UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED
MAR 1 3 1997

WILLIAM R. CODY, individually and on ) behalf of all other persons similarly situated,
Plaintiff,
vs.
CAROLE HILLARD, President of the Board of Charities and Corrections; FRANK BROST, Vice President; TED SPAULDING, Member; D.A. GELLHOFF, Member; LYLE SWENSON, Member; JAMES SMITH, Executive Secretary; HERMAN SOLEM, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities,
Defendants.

CIV. 80-4039
ORDER TO DISSOLVE CONSENT DECREE

Defendants moved the Court pursuant to Federal Rule of Civil Procedure 60(b) for an

order to dissolve the consent decree entered in this matter on July 8, 1985, and the supplemental orders thereafter issued by the Court at various times and dates. Following receipt of the motion, all parties were provided with notice and an opportunity to respond.

They have done so and the final submission was made by plaintiff on March 5,1997. The Court having considered the motion herein filed does determine that the consent

decree has served its purposes and is no longer needed in order to serve the public interest.

Cody v. Hillard

PC-SD-001-016

Throughout the period of the consent decree, lasting as it has for over ten years, the defendants have conscientiously and in good faith complied substantially with its terms. Notwithstanding defendants' compliance, plaintiff invites the Court to continue its jurisdiction. However, in the absence of ongoing substantial violations, the Court declines the invitation. Board of Educ. of Oklahoma Citv Public Schools v Powell. 498 U.S. 237, 111 S. Ct. 630, 112 L. Ed. 2d 715 (1991). The Court sees no need for a further evidentiary hearing. It is
ORDERED that the consent decree dated July 8,1985, and all supplemental orders are hereby vacated.
IT IS FURTHER ORDERED that the Court shall terminate its continuing jurisdiction retained by its judgment of July 18,1985, terminating the Court's supervision of the consent decree heretofore in effect.
Dated this 13th day of March, 1997. BY THE COURT:
RICHARD H. BATTEY CHIEF JUDGE
NOT.CE O" £NVRY The original of this document was entered en fha docket of the Cia^k of the United Sraies District Court for the Disirici of South Dakota
on J - I
CLERK

 </s> 88 F.Supp.2d 1049 (2000)
William R. CODY, individually and on behalf of all other persons similarly situated, Plaintiff, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gellhoff, Member; Lyle Swenson, Member; James
Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants.
No. Civ. 80-4039.
United States District Court, D. South Dakota, Southern Division.
February 17, 2000.
1050 *1050 Douglas P. Cummings, Jr., East River Legal Services, Sioux Falls, SD, Elizabeth Alexander, Donna Lee, National Prison Project of ACLUF, Inc., Washington, DC, Thomas W. Clayton, Sioux Falls, SD, for plaintiff.
James E. Moore, Woods, Fuller, Shultz & Smith, Sioux Falls, SD, for defendant.
MEMORANDUM OPINION AND ORDER
PIERSOL, Chief Judge.
The parties have asked the Court to give its final approval to the Settlement Agreement filed in this case as fair, reasonable, and adequate, and to enter a Final Judgment and Order approving the class settlement and dismissing the class action without prejudice. For the reasons stated below, the Court approves the Settlement Agreement pursuant to Federal Rule of Civil Procedure 23(e).
Plaintiff filed this lawsuit under 42 U.S.C. § 1983 challenging the constitutionality of numerous conditions of confinement in the South Dakota State Penitentiary (hereafter "SDSP"). The case was certified as a class action pursuant to a stipulation of the parties dated August 23, 1982. On May 31, 1984, the District Court, the Honorable 1051 Donald J. Porter, held that various conditions of confinement in the SDSP violated the Eighth and Fourteenth *1051 Amendments to the Constitution. Cody v. Hillard, 599 F.Supp. 1025, 1062 (D.S.D.1984), aff'd in part and rev'd in part, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). On May 29, 1985, the parties agreed to the Court's proposed final order and a partial Consent Decree was entered by Final Order on July 5, 1985. Defendants agreed to make several changes to the conditions in the SDSP, including fire safety, housing, kitchen and food storage, shops and vocational programs, medical and dental care, psychiatric and psychological care, and legal access.
In order to monitor the progress of improvements at the SDSP, the Consent Decree required defendants to submit formal progress reports to the court. In July 1987, the District Court held an evidentiary hearing on defendants' compliance with the Consent Decree. Following the hearing, the Court found that defendants were not in compliance with various health and safety requirements, and therefore appointed a health and safety panel and extended monitoring requirements. In its Order dated November 4, 1987, the Court recognized "the earnest steps taken by the Defendants in addressing the issues raised in this action." Subsequently, plaintiff's environmental expert, Robert W. Powitz, PhD., prepared a progress report dated December 16, 1987, which stated, in part, "Over all, health and safety conditions have improved significantly over the last inspection."
On April 2, 1992, plaintiffs filed a motion seeking further enforcement of the Consent Decree. After an evidentiary hearing in May 1992, the Court found that defendants were not in compliance with certain environmental condition requirements, but noted in an Order dated November 25, 1992, the "great strides made in the past." Subsequently, Dr. Powitz conducted an evaluation to determine defendants' compliance with the Court Order. His

report dated April 29, 1993 revealed that defendants had complied with most of the directives in the Court's November 25, 1992 Order, although Dr. Powitz believed a few deficiencies still existed.
There was no further activity in this case until April 16, 1996 when defendants filed a motion to dissolve the Consent Decree and the supplemental enforcement Orders. Plaintiffs opposed this motion and plaintiffs' experts, Dr. Powitz and Armond Start, M.D., conducted inspections of the SDSP in September and October, 1996. Plaintiffs requested an evidentiary hearing on the compliance issues but the District Court, the Honorable Richard H. Battey, declined to hold an evidentiary hearing. On March 13, 1997, Judge Battey issued an Order dissolving the Consent Decree. Plaintiffs appealed. On March 27, 1998, the Eighth Circuit issued an Order of limited remand, retaining jurisdiction and returning the case to Judge Battey to "apply the factors recited in McDonald and to enter findings of fact and conclusions of law that will enable us to review its decision."
On May 7, 1998, Judge Battey reassigned the case to this Court. After receipt and review of the parties' proposed findings of fact and conclusions of law and after studying the voluminous file, this Court scheduled an evidentiary hearing for March 30, 1999, to resolve the factual disputes that existed between the parties. On March 17, 1999, the parties filed a Motion for Preliminary Approval of Proposed Settlement Agreement and Approval of Notice to Class. Because the Eighth Circuit retained jurisdiction after remanding the case to the District Court for the sole purpose of rendering findings of fact and conclusions of law on the issue whether the Consent Decree of July 8, 1985 should have been dissolved, this Court sought and received permission from the Eighth Circuit to proceed with the settlement process.
After careful review of the parties' submissions regarding the proposed settlement, on June 3, 1999 the Court 1052 entered an Order granting preliminary approval of the Settlement Agreement and setting a *1052 Fairness
Hearing for September 27, 1999. In the same Order, the Court approved the final draft of the Notice of Proposed Settlement of Class Action and directed counsel to post the Notice in the housing units of the SDSP, to give individual notice to inmates in the Special Housing Units or in other segregated confinement, to have the Notice read to inmates classified as illiterate, and to have the notice read by interpreters to non-English speaking inmates. In the Notice, class members were notified of the Settlement Agreement terms and of the requirement that they file any objections to the proposed settlement on or before July 21, 1999. The Order provided that copies of the proposed Settlement Agreement would be available for class members to read. The Court also approved a form for class member objections and ordered that the objection form be made available to the class members.
On August 25, 1999, counsel for the parties notified the Court of a minor problem with the notice. In response, the Court issued a revised Order granting preliminary approval of the Settlement Agreement, requiring the parties to post the Notice for an additional 30 days, extending the time for objections to be filed until October 4, 1999 and rescheduling the Fairness Hearing for November 1, 1999. Prior to the Fairness Hearing, the Court received affidavits from three Department of Corrections employees who work at the SDSP detailing the methodology that was used for giving notice of the proposed Settlement Agreement to the class members.
The Court received 39 objection forms, some signed by more than one prisoner. The Court considered all objections that were filed, timely or untimely. Thirteen objection forms related to the Springfield State Prison and one related to the Redfield facility. Springfield and Redfield are not covered by the 1985 Consent Decree and the problems at those facilities are outside the scope of the proposed Settlement Agreement. Approximately 1,200 inmates are housed at the SDSP and the Court received 26 objection forms addressing conditions there. Those 26 objection forms contained 11 complaints about enforceability of the Agreement, 12 complaints about fire safety, 15 complaints about ventilation, 9 complaints about lighting, 12 complaints about food safety, 7 complaints about shop health and safety, and 18 complaints about medical care. The Court selected four inmates to testify at the Fairness Hearing about the issues raised in their objection forms. Between the four inmates, they had objected to each section of the Settlement Agreement.
The Court conducted the Fairness Hearing on Monday, November 1, 1999. The plaintiff class was represented by Elizabeth Alexander of the ACLU National Prison Project ("NPP"), and local attorney Thomas Clayton. The defendants were represented by James Moore. The Court first heard testimony from the four selected inmates who were called individually to the stand and questioned by counsel and then by the Court. Mr. Jeff Crandall is a 36 year old prisoner in the SDSP who completed school through the ninth grade and obtained his GED in prison.

