I will wish to modify that when I hear more testimony tomorrow from the State. That is to be seen.
The Court observes in making this restraint at this time, and in considering a much broader restraint tomorrow, the following matters of concern: First, as I indicated at the outset of this hearing, Section D.5 of the Consent Decree provides that the defendants shall “Take each and every step within their lawful authority to eliminate overcrowding.” That section further provides that the defendants shall have complied with this requirement as appears in the State Plan no later than June 30th, 1985. Second, Section IV.A of the State Plan for Compliance additionally says: “This plan assumes continuation of single celling. Dormitories shall provide 60 square feet per inmate. Space requirements for administrative segregation are set out elsewhere herein.” Thirdly, and a scant nine days before that deadline was to be met, a Stipulation was filed with this Court on June 21st, 1985, wherein the parties recognized that, “the minimum security dorms are presently overcrowded, are not providing 60 square feet per inmate according to the State Plan requirement.”
The Stipulation provided, however, the State with an extension of time to comply with the State Plan, provided the State should keep the Court and the United States fully informed as to the State’s effort to reduce overcrowding, and extended the time until June 30th, 1986 to comply with Section D.5 of the Consent Decree which had not been complied with by the State. The reason that the Court signed the Stipulation, it was

because it had, or the order, accepted it, was because it had no real choice, and the Court was concerned that the situation be consistent with Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), as I indicated before.
Fourth, by Section V.A of the Court’s July 22nd, 1986 order—which, there was another request to extend past the June, 1986 period of time and submitted to the Court as I recall in about April or May as the deadline was again running out—the Court ordered by July 22nd when the second deadline had been missed, ordered the defendants to implement their plan and decrease overcrowding and end inappropriate security classification placements, and provide the Court and amici with tri-monthly progress reports—based upon the testimony of Ms. Burke who assured the Court that regardless of population influxes and classifications there would be no problem in meeting the deadline on January 1st, 1987. As everybody knows, it has not been met. So the Court obviously is considering at this moment issuing an order tomorrow—as a possibility—of immediately ordering compliance. I mean they are five months past the third missed requirement. We have heard all of the reasons why that has happened. The record is full of that.
The Court also believes that it doesn’t understand from the defendants’ lawyers what it is being asked to do. I have the vague feeling after the last two days and after reading materials that the lawyers are asking me to do something, but they won’t tell me what it is. Maybe they are saying to me they want another motion to modify. If they want a motion to modify—and I don’t know that they do. I don’t know that they are prepared at this moment to tell me—they should do so by 9:00 o’clock tomorrow morning; and if they do so by 9:00 o’clock tomorrow morning they should tell me what it is the State defendants propose to do about the overcrowding situation. It should incorporate, this motion if it is made, a plan they may wish to propose. I don’t know. And that was clear from my asking Mr. Kime whether or not a plan was being presented to me or not. And in that motion, if a motion is to be filed, they should tell me what sanctions should be applied by this Court if the State defendants again fail to comply with now what I would call the fourth plan, or the fourth attempt. It is not really the fourth plan. It is the third plan. But it is the fourth new deadline date if there is a new deadline date. I don’t know if there is. I am not aware what I am being asked to do. I want to know about that at 9 o’clock tomorrow morning. If the State defendants *1047 wish to produce a witness, that is fine. I will take anything. I don’t understand what is happening. If not, the Court will just act as if there were no motion to modify, and I think that to act accordingly I have got to clear out the consent institutions from overcrowding tomorrow. I don’t see any other alternatives. That includes more than the Reception and
89

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Guidance Center. It includes everything in the Consent Decree institutions.
As I say, I have the feeling that somebody is asking me to do something, but nobody is looking me in the face and nobody is saying this is what we want you to do. If there is something that somebody wants me to do, I want to know about it. That is the State’s assignment anyway. I am not sure what I need to say to Justice tonight.
MAY 22, 1987 TEMPORARY RESTRAINING ORDER
In accordance with the bench opinion rendered at the hearing held on Thursday, May 21, 1987;
IT IS HEREBY ORDERED that defendants, their officers, agents, and employees, and anyone else hearing or receiving notice of this Order, is enjoined and restrained from receiving any new inmates into the Reception and Guidance Center at the State Prison of Southern Michigan, Jackson, Michigan, from seven o’clock in the evening Thursday, May 21, 1987 until six o’clock in the morning Tuesday, May 26, 1987.
BENCH OPINION OF MAY 22, 1987 FINDING THE DEFENDANTS IN CONTEMPT OF COURT REGARDING OVERCROWDING AT THE DECREE INSTITUTIONS
The Court is going to address, I guess, three or four issues: First, the situation at the Reception and Guidance Center; Secondly, the situation with overcrowding at the Decree Institutions; Thirdly, the motion made by the defendants this morning; and, Fourthly and finally, some matters about posttrial submissions and a mental health hearing that I will set today.
[38] Starting first with the Reception and Guidance Center situation, the Court has heard a lot of testimony over the past three days. As everyone in this room knows by now, one of the Court’s primary concerns is with the situation at the Reception and Guidance Center at the State Prison of Southern Michigan at Jackson. Last night, of course, I found the situation of the inmates on the base at the Reception and Guidance Center sufficiently serious to justify an order forbidding the defendants from admitting any inmates into the institution until at least Tuesday, May 26th, 1987. I withheld taking any further action, however, to allow defendants more time to justify their position on the placement of inmates on the base at the

Reception and Guidance Center. Having heard additional testimony from defendants this morning, I remain convinced that inmates cannot be housed at all on the base at the Reception and Guidance Center, and can be housed on the bulkheads at the Reception and Guidance Center only as a temporary—i.e., not lasting more than three days—emergency measure to handle unexpected influxes of inmates.
Deputy Director Bolden testified for defendants that putting inmates on the base and in the bulkheads at the Reception and Guidance Center was the last thing that he wanted to do, but that he had no choice because there simply was and is no room in the system to put the inmates who have completed the intake process. He also stated that to eliminate overcrowding at the Reception and Guidance Center simply would create equally serious problems elsewhere in the system. I am convinced, however, that the situation at the Reception and Guidance Center is sufficiently serious that I would be abdicating my judicial responsibility, and could easily have a significant disaster on my hands, if I were to do nothing about it. I am further convinced that defendants have a multitude of options regarding the placement of inmates that would not create serious problems elsewhere in the system, or elsewhere in our society.
I think that just a brief summary of the testimony will suffice to illustrate the seriousness *1048 of the situation at the Reception and Guidance Center. Mr. George Gray, plaintiff’s fire safety expert, states in his report that the stairways at the Reception and Guidance Center are inadequate to handle the inmate population, particularly when the bunks in the bulkheads partially block the stairs. He also criticized defendants for having an insufficient number of exits and for having extensive travel distances to the exits. More importantly, he had the following to say regarding the placement of bunk beds on the base of the institution. Quote: “Bunks beds at base are so crowded that in some cases they barely miss touching and would not permit access to the bed from either side. This creates a condition wherein an inadvertent or deliberately set fire could quickly ignite bedding and other inmate combustible materials and flash to adjacent and overhead material in such a way as to become quickly uncontrollable. A flash fire through this area would almost certainly cause a loss of life. The rapid generation of smoke and its rise within the block could catch many before they could get down and out. The few staff with air pacs could be so overwhelmed as to cause a real disaster. The typical arrangement of bunk beds with at least a three-foot spacing and inmate personal possessions in steel lockers disperses the combustibles in such a way that an incipient fire can probably be caught and dealt with. The crowding in this particular situation substantially defeats that probability.” He concludes that, quote, “at cellblock 7, overcrowding does increase risk not only to
90

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
the inmates housed above the normal capacity but also to the normal capacity population itself.”
Mr. Gray’s testimony was equally damning. He stated that the Reception and Guidance Center was seriously and dangerously overcrowded. He explained again the inadequate stairways, the bunks that are too close to the stairs, the dangers posed by the extremely long cellblock, and the special concerns posed by the bunk beds on the base. Mr. Gray concluded that in terms of fire safety, the Reception and Guidance Center was a hazardous situation that should be remedied immediately before a tragedy occurs.
Plaintiff’s other expert witness, Mr. Miller, also noted the dangerous conditions that exist at the Reception and Guidance Center. He noted in his written report that no storage areas are available for the inmates’ private possessions; that many inmates suffer from boredom and idleness; and that the, quote, “base dorm must be seen to be fully appreciated.” I think Mr. Miller summed up his feelings in the following paragraph of the written report on page 9: “Many inmates have stretched an extra sheet or large plastic bag over the length of the top bunk as a defense against the ‘Jackson Air Force’, i.e., the pigeons that infest the cellblock. This is not some inmate fable; walking around the upper tiers of the cellblock one encounters pigeons on patrols of their own, especially in the walkway behind the cells. Also, one can see the bird excreta on the sheets and bags stretched across the top bunks. In addition, the Jackson Air Force apparently will hold occasional maneuvers during mealtimes, resulting in the befouling of food on people’s plates. Since the food is brought over from a main kitchen based on a definitive count, there are no extras available to replace portions on which the birds have left their mark. To say that this situation causes tension and unrest is to state it mildly. Being stuck on or immediately adjacent to one’s bunk under such crowded, filthy conditions is untenable. Even though these people are convicted criminals, it is atrocious that any human being would be kept in such conditions. While not being a sanitarian, even I can readily see that such conditions are filthy and an abominable comment on the lengths to which the system is forced to go in an effort to cope with overcrowding. Even with the extra correctional officer staffing, one can only observe that these conditions are atrocious and cannot or should not be sustained as adequate housing. The base dorm should be closed. Even if the pigeon problem were to be resolved, there are still too many people packed into this area. In addition to the base dorm, inmates are also housed on the bulkheads on the third and *1049 fourth galleys. On each galley, one cell is kept open for use as a lavatory. On the day of my visit, neither cell had hot water. People stay on the bulkheads for two to three weeks and I seem to recall one man who had been there for two and one-half months. As with the base dorm,

there is no furniture other than double bunks. Storage of personal property is a definite problem, when the inmates leave the bulkhead for showers, meals or outdoor exercise, their goods are at the mercy of the other inmates who use the stairways at either side of the bulkhead as their main mode of transit within the cellblock. Furthermore, several bunks are just too close to these stairways, if a quick evacuation of the upper galleys were necessary. Boredom, idleness and a total lack of privacy are the order of the day. The one saving grace that prevents major trouble is the placement of a correctional officer right in the middle of the base dorm with backup, if necessary, coming from the other officer stationed on that galley. Two major problems with this arrangement are the inherent opportunities for theft and the potentially negative impact on emergency evacuation.”
Mr. Miller reiterated these concerns in his testimony at the hearing. He testified that out of the 550 to 600 prisons he has seen in this country, the Reception and Guidance Center was the worst in terms of the base dorm. He testified that the inmates confined in the base dorm are, quote, “very definitely exposed to harm as well as potential for harm,” end quote, and that the base dorm, quote, “cannot be justified as housing for human beings.” He strongly suggested that the Court close the base dorm forthwith, and concluded that conditions are so indefensible that the Court should close the base dorm regardless of the consequences elsewhere in the system.
The Court finds that defendants were unable to rebut this testimony, or the conclusions I should draw from it. Deputy Director Bolden admitted that defendants have a serious problem at the Reception and Guidance Center and stated that, testified actually, he was ashamed to hear Mr. Gray’s and Mr. Miller’s testimony regarding conditions there. Warden Jabe agreed that the base dorm should be closed although he thought that it did not have to be closed immediately. I note, however, that Warden Jabe is not a fire safety expert and has been at the SPSM only since May 1 or for 22 days maximum. Fire safety, moreover, is not the kind of situation where you may get a second chance to correct “management problems”; one disaster is enough. One disaster is the end. Mr. Camp agreed it was desirable to get inmates off the base and bulkheads, and the word “desirable” was the strongest statement that he would make about conditions at the institution, wherever they might occur.
I am, of course, pleased that the defendants have made an effort to clear out the Reception and Guidance Center base area and bulkhead area voluntarily today, although a little late, but the Court cannot do anything except order that it stays that way; and I return to the statement that I made at the start of this brief opinion, that is, that it would be an abdication of my judicial responsibility if I failed to take affirmative action regarding the base dorm in the
91

