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BRUSCINO v. CARLSON

February 25, 1987

RONNIE BRUSCINO, ET AL., PLAINTIFFS,
v.
NORMAN CARLSON, ET AL., DEFENDANTS.



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

  MEMORANDUM AND ORDER

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.

BACKGROUND

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 of Prisons.

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 eighth 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.

OBJECTIONS

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.

Plaintiffs have also set forth twenty-four pages of "specific objections." Some of these objections are, however, framed in general, vague and broad terms, and are therefore difficult, if not impossible, to consider and review in any meaningful way. For example, in objections No. 7 and No. 9, plaintiffs state as follows:

    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
  weight.

U.S. v. Hardin, 710 F.2d 1231, 1235 (7th Cir. 1983), cert. den. 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983). See also McChristion v. Duckworth, 610 F. Supp. 791, 797 (N.D.Ind. 1985).

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 ...


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