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FINNEY v. MABRY

August 20, 1982

ROBERT FINNEY, et al. PETITIONERS
v.
JAMES MABRY, et al. RESPONDENTS



The opinion of the court was delivered by: EISELE

 It now appears that after a long, and at times turbulent, history this case is ready for final disposition. The original complaint was filed in April 1969. The case has proceeded as a class action on behalf of all inmates of the Arkansas Department of Correction for the purpose of challenging the constitutionality of the conditions of confinement at the various units of the Department. Relatively early in the history of the case the Court determined that many conditions of confinement imposed by the respondents were unconstitutional. Efforts since that time have been directed toward improving the situation at the prison units to an acceptable level so that the case could be dismissed. Several hearings have been held to assess the progress being made. Numerous orders have been entered determining the rights of the parties and imposing specific requirements on the respondents in the operation of the Department of Correction. In addition, and most significantly, the parties voluntarily and as a result of their initiatives entered a Consent Decree in October 1978 in which the respondents agreed to meet certain minimum standards in the operation of the Department of Correction in accordance with a stipulated time schedule. Difficulties developed in meeting the schedule. Upon request of the plaintiff class, a hearing was held in August 1981 to determine the extent of compliance by the respondents with the Constitution, the Consent Decree and the prior orders of the Court. Following that hearing, and arguments by counsel, the Court made detailed findings concerning conditions at the prisons, and concluded that the performance of the respondents on a significant number of issues was sufficient to allow a finding of compliance; that in other areas the respondents would be found to be in compliance if certain procedures or facilities were implemented and provided as had been represented to the Court; and that on other issues the policies and practices of the respondents did not yet comply with the requirements of the Constitution, the Consent Decree, and the prior orders of the Court. A Memorandum Opinion was issued setting forth these findings and conclusions on February 16, 1982, 534 F. Supp. 1026, and an Order was entered on March 2, 1982, 546 F. Supp. 626, imposing additional requirements on the respondents. Pursuant to that Order, periodic reports were submitted to the Court by the respondents describing their progress in implementing the various changes in facilities and procedures which had either been represented to the Court during the August 1981 hearing as projected or adopted, or had been required by the Court following the hearing. A final report on compliance was filed by the respondents on May 7, 1982.

 It was, and is, the position of the respondents, as argued in the final report, that the requirements of the Constitution, the Consent Decree and all prior orders in this case have been complied with in all respects, and that the case should therefore be dismissed. The petitioners filed certain exceptions and objections to the final report, drawing into issue the conclusion stated therein that the Arkansas Department of Correction was in full compliance.

 A short hearing was held on Monday, August 9, 1982, to hear evidence and arguments concerning the disputed issues in the case. At the end of that proceeding, the Court concluded, on the record, that the respondents were in compliance with the Consent Decree, the Constitution, and all prior orders of the Court. For the reasons stated on the record at that time, as explained and supplemented herein, it is with great satisfaction that the Court now concludes that jurisdiction over the Department of Correction must be finally relinquished and this case dismissed.

 The dispute between the parties has been narrowed during the recent course of litigation to a few specific issues. As to many issues that were disputed up to the time of the final hearing, the petitioners have now agreed that the respondents are in compliance. For other issues, the dispute between the parties involves questions of law rather than questions of fact, and those matters are resolved by the Court herein. Each of the outstanding issues will be discussed independently.

