The opinion of the court was delivered by: ELAINE E. BUCKLO
In Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977), the Supreme Court reiterated that prisoners "beyond doubt . . . have a constitutional right of access to the courts." Id. at 821. The Court in Bounds held that prisons must provide inmates with adequate law libraries or "adequate assistance from persons trained in the law" for this right to be meaningful. Id. at 828. This case presents the question of whether the Illinois Department of Corrections can satisfy its constitutional obligation to provide meaningful access to the courts to inmates in segregation in maximum security prisons who have no direct access to library books, and at least one third of whom are unable to read or comprehend legal materials, through what is essentially a runner system by which inmates are provided books and materials at their request.
Plaintiffs Terrell Walters and Joseph Ganci brought this class action against Illinois state officials alleging that inmates in segregation in Illinois maximum security correctional facilities are not allowed access to any prison library and that the inmate law clerk system employed in lieu of library access denies plaintiffs reasonable access to the courts in violation of their constitutional rights. Judge James Moran, to whom this case was assigned originally, certified a class consisting of all persons who are presently or will be in segregation in the maximum security facilities of the Illinois Department of Corrections. The case was later assigned to me.
The trial in this case involved many witnesses from all five Illinois maximum security institutions as well as other officials from the Illinois Department of Corrections, non-employees, including experts in various fields and former officials, and inmates. Each side introduced hundreds of exhibits. The transcript covers some 6,000 pages. Following trial, the parties prepared proposed findings as well as supplemental briefs on various issues. There have been numerous supplemental hearings with regard to the evidence. The parties have also submitted additional evidence in response to questions raised during the trial and hearings, and during my consideration of the evidence.
This opinion constitutes my findings of fact and conclusions of law.*For the most part, the evidence as to each institution will be considered separately. While the institutions have in common the fact that, as plaintiffs allege, no prisoner in segregation is allowed direct access to any library, there are numerous differences with respect to the substitute system in effect at each institution. Although each utilizes inmate law clerks to help prisoners, there are major differences in terms of the number of inmate law clerks assigned to help inmates in segregation and the type of help they provide.
1. The class certified by Judge Moran in 1985 consisted of all persons who are presently or will be in segregation in the maximum security facilities of the Illinois Department of Corrections. Persons in segregation status include not only inmates sentenced or "assigned" to terms in segregation and who are in the segregation units of the various prison facilities, but also persons detained in segregation during an "investigation" into whether they have violated rules of the Department of Corrections and persons in segregation status who are physically confined in cells outside the segregation unit because of overcrowding.
2. After this case was reassigned to me, defendants sought modification of the class, arguing that prisoners with short stays in segregation would at most suffer a de minimis denial of their right of access to the courts. I agreed with defendants that a de minimis denial of access to the courts had not been accorded constitutional protection under prevailing authority
and proposed a tentative modification of the class to exclude such inmates, inviting responses from the parties. Plaintiffs responded, noting various problems with the proposed modification. I have concluded that modification would be practically impossible to manage. The evidence has shown that defendants' calculations of the time an inmate spends in segregation are not reliable. Furthermore, an attempt to limit the class to persons who were in, or expected to be in, segregation status for a specific period of time -- for instance, 90 days -- would require that prison personnel continually monitor such sentences for this specific purpose. Finally, as discussed below, the evidence indicates that, at least in the men's prisons, 85 percent of inmates placed in segregation remain there for 90 days or longer. Thus, the class will remain as it was originally certified by Judge Moran.
3. The male members of the class in this case are imprisoned at the Joliet Correctional Center, located in Joliet, Illinois; Stateville Correctional Center, also located in Joliet, Illinois;
Pontiac Correctional Center, located in Pontiac, Illinois; and Menard Correctional Center, located in Chester, Illinois.
4. Each of these four institutions is classified as a maximum security prison, meaning that the inmates confined at these institutions are generally those who have been convicted of more serious offenses
or have committed serious rule infractions since being confined.