He has been incarcerated in the SDSP for 17 years. At the time he filed his objection to the settlement, and at the time of his testimony, Mr. Crandall was housed in disciplinary segregation in the Jameson Special Housing Unit, otherwise known as the "SHU" or the "hole." Mr. Crandall said the Notice of the settlement was passed around to everyone in the Special Housing Unit and he received a copy of the objection form from his counselor. Mr. Crandall had complaints about fire safety, shop health and safety, and medical care, and he also had concerns about enforceability of the Agreement. Mr. Crandall has worked primarily in the print shop at the SDSP, but he picked up packages from and cleaned in all of the industries shops on a regular basis. He observed that, prior to annual inspections by the State Fire marshal, inmates were directed by staff to clean up their work areas and follow safety procedures. For example, Mr. Crandall said that inmates working in the spray booth in the carpentry 1053 shop ordinarily left *1053 the spray booth doors open while spraying but, when the fire marshal came, the doors were closed. Mr. Crandall also had concerns about medical care because he received little relief for a shoulder problem until he threatened to file a lawsuit; then he was allowed to have surgery. Finally, Mr. Crandall objected because the proposed settlement does not provide for enforcement by the Court, does not provide for unannounced inspections, and fails to adequately address the need for better medical care.
Bryan Nei, a 36 year old inmate with a GED, was incarcerated in the SDSP from 1989 through 1992 and he began serving his current term of imprisonment there in 1997. He saw the Notice of the settlement on the prison wall and in the library. Mr. Nei complained about ventilation, food safety and medical care at the SDSP. He thought the ventilation system was not hooked up in certain areas of the cellblock for some time, but recently he had noticed some air movement. He also noticed that the exhaust fans in the cellblock are not turned on when they need to be, such as when floor stripper is being used in the cellblocks. Mr. Nei testified that floor stripper is being used incorrectly, causing caustic fumes which make it difficult to breathe, especially when there is no ventilation. He also expressed concern that prisoners were scraping lead-based paint without wearing masks or goggles. He complained about smelly vapors backing up from the cell block drains from caustic acids that are poured down sinks.
Mr. Nei complained about receiving moldy food on occasion and about the cleanliness of the dining room. He also complained about inattentiveness to communicable diseases; he said he was almost double-celled with an inmate with an active case of tuberculosis. He saw another inmate pull his own tooth because he was not allowed to see the dentist quickly enough. Finally, Mr. Nei said that he is receiving inadequate medical care for a hip problem and, as a result, he has filed a lawsuit against prison officials.
Elroy Wabasha, a 42 year old Native American, has been incarcerated in the SDSP since 1977 except for a 10 month hiatus. He obtained his GED in prison. Mr. Wabasha has been in maximum security administrative segregation since June 1997, and that is where he received a copy of the proposed Settlement Agreement and objection form. Thirteen other inmates read and signed the objection form filed by Mr. Wabasha. Although his main concern is enforceability of the Settlement Agreement, Mr. Wabasha also complained about the ventilation, lighting and medical care at the SDSP. He testified that the distribution of hot and cold air in the cell-blocks is unbalanced, causing uncomfortable temperatures in the cells. Mr. Wabasha also objected to the policy limiting toilet flushing in administrative segregation to twice per hour because, he said, obnoxious fumes build up in the cells. He testified that the night lights are so bright that he puts a blanket across his bed to block the light. Finally, Mr. Wabasha expressed concern about medical emergency procedures. He said prisoner Joseph Redleaf bled to death following a stabbing in 1992 because the medical staff did not move him from the cellblock soon enough.
Richard Amundson, a 37 year old inmate with a high school diploma, has been incarcerated in the SDSP since December 1997. Prior to that he was in the SDSP from 1983 to 1985 and from 1987 to 1993. At the time he filed his objection form, Mr. Amundson was in the Special Housing Unit in the main SDSP. He was moved into the general population three days before testifying at the Fairness Hearing. Mr. Amundson complained about poor ventilation, particularly when floor stripper and pepper spray were being used because the ventilation did not remove the fumes. He objected to the practice of shining floodlights on the cells in the SHU of the main SDSP twenty four hours a day. Mr. Amundson contended that he became ill after eating stale meat and that he was 1054 served stale bread. Finally, Mr. Amundson alleged that several inmates died due *1054 to inadequate medical care, but he only personally observed one of the situations about which he complained 0907 a delay in the evacuation of Mr. Redleaf who died after being stabbed in 1992.

After hearing from the prisoners, the Court heard testimony via telephone from Dr. Powitz, the plaintiffs' environmental expert, regarding his opinion on the proposed Settlement Agreement. Dr. Powitz is a sanitarian, or health inspector, who has worked in the area of correctional institutions since 1969. He was first contacted by the ACLU prison project regarding this case in the early 1980's and has been involved with this case continuously since the beginning. Dr. Powitz inspected the SDSP on the first of many occasions in 1983, and subsequently testified before Judge Porter at the 1983 trial which led to the Court's conclusion that some conditions in the SDSP violated the Constitution. He inspected the SDSP again in 1987 and was appointed to the physical plant panel in 1988. The physical plant panel provided the Court with reports on the improvements being made at the SDSP. Dr. Powitz inspected the SDSP in 1992 and testified about his findings before Judge Porter at a hearing in May 1992. He and the other physical plant panel members prepared a report for the Court after an inspection in 1993 revealed some significant shop safety problems. Dr. Powitz's next inspection took place in October 1996, after defendants filed the motion to dissolve the Consent Decree. He prepared a declaration setting forth his opinions regarding some fire, food and shop safety issues, the need for a comprehensive preventive maintenance program for the ventilation system, and the need for procedures for handling prisoners with tuberculosis. Finally, Dr. Powitz conducted an intensive two-day inspection of the SDSP in February 1999. He met with the physical plant supervisor and interviewed SDSP employees. After the inspection, Dr. Powitz participated in an exit interview with counsel for plaintiffs, counsel for defendants and defendants. Later, Dr. Powitz was involved in settlement discussions between the parties. During his testimony at the Fairness Hearing on November 1, 1999, Dr. Powitz described the health and safety problems he discovered at the SDSP, addressed most of the concerns expressed by prisoners in their written objections and oral testimony, and summarized how the terms of the Settlement Agreement will adequately remedy the environmental health problems he discovered during his 1999 inspection.
The Court also received and reviewed the Declaration of Armond Start, M.D., who inspected the SDSP on behalf of plaintiffs in 1996 and who was consulted by plaintiffs' counsel in development of the medical care provisions of the proposed Settlement Agreement. Presently, Dr. Start is the Medical Director for the Oklahoma Department of Corrections. It is Dr. Start's opinion that the provisions of the Settlement Agreement regarding tuberculosis, if fully implemented, will address a long-standing deficiency in the health care at the SDSP. Dr. Start indicated that the quality control program, the health care contract with Sioux Valley Hospital, and accreditation by the National Commission on Correctional Health Care could not guarantee constitutional standards for health care at the SDSP, but they give some long-term assurances that the health care improvements Dr. Start saw in his 1996 inspection have been institutionalized. Dr. Start stated, by declaration, that the proposed Settlement Agreement addresses all the significant health care issues that were documented in Dr. Powitz's 1999 inspection.
The Court next heard testimony from witnesses called by defendants. Ms. Kay Wilka is the Director of Nursing at the SDSP. Most of her work is administrative. Ms. Wilka testified that the quality improvement program has been in place for seven years and is fully operational. She explained the new procedures for testing prisoners for 1055 tuberculosis which were implemented as a result of the proposed Settlement Agreement. Ms. Wilka explained *1055 that the SDSP received accreditation from the National Commission on Correctional Health Care in February 1999 and was nominated for facility of the year.
Dr. Eugene Regier has provided medical care at the SDSP since 1996 and has been the Medical Director for one year. He participates in monthly meetings as part of the quality improvement program. Dr. Regier gave his opinion that prisoners Jeff Crandall and Bryan Nei have not been denied adequate medical care. He explained that the medical staff at the SDSP are waiting to receive copies of Mr. Nei's Mayo Clinic treatment records before determining if further medical treatment for Mr. Nei's hip is necessary.
Dennis Kingsbury is the Director of Food Services at the SDSP. He testified that, pursuant to the Settlement Agreement, all food was stored six inches off the floor and eighteen inches below the ceiling and all food items are stored separately from non-food items. Mr. Kingsbury assured the Court there would be no food storage problems in the future.
Darold Diede has worked at the SDSP since 1983 and has been the Physical Plant Manager since 1997. He described a number of changes defendants have already implemented pursuant to the parties' proposed Settlement Agreement. For example, Mr. Diede testified that fire drills are conducted quarterly on all shifts and

