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BONO v. SAXBE

January 16, 1981

VICTOR BONO ET AL., PLAINTIFFS,
v.
WILLIAM E. SAXBE ET AL., DEFENDANTS.



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

ORDER

  Before the Court is plaintiffs' Motion for Rule to Show Cause
why defendants should not be held in contempt for allegedly
violating this Court's order in Bono v. Saxbe, 450 F. Supp. 934
 (E.D.Ill. 1978) and 462 F. Supp. 146 (E.D.Ill. 1978). This
motion concerns defendants' use of a particular kind of cell in
the Control Unit (H-Unit) at the United States Penitentiary at
Marion, Illinois. H-Unit is divided into four ranges, labeled A,
B, C and D, each of which contains eighteen (18) single inmate
cells. As set forth in the order recorded at 450 F. Supp. 934, 937
(E.D.Ill. 1978), each cell has three walls and a steel bar front.
On A and D Range, and on ten cells of B Range, numbers 9 through
18, there exists a wall constructed of steel and plexiglass
approximately three feet beyond the steel bars. The side walls of
the cell come forward to meet this outer wall. On April 19, 1978,
when the original Bono order was handed down, the outer walls of
A and D Range cells contained one large plexiglass window in the
stationary portion of the wall, and a door containing two
plexiglass windows with a steel bar grill recessed three feet
from the outer wall. (See photo, Exhibit 5, appended.) The outer
walls of cells number 9 through 18 on B Range contained one small
plexiglass window and the steel door of the outer wall had two
small windows about eye level. (See photo, Exhibit 1, appended.)
These cells on B Range, numbers 9 through 18, were given the term
"boxcars" since, standing inside one when the outer door of which
had been closed, a person could liken the experience to standing
inside a closed freight car.*fn1

The Court, in its April 19, 1978 order, enjoined the "nonconsensual placement" of an inmate in a "boxcar" type cell. 450 F. Supp. at 948 (Number 5). In discussing the boxcar cells, this Court stated:

  The most odious characteristic, however, was the
  closed-front cell, the boxcar. An inmate would spend
  nearly every minute of every day in his cell, cut off
  from any contact with the outside world — even
  the limited "outside world" of the incarcerated
  felon. The inmate's existence was limited by the
  space of his cell and the approximately three feet
  beyond the cell bars, at which point the outer wall
  was erected. These walls contained but a small window
  in the door. Even though the inmate could express a
  preference as to whether the outer door would be open
  or closed, the correctional officer had the final say
  in the matter.
  The sensory deprivation occasioned by use of the
  boxcars, along with the lack of any idea about what
  could be done to be released from the control unit,
  resulted in both mental and physical deterioration.
  Simultaneously, unnecessary pain and suffering was
  the result. Finally, no justification for the use of
  the boxcars was even offered at trial.

450 F. Supp. at 946-47. In the order, the word "boxcar" was never specifically defined. Looking in retrospect, plaintiffs construed the word "boxcar" to mean every cell on A and D Range and cells 9 through 18 on B Range, that is, every cell with a steel and plexiglass outer wall and door. The defendants on the other hand read the opinion to enjoin only the use of cells on B Range, numbers 9 through 18.

For clarification of the intent of the Court's order of April 19, 1978, 450 F. Supp. 934, wherein at page 948 at paragraph 5, the Court ordered "the nonconsensual placement in a `boxcar' type cell is enjoined," the intended meaning of this was to apply to all closed front cells, whether on A, B or D Range.

In order to avoid further possible confusion and because of the modification of the cells on B Range to make them substantially similar to the cells on A and D Range, the Court will in the future refrain from the use of the term "boxcar" and instead use the term "closed front cell."

CONTEMPT AND CLOSED FRONT CELLS

The specific matter before this Court is the issue of whether defendants are in contempt for their alleged violation of this Court's order in Bono v. Saxbe, supra, in view of defendants' present use of closed front cells on B Range in cells number 9 through 18. In the interest of establishing a final and an authoritative rule of law on the constitutionality under the Eighth Amendment of defendants' use of the closed front cells on B Range, the Court will consider that issue in passing on the contempt issue.

