The opinion of the court was delivered by: Foreman, Chief Judge:
This case is before the Court on a Report and Recommendation of
Magistrate Kenneth J. Meyers that plaintiffs' "Motion for
Preliminary Relief Re Brutality" and "Motion for Preliminary
Relief Re Conditions" be denied. Plaintiffs have filed objections
to this recommendation and therefore, pursuant to
28 U.S.C. § 636(b)(1)(C), this Court will make a de novo review of those
portions of the recommendation to which objections were made.
On July 24, 1984, plaintiffs filed a complaint in which they
requested injunctive, monetary, and other relief for alleged
violations of their constitutional rights. This Court certified
the case as a class action pursuant to Rule 23 of the Federal
Rules of Civil Procedure on August 1, 1985.*fn1 The class was
defined as "all prisoners who are confined at Marion Penitentiary
or who may in the future be confined at Marion Penitentiary."
Defendants are present and past employees of the Federal Bureau
Plaintiffs complain of the use of excessive force, the
performance of rectal searches, the amount of time prisoners must
spend in their cells, the procedures by which prisoners are
placed at and transferred to Marion, and various other conditions
that have existed at Marion since the "lockdown" began in
November, 1983. They allege that the above practices and
conditions violate specified constitutional rights, primarily the
right to be free from cruel and unusual punishment, and the right
to due process of law.
Testimony on plaintiffs' request for preliminary injunctive
relief began in January, 1985 and continued for nearly
twenty-eight days. The Magistrate heard testimony from
approximately ninety witnesses and received into evidence
approximately 150 exhibits, which consisted of several thousand
pages of material. The Magistrate's Report and Recommendation
included, but was not limited to, a discussion of the following
issues: 1) Whether defendants engaged in a systematic pattern and
practice of physical brutality in violation of the eighth
amendment, 2) whether the policy with regard to rectal searches
violates the eighth amendment, 3) whether the procedures by which
prisoners are placed at and transferred to Marion violate the
amendment and the right to due process, 4) whether the amount of
time prisoners spend in their cells is constitutionally
permissible, 5) whether the use of physical restraints violates
the eighth amendment, 6) whether prisoners are denied access to
the courts and to legal materials, 7) whether prisoners are
denied the right to practice their religion, and 8) whether the
denial of contact visits violates the inmates' constitutional
rights. In a 166 page Recommendation, the Magistrate found that
the individual practices and conditions of which plaintiffs
complain did not violate any constitutional rights, and that the
conditions, even when considered together, were not violative of
the eighth amendment.
On October 10, 1985, this Court ordered that a transcript of
the proceedings be prepared and sent to the Court for its review.
Additionally, the Court held four days of hearings, from December
16, 1986 to December 19, 1986, in order to obtain an update on
the conditions at Marion and in order that it be informed of any
changes occurring at Marion since the hearings held before the
Magistrate. The parties agreed upon a consolidation of the
request for a preliminary injunction and the request for a
permanent injunction, and that the hearing in December, 1986
would be a final hearing on both requests.
Prior to the scheduled hearings in this case, the Court held
several pretrial conferences. At these conferences, the Court
told counsel for plaintiffs and defendants that it would make a
surprise visit to Marion. Counsel made no objections and in fact,
appeared to agree that such a visit was a good idea.
My law clerks and I made an unannounced visit and toured the
institution on December 11, 1986. We were accompanied by one of
the attorneys for plaintiffs and the attorney representing
defendants. The tour included a visit to the law library, dining
room, visiting rooms, the industry area where prisoners from
certain units are allowed to work, the prison chapels, and the
exercise and recreational areas. The Court also toured the
Control Unit, the disciplinary segregation unit, and part of the
general population units. While the Court did not actually tour B
Unit (more fully described below), the Court was able to observe
the movement and mingling of prisoners in that particular unit.
The tour not only provided an update on the conditions at Marion,
but more importantly, aided the Court in understanding the
testimony and the specific issues involved in this case.
In a section entitled "General Objections to the Report,"
plaintiffs make various generalized objections regarding the
Magistrate's ability to be fair and impartial. The Court
initially notes that Local Rule 32(b) requires specific
objections to a report and recommendation. Furthermore, other
courts have held that "a district court need not conduct a de
novo determination if objections are not timely or not specific."
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984) (emphasis added).
See also Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir.
1982). Therefore, this Court need not even consider the general
objections set forth by plaintiffs. However, in the interests of
justice and in order that its review of the proceedings be
complete, the Court has considered those general objections
raised by plaintiffs. The Court agrees that the Magistrate's
praise of certain government witnesses was perhaps unnecessary.