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Reception and Guidance Center. The record more than amply supports the complete closure of the dorm area. It also supports an order restricting use of the bulkhead areas to emergency, overflow type situations. As additional support for this action, if any is needed, I do not believe that closure of the base dorm will, as Mr. Bolden testified, simply create equally dangerous situations elsewhere in the system. I thus see no sense to waiting until sometime in June, as Mr. Bolden urges, to close the base dorm.
Specifically, the record indicates that there are at least five measures the defendants can take to relieve the overcrowding situation (I would note parenthetically, not only in the Reception and Guidance Center but throughout the Consent Decree institutions) that will not enhance the problems that exist elsewhere in the system and that are consistent with defendants’ Consent Decree obligation to, quote, “take each and every step within their lawful authority to *1050 eliminate overcrowding.” First, Governor Blanchard can invoke his powers under the Emergency Powers Act to reduce overcrowding in the system. Mr. Kime testified that use of the EPA could reduce the prison population by 500 to 600 inmates over the next two to three months. He also stated that the inmates who would be released are inmates who would be getting out on parole within the next three months in any event. The increased harm to the public thus should be minimal, if in fact any exists at all. In this regard, one will remember Mr. Kime’s testimony as to the fact that since the EPA has not been used since 1984 and since the “bottom of the barrel” was being scraped then, that this would be one of the best times to use the EPA in the last seven years.
Secondly, Mr. Kime testified that—well, I should say this. He indicated in his May 12th, 1987 memorandum to Luella Burke, and in his testimony yesterday, that the department could add 400 inmates to the Lakeland Correctional Facility immediately. The only barrier to placement of additional inmates in this facility appears to be an agreement Director Brown had made with the community that he would not place any more inmates there without the community’s consent. The Court appreciates the department’s desire to maintain good relations with the local communities and with neighbors of the system. This agreement, however, clearly does not bind Governor Blanchard, and it does not bind the legislature, both of whom I remind everyone are defendants in this action; and I do not believe that a community’s wishes outweighs defendants’ and the Court’s obligation to ensure that the constitutional rights of the inmates are protected and that the Consent Decree is enforced.
Thirdly, defendants apparently can place about 56 additional inmates in the Macomb County Jail. The only

barrier to this action appears to be the wishes of a local sheriff. Once again, the Court fails to see how a local sheriff can hamstring the defendants in this action, particularly the Governor of this State and the State legislature. It is difficult for me to see how his wishes can override defendants’ obligation to implement the Consent Decree and the State Plan for Compliance and to protect the constitutional rights of the inmates.
Fourthly, defendants could reopen the farms at the State Prison of Southern Michigan. This would, of course, require legislative action. The State, however, including the legislature and the Governor, is a defendant in this action, and thus must, as an entity, abide by its constitutional and contractual obligations. There is, moreover, nothing in the record to indicate that to reopen the farms would create a danger that would outweigh the harm facing the inmates confined at the Reception and Guidance Center. Finally, the state legislature and the Governor could remove the population cap on the Dunes Correctional Facility. Deputy Director Bolden testified that without the legislative cap he could easily place additional prisoners in the facility without overcrowding it.
In accordance with the above discussion, the Court hereby finds defendants in contempt of Court, and specifically in contempt of my July 22nd, 1986 Order that they, quote, “implement their plan to decrease overcrowding and to end inappropriate security classification placements”— end quote—with regard to the situation at the Reception and Guidance Center at the State Prison of Southern Michigan, in Jackson. To purge themselves of this contempt citation, defendants shall remove all inmates from the base dormitory at the Reception and Guidance Center no later than May 26, 1987. In addition, they shall remove all inmates in the bulkheads by that date, and shall thereafter use the bulkheads only for short-term, emergency, overflow housing. Operationally, I mean by this to say that all the bulkheads shall be clear at least four days out of every seven days. In addition, defendants shall not double cell inmates at the Reception and Guidance Center to compensate for the closure of the base dorm and the limited closure of the bulkheads. In other words, by May 26, 1987 defendants shall be operating the Reception and Guidance Center at its rated capacity, and not more, with an *1051 exception for the limited allowable use of the bulkheads already discussed.
If defendants fail to take this action by May 26, 1987, they shall be subject to fines in the amount of $10,000 per day until compliance with the Court’s order is achieved. They also, moreover, will be subject to a fine of $10,000 for every day the population at the Reception and Guidance Center exceeds the limitations set forth in this order. Furthermore, in addition to fines, if defendants fail to comply with the Court’s order regarding the Reception
92

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
and Guidance Center by May 26, 1987, they shall be enjoined from admitting any more inmates to that institution until they have achieved absolute, total compliance with this order.
No court likes to take action of this nature. In light of the testimony I have heard at this hearing, however, I am left with no choice. I again reiterate that the good faith of the defendants is not an issue here. What does appear to be an issue, however, is the continued failure of certain defendants—specifically the Governor and the legislature—to recognize that they too are defendants in this action. I find it absolutely incomprehensible, for example, that the legislature could be defeating its own plan to eliminate overcrowding by continuing legislative caps on the populations of institutions that apparently can accommodate additional inmates or by closing down the State Prison of Southern Michigan farms.
Thus end the comments that I wish to make about the Reception and Guidance Center.
The Court’s interest in this show cause portion of the hearing regarding the overcrowding of the Decree institutions is as it always has been to ensure that the State lives up to its contractual obligations as those obligations appear in the Consent Decree and the State Plan for Compliance. I note here that the State first entered into these commitments on July 13th, 1984, nearly three years ago, but I also note that this followed a lengthy factfinding and negotiation period with representatives from the Department of Justice of the United States. At that time, July 13th, 1984, the defendants agreed to, quote, “take each and every step within their lawful authority to eliminate overcrowding,” end quote, at the Decree institutions by June 30, 1985. On June 21, 1985, a scant nine days before the deadline agreed to by the defendants, this requirement was extended for another year until July 30, 1986.
At the March, 1986 compliance hearing, the issue of overcrowding once again reared its ugly head. On May 1st, 1986, the defendants proposed a plan to this Court in which they stated they would end all overcrowding at all Decree institutions no later than January 1, 1987. The Court accepted this representation and ordered the defendants to implement its order, implement its plan, by this Court’s order of July 22, 1986.
Up until January 9th, 1987, the defendants failed to inform the Court that they would not be able to meet the deadline which had passed eight days before they informed the Court. At the March, 1987 hearing, therefore, on medical care, this Court once again raised the overcrowding issue. By that time it appeared obvious that the defendants were in serious noncompliance with the Court’s July 22nd, 1986 order. On April 1st, 1987, the

Court ordered the defendants to show cause why they should not be held in contempt of Court for failure to comply with Section D.5 of the Consent Decree, Section IV.A of the State Plan for Compliance, paragraphs 1.4 and II.D.1 of the June 21st, 1985 stipulation, and Section V.A of the Court’s July 22nd, 1986 order.
It is patently obvious from the evidence received at this hearing that the defendants continue to be in serious noncompliance at the Decree institutions. Moreover, it was not until this morning, May 22nd, 1987, that the Court for the first time learned what defendants now believe to be the first moment they can be in compliance at the Consent Decree institutions on the overcrowding issue, and even then I had to extract that information by ordering the defendants last evening to inform the Court what it was that they wanted the *1052 Court to do for them in order to be compliance with the July 22nd, 1986 order.
I, of course, expected a response to my April 1st show cause order well in advance of the hearing scheduled for May 20–22, 1987. This morning counsel indicated to the Court that the defendants, as I recall it, quote, “sort of intended,” end quote, to file a motion for a modification of the State Plan. The Court has seen no legal memoranda, has had no law cited to it, and knows of no reason why it should grant this request. In particular, the Court notes that the defendants appear to be asking for a modification of paragraph D.5 of the Consent Decree and not a mere modification of the State Plan for Compliance. The defendants make this request despite their complete failure to have established that they have taken each and every step within their lawful authority to eliminate overcrowding at the Consent Decree institutions.
The Court earlier in this opinion, and with reference to, specifically, to the Reception and Guidance Center has already pointed out at least five alternatives which earlier had been pointed out to the Court by the defendants’ own witnesses. It is obvious that the defendants are in contempt of the Court’s July 22nd, 1986 order. Particularly egregious was the information received by the Court during this hearing that the Department of Corrections has been frustrated in trying to accomplish the goals that it agreed to by the actions and inactions of other defendants to this action, including but not limited to the Governor and the legislature. I believe that these actions constitute direct violation of Section D.5 of the Consent Decree in addition to the Court’s July 22nd, 1986 order. The defendants have presented little in this hearing to excuse these failure and foreclose a finding of contempt, including declining my invitation to address the contempt issue at the conclusion of today’s hearing.
I, therefore, find the defendants in contempt of Court. They may purge themselves of this contempt by
93

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
eliminating overcrowding at the Consent institutions in accordance with the Consent Decree, the State Plan for Compliance, and the Court’s July 22nd, 1986 order no later than November 1st, 1987. Failure to have purged themselves of contempt by that day shall subject them to fines of $10,000 per day, said fines to continue from day to day until they have fully complied.
As I previously observed, the defendants requested of the Court to modify the State Plan for Compliance, and certainly that would require a modification of the Consent Decree itself. The defendants bear a heavy burden in requesting a modification of a consent decree, and this is not something that a court should treat lightly. A defendant seeking relief from the terms of a consent decree, any consent decree, must show that the decree, quote, “has been turned through changing circumstances into an instrument of wrong,” end quote, or that even though the purposes of the decree have not been achieved they are suffering a, quote, “grievous wrong evoked by new and unforeseen conditions.” End quote. The quotes and the thoughts are from United States v. Swift and Company, 286 U.S. 106, at pages 114, 115, and 119, 52 S.Ct. 460, at pages 462, 463, and 464, in 1932. This the defendants have failed to show.
Therefore, the Court denies the motion made this morning. The Court is, of course, extremely sensitive to conditions at the non-decree institutions. This sensitivity was heightened by the testimony of Deputy Director Bolden who testified that the system was, quote, “seriously and dangerously overcrowded.” The Court trusts and indeed hopes that all others in this room are just as sensitive, and notes in particular that the testimony of Mr. Bolden ought to give the Department of Justice pause to consider whether or not Bolden’s testimony alone triggers the beginning language of the Civil Rights for Institutionalized Persons Act in relation to the nonConsent Decree institutions.
I note that I would not be taking this step if I were faced with a situation where defendants had no other options, quote, “within their lawful authority to eliminate *1053 overcrowding,” end quote, at the Decree institutions other than to create intolerable conditions elsewhere. This, of course, is not such a situation. If such a situation does develop, however, the defendants should feel free to request the Court for appropriate modification of the Consent Decree and the State Plan for Compliance. At such a time the defendants will be required of course to show that there are no steps they can take within their lawful authority to maintain uncrowded conditions at the Consent Decree institutions other than to create intolerable situations elsewhere in the system.
There remains of course the requirement that the Consent Decree institutions remain uncrowded after November

1st. This relates directly to defendants’ plan to eliminate crowding systemwide. The Court is unsure how it should address the situation, but is meaning to say it is unclear what defendants are requesting the Court to accept as their, quote, “new plan.” Therefore, by June 5th, the defendants shall formulate their plan and suggest appropriate sanctions for compliance as discussed earlier in this hearing.
Post-hearing submissions on the issues that were brought up today are due June 5th, 1987, two weeks from today. In those submissions the lawyers should note in particular those portions of the Independent Expert’s report with which they disagree, if any there might be.
ORDER OF MAY 28, 1987 HOLDING DEFENDANTS IN CONTEMPT OF COURT
In accordance with the bench opinion rendered at the hearing held on May 22, 1987;
IT IS HEREBY ORDERED that defendants are in Contempt of Court for having failed to comply with section D.5. of the Consent Decree, section IV.A. of the State Plan for Compliance, paragraphs I.4. and II.D. 1 of the June 21, 1985 Stipulation, and section V.A. of the Court’s July 22, 1986 Order—and specifically for having failed to comply with the Court’s July 22, 1986 Order that they “implement their plan to decrease overcrowding and to end inappropriate security classification placements”— with regard to the situation at the Reception and Guidance Center at the State Prison of Southern Michigan, in Jackson, Michigan. Defendants may purge themselves of this contempt by removing all inmates from the base dormitory and from the bulkheads at the Reception and Guidance Center by May 26, 1987, and by thereafter maintaining the inmate population at the Reception and Guidance Center at or below the Center’s Rated Capacity. Defendants may, however, use the bulkheads for shortterm, emergency, overflow housing. Operationally, this means that defendants shall keep all of the bulkheads clear at least four days out of any seven-day period. If defendants fail to purge themselves of contempt in this matter, they shall be subject to a fine in the amount of $10,000 per day and shall be enjoined from admitting any additional inmates to the Center until they do comply with the Court’s Order.
IT IS FURTHER ORDERED that defendants also are in Contempt of Court for having failed to comply with the above-cited provisions of the Consent Decree, the State Plan for Compliance, the Stipulation, and the Court’s July 22, 1986 Order—and in particular for having failed to comply with Section D.5. of the Consent Decree and
94

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
section V.A. of the Court’s July 22, 1986 Order—with regard to the remaining institutions covered by the Consent Decree and the State Plan for Compliance. Defendants may purge themselves of this Contempt by eliminating overcrowding at the Consent Decree Institutions in accordance with the Consent Decree, the State Plan for Compliance, and the Court’s July 22, 1986 Order by no later than November 1, 1987. If defendants fail to purge themselves of contempt in this manner, they shall be subject to a fine of $10,000 per day to continue day to day until they have so complied with the Court’s Orders.
IT IS FURTHER ORDERED that defendant’s May 22, 1987 Oral Motion to Modify the Consent Decree and the State Plan for Compliance is DENIED.
IT IS FURTHER ORDERED that defendants shall have until June 5, 1987 to *1054 submit whatever revision of their May 1, 1986 plan to eliminate overcrowding through-out the system, and thereby to ensure compliance with the overcrowding provisions of the Consent Decree and the State Plan for Compliance, they wish to propose; defendants shall also submit at that time proposed sanctions for failure to comply with the revised plan.
IT IS FURTHER ORDERED that the plaintiff and the amici shall have until June 19, 1987 to submit comments on defendants’ proposed revision and sanctions; both parties and amici shall have until June 19, 1987 to submit post-hearing briefs on the other issues covered in the Independent Expert’s Report and/or at the hearing; the parties and amici shall indicate in particular in their briefs those aspects of the Independent Expert’s Report to which they object.
IT IS FURTHER ORDERED that the Court will conduct a hearing on the mental health aspects of the Consent Decree and the State Plan for Compliance on July 30 and 31, 1987, beginning at 9:00 a.m., in Kalamazoo, Michigan; the Independent Expert shall submit a draft report on mental health by approximately June 15, 1987; the parties and amici shall submit their comments on the draft report and the reports of their expert witnesses to the Court and the Independent Expert by July 20, 1987 at 12:00 p.m.; the parties and the amici shall meet on July 29, 1987 to discuss the mental health issues.
OPINION OF JULY 2, 1987 SCHEDULING MENTAL HEALTH HEARING
In its May 27, 1987 Order the Court scheduled a compliance hearing on the mental health aspects of the Consent Decree, the State Plan for Compliance, and