Crucial to the contempt matter is defendants' logic in determining that their resumed nonconsensual use of the closed front cells number 9 through 18 on B Range complied with the order of this Court. In order to deal with the mandate of Bono, the Bureau of Prisons undertook a $4,800 reconstruction of the outer walls and doors of cells 9 through 18 on B Range. Their efforts resulted in two large windows in the door. (See photo, Exhibit 8, appended.)

Defendants then began to use these closed front cells on B Range again, but the use was limited to disciplinary segregation within H-Unit. As a rule, the outer door was to remain open, but could be closed in the H-Unit manager's discretion for "administrative" reasons. For example, the outer doors of all those cells on B Range would be closed when an inmate was moved on or off the range. In addition, the throwing of food, water or human waste out onto the range would occasion closing the outer door of the cells. The duration of the closing in this second situation lay within the H-Unit manager's discretion.

Defendants apparently reasoned that the increased light available by the enlargement of the plexiglass windows in the door of the closed front cells on B Range (See photo, Exhibit 8, appended), along with the new procedure whereby the outer door was closed only for administrative reasons, leapt all constitutional hurdles preventing non-consensual closure of the outer doors of those cells.

FINDINGS OF FACT

With the above arguments in mind, the Court makes the following findings of fact:

1. On the cells in A and D Range and cells 9 through 18 of B Range, there exists a door constructed of plexiglass and steel, which is placed three feet in front of the bars of the cell and which may be locked.

2. Sometime after this Court's order of April 1978, cells 9 through 18 on B Range underwent reconstruction costing approximately $4,800, the object of which was to make the windows of the doors of the B Range cells let in substantially as much light as the windows of A and D Range cells.

3. Cells of B Range, numbers 9 through 18, are currently used as disciplinary segregation for H-Unit inmates found guilty by The Institution Disciplinary Committee (IDC) of violating prison regulations.

4. Prior to a finding by the IDC, an inmate is given traditional procedural safeguards of an Incident Report outlining the charges, notice of the hearing, opportunity to have staff representation, opportunity to present witnesses and the opportunity to be present.

5. Only the IDC can place an inmate in cells 9 through 18 on B Range, and the IDC placement is for a fixed number of days.

6. While in H-Unit disciplinary segregation, the inmate is given first a 7-day and then successive 30-day reviews by the IDC to determine whether continued placement is necessary.

7. While in H-Unit disciplinary segregation, a limit is placed on the personal property an inmate may possess. The limits are identical to those placed on disciplinary segregation inmates in the general population at U.S.P. Marion. Inmates have no television or radios, but may possess their legal materials, as well as limited numbers of books, magazines and newspapers.

8. Inmates in H-Unit disciplinary segregation are allowed the same shower, recreation and telephone privileges as other H-Unit inmates. A physician's assistant, an educational counselor, food service personnel and other prison staff make daily visits to H-Unit disciplinary segregation.

9. Each of the ten (10) cells of B Range, cells 9 through 18, have self-contained ventilation systems which consist of intake and outtake air vents within the cell itself.

10. Inmate witnesses testified that when the outer door is closed, ventilation in the closed front cells is restricted.

11. The doors are made of steel and plexiglass constructed in front of the cells in H-Unit disciplinary segregation and are as a general rule, left open and unlocked giving an inmate control over it.

12. The crucial matter for decision is when can the doors be closed? Presently, there are two circumstances when the steel and plexiglass doors in front of the H-Unit disciplinary segregation cells 9 through 18 on B Range will be closed. The first is during periods of movement of inmates and staff on the range and then only for a matter of minutes. The second, and perhaps more critical, is when the Control Unit Manager exercises his discretion to close the outer door because the conduct of the inmate, in the manager's judgment, poses a threat to the security and safety of the inmates and staff.

13. Examples of situations of the second type are throwing of food, food trays, trash, feces, urine or personal property out of the cell and onto the range, or flooding of the cell and range.

15. Under present circumstances, a door may be locked anywhere from a matter of minutes to days. In at least one instance, the door was locked for thirty-five days. The discretion to reopen the door lies with the Control Unit Manager, after, in his opinion, the reason for locking the door in the first instance has been removed.

16. An administrative decision to lock the outside door does not affect the shower or recreation privileges of the inmate. If an inmate's behavior is so severe that even letting him out of his cell for recreation and showers poses a threat, the IDC can curtail these privileges. This, however, is not a decision which can be administratively made by the Control Unit Manager.

