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February 19, 1980


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


This is a civil rights action, brought under 42 U.S.C. § 1983, for the benefit of all prisoners at the Menard Correctional Center in Menard, Illinois (hereinafter referred to as Menard). Jurisdiction is predicated upon 28 U.S.C. § 1343(3), 1343(4) and 2201 et seq. The Court also invoked its pendent jurisdiction on October 18, 1976, to hear claims concerning inadequate health care, in violation of the Constitution, laws and regulations of the State of Illinois. The plaintiff class are seeking declaratory and injunctive relief, to stop state prison officials from maintaining an inadequate health care system for the prisoners at Menard.

This claim was originally filed on October 2, 1973, on behalf of thirty-eight (38) named black prisoners confined to segregation at the prison since May 1, 1973. One of the conditions challenged in this original complaint was the inadequacy of health care provided in segregation. A temporary restraining order entered by consent of the parties on December 4, 1973, provided, in part, for regular exercise and proper health care.

  The medical panel shall assist the Court in
  determining questions of essential medical care as
  required by the United States Constitution and good
  medical practice as required by the Illinois
  Department of Corrections Administrative Regulations.
  The panel shall organize, direct and conduct a
  comprehensive health services survey to determine the
  adequacy and propriety of health care services
  presently being provided to the plaintiff class by
  the defendants.*fn2

The Court was informed by letter on February 27, 1976, that the three physician appointees, Dr. Richard Della Penna, Dr. Lambert King and Dr. Ronald Shansky, were found acceptable by defendants.

On October 18, 1976, the Court, sua sponte, ordered a separate trial on the claim of denials of essential medical care as alleged in paragraphs 43-45 of the First Amended Complaint. The Court's medical panel filed its first report on November 18, 1976, and stated its conclusion that there is a systematic denial of acceptable medical care to the residents of the entire institution, not solely to the then existing plaintiff class of the prisoners in the segregation unit.

In light of the Medical Panel's finding that health care deficiencies were affecting the general population, as well as segregation, and there being no objection from the defendants, the Court on December 23, 1976, granted plaintiffs' motion to expand the plaintiff class to all inmates incarcerated at the institution for purposes of declaratory and injunctive relief as to those issues involving federal constitutional and pendent state claims of denials of medical care as stated in paragraphs 43 through 45 of the First Amended Complaint.

A non-jury trial of the health care issues for purposes of declaratory and injunctive relief commenced August 29, 1977, and continued for thirty-one (31) days of trial ending on November 17, 1977. During the trial, the Court's medical panel reinspected the institution pursuant to the request of defendants (Defendants' Motion for a Reinspection mailed for filing on June 22, 1977) and submitted their second request, "Report of Medical Panel Concerning Reinspection of Menard Correctional Center on September 20, 1977."

Plaintiffs called three experts and introduced 223 exhibits, while defendants called six experts and introduced 89 exhibits. Two members of the Court's panel of medical experts testified, and the panel's two reports were introduced into evidence.

The following is a brief summary of the qualifications of the Court's panel:

1. Lambert N. King, M.D., Ph.D., is a board-certified physician in internal medicine who served as Medical Director of Cermak Memorial Hospital for the Cook County Department of Corrections from November 1974 to May of 1977, member of the staff at Cook County Hospital, consultant to the National Health Service to plan model jail health services, and has written and lectured extensively on correctional medical care. He visited Menard on three separate occasions over four days, performed a detailed chart review of about 50 randomly-selected medical records, examined a large number of other medical records, and interviewed many Menard residents and staff.

2. Ronald M. Shansky, M.D., is a physician who is a member of the staff at Cook County Hospital, the Metropolitan Correctional Center of Chicago. Dr. Shansky also has a master's degree in public health and teaches public health at the University of Illinois. Dr. Shansky visited Menard on three separate occasions, over four days, performed a detailed chart review of approximately 30 randomly-selected medical records, examined other medical records, and interviewed many Menard residents and staff.

3. Richard Della Penna, M.D., is a physician who previously was the medical director of a program operated by Montefiore Hospital which provided health care services to inmates confined in institutions of the New York City Department of Corrections. Dr. Della Penna has written in the area of correctional health care and served as Chairperson of the Task Force which developed Standards for Health Services in Correctional Institutions, an official report of the American Public Health Association. Dr. Della Penna visited Menard on two occasions, conferred with staff and residents, inspected the facility and reviewed medical records.