related documents for July 30 and 31, 1987. In its May 9, 1986 Order the Court had given defendants until July 15, 1987 to submit any requests for modification of their plan for the delivery of mental health services they may wish to make based on the epidemiological study that was due to be completed by June 15, 1987. On June 8, 1987 defendants submitted a motion requesting an extension of the July 15, 1987 deadline. In support of their motion, defendants state that the epidemiological study will not be completed until July 1, 1987. Defendants also suggest that the Court consider rescheduling the July 30 and 31 hearing date. Amici oppose defendants’ motion, arguing that any delay in holding the hearing will have serious implications for the inmates. Plaintiff supports defendants’ motion, noting that its own mental health expert would not be prepared to testify at the July hearing.
The Court reluctantly agrees with the parties that it should reschedule the July hearing in favor of a later date. I share amici ‘s concerns about the inmates access to appropriate mental health care. My concerns are particularly acute in light of the Independent Experts’ draft report on mental health care, in which they identify several significant compliance problems. On the other hand, the Court believes it is important to have the mental health hearing when the parties will be prepared to discuss the issues intelligently and fully. In particular, given the extension of the hearing date, I expect the parties to submit full and complete reports from their experts on defendants’ compliance efforts, to be fully and completely prepared to discuss such efforts at the hearing, and to be fully and completely prepared to discuss practical solutions to any problems of noncompliance that may exist. In addition, defendants shall be fully and completely prepared to document their compliance efforts and to provide acceptable explanations for any problems of noncompliance that may exist. Finally, defendants shall be prepared in particular to discuss the following issues at the hearing: (1) the status of their administrative staffing for mental health; (2) the status of their professional staffing for mental health; (3) their plans for the recommendations contained in the June 12, 1987 Protected Environment Study; and (4) their plans for the recommendations contained in the June 12, 1987 Developmentally Disabled Prisoner Program.
*1055 The Court will reschedule the Mental Health Hearing for September 24 and 25, 1987 in Kalamazoo, Michigan. The parties and amici shall submit their comments on the Independent Experts’ draft report and the reports of their expert witnesses to the Court and the Independent Experts by September 1, 1987 at 5:00 p.m. Defendants shall file any modification motions they wish to make by September 1, 1987. Plaintiff and amici shall have until September 18, 1987 to respond to any such motions. The Independent Experts shall have until September 18, 1987 to submit their final report to the
95

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Court, the parties, and the amici. The parties and amici shall meet on September 23, 1987 to discuss the mental health issues.
ORDER
In accordance with the opinion dated July 2, 1987;
IT IS HEREBY ORDERED that the mental health hearing scheduled for July 30 and 31, 1987 is rescheduled for September 24 and 25, 1987.
OPINION OF JULY 20, 1987, DENYING PRO SE MOTION TO INTERVENE AND MOTION FOR
ORDER OF CONTEMPT
There are two matters pending in this case that the Court will deal with in this opinion. The first is a pro se motion to intervene and motion for order of contempt that two inmates filed on May 4, 1987. The second is the issue of whether confinement of an inmate in a cell with solid doors at the MIPC, now A–Block of the MBP, constitutes “isolation” within the meaning of paragraph IV.J.9 of the State Plan for Compliance. For the reasons discussed below, the Court will deny the pro se motion to intervene and for contempt, and will request the parties to address the solid doors issue further at the Mental Health hearing.
A. Motion to Intervene and Motion for Order of Contempt [39] Proposed intervenors Ronald L. Jordan and Carl L. Ashley are inmates confined at the Marquette Branch Prison. They seek to intervene in this action for the purpose of enforcing the out-of-cell activity requirement of the State Plan for Compliance, which provides in part that defendants are to provide activities such “that at SPSM and MR, 75% of all inmates, and at MBP all general population inmates, may be active out of their cells and dormitories, including exercise, meal, shower, and law library time, no fewer than 7 hours daily on weekdays and 5 hours daily on weekends.” State Plan for Compliance ¶ IV.H.2. Mr. Jordan and Mr. Ashley allege that inmates at the MBP receive significantly less than seven hours per weekday, and five hours on weekends, out-of-cell time, and support their allegation with affidavits and petitions. They also allege that defendants have refused to remedy this violation of the State Plan, and that the plaintiff and amici in this case also have failed to take action on this issue. Finally, the proposed intervenors seek to hold defendants in contempt of court

for having failed to comply with this requirement of the State Plan.
Rule 24(a)(2) of the Federal Rules of Civil Procedure provides that “[u]pon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” FRCP 24(a)(2). The Court will deny the motion to intervene for three reasons. First, I believe that it is untimely. The Consent Decree in this case was signed over three years ago, and in the interim the parties have undertaken extensive action to implement and to enforce the Decree and the accompanying State Plan for Compliance. Under these circumstances, I believe this motion to intervene is untimely. See Michigan Association for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981).
Secondly, I disagree with the proposed intervenors that they have the right to *1056 intervene to protect their interest as third-party beneficiaries of the Decree. The Decree specifically provides that it does not “create any rights or obligations enforceable by inmates.” Consent Decree ¶ 0; compare South v. Rowe, 759 F.2d 610, 612 (7th Cir.1985) (intervention allowed where the inmate “was an intended third-party beneficiary of the consent decree”). Third, although the proposed intervenors can claim an interest relating to this action, I believe that the United States and the Knop amicus are adequately representing that interest. In particular, counsel for the Knop amicus has been diligent in protecting her clients’ interests, which I believe includes the interests of the proposed intervenors.
For these reasons, the Court will deny this motion to intervene. I also will deny the motion to hold defendants in contempt. I am concerned, however, about the out-ofcell activity situation at the MBP, and would ask the Independent Expert to investigate it when he does his next report on that requirement of the State Plan.
B. Solid Doors at MBP–A Block During the March 1986 compliance hearing the issue arose of whether the cells at the MBP–A Block that have solid doors are subject to section IV.J.9 of the State Plan, which provides that “[n]o inmate may be held in isolation (no sight or sound contact) from all other inmates for more than 2 days in any month, unless the isolation occurs for medical reasons in a medical area or unless the inmate is evaluated on a daily basis by a psychiatrist or a clinical psychologist who states in writing, that the inmate
96

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
is not suffering serious harm.” State Plan for Compliance ¶ IV.J.9. In its July 22, 1986 Opinion and Order, the Court asked the parties to address that issue by October 1, 1986. The parties and amici subsequently filed written submissions on the issue.
The Court unfortunately then lost track of the issue and discovered it only recently while reviewing the file in this matter. While I wish to resolve it as soon as possible, there are some unresolved factual matters concerning these cells that the parties and amici should be prepared to address briefly at the Mental Health hearing. Specifically, they should be prepared to inform the Court of the exact use of these cells; how long inmates are confined in them without contact with other inmates; whether inmates have free access to other parts of the institution or cellblock; and whether the cells are used for punitive detention. On receipt of this information, the Court will decide whether the cells are subject to section IV.J.9 of the State Plan.
OPINION AND ORDER OF JULY 28, 1987 ENFORCING PROVISIONS OF THE CONSENT DECREE, THE STATE PLAN FOR COMPLIANCE,
AND THE STIPULATION REGARDING OVERCROWDING AND PROTECTION FROM
HARM AND SANITATION, SAFETY AND HYGIENE
On May 20th, 21st, and 22nd, 1987 the Court held a hearing on defendants’ efforts to comply with the requirements of the Consent Decree, the State Plan for Compliance, the Stipulation, and related opinions and orders concerning overcrowding and protection from harm and sanitation, safety, and hygiene. In conjunction with this hearing, the Independent Expert submitted a report on defendants’ compliance efforts. During the hearing, the Court listened to a number of lay and expert witnesses and received into evidence a number of exhibits. It also issued two bench opinions, and two written orders, concerning the overcrowding situation. See Temporary Restraining Order dated May 22, 1987; Order of May 28, 1987. On June 23, 1987 the parties submitted a stipulation and proposed order concerning the overcrowding and various sanitation-related issues, as well as the sick call issue the Court had addressed in its May 7, 1987 opinion. The Court was pleased to see the proposed order, and will adopt it with some modifications. The order, however, fails to address several significant issues the Independent Expert had identified in his Report, and thus will be supplemented by this opinion and the attached order. In addition, in this opinion the Court will discuss defendants’ *1057 July 16, 1987 motion for relief from portions of the Court’s July 22, 1986 order. The order attached to this opinion consists

of two parts. The first part reflects the parties’ stipulations, as modified by the Court. The second part reflects the following opinion on the compliance hearing and defendants’ motion.
The Court will first discuss nine issues concerning sanitation, safety, and hygiene. The parties covered some of these issues in their proposed order; the rest were discussed in the Independent Expert’s Report but not by the parties in their order. The Court also observes that this opinion does not cover all of the problem areas the Independent Expert identified in his report. Rather, I have selected for discussion those areas that I believe require the most attention.
The first area concerns various renovation projects defendants have agreed to undertake. The most urgent problem appears to exist in the area of ventilation. Mr. Powitz testified that the ventilation in 5–Block is practically nonexistent. Transcript (“T”) at 417. This situation exists even though defendants had agreed to provide adequate ventilation by July, 1986. Stipulation at 9–10; I.E.Rpt. at 13. Similar problems apparently also exist in housing areas at the Marquette Branch Prison and the Michigan Reformatory. In addition, both Mr. Powitz and Mr. Butler testified about the lack of adequate ventilation in the food service areas. See T at 427–28 (Testimony of Mr. Powitz).
The parties address the food service ventilation problem in their proposed order, in which defendants agree to survey “all food preparation areas to assess ventilation requirements to determine whether existing exhaust systems need to be repaired or replaced.” The Court in addition will require defendants to submit a schedule of any necessary repair or replacement work. With regard to ventilation in the housing units, defendants clearly are in violation of the June 21, 1985 Stipulation and the Consent Decree. In their response to the Independent Expert’s report, moreover, defendants indicated that at the MBP they will not be in compliance until February 5, 1988. Under the circumstances, I think it is emminently fair and reasonable to require defendants to submit, with respect to the housing areas, a detailed schedule for completing the ventilation projects. See Stipulation at 10 (defendants agreed to “keep the Court and the United States fully informed of its progress in meeting the Decree date”). In addition, for any projects that will not be completed by July 1, 1988, two years past the original due date in the Consent Decree, defendants shall submit a detailed explanation of why they will fail to complete the project(s) by that time. If the problem is the presence of asbestos, defendants shall detail the steps they are taking to solve that problem. The schedule and the explanation (if any) are due sixty (60) days from the date of this Opinion.
97

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
The second area of concern is the building trades inspection requirement. See State Plan for Compliance, ¶ I.C. The Court interpreted this provision in its opinion of July 15, 1986, dealing with certain interpretive issues that had arisen under the Consent Decree and the State Plan. As the Independent Expert notes in his Report, however, defendants apparently have done little, if anything, to achieve compliance with this requirement. In their response to the Report, in fact, defendants acknowledge, at least with respect to the MBP, that they “are in an unresolved quandry of trying to determine who will inspect, and what will be the nature and scope of the inspections.” The Court will give defendants until November 1, 1987 to resolve this quandry. The issue is an important one in terms of defendants’ continued compliance with the requirements of the decree documents. External inspections certainly appear to be one way to ensure that once remedied, unconstitutional conditions of confinement do not thereafter reappear. By November 1, 1987, then, defendants shall submit a report to the Court on how they intend to comply with this requirement of the State Plan.
The third area of concern is with kitchen sanitation. Mr. Butler testified that the situation is much improved, and the inspection reports that the Court has reviewed *1058 reflect this improvement. Nonetheless, defendants still have not fully complied with the requirement that they “achieve full compliance on at least each item for which a score of 4 or 5 is indicated on the inspection form.” Opinion of July 15, 1986 at 6. Defendants appear to be on the right track, though, and in their proposed order have agreed to take some additional steps in this area. For the present, then, the Court will not order any additional remedial measures.
The next area of concern is with the laundry system at 5 Block in the Central Complex at the SPSM. The Independent Expert stated in his report that substantial problems exist in this area, with respect to both the frequency of the laundering and the handling and storage of the linens. Mr. Powitz, moreover, testified as to his concerns with defendants’ failure to provide the inmates clean linens on a regular basis. T at 411–12. This is a serious problem that defendants should remedy as soon as possible. At the hearing and in their response to the Independent Expert’s Report, defendants put forth no explanation for this breakdown in laundry service in 5– Block. Therefore, within thirty (30) days of the date of this opinion defendants shall submit to the Court a plan for remedying this problem as soon as possible.
The fifth area of concern is with the temperature of the food served to the inmates, particularly to those inmates confined in the segregation units. In the parties’ proposed order, defendants agree to “take all reasonable steps to ensure that food arrives at food service areas, including

food served in cell block areas, at the required temperatures....” I note that Mr. Powitz observed in his April 20, 1987 report that the poor condition of the insulated trays may be a cause of the problem, and I request the Independent Expert to continue to monitor the situation.
The next area of concern is the requirement that defendants provide sufficient electrical outlets and lighting for inmates in their cells. Compliance with this requirement was due in July, 1986. Stipulation at 9. The Independent Expert states in his report, however, that certain facilities do not comply with this requirement, and that full compliance is not expected until November, 1988. The Court will order defendants to submit a detailed construction schedule, with an explanation for why the construction was not completed on time, within sixty (60) days.
The seventh area of concern is defendants’ continued failure to comply with the hot water requirements of the State Plan. The Court will not order any remedial action at this time, but simply notes the situation as one to be remedied under the Consent Decree and the State Plan.
The eighth area of concern is the showers situation. Testimony at the hearing and the Independent Expert’s Report indicate that inmates confined in the overcrowded areas of the decree institutions may not have access to the required number of showers. This problem should disappear, however, once defendants have remedied the overcrowding situation; in addition, in the parties’ proposed order defendants have agreed to provide additional showers and lavatories to the inmates in the North Complex Gymnasium. Amici, however, also raise questions about whether inmates at the MBP may have been denied shower privileges in the recent past; whether these inmates are forced to go to the showers without their clothes on; and whether these inmates are shackled during their shower times, allegedly in violation of the Consent Decree and the State Plan. Defendants, therefore, shall submit a report to the Court within thirty (30) days of the date of this Opinion indicating whether MBP inmates have been denied shower privileges for any period of time since January, 1987, and if so the reason(s) for the denial; whether MBP inmates are forced to go to the showers without their clothes on; and whether MBP inmates are shackled during their showers, and if so whether that practice violates either the Consent Decree or the State Plan.
The final area of concern is defendants’ use of the food loaf. In my July 15, 1986 Opinion dealing with certain interpretive questions I deferred ruling on the issue of *1059 whether defendants may use food loaf as an administrative measure for inmates who are disciplinary problems. I asked the parties and amici to provide
98