5. The female members of the class are imprisoned at the Dwight Correctional Center, located in Dwight, Illinois. At the time this class was certified on August 8, 1985, Dwight contained minimum, medium, as well as maximum security units.
7. For purposes of injunctive and declaratory relief, the defendants are all sued in their official capacities. Plaintiffs' claims are therefore treated as claims against the State of Illinois. For simplicity, defendants will sometimes be referred to jointly as the "DOC."
8. Richard Gramley, the Warden at Pontiac Correctional Center, testified that 80 percent of the inmates in Pontiac were gang-affiliated. Salvador Godinez, the Warden at Stateville Correctional Center, estimated that 95 percent of the inmates at Stateville were gang-affiliated. Gang members are allowed to hold jobs and a substantial portion of the inmates in segregation are gang members. Warden Gramley testified that he would not be surprised if inmates assigned to the law library were gang members and that there are no screening procedures in place to determine whether inmate law clerks are in fact gang-affiliated. Despite these facts, the evidence did not show that gang affiliation plays a part in the decisions of inmate law clerks to provide materials or assistance to an inmate. There was also no evidence to the contrary. There was evidence that at least one of the named plaintiffs is gang-affiliated, and it may be assumed that most of the inmates who testified have some gang affiliation in light of the substantial percentages of inmate gang affiliations noted by the wardens in this case. The problem of gang affiliation is relevant to the need for supervision of inmate law clerks and the need for procedures to ensure that any inmate requesting assistance has access to lay personnel as well as inmates.
Confinement of Inmates To Segregation
9. Segregation is a "jail within a jail." Inmates are confined to segregation when they violate DOC disciplinary rules, which may range from infractions such as insolence to a correctional officer to serious violent offenses such as physical attacks on guards or other inmates. The purpose of segregation is threefold: to separate the inmates, to punish the inmates, and to deter other inmates.
10. An inmate charged with violating a disciplinary rule is served with a Disciplinary Report, which states the alleged violation. The charge is then heard by the Institutional Adjustment Committee, the members of which are DOC employees. The Committee recommends a punishment, which may include demotion in grade (i.e., deprivation of certain privileges such as commissary, use of the telephone, etc.), loss of "good-time" (which has the effect of lengthening an inmate's period of incarceration), and confinement to segregation for a maximum period of one year. The Adjustment Committee's recommendations as to punishment are subject to approval by the warden of the institution in which the inmate is confined, and can be appealed through an administrative appeal process and ultimately to court.
11. Inmates may be confined to segregation in other circumstances as well. For example, inmates charged with an offense are typically placed in segregation immediately. The Adjustment Committee hearing is held and determination of innocence or guilt is made later. Inmates who have not been charged with any rule violation may also be confined to segregation while an investigation of an incident is pending.
12. Although an inmate may be sentenced to a maximum of one year in segregation for one incident, the inmate may be sentenced to time exceeding one year for separate incidents that occur either before the inmate is placed in segregation or for misconduct taking place while the inmate is in segregation.
13. In an attempt to determine the average length of time an inmate spends in segregation, the parties agreed that defendants would make a random sample of 132 men. Analysis of the sample showed that when separate but continuous segregation assignments were added, 43 of the 132 men, or 32 percent, had served a continuous stretch of at least one year in segregation; 105, or 80 percent, had served more than six consecutive months in segregation; 112, or 85 percent, had served more than 90 days in segregation; and 119, or 90 percent, of the men had served a continuous sentence of at least 60 days in segregation.
14. The uncontradicted testimony at trial, supported by defendants' own exhibits, demonstrates that lengthy stays exceeding one year in segregation are not uncommon.
15. Defendants' Exhibit 153 contains a summary of the Disciplinary Reports received by the named plaintiff, Mr. Walters, between November 9, 1976 and October 23, 1989. During this 13-year period, Mr. Walters appears to have been confined to segregation the entire time, being sentenced to a total of over 80 years of consecutive segregation confinement. However, the maximum sentence on any single Disciplinary Report is one year, and the majority of Mr. Walters' sentences are from 15 to 90 days in length. Therefore, on defendants' report, this 80-year term would be listed as a series of different sentences averaging approximately six months in length.
