Russell v. Johnson

United States Court of Appeals
Fifth Circuit
REVISED JULY 9, 2004
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
______________________ Clerk
No. 03-60529
______________________
NAZARETH GATES, etc., ET AL
Plaintiffs
versus
THOMAS D. COOK, etc., ET AL
Defendants
________________________________________________________
WILLIE RUSSELL, Etc., ET AL
Plaintiffs
WILLIE RUSSELL, on his own behalf and on behalf of those
similarly situated; SHERWOOD BROWN, on his own behalf and on
behalf of those similarly situated; KEVIN JORDAN, on his own
behalf and on behalf of those similarly situated; JOHN NIXON, on
his own behalf and on behalf of those similarly situated; PAUL
WOODWARD, on his own behalf and on behalf of those similarly
situated
Plaintiffs-Appellees
versus
ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS, in his official capacity; CHRISTOPHER EPPS, Deputy
Commissioner, Mississippi Department of Corrections, in his
official capacity; EMMITT L. SPARKMAN, Superintendent,
Mississippi State Penitentiary, in his official capacity; JESSIE
STREETER, Warden, Area IV, Mississippi State Penitentiary, in his
official capacity; LARRY D. HARRIS, Captain, Unit Administrator,
Unit 32, Mississippi State Penitentiary, in his official capacity
Defendants-Appellants
__________________________________________________
Appeal from the United States District Court for
the Northern District of Mississippi, Eastern Division
___________________________________________________
1
Before DEMOSS, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
Willie Russell (“Russell”) brought suit in the Northern
District of Mississippi against officials of the Mississippi
Department of Corrections (“MDOC”) on behalf of himself and other
prisoners confined to Death Row, or Unit 32-C, in the Mississippi
State Penitentiary in Parchman, Mississippi. Russell alleges that
certain conditions of confinement on Death Row violate the Eighth
Amendment’s prohibition against cruel and unusual punishment. By
consent of the parties, the case was tried to the magistrate judge,
who found several Eighth Amendment violations and entered
injunctions designed to alleviate those conditions. MDOC
appealed.1 We affirm in part and vacate in part.2
1
Russell filed a motion to dismiss the appeal, arguing
that this court was without jurisdiction because the order from
which MDOC appeals was inherently tentative. We disagree. In
addition to having jurisdiction to review final decisions of
district courts, 28 U.S.C. § 1291, this court has jurisdiction to
review interlocutory decisions “granting, continuing, modifying,
refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1).
The order from which MDOC appeals is the “Final Judgment” issued
on May 21, 2003. That order imposes ten detailed injunctive
requirements on MDOC. As Russell points out, the order also
requires MDOC to report its “progress in meeting the remedial
actions” on July 7. The requirement of a progress report does
not change the fact that the May 21st order grants injunctions
against Mississippi requiring immediate action. In fact, this
court granted MDOC a stay of this injunctive order to relieve
MDOC from the burden of compliance pending appeal. In short, the
May 21st order qualifies as an order granting an injunction;
thus, this court has jurisdiction pursuant to 28 U.S.C. §
1292(a)(1), and Russell’s motion to dismiss for lack of
2
BACKGROUND
Russell argues that the prisoners housed on Death Row are
knowingly and deliberately subjected to profound isolation, lack of
exercise, stench and filth, malfunctioning plumbing, high
temperatures, uncontrolled mosquito and insect infestations, a lack
of sufficient mental health care, and exposure to psychotic inmates
in adjoining cells. On May 21, 2003, the trial court issued a
“Memorandum Opinion” containing its findings of fact and
conclusions of law in which the court found that a number of the
conditions alleged by Russell violated the Eighth Amendment’s
prohibition against cruel and unusual punishment. That same day,
the court also issued a “Final Judgment” in which it mandated that
MDOC comply with injunctive relief designed to alleviate those
conditions. MDOC timely appealed. The trial court denied MDOC’s
motion for a stay pending appeal. MDOC then filed a motion for
stay pending appeal with this court; we granted MDOC’s motion.
ANALYSIS
Should this case be dismissed because it was not brought in
accordance with the Gates v. Collier class action framework?
jurisdiction is denied.
2
As mentioned in Footnote 1, this court previously granted
MDOC’s motion for a stay of the injunctive relief pending appeal.
On March 31, 2004, Russell filed a motion to lift that stay. Due
to the filing of this opinion, the stay pending appeal is vacated
and Russell’s motion to lift the stay is denied as moot.
3
MDOC first argues that this case should have been brought
under the framework for enforcing injunctive relief on the
Mississippi prison system provided by Gates v. Collier, 501 F.2d
1291 (5th Cir 1974). MDOC bases this argument on this court’s
decision in Gillespie v. Crawford, 858 F.2d 1101 (5th Cir 1998).
The plaintiff in Gillespie attempted to bring suit in federal
district court challenging prison conditions in Texas state prison.
At that time, a separate district court still retained jurisdiction
over Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), a class
action that successfully challenged unconstitutional Texas prison
conditions, to monitor the prison system until the injunctions
issued in Ruiz had been met. See Gillespie, 858 F.2d at 1102. The
Gillespie court stated:
Separate individual suits may not be maintained for
equitable relief from allegedly unconstitutional
Texas prison conditions. To allow individual suits
would interfere with the orderly administration of
the class action and risk inconsistent
adjudications. Individual members of the class and
other prisoners may assert any equitable or
declaratory claims they have, but they must do so
by urging further action through the class
representative and attorney, including contempt
proceedings, or by intervention in the class
action.
Id. at 1103.
Gates involved alleged constitutional deficiencies in the
Mississippi prison system, and in 1998, after twenty-five years of
oversight, the District Court for the Northern District of
4
Mississippi finally dismissed the action from its inactive docket
as to state-owned, state-operated, and private-company-contracted
facilities (not as to county facilities), complimenting the state
on its compliance with prior orders. No. GC-71-6. The court
stated:
This dismissal shall be without prejudice for the
plaintiffs, through counsel, to petition the Court
to reopen the case or a portion thereof in order to
enforce, amend, or seek additional injunctive
relief. … This dismissal shall not apply to any
order of the court with respect to the payment of
attorneys fees and costs/expenses to plaintiffs’
counsel, who shall, post-dismissal, continue to
monitor compliance in state-owned, state-operated,
and private-company-contracted facilities…. [T]he
court finds and concludes that the rule of
[Gillespie] will continue to apply in this case
with respect to prisoners in state-owned, state-
operated, and private-company-contracted
facilities, and the court will continue to forward
such prisoner petitions to plaintiffs’ class
counsel.
No. GC-71-6. Thus, in writing this dismissal order for Gates, the
court apparently assumed that Gates was the sole vehicle for future
prisoner complaints. Although Russell argues that the court only
intended Gates as an option for seeking future equitable relief,
the court’s invoking the rule of Gillespie indicates that it was
meant to be the sole vehicle.