that fire self-inspections are conducted monthly. These monthly self-inspections are in addition to the fire inspection conducted yearly by the State Fire Marshal. In addition, there are now more than ten air exchanges per hour in the West Hall shower area and no further deterioration has been observed. Further, in order to comply with the term of the Settlement Agreement requiring increased lighting, a prototype light for the cells in the SHU in the Jameson Annex and the main SDSP has been developed that provides at least 20 foot-candles of light in the cells. Mr. Diede admitted that the prototype light could increase the night light at the main SDSP SHU somewhat. Mr. Diede testified that for the last year, rather than having inmates scrape lead-based paint, it has been removed by a chemical process which does not pose a health risk. Finally, he indicated that the comprehensive preventive maintenance program for the ventilation system has been implemented and the system is cleaned annually.
Mr. Bill Heim has worked for the South Dakota Department of Corrections since 1982. He has been the head of prison industries at the SDSP since 1991 and is familiar with all shops. Mr. Heim testified that, as a result of the proposed Settlement Agreement, hazard communication training has been implemented in the wheelchair shop and many hazardous chemicals have been eliminated. Oil rags are disposed of properly and vacuum breakers have been installed at the sink hose connection. Mr. Heim indicated that any prison worker required to wear a respirator would first get medical clearance with spirometric evaluation and would be instructed in respirator use.
Mr. Douglas Weber has been the Warden at the SDSP since November 1996. He has worked in the Department of Corrections for 18 years. Warden Weber explained that the DOC has included a budget appropriation for yearly OSHA-type inspections of the SDSP shop areas by the Office of Risk Management. Dr. Powitz testified that these yearly inspections will help prevent future safety problems in the shop areas.
After the Fairness Hearing, the Court received five letters from inmate Bryan Nei regarding conditions at the penitentiary. The Court also received a Verified Complaint from the named plaintiff, William Cody, a portion of which contained complaints about the conditions of Mr. Cody's confinement in administrative segregation. This portion of Mr. Cody's complaint, along with the five letters from Mr. Nei, were sent to counsel who were directed to respond to the allegations. Counsel for plaintiffs stated that Mr. Cody's complaint did not indicate any objection 1056 to the *1056 proposed settlement but rather indicates that Mr. Cody seeks individual relief for his conditions of confinement, some of which are not even addressed in the original Consent Decree. (Doc. 616.) Counsel for plaintiffs and defendants had some difficulty responding to Mr. Nei's more general complaints and they believed other complaints were either addressed by the experts or the Settlement Agreement or were not even covered by the original Consent Decree. Defendant contradicted some of Mr. Nei's allegations with affidavits of penitentiary personnel. For example, the second affidavit of David Schiefen and its attachments show that the administration has responded to all 16 of Mr. Nei's requests for administrative remedies. (Doc. 162 at ¶ 2.) The Court notes that Mr. Nei was transferred to Springfield on December 15, 1999 because of problems he was having with another inmate. (Doc. 162 at ¶ 4.) After careful consideration of Mr. Cody's complaint and Mr. Nei's letters, the Court finds no adequate basis to disapprove the Settlement Agreement.
In approving a class settlement, the Court must consider whether it is "fair, reasonable, and adequate." Grunin v. International House of Pancakes, 513 F.2d 114, 123 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). The Eighth Circuit will not set aside a judicially-approved settlement agreement unless there is a clear showing that the district court abused its discretion. DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1176-77 (8th Cir.1995), cert. denied, 517 U.S. 1156, 116 S.Ct. 1544, 134 L.Ed.2d 648 (1996). Great weight is accorded to the views of the district judge "`because he is exposed to the litigants, and their strategies, positions and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly.'" Grunin, 513 F.2d at 123 (quoting Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir. 1971)).
Before resolving the fairness issue, the Court must ensure that all interested parties were informed of the settlement and had the opportunity to voice their objections. Rule 23(e) of the Federal Rules of Civil Procedure provides that a class action "shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs." The purpose of the approval procedure is to ensure that the interests of absent class members are adequately protected. Grunin, 513 F.2d at 123. The district court acts as a fiduciary who serves as guardian of

the rights of the absent class members, and the court may approve a settlement only if the proponents of it show that the settlement is fair, reasonable, and adequate. Id.
After this Court ordered the parties to provide notice of the settlement to the class members, court-approved notice was posted in two places in the North/South Unit; in the West Unit; in three places in Unit B in the Jameson Annex; in four places in Unit C in the Jameson Annex; in the penitentiary library; and in the Jameson Annex library. (Doc. 591, Affidavit of David Schiefen.) These places encompass all of the housing units at the penitentiary and the Jameson Annex where general population inmates live. (Id.) All inmates in segregation received an individual copy of the notice. (Id.) Copies of the Settlement Agreement and the court-approved objection forms were left in both libraries, in the Special Housing Unit, and with Unit Staff at Unit A in the Jameson Annex. (Id.) Unit A staff and the staff in the Jameson Special Housing Unit were instructed to give a copy of the proposed Settlement Agreement to any inmate who asked for one. (Id.) Penitentiary staff identified 121 inmates as either illiterate or who speak English as a second language. (Id.) Each of these inmates was 1057 contacted to verify that each had read and understood the Notice. (Id.) If one of *1057 these inmates said he did not understand or had not read the Notice, he was asked to read the Notice or it was read to him. (Id.) Two Spanish-speaking inmates were read the Notice in Spanish and told that the objection form could be completed in Spanish. (Id.) In summary, the Notice informed inmates about the nature of the settlement, the right to file objections, and the parties also provided inmates with forms for filing such objections. (Id.) Having reviewed the procedures used to notify class members of the terms of the proposed settlement, and having considered all objections filed and the individual testimony of four inmates at the SDSP who were housed in various areas of the prison when they each received notice of the settlement and filed objections, the Court finds that, pursuant to Fed.R.Civ.P. 23(e), class members have been sufficiently notified of the terms of the proposed Settlement Agreement and the procedure for bringing objections to the proposed settlement to the attention of the Court.
The Court held a Fairness Hearing on November 1, 1999. Although it was not required to do so, the Court allowed four inmates to testify about the objections they had filed. See Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir.1988) (Rule 23 does not mandate a hearing to allow the inmates to voice their objections personally). The testimony at the hearing assisted the Court with its obligation to fully consider this settlement and to make a sufficient record and enter specific findings to satisfy the Eighth Circuit that the Court has considered the diverse interests at stake and the many factors implicated in determining the fairness, reasonableness, and adequacy of the settlement. See DeBoer, 64 F.3d at 1177. Having reviewed all of the information available, the Court is convinced that the interests of the class members as a whole are better served if this prison conditions litigation is resolved through settlement. For the following reasons, the Court finds that the Settlement Agreement reached by the parties is fair, reasonable, and adequate.
The factors the Court may examine in deciding whether a settlement is fair, adequate and reasonable are as follows: (1) the merits of the plaintiff's case, weighed against the terms of the settlement; (2) the defendant's financial condition; (3) the complexity and expense of further litigation; and (4) the amount of opposition to the settlement. Van Horn, 840 F.2d at 607. "The single most important factor ... is a balancing of the strength of the plaintiff's case against the terms of the settlement." Id. The Court "need not undertake the type of detailed investigation that trying the case would involve," but it must "provide the appellate court with a basis for determining that its decision rests on `well-reasoned conclusions' and not `mere boilerplate.'" Id. (citations omitted).
a. Merits of Plaintiffs' Case, Weighed Against Terms of Settlement
The Court attributes significant weight to the belief of class counsel that the settlement is in the best interests of the class. Class counsel have argued that the proposed settlement is fair, adequate and reasonable, and have thoroughly explained to this Court the benefits the Settlement Agreement provides to the class. Elizabeth Alexander of the National Prison Project ("NPP"), American Civil Liberties Union, has worked on this case since the original trial in the early 1980's. Ms. Alexander, with the assistance of other attorneys at the NPP, has pursued the class' interests vigorously. Ms. Alexander has broad experience and practice in prison litigation; she briefed and argued Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) and Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). See Austin v. Pennsylvania Dept. of Corrections, 876 F.Supp.

