Kelly v. Brewer

• Decision Date: 06 June 1974
• Docket Number: Civ. No. 73-177-2.
• Citation: 378 F. Supp. 447
• Parties: Warner S. KELLY, Plaintiff, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Defendant.
• Court: U.S. District Court — Southern District of Iowa

378 F. Supp. 447

Warner S. KELLY, Plaintiff, v. Lou V. BREWER, Warden of the Iowa State Penitentiary, Defendant.

Civ. No. 73-177-2.

United States District Court, S. D. Iowa, C. D.

June 6, 1974.

Robert Bartels, Robert N. Clinton, Barry A. Lindahl, John Thompson of the College of Law, Iowa City, Iowa, for petitioner.

Richard C. Turner, Iowa Atty. Gen., and Lorna L. Williams, Thomas R. Hronek and Michael P. Murphy, Asst. Attys. Gen., Des Moines, Iowa, for respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT

HANSON, Chief Judge.

This cause of action was filed by the plaintiff, Warner S. Kelly, alleging that he has been subjected to a deprivation of constitutional rights under color of state law due to the facts and conditions surrounding his confinement in administrative segregation at the Iowa State Penitentiary. The plaintiff alleges a deprivation of his right to due process under the Fourteenth Amendment to the United States Constitution and alleges a violation of the proscription against cruel and unusual punishment under the Eighth Amendment.

Jurisdiction of this cause of action is conferred upon this Court by Title 42, U.S.C., Section 1983 and Title 28, U.S.C., Section 1343(3). This cause of action was heard on February 13, 1974 and all briefs and evidence relating to this cause have now been received.¹

FINDINGS OF FACT

1. The plaintiff, Warner S. Kelly, is an inmate of the Iowa State Penitentiary, Fort Madison, Iowa. The defendant, Lou V. Brewer, is the Warden of the Iowa State Penitentiary.

2. On June 8, 1972 plaintiff Kelly was confined in Cellhouse 19 at the Iowa State Penitentiary serving state sentences totalling thirteen (13) years for the crimes of kidnapping, malicious injury to a building, lascivious acts with a child and escape. (Defendant's Exhibit H.) On this date a guard was stabbed and killed at the Penitentiary and Kelly became a suspect in the stabbing. On the date of the stabbing Kelly was in administrative segregation in his cell in Cellhouse 19 which meant that he was not allowed to mingle with the general prison population and was confined at all times to his cell, except if removed from his cell for "approved" reasons. (Defendant's Exhibit J.)

3. Kelly was moved following the stabbing of the guard to Cellhouse 97 and remained in this cellhouse for a period of approximately four days. Cellhouse 97 was a maximum security cellhouse in which inmates were isolated from the rest of the prison population.² The plaintiff was given no type of due process hearing prior to his confinement in Cellhouse 97. (Defendant's Exhibit J.)

4. The plaintiff was subjected to substantial deprivations which inmates in the general prison population did not suffer. This included a lack of clothing and bedding during the period from June 8, 1972 to June 12, 1972, no eating utensils, irregular meals, no toilet paper, no showers, and the plaintiff was in a cell in which steel flaps were closed to shut out all light.³ On June 12, 1972 the plaintiff was transferred to the Iowa Security Medical Facility (I.S.M. F.) at Oakdale, Iowa for "safekeeping" until he was returned to the Iowa State Penitentiary and Cellhouse 97 on August 9, 1972.

5. A county attorney's information was filed in Lee County, Iowa on July 5, 1972 charging Mr. Kelly with murder in connection with the death of the guard. Mr. Kelly was convicted of murder in the second degree on May 4, 1973 in Wapello County, Iowa and was sentenced to a term of ninety (90) years. Between August 9, 1972 and the date of his trial on the murder charge the plaintiff was confined in administrative segregation in Cellhouse 97. On April 23, 1973 the plaintiff was transferred to the Wapello County Jail for trial on the charge of murder in connection with the stabbing of the guard.

6. During the period from August 9, 1972 to the present the conditions of confinement for the plaintiff have gradually improved from the conditions he endured during his lockup from June 8, 1972 to June 12, 1972. He has been given additional privileges. He is allowed to exercise. He has been allowed a television since May of 1973. He is allowed subscriptions to certain magazines. He is allowed to visit counselors and clergymen. He is allowed cigarettes as of around Christmas of 1972. He is allowed more furnishings in his cell. The plaintiff, however, was still in a condition of isolation from the rest of the prison population. The plaintiff was given no "due process" hearing regarding the reason for his confinement during the pre-trial period.