But it does not appear that the reasoning of Gillespie is
applicable here. The Gillespie court justified its rule as
follows:
5
Permitting multiple courts to entertain equitable
claims and issue decrees that might affect the
Texas prison system would require other courts to
become familiar with the Ruiz decree, the current
problems of the Texas prison system, and the
possible disruptive effect of the exercise of
equitable powers over matters covered by the Ruiz
decree. Moreover, if separate suits for equitable
relief are filed in other districts than that in
which Ruiz is pending, even with respect to
problems not encompassed by the relief granted in
Ruiz, the court's orders may hobble the effect of
the Ruiz court's continuing decree over the Texas
prison system and its power both to enforce and to
modify that decree.
Id. at 1103. As this passage illustrates, the Gillespie court was
concerned with avoiding the inefficiency of a situation in which
multiple courts would be forced to familiarize themselves with the
problems of the Texas prison system. Similarly, the court was
concerned with the increased confusion and decreased effectiveness
that would likely arise if multiple district courts were
simultaneously exercising equitable powers over the state prison
system.
In the present case, the district court judge who was the
author of the Gates dismissal order assigned this case to this
magistrate judge in light of this magistrate’s previous experience
with Gates. Thus, we are not here faced with either the problem of
a new district court being forced to get up to speed on the
factually-intensive problems of the state prison system or with the
problem of multiple district courts simultaneously exercising
6
equitable powers over the prison system. Additionally, the
magistrate judge purported to consolidate this case with Gates
after certifying the death row inmates as a subclass of Gates.
MDOC argues that this is not sufficient, citing cases stating that
“consolidation does not merge [multiple] suits into a single
cause.” See, e.g.,Johnson v. Manhattan R. Co., 289 U.S. 479
(1933). Nevertheless, because of the consolidation and because the
same judge has jurisdiction over the present action and Gates, the
problems addressed by the Gillespie court are not present here.
MDOC points out that the Gates class counsel and class
representative are not being utilized. But MDOC does not
articulate what difference that makes, and we find it to be of no
import. In fact, this court has already recognized that it may be
proper for different counsel to represent a Gates subclass. See
Gates v. Cook, 234 F.3d 221, 227-30 (5th Cir 2000) (reversing the
district court’s denial of a motion for substitution of counsel by
a Gates subclass comprised of HIV-positive prisoners in the
Mississippi prison system). Because this case was dealt with by
the same court and judge who dealt with Gates and was consolidated
with Gates, the concerns behind Gillespie are not present here and
there is thus not any reason to dismiss this case.
Should this case have been dismissed because of the class members’
alleged failure to exhaust administrative remedies?
7
MDOC argues that the judgment should be vacated and the case
dismissed because the trial court did not require all of the
inmates who are members of the present class to exhaust their
administrative remedies. The plaintiffs respond that the named
plaintiff, Russell, did exhaust his administrative remedies, and
that no more is required. MDOC disputes the plaintiffs’ contention
that Russell exhausted his administrative remedies.
The Prison Litigation Reform Act (“PLRA”) mandates that “[n]o
action shall be brought with respect to prison conditions ... by a
prisoner ... until such administrative remedies as are available
are exhausted.” 42 U.S.C.A. § 1997e(a). The Supreme Court has
held that “the PLRA’s exhaustion requirement applies to all inmate
suits about prison life, whether they involve general circumstances
or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532
(2002). The Court made clear that exhaustion is now mandatory.
Id. at 524. This court has held that the available administrative
remedy must be pursued to its conclusion. Wright v. Hollingsworth,
260 F.3d 357 (5th Cir 2001). Thus, if the plaintiffs did not
exhaust administrative remedies, this suit should be dismissed.
The trial court found that Russell was the only class member
who had completed the MDOC Administrative Remedy Program (“ARP”).
If true, this is enough to satisfy the requirement for the class.
See, e.g., Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99
(5th Cir. 1968) (exhaustion of remedies requirement satisfied for
8
class action if named plaintiff representing class exhausted
remedies); 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE: CIVIL 2d § 1776 (2d ed. 1986) (“[W]hen
prospective relief is the primary remedy being sought, a
representative who has exhausted his administrative remedies may
bring a class suit on behalf of those who have not done so.”).
Thus, if Russell completed the ARP, exhausting administrative
remedies, this case was ripe for adjudication. Again, the trial
court found that Russell had completed the ARP and that the record
adequately reflected Russell’s and his counsel’s steps taken
through the administrative remedy process. MDOC disagrees.
MDOC maintains that the ARP is a three-step process: 1) the
inmate writes a letter3 to the Superintendent/Deputy Commissioner
in care of the Legal Claims Adjudicator that is referred to a
respondent by the Legal Claims Adjudicator; 2) if dissatisfied, the
inmate may request relief from the Superintendent/Deputy
Commissioner; 3) if dissatisfied, the inmate may appeal to the
Commissioner in care of the ARP Administrator. The Commissioner
will notify the inmate of his final decision within forty days of
receiving the appeal. If a request is rejected for technical
reasons or matters of form, the inmate is given five days from the
date of rejection to file a corrected grievance. The ARP also
3
The ARP rules indicate that the letter should state that it
is a request for an administrative remedy and should present as
many facts as possible.
9
provides that “[n]o more than ninety (90) days from initiation to
completion of the process shall elapse, unless an extension has
been granted” and that “expiration of response time limits without
receipt of a written response shall entitle the offender to move on
to the next step in the process.”4
The ARP rules also provide that an inmate may make a request
for emergency review by sending an emergency request to the Legal
Adjudicator “to determine to what level the grievance must be
forwarded if substantive actions must occur. The request shall be
handled as expeditiously as possible, and shall be reviewed at the
Commissioner’s level by the Commissioner or his designee.” The
emergency review procedures further provide that, if the grievance
is ruled not to be an emergency, it “may be resubmitted as a
regular grievance” and that “[a]buse of the emergency review
process ... shall be treated as a frivolous or malicious request.”
The emergency review procedure thus expedites the review process in
certain situations so that the request can be dealt with
4
Although no part of the ARP rules provide for a
certificate of completion, MDOC asserts that the inmate receives
a certificate of completion upon finishing the ARP. Under the
prior version of section 1997e, before its amendment in 1996, the
administrative remedy was required to be certified. 42 U.S.C. §
1997e(a)(2)(1994)(amended 1996). The 1994 district court order
certifying the ARP under the prior version of the statute
required inmates to complete the procedure and to attach a
certificate to that effect to their complaint.
