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
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 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
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
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
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
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.
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.
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
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.
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
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
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.
ENVIRONMENTAL HEALTH CONDITIONS
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
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
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
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
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
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.
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.
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
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 ...