17. Water pressure and/or service to H-Unit disciplinary segregation cells may be and has been curtailed when an inmate engages in flooding of his cell or the range. In such situations, water is provided at meals for short periods of time and at other limited intervals. Water is restored when flooding ceases.

18. When the outer door is locked, there is a curtailment of the inmate's visual sense, but the curtailment is not as severe as before the B Range cell outer doors and walls were reconstructed. There is a severe curtailment of hearing and communication.

CONCLUSIONS OF LAW

Plaintiff's Petition for a Rule to Show Cause attacks primarily the resumed use of the H-Unit disciplinary segregation cells, that is, closed front cells number 9 through 18 on B Range, whereby the outer door can be closed by administrative order of the H-Unit Manager. For the reasons detailed below, defendants are not to be adjudged in contempt of this Court's order and the petition must fail. However, consistent with the original Bono v. Saxbe order, the parties will be required to submit proposals for operation of certain aspects of the use of the B Range cells in question which will be reviewed by this Court, subsequent to which the Court will issue a final ruling on the use of those cells in H-Unit.

A. DISCIPLINARY SEGREGATION

Insofar as cells 9 through 18 on B Range are used for purposes of disciplinary segregation, defendants are in compliance with both the Eighth and Fifth Amendments. Evidence showed that a need existed for disciplinary segregation in H-Unit because of a total lack of alternate sanctions for H-Unit inmates found guilty by the IDC of violating institution rules. In the general population of the prison, disciplinary segregation in I-Unit was available. In H-Unit, no such sanction was available. Thus, there is a rational basis for the use of the cells in question as a means to encourage compliance with institutional rules, in light of the fact that the requisite procedural safeguards are provided. See, Adams v. Carlson, 375 F. Supp. 375 (E.D.Ill. 1974). However, this holding is not intended to allow correction officials to reinstitute the conditions enjoined in Bono. While the defendants may use the cells for disciplinary segregation, their discretion to close the outer doors must be limited to certain circumstances, as explained below.

B. CLOSING THE OUTER DOOR

As previously stated, the crucial issue in this proceeding is whether defendants are in compliance with the Bono order at the times when the outer door is closed. Under the present practice at the prison, the outer door is closed when (a) a guard escorts an inmate on or off the range; and (b) when inmates throw things from their cells, such as personal property, food, garbage, urine or feces which pose a safety or health hazard to correction staff and other inmates. A closing of the outer door in these instances is characterized as administrative by defendants and is undertaken only for safety and security reasons.

First, the Court is of the opinion that the Eighth Amendment is not violated by defendants' closing of the outer doors of cells 9 through 18 on B Range, for the safety of staff and other inmates, when an inmate is taken on or off the range or when a staff member must come onto the range for some other legitimate purpose for a short period of time. An essential element of the prohibition of Bono lay in the fact that the outer door was kept closed as a general rule for long periods of time and that the inmate had no idea as to why he was placed there or how his release from the cell would be effected. In contrast, a closing of the outer door for a brief period cannot be expected to have the effects which the Court found abhorrent in Bono. The inmate understands the reasons for a brief closing of the outer door for movement of inmates and staff on the range and is aware that it will be reopened within minutes. Thus, the potential for detrimental psychological and physical harm from prolonged enclosure in the cell is eliminated. Moreover, a valid justification has been advanced — the safety of inmates and staff alike. Things thrown from the cells at persons passing by can obviously injure. Where the evil proscribed by Bono is eliminated so thoroughly, the prohibition of Bono necessarily is withdrawn.

Closing the outer door for purposes other than movement of inmates and staff presents different concerns. In this situation, the inmate can be placed in his closed front cell for an indefinite period within the discretion of the H-Unit manager until that manager decides the inmate is "ready" to have his door opened. Unless the unit manager's discretion is in some way limited, the evils enjoined by Bono could potentially reappear. Indeed, the H-Unit manager testified that on one occasion, an outer door was closed for several days. In that situation, the prolonged closure in the closed front cell could have serious negative physical and psychological side effects. A breakdown in communication between the inmate and H-Unit manager could leave the inmate helpless to have his door reopened. Moreover, the reconstruction of the cells to include more visual area does nothing to alleviate the harm occasioned by prolonged closure. Defendants put on no evidence that the new windows decreased in any way the potential for harm to the inmate found in Bono to accompany prolonged periods in the closed closed-front cell.

