The opinion of the court was delivered by: Foreman, Chief Judge:
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
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.
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
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
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
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
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
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.
In addition, plaintiffs' Motion for a Rule to Show Cause is
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.
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 ...