Knop v. Johnson, G84-651.

• Decision Date: 05 May 1988
• Docket Number: No. G84-651.,G84-651.
• Citation: 685 F. Supp. 636
• Parties: Gary KNOP, John Ford, William Lovett, II, Ramando Valeroso, Gus Jansson, Pat Sommerville, Vernard Cohen, T. Jon Spytma, Robert Shipp, Butch Davis, Ron Mixon, and Kerwin Cook, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Perry M. JOHNSON, Robert Brown, Jr., Dale Foltz, John Jabe, Theodore Koehler, John Prelesnik, and Jack Bergman, Defendants.
• Court: U.S. District Court — Western District of Michigan

685 F. Supp. 636

Gary KNOP, John Ford, William Lovett, II, Ramando Valeroso, Gus Jansson, Pat Sommerville, Vernard Cohen, T. Jon Spytma, Robert Shipp, Butch Davis, Ron Mixon, and Kerwin Cook, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Perry M. JOHNSON, Robert Brown, Jr., Dale Foltz, John Jabe, Theodore Koehler, John Prelesnik, and Jack Bergman, Defendants.

No. G84-651.

United States District Court, W.D. Michigan, S.D.

May 5, 1988.

National Prison Project of the American Civil Liberties Union Foundation, Washington, D.C. by Elizabeth Alexander, Adjoa Aiyetoro, for plaintiffs.

Frank J. Kelley, Atty. Gen., State of Mich., Lansing, Mich. by Thomas C. Nelson, Brian MacKenzie, for defendants.

OPINION

ENSLEN, District Judge.

Upon the completion of a lengthy bench trial on the liability issues in this matter, the Court directed defendants to submit proposed plans to remedy the constitutional violations found to exist at the subject institutions. See, Knop v. Johnson, 667 F.Supp. 467 (W.D.Mich.1987). Defendants' submitted their proposed plans on October 13, 1987. Plaintiffs submitted their comments on those plans, and their own recommendations on November 17, 1987. On March 1, 1988 the Court began a four day hearing on the entry of the remedial plans proposed by both parties. The order which follows this Opinion is the product of the Court's consideration of the testimony received at that hearing and the plans submitted by both parties.

In devising a remedial order to redress the numerous constitutional violations found to exist in this Court's Opinion and Order of August 10, 1987, the Court was not unmindful of the Sixth Circuit's admonition that a district court must "impose the least intrusive remedy available" to remedy unconstitutional conditions in state prisons. Kendrick v. Bland, 740 F.2d 432, 438 (6th Cir.1984). In my order, I have attempted to abide by the restraints imposed by Kendrick, and by the precepts of comity and federalism so often noted in similar cases. See, State of Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 695-96, 99 S.Ct. 3055, 3079, 61 L.Ed.2d 823 (1979); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). I have also attempted to utilize the "healthy sense of realism" noted in Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), by deferring, wherever possible, to the judgment of prison administrators, and by retaining, to the largest degree possible, their discretion to control matters of internal discipline. See also, Bell v. Wolfish, 441 U.S. 520, 548, 99 S.Ct. 1861, 1879, 60 L.Ed.2d 447 (1979); Preiser v. Rodriguez, 411 U.S. 475, 491-92, 93 S.Ct. 1827, 1837, 36 L.Ed.2d 439 (1973); Ruiz v. Estelle, 679 F.2d 1115, 1145-1146 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).

Comity, federalism and appropriate deference to prison administrators notwithstanding, it remains this Court's duty to devise an order which will promptly and effectively remedy the constitutional inadequacies noted in my opinion of August 10, 1987. "It is fundamental that the federal forum, as the ultimate guardian of constitutional rights, possesses the authority to implement whatever remedy is necessary to rectify constitutionally infirm practices, policies or conduct." Kendrick, 740 F.2d at 437. See also, Hutto v. Finney, 437 U.S. 678, 688 note 9, 98 S.Ct. 2565, 2572 note 9, 57 L.Ed.2d 522 (1979) ("Once invoked, `the scope of a district court's equitable power to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies'") (quoting, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971)).