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
additional information on the following issues: “how many inmates are served food loaf in lieu of their regular meals; whether the loaf is consumed by the inmates; whether there is any limitation on the length of time an inmate can be served the loaf; and whether any inmates have suffered mental or physical injury from having to eat the loaf.” Opinion of July 15, 1986 at 7. They have failed to provide this information. I therefore request them to do so at the mental health hearing, and I will resolve the issue then.
With regard to overcrowding and protection from harm, there are four issues the Court will discuss in this opinion. The first issue concerns the staffing levels, and the experience of the staff, at the various institutions. In his report, the Independent Expert expressed concern about the high turnover of staff at the SPSM and the relative inexperience of that staff. Mr. Miller also expressed concern about the staff turnover situation and the requirement that staff work a significant amount of overtime, T at 206; Deputy Director Bolden confirmed the high turnover rate and the significant use of overtime. T at 289. The Court has no suggestions at this time for remedying this problem, but raises it so it is not buried and forgotten.
The second issue concerns defendants’ extensive use of waivers to place inmates in institutions that are outside of their security classification, thus severely compromising the housing assignment plan and the classification system required by the State Plan. The Independent Expert’s Report and testimony at the hearing adequately documented the use of these waivers, and I see no need to repeat that evidence here. I agree with plaintiff that whether the classification system “is compromised by lack of appropriate housing at each security level” is an issue that needs to be explored. See Letter of June 2, 1987 from Andrew Barrick to Thomas Nelson at 2. Although the elimination of overcrowding should solve this problem, defendants do not plan to eliminate overcrowding system-wide until 1990. In the interim, there is a need to monitor the situation. I agree with plaintiff that it would help if defendants periodically reported on the waiver situation. Defendants therefore should file with the Court any reports, and subsequent updates, they develop concerning the waiver situation.
The third area of concern is defendants’ out of cell activity plan(s). I agree with amici that in his next report on this issue, the Independent Expert should analyze whether the inmates actually participate in the programs defendants offer, and should attempt to determine whether the programs are effective and actually used. Defendants arguably cannot comply with the Consent Decree and the State Plan by offering activities that the inmates reject.
The final issue in this area concerns defendants’ “plan” to

eliminate overcrowding in the decree institutions and to ensure that they remain in compliance with the space requirements of the Consent Decree and the State Plan for Compliance. In May 1986 defendants submitted a “plan” to eliminate overcrowding in the decree institutions by January 1, 1987, and to eliminate overcrowding systemwide and thus end inappropriate security classification placements at the decree institutions by 1989. In my July 22, 1986 Opinion and Order I accepted defendants’ plan and ordered them to implement it. In late 1986 and early 1987 it became apparent that defendants would not be able to adhere to that plan. In their March 20, 1987 Update, defendants’ exhibit 1, defendants acknowledged that they were not in compliance with the plan and that periods of noncompliance would exist over the next couple of years. In their May 13, 1987 Update, defendants’ exhibit 5, defendants indicated that they had to make adjustments to their May 1986 plan. See Memorandum dated 5/12/87 from William L. Kime to Luella Burke; Letter dated May 6, 1987 from Robert Brown, Jr. to Robert Naftaly. At the hearing, witnesses for the defendant indicated that they wanted the Court to accept these adjustments. See T at 393–95 *1060 (testimony of William Kime); cf. T at 331–37 (testimony of Dan Bolden). Defense counsel even indicated during the hearing that he considered the May 13th submissions to be modifications of the May 1986 plan.
By the end of the hearing, however, the Court was not sure what adjustments or modifications defendants intended to make in their May 1986 plan to eliminate overcrowding and inappropriate security classification placements at the consent decree institutions. In my May 27, 1987 Order, therefore, I gave defendants until June 5, 1987 “to submit whatever revision of their May 1, 1986 plan to eliminate overcrowding through-out the system, and thereby to ensure compliance with the overcrowding provisions of the Consent Decree and the State Plan for Compliance, they wish to propose.” Order of May 27, 1987 at 3. The Court anticipated that defendants would submit a revised plan that combined their May 1986 plan with elements of their May 13, 1987 submission.
In their June 8, 1987 submission, though, defendants proposed no changes in their May 1986 submission, but indicated rather that they intended to adhere to that submission or plan. The Court cannot accept this submission for two reasons. First, although defendants must end overcrowding at the decree institutions by November 1, 1987, they state in their June 8th submission that “it may become necessary to exceed rated capacities at some areas of the Consent Decree institutions after November 1, 1987 due to unanticipated population increases or other factors beyond the control of the Defendants.” Memorandum at 3. This statement indicates that the population levels at other institutions in the Michigan system affect the population levels at the decree
99

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
institutions, and that the Court, plaintiff, and amici are entitled to know that defendants have population and construction projections that they can live with and which will eliminate the problem. Second, defendants’ ability to satisfy their promise to eliminate improper security classification placements at the decree institutions by 1989 also depends on their ability to control the population levels at nondecree institutions.
In summary, the Court is seeking a commitment by defendants to an overall plan to eliminate overcrowding throughout the system—and thus to ensure that the decree institutions will not be overcrowded and that improper security classification placements will not be used at the decree institutions—that they can live with and implement. I thought I had that commitment in May 1986. It turned out I was wrong. Defendants should propose a plan, whatever it may be, that the Court can count on to accomplish the tasks required by the Consent Decree and the State Plan. I will give them sixty (60) days from the date of this Opinion to do so.
One final note concerns defendants’ July 16, 1987 Motion for Relief from Portions of the July 22, 1987 (sic) Order of the Court. I have reviewed defendants’ motion and amici’s response. I have not yet received a response from the United States. I sympathize with defendants’ objections to the reporting requirements and recognize that in certain respects the requirements may no longer be serving a useful function. In addition, I agree with both defendants and amici that it makes sense to structure the reporting requirements so as to achieve their intended goal with the least possible administrative burden on the defendants. I believe, however, that the requirements are important and, despite defendants’ substantial improvements in the areas of fire safety, sanitation, and inmate surveillance, should be maintained in some form.
Rather than have the Court somewhat arbitrarily devise new reporting mechanisms, though, I think the parties, amici, and the Independent Expert should discuss this issue in their meeting before the Mental Health hearing. I realize that they may have to extend this meeting in order to discuss all of the issues to be covered at the hearing. I think, however, that the issue of how to reduce defendants’ administrative burden while maintaining an effective reporting mechanism is one that the parties and amici should attempt to resolve *1061 among themselves, preferably without the necessity of judicial intervention.
I will enter an appropriate order in accordance with this opinion. I observe again, in closing, that this opinion covers only the most significant areas of noncompliance. Defendants must, of course, remedy all of the defects the Independent Expert identified in his Report.

ORDER
In accordance with the opinion dated July 27, 1987;
IT IS HEREBY ORDERED that defendants shall implement the following version of the parties’ proposed order concerning medical care, overcrowding and protection from harm, and sanitation, safety, and hygiene:
Medical
To assure prompt inmate access to non-emergency medical care, defendants shall institute the following procedure at Marquette Branch Prison (“MBP”) and the State Prison of Southern Michigan (“SPSM”) in lieu of the present “sick call” system:
1. Within 24 hours following the receipt of an inmate request for medical care (“medical kite”), an inmate in general population or trusty division shall have his medical kite screened by a registered nurse, and the following actions shall be taken according to the contents of the kite:
a. If the medical kite merely requests information, the kite shall be answered.
b. If the kite requests an ordinary, non-emergency, dental or optometric appointment the matter shall be referred to the appropriate clinic and an appointment shall be scheduled.
c. If the kite requests medication or diet renewals, the request shall be immediately reviewed and, if appropriate, the request shall be renewed within seven days of the kit’s submission; in no event, however, shall a medication or diet requirement that should be renewed be allowed to lapse.
d. If the kite requests an appointment for a routine followup review of a chronic medical condition such as diabetes or other similar continuing pre-existing condition documented in the inmate’s medical record, a clinical appointment shall be made within seven days of the kite’s submission; this provision in no way modifies defendants’ obligation to respond immediately to medical emergencies arising out of chronic diseases.
e. If the kite indicates a “new complaint” which does not fall within the above categories, the inmate shall be seen at the clinic by appropriate medical staff within 24 hours of the screening. If the medical kite indicates, for example, that the inmate wishes to “see a doctor” or “go to the clinic,” an appointment shall be promptly scheduled
100

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
and the inmate shall be seen within the required 24 hours. If the medical kite is ambiguous, it shall be presumed that the kite reflects a “new complaint” which shall be treated according to the procedure set forth herein.
2. Segregation units at MBP and SPSM shall continue their current policy of providing daily access to medical staff, for nonemergency medical care, by the utilization of medical staff rounds. The rounds shall be performed by qualified medical personnel, i.e., either physician assistants or registered nurses who have received some form of specialized training in that function.
3. Defendants shall promptly implement a program advising inmates of the change in “sick call” procedures. They shall advise inmates of the new system for access to health care by means of inmate newspapers, inmate forums, and similar means of notification, and shall provide documentation of these efforts to the United States. Commencing one month after the implementation of the foregoing “medical kite” procedures at each facility or unit, defendants shall file a report each month for a six month period which shall set forth the total number of medical kites received during one week in the preceding month by category of kite, and in particular, the number of inmates scheduled and seen as “new complaints.”
*1062 4. Defendants shall implement the foregoing system of medical access at the North Complex and South Complex of SPSM within three months of the entry of this order and shall implement it at the Central Complex of SPSM and at the MBP within six months of such time.
Overcrowding
In their memorandum submission of June 5, 1987, defendants stated that they “intend to eliminate overcrowding at the remainder of the Consent Decree institutions no later than November 1, 1987, in accordance with the May 27, 1987 Order of the Court.” Defendants have agreed to implement, and shall implement, the following additional measures to alleviate the adverse effects of overcrowding at certain housing units prior to the final compliance date of November 1, 1987.
1. Marquette Branch Prison Gym: The gymnasium which is attached to Dormitory 1 in the trusty division is currently not used to house inmates. Defendants shall not use this area for housing absent a clear need for temporary emergency housing.
2. Michigan Reformatory Gym: The gymnasium adjacent to Unit B is not presently being used to house inmates.

Defendants shall not house inmates in the gym under any circumstances.
3. State Prison of Southern Michigan—Wing Farm: By July 1, 1987 the population of this housing unit shall not exceed 106 inmates. After that date, defendant shall not send additional inmates to this unit so that the population will be reduced by attrition at the expected rate of four or five inmates per week. Population reduction will continue by attrition until the unit reaches its rated capacity on or before November 1, 1987.
4. State Prison of Southern Michigan—North Complex Gym: Until November 1, 1987 defendants may continue to house a maximum of eighty (80) inmates at this unit. To assure the safety of staff and inmates, defendants shall immediately implement the following procedures and actions:
a. Correctional officer staffing shall be increased from the current staffing of three officers per afternoon and evening shift to four officers per afternoon and evening shift;
b. An elevated platform shall be constructed and shall be manned at all times by a correctional officer so that adequate lines-of-sight may be maintained;
c. Within ten days of the entry of this order, defendants shall install a toilet and shower trailer containing a minimum of four (4) showers and four (4) water closets each, and shall maintain said trailer so long as the Northside Gymnasium continues to be used for housing purposes.
d. Inmates selected for placement in beds located in the North Complex Gym shall at least meet the following criteria:
i. Not have a criminal conviction or documented history as an arsonist;
ii. Not be a predatory homosexual;
iii. Not be seriously mentally ill;
iv. Not have a history of being unmanageable in an open dorm setting.
Sanitation and Environment
With respect to sanitation and environmental matters, defendants shall take the following additional steps to achieve full compliance with the Consent Decree. The Court recognizes that defendants have demonstrated great
101