16. Mr. Spurlock testified that he was placed in West Segregation at Joliet in December, 1989. Three months later, in March, 1990, he was placed in North Segregation at Joliet, where he remained until he was released from segregation in early September, 1990. In late September, 1990, he was returned to North Segregation at Joliet, where he remained until he was transferred to the segregation unit at Pontiac on January 9, 1991. Mr. Spurlock remained in segregation at Pontiac through the time he testified, approximately one year later. Therefore, in the three-year period between December, 1989 and January, 1992, when he testified, Mr. Spurlock was confined to segregation for all but a few weeks in September, 1990.
17. These individual examples of lengthy segregation sentences are confirmed by the testimony of defendants' witnesses. For example, Ms. Wagh, the librarian at Joliet Correctional Center, testified that there was a low turnover of inmates in the West Segregation Unit at Joliet. Assistant Warden Fleming testified that more than half of the inmates in the segregation unit at Stateville had been confined to segregation for more than 90 days.
Representation by Counsel
18. Defendants do not provide inmates in segregation with attorneys to assist them in presenting claims to the courts.
19. While certain private groups occasionally represent inmates, including the American Civil Liberties Union, the Legal Assistance Foundation of Chicago and Chicago Legal Aid to Incarcerated Mothers ("CLAIM"), none of these groups, with the exception of CLAIM (discussed in the section on Dwight Correctional Center), sends lawyers on a regular basis to any of the five institutions at issue in this case to render legal services either to the general population or to inmates confined to segregation. Each group takes only a few select cases of systemic impact. For example, the paralegal at Dwight testified that, although the library refers inmates to outside lawyers for assistance, she was not aware of any inmate who had actually received assistance from any of these groups.
20. While a number of defendants' witnesses emphasized that inmates in segregation were permitted (at least occasionally) to use the telephone
or the mails to contact private attorneys in order to gain assistance in presenting their claims to the courts, defendants did not present any evidence indicating that the typical inmate in segregation has the resources required to hire a private attorney, nor is there any evidence in the record suggesting that the private bar has made any commitment to provide inmates in segregation with pro bono assistance.
21. Federal cases filed by members of the plaintiff class are assigned to the U.S. district courts for the Northern, Central, and Southern Districts of Illinois. The Northern District has established procedures for screening inmate claims and, in appropriate cases, appointing attorneys to represent inmates who have filed claims pro se. The evidence establishes that the appointment procedure is of limited use to many inmates in segregation seeking to present a claim. First, a court can appoint an attorney, by definition, only if an inmate has sufficient skills and knowledge to file an action in the federal courts in the first instance. An inmate who lacks the skills or knowledge to formulate a legal claim in the first instance will never be able to file a claim in court and thus will have no opportunity to obtain a court-appointed lawyer. Second, Dale Hayes, the coordinator for prison litigation in the United States District Court in Chicago, testified that most judges appoint an attorney to represent an inmate only after the court makes an initial determination that the prisoner's claim has substantial merit. In practice, that means that the inmate's claim must survive a motion to dismiss and, in some cases, a motion for summary judgment before counsel will be appointed. Mr. Hayes testified that attorneys are appointed for only five percent of all cases filed by inmates.
22. Terrence Madsen, an Assistant Attorney General who testified for defendants, stated that counsel is appointed for inmates who file post-conviction petitions in state court only after the petition survives the State's motion to dismiss. Mr. Madsen further testified that the most common failing of inmates was not setting forth the facts with sufficient specificity and not attaching an affidavit, as required by statute.
Responsibility for Library Services
23. At the time this case was filed, defendants had entered into an agreement with the Secretary of State's office (who also holds the position of State Librarian) to operate the libraries in each of the five institutions at issue in this case. The Secretary of State, in turn, had contracted with regional library systems to provide the services.