1437, 1473 (E.D.Pa.1995). Ms. Alexander worked closely with plaintiffs' experts, Dr. Powitz and Dr. Start, in reaching the terms of the settlement. Dr. Powitz, who has also been involved in the case since the beginning, has 1058 inspected the *1058 penitentiary on numerous occasions to monitor conditions and to evaluate compliance with the Consent Decree. Dr. Powitz and Dr. Start also recommend the settlement.
After the Court completed the first draft of this Memorandum Opinion and Order, class counsel notified the Court that they were unable to settle the issue of attorney fees with the defendants. Prior to December of 1995, the parties were able to settle attorney fees and defendants paid plaintiffs at least $140,000 in attorney fees over the course of 12 years. (Doc. 619, Submission in Response to Status Conference.) Apparently defendants posit that plaintiffs now have waived attorney fees because the Settlement Agreement does not provide for fees,[1] and that plaintiffs are not prevailing parties because the result of the Settlement Agreement is dismissal of the case and vacation of the Consent Decree. (Attachment 2 of Doc. 615, Memorandum Regarding Withdrawal of Request to Approve Settlement Agreement.) By Notice filed on January 3, 2000, class counsel revoked their recommendation of the settlement based solely on the fact that defendants have refused to pay plaintiffs' attorney fees incurred since December 1995. (Doc. 619; Doc. 641, Notice of Withdrawal of Request to Approve Settlement Agreement.)
The Court notes that the strong federal policy embodied in 42 U.S.C. § 1988 normally requires an award of fees to prevailing plaintiffs in civil rights actions, including those who have prevailed through settlement. See Maher v. Gagne, 448 U.S. 122, 124, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980) ("The fact that respondent prevailed through settlement rather than through litigation does not weaken her claim to fees.") However, there is no motion for attorney fees pending before the Court and the Court is not in a position to rule on attorney fees in the absence of an adequate record with regard to that issue. It is the opinion of the Court that the parties' failure to settle attorney fees or to include a provision for attorney fees in the Settlement Agreement does not render the Agreement unfair or unreasonable. Class counsel clearly believes that the proposal to settle the merits of this case is more favorable than the probable outcome of a hearing and, as the following discussion indicates, the initial decision to recommend court approval of the Settlement Agreement was made in the best interests of the class.
The proposed settlement addresses the significant health and safety problems identified by plaintiffs' experts and counsel and contemplates the conclusion of court supervision. The issues that have been settled would have required an evidentiary hearing with considerable expense to all parties. Class counsel stressed the difficulty of proving current and on-going constitutional violations in order to reinstate the Consent Decree. Through settlement, the plaintiffs have avoided the risk of losing if an evidentiary hearing is held to determine whether the Consent Decree should have been dissolved. They have also avoided the limited duration of any success under the Prison Litigation Reform Act ("PLRA"): under the PLRA, all relief under the Consent Decree would again be subject to termination in one year. In contrast, in any new litigation affecting the class, relief ordered by a court would not be subject to termination for two years. See 18 U.S.C. § 3626(b)(1)(i). Because it provides for dismissal of the action without prejudice, the Settlement Agreement does not preclude an inmate from seeking additional relief. In the future, any class member will be able to file an individual claim or, if appropriate, a class action on the issues covered by the settlement after dismissal without prejudice if the claim was a failure to comply with the Settlement Agreement.
1059 *1059 Many provisions of the Settlement Agreement contain more specific language than is found in the 1985 Consent Decree. For example, the Consent Decree provides that defendants "shall provide proper initial medical screening for newly admitted inmates" while the Settlement Agreement specifies diagnostic and infection control procedures consistent with Center for Disease Control guidelines. In addition, the Consent Decree states that "adequate ventilation" must be provided in the West Hall shower, while the Settlement Agreement specifies that defendants shall provide at least ten air exchanges per hour. Furthermore, the Settlement Agreement refers to specific federal regulations that defendants must follow, thus establishing specific health and safety requirements. The Settlement Agreement also establishes procedures for continued monitoring of prison conditions. Defendants will continue annual inspections by the South Dakota State Fire Marshall and, as a term of the settlement, defendants already have implemented a new monthly self-inspection for fire safety. Pursuant to the agreement, plans are in process for yearly OSHA-type inspections of all shop areas by the South Dakota Office of Risk Management.

Importantly, as demonstrated by the monthly fire self-inspections, some provisions of the proposed Settlement Agreement go beyond the 1985 Consent Decree and call for improvements not covered by the Decree. The Consent Decree does not address lighting in the Special Housing Unit at the main SDSP, yet the Settlement Agreement provides a specific standard, twenty foot candles, that will be met. Additional areas where the Settlement Agreement provides more relief than the Consent Decree include the tuberculosis isolation provision, the quality control provision, and specific shop provisions, including the Wheelchair Shop which did not exist in 1985.
b. Defendants' Financial Condition
This factor is not particularly important in the present case because the action is not for monetary damages.
c. Complexity and Expense of Further Litigation
This case, which presents complex health and safety issues for resolution, was initiated almost 20 years ago and has already consumed a considerable amount of time and resources. If the litigation continues, much more time and money will be spent. The Court finds that this factor weighs in favor of approval of the Settlement Agreement.
d. Amount of Opposition to the Settlement
The amount of opposition to the settlement was small. The Court received objections from approximately 40 SDSP prisoners (including the 13 inmates who signed Mr. Wabasha's objection form). Warden Weber testified that approximately 1200 inmates are housed at the SDSP, so only approximately three percent (3%) objected to the settlement. It is the opinion of class counsel that the objections presented at the Fairness Hearing do not warrant rejection of the proposed Agreement because many of the objections will be or have been resolved by the settlement, and that the benefits provided to the class by the settlement outweigh the remaining objections. (Doc. 602.)
Eleven objection forms raised concerns about enforceability of the Settlement Agreement without court supervision. As class counsel pointed out in the post-hearing brief, concerns about enforceability of the settlement were to some extent allayed by defendants' hearing testimony showing that compliance with most provisions of the settlement has either been achieved or is imminent. Class counsel indicates that plaintiffs could reinstate the case pursuant to Fed.R.Civ.P. 60(b) if defendants fail to carry out the terms of the Settlement 1060 Agreement. (Doc. 602, p. 14.) Counsel *1060 also states that members of the class are better off receiving the benefits of this settlement and pursuing separate constitutional claims, "whether or not covered by the 1985 Consent Decree, in new litigation free of the particularly harsh obstacles that the PLRA places on enforcement of existing orders." (Doc. 582, p. 10.) Furthermore, class counsel believes the Settlement Agreement could be used in future prison conditions litigation attempting to establish defendants' deliberate indifference to an inmate's health or safety, which is an incentive for defendants to comply with the Agreement.
Fire safety concerns were raised in twelve objection forms and Dr. Powitz addressed most of those concerns in his hearing testimony. Some inmates are concerned that the South Dakota Fire Marshal has a conflict in monitoring fire safety at the penitentiary. Dr. Powitz testified that a number of improvements have been made since the Fire Marshal began yearly inspections of the penitentiary and he believes these inspections are very helpful. In order to further ensure fire safety, defendants have begun monthly fire safety self-inspections which Dr. Powitz believes will assist in improving environmental conditions. A few inmates think penitentiary officials should not have advance notice of the Fire Marshal investigations because they believe defendants improve conditions in preparation for the inspection. The Court is concerned with this allegation and it was not addressed by the parties or witnesses at the Fairness Hearing. The Consent Decree does not provide for unannounced investigations. Even though it would seem that the fire safety investigations could be unannounced and still meet security concerns, the difference between announced and unannounced fire safety inspections is not enough to warrant disapproval of the Settlement Agreement.

Many prisoners voiced concerns about the ventilation system, including three of the prisoners who testified at the Fairness Hearing. The complaints ranged from unpleasant odors and lack of air circulation to unpleasant temperatures. Dr. Powitz testified that implementing a preventive maintenance system, cleaning the ventilation system once a year, and balancing the system every six years will ensure that prisoners' health and safety are not jeopardized. These procedures coincide with the requirements for ventilation set forth in the 1985 Consent Decree. Plaintiffs suggest distribution of extra clothing and blankets for inmates in the cold section of the SHU in the main penitentiary.
Section II(A)(8) of the Settlement Agreement provides that the defendants will increase the light available in the SHU at bunk height to twenty-foot candles without increasing the lighting during sleeping hours. A number of inmates contended that defendants have increased lighting at night. At the Fairness Hearing, Darold Diede, the physical plant manager at the SDSP, testified that a prototype light is to be installed in 38 cells in the main SHU which will increase daytime lighting to 21.2 foot candles. A seven-watt bulb will be used for night lighting. Although there has been no change in the wattage of the night light, Mr. Diede said the prototype light may increase the night light in the SHU cells somewhat and he realizes this may be considered a violation of the Settlement Agreement. In the post-hearing brief, plaintiffs' counsel indicated that possible solutions to this problem have been discussed with counsel for defendants but class counsel does not see this problem as an impediment to settlement. In light of counsel's representation and the significant advantages gained by the class through the other terms of the Settlement Agreement, the Court will not disapprove of the settlement because of the possible small increase in night light in the main SHU.
Food safety was a concern raised in twelve objection forms. Most complained about spoiled food or unsanitary conditions. Class counsel indicates that the objections raised do not demonstrate a pattern of non-compliance or 1061 a constitutional violation. Each of the food safety concerns *1061 that Dr. Powitz documented in his February 1999 inspection are addressed in the Settlement Agreement and the food service director at the SDSP assured the Court that there would be no future problems with food storage.
Shop health and safety raised the fewest objections. Dr. Powitz testified that the provision of the Settlement Agreement calling for yearly OSHA-type inspections by an industrial hygienist selected by the South Dakota Office of Risk Management will address most of the valid shop safety objections that were raised by prisoners, including ventilation, training, and protective equipment issues.
Many prisoners filed objections citing specific circumstances in which they felt the medical care received by them or someone they knew was inadequate. Class counsel points out that although the Consent Decree requires necessary medical and dental care, individuals would need to institute new litigation in order to redress specific instances of inadequate medical care. Dr. Start evaluated the medical and mental health care systems at the SDSP on September 30 and October 1, 1996. (Plaintiff's Fairness Hearing Exhibit 2.) He concluded that substantial improvements had taken place since Sioux Valley Hospital was awarded the medical contract in 1995, but he was not sure whether the improvements would be institutionalized. Subsequently, Dr. Start learned that the SDSP had been accredited by the National Commission for Correctional Health Care (NCCHC), which gave Dr. Start some assurance that the improvements he saw in 1996 have been institutionalized. After Elizabeth Alexander and Dr. Powitz inspected the SDSP in February, 1999, they discussed their findings with Dr. Start who then helped to develop the plaintiffs' proposal for tuberculosis control which has been accepted and implemented by the defendants. Dr. Start opined that if the tuberculosis proposal is fully implemented, "it will address a critical long-standing deficiency of health care at the SDSP and provide effective tuberculosis control consistent with Centers for Disease Control standards for correctional facilities." (Plaintiffs' Exhibit 2 at ¶ 9.) Dr. Start concluded that the Settlement Agreement addresses all the significant health issues that were documented in the 1999 inspection and he believes the health of the SDSP prisoners will be best protected by acceptance of the proposed Settlement Agreement.
For all of the reasons set forth in this Memorandum Opinion and Order, the Court finds that the Settlement Agreement is fair, adequate and reasonable and in the best interest of the class as a whole. The Court reserves ruling on the issue of attorney fees for the plaintiff class. Accordingly,