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
improvement in environmental conditions in kitchen areas and that bird and vermin control projects that will represent a capital outlay in excess of four million dollars are about to commence in accordance with the requirements of the Hadix Consent Decree.
1. Food Service Ventilation: Within sixty (60) days of the entry of this order, defendants shall complete a survey of all food preparation areas to assess ventilation requirements and to determine whether existing exhaust systems need to be repaired or replaced. Within an additional sixty (60) days, defendants shall submit to the Court a proposed schedule for performing any necessary repairs and replacements.
*1063 2. Pipe Chases: Defendants recognize those areas of remaining problems identified by the Independent Expert and Plaintiff’s Sanitation Expert in their May 1987 reports and testimony with regard to pipe chases. All areas so identified shall be subject to ongoing corrections efforts including, but not limited to, repair or replacement of broken vents.
3. Food Transport: Defendants shall take all reasonable steps to ensure that food arrives at food services areas, including food served in cell block areas, at the required temperatures as described in the Consent Decree and State Plan, including, but not limited to, minimizing food transport times.
4. Operational Items: While the following described measures are not specifically required by the State Plans as submitted or modified, defendants recognize the importance of such actions in achieving the goals of the Consent Decree and Plans submitted in accordance therewith. Therefore, defendants shall undertake the following actions:
a. At all subject facilities, take all reasonable and practical measures to eliminate access routes to food storage and preparation areas for vermin including, but not limited to, repair or replacement of defective, missing, or broken doors. Take all reasonable and practical measures to reduce or eliminate access to sources of food that may attract vermin including, but not limited to, prompt repair or replacement of broken or missing lids on dumpsters, where used.
b. At all food preparation services, in all subject facilities, take all reasonable and practical steps to ensure cleanliness of food service workers including, but not limited to, requiring food service workers to wear appropriate protective clothing and to receive appropriate training.
5. Bird and Vermin Control—State Prison of Southern Michigan:

Defendants shall complete the Window and Screen Renovation Project in residential cell blocks in accordance with the Hadix Consent Decree. Within ninety (90) days of the entry of this order a construction contract shall be awarded and, barring extraordinary and unanticipated construction delay, all phases of the project shall be completed within seventeen (17) months of the award of the construction contract. In recognition of the particular acuity of the bird infestation in cell blocks 4, 5, 6, and 7, said blocks shall be a priority in the replacement program. The new window system in blocks 4, 5, 6, and 7 shall be completed no later than twelve (12) months from the awarding of the construction contract. Defendants shall advise the Court, plaintiff and amici of the progress toward completion of each phase of the project in periodic reports. This commitment does not, however, preempt the requirement of paragraph II.C. of the Court’s July 22, 1986 Order that defendants inspect “on a continuing basis, all windows” and “replace promptly all broken or missing glass.”
6. With respect to the kitchen and bakery at SPSM Central Complex, defendants shall immediately, and on a continuing basis, take all reasonable and practical measures to eliminate all access points for the entry of birds and other vermin into the bakery and kitchen areas. In addition, immediately, and on a continuing basis, defendants shall take all practical and reasonable measures to eliminate existing populations of birds and other vermin in the kitchen and bakery areas.
IT IS FURTHER ORDERED that defendants shall do the following:
A. Submit, within sixty (60) days of the date of the Opinion, a detailed schedule for completing ventilation projects in the housing areas and, for any projects that will not be completed by July 1, 1988, a detailed explanation of why they will fail to complete the project(s) by that time;
B. Submit by November 1, 1987 a report on their plan(s) to comply with the building trades inspection requirement of the State Plan;
C. Submit, within thirty (30) days of the date of the Opinion, a plan for remedying the laundry problem at 5– Block;
D. Submit, within sixty (60) days of the date of the Opinion, a detailed construction *1064 schedule for the electrical outlets and lighting requirement of the State Plan, with an explanation of why the construction was not completed on time;
E. Submit, within thirty (30) days of the date of the
102

U.S. v. State of Mich., 680 F.Supp. 928 (1987)
Opinion, a report on the shower situation at the Marquette Branch Prison;
F. Be prepared to address the food loaf issue at the Mental Health hearing;
G. Submit any reports, and subsequent updates, they may develop concerning the use of waivers in the security classification system;
H. Submit, within sixty (60) days of the date of the Opinion, a plan to ensure that the decree institutions will

not be overcrowded and that no improper security classification placements will be used at the decree institutions.
IT IS FURTHER ORDERED that the parties, amici, and the Independent Expert shall discuss defendants’ Motion for Relief from Portions of the July 22, 1987 (sic) Order of the Court in their meeting before the Mental Health Hearing.
	  

103

 
 U.S. v. State of Mich., 62 F.3d 1418 (1995)
62 F.3d 1418 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee, v.
STATE OF MICHIGAN, et al., Defendants-Appellants.
Nos. 94-2391, 95-1258. | Aug. 7, 1995.
On Appeal from the United States District Court, for the Western District of Michigan, No. 84-00063; No. 84-00063; Richard A. Enslen, Chief Judge.
W.D.Mich.
AFFIRMED IN PART, REVERSED IN PART.
Before: MILBURN and NORRIS, Circuit Judges; BECKWITH, District Judge*
Opinion
MILBURN, Circuit Judge.
*1 In these consolidated appeals, defendants, the State of Michigan and various state officials, appeal three orders of the district court relating to a consent decree, which concerned conditions of confinement of state inmates at three prisons in the State. The consent decree was entered into between the United States and the State of Michigan pursuant to the Civil Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. §§ 1997-1997j. On appeal, the issues are (1) whether the district court failed to properly apply the standard for modification of an institutional reform consent decree set forth in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), when it (a) rejected defendants’ proposed method for calculating mental health bedspace requirements and (b) enforced the consent decree by ordering certain remedial measures; (2) whether the remedial measures ordered by the district court were improper and overly intrusive in the absence of proof of constitutional violations; (3) whether the district court lacked jurisdiction to issue its order of February 22, 1995, which modified the district court’s September 1994 orders, while those orders were subject to the appellate jurisdiction of this court; and (4) whether the relief provided for in the district court’s order of February 22, 1995, was proper. For the reasons that follow, we affirm in part and reverse in part.
I.
A.
The complaint in this case was filed on January 18, 1984, by the United States Department of Justice pursuant to its authority under CRIPA. After nearly two years of investigation and negotiation with the State of Michigan over the conditions at three major penal institutions, namely, the State Prison of Southern Michigan (“SPSM”), the Michigan Reformatory (“MR”), and the Marquette Branch Prison (“MBP”), the United States filed an action against the State under CRIPA. Contemporaneous with the filing of its complaint, the United States filed a motion for dismissal of the case and for entry of a proposed consent decree, which had resulted from its negotiations with the State.1
1

U.S. v. State of Mich., 62 F.3d 1418 (1995)
The parties’ agreement in this case is set forth in the consent decree and the state plan for compliance which is attached to the consent decree. J.A. 260-315. The state plan covers conditions relating to medical and mental health care; fire safety; sanitation, safety, and hygiene; crowding and protection from harm; and access to courts and legal mail. In these consolidated appeals, the State challenges orders entered by the district court on September 6, 12, and 21, 1994, and February 22, 1995, which deal exclusivly with mental health care. In those orders, the district court, among other things, (1) rejected the State’s proposal to modify the consent decree; (2) provided defendants two additional years until June 1, 1996, to comply fully with their 1991 obligation to provide mental health bedspace based on a fixed percentage of capacity; and (3) found defendants had violated various provisions of the consent decree and state plan and ordered remedial measures, namely, a new data tracking system, to ensure compliance.
*2 Paragraph A of the consent decree, which deals with medical care, states that “[d]efendants shall provide adequate ... mental health services ... to respond to the serious needs of prisoners.” J.A. 248. The decree also requires defendants to provide “[a]dequate treatment upon timely identification for those inmates with serious mental illness, ... [r]easonable protection measures for those inmates identified as suicidal or self-mutilating, ... [and] [p]rofessional medical record-keeping systems. J.A. 249-50. Paragraph H of the consent decree states that “[d]efendants have developed their own comprehensive plan, entitled ‘State Plan for Compliance,’ ... [and] intend to fully implement the State Plan unless implementation is excused or modified in accordance with the terms of this Decree.” J.A. 253-54.
In addition, the state plan requires defendants to provide care to inmates with “serious mental illness” which meets “contemporary professional standards.” J.A. 275-76. This includes “suitable separated housing adequate to house every inmate who exhibits a serious threat of suicide or who attempts suicide,” “inpatient services for serious mental illness,” and “systematic outpatient care, follow-up care, as well as continuity of care for inmates with serious mental illness.” J.A. 277-78. Finally, the state plan obligates defendants to “take appropriate measures to assure that psychiatric/medical care is coordinated with psychological care ... includ[ing] the coordination of record-keeping between psychiatrists and psychologists.” J.A. 280.
On May 9, 1986, the district court entered an order granting the United States motion for relief and sanctions, which “provide[d] for compliance with [the] recommendations of the April 1986 Report of the Independent Expert.” J.A. 317. The Independent Expert report recommended revision of the state plan “so as to maintain an inpatient facility capacity (for all three levels: hospitalization, comprehensive care, and protected environments) of not less than 3.2% of the system capacity or [inmate] population, whichever is greater.” J.A. 325. The report further stated that the “proposed inpatient hospitalization proportion (1.0%) is not unreasonable, if an acceptable amount of comprehensive care (“CCU”) capacity exists.” J.A. 326.
In an opinion issued on October 15, 1990, in which the district court held defendants in contempt for failure to comply with their schedule to construct a new correctional mental health facility, the district court noted that defendants submitted an “Implementation Schedule and Specification” for the state plan on October 24, 1986. The court stated that
[i]n the Schedule and Specification, the defendants agreed to maintain inpatient mental hospitalization bedspace available for prisoners equal to 1% of the prisoner population, and total inpatient mental health bedspace equal to 3.2% of the prisoner population. This included several substantial reductions of bedspace requirements associated with the initial plan submitted by the defendants.
*3 J.A. 377-78. The court also noted that it had “deferred specific enforcement of the fixed-percentage requirement, and also permitted the defendants to propose adjustments in the types of inpatient bedspace to be developed.” J.A. 378.
In May 1991, the parties entered into a stipulation which was accepted by the district court. The stipulation provides in relevant part:
By May 1, 1994, defendants must have developed and implemented, and must thereafter maintain aggregate mental health bedspace capacity equal to or greater than 3.2% of prison population (not including community residential programs) of which acute care bedspace must be equal to or greater than 1% of prison population, unless the Court approves an alternate proposal. Defendants may not close, relocate, or modify (as to program type) inpatient treatment units currently operational, without approval by the Court.
J.A. 465.
2

U.S. v. State of Mich., 62 F.3d 1418 (1995)
Subsequently, on April 15, 1983, defendants submitted a plan which detailed their intent to comply with the May 1991 stipulation requiring mental health bedspace capacity equal to or greater than 3.2% of the prison population. In their plan, they agreed to provide a total of 1224 mental health beds by May 1, 1994. J.A. 512. The defendants plan also stated:
Although this plan states how the Defendants intend to meet the fixed percentage bed requirement, the Department of Mental Health is currently working toward the development of a statistical model to project bed need. The data from this model, when used in conjunction with other data being collected may, over time, be considered when determining the number and types of beds required to adequately meet the mental health needs of prisoners in the Department of Corrections.
J.A. 514.
Thereafter, on April 1, 1994, defendants filed a motion seeking modification of the district court’s orders relating to fixed-percentage mental health bedspace capacity. J.A. 517-522. Essentially, defendants sought modification of the parties’ May 1991 stipulation which required them to maintain an aggregate mental health bedspace capacity equal to or greater than 3.2% of the Michigan prison population. In their motion, defendants proposed (1) to replace the fixed-percentage method of calculating mental health bedspace capacity with an alternative method for calculating mental health bedspace requirements, a utilization methodology (simulation modeling), known as the Discrete Event System Simulation (“DESS”) modeling;2 (2) to have the May 1991 stipulation modified to eliminate their obligation to achieve and maintain the fixed-percentage bedspace capacity by May 1, 1994; and (3) have the deadline for opening additional mental health beds extended from May 1, 1994, to December 30, 1994. J.A. 521-22. The DESS simulation model would have resulted in the State providing less mental health bedspace capacity than the fixed-percentage bedspace method of determining bedspace capacity.
*4 On April 28, 1994, the district court held an evidentiary hearing on defendant’s motion to modify multiple orders requiring them to provide mental health bedspace capacity based on a fixed-percentage of the prison population. Thereafter, on September 6, 1994, the district court issued an opinion and order granting in part and denying in part defendants’ motion to modify the consent decree and May 1991 stipulation concerning mental health bedspace capacity. The district court rejected defendants’ proposal to substitute the DESS for the fixed-percentage method of determining “the bedspace capacity of residential mental health programs.” J.A. 679. However, the district court did not require defendants to fully comply with the fixed-percentage requirements set forth in the May 1991 stipulation until June 1, 1996, and it granted defendants’ request to postpone the opening of certain mental health beds from May 1, 1994 to December 30, 1994. J.A. 712. Finally, the court found that defendants had violated various provisions of the consent decree and the state plan and ordered certain remedial measures to ensure compliance. J.A. 695-96, 705-09.
In its order of September 6, 1994, the district court rejected defendants’ proposal to calculate mental health bedspace requirements using the DESS model. Applying the Supreme Court’s decision in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), the district court refused to modify the May 1991 Stipulation requiring mental health bedspace based on a fixed-percentage of the prison population on the ground that defendants “have provided virtually no evidence that there has been any substantial change in the factual or legal circumstances of which the parties were not aware in 1991 when the Stipulation was adopted by this Court.” J.A. 686. The district court noted that the DESS “has profound technical problems,” J.A. 700, and that the DESS “database does not reflect significant dimensions of the need for treatment of serious mental illness,” J.A. 697. The district court further noted that the “DESS method ... has never been used to predict mental health capacity needs,” and it “has never been used before in a correctional setting.” J.A. 700. The court further noted that the assumption underlying the DESS model “were selected so that the results from the model would fit pre-existing conditions.” J.A. 700. Thus, the district court concluded that it “cannot rely on the [DESS] findings as a sufficient basis for determining whether adequate mental health treatment capacity is available in the corrections system.” J.A. 700.
The district court also found that defendants violated various provisions of the consent decree and the state plan based on their failure to provide adequate access to care. Specifically, the district court found that defendants had not complied with Paragraphs A.5 and A.6 of the consent decree and Paragraphs II.H.3 and II.H.4 of the state plan. J.A. 695-96. Accordingly, the district court ordered defendants to “submit a ...[p]lan defining the admission and discharge criteria for each level of mental health care and improvements to be made in the design and implementation of the mental health care recording system and computerized tracking system.” J.A. 713. Subsequently, on September 12 and 21, 1994, the district court issued orders modifying in minor respects its order of September 6, 1994. J.A. 723-27. Thereafter, on November 1, 1994, defendants filed a timely notice of appeal [Case No. 94-2391] challenging the district court’s orders of September 6, 12, and 21, 1994.
*5 Thereafter, on December 1, 1994 and December 6, 1994, respectively, defendants filed a motion requesting an extension
3

