Kendrick v. Bland, Civ. A. No. 76-0079(P).

• Citation: 541 F. Supp. 21
• Decision Date: 12 November 1981
• Docket Number: Civ. A. No. 76-0079(P).
• Parties: Jerald L. KENDRICK, et al., Plaintiffs, v. David H. BLAND, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

541 F. Supp. 21

Jerald L. KENDRICK, et al., Plaintiffs, v. David H. BLAND, et al., Defendants.

Civ. A. No. 76-0079(P).

United States District Court, W. D. Kentucky, Paducah Division.

November 12, 1981.

Oliver H. Barber, Jr., Gittleman, Charney & Barber, Louisville, Ky., Richard H. Burr, III, Southern Prisoners Defense Committee, Nashville, Tenn., for plaintiffs.

Shawn Moore, Adjoa A. Burrow, Martha A. Fleetwood, U. S. Dept. of Justice, Civil Rights Div., Sp. Litigation Section, Washington, D. C., for amicus curiae.

Paul Isaacs, Barbara Willett, Dept. of Justice, Commonwealth of Kentucky, Frankfort, Ky., for defendants.

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT

JOHNSTONE, District Judge.

This action is before the Court for final decision on the issue of guard harassment. This action was brought under 42 U.S.C. § 1983 by prisoners at Kentucky State Penitentiary (KSP) who alleged their conditions of confinement were cruel and unusual punishment violative of the Eighth Amendment to the U. S. Constitution. This Court entered a preliminary injunction prohibiting the use of unnecessary physical force, mace, or restraints on any inmate on March 21, 1980. A Consent Decree (Appendix I to this Opinion) regarding a broad range of prison conditions, was approved by the Court and entered as an order on May 28, 1980. The Court, with agreement of the parties, entered a Supplemental Partial Consent Decree (Appendix II to this Opinion) on July 22, 1980, which, among other things, made permanent the preliminary injunction previously entered. During the Week of July 21-25, 1980, this Court held a trial on the issue of guard harassment at KSP, an issue specifically excluded from the Consent Decree and now ready for final disposition by the Court.

With the entry of the Supplemental Partial Decree, the issues in the guard harassment trial were narrowed to the two disputed forms of relief sought by the plaintiffs. First, plaintiffs seek a declaration that the Constitutional rights of the KSP class had been violated by a pattern of guard harassment of inmates. Second, plaintiffs request an injunction ordering the firing of Senior Captain (now Major) Robert Hendricks, Captain William Henderson, and Captain Billy Ashley. Plaintiffs originally sought the termination of Lieutenant Dixon Copeland and Officer Charles Holt, but that request has been withdrawn. This Court indicated, in a bench opinion rendered October 22, 1980, that a preliminary finding of an unacceptable pattern of harassment had been made.

Since this action was initiated by plaintiffs, acting pro se, conditions at the Penitentiary have changed. The gravity of the situation at the prison prior to the institution of this lawsuit is illustrated by a few grim statistics. Within a one year period beginning in January 1974, eight inmates committed suicide. In the fifteen month period immediately prior to the filing of this action, seven more inmates were the victims of homicide or suicide. (See Report on Homicides and Suicides in Kentucky State Penitentiary, filed by defendants on August 28, 1980). By contrast, there have been no suicides and one homicide at KSP in the last two years.

The institution was constructed in the early 1880s. Cellhouses No. 1 and No. 2 have never been thoroughly renovated in the one hundred years of KSP's existence. They are, in all probability, the oldest prison cellhouses in the nation still used in their nearly original condition.

This is part of the sobering background against which the Court must judge the issue of guard conduct. For just as the Consent Decree requires renovation of the bricks and mortar of the prison, so too must the attitudes of prisoners and corrections personnel be renovated to ensure progress that will satisfy the mandate of the Constitution.

FINDINGS OF FACT

A. THE ABUSE OF THE INFORMANT SYSTEM

1. In the years prior to the filing of this action and continuing through the period immediately preceding the hearings on guard harassment, a coercive informant system operated inside the prison. Guards would offer rewards to, or withhold disciplinary action against, inmates who would cooperate with them by giving them desired information. The abuse of this system created a pervasive atmosphere of fear, intimidation, dishonesty, and sometimes violence.

2. Illustrative of the pernicious effect of the informant system is the testimony concerning the activities of Inmate Blair Shelton. While the Court finds that Mr. Shelton exhibited an exaggerated version of his own ability to manipulate the system, the record clearly demonstrated his abuses of the system were severe and were in fact fostered and facilitated by the officials in authority at KSP.