IT IS ORDERED that the Settlement Agreement is approved pursuant to Fed. R.Civ.P. 23(e) and the case is hereby dismissed without prejudice. The parties are ordered to carry out the terms of the Settlement Agreement.
[1] It is undisputed that the Settlement Agreement is silent regarding plaintiffs' right to recover attorney fees.
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 </s> Cody v. Hillard

PC-SD-001-001
IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

ROGER G. FLITTIE and WILLIAM R. CODY, individually and on behalf of all other persons similarly situated,
Plaintiffs,

VS

*

*

CAROLE HILLARD, President of

the Board of Charities and

Corrections; FRANK BROST,

Vice President; TED SPAULDING, *

Member; D. A. GEHLHOFF, Member; •k

LYLE SWENSON, Member; JAMES

-k

SMITH, Executive Secretary;

•k

HERMAN SOLEM, Warden of the

South Dakota State Penitentiary

sued individually and in their

official capacities,

CIV. 80-4039 SECOND AMENDED COMPLAINT

JURISDICTION

The jurisdiction of this court is envoked pursuant to

and in accordance with the provisions of 28 U.S.C. §§ 1343, 2201

and 2202; 42 U.S.C. §§ 1983, 1985, 1988, and the Constitution of

the United States, specifically but not limited to the First,

Fifth, Sixth, Eighth and Fourteenth Amendments thereto.

• •-•• ' } * :. A - - " ' ; " / . ' ' P A R T I E S ...."•.••'.

. '

The representative plaintiffs are Roger G. Flittie and

William R. Cody. These plaintiffs are prisoners housed within

the general population of the South Dakota State Penitentiary at

Sioux Falls, South Dakota.

The defendants are individuals officially responsible

for the administration, supervision and maintenance of the South

Dakota State Penitentiary at Sioux Falls, South Dakota.

11
'' .

Defendant Carole Hillard is the President of the Board of

Charities and Corrections. The Board of Charities and

Corrections is divided into divisions of responsibility, one

being the Division of Corrections. The Board of Charities and

Corrections is responsible for t-he administration, control,

supervision and maintenance of the South Dakota State

Penitentiary at Sioux Falls, South Dakota, and the Women's

Correctional Facility at Yankton, South Dakota. Defendant Frank

Brost is the Vice President of the Board of Charities and

Corrections. Defendant Lyle Swenson is a member of the Board of

Charities and Corrections. Defendant Ted Spaulding is a member

of the Board of Charities and Corrections. Defendant D. A.

Gehlhoff is a member of the Board of Charities and Corrections. .

Defendant James Smith is the executive secretary of the Board of

Charities and Corrections. Defendant Herman Solem is the warden

of the South Dakota State Penitentiary, and as such is charged

with the responsibility of the day to day operation, safety,

custody, care and control of the inmates residing in the South

Dakota State Penitentiary.

;

-

•

CLASS ACTION

Claimants bring this action pursuant to Rule 23 of the

/

" Federal Rules of Civil Procedure, on behalf of themselves and all

other persons who are now or will be incarcerated in the South

Dakota State Penitentiary at Sioux Falls, South Dakota or the

Women's Correctional Facility at Yankton, South Dakota. 'The

persons comprising the class are so numerous that joinder of all

members is impractical. There are questions of fact and law

• common to the class, the claims of the plaintiffs are typical of

•

. -

..-••

-2-

. ..

,

the claims of the class and as representatives of the class, these plaintiffs will fairly and adequately protect the interests of the class. Adjudication with respect to the individual members of the class would, as a practical matter, be dispositive of the interests of the other members not parties to the adjudication. The parties opposing the class have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief to the class as a whole. The questions of law and fact common to the members of the class predominate over any questions affecting only individual members, and the class action is superior to other available methods for the fair and efficient adjudication of the controversy. Prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications and would establish incompatible standards for the defendants nnd their ,nj*ents; in addition, it would result in multiple litigation which would overburden the judicial system. - *' , v

'

• FACTS '

. .

Defendants, their agents and employees, acting in

concert or under color of law as state officers, have conspired

and agreed amongst themselves to violate the civil and human

rights of the plaintiffs and the class they represent by causing

them to be subjected to grievous bodily harm, cruel and unusual

punishment, and violations of their rights under the First,

Fifth,. Sixth, Eighth and Fourteenth Amendments to the United

-3-

States Constitution, as more fully set forth in the following statement of facts.

:

•" ••• F I R E H A Z A R D

•

(1) Prisoners residing in west, east, and federal hall

cell blocks at the South Dakota State Penitentiary are in extreme

danger of death and serious injury from fire and smoke

inhalation. The cell blocks are maintained in violation of

state, county and municipal fire ordinances. These named cell

blocks are overcrowded and not properly ventilated. The cell

blocks are not equipped with sprinkler systems, smoke alarms or

any other detection devises. Prisoners commonly possess

combustible materials which are frequently used to start fires

within the cell block. The danger presented by fire and smoke

inhalation is particularly acute between the hours of 9:00 p.m.,

and 6:30 a.m.

: Between the hours of 9:00 p.m., and 6:30 a.m., all prisoners are locked in their cells, located in the cell blocks. Each cell is individually locked and in addition each cell is top-locked with a separate and distinct lock. Between the hours of 9:00 p.m., and 6:30 a.m., staffing is at a minimum. The

correctional officers on duty in the individual cell blocks

during these hours do not have any keys on their persons. If a

major fire occurred in any of the cell blocks during these hours, death and/or serious injury would be suffered by many prisoners.

SAFETY AND HEALTH HAZARDS

(2) Milk fed to prisoners at the Penitentiary at Sioux

Falls, South Dakota is pasteurized at the Penitentiary. The

pasteurization process used is not safe.

'

There are numerous safety hazards in the industrial

shops which subject prisoners working in these shops to possible

serious injury or death.

The ventilation in the welding shop and paint booths is

inadequate

•'•'_••

The'plumbing system at the Penitentiary is inadequate.

The penitentiary has no written policies for - . .

emergencies that might occur except fires. v ; . MEDICAL, DENTAL AND PSYCHOLOGICAL CARE

(3) The existing medical facility (prison hospital) is

currently staffed by two (2) physicians and one (1) physician's

assistant, each oi" whom is only available to the inmates one-half

day per week. The Prison lacks 24-hour on-site coverage by

nurses or other medically trained staff. There are no adequate

written protocols and policies. There is no crash cart for

medical emergencies. There is inadequate quality control for the

infirmary laboratory and for general medical care. Medical

records are inadequately maintained. Untrained inmate workers

provide medical and dental services, including the taking of

x-raysj have access to the medical records of other inmates;

provide emergency medical care; and are involved in the

scheduling of other inmates for health care. The prison requires

payment from inmates for providing necessary medical and dental

services, and denies necessary medical and dental services on the

•n

in' •!•

basis of cost. At times inmates experience severe pain and are

nonetheless denied medically indicated medication. Inmates with

seizure disorders are at times denied necessary anti-convulsive

medications. ' , - . . - •

(4) One psychiatrist -is available one day per week.

The psychiatrist performs mainly a screening function for serious

mental disorders. He does not generally provide on-going therapy

aside from medication.

(5) The South Dakota State Penitentiary staffs its

guidance unit with (1) psychologist and seven (7) counselors.

Most of the psychologist's time is taken in assessing new

admissions to the Penitentiary. The counselor load is

approximately seventy-five (75) inmates per counselor. Accordingly, there is a lack1of necessary treatment available for

inmates with serious psychological disorders.

. .

(6) The above conditions, taken together, constitute

deliberate indifference to serious medical needs.

:

" PHYSICAL STRUCTURE

(7) Cell blocks known as federal, east and west hall

at the South Dakota State Penitentiary are maintained in such a

manner as to be unfit for human habitation. The cell blocks are

overcrowded and ventilation is poor. Some windows are without

screens. In the winter the temperatures in these cell blocks are

extreme; some heating units and thermostats are not in working

order. There is no hot water in the cell block known as federal

hall.

.,. ,..-..

.

-

-6-

(8) Approximately 100 inmates are double-eelled in cells varying from 50 to 60 square feet in size. Among the inmates subjected to double-celling are inmates in protective custody who are required to remain in their cells up to 23 hours a day. Newly admitted inmates who have not been screened for mental or physical health problems or propensity for violence are also subject to double celling.

• ••*' .