24. In 1984, the Department of Corrections assumed partial responsibility for operation of law libraries at each of these prisons. Whereas previously the inmate clerks were employed and supervised by the independent library systems, beginning in 1984 the clerks were paid and supervised directly by DOC personnel.
25. In July, 1989, the defendants terminated all involvement by the independent library systems in the operation of the prison libraries. At that time, the defendants assumed direct economic and supervisory responsibility for all library staff (including both inmate clerks and civilian employees) and for all supplies, purchases, etc. The DOC's direct responsibility for the law libraries continues to the present.
26. According to a report from the Illinois Criminal Justice Information Authority, 72.3 percent of male Illinois DOC inmates have not graduated from high school. TRENDS AND ISSUES 91 at 88.
27. Alice Jones, a policy analyst at the Illinois Criminal Justice Information Authority, a state agency, testified regarding the literacy levels of inmates in the Illinois DOC. She stated that, in 1990, the DOC gave 13,803 inmates the Test of Adult Basic Education ("TABE"), which measures basic reading and math skills.
Approximately 4,000 inmates (29%) scored below the sixth grade level.
The average score of DOC inmates for which test scores were available at the time of trial was eighth grade, one month.
28. Inmates who score below the sixth grade level on the TABE are encouraged to participate in a 90-day basic literacy program that emphasizes reading and mathematics.
Of the inmates who retook the test after 45 days of instruction, 54.7 percent scored at the sixth grade level or above. 32 percent of those who retook the exam after 90 days of instruction scored at the sixth grade level or higher.
Not all inmates retake the test. 1,228 inmates retook the test during 1990. Of these, fewer than half scored at or above the sixth grade level. PX 126, supra, TRENDS AND ISSUES 91, p. 110.
29. Dr. Joanne Carlisle, a professor in the Department of Communications Sciences and Disorders at Northwestern University, testified as a literacy expert. Professor Carlisle graduated from Vassar College with a degree in English. She has a master's degree in educational psychology with a specialization in special education and learning disabilities, and a Ph.D. in learning disabilities from the University of Connecticut.
30. Dr. Carlisle testified that it was unlikely that a person who tested below the sixth grade in reading ability would undergo a significant overall change in reading ability in a 90-day reading course. The report of the Illinois Criminal Justice Information Authority, PX 126, TRENDS AND ISSUES 91, supports this opinion. That report noted that more inmates retaking the TABE after 45 days received scores of sixth grade or higher than those taking the test after 90 days and concluded that the first group might have come close to passing the first time, whereas inmates remaining in the program for the full 90 days might have had more serious deficiencies. Id. at 110.
31. Dr. Carlisle testified that a person's reading ability is measured by the level of difficulty of text that he can read. The difficulty of a passage is a function of several variables. Among those variables is the vocabulary used, the grammatical structure of the passage and the knowledge base required to understand the passage. Dr. Carlisle testified that, in order to advance beyond a functional literacy stage, a reader must have acquired critical reading skills, such as the ability to evaluate text, interpret text, make inferences on the basis of statement in text, and draw conclusions from information in text. These critical reading skills generally begin to appear as individuals develop high school level reading skills.
32. Dr. Carlisle testified that there are various, well-accepted formulas that are accurate for establishing the readability of text. The readability, or difficulty, of text is identified by assigning it a grade level. For example, text that has a third grade difficulty is text that an average third grader could understand.
34. Dr. Carlisle used the Fry, Dale-Chall and Raygor formulas to perform a readability analysis on several items of legal material that inmates would typically use in attempting to access the courts: the section of the Illinois statutes that relates to post-conviction remedies; Rule 8 of the FEDERAL RULES OF CIVIL PROCEDURE; excerpts from Bounds v. Smith, supra; Duckworth v. Franzen, 780 F.2d 645 (7th Cir. 1985); and the PRISONER'S SELF-HELP LITIGATION MANUAL. All of the passages analyzed required at least an eleventh grade reading ability and some of the tested passages required a college graduate reading ability. For example, the headnote summary of Duckworth v. Franzen required graduate level reading ability. The fact section of that case required an eleventh grade level. The Illinois statute dealing with post-conviction hearings tested at college or post-college graduate level.