10
expediently at the Commissioner’s level.5 The ARP does not provide
a definitive end for the emergency review procedure, but, as the
emergency review procedure facilitates quicker review at the
Commissioner’s level, it follows that the requirement that the
Commissioner provide a written answer within forty days of
receiving the complaint likewise applies to the emergency review
procedure.
Russell maintains that he exhausted his administrative
remedies by utilizing the emergency review process. On January 31,
2002, Russell’s counsel delivered to MDOC Commissioner Johnson a
document titled “Emergency Request by Inmate Willie C. Russell for
5
MDOC argues that the emergency request procedure only
provides a mechanism for temporary relief and does not excuse an
inmate from pursuing relief through the three-step ARP process.
Thus, MDOC maintains that Russell did not exhaust administrative
remedies because, in addition to utilizing the emergency relief
process, he did not complete the three-step process culminating
in a certificate of completion.
But MDOC’s contention is simply not supported by the
language of the policy outlining the ARP process. The portion of
that policy detailing the procedure for emergency relief requests
does not indicate that the inmate must simultaneously proceed
through the three-step process. In fact, it refers to the
regular grievance process only as an alternative when an
emergency request has been deemed to be a non-emergency. MDOC
never rejected the emergency request nor advised Russell to
resubmit it as a regular grievance. The policy does not indicate
that the emergency request procedure is simply designed to
provide stop-gap measures while the request proceeds through the
normal administrative procedures. The most natural reading of
the policy leads to the conclusion that the emergency request
procedure simply expedites the administrative process by allowing
the request to be reviewed at the Commissioner’s level without
having to proceed through the entire three-step process in
limited circumstances.
11
an Administrative Remedy Concerning Conditions on Death Row,”
complaining of the conditions at issue here and requesting a
meeting to discuss these problems in an effort to avoid
litigation.6 On March 8, before a March 12 meeting with
Commissioner Johnson, Russell’s counsel sent the Commissioner a
memorandum, outlining the complained of conditions on Death Row in
greater detail.
On April 1, Russell’s counsel sent a third letter to
Commissioner Johnson referencing the original emergency request for
an administrative remedy. This letter noted that Commissioner
Johnson had agreed to remedy such conditions, if they existed, at
the March 12 meeting. It further asked MDOC to respond by May 1 so
as to inform Russell whether it would be able to make the necessary
repairs by June 1. On April 15, Johnson sent a letter to Russell’s
counsel asserting that Russell’s concerns regarding ventilation
(heat) had been addressed by simply drilling some holes in the
metal sheet on his cell door and that the concerns regarding
6
Although the form was submitted directly to Commissioner
Johnson instead of being sent through the Legal Adjudicator, MDOC
never rejected the request for technical reasons or for matters
of form. To the contrary, as discussed below, MDOC addressed the
substance of Russell’s request, albeit with some delay. As MDOC
ignored this technical defect but instead addressed Russell’s
request at the administrative level and denied it for matters of
substance, it cannot now claim that Russell failed to exhaust
based on this technical defect. Cf. Wendell v. Asher, 162 F.3d
887, 890 (5th Cir. 1998) (stating that the exhaustion requirement
imposed by the PLRA is subject to the defenses of waiver and
estoppel).
12
sanitation and pest control were unwarranted. On June 14,
Russell’s counsel sent Johnson a final letter reiterating Russell’s
complaints and disputing Johnson’s April 15th denial of the accuracy
of the inmates’ claims; Commissioner Johnson never responded.
Throughout these negotiations, MDOC never rejected the emergency
request on technical grounds or for matters of form nor advised
Russell to resubmit it as a regular grievance. On the contrary,
MDOC addressed Russell’s core concerns by simply disagreeing with
Russell’s characterization of the conditions on Death Row.
We agree with the trial court that Russell concluded the ARP
and thus exhausted administrative remedies. Initially, MDOC failed
to comply with ARP procedures by failing to deal with Russell’s
complaint within the time limits provided by the ARP. Over ninety
days expired between the time that Russell initiated the process
and the time he finally filed suit, and Commissioner Johnson did
not provide a written response to Russell’s complaint within the
forty day period. Available administrative remedies are exhausted
in compliance with the PLRA when the time limits for the prison’s
response set forth in the prison grievance procedures have expired.
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998). Similarly,
per the terms of the ARP, Commissioner Johnson’s failure to provide
a written response to Russell’s complaint within the forty day
period entitled Russell to “move on to the next step in the
process.” As review at the Commissioner’s level constitutes the
13
final step in the process, Russell was then entitled to file suit.
Finally, even if MDOC was allowed to unduly delay the
administrative process in violation of the terms of the ARP by
failing to provide an answer from Commissioner Johnson within the
forty day period, the April 15th letter denied that relief was
warranted, effecting a rejection of the claim. That letter thus
terminated the administrative process, as evidenced by Commissioner
Johnson’s refusal to respond to any further communications
regarding these complaints. We agree with trial court’s conclusion
that Russell completed the ARP by utilizing the procedure for
emergency review. Thus, Russell, and by extension the plaintiffs,
properly exhausted administrative remedies.
Should the injunctions be vacated on the grounds that they are not
justified by conditions constituting cruel and unusual punishment
in violation of the Eighth Amendment?
The Eighth Amendment Standard
MDOC argues that none of the provisions of the injunctive
decree were warranted by conditions constituting Eighth Amendment
violations. The Eighth Amendment dictates that cruel and unusual
punishment shall not be inflicted, U.S. CONST. amend. VIII, and it
is applicable to the States by reason of the Due Process Clause of
the Fourteenth Amendment. Robinson v. California, 370 U.S. 660,
675 (1962). The treatment a prisoner receives in prison and the
14
conditions under which he is confined are subject to scrutiny under
the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).
The Constitution does not mandate comfortable prisons, but
neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S.
825, 832 (1994). Prison officials must provide humane conditions
of confinement; they must ensure that inmates receive adequate
food, clothing, shelter, and medical care, and must take reasonable
measure to ensure the safety of the inmates. Id. This circuit has
worded the test as requiring extreme deprivation of any "minimal
civilized measure of life's necessities.” Davis v. Scott, 157 F.3d
1003, 1006 (5th Cir 1998). Further, mental health needs are no
less serious than physical needs. Partridge v. Two Unknown Police
Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th Cir.
1986). The Supreme Court has made clear that the standards against
which a court measures prison conditions are "the evolving
standards of decency that mark the progress of a maturing society"
and not the standards in effect during the time of the drafting of
the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 50 L.
Ed. 2d 251, 97 S. Ct. 285 (1976) (internal quotation omitted).
A prison official has violated the Eighth Amendment when he 1)
shows a subjective deliberate indifference to 2) conditions posing
a substantial risk of serious harm to the inmate. Farmer, 511 U.S.
at 833-34. Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to
15
demonstration in the usual ways, including inference from
circumstantial evidence, and a factfinder may conclude that a
prison official knew of a substantial risk from the very fact that
the risk was obvious. Id. at 842.