Nevertheless, the Court is well aware that the prison officials need some device to prevent certain flagrant violations of prison rules, such as the throwing of food, garbage and human waste out onto the range. Allowing such behavior to occur unchecked would pose health and safety hazards which are obvious to all.

A compromise which satisfies constitutional standards applicable is one in which (a) the discretion of the H-Unit Manager to close an outer door is limited by a written rule providing under what circumstances it will be closed; (b) informs the inmate of the reason for the closing of the outer door and under what conditions it shall be reopened; and (c) some form of review to assure the discretion of the Unit Manager is being properly exercised. Such review could be by a Control Unit Team or IDC or some other competent panel.

The Court is well aware that the informed discretion of prison officials is to be given considerable leeway. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, the real possibility of the potential recurrence of the harms enjoined by Bono necessitate further safeguards accompanying closure of the outer door of cells 9 through 18 on B Range.

Accordingly, the defendants are ordered, and the plaintiffs permitted, to submit a proposal governing the non-consensual closing of the outer doors of the closed front cells 9 through 18 on B Range in H-Unit. These proposals shall be submitted within thirty (30) days of the date of this order, and shall be consistent with the scope of this order.

In addition, plaintiffs' Motion for a Rule to Show Cause is hereby DENIED.

The record is devoid of any evidence demonstrating an intent to thwart the Court's order. Rather, considering what appeared to be a bona fide attempt at compliance on behalf of defendants, and the closeness of the question involved, it cannot be said that a citation should issue.

IT IS SO ORDERED.

ON MOTION FOR RECONSIDERATION

This matter is before the Court pursuant to the Court's order of January 16, 1981, and plaintiffs' Motion for Reconsideration and Memorandum in Opposition to Any Order Allowing for Resumption of the Use of Closed-Front Cells at the Marion Penitentiary, filed February 19, 1981.

In the order of January 16, 1981, the Court stated:

  [T]he defendants are ordered, and the plaintiffs
  permitted, to submit a proposal governing the
  non-consensual closing of the outer doors of the
  closed front cells 9 through 18 on B Range in H-Unit.

Defendants filed their proposals on February 12, 1981, and plaintiffs filed their Motion for Reconsideration, which apparently contains their proposals, on February 19, 1981. Defendants' proposal is as follows:

  The door of a closed front inmate's cell may be
  closed and secured as the result of conduct by the
  inmate confined therein which is disruptive and/or
  threatening to the secure and orderly operation of
  the Control Unit and the staff or inmates confined
  therein. Examples of such conduct which would warrant
  imposition of such control includes, but is not
  limited to: throwing or ejecting anything out of the
  cell; threatening or attempting to assault or
  assaulting another staff or inmate; making or
  creating loud noises; loud verbal language and
  expression that potentially disturbs another inmate
  or seeks to incite other inmates to become
  disruptive. The Control Unit Manager or in his
  absence, the Acting Control Unit Manager will have
  the authority to order the closing and securing of
  the door. Whenever it becomes necessary to secure an
  inmate's closed front door, Attachment 5 will be
  completed, stipulating the following: Why the action
  was taken; under what conditions the restriction will
  be rescinded; and thereafter forwarded to the
  designated Associate Warden for his review with
  copies subsequently distributed to the respective
  inmate, the reviewing Associate Warden, and a copy to
  the closed front status log.
  While in closed front status, an (in-person)
  informally daily review will be conducted by the
  Control Unit Manager (or in his absence, the Acting
  Control Unit Manager) by contacting the respective
  inmate, making a decision on the restriction and
  recording the action and reasons for the action
  relative to the restriction on the Record Form 24
  (Work Assignment Sheet) of the inmate's official
  file. In addition, if the inmate remains under this
  status for seven continuous days, a formal review
  will be conducted by the Control Unit Team with the
  respective inmate present, documenting the result of
  the review on the "Closed Front Status
  Placement/Review Sheet" (See Attachment 5). In
  addition to the ...

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