Also, the Magistrate's comments to plaintiffs' counsel, as well
as his comments regarding plaintiffs' witnesses and certain
testimony plaintiffs attempted to present, were at times
unnecessarily harsh. At the same time, the Magistrate was
obviously interested in moving the case along. In any event, the
Court finds, from an overall review of the proceedings, that the
Magistrate functioned as an impartial decision-maker, and that
plaintiffs were given a fair hearing.
7. The discussion of x-rays is spurious and ignores
the evidence. The proper inference to draw is that
plaintiffs want the relief requested, that potential
health hazards be considered, and that their
constitutional rights be respected.
9. In almost all of the remaining issues discussed
in the report, plaintiffs' challenges are misstated
and belittled. Plaintiffs challenge the failure to
provide adequate medical care when the omission
occurs, and produced ample evidence to support their
claim. Plaintiffs appreciate and applaud competent
medical care when it is provided. Plaintiffs do not
challenge the hobbycraft policies, package policies,
or toilet paper policies, except as they relate to
the totality of conditions and are vehicles for
harrassment by guards.
The psychological damage of brutality and the
conditions of confinement was the subject of much
testimony, both direct and expert. The evidence is
completely disregarded by the magistrate, although it
is a central issue in the litigation. The report
reduces the matter to a challenge to the
unavailability of psychiatric services. Not even
defendants claimed that psychological counseling is
available to prisoners. Even if counseling were
available, that in no way justifies the perpetration
of the serious harm which continues today as a result
of incarceration at Marion.
Inadequacy of the law library, access to
typewriters and copying, and difficulties associated
with legal visits, all are related to plaintiffs
[sic] rights of access to court. These issues arose
in testimony only incidentally, as elements to be
considered in the totality of conditions. The
testimony was restricted, and the magistrate has not
had the benefit of a full and complete presentation
of the evidence on which to base his conclusions.
Those specific objections that were raised, however, have been
carefully considered by this Court in reviewing the record of
proceedings and in reaching its decision.
Since plaintiffs appear to object to virtually the entire
Report and Recommendation, the Court has reviewed not only the
Magistrate's Recommendation, but over 4,000 pages of transcript,
as well as numerous exhibits. After thoroughly reviewing the
record in this case and after hearing four days of additional
testimony, the Court concludes that 1) the Magistrate's findings
are supported by the evidence in the record; and 2) the
Magistrate correctly determined that the conditions at Marion,
alone or in combination, do not violate the Constitution. The
Court will not repeat the legal analysis, with regard to each
specific issue, that is set forth in the Report and
Recommendation, but will discuss those issues that, for various
reasons, merit further attention.
CREDIBILITY DETERMINATIONS OF THE MAGISTRATE
Many of the Magistrate's findings, particularly with regard to
plaintiffs' allegations that beatings had occurred, were based on
his determination that certain prisoners were not credible
witnesses. In reviewing credibility determinations of the
Magistrate, the district court "is not required to hear any
witness and not required to hold a de novo hearing of the case."
U.S. v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412-13, 65
L.Ed.2d 424 (1980). As stated by the Seventh Circuit:
Raddatz made it clear that the district court, in
making its de novo determination of the record, could
afford the magistrate credibility findings "`such
weight as [their] merit commands and the sound
discretion of the judge warrants.'" Thus, on appeal,
the district court's decision to adopt the
magistrate's credibility rulings without hearing the
testimony can only be said to be [an] abuse of
discretion if the record reflects that those rulings
were themselves clearly erroneous and entitled to no
In the instant case, the Court had an opportunity to evaluate
the credibility of the witnesses when it reviewed the record. The
Court finds that the Magistrate's credibility determinations are
amply supported by the record, and those determinations are
therefore accepted by this Court.
BEATINGS AND THE USE OF PHYSICAL RESTRAINTS
The Magistrate made extensive findings with regard to the issue
of whether beatings occurred and with regard to the use of
physical restraints. The Court concludes that these findings are
supported by the evidence in the record.
With specific regard to the use of forced cell moves, the
evidence presented to this Court during the December, 1986
hearings further supports the conclusion that excessive force is
not used during these moves. The Court viewed a tape showing the
forced cell moves of several different prisoners and the method
by which some of the prisoners were restrained. Based on its
review of all of the evidence relating to these moves and to the
use of restraints, the Court can only conclude that the use of
force was justified in these situations and was clearly not
excessive. Although plaintiffs argue that defendants' use of
force and restraints violates the Code of Federal Regulations,
plaintiffs fail to recognize those Code provisions that give
prison officials a certain amount of discretion in determining
how much force to use and ...