The plaintiffs' three experts were:

1. Whitney Addington, a physician certified in the area of internal medicine. He has written extensively in the area of pulmonary medicine with a particular emphasis on tuberculosis and asthma.

2. Frank Rundle, a certified psychiatrist, who has been repeatedly qualified as an expert in federal courts and is currently an advisor to Judge Robert Ward of the Southern District of New York. He examined medical and psychiatric files during a four day visit to Menard in April of 1977.

3. Theodore J. Gordon, the Chief of the Bureau of Occupational Health and Institutional Hygiene for the Environmental Health Administration. He is certified by the Department of Agriculture as a food inspector and by HEW as a health care facility surveyor. He examined Menard in a survey on August 26, 1977.

The defendants' expert witnesses were:

1. Jay K. Harness, M.D., a board-certified surgeon who is Director of the Office of Health Care for the Michigan Department of Corrections and a consultant on correctional health care.

2. Kenneth Babcock, M.D., a physician who was formerly the Director of the Joint Commission on Accreditation of Hospitals from 1954-1964, and now is a consultant on hospital-medical problems of correctional institutions. Dr. Babcock visited Menard in 1973, and again in January and October, 1977.

3. John Grenfell, Ed.D., a professor at the Rehabilitation Institute at Southern Illinois University at Carbondale and a consultant on correctional staff training and treatment. His deposition testimony was admitted into evidence.

4. Patricia A. Nolan, M.D., M.P.H., a physician and diplomat of public health. She was formerly a public health physician in the New York City Department of Public Health from 1974 to 1976, and presently is employed by the Illinois Department of Public Health in the Office of Health Facilities and Quality of Care. She visited Menard in April and August of 1977.

5. Dennis Jurczak, M.D., a psychiatrist who is the Assistant Director of the Office of Health Care in the Michigan Department of Corrections. He formerly was employed as a psychiatrist for the Bureau of Prisons, U.S. Naval hospitals and two state departments of corrections. He visited Menard on one occasion prior to testifying.

6. Norman Freeman, a doctoral candidate in environmental health at the University of Michigan. For the past four years, he has been employed as an environmental health sanitarian with the Illinois Department of Health. He has been an environmental health sanitarian for almost twenty years. Mr. Freeman inspected Menard during a four day study in January of 1977, and in a re-evaluation in August of 1977.

After the conclusion of the trial, the Court allowed plaintiffs to file a post-trial memorandum on November 1, 1978, containing proposed findings of fact and conclusions of law. The defendants also filed their own findings and conclusions in a memorandum filed on January 22, 1979. The plaintiffs were then granted leave to file a reply brief with supplemental findings of fact on July 9, 1979. Finally, on October 5, 1979, the Court heard final oral arguments summarizing these post-trial briefs. The Court has carefully considered all the voluminous exhibits, briefs, memoranda and evidence presented in reaching its decision. Before stating its findings of fact and conclusions of law, the Court will briefly discuss the current status of the law.

Initially, the Court must deal with the problem of the pendent state claim brought by plaintiffs. As previously noted, the Court's federal jurisdiction is based upon 28 U.S.C. § 1343(3), 1343(4) and 2201 et seq. The Court's pendent jurisdiction was raised by plaintiffs who claim defendants failed to follow the laws and regulations of the State of Illinois. Specifically, plaintiffs alleged that defendants have not complied with Ch. 38 § 1003-7-2(3), Ill.Rev.Stat. which provides:

  (c) All institutions and facilities of the Department
  shall provide every committed person with a wholesome
  and nutritional diet at regularly scheduled hours,
  drinking water, clothing adequate for the season,
  bedding, soap and towels and medical and dental care.
  (Emphasis added)
  In conjunction with this statute, the Illinois Department of
Corrections has promulgated Administrative Regulation 836 which
provides for medical services of a level and quality commensurate
with good medical practice. In Anderson v. Redman, 429 F. Supp. 1105
 (D.Del. 1977), the Court considered the issue of
overcrowding in a prison setting under both the Constitution and
the regulations promulgated by the Department of Corrections. In
its decision, the Court stated that to the extent the IRM (Inmate
Reference Manual) contains mandatory language, it has the same
effect as a statute. Anderson, supra at 1119. The state law
issue, therefore, is whether the medical services provided the
inmates at Menard are of a level and quality commensurate with
good medical practice.