 As to certain matters, including the evaluation of transfers from the Tucker to the Cummins Unit; the provision of notary service for inmates; the maintenance of sanitation standards at the Cummins Unit, particularly the maximum security facility of that Unit; and the classification system, the Court determined at the conclusion of the hearing in August 1981 that the policies or practices of the respondents, either in effect at that time or planned to be put in effect in the very near future, would meet the requirements of the Constitution, the Consent Decree, and prior orders of the Court. As to these issues, the Court concluded that a final finding of compliance could not be entered at that time only because the particular policy or practice in question was very new, and in some instances not fully implemented, so that the actual effects of the changed practice, or the ability of the respondents to carry it out as planned, could not be adequately measured. Therefore, for these matters it was ordered that the practices of the respondents would be monitored for a period of time before a final decision concerning compliance would be made. The period for such monitoring ended with the submission of the final report by the respondents. As to each of these matters the petitioners have now agreed that the conduct of the respondents has remained satisfactory, and that a final finding of compliance may now be made. Therefore, no further inquiry is required, and the Court concludes that the respondents have conformed their practices in these areas to that represented to the Court during the August 1981 hearing, and are in compliance.

 The Court also found in the February 1982 Memorandum Opinion that the respondents would be in compliance on the issues of an adequate grievance procedure for inmates and the provision of medical services for inmates if the programs that had been adopted shortly before and during the August 1981 hearing were implemented as planned. Again, the programs for the provision of these very important services were too new at that time to allow an evaluation of their effectiveness in actual practice. Therefore, it was required that the programs be monitored for a period of time, and also that the respondents submit reports to the Court and to the attorney for the plaintiff class at stated times describing progress made in implementing the new programs and evaluating their effectiveness. Such reports were made, and the petitioners have now agreed that the reports are accurate and that the programs as implemented meet the requirements of the Constitution, the Consent Decree, and prior orders of the Court. Indeed, the progress made in these two areas is exceptional. The medical services contract has met all expectations concerning its effectiveness and will very likely serve as a model for use in other institutional settings throughout the nation. For many years the Department of Correction had attempted to provide necessary medical services for inmates "in-house." However, the high cost of necessary basic medical supplies and equipment and difficulty in attracting qualified professionals to adequately staff the service made their efforts less than successful. The respondents have now contracted with a private company to provide essential medical services, and the results have proven that the decision to do so was well taken. The numbers of qualified trained medical personnel available and attending to the medical needs of the inmates have increased dramatically. Services are now being provided in a professional and efficient manner. Even the attorney for the petitioners praised the medical services program and its apparent success. Similarly, the grievance procedure has been administered professionally by the Department of Correction, and appears to have accomplished the desired result. The data collected by the respondents and provided to the Court in their periodic and final reports indicates that the grievance procedure continues to be well used by the inmates and that the planned time limitations for resolving grievances filed have been adhered to by ADC personnel. Based upon the reports submitted by the respondents, and the agreement thereto by the petitioners, the Court finds that the respondents are in compliance with the Constitution, the Consent Decree, and all prior orders of the Court on all matters concerning the provision of adequate medical services and a proper grievance procedure for the inmates of the Arkansas Department of Correction.

 Following the hearing in August 1981, the Court ordered that, if the respondents continued to operate in the manner that had been represented to the Court during the course of that hearing and adopted a record-keeping requirement then imposed by the Court, they would be found to be in compliance with the requirements of the Constitution, the Consent Decree, and all prior orders of the Court on the issue of repair of damages in the East Building of the Cummins Unit. The reports of the respondents that these requirements have been met have not been contested by the petitioners. Therefore, the Court finds that necessary repairs in the East Building have been completed in an orderly and timely fashion as needed, and that the "paper chase" described by the Court in the Memorandum of February 19, 1982, and required to be implemented by the Order of March 2, 1982, has been adopted and maintained, and concludes that the respondents are in full compliance on this issue.

