CH v. Sullivan

• Decision Date: 25 July 1989
• Docket Number: Civ. No. 5-86-237,5-86-368 and 5-87-79.
• Citation: 718 F. Supp. 726,114 ALR Fed. 743
• Parties: C.H., et al., federal witnesses v. Warden SULLIVAN, et al. T.S., federal witness v. Edwin MEESE, III, et al. John SMITH v. Edwin MEESE.
• Court: U.S. District Court — District of Minnesota

718 F. Supp. 726

114 ALR Fed. 743

C.H., et al., federal witnesses v. Warden SULLIVAN, et al.

T.S., federal witness v. Edwin MEESE, III, et al.

John SMITH v. Edwin MEESE.

Civ. Nos. 5-86-237, 5-86-368 and 5-87-79.

United States District Court, D. Minnesota, Fifth Division.

July 25, 1989.

Melvin B. Goldberg, St. Paul, Minn., for plaintiffs.

Jerome G. Arnold and James E. Lackner, Minneapolis, Minn., for defendants.

ROSENBAUM, District Judge.

Plaintiffs are federal prisoners serving their sentences under the federal witness security program (WITSEC). They are incarcerated in the protective custody unit (PCU) of the Federal Correctional Institution in Sandstone, Minnesota (FCI Sandstone). Plaintiffs are in this program because they testified on behalf of the government. In return for their testimony, the government promised to provide for their safety.

Defendants are the Attorney General of the United States¹ and his authorized agents, responsible for administering the witness protection program.² These authorized agents include Mike Quinlan, Director of the Federal Bureau of Prisons; John Sullivan, Warden of FCI Sandstone; and Robert Shearin, Manager of Unit G. Stipulation of Agreed Upon Facts (hereinafter Stip.), par. 8.

Plaintiffs seek to enjoin defendants from continuing a policy of housing two prisoners in one cell (double celling). They claim double celling is a) a breach of contract, b) a violation of the fifth and eighth amendments, and c) a breach of defendants' duty to provide safety. The parties have made cross motions for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.). Based on the files, records, and proceedings in this matter, and for the reasons given herein, defendants' motion for summary judgment is granted and plaintiffs' motion for summary judgment is denied.

I. Background

As a prefatory matter, the Court recognizes that federal correctional facilities have been overwhelmed by the federal prison population. In July, 1988, there were 43,566 inmates occupying federal prison facilities which were designed to house 27,475 prisoners. Dowd Affidavit, par. 11. While double celling is the gravamen of plaintiffs' cause, defendants claim double celling is necessary to meet inmate space needs and to insure the proper placement of future WITSEC inmates. Id. at par. 12.

The Attorney General of the United States has authority over the Bureau of Prisons, pursuant to 28 U.S.C. §§ 501, 503, and 509. The Attorney General has delegated the authority to operate federal correctional facilities to the Bureau of Prisons. 28 C.F.R. § 0.96.

As part of their responsibilities, the Attorney General and the Bureau of Prisons oversee the WITSEC program. WITSEC was instituted in 1970. Dowd Affidavit, par. 2. The program provides for the protection and safety of witnesses who have provided assistance to the government in criminal proceedings. The relocation and protection of the witnesses is governed by 18 U.S.C. § 3521 (relevant portions of which are appended to this opinion).

Title 18, United States Code, Section 3521(d), makes clear that a participant in the WITSEC program must enter into a statutory "memorandum of understanding" with the Attorney General. 18 U.S.C. § 3521(d)(1). This memorandum sets forth the agreements and obligations of both sides. Each such memorandum of understanding reflects the fundamental agreement that the witness will offer testimony in return for protection and safety.

A potential WITSEC witness is screened by the Bureau of Prisons and Department of Justice before admission to the program. If the witness is expected to be incarcerated, the Bureau of Prisons is notified and polygraph testing and pre-commitment reviews are performed. Upon completion of these examinations, a witness finally may be considered for placement. Dowd Affidavit, par. 10.

WITSEC inmates are housed in either general federal or state prison populations, or in one of four federal PCU's. Id. at par. 4. An inmate is housed in a PCU if the Bureau of Prisons determines he needs significant protection. Id. A PCU is a separate, self-sufficient prison section designed specifically to house WITSEC prisoners. Shearin Affidavit, par. 2.

As of July, 1988, the date of the affidavits filed in this cause, there were a total of 388 WITSEC inmates in federal prisons. Of these, 181 were housed in general federal and state prison populations. Dowd Affidavit, pars. 7 and 8. Four PCU's housed 201 WITSEC inmates. Id.