As a general principle of constitutional law, a court should avoid a constitutional issue if the statutory claim is dispositive. See, e.g., Hagans v. Lavine, 415 U.S. 528, 543-48, 94 S.Ct. 1372, 1382-85, 39 L.Ed.2d 577 (1974). The Court in Anderson, supra at 1118 considered whether the resultant conditions violated state law and never found the need to address the constitutional issue. However, the constitutional decision avoidance issue is not iron clad. See, Hagans, supra at 546, 94 S.Ct. at 1383; Siler v. Louisville & Nashville Railroad Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909). Nevertheless, if a court departs from that principle, it must have important reasons.

The Court has determined that for the following reasons this Court may address the constitutional issues brought by plaintiffs, although the application of state regulation could dispose of this case:

a. Although individuals are nominally defendants in this case, the relief must necessarily come from state sources. A decision predicated solely on state law may give the state the impetus to change that law and thereby perhaps, circumvent the relief, particularly where that relief is prospective and will be awarded to an unfavored, disenfranchised class of persons.

b. The constitutional principles emerging from this class type of litigation are still developing. If the state should, in fact, change their laws, it will be left without guidance as to the minimally acceptable standards necessary to comply with the Constitution. In view of the lengthy litigation in this case and the important rights at stake, it would appear preferable to avoid another case based upon the same factual circumstances.

c. The real "pendent" claim in this case arises from an administrative regulation. In the Redman case, the regulations were promulgated as part of a settlement agreement in a prior class suit. Thus, the state could not repeal or change those regulations. In the present case, no such restrictions exist, nor is this Court persuaded that the defendants could not easily withdraw the present regulation.

Thus, the Court concludes that it may properly rule upon the constitutional issues present in this case, despite the presence of state claims.

Turning next to the subject matter, the Court notes that the plaintiffs are challenging the defendants' administration and servicing of the health care system at Menard. While federal courts have traditionally resisted attempts to become involved with the daily administrative problems in prisons, "a policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution." Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). The Court feels that a policy of deference to state and prison officials is not required under the circumstances, particularly as prison disciplinary or security procedures are not at issue. Todaro v. Ward, infra at 54, Newman v. Alabama, 503 F.2d 1320, 1329-30 (5th Cir. 1974). Therefore, despite the possible intrusion into prison policy, the Court may examine the constitutional issues presented in this case.

The Supreme Court, in 1976, dictated the test for determining the constitutionality of a prison's medical care and services. Under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed. 251, a standard of "deliberate indifference to a prisoner's serious illness or injury" has been used to determine if an unconstitutional denial of medical services exist within a prison. Several courts since Estelle have further elaborated on the meaning of "deliberate indifference." In Todaro v. Ward, 431 F. Supp. 1129, 1133 (S.D.N.Y. 1977), that court reviewed the various standards. The court concluded that "to prove an individual claim of unconstitutional denial of medical care it is necessary to show either denied or unreasonably delayed access to a physician for diagnosis or treatment of a discomfort-causing ailment, or failure to provide prescribed treatment." See, Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966); Bishop v. Stoneman, 508 F.2d 1224 (2d Cir. 1974); Fitzke v. Shappell, 468 F.2d 1072 (6th Cir. 1972).

In Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977), the Second Circuit further enumerated the proper procedure when the whole health care system is constitutionally challenged. That court noted that:

  while a single instance of medical care denied or
  delayed, viewed in isolation, may appear to be the
  product of mere negligence, repeated examples of such
  treatment bespeak a deliberate indifference by prison
  authorities to the agony engendered by haphazard and
  ill-conceived procedures. Indeed, it is well-settled
  in this circuit that "a series of incidents closely
  related in time . . . may disclose a pattern of
  conduct amounting to deliberate indifference to the
  medical needs of prisoners." Bishop v. Stoneman,
  508 F.2d 1224 (2d Cir. 1974). See Newman v. Alabama,
  503 F.2d 1320 (5th Cir. 1974), cert. denied,
  421 U.S. 948, 95 S.Ct. 1680, 44 L.Ed. 102 (1975). When
  systematic deficiencies in staffing, facilities or
  procedures make unnecessary suffering inevitable, a
  court will not hesitate to use its injunctive powers.
  See Bishop v. Stoneman, supra; Newman v. Alabama,
  supra, 503 F.2d at 1328-30. See also Cruz v. Ward,
  558 F.2d 658, 662 (2d Cir. 1977).