- LAW LIBRARY

(9) The law library at the South Dakota State

Penitentiary is in violation of the orders entered in the case of

Crow v. Erickson, Civil No. 72-4102, U.S. District Court, South

Dakota. Inmates are not provided adequate access to the law

library through the assistance of trained inmate personnel.

There is no law library at the South Dakota State Women's

Corrections Facility at Yankton, South Dakota; women confined at

the facility are denied any meaningful access to a law library.

PROTECTIVE CUSTODY

' . (10) Inmates in protective custody are not allowed

adequate exercise or recreation or protection in activities

outside their cells. Most inmates in protective custody do not

have jobs available, and protective custody inmates are denied

access to rehabilitative programs available to other inmates.

. •

(11) Mo effective administrative remedies are available

to the plaintiffs to address these grievances. Defendants have

had ample opportunity to institute improvements in these

conditions and practices but have failed to do so. Plaintiffs

have no plain, adequate, or complete remedy at law to redress

-7-

these grievances and plaintiffs and the class they represent will continue to suffer irreparable harm from the conditions and practices alleged herein unless and until the declaratory and injunctive relief sought herein is granted by this court. Defendants past and continuing conduct will irreparably injure plaintiffs' fundamental Constitutional rights.

"-•'.- CAUSES OF ACTION The confinement of the plaintiffs and the class they represent at the South Dakota State Penitentiary under the conditions alleged in this complaint amounts to the infliction of cruel and unusual punishment and denies them the right of meaningful access to the court in violation of their rights under the First, Fifth, Sixth, Fifth, and Fourteenth Amendments to the United States Constitution. Women prisoners and prisoners in protective custody are also denied the equal protection of the laws guaranteed to them by the Fourteenth Amendment to the United States Constitution.

• PRAYER

'

•" . .

*

WHEREFORE, the plaintiffs, on behalf of themselves and

the class the represent, pray as follows:

/

a. That the Court assume jurisdiction of the matter

set forth herein.

b. That the Court determine by order pursuant to Rule

23 of the Federal Rules of Civil Procedure that this action be

maintained as a class action.

c. That the Court enter a declaratory judgment

pursuant to 28 U.S.C. §§ 2201, 2202 and Rule 57 of the Federal

. ,

•""

.

> - --- .

-8-

"".

"

T~T1

Rules of Civil Procedure, declaring that the acts and ommissions

of the defendants alleged in this complaint violate the rights of

the plaintiffs and the class they represent guaranteed by the

First, Fifth, Sixth, Eighth and-Fourteenth Amendments to the

United States Constitution.

d. That the Court enter an order permanently enjoining

the defendants from failing to provide the plaintiffs and the

class they represent with adequate medical care and treatment by

competent physicians and other medical personnel; and that the

Court further order that the defendants prepare a plan to provide

adequate medical and dental care, which plan shall provide, at a

minimum, for the following: .

;

'

i. 24 hour on-site coverage by nurses or other

medically trained staff;

•

ii. A crash cart for the provision of emergency medical

care;

_ •.

-. -

..-.._ , -.;: •

•- ..-

•..•"'•"

iii. A system for quality control in the medical lab-

oratory and in the health care delivery system in general;

iv. A system for the adequate maintenance of medical

records;

: •

•

v. A prohibition on the use of inmate workers for:

... ' 1) the provision of medical or dental services;

••/''• , 2) the scheduling of inmates seeking health care; and

3) the performance of any task that allows inmate

workers access to the medical records or related records of any

other inmate. . •

\

-9-

: , vi. Necessary medical and dental services shall be

provided at no cost to inmates and necessary medical and dental

services shall not be denied to inmates on the basis of cost;

vii. Medically necessary pain and anti-convulsive

medications shall be provided to inmates as such are medically

necessary.

• •

~ viii. Adequate psychological and psychiatric services

shall be provided to inmates.

. -

,

e. That the Court issue an injunction ordering the

defendants, their successors in office, agents and employees to

install sprinkler systems in each cell of the cell blocks in east

hall, west hall and federal hall; to install smoke alarms in each

cell of cell blocks in east hall, west hall and federal hall; to

install new locking systems in east hall, west hall and federal

hall so that prisoners can be evacuated from these cell blocks in

case of a fire or other emergency; to construct an additional

fire exit for each cell block; and to develop a written

evacuation plan that will assure that all prisoners in each cell

block can be evacuated from their cells within five minutes; to

assign more than two (2) correctional officers to each cell block

between the hours of 9:00 p.m. and 6:00 a.m.

f. That the Court issue an injunction ordering the defendants, their successors in office, their employees and agents to repair all windows in the cell blocks so that they can be opened and closed for purposes of ventilation; to place screens on all windows in cell blocks; and to repair all heaters

-10-

and thermostats and maintain them in such a manner as to allow for a uniform acceptable temperature throughout each cell block.

g. That the Court issue an injunction ordering the Defendants, their successors in office, their employees and

agents to expand and update the law library so that it meets the standards provided for in the orders issued in Crow v. Erickson and to provide more trained inmate personnel to assist inmates in

doing legal research and preparing pleadings; and that the defendants, their successors in office, their employees and

agents provide substantially equal access to a law library and trained assistance for the women confined at the Women's Correctional Facility at Yankton, South Dakota.

•••

h. That the Court issue an injunction ordering the

defendants , Lhci r successors in oL"l i cc , their employees! and agents to provide adequate programming including jobs, vocational opportunities, recreation, exercise and protection for inmates

housed in the protective custody unit.

-

i. That the Court issue an injunction ordering the

defendants, their successors in office, their employees and

agents to prepare a plan to end the practice of double-celling

inmates at the Penitentiary.

•

•'•'•

j . That the Court order the defendants to pay the'

costs, expenses and attorneys fees for this action. , ';

-11i an

.

k. That the Court grant such and further relief as

this Court deems just and proper.

DATED this 1st day of June, 1982.

... -.."••

Respectfully submitted,

>

'.-•"'-

V ••/.--

:

. NATIONAL PRISON PROJECT

•' • T

of the ACLU FOUNDATION

By: ELIZABETH ALEXANDER Attorneys for Plaintiffs 1346 Connecticut Avenuef NW Washington, D.C. 20036 (202) 331-0500
EAST RIVER LEGAL SERVICES

ByS
BILL FROKE Attorneys for Plaintiffs 329 North Phillips Avenue Sioux Falls, South Dakota (605>n336-9230

5711)2

rOUGLASTP. CUMMINGS, JR., Attorr/eys for Plaintif: 1505^South Minnesota Avenue Sioux Falls, South Dakota 57105 (605) 332-8585

 </s> UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

WILLIAM R. CODY,

Cody v. Hillard

Plaintiff, V. CAROLE HILLARD, et al.f
Defendants

PC-SD-001-002 Civ. 80-4039

PLAINTIFFS1 PROPOSED REMEDIAL ORDER

Pursuant to the findings of fact and conclusives of law set forth in the Memorandum Opinion made and entered in this cause, it is the order, judgment, and decree of this Court that defendants have violated plaintiffs' rights under the Eighth and Fourteenth Amendments to the Constitution of the United States.

I.

ENVIRONMENTAL CONDITIONS-HOUSING

A. Fire Safety

1. Fire exits and stairs

a) The defendants shall provide an

additional fire exit from Federal Hall by May 1,1985;

b) the defendants shall provide new fire

stairs from East Hall and West Hall by May 15, 1985;

c) the defendants shall provide an

additional fire exit from East Hall by July 6, 1985; and

d) the defendants shall provide an

TTT

t II

additional fire exit from West Hall by December 1, 1985.

2. Automatic unlocking system

The defendants shall provide that all cells

used for inmate housing at the South Dakota State Penitentiary

(hereinafter SDSP) are equipped with an automatic cell unlocking

system by April 20, 1986.

3* Fire separation barriers The defendants: shall provide for the

installation of roll-up steel slot doors at the entrance to West

and Federal Halls by July 6, 1985.

4. Emergency lights

a) The defendants shall provide for

emergency lights connected to the emergency generator by July 6,

1985; and

b) the defendants shall provide for two

1

additional exit lights over the doorways in the converted exit

i

!

from West Hall and one over the new exit from East . Hall by

• •

February 28, 1985.

5. Smoke and fire detection system

!

The defendants shall maintain a fire alarm

system- and smoke detector system in East, West and Federal Cell

Halls.

6. Fire evacuation drills

The defendants shall conduct semi-annual

unannounced fire drills in East, West and Federal Cell Halls and

other appropriate areas of the SDSP.

•m

7. Other fire safety measures a) The defendants shall maintain smoke
exhaust fans in good working order in East, West and Federal Cell Halls;
b) the defendants shall continue the use of fire retardant mattresses and pillows, and the posting of fire evacuation instructions in every cell;
c) the defendants shall maintain emergency air masks and air tanks for staff use in the event of an emergency evacuation; and
d) the defendants shall submit to inspections by the Deputy Fire Marshal of the State of South Dakota and shall abate any deficiencies found as a result of such inspection,
B. Ventilation and Heating System 1. West Hall shower The defendants shall maintain the West Hall
shower in a safe and sanitary condition with adequate ventilation.
C* Overhead Lighting and Electrical Wiring 1. Cell lighting The defendants shall provide adequate cell
lighting in East, West and Federal Cell Halls by July 6, 1985. 2. Cell wiring a) The defendants shall provide properly
grounded outlets in West Cell Hall by February 28, 1985; and b) the defendants shall provide a properly

grounded second double outlet in East Cell Hall by July 6, 1985.