Conditions of confinement may establish an Eighth Amendment
violation "in combination" when each would not do so alone, but
only when they have a mutually enforcing effect that produces the
deprivation of a single, identifiable human need such as food,
warmth, or exercise -- for example, a low cell temperature at night
combined with a failure to issue blankets. Wilson v. Seiter, 501
U.S. 294, 304 (1991). The Supreme Court has noted that "the length
of confinement cannot be ignored.... A filthy, overcrowded cell ...
might be tolerable for a few days and intolerably cruel for weeks
or months.” Hutto v. Finney, 437 U.S. 678, 686-87 (1978). It is
also important to note that the inmate need not show that death or
serious illness has occurred. Helling, 509 U.S. at 32 (“It would
be odd to deny an injunction to inmates who plainly proved an
unsafe, life-threatening condition in their prison on the ground
that nothing yet had happened to them.”).
Standard of Review
MDOC argues that many of the trial court’s findings of fact
were clearly erroneous. In reviewing the factual findings, this
court employs a “clearly erroneous” standard. Alberti v.
Klevenhagen, 790 F.2d 1220, 1224 (5th Cir 1986). A finding is
16
clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.
Id. Whether the official showed a deliberate indifference to the
condition is a factual finding that is reviewed under a “clearly
erroneous” standard. Brice v. Virginia Beach Correctional Ctr., 58
F.3d 101, 105 (4th Cir. 1995). Once the facts are established, the
issue of whether the facts constitute a constitutional violation is
a question of law to be reviewed de novo. Alberti, 790 F.2d at
1224. If a constitutional violation is found, we employ an abuse
of discretion standard in reviewing the equitable remedy itself.
Swann v. Charlotte - Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16
(1971).
The Trial Court’s Factual Findings
The trial court made the following findings of fact, inter
alia, as to the conditions on Parchman’s Death Row.
Sanitation
Inmates have been subjected to cells that were extremely
filthy with chipped, peeling paint, dried fecal matter and food
encrusted on the walls, ceilings, and bars, as well as water from
flooded toilets and rain leaks. Inmates are routinely moved from
cell to cell and are forced to clean their new cells that may have
been left in horrendous sanitation by the prior occupants,
17
especially if the occupant were mentally ill. Adequate cleaning
supplies and equipment are not routinely made available for inmates
to clean their cells. These filthy conditions contribute to the
infestation of pests and play a role in the mental well-being of
inmates. Russell v. Johnson, 2003 U.S. Dist. LEXIS 8576 at *4-5
(N.D. Miss.).
Heating and Cooling
The summer temperatures in the Mississippi Delta average in
the nineties with high humidity, and Death Row is primarily not an
air-conditioned facility. There are industrial type fans in the
hallways to help with air circulation, and most inmates have
smaller fans. Relief from the heat can be obtained by keeping the
windows open in the cell using fans. But keeping the windows open
increases the mosquito population in the cells since there are
holes in the cell window screens and the screen gauge is not
sufficient to keep mosquitoes out. The ambient temperature in the
cells is within reasonable limits except during the summer months.
The ventilation is inadequate to afford prisoners a minimal level
of comfort during the summer months. The probability of heat-
related illness is extreme on Death Row, and is dramatically more
so for mentally ill inmates who often do not take appropriate
behavioral steps to deal with the heat. Also, the medications
often given to deal with various medical problems interfere with
the body’s ability to maintain a normal temperature. The inmates
18
are not afforded extra showers, ice water, or fans if they don’t
have fans when the heat index is 90 or above. The heat problem
extends to all of Death Row and possibly throughout Parchman. Id.
at *5-7.
Pest Control
The heat problem also exacerbates the problem of pest control.
Mosquitoes in Mississippi, and the Delta in particular, are a
problem that cannot be eliminated. But the problem must be
addressed and the impact lessened, especially with the incidence of
West Nile virus, a mosquito-born disease increasing in Mississippi.
Inadequate screening on the cell windows causes the inmates to
choose between suffering from the heat or increasing the mosquitoes
in their cells. The problems of heat and mosquitoes must be
addressed to provide the inmates with conditions that would meet
minimal constitutional standards. The problem of roaches and other
vermin will be met by adhering to the ACA standards and by meeting
the sanitation goals the court will set. Id. at *7.
“Ping-Pong” Toilets and Plumbing
Fecal and other matter flushed by a toilet in one cell will
bubble up in the adjoining cell unless the toilets are flushed
simultaneously. This has been a problem since the unit opened.
Parchman officials have identified the problem as one of
calibration, especially if the water is shut off. The toilets must
be recalibrated to work properly. Recalibration has helped, but
19
not eliminated, the problem of ping-pong toilets. No one in
civilized society should be forced to live under conditions that
force exposure to another person’s bodily wastes. The showers,
water temperature, and quality of water are adequate. Id. at *7-8.
Lighting
The lighting in the cells is grossly inadequate. While 20
foot-candles7 is the appropriate level of lighting for the cells,
the maximum foot-candles measured by Russell’s expert was seven or
eight, with the typical cell being in the 2-4 foot-candle range.
Id. at *9-10.
Preventive Maintenance Program
The preventive maintenance program instituted by MDOC appears
to be adequate, although it should be in writing. Id. at *10.
Laundry
The inmates’ laundry is returned foul-smelling, necessitating
the inmates to wash their clothes in their cells. The inmates are
entitled to laundry that is clean and not foul-smelling. Id.
Mental Health Issues
7
A foot-candle is “[a] unit of measure of the intensity of
light falling on a surface, equal to one lumens per square foot
and originally defined with reference to a standardized candle
burning at one foot from a given surface.” THE AMERICAN HERITAGE
COLLEGE DICTIONARY 530 (3rd ed. 1993).
20
At least six severely psychotic prisoners are housed on Death
Row, and many more are diagnosed with quantifiable mental health
problems. The extremely psychotic prisoners scream at night, throw
feces, and generally make life miserable for the other inmates and
guards. As stated by Dr. Kupers, a psychiatry professor and expert
for Russell, “it boils down to warehousing people with severe
mental illness ... some are medicated, but there is essentially no
other mental health services.” The mental health care afforded the
inmates on Death Row is grossly inadequate. The isolation of Death
Row, along with the inmates’ pending sentences of death and the
conditions on Death Row are enough to weaken even the strongest
individual. What mental health services are provided generally
take place at the inmate’s cell within hearing of other inmates and
guards. This results in the failure of inmates to tell the mental
health specialists anything of substance. Moreover, comprehensive
mental health evaluations are consistently inadequate. Inmates are
also prescribed psychotropic drugs with only sporadic monitoring.