U.S. v. State of Mich., 62 F.3d 1418 (1995)
of the December 30, 1994 deadline to comply with the district court’s order of September 6, 1994, and an emergency motion for a stay pending appeal of the district court’s orders of September 6, 12, and 21, 1994. On February 22, 1995, the district court issued two separate orders and opinions. J.A. 888-911. First, the district court denied defendants’ emergency motion for a stay pending appeal. J.A. 904. Second, the district court reduced the number of mental health beds which defendants were required to open in 1995 and extended the deadline for those two different types of mental health beds until April 30, 1995, and December 31, 1995. J.A. 909. On March 6, 1995, defendants filed a second notice of appeal [Case No. 95-1258] challenging the district court’s orders of February 22, 1995.
Subsequently, on March 15, 1995, defendants filed an emergency motion for a stay pending appeal with this court, seeking a stay of those portions of the district court’s orders requiring them to open certain beds by April 30, 1995, December 31, 1995, and June 1, 1996, respectively. Plaintiff filed a response to defendant’s emergency motion on March 23, 1995. On April 7, 1995, we issued an order granting in part and denying in part defendant’s request for a stay. J.A. 922-23. We granted defendants’ request for a stay of the April 30, 1995 deadline; however, we denied a stay of either the December 31, 1995, or June 1, 1996 deadlines. J.A. 923.
B.
Numerous experts testified at the April 28, 1994 evidentiary hearing. In addition, the district court also had before it reports from various experts which it considered along with the expert testimony. Rather than making a lengthy summary of this testimony and evidence, we have referred to it, where necessary, in our discussion of the issues, as set forth below.
II.
A.
Defendants argue that the district court abused its discretion when it denied their request to modify the consent decree by “fail[ing] to relieve Michigan from the intrusive relief of enforcement of determining further mental health bedspace based upon an arbitrary fixed percentage of prison population,” and “in modif[ying] Michigan’s obligations under the decree without requisite evidence that noncompliance existed.” Appellants’ Brief at 24-25. Specifically, defendants assert that the district court did not properly apply the standard for modification of an institutional reform decree set forth in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), in rejecting Michigan’s request for modification of the consent decree and in modifying Michigan’s mental health obligations under the decree.
(1)
We “review[] a district court’s modification of a consent decree under an abuse of discretion standard.”3 Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994) (citing Lorain N.A.A.C.P. v. Lorain Bd. of Educ., 979 F.2d 1141, 1147-48 (6th Cir. 1992), cert. denied, 113 S. Ct. 2998 (1993)). Likewise, a district court’s refusal to modify a consent decree is also reviewed for an abuse of discretion. Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1563 (11th Cir. 1994). ““‘A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.””’ Lorain N.A.A.C.P., 979 F.2d at 1148 (quoting Black Law Enforcement Officers Ass’n v. City of Akron, 824 F.2d 475, 479 (6th Cir. 1987) (quoting Christian Schmidt Brewing Co. v. G. Heilman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200 (1965)). Moreover, “[m]odification of a consent decree requires ‘a complete hearing and findings of fact.”’ Akers v. Ohio Dep’t of Liquor Control, 902 F.2d 477, 479 (6th Cir. 1990) (per curiam) (quoting Brown v. Neeb, 644 F.2d 551, 560 (6th Cir. 1981)).
*6 “A consent decree is a strange hybrid in the law.” Brown, 644 F.2d at 557. “It is both ‘a voluntary settlement agreement which could be fully effective without judicial intervention and ‘a final judicial order ... plac [ing] the power and prestige of
4

U.S. v. State of Mich., 62 F.3d 1418 (1995)
the court behind the compromise struck by the parties.’’ Vanguards, 23 F.3d at 1017 (quoting Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983)). “[A] consent decree is a ‘settlement agreement subject to continued judicial policing.”’ Id. “[T]he “‘scope of a consent decree must be discerned within its four corners, and not be reference to what might satisfy the purposes of one of the parties to it”’ or by what “‘might have been written had the plaintiff established his factual claim and legal theories in litigation.””’ Id. (quoting Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574 (1984) (quoting United States v. Armour & Co., 402 U.S. 673, 681-82 (1971)). Nevertheless, a consent decree “should be construed to preserve the position for which the parties bargained.” Vogel v. City of Cincinnati, 959 F.2d 594, 598 (6th Cir.) (citing Williams, 720 F.2d at 920), cert. denied, 113 S. Ct. 86 (1992).
However, because “judicial approval of a consent decree places the power and prestige of the court behind the agreement reached by the parties,” Vanguards, 23 F.3d at 1018 (citing Williams, 720 F.2d at 920), “‘[o]nce approved, the prospective provisions of the consent decree operate as an injunction,”’ id. (citing Williams, 720 F.2d at 920). “The injunctive quality of a consent decree compels the approving court to: (1) retain jurisdiction over the decree during the term of its existence, (2) protect the integrity of the decree with its contempt powers, and (3) modify the decree if ‘changed circumstances’ subvert its intended purpose.” Vanguards, 23 F.2d at 1018 (citing Williams, 720 F.2d at 920). “Further, even if the consent decree does not expressly grant the district court jurisdiction to modify the decree, it is well-settled that “‘courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them.””’ Vanguards, 23 F.2d at 1018 (quoting Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914, 917 (6th Cir. 1979) (quoting Aro Corp. v. Allied Witan Co. 531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S. 862 (1976))).
*7 In Heath v. DeCourcy, 888 F.2d 1105 (6th Cir. 1989), this court set forth the standard for modification of consent decrees arrived at by mutual agreement of the parties. We stated that “[t]o modify such consent decrees, the court need only identify a defect or deficiency in its original decree which impedes achieving its goal, either because experience has proven it less effective, disadvantageous, or because circumstances and conditions have changed which warrant fine-tuning the decree.’
Vanguards, 23 F.3d at 1018 (quoting DeCourcy, 888 F.2d at 1110). Subsequently, the Supreme Court decided Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992), in which the Court “adopted a slightly more restrictive but flexible standard to be applied by the courts in rulings on motions to modify consent decrees under Federal Rule of Civil Procedure 60(b).” Vanguards, 23 F.3d at 1018. We described the impact of the decision in Rufo this way:
Under Rufo, “a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. If the moving party meets this standard, the court should consider whether the proposed modification is suitably tailored to the changed circumstance.” The party “seeking modification of a consent decree may meet its initial burden by showing either a significant change in factual conditions or the law.” Modification of a consent decree is appropriate: (1) “when changed factual conditions make compliance with the decree substantially more onerous,” (2) “when a decree proves to be unworkable because of unforeseen obstacles,” or (3) “when enforcement of the decree without modification would be detrimental to the public interest.” But “modification should not be granted where a party relied upon events that actually were anticipated at the time it entered into a decree.”
Vanguards, 23 F.3d at 1018 (citations omitted).
The consent decree at issue in Rufo involved prison reform litigation, i.e., institutional reform litigation. In Lorain N.A.A.C.P., we held that a consent decree involving school desegregation, namely, institutional reform litigation, was subject to the same standards enunciated in Rufo and Heath. Lorain N.A.A.C.P., 979 F.2d at 1149. “Further, in Lorain NAACP, this court summarized the reasons why a lesser showing was sufficient for the modification of ‘consent decrees entered in settlement of so-called “institutional reform” litigation involving and affecting the operation of governmental institutional or organizations.”’ Vanguards, 23 F.3d at 1019 (quoting Lorain N.A.A.C.P., 979 F.2d at 1148. “First, institutional consent decrees “‘affect more than the rights of immediate litigants.””’ Id. (quoting Lorain N.A.A.C.P., 979 F.2d at 1149) (quoting Heath, 888 F.2d at 1109)). “Second, broad judicial discretion to modify the consent decree “‘is required so that the agreed upon solution to the problem giving rise to the litigation may be fine-tuned to accomplish its goal.””’ Id. (quoting Lorain N.A.A.C.P., 979 F.2d at 1149) (quoting Heath, 888 F.2d at 1109)). “Finally, the courts require the ability to modify consent decrees in the institutional reform context because ‘such [consent] decrees often remain in place for extended periods of time, [and therefore] the likelihood of significant changes occurring during the life of the decree is increased.”’ Id. (quoting Lorain N.A.A.C.P., 979 F.2d at 1149) (quoting Rufo, 502 U.S. at 380).
*8 Furthermore, in dealing with consent decrees impacting on state penal institutions, we must keep in mind, as the Supreme Court has stated, that
5

U.S. v. State of Mich., 62 F.3d 1418 (1995)
It is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons *** The strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors thus also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.
Kendrick v. Bland, 740 F.2d 432, 437 (6th Cir. 1984) (citing Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973)). Such [J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the providence [sic] of the Legislative and Executive Branches of our Government not the Judicial.
Kendrick, 740 F.2d at 438 (quoting Bell v. Wolfish, 441 U.S. 520, 548 (1979)).
(2)
Defendants argue that the district court abused its discretion when it “failed to relieve Michigan from the orders requiring mental health bedspace to be determined by an arbitrary fixed percentage by improperly applying the standards” for modification of a consent decree. Appellants’ Brief at 28. Defendants assert that the district court should have granted modification of the consent decree by substituting DESS as the method to determine mental health bedspace needs rather than a fixed-based percentage because: (1) “[t]he [s]imulation model chosen by Michigan to determine bedspace use is the best methodology to determine bedspace need,” and (2) “the federal court must defer to the modification proposed by state officials administering the correctional system due to the principles of public interest and federalism.” Appellants’ Brief at 31.
Defendants’ arguments to the contrary, the district court did not abuse its discretion when it refused modification of the consent decree and the May 1991 stipulation by denying defendants’ proposal to calculate mental health bedspace requirements using the DESS model in lieu of a fixed-percentage. In this case, defendants have not satisfied their burden of showing grounds for modification.
Here, the district court properly rejected substitution of the DESS model for the fixed-percentage method, at least at the present time. First, the record shows that the DESS model has never been previously used in a correctional setting or to predict mental health capacity needs. Second, the district court properly found that the DESS model “has not been demonstrated to be a dependable predictor of bedspace needs.” J.A. 700. Indeed, Dr. Lowery testified that when she ran the data for the DESS model, the occupancy rate predicted by the model for 1993 “was not consistent with the actual occupancy.” J.A. 1208. Finally, the district court also correctly found that the assumptions underlying DESS “were selected so that the results from the model would fit pre-existing conditions.” J.A. 700. Dr. Lowery testified that when the assumptions for average length of stay were made, “a conscious decision” was made “that treatment patterns in the future will follow this utilization pattern.” J.A. 1210.
*9 Furthermore, the district court also did not abuse its discretion in rejecting the DESS method because it found there were problems with the database used for the model, i.e., the utilization database. As the district court stated, “it is very likely that the utilization database does not reflect significant dimensions of the need for treatment of serious mental illness.” J.A. 697.
In this case, there is ample evidence that the database for the DESS underestimates mental health bedspace needs. Dr. Lowery testified that “many patients” who were not discharged as of September 18, 1993, were not included in the DESS database because she did not know when they would be discharged. J.A. 1207. Dr. Lowery characterized this situation as being “not good.” Id. Moreover, the court’s independent experts, Drs. Benton and James, stated in their report that the “utilization database does not reflect all prisoners in need of service, and ... does not fully reflect appropriate placements.” J.A. 652. Further, the independent experts identified “several apparent breakdowns in the [data] tracking system” for the DESS, and they characterized “an effective tracking system” as “a necessary element of a utilization based system.” J.A. 654. Finally, the independent experts found that the decision making practices in treatment and placement of inmates with mental health problems were inconsistent because “there is no single official policy that states the criteria for admission to inpatient
6