Using the above standard, this Court will now determine from the facts whether the medical practices and procedures at Menard were constitutionally infirm. Pursuant to Rule 52, the Court makes the following findings of fact and conclusions of law.

Findings of Fact


A. Living Units

1. Menard, built in 1878, is a maximum security facility and also serves as the Reception and Classification Center for felon sentences from Central and Southern Illinois. At the time of trial (and still present today) a maximum of 2,650 inmates resided at Menard. In order to accommodate these prisoners double celling occurred in the South and East Cellhouses, the Reception and Classification (R&C) Units and Galleries 5 and 7 of the Segregation Unit. This doubling of inmates in cells resulted in allowing only 18 to 32 square feet of space for each resident.

2. The East and South Cellhouses allow only 64 and 56 square feet, respectively for the two inmates doubled in each cell.

3. The Honor Farm dormitory is also overcrowded, providing only 35 square feet per inmate.

4. The cell space in the Reception and Classification Unit is inadequate to double cell new inmates.

5. These newly admitted inmates should be kept separated from the rest of the prison population until the initial medical screening procedures are completed. In light of the small space in each cell, this screening procedure should be completed within seven (7) days.

6. During a period from April 13, 1976 to June 11, 1977, the delay from admission to a physical examination ranged from 13 to 162 days. Many inmates had been transferred into the general population prior to their examinations. The defendants have failed to properly administer the screening process required in Reception and Classification, thus endangering the general population with the risk of disease.

7. The defendants have failed to provide the essential elements for basic personal hygiene to inmates in segregation. There was no hot water provided in the segregation cells until early 1977.

8. In addition, the number of shower heads are grossly inadequate. The inmates are allowed only one shower per week, which is not medically acceptable.

9. The shower rooms in segregation are improperly cleaned. Mildew and the risk of fungal infections are a result of this lack of cleanliness.

10. The general housekeeping level and sanitation conditions in segregation have always been extremely poor and remained inadequate at the time of trial. Open sewage, standing water, flies, roaches, dried food on galleries, adherent dirt and food residues and decaying garbage are all persistent problems found by defendants themselves, the Court's panel and Mr. Gordon on inspections of the unit. There is no credible evidence of any effective routine housekeeping or maintenance in segregation.

11. Photographs taken pursuant to Court orders in 1975 show numerous cells with toilets missing and uncapped waste lines. DPH found numerous uncapped waste lines still present in a January 1977 inspection.

12. The conditions in segregation pose a serious health problem. Standing water in the service tunnels creates a breeding place for bacteria and insects. The accumulated dust and dirt could cause an asthmatic to have significant bronchospasms.

13. Defendants' sanitation inspections and provision of some inadequate cleaning supplies to inmates have failed to eliminate the unsanitary conditions in segregation. An effective uniform maintenance program is needed.

14. The sanitation of mattresses, mattress covers, sheets and pillow cases in segregation has been continuously inadequate throughout the pendency of this suit. The mattresses are dirty, torn, badly stained. Linen is old and filthy and infrequently changed. The sanitation of beds and linen is grossly deficient and incompatible with the Department's own regulations. The unclean bedding creates an increased risk of infection for inmates in the segregation unit. Bacteria can grow in such bedding.

15. Severe crowding in the fifth and seventh galleries of voluntary segregation also results in inadequate space per inmate, and contributes to the increased chance of infection and disease.

16. The Department's own Bureau of Detention Standards found lighting inadequate as early as March 1976. Light-meter readings in segregation cells at the time of trial in August 1977, found only 5 foot-candles of light in the cells. This amount of light is grossly inadequate for even brief reading.

17. The ventilation system in the segregation unit at Menard cannot provide adequate ventilation to the unit.

18. Inmates in segregation are only outside their cells for a maximum of one shower and one hour of exercise per week. This is not a medically acceptable frequency or duration of showers or exercise; it promotes deterioration of inmates physically.