This can result in life-threatening situations due to the toxicity
of these drugs. Appropriate treatment of mentally ill inmates will
in turn help address the issues of excessive noise and sanitation
problems caused by severely psychotic inmates. Id. at *11-12.
Exercise
Proper exercise is advantageous for mental health and well-
being. The exercise facilities provided are adequate. While, in
21
general, the use of “flip-flops” is understandable as a security
measure, such shoes do not allow effective exercise. The inmates
should be given access to sneakers prior to entering the exercise
pen and should be given access to water and shade while exercising.
Id. at 12.
The Trial Court’s Conclusions of Law
The court concluded that the conditions identified in the
court’s findings of fact constituted Eighth Amendment violations
because they posed a substantial risk of harm to the inmates’
health and, based on the obvious nature of these risks, the prison
officials showed a deliberate indifference to such harm.
Injunctive Relief Entered by the Trial Court
The court directed the following remedial actions.
1. If defendants wish to continue the practice of
moving inmates from cell to cell in Unit 32-C, they
will insure that the cell to which an inmate is
moved is clean prior to the move. While an inmate
should be required to keep his own cell clean, he
should not be required to clean the cell of another
inmate in order to inhabit it.
2. Adequate cleaning supplies and equipment shall
be provided inmates in order that they may clean
their cells at least weekly.
3. A general preventive maintenance schedule and
program shall be reduced to writing within 60 days
of this order.
22
4. Defendants shall take the necessary
measurements in the unit in order to determine the
heat index on the individual tiers. These
measurements shall be taken daily at 10:00 a.m.,
1:00 p.m., 4:00 p.m., and 7:00 p.m. during the
months of May through September and at 1:00 p.m. in
all other months. If the heat index reaches 90
degrees or above, the defendants will insure that
each cell is equipped with a fan, that ice water is
available to each inmate, and that each inmate may
take one shower during each day when the heat index
is 90 degrees or above. As an alternative, the
defendants may provide fans, ice water, and daily
showers during the months of May through September.
This remedy shall apply to all of Unit 32.
5. The defendants shall continue their efforts at
mosquito eradication and pest control. The
defendants shall also insure that all cell windows
are repaired and screened with 18 gauge window
screen or better. This remedy shall apply to all
of Unit 32.
6. The defendants shall insure that the problem of
“ping-pong” toilets in Unit 32 as a whole is
addressed. The defendants shall provide to the
court within 60 days the details of a plan to
eradicate this problem. The court is not convinced
that recalibration is sufficient, but will await
the defendants’ report on their plan.
7. The defendants shall also upgrade the lighting
in Unit 32 as a whole to provide lighting in each
cell equal to 20 foot-candles.
8. The defendants shall insure that the proper
chemical agents are used at the laundry so that
inmates’ laundry is returned clean and without a
foul smell.
9. The defendants shall insure that the new vendor
for medical services complies with the ACA and the
National Commission on Correctional Healthcare
medical and mental health standards. Each inmate
on Death Row shall be given a comprehensive mental
23
health examination in private. These comprehensive
examinations shall be conducted on a yearly basis.
Those inmates diagnosed with psychosis and severe
mental health illnesses shall be housed separately
and apart from all other inmates. The medication
levels of all inmates receiving psycotropic
medications shall be monitored and assessed in
accordance with appropriate medical standards. All
inmates receiving mental health counseling or
evaluation shall meet with the mental health
professionals in a private setting.
10. The inmates on Unit 32-C shall continue to
receive the opportunity to exercise as currently
available. However, the inmates shall be given the
opportunity to wear sneakers while exercising if
they prefer rather than “flip-flops.” A shaded
area for exercise shall be provided with access to
water.
Russell v. Johnson, 2003 U.S. Dist. LEXIS 8573 at *1-4 (N.D.
Miss.).8
8
MDOC makes a cursory argument that the injunctions must be
reversed because the trial court failed to make particularized
findings required by the PLRA, 18 U.S.C. § 3626(a). There are
multiple problems with this argument. The first is that MDOC
never presented this argument to the trial court. This court
does not generally review issues raised for the first time on
appeal. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). Additionally, MDOC cites Castillo v. Cameron County, 238
F.3d 339, 351 (5th Cir. 2001), for the proposition that a court
must make particularized findings, on a provision-by-provision
basis, that each injunction is narrowly drawn, goes no further
than necessary to correct the violation, and is the least
intrusive means of correcting the violation. But MDOC’s reliance
on Castillo is misplaced. Castillo requires such findings to be
made when the district court holds that prior injunctive relief
should not be terminated, relying on section 3262(b)(3). Id. at
351-54. Section 3262(b)(3) on its face requires such written
findings. Conversely, section 3262(a)(1), which applies to
prospective relief and is thus applicable here, does not.
24
Is the injunctive relief entered by the trial court justified by
conditions in violation of the Eighth Amendment’s prohibition
against cruel and unusual punishment?
MDOC asserts that, as to several of the injunctions
(Injunctions #2, #5, #6, #7, and #9), it is already meeting,
intending to meet, or attempting to meet the standards enunciated
by the trial court. Thus, MDOC argues, the injunctions are not
required. But MDOC’s assertions that it intends to meet these
standards do not suffice to moot the issue. It is well settled
that a defendant's voluntary cessation of a challenged practice
does not deprive a federal court of its power to determine the
legality of the practice. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (citations
omitted). If it did, the courts would be compelled to leave “the
defendant . . . free to return to his old ways.” Id. In accordance
with this principle, the standard for determining whether a case
has been mooted by the defendant's voluntary conduct is stringent:
"A case might become moot if subsequent events made it absolutely
clear that the allegedly wrongful behavior could not reasonably be
expected to recur." Id. The "heavy burden of persuading" the
court that the challenged conduct cannot reasonably be expected to
start up again lies with the party asserting mootness. Id. The
trial court’s citation to Friends of the Earth accompanied by its
assertion that Russell’s claims were not moot indicates that the
25
trial court was not persuaded. The fact that many of these
conditions have persisted for years despite MDOC’s purported
efforts leads us to likewise conclude that MDOC has not met the
heavy burden of showing that its voluntary conduct has mooted any
of the issues presented here.
Similarly, MDOC also argues, as to several of the
injunctions, that Parchman’s accreditation by the American
Correctional Association (“ACA”) is proof that the conditions in
question don’t violate the Eighth Amendment. But it is absurd to
suggest that the federal courts should subvert their judgment as to
alleged Eighth Amendment violations to the ACA whenever it has
relevant standards. Additionally, the ACA’s limited inspections
are not be binding as factual findings on the magistrate or on this
court. While compliance with ACA standards may be a relevant
consideration, it is not per se evidence of constitutionality. See
Ruiz v. Johnson, 37 F. Supp. 2d 855 924-25 (S.D. Tex. 1999)
(recognizing the limitations of ACA accreditation and noting
situations where it has not equated to constitutionality), rev’d on
other grounds, 178 F.3d 385.