U.S. v. State of Mich., 62 F.3d 1418 (1995)
services in a way that differentiates between the levels of care available.” J.A. 657. They further explained that “[t]o the extent that the utilization database reflects incomplete information by clinical decision makers about policy as to the appropriate use of available treatment capacity, the [b]edspace [s]tudy will be affected.” J.A. 657. Accordingly, we conclude that the district court did not abuse its discretion when it refused to substitute the DESS method for the fixed-percentage method of determining mental health bedspace requirements. There was ample evidence, at least as of April 1994, that the DESS model was unproven in the mental health or correctional setting, as well as evidence that the utilization database for the DESS model was flawed, to support the district court’s rejection of the DESS model.
(3)
Defendants argue that the district court exceeded its authority when it modified the consent decree and state plan and ordered them to: (1) submit a plan to improve “the design and implementation of the mental health care recording system and computerized tracking system,” J.A. 727; (2) submit a plan “defining ... uniform admission and discharge criteria for each level of mental health care,” J.A. 727; (3) have “all prisoners admitted to an RTP [residential treatment program] from facilities subject to the [c]onsent [d]ecree ... first be admitted to, and receive a comprehensive evaluation from, an acute inpatient unit or a CCU” [continuing care unit], J.A. 725; and (4) have “[a]ll prisoners discharged from acute psychiatric units ... be admitted, evaluated, and discharged from a CCU for transitional followup care, unless a psychiatrist orders ... an alternate disposition,” J.A. 725.
*10 The district court’s orders at issue here “are indisputably modifications of the consent decree, which are injunctive in nature.” United States v. Michigan, 940 F.2d 143, 150 (6th Cir. 1991). “[W]hen litigation involves a remedial plan, revisions to the plan, and efforts to enforce compliance, an assessment of the afforded ... relief will ... require plenary review ....” Id. at 152.
Nevertheless, “the prospective provisions of [a] consent decree operate as an injunction.” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983). “The injunctive quality of consent decrees compels the court to: 1) retain jurisdiction over the decree during the term of its existence; 2) protect the integrity of the decree with its contempt powers; and 3) modify the decree should ‘changed circumstances’ subvert its intended purpose.” Id. (citations omitted). “[A] district court is not simply empowered, but is actually obligated, to exercise its independent judgment regarding compliance with a decree.” United States v. Michigan, 18 F.3d 348, 351 (6th Cir.), cert. denied, 115 S. Ct. 312 (1994).
“‘[A] court has an affirmative duty to protect the integrity of its [consent] decree. This duty arises where the performance of one party threatens to frustrate the purpose of the decree.” Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985) (quoting Stotts v. Memphis Fire Dep’t, 679 F.2d 541, 557 (6th Cir. 1982), rev’d on other grounds, 467 U.S. 561 (1984)). A party “who has obtained the benefits of a consent decree--not the least of which is the termination of the litigation--cannot then be permitted to ignore such affirmative obligations as were imposed by the decree.” Id. Moreover, “[a] federal court has broad equitable remedial powers.” Stone v. City and County of San Francisco, 968 F.2d 850, 861 (9th Cir. 1992), cert. denied, 113 S. Ct. 1050 (1993). A district “court’s choice of remedies is reviewed for an abuse of discretion.” Id. (citing Swann v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 1, 15 (1971)).
First, the district court did not abuse its discretion when it ordered defendants to submit a plan which would improve “the mental health record system and the computer-based tracking system.” J.A. 709. The evidence of record shows that the mental health record-keeping and computer tracking systems are currently deficient, but are also essential to providing adequate care, monitoring defendants’ compliance with the consent decree, and assessing the mental health needs of inmates in facilities covered by the consent decree.
*11 In the consent decree, defendants agreed to provide “[p]rofessional medical record-keeping systems.” J.A. 250. The state plan further “requires that care of serious mental illness meet contemporary professional standards,” J.A. 276, and “include[s] the coordination of record-keeping between psychiatrists and psychologists,” J.A. 280.
In their report to the court, the independent experts “identified several apparent breakdowns in [defendants’] tracking system,” particularly with respect to prisoners who were receiving mental health treatment, but who were “not identified on the tracking system.” J.A. 654. Accordingly, the independent experts explained that “[i]n some instances, the failure to record [a] prisoner in the tracking system may have contributed to the lack of appropriate and timely follow up.” J.A. 657. The independent experts further stated that they supported the development of “an effective tracking system,” because it: (1)
7

U.S. v. State of Mich., 62 F.3d 1418 (1995)
“enhances the capability of the mental health care system to identify prisoners who need care,” and (2) “provides important program utilization data.” J.A. 654.
Furthermore, in his testimony Dr. Metzner detailed the problems with defendants’ current record system. Dr. Metzner testified that he advised defendants “to develop a management information system, which one thing a management information system does--not the only thing--is tracking.” J.A. 1248. Dr. Metzner further opined that it would be necessary for defendants to supplement their DESS “model with an accurate management information system. I don’t think that they have done that, and I think until recently they haven’t been thinking in terms of that.” J.A. 1248. As one example of the problems with defendants’ current record system, Dr. Metzner described the data which defendants had provided to him concerning the percentage of inmates who suffered from schizophrenia. Dr. Metzner stated that the information which defendants supplied to him was “incomplete” and that he could not determine an “accurate number” of inmates who had schizophrenia based on the information. J.A. 1249.
Second, the district court did not abuse its discretion when it ordered defendants to submit a plan providing for uniform admission and discharge criteria for the various levels of mental health care. The evidence of record shows that on occasion defendants have failed to identify and properly treat inmates with serious mental illnesses due, at least in part, to an absence of uniform treatment policies.
In their report, the independent experts addressed defendants’ failure to properly treat inmates with serious mental illness. They stated that “the outpatient services for the SPSM complex are understaffed and assigned caseloads that include patients who should be treated in higher levels of mental health care.” J.A. 657. The independent experts also reviewed five inmate suicides which occurred in 1993 and early 1994. J.A. 655-57. They stated that “the medical record raises the question as to whether members of the OPT [outpatient staff] should have taken steps to admit the prisoners to acute care, or to arrange placement to another level of residential mental health care.” J.A. 657. Moreover, Dr. Metzner also testified about the five suicides. He stated that one of the suicides was “a very problematic suicide because I think it represents issues around access [to treatment] and identification [of mental illness].” J.A. 1242.
*12 Moreover, the record establishes that the inadequacy of placement and treatment decisions stems, at least to some extent, from the absence of a uniform policy outlining the criteria for admission and discharge from various levels of mental health care. In this case,
[t]he independent experts stated that there is no single official policy that states the criteria for admission to inpatient services in a way that differentiates between the levels of care available. Since there is no written policy, the mental health staff and particularly the psychiatrists are not informed about the policy, and their decision making practices do not appear to be consistent ....”
J.A. 657. Accordingly, the independent experts recommended changes, including the “adoption of a uniform policy for admission to the various levels of mental health care, accompanied by ... case finding, tracking, and quality assurance processes to assure implementation of the policy.” J.A. 658.
Third, defendants argue that the district court improperly modified the consent decree when it ordered inpatient diagnostic evaluations for all inmates admitted to a residential (RTP) treatment unit who are discharged from an acute care facility. Again, there is evidence in the record showing that defendants underutilized comprehensive care units and misplaced inmates in lower levels of mental health care than they should have received.4
In their report, the independent experts identified “a need to expand CCU capacity.” J.A. 652. They also identified “a practice pattern during 1992, 1993, and 1994 thus far, wherein prisoners from SPSM are infrequently if ever committed to this level of care [comprehensive care] in the mental health delivery system.” J.A. 652. The independent experts included tables of data in their report which supported their conclusions. J.A. 653.
Moreover, Dr. Fischre testified that the independent experts comments concerning the disparity of discharges to CCUs “was fairly supported.” J.A. 1191. Dr. Fischre also stated that “from the Jackson Complex situation [SPSM] ... there was a hesitancy on the part of many of the commissions there to refer out of that system.” J.A. 1192. Furthermore, the independent experts report also documents that defendants have, on occasion, placed mentally ill inmates at lower levels of care than they should have been. J.A. 657.
Finally, in their brief defendants assert that the diagnostic evaluations ordered by the district court are a waste of resources
8

U.S. v. State of Mich., 62 F.3d 1418 (1995)
because they take three days, that is 72 hours, to perform. Nevertheless, in their emergency motion for a stay pending appeal, which was filed with this court on March 16, 1995, defendants stated that they had performed 12 diagnostic evaluations since the order of September 1994. Thus, contrary to defendants’ assertions, the court-ordered diagnostic evaluations have not been an onerous burden.
B.
*13 Defendants further argue that the district court lacked the authority to order remedial measures because: (1) the United States did not allege that they were in noncompliance with the consent decree or request relief for such noncompliance, (2) the relief ordered by the district court is overly intrusive and contrary to the principles of federalism, and (3) the district court made no finding that any alleged noncompliance by defendants constituted a constitutional violation. Specifically, defendants assert that the district court’s remedial order “is overly intrusive and interferes with Michigan’s operation and administration of its correctional system.” Appellants’ Brief at 45. Defendants cite Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984), asserting that in ordering remedial measures, the district court failed to “‘fashion the least intrusive remedy that will still be effective.””’ Id. at 437 (quoting parenthetically Newman v. State of Alabama, 559 F.2d 283, 287 (5th Cir. 1977), cert. denied, 438 U.S. 915 (1978)).
First, contrary to defendants’ claim, the United States need not cite them for noncompliance with the consent decree and request relief in order for the district court to have the necessary authority to order remedial measures pursuant to a consent decree which has been entered after judicial approval. “[B]ecause a district court has a significant administrative interest in securing compliance with its orders, it ‘may take such [remedial] steps as are appropriate given the resistance of the noncompliant party.”’ E.E.O.C. v. Local 580, Int’l Ass’n of Bridge, Structural and Ornamental Ironworkers, 925 F.2d 588, 592 (2d Cir. 1991) (quoting Berger, 771 F.2d at 1569). “[T]hough a court cannot randomly expand or contract the terms agreed upon in a consent decree, judicial discretion in flexing its supervisory and enforcement muscles is broad.” Id. at 593. Moreover, in their brief on appeal defendants cite no case law which suggests that a district court lacks authority to enforce a consent decree merely because relief for noncompliance has not been requested.
Furthermore, the United States did allege a violation of the consent decree and specifically requested relief from the district court. In its post-trial brief, filed after the April 1994 evidentiary hearing, the United States outlined the evidence of noncompliance which was presented at the hearing, J.A. 672, and requested that the court order defendants “to develop ... the information management system to have the capability of reflecting actual current mental health needs”; to “enter information regarding inmates with mental illness onto the information system at the Reception and Guidance Center, rather than the receiving institution”; and to clearly articulate a policy for “[t]he criteria for admission and discharge for each part of the mental health continuum” and to train clinicians “in the appropriate application of the criteria,” J.A. 673-74.
*14 Second, the district court’s orders are not overly intrusive. The relief ordered by the district court simply requires defendants to implement procedures which the evidence adduced at the April 1994 evidentiary hearing shows are necessary to ensure their compliance with the consent decree and to enable them to provide care for mentally ill inmates, care which they are constitutionally obligated to give.
Third, we need not address defendant’s claim that the district court must find a constitutional violation before it orders relief. In its opinion of September 6, 1994, the district court found that “[t]he record of the [April 1994] hearing, along with the supplemental record, make it absolutely clear to the Court that SPSM prisoners do not receive appropriate access to CCU care.” J.A. 691. The district court further found that “the problem of access to mental health care extends beyond prisoners in special populations, such as those housed in administrative segregation or discharges from acute care. The problem extends to prisoners in the general population who have serious mental illness.” J.A. 694-95. Accordingly, the district court stated that it was “persuaded that there are substantial numbers of seriously mentally ill prisoners who are not receiving the level of care warranted or not receiving care at all.” J.A. 695. We note that the denial of care to prisoners with serious mental illness can rise to the level of a constitutional violation. See, e.g., Estelle v. Gamble, 429 U.S. 97, 103 (1976).
Moreover, the Supreme Court has rejected the notion that a court may enforce a consent decree only to the point of ordering relief to which the parties would have been entitled to after a trial on the merits. See Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 522-23 (1986) (stating that because “it is the agreement of the parties, rather than the force of the law upon which the complaint was originally based, that creates the obligations embodied in a consent decree,” the statutory limitations which restrict a district court’s power to award relief or “impose obligations” after trial “simply do
9

U.S. v. State of Mich., 62 F.3d 1418 (1995)
not apply when the obligations are created by a consent decree”). Further, “[a] proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor.” Rufo, 502 U.S. at 391. This is so because “state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation.” Id. at 392.
In this case, defendants cannot insist on the constitutional minimum after deciding to enter into the consent decree and waive the right to establish what remedial measures were constitutionally necessary through litigation. Having entered into a consent decree which obligates them to provide inmates suffering from serious mental illness with adequate care, including “care of serious mental illness which meet[s] contemporary professional standards,” J.A. 276, “suitable separated housing adequate to house every inmate who exhibits a serious threat of suicide or who attempts suicide,” J.A. 277, “inpatient services for serious mental illness,” id., and “staffing for outpatient services ... and inpatient services ... available to each inmate” which “shall meet contemporary professional mental health standards to provide necessary outpatient psychiatric and psychological care for seriously mental ill inmates,” J.A. 278, defendants cannot now insist that the district court find that conditions at the institutions covered by the consent decree have fallen below the relevant constitutional standards before it orders them to comply with the requirements of the consent decree.
*15 Finally, contrary to defendants’ assertions, the decisions in Lelsz v. Kavanagh, 807 F.2d 1243 (5th Cir.), cert. dismissed, 483 U.S. 1057 (1987), and Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984), do not mandate reversal of the remedial measures ordered by the district court. In Lelsz, the Fifth Circuit held, in part, that pursuant to the decision of the Supreme Court in Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) (Pennhurst II), the district court lacked subject matter jurisdiction to enforce a consent decree requiring state officials to comply with their obligations under state law. The Fifth Circuit stated that the decision in “Pennhurst II ... would prevent a federal court from exercising remedial authority in any form if the award of such relief against a nonconsenting state is based on a state law claim.” Lelsz, 807 F.2d at 1252. Here, defendants’ obligations do not originate with state law, and the remedial measures ordered by the district court are encompassed by the consent decree and accompanying state plan, to which the state officials consented.
Furthermore, in Kendrick we held that the district court exceeded its authority and breached the principles of federalism when it enjoined three prison officials, who had engaged in unconstitutional conduct, from performing certain responsibilities of employment delegated by the state because the relief ordered was not the least intrusive remedy available. Nevertheless, we also stated that “the parties, under the astute guidance of the district court, exhibited a commendable spirit of cooperation designed to rectify the practices, policies, and conditions” which were “constitutionally infirm.” Kendrick, 740 F.2d at 434. Nevertheless, while we reasoned that “the least intrusive remedy is particularly compelling ... since the defendants have exhibited a history of cooperation and good faith,” we also warned that “‘the scope of a district court’s equitable power to remedy past wrongs is broad.”’ Id. at 439 (quoting Hutto v. Finney, 437 U.S. 678, 688 n.9 (1979)). We further stated parenthetically that “‘the remedy should begin with what is absolutely necessary. If those measures later prove ineffective, more stringent ones should be considered.” Id. (quoting Ruiz v. Estelle, 679 F.2d 1115, 1145-46 (5th Cir. 1982), vacated in part on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983)).
In its opinion of September 6, 1994, the district court noted that it had “found defendants in contempt of court” with respect to an earlier version of the state plan, “but relieved the state of contempt.” J.A. 680-81. The district court further noted that “[o]n October 15, 1990, ... [it] found defendants in contempt of the Correctional Mental Health Facility Development Schedule ordered originally on September 24, 1988,” and had ordered “[a] schedule of fines.” J.A. 682. Finally, the district court found that “[a]lthough defendants, at the April 28, 1994 hearing, argued that they were fully compliant with all requirements pertaining to mental health care, ... the evidence demonstrates otherwise.” J.A. 684.
*16 In this case, defendants have not exhibited the commendable history of cooperation and good faith present in Kendrick. Accordingly, the district court did not abuse its discretion when it ordered remedial measures designed to ensure compliance with the consent decree, even assuming arguendo that those remedial measures were not the least intrusive available but were somewhat more stringent.
C.
Defendants argue that the district court lacked jurisdiction to enter the February 1995 orders because they modified the September 1994 orders of the district court after defendants had appealed those orders to this court. More specifically, defendants assert that the district court’s February 1995 orders altered: (1) “the number [and specific types] of beds [they
10

