Davis v. Balson

Citation461 F. Supp. 842
Decision Date28 September 1978
Docket NumberNo. C 73-205.,C 73-205.
PartiesJohn DAVIS et al., Plaintiffs, v. William BALSON et al., Defendants, United States of America, Amicus Curiae.
CourtU.S. District Court — Northern District of Ohio

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Gerald B. Lackey, R. Michael Frank, Joseph F. Vargyas, C. Thomas McCarter, Kathleen Jolly, John Lamb, John C. Holme, Jr., Toledo, Ohio, Advocates for Basic Legal Equality, Toledo, Ohio, for plaintiffs.

Barbara J. Rouse, Columbus, Ohio, William J. Brown, Atty. Gen. of Ohio, Andrew J. Ruzicho, Louis A. Jacobs, David Latanick, Barbara E. Lapworth, Asst. Attys. Gen., for State defendants.

J. Stanley Pottinger, Asst. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., Michelle C. White, Michael S. Lottman, Karen Christensen, Special Litigation, Civil Rights Division, U. S. Dept. of Justice, Washington, D. C., for United States (amicus curiae).

Before WEICK, Circuit Judge, and WALINSKI and YOUNG, District Judges.

OPINION and ORDER

WALINSKI, District Judge:

PRELIMINARY STATEMENT

This civil rights action is brought as a class action on behalf of all inmates of Lima State Hospital who were committed and incarcerated in said institution on or after May 23, 1973.1 Plaintiffs bring this action under 42 U.S.C. § 1983 to redress certain alleged deprivations of rights secured to them by the laws of the State of Ohio, and by the First, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments of the Constitution of the United States. Jurisdiction is predicated upon 28 U.S.C. §§ 1343(3) and (4), 2201, 2202, 2281 and 2284. Pendent jurisdiction is also alleged. Plaintiffs seek injunctive and declaratory relief, and an award of reasonable attorneys' fees.

Because plaintiffs seek to enjoin the defendants, who are officials of the State of Ohio responsible for the operation of Lima State Hospital hereinafter cited as LSH, from the enforcement, operation and application of certain statutes of the State of Ohio, a three-judge court has been empaneled pursuant to 28 U.S.C. §§ 2281, repealed Pub.L. 94-381 §§ 1, 2, Aug. 12, 1976, 90 Stat. 1119, and 2284, amended Pub.L. 94-381 § 3, Aug. 12, 1976, 90 Stat. 1119. On June 25, 1974, the Court sua sponte bifurcated trial of those issues raised which may be decided by a single judge from those which must be decided by the three-judge court.

On May 21, 1974, the United States was granted leave to participate in the case as amicus curiae, with the right to conduct discovery, call witnesses, file motions and briefs, and present evidence and arguments, as if a party hereto. Order, No. C 73-205 (filed May 21, 1974).

At final pretrial, joint oral motions for summary judgment were submitted to the Court, based upon one hundred and thirty-five (135) pages of stipulations previously entered into by the parties, and numerous depositions and other materials before the Court. By pretrial order, twenty-three (23) factual disputes amenable to litigation were identified. See Supplemental Pretrial Order, No. C 73-205 (filed August 20, 1974) hereinafter cited as Pretrial Order. Hearing on the merits of those issues was commenced to a single judge on August 26, 1974, and concluded on August 30, 1974.

An interim Order was entered by the Court on September 9, 1974, wherein the Court adopted the parties' mutual contention that "the State, upon committing an individual `until he regains his sanity', incurs a responsibility to provide such care as is reasonably calculated to achieve that goal." Davis v. Watkins, 384 F.Supp. 1196, 1197 (N.D.Ohio 1974) hereinafter cited as Interim Order. Based upon the authority of Wyatt v. Stickney, 344 F.Supp. 373, 334 F.Supp. 1341 (M.D.Ala.1972), 325 F.Supp. 781 (M.D.Ala.1971), subsequently aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), the Court ordered implementation of a program designed to provide minimum constitutional conditions of confinement, and to guarantee a constitutionally acceptable minimum treatment program for all inmates. Said Interim Order is expressly incorporated herein by reference. The Court took the twenty-three issues outlined in the Pretrial Order, supra, under advisement for study and opinion.