 The Court concluded in the Memorandum Opinion filed February 19, 1982, that the plan that had been adopted by the respondents for the rotation of officers through the East Building of the Cummins Unit, as had been required by the Consent Decree, would be adequate if followed in practice the way it had been represented to the Court during the August 1981 hearing. The Court required only that continued compliance be monitored for a time before the Department was actually released on this issue. The final report of the respondents indicates that the plan for officer rotation has been implemented as had been planned, and the petitioners agree that this is so. In the final report, however, the respondents also indicated an intention to modify the plan to allow that officers be rotated out of the maximum security unit after a year rather than six months as had been the previous rule, if such an extension were agreeable to the particular officer involved. It is anticipated that allowing some officers to remain in the East Building for a year, rather than six months, will increase the experience and expertise of the officers working in that building at any given time and reduce the amount of time required to train officers in East Building operations. The petitioners objected to this modification as stated, and argued that an officer should not be retained in such a stressful position as guard in the East Building for a period longer than six months unless the officer were required to submit to periodic psychological evaluations and unless other safeguards were devised which would guard against the possibilities of "burn-out" and possible resulting abuse of inmates. The concern of the petitioners is reasonable. However, the Court has concluded that the modification is acceptable as represented by the respondents, because it adequately guards against such problems, and that the required testing suggested by the petitioners is not required to safeguard against potential reactions by guards to the stress of working in the East Building. The Supervisor of the East Building periodically conducts performance evaluations of the officers working in the East Building, and in that evaluation notes any evidence of stress exhibited by the officer. The respondents have further represented to the Court that officers who are assigned to the East Building are rotated among the various wings of the building at 30 day intervals, that any officer who requests a transfer from the East Building is transferred, and that no officer is to be retained in the East Building for more than one year. Under these circumstances, it appears that adequate mechanisms to recognize and alleviate any situations that might arise due to the stressful conditions of employment in the maximum security unit are contained in the plan as represented by the respondents, and that further measures, as suggested by the petitioners, are unnecessary. The Court, therefore, approves the plan for rotation of officers in the East Building, including the proposed modification of that plan which would allow rotation on an annual rather than bi-annual basis, and concludes that the respondents are in compliance with the requirements of the Consent Decree on this issue.

 The parties also disagreed on the standards to be applied and the evidence to be relied upon in the evaluation and reevaluation of inmates of the East Building, particularly those held in administrative segregation. Following the August 1981 hearing, the Court concluded that it appeared that the respondents were basically in compliance on that issue, but ordered that the evaluation program should be monitored for a period of time, and also required that more complete records concerning the evaluations should be maintained. Specifically, the Court ordered that a written record be prepared in each case documenting what the evaluation consisted of and indicating the reasons that were relied upon to justify keeping the person in the maximum security unit or transferring him out. It was also required that the record reflect any psychological counseling or testing conducted or other reference, and the results thereof, and that if no such reference was felt to be necessary, the reason for that conclusion. The respondents reported in the final report on compliance filed May 7, 1982, that the reviews were being conducted in a timely fashion and that the reporting form had been modified so that the information required by the Court was now to be supplied on the form. The report further indicated that steps had been taken to educate the review committee on the proper use of the form and appropriate criteria for consideration in reaching their decisions. The petitioners objected to the report of the respondents concerning evaluation of inmates on administrative segregation on several grounds. First, the petitioners argued that psychological reports should be prepared on all inmates in administrative segregation, rather than only on those inmates who voluntarily submit to the testing required to prepare those reports. The petitioners also objected to the stated attitude by the evaluation committee to give preference to knowledge concerning security risks perceived from the behavior of a particular inmate over information contained in a psychological report. The petitioners also made the allegation that the responses provided by the committee on the evaluation forms were "superficial," but offered no evidence in support of this allegation. The petitioners did not allege that the respondents were not conducting the evaluations in the time and manner that had been represented in the final report, or that the additional reporting requirement imposed by the Court had not been adopted or implemented as required. The Court has concluded that a finding of compliance may be made despite the objections of the petitioners. Actually, the accomplishments of the respondents in this regard are commendable. By increasing the frequency of the meetings of the review committee and demonstrating efforts to make the evaluation as thorough, meaningful and fair as possible, the respondents have actually gone beyond what was required by the last orders of the Court concerning this issue. To force inmates to submit to psychological evaluation would be counterproductive and wasteful of time and resources. Data obtained under such circumstances would be very questionable. Furthermore, making the final decision on housing an inmate based upon security considerations which are felt to override information contained in a psychological profile on the inmate is acceptable in the opinion of the Court. The evaluation committee is required to consider any information available concerning the psychological condition of the inmate or any such information reasonably obtainable which would be helpful in reaching a just decision. However, the committee members are not required to substitute the judgment of the mental health staff for their own judgment, and are free to come to a conclusion contrary to that stated in any psychological report. In a correctional institution security must be considered central to all other goals. Of course, to arbitrarily ignore psychological reports would defeat the requirement that such reports be prepared and be considered. However, the Court will not require that the reports be given any specific weight in the face of known behavior of the inmate. The ultimate decision must be left to the persons charged by the institution with the responsibility for such evaluations who must act in good faith, considering all appropriate criteria. The decision of the committee, and the basis for that decision, must be recorded by the committee in a meaningful way in accordance with standards previously established by the Court. There is no evidence before the Court that would indicate that the committee has not been operating in conformity with these requirements. Therefore, the Court has concluded that the respondents are in full compliance with the requirements of the Constitution, the Consent Decree, and all prior orders of the Court on the issue of evaluation and re-evaluation of residents of the East Building of the Cummins Unit.