U.S. v. State of Mich., 62 F.3d 1418 (1995)
were] ordered to staff and operate by April 30, 1995,” at the new Huron Valley facility; and (2) “the number of residential treatment beds mandated to be opened by December 31, 1995.” Supplemental Appellants’ Brief at 4.
(1)
“As a general rule, an effective notice of appeal divests the district court of jurisdiction over the matter forming the basis for the appeal.” N.L.R.B. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). “‘[T]he mere pendency of an appeal does not, in itself, disturb the finality of a judgment.”’ Id. (quoting Wedbush, Noble, Cooke, Inc. v. SEC, 714 F.2d 923, 924 (9th Cir. 1983)). A “‘district court has jurisdiction to act to enforce its judgment so long as the judgment has not been stayed or superseded.”’ Id. (quoting Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 298, 299 n.2 (5th Cir. 1984)). “Although a district court may not alter or enlarge the scope of its judgment pending appeal, it does retain jurisdiction to enforce the judgment.” Id. “‘[W]here the district court ... has a continuing duty to maintain a status quo, and where, as the days pass, new facts are created by the parties and the maintenance of the status quo requires new action, ... an appeal from the supervisory order does not divest the court of jurisdiction ....”’ Island Creek Coal Sales Co. v. City of Gainesville, 764 F.2d 437, 439-40 (6th Cir.), cert. denied, 474 U.S. 948 (1985) (quoting Hoffman v. Beer Drivers & Salesmen’s Local Union No. 888, 536 F.2d 1268, 1276 (9th Cir. 1976)).
(2)
Defendants’ claim concerning the opening of certain beds at the Huron Valley Center by April 30, 1995, is moot. Defendants argue that the district court’s February 1995 orders, which require them to open certain mental health beds at the Huron Valley Center by April 30, 1995, is an improper modification of the district court’s September 1994 orders. However, on April 7, 1995, we issued an order staying that portion of the district court’s order which required Michigan to open a certain number of mental health beds by April 30, 1995, and extending the April 30, 1995 deadline until December 30, 1995. Further, in a letter dated May 22, 1995, counsel for defendants stated that the required number of beds would be opened by June 5, 1995. Accordingly, defendants’ claim that the district court improperly ordered them to open certain mental health beds by April 30, 1995, is moot.
D.
*17 Defendants argue that the district court’s February 22, 1995 orders, which require them to open 400 beds at the new Huron Valley Center by December 31, 1995, changes the September 1994 orders. Defendants assert that (1) “[t]he September 1994 order did not mandate a specific number and type of beds to be operated by Michigan at the new facility,” Supplemental Appellants’ Brief at 5, and (2) they previously informed the court in the December 1991 Operational Transition Plan that the new facility “was being built for a future capacity of 400 beds, not necessarily that all 400 beds were to be operated and staffed,” Supplemental Appellants’ Brief at 7.
However, the district court’s September 6, 1994 order clearly requires defendants to provide 400 beds at the new Huron Valley Center, including acute and comprehensive beds relocated from the Riverside facility, and also requires defendants to provide “all capacity related to the April 15 [1993] [p]lan ..., including the relocation of the CCU at Riverside Psychiatric Center to the Huron Valley Mental Health Facility.” J.A. 712. The April 15, 1993 plan, which was drafted by defendants, provides for the “[o]pening of 400 new beds at the correctional mental health facility currently under construction on the site of the former Huron Valley Women’s Facility.” J.A. 512. The April 1993 plan also explains that the 400 beds at the new Huron Valley facility will include acute and CCU beds transferred from the Riverside facility and details both the time-frame and procedures for the relation of the beds. J.A. 512-13.
Furthermore, defendants’ assertion is totally inconsistent with the representations they have previously made to the district court and this court. In their brief in support of their motion for an extension of time to comply with the district court’s order of September 6, 1994, defendants acknowledged that the September 6, 1994 order required them to “‘implement the treatment capacity identified in [the] April 105 [sic] 1993 [p]lan,”’ J.A. 772, which included 400 “[a]cute and chronic care
11

U.S. v. State of Mich., 62 F.3d 1418 (1995)
beds at the new [Huron Valley] facility,” J.A. 773. Furthermore, in their brief on appeal, defendants admit that “[t]he September 6, 1994 order required Michigan to staff and operate all 400 beds available at the new mental health facility.” Supplemental Appellants’ Brief at 18.
Thus, the February 1995 orders requiring defendants to open 400 beds, including 100 acute and 204 CCU beds relocated from Riverside, at the new Huron Valley facility do not change the overall number of beds required.5 Moreover, because the February 1995 orders do not result in a change in the overall number of beds from the September 1994 order, it is not, as defendants contend, overly intrusive.
*18 Finally, defendants argue that the district court lacked jurisdiction in its February 1995 orders to reduce the number of residential beds required since they had already filed an appeal concerning the district court’s September 1994 orders, which specified the number and types of beds required. See Supplemental Appellants’ Brief at 15. We agree. As noted previously, “a district court may not alter or enlarge the scope of its judgment pending appeal ....” Cincinnati Bronze, 829 F.2d at 588. Thus, in this case, since the district court’s September 1994 orders were already on appeal, the district court lacked jurisdiction in February 1995 to reduce the number of mental health beds which it had required defendants to provide in its September 1994 orders.

III.
For the reasons stated, the district court’s September 1994 orders are AFFIRMED. Further, defendants challenge to the requirement in the district court’s orders of February 1995 requiring the opening of certain beds at the Huron Valley facility is DISMISSED as moot, the portion of the district court’s February 1995 orders requiring the opening of 400 mental health beds at the Huron Valley facility by December 31, 1995, is AFFIRMED, and that portion of the district court’s February 1995 orders reducing the number of residential beds defendants were required to open is REVERSED because the district court lacked jurisdiction to modify its orders of September 1994 while those orders were on appeal to this court.

Parallel Citations

1995 WL 469430 (C.A.6 (Mich.))

Footnotes

*

Honorable Sandra S. Beckwith, United States District Judge for the Southern District of Ohio, sitting by designation.

1

This case has previously been appealed several times to the Sixth Circuit. The relevant background facts to this case are aptly

summarized in this court’s prior opinion in United States v. Michigan, 940 F.2d 143 (6th Cir. 1991), and in the opinion in United

States v. Michigan, 18 F.3d 348 (6th Cir.), cert. denied, 115 S. Ct. 312 (1994), and will not be repeated here. Instead, we set forth

only the facts which we deem necessary to our decision.

2

DESS is a computer simulation program.

3

Defendants argue, relying on this court’s decision in United States v. Michigan, 940 F.2d 143 (6th Cir. 1991), that we should

review the district court’s denial of their motion to modify the consent decree under a de novo standard, rather than under an abuse

of discretion standard. In Michigan, we held that where a party appeals from orders which are modifications of the consent decree

and which are injunctive in nature, “an assessment of the afforded injunctive relief will, of necessity, require plenary review of the

entire record.” 940 F.2d at 152. Only the third of the district court’s actions, namely, requiring the State to develop a utilization

database, is in the nature of injunctive relief. Thus, we shall review that portion of the district court’s orders under a de novo

standard. However, we shall review the district court’s denial of defendants’ motion to modify the consent decree under an abuse

of discretion standard. Further, we note that even if we were to review the district court’s denial of the motion to modify the

consent decree under a de novo standard, rather than an abuse of discretion standard, we would reach the same result.

4

Moreover, it should be noted that the district court’s order concerning diagnostic evaluations was to be reconsidered in June 1995.

Specifically, the district court ordered the parties to “report to the Court by June 1, 1995, on whether th[e] [diagnostic evaluation]

requirement should be continued, modified, or vacated.” J.A. 725.

12

U.S. v. State of Mich., 62 F.3d 1418 (1995)

5

The only difference between the February 1995 order and the April 1993 plan is that the February 1995 order requires 400 beds at

the Huron Valley facility, including 204 CCU beds relocated from Riverside, while the April 1993 plan provides for 400 beds

including 200 CCU beds. This difference is so minor as to be insignificant.

13

 
 U.S. v. State of Mich., 91 F.3d 145 (1996)
91 F.3d 145 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee,
v. STATE OF MICHIGAN, Defendant-Appellant.
No. 90-1701. | July 3, 1996.
W.D. Mich., No. 84-00063; Richard A. Enslen, Chief Judge. W.D.Mich.
REMANDED.
Before: GUY, RYAN, and SUHRHEINRICH, Circuit Judges. Opinion
ORDER *1 The State of Michigan appeals the May 1, 1990 order addressing issues of compliance with a consent decree entered in this action filed by the government to required the State to bring the conditions at several Michigan prisons up to constitutional standards. The State now moves for immediate termination of the order pursuant to the recent amendments to 18 U.S.C. § 3626 set forth in section 802 of the Prison Litigation Reform Act. The government responds to the motion by requesting that the appeal be remanded to the district court.
The amended statute provides that
[i]n any civil action with respect to prison conditions, a defendant or intervenor shall be entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
18 U.S.C. § 3626(b)(2). It is undisputed that the May 1, 1990 order does not contain the findings required by this section of the Act. However, whether the statute requires the immediate termination of the order is more properly addressed in the first instance by the district court.
It therefore is ORDERED that the motion for immediate termination be denied. The appeal is remanded to the district court for reconsideration in light of the recent amendments to 18 U.S.C. § 3626.
Parallel Citations 1996 WL 382238 (C.A.6 (Mich.))
1

 
 Michigan v. U.S., 513 U.S. 925 (1994)
115 S.Ct. 312 Supreme Court of the United States
MICHIGAN, et al., petitioners, v.
UNITED STATES. No. 93-2042. | Oct. 11, 1994. Case below, 940 F.2d 143; 18 F.3d 348.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.
Parallel Citations 115 S.Ct. 312 (Mem), 130 L.Ed.2d 275, 63 USLW 3292, 63 USLW 3289
	  

1

 
 U.S. v. State of Mich., 899 F.2d 15 (1990)
899 F.2d 15 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.) United States Court of Appeals, Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee Gary Knop; John Ford; William Lovett, II; Ramando Valeroso; Gus Jansson; Pat
Sommerville; Vernard Cohen; Jon Spytma; Robert Shipp; Butch Davis; Ron Mixon; Kerwin Cook, individually and on behalf of all others similarly situated; Amici-Curiae-Appellees, v. STATE OF MICHIGAN; Defendant-Appellant, James J. Blanchard, Governor of the State of Michigan, et al., Defendants.
No. 90-1035. | April 4, 1990.
W.D.Mich.
DISMISSED.
Before KRUPANSKY and MILBURN, Circuit Judges, and WILLIAM K. THOMAS, Senior District Judge*.
Opinion
ORDER
*1 The defendants in this prisoners civil rights litigation appeal those portions of two district court orders (1) requiring them to develop and implement a new classification plan, (2) requiring them to develop a population projection plan, and (3) denying their motion to restrict discovery by the amicus curiae. The plaintiff

now moves to dismiss the appeal as premature. Both the defendants and amicus have responded.
The district court filed its orders on November 3 and 6, 1989. Pursuant to Rule 59(e), Fed.R.Civ.P., the defendants thereafter timely served and tendered to the district court a motion to reconsider or to alter the above orders. Before that order was ruled upon by the district court, the defendants filed their notice of appeal on December 4, 1989.

The motion to reconsider was denied on January 24, 1990 and defendants timely filed a new notice of appeal on February 23, 1990.
Rule 4(a)(4), Fed.R.App.P., provides that a timely Rule 59(e) motion tolls the time to file a notice of appeal until the motion is ruled upon. Any notice of appeal filed prior to such disposition has no effect. Here, the defendants’ Rule 59(e) motion to reconsider filed and served on November 20, 1989 was timely, single space notwithstanding, and tolled the time to file a notice of appeal. The December 4 notice of appeal, filed before the disposition of that motion, was ineffective. Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam).
It is therefore ORDERED that plaintiff’s motion to dismiss the notice of appeal filed on December 4, 1989, is granted. Defendant’s notice of appeal filed on February 23, 1990 is timely.

*

The Honorable William K. Thomas, Senior U.S.

District Judge for the Northern District of Ohio, sitting

by designation.

Parallel Citations
1990 WL 38180 (C.A.6 (Mich.))
	  

1