35. Dr. Carlisle testified that a person with an eighth grade reading ability and a high degree of motivation might be able to understand the tested materials better than she would normally predict. However, she thought that a person with a sixth grade reading level would be unable to comprehend the materials tested regardless of their level of motivation.
She also testified that a person at an eighth grade level of reading ability might think that he understands materials when he does not, or might comprehend only part of material intended for persons at a higher literacy level. In general, it is only at higher literacy levels -- at the high school level and beyond -- that people develop critical reading skills, that is, the ability to evaluate and interpret text, and to make inferences and draw conclusions on the basis of statements and information in text.
36. The testimony of several individuals confirmed that literacy levels are a problem in the institutions involved in this case. A paralegal at Dwight, for example, testified that some inmates were unable to understand mailing instructions. An inmate law clerk at Dwight, a defense witness, testified that inmates often did not understand the step-by-step "fill in the blank" instructions and form used to file a Section 1983 action in federal court. She also testified that some of the inmates did not even have the capacity to understand a form requesting appointment of counsel.
37. Dr. Carlisle's analysis is consistent with the testimony of many of the inmates who were confined to segregation. Those inmates testified that, when they were given cases by inmate clerks, they could read the words, but they were unable to determine how these cases applied to their situations or how they could be used to present a claim to the courts.
38. Finally, virtually every inmate clerk who testified at trial stated that inmates in segregation regularly requested their assistance for such easy tasks as filing a grievance or completing some of the simpler forms available in the library. Many of the clerks testified that some of the inmates in segregation could not even fill out the straightforward request forms (e.g., DX 37) to request supplies or copies and that the inmate clerks had to complete these forms for them.
40. In the months immediately preceding commencement of the first trial of this case, defendants contacted Dr. Thomas Eimermann, who had founded the Paralegal Training Program at Illinois State University. Defendants contracted with Dr. Eimermann to prepare a curriculum which would be used in the maximum security institutions to train inmates to become inmate clerks. Dr. Eimermann prepared a curriculum consisting of 48 sessions covering a wide variety of topics ranging from the basics of legal research to constitutional law, prisoners' rights, torts, and other topics.
41. Defendants subsequently hired and placed paralegals at each of the institutions involved in this case and had them teach Dr. Eimermann's course to inmate law clerks.
42. Many of the inmates who graduated from Dr. Eimermann's course did not work as clerks. In some instances, inmates took the course without any intention of working as a clerk but were concerned solely with obtaining assistance for their own personal cases. Thea Chesley, the Department of Corrections official who had overall responsibility for the law libraries, also advised Dr. Eimermann that an inmate clerk's pay was too low in comparison with other jobs available to inmates and that many inmates therefore chose other jobs, even after completing the course. In other cases, inmates were transferred to another institution before they were able to begin work (or, in some cases, before finishing the course).
43. Dr. Eimermann's consulting contract with the DOC terminated in July, 1989. At about that time, the DOC transferred responsibility for the ongoing training of inmate clerks from DOC personnel to local junior colleges.
44. Although the evidence was inconclusive, it appears that the junior college teachers were sometimes provided with a copy of the Eimermann curriculum but followed only part of his outline. The course omitted, at least sometimes, segments specifically targeted at inmates' rights and the administrative and due process procedures available to inmates to challenge disciplinary proceedings and other violations of their rights.
45. Defendants did not call as witnesses any teachers or inmates who either were currently enrolled in or had completed the course. The only instructor in the college courses to testify, James Barford, testified that inmates, after completing the course, could not reasonably advise inmates in segregation of their legal options.
46. Defendants have not provided any ongoing training for inmate clerks. As discussed below, defendants have not required law clerks to take or pass any course before undertaking the duties of a law clerk.