3. Removal of jerry-rigged wiring

The defendants shall maintain the cell areas

free of improper wiring jerry-rigged by the occupants.

D. Hot Water and Water Control System

a) The defendants shall provide a hot water

system for individual cells in Federal Cell Hall by February 28,

1985; and

•

b) the defendants shall either provide proper

plugs for sinks in individual cell halls, by March 31, 1985; or

c) the defendants shall provide a temperature

regulator for East and Federal Halls by February 25, 1985.

II.

ENVIRONMENTAL CONDITIONS — KITCHEN AND FOOD STORAGE AREA

A. Milk Pasteurization Process

a) Should the defendants resume pasteurization operations, these operations shall be conducted in a safe and healthful manner;

b) should the defendants resume pasteurization

operations, the defendants shall submit such operations to monthly inspections of milk samples and quarterly inspections of

the monitoring equipment by the South Dakota Department of Agriculture; and

c) the defendants shall immediately abate any deficiencies found as a result of such inspections.

B. Food Storage 1. Basement food storage a) The defendants shall maintain all food
storage areas in the SDSP in good repair and in a clean, healthful and vermin-free condition; and
b) the defendants shall maintain canopies or some other appropriate protective measure to ensure against unsanitary spillage from the overhead pipes in or around the stored food in the basement food storage area.
2- Kitchen food storage a) The defendants will complete scheduled
improvements on the kitchen freezers and coolers by April 15, 1985;
b) the defendants will maintain proper methods of food storage in the kitchen.
C. Kitchen Elevator a) The defendants shall maintain the kitchen
elevator in a safe operating condition and shall maintain safety buffer devices on the doors to prevent injuries; and
b) the defendants shall submit to inspections of the kitchen elevator at appropriate intervals and shall abate any deficiencies found as a result of such inspections.
D. General Kitchen Practices and Conditions 1- Ventilation The defendants shall provide for adequate
kitchen ventilation by August 15, 1985.
TT

r

2* Kitchen fire safety The defendants shall maintain ancillary fire
protection systems for the kitchen stove hoods. 3. Utensil repair and sanitation The defendants shall maintain kitchen pots,
pans and dining utensils in good repair and in safe and sanitary condition.
4. Inmate access to the infirmary through the kitchen The defendants shall prohibit inmate access to
the infirmary through the kitchen during normal operational hours.
5. Kitchen food defrosting The defendants shall maintain the food
defrosting equipment in a safe and healthful manner, free from potential back siphonage.
6. Other kitchen practices a) The defendants shall maintain the proper
use of hair restraints among food service workers; b) the defendants shall maintain the ice
machine in good repair and in a sanitary condition; and c) the defendants shall not allow use of any
part of the kitchen area as a worker lounge or smoking area.

III.

ENVIRONMENTAL CONDITIONS—SHOPS AND VOCATIONAL PROGRAMS A. Welding Shop
The defendants shall maintain adequate ventilation

r

and toxic fume removal in the welding booths; sanding room and spray booths.
B. Furniture upholstery Shop a) The defendants shall maintain adequate
ventilation and toxic fume removal in the furniture upholstery shop; and
b) the defendants shall require that inmate workers in the furniture upholstery shop wear appropriate protective devices when employed in the paint stripping and spraying booths.
C. Proper Storage of Combustibles The defendants shall maintain safe and proper
storage of combustible materials in the shops area. D. Barbershop The defendants shall maintain safe and sanitary
conditions in the barbershops. E. Safety Locking Devices The defendants will maintain appropriate safety
devices on machinery in the vocational shops. F. Sawdust Removal The defendants shall provide a proper sawdust
removal system in the carpentry shop by March 15, 1985.

IV.

ENVIRONMENTAL CONDITIONS—OTHER AREAS

A. Underground Corridor Lighting

The defendants shall provide adequate lighting in

the underground corridor to the recreation building by February 28, 1985.
B. sanitary Conditions in the Infirmary a) The defendants shall maintain proper sanitary
conditions in the infirmary; and b) the defendants shall maintain the infirmary
free of potential back siphonage floors.

V.

DOUBLE-CELLING

The defendants shall end double-celling in all areas of

the SDSP by August 31, 1985.

VI.

MEDICAL AND DENTAL CARE

A. Use of Inmate Workers

a) The defendants shall not employ inmate workers

for tasks related to medical or dental health care, including the

provision of direct care services; the scheduling of appointments

or other involvement in determining the access of other inmates

to health care services; and the operation of medical or dental

equipment; and

b) the defendants shall provide that no inmate

has access to the medical or dental records of other inmates.

B. Emergency Medical Care

1. Protocols

The defendants shall maintain proper emergency

care protocols, including a provision setting forth the

11

in • «

identification system for the emergency medical technician (EMT) on duty.
2. Emergency staff The defendants shall provide that at least one
certified EMT shall be on duty at the SDSP at all times by July 31, 1935.
3. Crash cart The defendants shall provide a crash cart for
emergency use at the SDSP by June 1, 19854. Resuscitation equipment The defendants shall maintain proper emergency
resuscitation equipment. C. Prescription Drugs 1. Formulary The defendants shall maintain an appropriate
formulary of the prescription medications utilized at the SDSP. 2. Prohibitions on prescription of certain medications The defendants shall not prohibit the
prescription of sleeping medications, pain relievers, minor tranquilizers, appetite suppressants, and cough medicines by qualified physicians when medically appropriate in accordance with general medication policies of the SDSP.
3. Limitations on prescription of certain medications The defendants shall not discourage or limit
the prescription of anti-convulsive and anti-asthmatic medications by qualified physicians when medically appropriate in
Ti.

10
accordance with general medication policies of the SDSP. 4. Medication dispensation The defendants shall maintain a system in
which the administration of a prescribed medication, or the inmate's refusal of such medication, is recorded.
5. Monitoring of inmates receiving major tranquilizers The defendants shall provide for appropriate
medical monitoring of all inmates receiving major tranquilizers. C. Protocols The defendants' proposed health care protocols
(1/11/8 5) shall be revised to reflect the Court1s findings regarding emergency care, staffing, prescription drugs, quality control, financial constraints on the provision of medical and dental care, and protocols.
D. Medical Records The defendants shall organize existing medical
files at the SDSP and shall provide that medical files are maintained in the chart order prescribed in the defendants' health care protocols. (Section I-C-l)(p. 3-4)
E- Quality Control The defendants will develop and implement a
meaningful system of quality control for health services by March 31, 1985.
F. Staff a) The defendants shall maintain adequate medical
staff at the SDSP; b) the defendants shall provide staff coverage on

in i

1—rwrm—i

i"1 •'•'

11

a 24-hour basis when an inmate is admitted to the infirmary; and c) the defendants shall provide nursing staff
coverage on a 24-hour basis when an inmate needing nursing services is admitted to the infirmary.
G. Financial Constraints on Medical and Dental Services a) The defendants shall provide necessary
medical, surgical and dental care; b) the defendants shall provide necessary
protheses free of cost to indigent inmates; and c) the defendants shall provide that medical
judgments regarding necessary treatment shall not be overridden by non-medical staff for financial reasons.

VII.

PSYCHIATRIC AND PSYCHOLOGICAL CARE

A. Staff

1. Staff at SDSP

a) The defendants shall employ an additional

clinical psychologist at the SDSP by June 30, 1985;

b) the defendants shall, at a minimum,

maintain the current staffing level for correctional counselors,

specialized counselors, and psychiatric services.

2. Staff at the forensic unit

The defendants shall provide an acute and

intermediate level care facility staffed by a psychiatrist, two

psychologists, six nurses, four counselors or psychiatric social '

workers, and necessary correctional staff.

•r f
12
VIII. INTAKE AREA The defendants shall provide proper initial medical
screening for newly-admitted inmates.

IX.

ACCESS TO THE COURTS

Access at the SDSP

a) The defendants shall institute a formal

training program for inmate law clerks at the SDSP that will

train such clerks in the fundamentals of legal research, state and federal court procedures, criminal law, prisoners1 rights,

post-conviction remedies, and general civil matters;

b) the defendants shall provide four trained law

clerks for the assistance of inmates at the SDSP;

c) the defendants shall provide by regulation

that the law clerks shall not discriminate against an inmate

because of his race, religion or the nature of his sentence; and

* d) the defendants shall provide by regulation

that the law clerks are available for assistance in the area ot

prisoners' rights.

X.

MONITORING

The defendants shall provide the Court and plaintiffs

with formal progress reports on accomplishing the above order on

March 1, 1985; June 1, 1985; September 1, 1985; December 1, 1985;

and March 1, 1986.

13

XI.

FURTHER ORDERS

The subjects of Adjustment Center fire safety, cell

ventilation and heating, and access to the courts at the

Springfield facility will be the subject of further orders by

this Court.