MDOC finally argues that none of the injunctions are based on
Eighth Amendment violations and, thus, that all of the injunctions
must be reversed. Using the relevant Eighth Amendment standard, we
will examine each of the injunctions in turn.
Injunctions #1 and #2
26
MDOC argues that the first injunction, which prohibits MDOC
from requiring inmates to clean the cells into which they are
transferred, cannot stand because there was no proof of any medical
injury or illness resulting from this practice. MDOC similarly
maintains that the second injunction, which requires that adequate
cleaning supplies be provided to the inmates at least weekly, is
unsupported by any evidence of medical illness arising from this
situation or a showing of deliberate indifference by MDOC
officials. MDOC also contends that cleaning supplies are regularly
issued to inmates and that the cells were clean as of the date of
trial.
This court has previously held that filthy cell conditions may
constitute an Eighth Amendment violation. See Harper v. Showers,
174 F.3d 716, 720 (5th Cir 1999). Other circuits have made similar
holdings; the Eighth Circuit has held that a prisoner being placed
in a cell covered with filth and human waste for a two-year period
without proper cleaning supplies constitutes cruel and unusual
punishment. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)
(recognizing that “inmates are entitled to reasonably adequate
sanitation, personal hygiene, and laundry privileges, particularly
over a lengthy course of time”); see also McBride v. Deer, 240 F.3d
1287, 1292 (10th Cir. 2001) (holding that three days in a feces-
covered cell states a claim upon which relief could be granted).
27
Russell points to testimony adduced at the trial court
indicating that the cells were “extremely filthy” with crusted
fecal matter, urine, dried ejaculate, peeling and chipping paint,
and old food particles on the walls. Living in such conditions
would present a substantial risk of serious harm to the inmates,
and we cannot say that trial court’s decision to credit this
testimony was clearly erroneous. Also, in light of substantial
testimony indicating that such conditions were not atypical and
were easily observed, we cannot say that the trial court’s
conclusion that MDOC officials showed a deliberate indifference to
this risk is clearly erroneous. Further, the testimony was
conflicting as to the frequency and quality of the provision of
cleaning supplies, and we cannot say that the trial court’s
conclusion to credit testimony supporting the inadequacy of
cleaning supplies was clearly erroneous. As living in such filthy
conditions would present the inmates with a risk of serious harm to
which MDOC officials have displayed a deliberate indifference,
Injunctions #1 and #2 were justified by an Eighth Amendment
violation. They are, therefore, affirmed.
Injunction #3
MDOC challenges the third injunction, which directs MDOC to
reduce a general preventive maintenance schedule and program to
writing. MDOC argues that there is no evidence supporting the
elements required for a finding of cruel and unusual punishment
28
that would support this injunction. Russell responds that “[t]he
risks of squalid conditions and the constantly recurring break-down
of the water, plumbing, and other operating systems were obvious,”
and Russell’s environmental health and safety expert testified that
the same problems would continue to recur if MDOC did not put a
written plan in place.
While federal courts can certainly enter injunctions to
prevent Eighth Amendment violations, they are not to micromanage
state prisons. Bell v. Wolfish, 411 U.S. 520, 562 (1979). The
trial court entered injunctions to directly remedy each of the
complained-of conditions that rise to the level of an Eighth
Amendment violation. Russell has cited no case that supports the
proposition that the trial court can further affect the internal
operations of MDOC by requiring it to produce a writing preventive
maintenance program to which it will adhere. The additional
requirement of a written preventive maintenance program, while
desirable, is not independently supported by additional conditions
that constitute an Eighth Amendment violation, and it cannot stand.
Thus, we vacate that injunction.
Injunction #4
The fourth injunction directs MDOC to provide fans, ice water,
and daily showers when the heat index is 90 degrees or above, or
alternatively to make such provisions during the months of May
through September. The injunction also purports to apply to all of
29
Unit 32, as opposed to only Unit 32-C. Initially, it is important
to note that the class represented by Russell consists entirely of
Parchman’s Death Row prisoners, who are housed in Unit 32-C. Thus,
to the extent that the injunction purports to apply to parts of
Unit 32 beyond Unit 32-C, it exceeds the scope of the litigation
and is therefore invalid. See Thomas v. County of Los Angeles, 978
F.2d 504, 509-10 (9th Cir. 1992) (reversing an injunction as
overbroad when it purported to apply to the entire Los Angeles
County Sheriff’s Department although the plaintiff’s complaint and
evidence only applied to one specific station).
MDOC contends that no Unit 32-C inmate has ever suffered any
serious heat-related illness. But, as noted above, Russell does
not need to show that death or serious illness has yet occurred to
obtain relief. He must show that the conditions pose a substantial
risk of harm to which MDOC officials have shown a deliberate
indifference. Russell presented the court with expert testimony
from Dr. Vassallo9 that it was “very likely” that, under current
conditions on Death Row, an inmate will die of heat stroke or some
other heat-related illness. In fact, Dr. Vassallo’s testimony
indicated that Death Row prisoners had made many complaints of
9
Dr. Vassallo is a faculty member of the Department of
Surgery and Division of Emergency Medicine at New York University
School of Medicine and is a medical toxicologist at the New York
Regional Poison Control Center. She has lectured extensively on
thermoregulation and hyperthermia (heat illness) and has authored
the “Thermoregulatory Principles” chapter of Goldfrank’s
Toxicologic Emergencies, a textbook on medical toxicology.
30
symptoms commonly recognized to be related to heat-related illness
and that those conditions had simply gone undiagnosed.
MDOC further cites language from Woods v. Edwards, 51 F.3d 577
(5th Cir. 1995), in which Woods, a prisoner at the Louisiana State
Penitentiary at Angola, claimed, inter alia, that the conditions in
extended lockdown were unconstitutional. Extended lockdown
isolates inmates as punishment for disciplinary violations. One of
Woods’ claims was that the cell used in his extended lockdown was
inadequately cooled and that the high temperature aggravated his
sinus condition. Id. at 581. This court noted that Woods “failed
to present medical evidence of any significance.” Id. This court
went on to state: “[w]hile the temperature in extended lockdown may
be uncomfortable, that alone cannot support a finding that the
plaintiff was subjected to cruel and unusual punishment in
violation of the Eighth Amendment.” Id. The Woods court found
that Woods had not presented medical evidence sufficient to state
an Eighth Amendment violation; Woods does not stand for the
proposition that extreme heat can never constitute cruel and
unusual punishment. Finally, MDOC points out that the Seventh
Circuit has held that one shower a week is sufficient. Davenport
v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir. 1988). But
Davenport is inapt, as it dealt only with cleanliness while the
testimony upon which this injunction rests indicated that cold
showers would help alleviate the risk of heat-related illness.
