501 F.2d 1291 (5th Cir. 1974), 73-1023, Gates v. Collier

Docket Nº:73-1023.
Citation:501 F.2d 1291
Party Name:Nazareth GATES et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee, v. John COLLIER, Superintendent, Mississippi State Penitentiary, et al., Defendants-Appellants.
Case Date:September 20, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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501 F.2d 1291 (5th Cir. 1974)

Nazareth GATES et al., Plaintiffs-Appellees, and United States of America, Plaintiff-Intervenor-Appellee,


John COLLIER, Superintendent, Mississippi State Penitentiary, et al., Defendants-Appellants.

No. 73-1023.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1974

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A. F. Summer, Atty. Gen., William A. Allain, P. Roger Googe, Jr., Asst. Attys. Gen., Jackson, Miss., for defendants-appellants.

H. M. Ray, U.S. Atty., Oxford, Miss., Michael Davidson, Jesse H. Queen, Thomas R. Sheran, Dept. of Justice, Civil Rights Div., Washington, D.C., for intervenor.

Roy S. Haber, Native American Rights Fund, Boulder, Colo., George Peach Taylor, Frank R. Parker, Jackson, Miss., Edward J. Reilly, New York City, for plaintiffs-appellees.

Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

TUTTLE, Circuit Judge:

This appeal by the Superintendent of the Mississippi State Penitentiary, members of the Mississippi Penitentiary Board, and the Governor of the State of Mississippi, challenges the nature and extent of the equitable relief granted by the district court which required major physical facility renovations and administrative reforms at the Mississippi

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State Penitentiary, at Parchman, Mississippi (hereinafter Parchman). The district court made extensive findings of fact and conclusions of law, reported in Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972). The decision held that the conditions and practices in the maintenance, operation and administration of Parchman deprived inmates of rights secured by the First, Eighth, Thirteenth and Fourteenth Amendments and by 42 U.S.C.A. §§ 1981, 1983, 1985 and 1994, and granted injunctive and declaratory relief for the plaintiffs.

The decision of this Court has been withheld pending a decision by the Supreme Court in the case of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, 1974, a case which dealt with some of the issues here on appeal.

The inadequateness of the Parchman prison facilities and its 'trusty' personnel system as practiced are well established by the fact that the Governor of Mississippi forthrightly conceded the existence of constitutional violations in the Parchman operations: 'We are, in effect, Your Honor, admitting that the constitutional provisions have been violated.' The Governor asked the court: 'Isn't there enough of the incriminating facts in these depositions and interrogatories to give the Court adequate grounds to find a conclusion of fact that the First Amendment and all other constitutional provisions have been violated . . .?' A consultant committee engaged by the Mississippi State Planning Agency, the Law Enforcement Assistance Administration (LEAA) and the American Correctional Association concluded that present conditions at Parchman are 'philosophically, psychologically, physically, racially and morally intolerable.' The district court's abstract of the findings of fact about the conditions and practices at Parchman paints a shocking picture.

We proceed to summarize the structure of the decision, to examine whether any issues in this case must be initially considered by a statutory three-judge court, to review the court's determination of the merits, and to discuss why we reject the appellants' contention that the relief was too 'sweeping.'


This action was commenced on February 8, 1971, by two overlapping classes of plaintiffs. The first class consisted of all inmates confined at Parchman, while the second class was comprised of black inmates whose grievances included racial discrimination and segregation, as well as deprivation of the broad range of rights claimed by the first class. A motion by the United States to intervene in this suit pursuant to 42 U.S.C.A. § 2000h-2 was granted on August 23, 1971. Thereafter, the parties conducted protracted pre-trial discovery proceedings. On May 11, 1972, four days before trial, counsel for all parties agreed to waive presentation of evidence in open court and to submit the case on the record including pleadings, stipulations, depositions, interrogatories and answers, offers of proof, factual summaries, proposed trial plans, evidentiary synopses, photographs, exhibits, reports and other documentary evidence assembled by the parties. All of these items were admitted into evidence, defendants stipulating that they would not contest the facts set forth therein. Findings of fact and conclusions of law were issued by the district court on September 12, 1972, but judgment was reserved pending a hearing on the proper form and measure of relief to be granted.