19. The State of Illinois recognizes the right of inmates to a daily exercise period of one hour by statute. The Department denies this right to all inmates in the segregation unit without rationale.

20. Defendants frequently deny even the weekly exercise period to segregation inmates and have deprived some inmates of recreation for months at a time.

21. A number of medical problems arise from the lack of exercise. Men who are kept sedentary tend to develop musculoskeletal pain and tension. Lack of exercise is definitely related to cardiovascular morbidity (heart attacks). Lack of exercise makes epileptics more prone to seizure and makes it impossible for diabetics to balance their caloric intake against physical activity. Inmates with all of these chronic health conditions have been confined in the segregation unit at Menard.

22. Defendants' failures to provide adequate outdoor exercise and frequent showers to segregation inmates is not based on any sound medical or penological rationale. The only reason showers and exercise are not provided more often is a shortage of staff in the unit.

23. There is a direct relationship between lack of exercise and increased demand for medical services. Lack of exercise also leads to increased stress and is inimical to an inmate's mental well-being.

24. The segregation examination room has standing water and is not presently equipped to be used for its stated purpose.

25. The control cells comprised the last five cells at the northern end of 2 gallery in the segregation unit. The individual cells are the same size as regular segregation cells. They were, however, cut-off from the rest of the gallery by a concrete block enclosure with a solid door which was normally kept locked. From the time of their inception until at least March 23, 1976, the only visibility into these cells was through plexiglass enclosures. These enclosures allowed for no ventilation into the control cell area, and very little light. Several fires were started in the control cells in March 1976, which melted the plastic. The medical technicians stated that this made visibility into the cells extremely limited.

26. Individuals with a chronic health problem, including epileptics, diabetics, asthmatics, hypertensives and cardiovascular problems, as well as psychiatrically disturbed inmates, were placed in control cells. The problems associated with placing such inmates in the abysmal conditions in these types of cells would not be cured by having a physician pre-screen their placement. The problem was lack of observability and access, for correctional officers only checked the cells infrequently. No correctional personnel were normally stationed on the back of 2 gallery. The medical technicians did not normally check the control cells on their sick call in segregation. Without observation, an inmate could become ill and die within minutes in these cells.

27. Inmates in the `box' were permitted only the barest of necessities; a mattress on the floor, a blanket and the clothes they were wearing. They were given no personal property, and even after hot water was provided to the rest of segregation, it was not provided in the control cells. This lack of an essential element of personal hygiene is another clear violation of DOC's own regulations. (A.R. 804, p. 6, par. 6) There was no evidence of any cleaning supplies or brooms with which inmates could clean their cells anywhere.

28. Although the defendants have discontinued use of the control cells, and have destroyed the concrete enclosure, the Court finds that the previous use of these units must be condemned. The placement of an inmate, particularly one who is emotionally disturbed or chronically ill, is particularly alarming as no physician even visited these cells, despite recommendations since 1973.

29. The Court further finds that while the defendants now assert that the issue of the control cells is moot due to the removal of the concrete wall surrounding these cells during the middle of trial, this Court received no credible assurances that the cells would not be returned to their former use after judgment is rendered.

B. Medical Unit

30. There are significant deficiencies in the environmental conditions within the building housing medical services at Menard. As early as February 1975, the housekeeping was noted as minimal and the unit needed a good going over with soap and water. The sanitation and housekeeping was still unacceptable in some areas of the building in August 1977. There is no separation of the clean and soiled linen which violates Hill-Burton standards for ambulatory care facilities, a problem noted by the Department of Public Health in their January 1977 sanitation inspection and by Mr. Gordon in August 1977.

31. The surgical suite at the institution is full of critical deficiencies from an environmental health standpoint. Instruments have been improperly sterilized, thus creating a risk of contamination. The suite was cluttered and had an accumulation of dust. There is no routine cleaning plan or written housekeeping procedure, although they should be a standard feature for a medical facility.

32. Two potentially dangerous defects in the surgical area are the operating room floor and the flammable gases stored just outside the room. The operating room with nonconductive flooring and tanks of flammable cyclopropane gas in the room and ...

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