31
Based on the evidence presented, we cannot say that the trial
court’s finding that the probability of heat-related illness is
extreme at Unit 32-C was clearly erroneous. Thus, this condition
presents a substantial risk of serious harm to the inmates. Again,
based on the open and obvious nature of these conditions and the
evidence that inmates had complained of symptoms of heat-related
illness, the trial court’s finding regarding MDOC’s deliberate
indifference is not clearly erroneous. Thus, Injunction #4 was
justified by an Eighth Amendment violation, and it is affirmed
insofar as it applies to Unit 32-C.10
Injunction #5
The fifth injunction requires MDOC to continue its efforts at
pest control and, more specifically, to ensure that all cell
windows are repaired and screened with 18 gauge window screen or
better. Injunction #5 purports to apply to all of Unit 32.
Initially, like Injunction #4, to the extent that Injunction #5
purports to apply to parts of Unit 32 beyond Unit 32-C, it is
invalid.
10
In a footnote in its brief, MDOC asserts that the extra
showers ordered by the trial court would cause a major prison
security problem. Russell replies that no such evidence was
presented at trial and, thus, that the trial court should be
given the first opportunity to rule on this issue. In their
reply brief, MDOC admits that such evidence was only presented to
the court as part of MDOC’s July 2003 progress report. But only
the May 21, 2003, final order of the trial court is currently
under review, not any subsequent monitoring of the trial court’s
injunctive relief. This issue is thus not before us.
32
MDOC first argues that there is no basis for a federal court
to order MDOC to continue to do what it is already doing. But, as
discussed above, the pest infestation problems persist, and MDOC
has not met the burden of convincing the trial court or this court
that its efforts at pest control have mooted this issue. MDOC
also argues that the evidence shows that there were no holes in the
screens at the time of trial. But the trial court was presented
with testimony that there were cells with holes in the screens,
and, in any event, the insufficient gauge on the screens would
allow the infestation problem to continue even in absence of holes
in the screens.
MDOC argues generally that Russell did not show either a
substantial risk of harm to the inmates or deliberate indifference
on the part of MDOC officials. But the trial court was presented
with testimony that insects swarm in the inmates’ food and beds and
that the inmates often must choose between opening the window for
relief from the heat or closing the window for protection from
mosquitoes, as the gauge on the screens is too large to keep out
the mosquitoes. It is important to recognize that this injunction
is supported by the trial court’s findings on heat, as the court
noted that the mosquito infestation accompanied by the insufficient
screen gauge exacerbated the heat problems by deterring the inmates
from opening their windows to increase circulation. In addition to
the risk of heat-related illness, the pest infestation problems
33
were linked to chronic sleep deprivation, which exacerbates the
symptoms of mental illness. As Injunction #5, like Injunction #4,
is supported by the constitutional violation stemming from the
excessive heat, it is affirmed as to Unit 32-C.
Injunction #6
The sixth injunction requires MDOC to remedy the problem of
“ping-pong” toilets. Like Injunctions #4 and #5, this injunction
is invalid to the extent it purports to apply to parts of Unit 32
outside of Unit 32-C.
MDOC argues that there is no evidence of any serious medical
problem stemming from the ping-pong toilets and, further, that in
absence of objective evidence of such a problem there can be no
finding of deliberate indifference on the part of MDOC officials.
MDOC cites Tokar v. Armontrout, 97 F.3d 1078 (8th Cir. 1996), for
the proposition that exposure to raw sewage is not cruel and
unusual punishment where there has been no demonstration of an
adverse medical reaction. But MDOC seriously misconstrues Tokar.
Tokar complained generally that the prison toilets were “filthy”
without specifying how long the toilets remained filthy and while
acknowledging that he had not asked for cleaning supplies because
cleaning the toilets was the job of other inmates. Id. at 1081.
The facts of Tokar are quite different from the facts presented
here, in which inmates have regularly been exposed to each others’
feces for over a decade. In fact, the Eighth Circuit’s
34
recognitions that exposure to waste may constitute cruel and
unusual punishment and that the length of time a prisoner must
endure unsanitary conditions is undoubtedly a factor in the
constitutional calculus, id. at 1082 n.4, both weigh in Russell’s
favor. While evidence of a past medical injury would clearly
strengthen Russell’s case, Russell does not have to prove a past
medical injury. He must prove a substantial risk of serious harm
and MDOC officials’ deliberate indifference to that harm.
Russell points to expert testimony stating that the situation
presented when the feces of one inmate bubbles up in the
neighboring cell, exacerbated when the toilets overflow, does
constitute a serious health hazard. Russell also presented evidence
to the trial court that the Mississippi State Department of Health
warned MDOC every year for the past eleven years that the
malfunctioning toilets in Unit 32-C are a critical public health
problem requiring immediate attention. Additionally, Russell
points to several circuit court cases indicating that “courts have
been especially cautious about condoning conditions involving
exposure to human waste.” Fruit v. Norris, 905 F.2d 1147, 1151 (8th
Cir. 1990); see also, e.g., Despain v. Uphoff, 264 F.3d 965, 974
(10th Cir. 2001)(exposure to human waste “evokes both the health
concerns emphasized in Farmer and the more general standards of
dignity embodied in the Eighth Amendment”).
35
MDOC also asserts that there was substantial testimony
regarding its attempts to correct the toilet problem, presumably
arguing that this further rebuts a finding of deliberate
indifference. As evidence of deliberate indifference, Russell
points to the fact that the problems persist despite MDOC officials
having been warned that the problem was urgent for more than a
decade. Frequent exposure to the waste of other persons can
certainly present health hazards that constitute a serious risk of
substantial harm. Given the evidence presented to the trial court,
we cannot say that the court’s factual findings regarding the ping-
pong toilets or the MDOC officials’ deliberate indifference were
clearly erroneous. Thus, this injunction, as applied to Unit 32-C,
is affirmed.
Injunction #7
This injunction requires MDOC to upgrade the lighting in each
cell to the level of twenty foot-candles. This injunction also
purports to apply to Unit 32 as a whole and is invalid insofar as
it purports to apply beyond Unit 32-C. MDOC argues that the
injunction is wholly invalid because MDOC officials were in the
process of upgrading cell lighting. As with the sanitation issues,
the pest control issues, and the ping-pong toilets, MDOC’s
assertions that it is working on the problem are inadequate to moot
the issue. MDOC also argues that there was no evidence of a
substantial risk of serious harm stemming from the admittedly
36
inadequate lighting or of MDOC officials’ deliberate indifference
to such harm. But the trial court judge apparently credited expert
testimony asserting that the lighting in the cells was grossly
inadequate for the purposes of sanitation, personal hygiene, and
reading, that this condition also contributes to further mental
health deterioration, and that twenty foot-candles was the
appropriate minimum level at which these activities could take
place. Thus, this injunction is supported by the conditions
supporting Injunctions #1, #2, and #9, discussed below, and it is
affirmed.
