Tate v. Kassulke, Civ. A. No. C 75-0031 L(A).

• Citation: 409 F. Supp. 651
• Decision Date: 04 March 1976
• Docket Number: Civ. A. No. C 75-0031 L(A).
• Court: U.S. District Court — Western District of Kentucky
• Parties: Don TATE et al., Plaintiffs, v. Howard C. KASSULKE et al., Defendants.

409 F. Supp. 651

Don TATE et al., Plaintiffs, v. Howard C. KASSULKE et al., Defendants.

Civ. A. No. C 75-0031 L(A).

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

December 23, 1975.

On Motion to Alter or Amend, March 4, 1976.

COPYRIGHT MATERIAL OMITTED

Curtis B. Stuckey, Kurt Berggren, Legal Aid Society of Louisville, Louisville, Ky., for plaintiffs.

Joseph V. Mobley, Louisville, Ky., for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

ALLEN, District Judge.

This action was brought pursuant to 42 U.S.C. § 1983 by various inmates of the Jefferson County Jail seeking, among other things, preliminary injunctive relief to enjoin the prison officials from allegedly continuing to violate their constitutional rights. An evidentiary hearing was held which lasted two and one-half days. No complete transcript has been made of the testimony.

It should be first observed that a similar action was filed in District Judge Rhodes Bratcher's court in 1972 which resulted in an agreed judgment that provided for the furnishing of certain amenities and necessities to the inmates. See Clements, et al. v. Hamilton, Sheriff, et al., Civil Action No. 7001, decided October 6, 1972. That agreed judgment more specifically provides, insofar as applicable, as follows:

1. Written rules, regulations and penalties are to be given the inmates and a three-man disciplinary board shall be continued in use to determine whether an offense has been committed and what action should be taken.

2. No censorship of outgoing mail to attorneys, elected officials and legal service organizations is permitted. Incoming mail is not to be read but to be opened and checked for contraband and other restricted items.

With these exceptions, the consent decree and final judgment entered by Judge Bratcher did not pertain specifically to the matters at issue in this action.

The plaintiffs in the instant action have related in some detail the alleged lack of sanitary conditions, access to showers, access to recreation, vermin infested conditions, lack of medical attention, cruel beatings, unconstitutional reading of their mail, and lack of due process with respect to solitary confinement and segregation.

Before entering into a discussion of the various allegations made by the plaintiff, the Court takes notice of the fact that the Jefferson County Jail is a building constructed many years ago for a much smaller inmate population, and that it is a facility intended to be used for the housing of prisoners who are charged with crimes prior to their actual trial, and that some prisoners may remain there as long as 15 months while awaiting trial.

The Court also notes that after many years of complaints concerning the conditions at the jail, some of which were beyond the control of the jail authorities, a new jail is now being constructed which should eliminate many of the problems caused by the advanced age and gradual deterioration of the present jail.

SANITARY CONDITIONS

The Court finds, insofar as sanitary conditions are concerned, that the inmates are supplied clean linens, soap and a change of clothing once a week, and that efforts have been made, although not completely satisfactory, to eliminate the rats, mice and other vermin which are undeniably present to some extent in the jail. In this connection, it is noted that the jail authorities disinfect the jail approximately once a month.

The Court believes that in light of the defendant's bona fide efforts to eliminate the rodents and other pests which are present in the jail, and in light of the expenditures made by the defendants to maintain the jail in a reasonably healthy condition, that no injunctive relief is needed with regards to allegations made by the plaintiffs about the sanitary conditions. We are cognizant of District Judge Young's opinion in Jones v. Wittenberg, 330 F.Supp. 707 (N.D.Ohio 1971), aff'd. by the Sixth Circuit under the name of Jones v. Metzger, 456 F.2d 854 (1972). We believe, however, that the sanitary conditions at the Jefferson County Jail are far superior to those horrifying conditions described by Judge Young in his opinion.

BRUTALITY

With regards to the question of brutality of jail guards, the inmates recited several incidents. The first is that of Jimmie Stewart, who claimed that he was beaten on January 26, 1975 by Jerome Thomas, a guard, with a chain and attached padlock. The Court finds that Stewart precipitated a fight between himself and Thomas and that Thomas did hit him with a chain, and that no serious injuries were caused to Stewart.