3. Inmate Shelton was a known loan-shark, drug-dealer and homosexual aggressor. Although Shelton was known by prison officials to be a loan-shark Transcript of Hearing, p. 677, he was assigned to jobs in the Protective Custody Unit, first as recreation director, then as inmate clerk, which gave him the maximum amount of freedom to engage in loan-sharking activity. His inmate jobs allowed him to be out of his cell and to move about the cellhouse at will during all waking hours. He was able to obtain these jobs (and the mobility, status, and power they conferred on him) without going through the normal channels or approval of the Classification Committee of the institution. (TH 269, 996-97).

4. In April, 1977, Mr. Shelton was transferred to segregation due to his loaning of money to other inmates. Shortly after his transfer, administration officials offered to allow Shelton to return to Protective Custody in return for his help in building a case against Inmate James Collins (who had filed a lawsuit over conditions in Protective Custody). Shelton agreed to cooperate on the condition that he be allowed to cell with his former cellmate, nineteen year old George Simpson (with whom he had a homosexual relationship). This previous celling arrangement had violated the institutional rule against inmates over 25 years of age (Shelton was 35 at the time) celling with inmates under 25. Upon his return to Protective Custody, Shelton was placed in the cell next to Simpson, who at that time had no cellmate. Mr. Shelton protected his homosexual relationship with Simpson by resuming his loan-sharking activities. (TH 264-270).

5. Though Shelton fell into disfavor with the officers in charge of Protective Custody, those officers, as late as the Spring of 1980, allowed cell-changes that enabled Shelton to engage in predatory, violent homosexual activity. In April of 1980, a seventeen year old inmate was transferred to Protective Custody at KSP. Within a week of his arrival, he was transferred without notice and against his will to Mr. Shelton's cell. For the remaining period he was in Protective Custody (over three months), this seventeen year old inmate was forced to fight off the homosexual advances of Shelton almost every night. Shelton engineered this cell-change by bribing the inmate grievance clerk. But all cell changes must be authorized by the shift captain and, ultimately, by Major Hendricks. Those officers must bear ultimate responsibility for the cell changes and the abuse of the informant system to which they are connected. (Deposition of Inmate James Chapman, TH 273, 680, 787-88, 992-94).

6. In addition to the kind of activity described above, the informant system led to the imposition of arbitrary and harsh disciplinary action against inmates who failed to cooperate with guards in the desired manner. Illustrative of this abuse of the informant system is the imposition of six months confinement in segregation of Inmate Gary Herndon. Mr. Herndon was asked to cooperate in building a case against a guard suspected of smuggling contraband. Herndon declined to give any information for the reason he claimed to know nothing about the situation. Herndon alleges Captains Henderson, Ashley and Deboe threatened him with retaliatory action if he failed to cooperate (TH 72-76).

7. Herndon, who has a bad reputation for loan-sharking and homosexuality within the institution (TH 672-73), felt the threats of the officers placed him in serious jeopardy, both from official action against him by the officers and from inmates who might think he had informed on them. He reported the threats to Warden Sowders and sought a State Police investigation. Warden Sowders testified he viewed the charges as being "very serious." Herndon offered to submit to a polygraph test and Warden Sowders did request a State Police investigation. The State Police assigned a Detective Potter to investigate, although the inmates objected to Potter's involvement due to his ties to the accused guards (TH 71, 707-10).

8. Detective Potter's investigation yielded no action (TH 72). Herndon offered to submit to a polygraph test (TH 71), but no polygraph test was given, even though it was standard procedure to use a polygraph in this situation, according to Warden Sowders (TH 709). The evidence clearly shows that Herndon feared official misconduct in the form of guard harassment in retaliation for his noncooperation. Nevertheless, Detective Potter failed to investigate the possibility that certain guards misused their official positions to coerce inmates into giving or fabricating desired information. As Detective Potter testified, "I didn't go that deep into it." (TH 977).

9. Soon after the alleged threats by the guards, and the aborted State Police investigation, guards began searching Herndon's cell on a daily basis. Within a few days, one marijuana cigarette was found. Herndon pleaded not guilty and his cellmate pleaded guilty to possession before the institutional Adjustment Committee. Both were sentenced to ninety days segregation. Thereafter, Herndon's confinement in segregation was extended for eighty-eight additional days for reasons which appear murky at best. Thus Herndon was confined in...