Injunction #8
The eighth injunction requires MDOC to return the inmates’
laundry clean and without a foul smell. MDOC argues that the
prison laundry condition is not sufficiently serious to implicate
the Eighth Amendment, citing Green v. Ferrell, 801 F.2d 765, 771
(5th Cir. 1986), and similarly that there was no proof of any
serious medical harm to any inmate stemming from this condition.
The Green court reiterated that “jails must provide ‘reasonably
adequate’ sanitation” but overturned the district court’s
injunction requiring the jail to provide laundry services because
the prisoners were provided with laundry detergent that they could
use to wash their own clothes in the sink located in their cells.
Id.
37
Russell points to testimonial evidence that, unlike the
situation in Green, the Death Row inmates are not provided with
detergent and in fact can be disciplined for doing their own
laundry. First, the trial court found that the inmates do in fact
wash their own clothes, as conceded by one of MDOC’s witnesses, who
testified that the inmates wash their own clothes because it is
part of “prison culture.” This finding was supported by
substantial evidence and is incongruous with the proposition that
inmates are disciplined for washing their own clothes. Given that
the inmates do wash their own clothes, the only distinction between
this case and Green is that the prisoners in Green were provided
with laundry detergent while the Death Row inmates in this case
wash their clothes with the bar soap. The difference between
laundry detergent and bar soap is not sufficient to distinguish
this case from Green and thus does not implicate the Eighth
Amendment. Injunction #8 is therefore vacated.
Injunction #9
The ninth injunction outlines a number of requirements
designed to alleviate some of the problems stemming from the
allegedly inadequate mental health care afforded the inmates on
Death Row. This injunction requires MDOC to comply with ACA and
National Commission on Correctional Healthcare (“NCCH”) standards
regarding mental health, to give each inmate private, comprehensive
mental health examinations on a yearly basis, to monitor and assess
38
the medication levels of inmates receiving psychotropic
medications, and to house the inmates with psychosis and severe
mental illnesses separately from the other inmates.
MDOC argues that it was already in compliance with ACA
standards and, somewhat contradictorily, that MDOC has already
begun the process of selecting a new medical vendor that would
comply with ACA and NCCH standards. Once again, MDOC’s assertion
that it was already on the path towards compliance is insufficient
to moot the issue. Further, the injunction does not require only
ACA compliance. In any event, MDOC’s assertion that it is already
in compliance with ACA and NCCH standards is incongruous with the
trial court’s findings, including the statement that “the mental
health care afforded the inmates on Death Row is grossly
inadequate.” These findings were based on substantial testimony
adduced at trial and apparently credited by the trial court. For
example, Russell produced evidence that the isolation and idleness
of Death Row combined with the squalor, poor hygiene, temperature,
and noise of extremely psychotic prisoners create an environment
“toxic” to the prisoners’ mental health. There was also evidence
that the severely psychotic prisoners smear garbage and excrement
in their cells, scream all night, and flood the tiers. This
contributes to the problems of uncleanliness and sleep deprivation,
and by extension mental health problems, for the other inmates.
There was also testimony that prisoners seldom see medical staff
39
and that monitoring of medication was sporadic, with prisoners
potentially being prescribed the wrong medication or no medication
for long periods of time, potentially leading to extremely
dangerous physical side effects or psychotic breakdowns.
MDOC also points out that two inmates have refused psychiatric
medication so as to remain incompetent for execution. But this
does not refute the trial court’s findings that the mental health
care afforded to inmates on Death Row is grossly inadequate. MDOC
is only obligated to make adequate mental health care available for
all Death Row inmates. The fact that some inmates may refuse to
take advantage of such treatment so as to avoid execution is
irrelevant to whether MDOC is meeting its obligation of complying
with constitutional standards.
MDOC further argues that there was no demonstration of
deliberate indifference to any serious mental or medical problem
stemming from insufficient mental health care. In analyzing this
argument, it is important to remember that mental health needs are
no less serious than physical needs. Partridge v. Two Unknown
Police Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th
Cir. 1986). This court has previously held that an inmate stated
a nonfrivolous claim in complaining that he was placed in cells
next to psychiatric patients who scream, beat on metal toilets,
short out the power, flood the cells, throw feces, and light fires,
resulting in his loss of sleep for days at a time. Harper v.
40
Showers, 174 F.3d 716, 720 (5th Cir. 1999). The trial court’s
findings indicate that the inmates are subjected to substantial
risk of serious harm based on the mental health conditions on Death
Row, and, based on the evidence presented to the trial court, we
cannot conclude that the court’s credibility determinations and
factual findings are clearly erroneous. We agree that the
conditions of inadequate mental health care, as found by the trial
court, do present a risk of serious harm to the inmates mental and
physical health. Again, the obvious and pervasive nature of these
conditions supports the trial court’s conclusion that MDOC
officials displayed a deliberate indifference to these conditions.
Thus, this injunction was justified by an Eighth Amendment
violation and is affirmed.
Injunction #10
The tenth injunction requires MDOC to allow the inmates to
wear sneakers instead of flip-flops while exercising and to provide
the inmates with a shaded area for exercise and access to water.
MDOC argues that this is impermissible micromanagement of state
prison operations and that no evidence was presented establishing
a constitutional violation. The evidence shows that inmates are
allowed an hour of exercise four or five days a week. The evidence
also shows that shoes and boots were replaced with flip flops
because the inmates used the boots and shoes to kick other inmates
and to throw at MDOC staff, and because the flip flops make escape
41
more difficult. In fact, the trial court stated that it understood
“the use of ‘flip-flops’ as general footwear as a security
measure.”
Russell argues that the flip-flops make it difficult or
impossible to exercise vigorously. But there is no support for the
proposition that exercising in flip-flops constitutes cruel and
unusual punishment. Nor is there any support for the proposition
that an hour of outdoor exercise without water or shade constitutes
cruel and unusual punishment. While exercise is certainly
beneficial to physical and mental health, we find that the
provisions for exercise made by MDOC are appropriate and that the
tenth injunction is not justified by conditions in violation of the
Eighth Amendment. Thus, the tenth injunction is vacated.
CONCLUSION
Injunctions #3, 8, and 10 are vacated in their entirety.
Injunctions #4, 5, 6, and 7 are vacated to the extent they purport
to apply to portions of Unit 32 beyond Unit 32-C. The remainder of
the injunctive relief is AFFIRMED.
42