7. Following his conviction in Wapello County for second degree murder, the plaintiff was returned to Fort Madison in June of 1973 and again placed in Cellhouse 97 in administrative segregation. Plaintiff again received no hearing or opportunity to be heard as it relates to his confinement in indefinite administrative segregation. The plaintiff continued to be confined in Cellhouse 97 until October 29, 1973 when he was transferred to Cellhouse 20 where he had been continuously confined in isolation to the date of trial on this cause. Cellhouse 20 is a maximum security cellhouse which replaces Cellhouse 97 and is the building where prisoners are isolated from the general prison population. The plaintiff seldom if ever leaves the confines of Cellhouse 20.

8. For purposes of examination in this case there have been three separate periods of administrative segregation (solitary confinement) for the plaintiff following the slaying of the prison guard: the first period from June 8 to June 12, 1972, the pre-trial period of confinement from August 9, 1972 to April 23, 1973 and the post-trial confinement of the plaintiff to the present time.

9. The defendant apparently justified the pre-trial detention of the plaintiff in "isolation" on the basis of protecting the safety and order of the institution and also on the basis of pre-trial detention to assure his appearance at trial.

10. The reasons for Mr. Kelly's present lockup in "indefinite administrative segregation" is, first, the judgment of Warden Brewer that Mr. Kelly poses a substantial threat to the safety and security of the institution. The Warden bases his conclusion that Mr. Kelly poses a threat to the safety and security of the institution upon his conviction of second degree murder of the correctional officer. Warden Brewer testifies that it is his judgment that murder or assault upon an institutional staff member is sufficient reason for placing and retaining an inmate in indefinite administrative segregation without further hearing beyond the criminal trial. Warden Brewer stated that an inmate need not be released from administrative segregation until he has demonstrated to his satisfaction that he will not pose a threat to the security of the institution and that there will be no significant negative reaction from institution staff members if he is released. The second reason for the "indefinite administrative segregation" of Mr. Kelly was stated to be the negative reaction of the prison staff which would result if Mr. Kelly were to be released. The third reason is the general deterrent effect which Mr. Kelly's confinement may have on assaultive conduct by other inmates. A final reason that Mr. Kelly is being maintained in "indefinite administrative segregation" is the plaintiff's past record although Warden Brewer states that the conviction of a murder while in the institution would be sufficient reason in itself.

11. As stated earlier, many of the deprivations to which the plaintiff has been subjected have been alleviated from the extreme situation following his confinement in administrative segregation on June 8, 1972. The Court considers to be most important the deprivations to which he is subjected to at the present time as it relates to determining what action should be taken as to the plaintiff's status in the future. At the present time the plaintiff is in a status of indefinite administrative segregation. Essentially this status involves confinement in a cell twelve feet by nine feet, except for periods in which the plaintiff is allowed to shower or when he has visits. Plaintiff seldom if ever leaves the confines of Cellhouse 20. At the time of trial there was no provision for exercise for those inmates in Cellhouse 20, although there are indications that this problem was to be alleviated. Plaintiff has visual contacts only with officers in this cellhouse, clergymen if he desires contact with these persons, visitors or counselors in the institution. His communications with other inmates must be done verbally by shouting through the walls to these other inmates. Plaintiff has for furnishings in his cell a bed, a small table, a stool, a sink and toilet, books and television, and some personal belongings. The plaintiff has been granted permission to buy a radio and has library privileges. Although all prisoners are subject to certain deprivations as a natural accoutrement to their confinement, there can be and is no argument but that the plaintiff's present status involved greater deprivation than that to which the general inmate population is subjected. This is plainly shown by the fact that solitary confinement and administrative segregation are used as punishment for infractions of the institution's rules in addition to being used for the protection of the staff and the inmates of the institution. This is also shown by the fact that the Warden feels that placing Kelly in solitary confinement is a deterrent to assaultive behavior by other inmates. (Defendant's Exhibit J.)

12. Dr. Stephen Fox, a psychologist employed by the University of Iowa, has studied the effects of this type of confinement upon prisoners and has concluded that solitary confinement (administrative segregation) and the sensory deprivation resulting from such confinement can have extremely harmful psychological and physical effects upon the person involved. Possible deleterious...