Beginning on October 16, 1972, the district court held a two day hearing to solicit testimony from all interested parties and tehnical experts in order to assist its fashioning an appropriate judgment. Representatives of the LEAA advised the court that federal funds were available to aid the improvement of the conditions at Parchman. In the decision rendered on October 20, 1972, the district court divided its injunctive relief into two parts: (A) immediate and intermediate and (B) long-range.

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The (A) immediate and intermediate relief was directed towards (1) the elimination of unconstitutional censorship of prisoner mail; (2) the establishment of definite and constitutionally permissive rules and regulations regarding inmate discipline; (3) the prohibition of any form of corporal punishment of such severity as to offend present day concepts of human dignity; (4) the ban against use of disciplinary segregation or isolation at the Maximum Security Unit except under conditions which would satisfy the requirements of the cruel and unusual punishment clause; (5) the improvement of medical facilities and staff; (6) the institution of reasonable procedures to protect inmates from assault by fellow inmates; (7) the abolition of the trusty system insofar as it utilizes trusties in custodial positions; (8) and certain renovations in the physical facilities involving health hazards at Parchman.

Regarding the (B) long-range relief, the court ordered the defendants to submit 'a comprehensive plan for the elimination of all unconstitutional conditions in inmate housing, inadequate inmate housing, inadequate water, sewer and utilities, inadequate fire fighting equipment, inadequate hospital and other structures condemned by this court.'


At the outset, we must determine whether any questions in this case should have been presented initially to a statutory three-judge court. This task is imperative in light of the recent decision of this Court sitting en banc in Sands v. Wainwright et al., 491 F.2d 417 (5th Cir. 1974), which consolidated for opinion purposes four cases concerning inmates' rights in state prisons. Sands et al. held that 28 U.S.C. § 2281 requires the empanelling of a three-judge court if the action to be enjoined is authorized by statewide prison regulations.

However, having examined the issues in the en banc litigation we conclude that this law suit although similarly involving statewide prison regulations is presented in a significantly different posture, so as to preclude the necessity of a three-judge court. As we have already noted, the Governor of the State of Mississippi conceded the unconstitutionality of the practices and conditions at Parchman. For the following reasons this factor in the case at bar substantially distinguishes its framework from Sands et al. and precludes a finding that a substantial constitutional question is in controversy in this case, a prerequisite to empanelling a three-judge court.

In Sands et al. this Court thoroughly reviewed the decisions having either an expansive or limiting impact on the application of the three-judge court statute, 28 U.S.C. § 2281. 1 As outlined in the en banc opinion, one limiting doctrine is

'the rule that a three-judge court need not be convened when either the constitutional attack on the State statute or regulation is insubstantial, Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, or the constitutional defense is frivolous, Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512.' Sands et al., supra, 491 F.2d at 422.

Ex parte Poresky also teaches us that:

'the question may be plainly insubstantial, either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the

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previous decisions of this Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.'' 290 U.S. at 32, 54 S.Ct. at 4. 2

The only problem is that the test for determining the substantiality of the constitutional question elucidated in Ex Parte Poresky, supra, does not afford a formula which can be applied to a particular case with mathematical precision. See Green v. Board of Elections of City of New York 380 F.2d 445, 448 (2d Cir. 1967). Fortunately, another Supreme Court decision, Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962), further clarified this test. In Bailey plaintiffs sought to enforce their rights to non-segregated transportation, allegedly refused them under color of state statutes. On appeal from an abstention order of a three-judge court, the Supreme Court held that the case was one for a single judge. Stressing that prior decisions had settled beyond argument that statutes requiring segregation of transportation were unconstitutional, the Court held:

'Section 2281 does not require a three-judge court when the claim that a statute...

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