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December 6, 1973


The opinion of the court was delivered by: Foreman, District Judge:


This proceeding is a continuation of the litigation already reported at D.C., 352 F. Supp. 882. It is a class action brought on behalf of 115 inmates at the United States Penitentiary, Marion, Illinois, all of whom were placed in segregation as a result of the July, 1972 work stoppage at that institution. After this Court handed down its initial decision on Plaintiffs' motion for preliminary injunction, the Plaintiffs appealed to the Court of Appeals for the Seventh Circuit, 488 F.2d 619 which remanded the case to this Court.

A Consolidated Hearing was held in Benton, Illinois on the issues presented in the Plaintiffs' motions for a preliminary and permanent injunction and on all issues raised and unresolved by the mandate of the Seventh Circuit. Following the hearing the parties agreed to a briefing schedule concerning the various issues before the Court with the exception of the issue of whether the Plaintiffs' continued confinement in segregation constitutes punishment disproportionate to the offences they committed. Thus, at this time the Court will address only this single issue which the parties agree is ready for a final determination.

Specifically, Plaintiffs claim that they have spent so much time in segregation relative to the offenses which they were found to have committed that their continued confinement in H & I Units constitutes punishment disproportionate to the offense or offenses committed and, therefore, violates the Eighth Amendment's prohibition against Cruel and Unusual Punishment. They claim that those still in confinement should be released to the general population because of the allegedly unconstitutional punishment.

Originally 115 Plaintiffs were placed in segregation as a result of their participation in the July, 1972 work stoppage. Of this number, twenty-one have been transferred to other institutions and placed in general population there. Another nine have been released for one reason or another. Forty-nine are now in the general population at the Marion penitentiary. One Plaintiff has been in control status at the Marion Penitentiary, but was currently in the process of being transferred to the United States Penitentiary, McNeil Island, Washington. Since at the time of the hearing, it was not known whether he would be placed in the general population or segregated confinement at that institution, he will be treated as if he were still in H & I Units of the penitentiary at Marion. Only thirty-five Plaintiffs remain in segregation or control status at the Marion penitentiary and, thus, the Court addresses only the issue of whether the continued confinement in H & I Units of the thirty-six Plaintiffs would constitute disproportionate punishment. As to the other Plaintiffs, the issue would appear moot as that issue relates to the injunction.

The thirty-six Plaintiffs still in H & I Units to whom this Order applies are the following:


Name                                     Number
  Anderson, Bobby                             84612-132
  Arnold, Randolph                             2186-135
  Bates, Leon                                 85227-132
  Brown, Robert W.                            91008-131
  Callison, Jack Buddy                        84747-132
  Dewberry, Lucius                            27395-117
  Estrada, Manuel                             83953-132
  Estrada, Raul                               86022-132
  Farris, Robert L.                          85783-132
  Fuston, Paul W.                              1543-135
  Gaskins, Frank                              92314-131
  Gomez, Gumersindo                           82499-132
  Gudino, Albert                              33316-136
  Hallman, Bobby                              86287-132
  Hammond, Michael                            86138-132
  Hawk, Richard E.                            26511-138
  Hunter, Dennis D.                           33740-118
  Johnson, Edward                             94019-131
  Lairson, John F.                            83565-132
  Leano, Gil M.                               32927-136
  McKinney, James F.                          37094-133
  Mares, Albert                               85831-132
  Mayes, Robert                               33668-136
  Miranda, Rafel                              78062-132
  Montgomery, R.                               1782-135
  O'Connor, Benjamin F.                       37672-133
  Patmore, James D.                           87017-132
  Perez, Joseph                               81211-302
  Robinson, Preston                            9179-116
  Roche, Edward                               83490-132
  Royal, Doyle D.                             86848-131
  Stitt, James                                28634-138
  Warren, David                               85855-132
  Watson, James A.                            19106-101
  Williams, Bernard                            2011-135
  Wright, Douglas F.                          86623-132

On the appeal the Court of Appeals for the Seventh Circuit previously considered this question of disproportionate punishment and determined that at that time there was insufficient evidence in the record for that Court to be able to rule upon the question. Adams v. Carlson, 488 F.2d 619 (7th Cir. 1973). The Court of Appeals also found that the previous hearings at which Plaintiffs were found to have committed rule infractions were invalid because the prisoners were not accorded certain due process safeguards, and the Appellate Court ordered that the Plaintiffs be given new hearings. That Court further noted, as follows:

    Should the [Plaintiffs] wish to press their
  contention of disproportionate punishment, the
  hearings we have ordered, and the written memoranda
  which will result will provide a more satisfactory
  factual basis for their claim. Adams at 636.

In describing the new hearings which it had ordered, the Court of Appeals stated, "These must, of course, encompass misfeasance other than the work stoppage if Marion officials intend to rely on it in support of segregating appellants." Adams, at 636 n. 32.

Pursuant to the mandate of the Court of Appeals, this Court ordered the Defendants to have new hearings for those Plaintiffs who were still in segregation and spelled out with particularity the due process safeguards which it required be given to each Plaintiff at his new hearing. The new hearings for the 49 Plaintiffs then remaining in segregation were conducted by the prison officials during the latter part of September, 1973.

The thirty-six Plaintiffs still remaining in H & I Units have now been there for over sixteen months. Each inmate in H & I Units lives in an individual cell approximately eight feet by six feet and nine feet high and where each Plaintiff spends approximately 23 1/2 hours per day. The cells are relatively bare and contain only a single bed, a sink, and a commode. There is very little variability in the cells and almost no place to put personal effects. Mirrors and clocks are not permitted and commissary privileges are restricted. Inmates are compelled to eat their meals in their cells, although there is no table and, as a result, some inmates eat ...

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