Changes Made During Trial
47. During or immediately before trial, defendants instituted numerous changes, in particular, hiring numerous additional law clerks. The changes made by defendants under these circumstances can be given little weight, especially in light of the fact that this case had been pending for several years before trial and the fact that Bounds had explicitly required defendants to provide assistance in lieu of direct access to a law library more than one decade earlier. It seems clear that many changes were made by defendants solely to improve the trial record. Having heard the evidence, I find that there is no reason to believe that any improvement made by defendants under these circumstances will not be changed back after this case is closed. See, e.g., Gluth v. Kangas, 951 F.2d 1504, 1507 (9th Cir. 1991). It "cannot be said 'with assurance' that there is no 'reasonable expectation' that the alleged violations will recur." Id. (quoting from Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir. 1985)).
48. My conclusions with respect to plaintiffs' access to the courts at each of these institutions are based in part on my judgments of the credibility of various witnesses. There were too many witnesses over the course of the long trial in this case for me to comment on the credibility of each witness. I have, however, considered the credibility of every witness in reaching my conclusions.
Joliet Correctional Center
49. There are 1350 inmates at Joliet Correctional Center ("Joliet"). Approximately 90 to 100 of these inmates are housed in two segregation units. The North segregation unit is located in a free-standing building. The building has two floors, each of which contains ten cells. Some of the inmates are double-celled; accordingly, the unit holds between 20 and 30 inmates.
50. The doors on segregation cells in the North unit are made of solid steel. Near the top of the doors is a six-inch viewing panel. Within the viewing panel is a mesh voice panel through which the inmate can communicate with someone outside the cell. In the middle of the door is a 14" by 8" hinged opening referred to as a chuckhole, which is kept locked. Legal materials, food and other items can be passed through the chuckhole when a lieutenant is present to unlock it. There is a ventilation panel near the bottom of the door. When a lieutenant is not present, the law clerks pass legal materials into the cell through the one-inch gap at the bottom of the door, if the materials are small enough.
51. The West segregation unit is housed in the West cellhouse. There are 40 double cells in the unit, two of which are used for showers and one of which is used for medical examinations. The cell doors in West segregation are made of steel bars and it is possible to pass items back and forth between the bars. There are approximately 60 to 70 inmates housed in the West segregation unit.
52. The segregation inmates are not allowed to participate in educational courses, to go to the library, or to check out law books from the law library.
They eat and shower on the unit. When a segregation inmate is transported from the segregation unit to the health care unit or the visiting room, he is shackled and wears a waist belt that allows the escorting correctional officer to control his movements. Segregation prisoners are always escorted on and off the unit by security officers one-on-one.
53. To transport a segregation inmate to the library, a security officer would have to restrain the inmate as described above and bring him to the library. The library is not designed to confine and restrict movement as is the segregation unit. There is one study cell in the library that is not used.
54. From July 13, 1991 through August 11, 1991, Joliet was on lockdown and no inmate law clerks went to the segregation unit.
55. The law library subscribes to all of the essential state and federal statutes and case reporters. It contains digests, form books, legal treatises, and legal encyclopedias and dictionaries. Missing volumes, however, are replaced only once a year. Chapter 38 of the Illinois Statutes, which contains the Criminal Code, and the volume containing 42 U.S.C. § 1983 are lost or stolen every year. Copies of material from missing volumes can be obtained by an interlibrary loan from the DOC's School District Library Services. It takes approximately ten days from the time the Joliet librarian makes a request to obtain the materials.
57. The library makes available an "appeal package" that contains a notice of appeal, an affidavit of service, a certificate of service and mailing, a motion for appointment of counsel, and a motion to proceed in forma pauperis.
58. The library also keeps a list of all of the titles maintained in the legal collection. However, there was no testimony that this list is distributed to segregation inmates by request or as a matter of course.
59. Suluha Swati Wagh was the librarian at Joliet from May 8, 1988 until early 1992.
Ms. Wagh graduated from the University of Alabama in 1988 with a master's degree in library science. Her only legal training consists of a course in government documents and two legal training seminars offered by the DOC.
60. Ms. Wagh had supervisory authority over the entire library, including the law clerks. When there was no paralegal, Ms. Wagh checked the law clerks' work to ensure that ...