1. Toilets at RCF. Defendants originally requested that they be given three years to construct the necessary toilet facilities at this institution. George Walter, the department's Physical Plant Division Manager, testified in his deposition, however, that the project could be completed within 26 months, if the defendants attended to it on an expedited basis. Walters Deposition of February 24, 1988 at 13-15 and Exhibit 1. He further testified that the project could take between five and six years to complete, if it were allowed to filter through the "normal process" of obtaining funding, accepting bids and construction.

The Court chose to adopt the earlier completion date as requested by plaintiffs because of the clear need to remedy this unconstitutional condition as quickly as possible. Prisoners will continue to be incarcerated in locked cells without sanitary toilet facilities until the construction mandated by this Order is completed. The unconstitutional condition will continue to exist, and to impact directly upon those prisoners until that time. Further, the Court is well aware from its experience in implementing the consent decree in United States v. State of Michigan, No. G84-63 (W.D.Mich.), that construction delays are inevitable, and often unavoidable, and that the only way to insure reasonably prompt completion of such a project is to impose a strict deadline upon it. Obviously, as the order itself indicates, the Court is willing to accept a certain amount of delay in the completion of this project, but the Court can see no reason to build that delay into its order at the outset. Thus, I have chosen to impose a construction deadline which will require defendants to attend to this matter promptly, and which will allow the Court and the parties to take delays into consideration as they occur.

2. Legal Mail. This aspect of the order is essentially consistent with defendants' proposed plan, except that it remedies the most serious omission of that plan by providing a means for notifying current prisoners of the change in the legal mail policy. I have given defendants discretion to adopt an appropriate method for notifying these prisoners of the new policy. The Court notes that, notwithstanding the requirement that defendants inform this Court of their plan to notify current prisoners of the change, defendants are required to begin informing new prisoners of the policy immediately. The Court notes further that it would be prepared to accept a notice plan for current prisoners which is similar to the plan adopted by the parties to notify class members of the impending dismissal of certain claims in this action. In other words, the Court would accept a notice plan which provides for posting of the new regulation on bulletin boards in general population housing units and for individual notice to prisoners in segregation units or to prisoners who would not otherwise have access to those bulletin boards.

3. Racial Slurs. This portion of the order presented the most difficult issue for the Court to resolve. The Court heard a great deal of testimony both at trial and at the remedial hearing regarding the defendants' employee discipline policy, its collective bargaining agreement, the Civil Service Regulations and the need for flexibility and discretion in resolving personnel matters. In my opinion of August 10, 1987, I found that the defendants had violated the Constitution by intentionally subjecting black inmates to a pattern of racial harassment, in the form of racially derogatory conduct by corrections officers. Opinion at 76. I further found that, while the defendants' official employment policies prohibited racial discrimination by staff, the defendants rarely, if ever, disciplined staff for engaging in such conduct. In addition, I found that the defendants' requirement that allegations of racially derogatory conduct be substantiated by other staff members effectively prevented such discipline from occurring. See, Opinion at 77-79; 3-17-87 Tr. at 142-43; 3-18-87 Tr. at 34-35; 3-19-87 Tr. at 13; Defendants' Exhibits 100, 1091 110 and 319a. I thus concluded that the defendants, acting in their official capacities, had "consciously, voluntarily and with reckless indifference to the rights of black inmates ... failed to implement policies that would prevent this situation from occurring and that the defendants affirmatively encourage its continuation." Opinion at 79.

The testimony by defense witnesses at the remedial hearing essentially mirrored the testimony considered by the Court in its August 10, 1987 Opinion. Defendants' proposed remedial plan would only continue the ineffective policies of staff training and counselling currently in place. I heard no testimony at the remedial hearing which convinced me that the defendants' current policies would be any more effective at eliminating the use of racial slurs by corrections officers now than those policies have been in the past. Moreover, defendants' proposed plans contained no provision for remedying the most glaring deficiency in the current policies—the requirement that inmate allegations of racially derogatory staff conduct be corroborated by other staff before disciplinary action is considered.

In short, I found that a constitutionally infirm policy existed, even in light of the anti-discrimination and employee discipline policies adopted by the defendants, because the plaintiffs clearly showed at trial that corrections officers were rarely, if ever, disciplined for engaging in racially derogatory conduct. The defendants' proposed plan, although it would achieve the somewhat salutary goal of retaining departmental control over personnel policy, does nothing to alleviate that constitutional deficiency. It thus appears to the Court that the defendants have had an opportunity to remedy...