The Court finds that the action taken by Thomas was in self-defense and that on one occasion during the incident the chain was taken from him by Stewart. This holding is not to be construed by the defendants as authorizing the use of chains as a weapon, particularly since the use of such an instrumentality could result in beatings or assaults which were condemned by the Sixth Circuit in United States v. Georvassilis, 498 F.2d 833 (1974), and by the Eighth Circuit in Jackson v. Bishop, 404 F.2d 571 (1968) in an opinion written by Judge Blackmun, now Justice Blackmun.

The next incident is that of Robert Hunt, who was a mentally disturbed inmate who had set his mattress on fire. He was apparently chained to a lower bunk of a cell next to the plaintiff, Morse. Morse alleges that the guards hit Hunt on several occasions and left him chained to the bed. The defendant's response to this charge is that Hunt was, in fact, mentally disturbed and physically uncontrollable, and that some force was required to prevent him from doing injury to himself or others. The Court did not have the benefit of any testimony by Hunt or any of the guards who allegedly were cruel to him.

The Court recognizes that it would be cruel and unusual punishment and a violation of the Eighth Amendment to chain Hunt to a bed for any protracted length of time. See Wheeler v. Glass, 473 F.2d 983 (7th Cir. 1973), where the spread-eagling of juveniles who were tied to a bed for a period in excess of 48 hours was condemned by the court, as being a violation of the Eighth Amendment.

In view of the conflict of testimony as between Calvin Vanderpool, Deputy Director for Treatment at the jail, and the inmates with regards to the Hunt incident, the Court finds that Hunt was not actually chained to a bed for any protracted length of time nor was he assaulted by the employees of the jail.

The next incident was that of Officer Cheatham and inmate Watkins. Inmate Robinson testified he saw Cheatham throw Watkins across the room and onto the bars of a cell. Watkins had apparently been a trouble-maker but weighed only 140 lbs. as opposed to Cheatham's 210 lbs. There was testimony on behalf of the defendant by Vanderpool that Cheatham had previously killed an inmate who had assaulted him. If Robinson's testimony were to be believed, then Cheatham was, in fact, guilty of a violation of Watkins' Eighth Amendment rights. See United States v. Georvassilis, supra and Jackson v. Bishop, supra. The Court does not accept Robinson's testimony, especially in light of the fact that Watkins himself did not testify as to the circumstances.

The plaintiffs also testified about three beatings inflicted upon three unidentified inmates and the alleged roughing up of Daniel Lucey when he attempted suicide. As to the first three incidents, we find them to be without persuasive value, and especially lacking in credibility because of their pertaining to unidentified persons. With regards to Lucey, it is apparent that his testimony was highly self-serving, and we decline to enter a finding that he was, in fact, accorded cruel and inhuman punishment on that occasion.

MAIL

The plaintiffs have contended that on occasions their mail has been opened and also that they were denied access to the courts by reason of the requirement that they pay postage for an envelope bearing a bulky complaint. As to the first contention, the Court finds that the jail now imposes no censorship upon mail, either outgoing or incoming, and that the only inspection it makes of mail is that of packages to determine whether contraband is contained therein.

The defendants further have stated to the Court that they are following the rulings of this Court in Preston v. Cowan, 369 F.Supp. 14 (W.D.Ky.1973), remanded 506 F.2d 288 (6th Cir. 1974) and the regulations, which holding is quite a bit more liberal to the inmates than are the recent Supreme Court decisions in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) and Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Plaintiffs' contention as to the denial of access to the courts is frivolous in light of the decision in the case of Guajardo v. McAdams, 349 F.Supp. 211 (S.D. Tex.1972). No cases are cited by the plaintiffs which entitle them to the free use of the United States mails or to a requirement that the jail furnish such services to them.

VISITATION

Another grievance raised by the plaintiffs pertains to visitation. Only one 15 minute visitation period a week is allowed and two visitors are allowed at each such session. Children 13 years or older are considered persons for the purpose of the visitation limitation. Only 5 approved visitors are on the list at each time. The visitation rights afforded by the defendants are admittedly minimal, and in contrast with the liberal visitation rights which obtain at some federal penal institutions.

In National Prisoners Reform Association v. Sharkey, 347 F.Supp. 1234 (D.R.I. 1972), the district court held that a penitentiary could not bar access to inmates by outside visitors belonging to the plaintiff association. The court held that there was no "showing that the interest of restraints, retribution, deterrence, or rehabilitation" would suffer, supra, at p. 1238.

In Jones v. Wittenberg, 330 F.Supp. 707 (N.D.Ohio 1971), which is a case concerning the ...