On April 2, 1975, upon plaintiffs' motion to clarify the Court's Pretrial Order, supra, the Court ruled that Issue Three, presenting the question whether the automatic administrative assignment to LSH of persons committed pursuant to Ohio Revised Code § 2945.38, when such persons are not so committed by the Court, is a violation of the Fourteenth Amendment, would not be reached in this case, based upon the Court's finding that plaintiffs had presented no evidence that such automatic assignments were taking place. The Court further determined that Issue Twenty, presenting the question whether denying patients at LSH the right to parole, shock parole and work release is a violation of the Fourteenth Amendment, is properly reserved for determination by the three-judge court.

On September 1, 1976, the Court issued a Second Interim Order directed to Issue Fourteen, presenting the question: "Whether the Fourteenth Amendment requires the establishment of a patient advocacy program at Lima State Hospital." The Court's Second Interim Order, as subsequently modified, Order Lifting Stay and Modifying Order Previously Filed, No. C 73-205 (filed January 21, 1977), provides for the establishment of a patient advocacy program, and said Order, as modified, is expressly incorporated herein by reference.

While the defendants have not moved to dismiss any of the remaining twenty issues on the grounds of mootness, they have obliquely suggested that events and actions taken by them subsequent to trial of this cause have obviated any preexisting need for the Court to grant remedial relief on several of plaintiffs' claims. See Letter to Special Master John Czarnecki from David G. Latanick, Assistant Attorney General, September 28, 1977. However, as the Supreme Court has stated, "Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave `the defendant * * * free to return to his old ways.' United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)." United States v. Phosphate Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). Only "if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur", id., is a case such as this rendered moot. The burden of persuasion in this regard rests upon the defendants. United States v. W. T. Grant Co., supra, 345 U.S. at 633, 73 S.Ct. 894. Based upon the Court's finding of multiple constitutional violations in this case, and based further upon the defendants' intransigence to date in implementing even Court ordered remedial relief, see Order Regarding Plaintiffs' Motion to Show Cause, No. C 73-205 (filed January 21, 1977) (finding defendants in Civil Contempt for failure over a two-year period to achieve compliance with the Court's Interim Order of September 9, 1974), the Court finds that defendants have not met their heavy burden of establishing that their allegedly wrongful behavior could not reasonably be expected to recur. Therefore, the Court finds that this case is not moot as to any of the remaining issues. Of course, it remains for the plaintiffs to demonstrate that injunctive relief is warranted with respect to each specific claim. Morales v. Turman, 562 F.2d 993 (5th Cir. 1977).

This is the first in a series of Orders which will address the twenty remaining single-judge issues. Said Orders shall serve as the Court's findings of fact and conclusions of law, pursuant to Rule 52, F.R.Civ.P.

FACTUAL BACKGROUND

Because the facts regarding the conditions and practices at LSH during the relevant time period have been largely stipulated to by the parties, the Court does not deem it necessary to make an extensive statement of facts. A brief factual statement will suffice to provide a background for the legal issues presented.

LSH is a maximum security institution for the criminally insane, operated and funded through the Ohio Department of Mental Health and Mental Retardation. LSH began receiving patients in 1915, and at the time this action was instituted housed patients in two buildings — a main (old) building with twenty-four (24) wards, dining and kitchen facilities, the "male hospital", and other facilities, and the Ascherman (new) Unit, completed in 1952, with four wards, separate dining facilities, and visiting areas. Men's wards at LSH are generally classified as strong, dormitory, or open, with descending levels of restrictions on movement. Other types of wards include observation, women's, behavior modification, and chronic medical.

The patient population at LSH was 1,295 in March, 1971; 783 on August 31, 1973, and 761 in November, 1973. Although LSH is an institution for the criminally insane, patients are committed pursuant to both criminal and civil proceedings. The patient population at LSH consists of the following classes of committees:

Observation Patients

1) Persons accused of a crime who set up insanity as a defense, or who are under investigation by the court to determine if they are presently insane. Pursuant to Ohio Revised Code § 2945.40, such persons may be committed for thirty (30) days, during which time LSH is directed by statute to determine the mental condition of the committee.

2) Persons convicted of a crime, but not sentenced,

a. when a person has been convicted of any felony except murder in the first degree where mercy has not been recommended, or any misdemeanor, when it has been suggested or appears to the court that such person is mentally ill, or a mentally retarded offender, or a psychopathic offender, or
b. when the person has been convicted of certain sex related offenses (
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