 The procedure utilized by the Department of Correction for the discipline of inmates is another area where the dispute between the parties has narrowed to questions of law rather than fact. During the hearing in August 1981, the evidence indicated that the policy concerning disciplinary procedure in effect for the Department and the forms used in conjunction with disciplinary proceedings had been recently amended, in some instances as recently as during the course of the hearing. The Court ordered that a recording requirement be added so that before an inmate who alleged a medical justification for refusal to work could be disciplined for malingering, a written record had to be made which identified the person at the infirmary who provided the information that the inmate had not been given an excusal from work for medical reasons. This was the only change required by the Court in the policy, forms, or procedure as same had been represented to the Court as then recently adopted. It was concluded that the disciplinary procedure would be monitored for a time, and then if it had been implemented as planned, a final finding of compliance would be made. No factual allegations have been made that the respondents have not followed the stated policy. Rather, the objections of the petitioners are challenges to the policy itself.

 The respondents have proposed that the time limitation for the hearing of disciplinary charges be extended. The present policy requires that all disciplinaries be heard within 72 hours, excluding weekends and holidays. The proposed modification of the rule would allow that disciplinaries would not have to be dismissed unless not heard within five days in certain circumstances. The proposed rule:

 
The Major Disciplinary Committee is expected to convene for a hearing within 3 days (excluding weekends and holidays) after the occurrence of the disciplinary episode. The Disciplinary Committee's objective shall be to try all disciplinary actions within 3 days of the occurrence of the incident. However, a disciplinary action will not be reversed for procedural error on grounds of not receiving a timely hearing so long as the hearing is conducted within 5 days (excluding weekends and holidays) of the disciplinary episode. No disciplinary will be heard after 5 days from the time of the infraction except pursuant to a valid extension.

 The idea of extending the "72 hour rule" was first suggested by the respondents during the oral arguments held in September 1981 following the August hearing. At that time the Court stated on the record that it was of the opinion that disciplinary charges should not have to be dismissed by the Department simply because they could not be timely heard due to the large number of such charges, despite diligent efforts to hear all disciplinaries within the allotted time, and therefore indicated that an extension was a reasonable proposal and would be considered. The attorney for the petitioners agreed at that time that an allowance for an extension to avoid this problem would be agreeable. However, the petitioners now argue that the rule change proposed would allow a blanket extension to five days in all cases, rather than in only those cases where it is necessary. The respondents argue that such a construction would be contrary to what is stated in the rule, and the Court agrees. The rule, as proposed, specifically states that the Disciplinary Committee is "expected" to hear all disciplinary charges within three days and that such is to be the "objective" of the Committee. The good faith of the Committee in operating according to the stated disciplinary policy must be assumed. To require a formal extension in each case would simply add greater paperwork. The proposed change in the rule is ...


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