The PCU at FCI Sandstone is Unit G. Unit G has 73 cells, including four segregation cells and seven special management cells. The 62 regular cells range in size from 66 to 84 square feet. Each cell contains a bed, storage area, television, toilet, and sink. Stip., par. 5.

The practice of double celling WITSEC prisoners at FCI Sandstone began in August, 1986. Shearin Affidavit, par. 4. Twelve of the 62 cells are double cells. Id.; Dowd Affidavit, pars. 9 and 11. Two of the double cells are 84 square feet, two are 77 square feet, and eight are between 66 and 69 square feet. Stip., par. 6. Segregation and special management cells are not used for double celling. As of July, 1988, four beds were available in the four PCU's for new WITSEC inmates. At that time, 41 persons were potential participants. Dowd Affidavit, par. 11. WITSEC inmates in all four PCU's have been double celled to create space for incoming prisoners.³Id.

The Bureau of Prisons' primary criterion for selecting candidates for WITSEC double celling is program seniority. A prisoner with greater seniority normally is given a single cell. If a prisoner violates a prison regulation, a possible sanction may be loss of seniority and, potentially, a change of housing. 28 C.F.R. § 541.13; Shearin Affidavit, par. 11. The Bureau of Prisons acknowledges that change of housing to a double cell is also used as an incentive to maintain order and discipline in the PCU. Id. at par. 12. Regulation violation is determined by a hearing process. 28 C.F.R. § 541.10, et seq. A prisoner who has lost seniority will be double celled only if there is a shortage of WITSEC cell space. Shearin Affidavit, par. 11. Prior to double celling any two particular prisoners, however, the Bureau of Prisons investigates the criminal and WITSEC background of each to insure their compatibility. Id.

It is clear that a WITSEC inmate may have personal papers and effects which, if discovered, could reveal the inmate's identity. To maintain these items securely, the prison staff provides a secure storage area for all inmates. Each inmate is also provided a storage box and may purchase a combination lock from the Bureau of Prisons.

Prisoners in Unit G are locked in their cells between approximately 11:00 p.m. and 6:00 a.m. Access to and from a cell is controlled by prison staff. The parties stipulate that a guard can reach a Unit G cell in less than two minutes. Stip., par. 9. Two guards are on duty in the PCU during the night. Shearin Supplemental Declaration, par. 2(A).

Plaintiffs claim double celling is physically dangerous to them. They point to two incidents to demonstrate these dangers. First, plaintiffs offer a letter, written to the defendants by an Assistant United States Attorney,⁴ expressing the opinion that double celling a particular prisoner might "comprise the prisoner's status as a protected witness ... and have an adverse effect on the prisoner's ... well-being." Plaintiffs' Exhibit D. Second, plaintiffs point to an assault which took place at the Otisville, New York, WITSEC PCU where a double celled inmate was forced to perform sexual acts with his cell mate. Plaintiffs' Exhibit E.

Defendants, to the contrary, contend there have been no violent incidents at the Sandstone PCU which have been related to any prisoner's participation in the program. The PCU unit manager states that only three incidents have occurred in the PCU since Summer, 1986, and that all were minor, unrelated to WITSEC, and involved inmates who were not celled together. The unit manager, in reviewing PCU disciplinary records, actually notes a decrease in incident reports since double celling was commenced. Shearin Affidavit, pars. 8 and 9. Nationally, the Bureau of Prisons contends that no deaths or assaults have occurred against WITSEC prisoners based upon a prisoner's status as a WITSEC participant. Dowd Affidavit, par. 8.

II. Analysis

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P. Summary judgment may be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to its case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In response to a summary judgment motion, the opposing party must produce concrete facts demonstrating an issue for trial. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir.1984). The party opposing summary judgment "must present affirmative evidence in order to defeat a properly supported motion for summary judgment ... even where the evidence is likely to be within the possession of the movant, as long as the plaintiff has had a full opportunity to conduct discovery." Anderson, 477 U.S. at 257, 106 S.Ct. at 2514.

In their summary judgment motion, plaintiffs ask the Court to exercise its equitable powers and issue a permanent injunction preventing defendants from continuing their double celling policy. The Court necessarily considers that "an injunction must be tailored to remedy specific harm shown." Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir.1982). A party seeking an injunction must show an absence of an adequate remedy at law. Northern California Power...