Respectfully submitted,

Douglas Cummings Cummings Legal Clinic 617 West 11th Street Sioux Falls, SD 57104
'La
Bill Froke East River Legal Services 329 North Phillips Avenue Sioux Falls, SD 57102

t^ Elizabeth Alexander ' f National Prison Project of the American Civil
Liberties Union Foundation, Inc. 1346 Connecticut Ave., NW Suite 402 Washington, D.C. 20036 202/331-0500

im—r

irrr

CERTIFICATE OF SERVICE
I hereby certify that on the 24th day of January, 1985, copies of the plaintiffs' response to defendants' proposed plan for compliance and plaintiffs' proposed remedial order were mailed by first class mail to; Richard Dale, Assistant Attorney General, State Capitol, Pierre, South Dakota 575015090.
Elizabeth Alexander

 </s> STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

WILLIAM R. CODY, Plaintiff,
V.
CAROLE HILLARD, e t a l . f Defendants.

Civ. 80-4039
Cody v. Hillard

• • • • IfHHIl • • I • • ! • l|«
PC-SD-001-004
PLAINTIFFS1 RESPONSE TO DEFENDANTS' PROPOSED PLAN FOR COMPLIANCE

I.

INTRODUCTION

Plaintiffs have attempted a compcehensive review of

defendants' proposals for compliance. Dr. Robert Powitz has

reviewed the physical plant components of the plan. Dr. Ronald

Sable has reviewed the medical component. Dr. Lloyd Baccus

reviewed themental health care component, and in addition toured

the proposed Springfield facility along with plaintiffs'

counsel. In addition, Mr. Daniel Manville, an associate with the

National Prison Project, reviewed the access to courts component

of theplans. Allof these reviews were conducted on-site.

During these reviews, the state employees who assisted

and answered questions were uniformly helpful and cordial'. As

will be apparent from comments in the body of this response,

plaintiffs fully recognize that in a number of areas theState of

South Dakota has proceeded with compliance with commena^ble

energy and intelligence. Many of plaintiffs' concerns regarding

Hi-

the initial compliance plans were satisfactorily addressed by defendants during informal discussions among the parties. Plaintiffs are pleased that we can join with defendants in urging adoption by the Court of much of the defendants' plans, and we will endeavor to continue this spirit of cooperation as implementation of the plans proceeds.
In the plans for compliance submitted by the defendants, there were a number of statements expressing disagreement with factual findings of the Court. These statements are, of course, not evidence. For that reason, and because some of the most objectionable statements have been modified or withdrawn in the amendments to the plans for compliance, plaintiffs will not here respond to such statements.
In plaintiffs' response to the defendants' plans for compliance, plaintiffs concur with the defendants' proposals in a number of areas. For those items, the plaintiffs urge that the Court enter an order incorporating the defendants' proposal in the remedial order of the Court, with compliance to be obtained by the date suggested by defendants. For construction projects in which the defendants have given an estimated completion date, plaintiffs suggest that the Court in its order set a date for completion one month later than the defendants' estimate. For example, the defendants estimate completion of the Federal Hall additional exit on Arpil 12, 1985. Plaintiffs urge the Court to order its completion by May 12, 1985. By building this flexibility into the Court's order, the defendants' need to

return to court for minor revisions of the order should be eliminated.
In the areas in which the parties remain in disagreement, plaintiffs continue to hope that continuing discussions may lead to solutions acceptable to both sides.

II.

ENVIRONMENTAL CONDITIONS-HOUSING

A. Fire Safety

1. Fire exits and stairs

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provisions:

a) the defendants shall provide an

additional fire exit from Federal Hall by May 1, 1985;

b) the defendants shall provide new fire

stairs from East Hall and West Hall by May 15, 1985;

c) the defendants shall provide an

additional fire exit from East Hall by July 6, 1985; and

d) the defendants shall provide an

additional fire exit from West Hall by December 1, 1985.

2. Automatic unlocking system

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provision:

the defendants shall provide that all

cells used for inmate housing at the South Dakota State

Penitentiary (hereinafter SDSP) are equipped with an automatic cell unlocking system by April 20, 1986.
3. Fire separation barriers The plaintiffs urge the Court to accept the
defendants1 proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide for the installation of roll-up steel slot doors at the entrance to West and Federal Halls by July 6, 1985.
4. Emergency lights The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall provide for emergency lights connected to the emergency generator by July 6, 198 5; and
b) the defendants shall provide for two additional exit lights over the doorways in the converted exit from West Hall and one over the new exit from East Hall by February 28, 1985.
5. Adjustment Center fire safety The defendants recently experienced a serious
fire in the Adjustment Center that revealed significant inadequacies in the fire safety equipment for that housing area. Plaintiffs urge that the Court withhold entry of a remedial order on this matter pending submission of an appropriate remedial plan by the defendants.

r
6. Smoke and fire detection system The plaintiffs do not challenge the
defendants1 statement of current conpliance and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain a fire alarm system and smoke detector system in East, West and Federal Cell Halls.
7. Fire evacuation drills The plaintiffs do not challenge the
defendants' statement of current compliance and urge the Court to enter a remedial order incorporating the following provision:
the defendants shall conduct semi-annual unannounced fire drills in East, West and Federal Cell Halls and other appropriate areas of the SDSP.
8. Other fire safety measures The plaintiffs urge the Court to accept the
defendants' proposed remedy or, where applicable, do not challenge the defendants' statement of current compliance regarding other fire safety measures and urge the Court to enter a remedial order incorporating the following provisions:
a) the defendants shall maintain smoke exhaust fans in good working order in East, West and Federal Cell Halls;
b) the defendants shall continue the use of fire retardant mattresses and pillows, and the posting of fire evacuation instructions in every cell;

r
c) the defendants shall maintain emergency air masks and air tanks for staff use in the event of an emergency evacuation; and
d) the defendants shall submit to inspections by the Deputy Fire Marshal of. the State of South Dakota and shall abate any deficiencies found as a result of such inspection.
B. Ventilation and Heating System 1. Cell ventilation and heating Plaintiffs acknowledge that the defendants
have taken certain remedial steps in this area. However, the ventilation in all three cellblocks remains seriously inadequate. Plaintiffs request that this Court schedule an evidentiary hearing regarding the adequacy of the defendants' remedial measures regarding heating and ventilation.1
2. West Hall shower The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain the West Hall shower in a safe and sanitary condition with adequate ventilation.
Plaintiffs wish to continue to explore possible informal resolution of the remaining compliance issues, including this one. Should the parties reach an agreement on this, or others of the remaining issues, plaintiffs will promptly notify the Court.

C. Overhead Lighting and Electrical Wiring 1. Cell lighting The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide adequate cell lighting in East, West and Federal Cell Halls by July 6, 1985.
2. Cell wiring The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall provide properly grounded outlets in West Cell Hall by February 28, 1985; and
b) the defendants shall provide a properly grounded second double outlet in East Cell Hall by July 6, 1985.
3. Removal of jerry-rigged wiring The plaintiffs do not challenge the
defendants' statement of current compliance and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain the cell areas free of improper wiring jerry-rigged by the occupants.
D. Hot Water and Water Control System The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:

a) the defendants shall provide a hot water system for individual cells in Federal Cell Hall by February 28, 1985; and
b) the defendants shall either provide proper plugs for sinks in individual cell halls by March 31, 1985; or
c) the defendants shall provide a temperature regulator for East and Federal Halls by February 25, 1985.

III.

ENVIRONMENTAL CONDITIONS—KITCHEN AND FOOD STORAGE AREA

A. Milk Pasteurization Process

In view of the defendants' statement that they have

ceased activities in this area shortly prior to the submission of

their plans for compliance, plaintiffs are entitled to an order

protecting them from a recurrence of the violations proven at

trial. Accordingly, the plaintiffs urge that the Court enter a

remedial order incorporating the following provisions:

a) should the defendants resume pasteurization

operations, these operations shall be conducted in a safe and

healthful manner;

b) should the defendants resume pasteurization

operations, the defendants shall submit such operations to

monthly inspections of milk samples and quarterly inspections of

the monitoring equipment by the South Dakota Department of

Agriculture; and

c) the defendants shall immediately abate any

deficiencies found as a result of such inspections.

B. Food Storage 1. Basement food storage The plaintiffs urge the Court to accept the
defendants1 proposed remedy with minor modification^ and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall maintain all food storage areas in the SDSP in good repair and in a clean, healthful and vermin-free condition;3 and
b) the defendants shall maintain canopies or some other appropriate protective measure to ensure against unsanitary spillage from the overhead pipes in or around the stored food in the basement food storage area.
2. Kitchen food storage The plaintiffs urge the Court to accept the
defendants' proposed remedy or, where applicable, do not challenge the defendants' statement of current compliance and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants will complete scheduled improvements on the kitchen freezers and coolers by April 15, 1985;
Some of the donnage in the basement food storage area needs replacement. 3 In plaintiffs' review of defendants' plans for compliance they learned for the first time that the defendants are now using a converted slaughterhouse at the SDSP for food storage. There are health and sanitation deficiencies in that facility.

10
b) the defendants will maintain proper methods of food storage in the kitchen.
C. Kitchen Elevator The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall maintain the kitchen elevator in a safe operating condition and shall maintain safety buffer devices on the doors to prevent injuries; and
b) the defendants shall submit to inspections of the kitchen elevator at appropriate intervals and shall abate any deficiencies found as a result of such inspections.
D. General Kitchen Practices and Conditions 1. Ventilation The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide for adequate kitchen ventilation by August 15, 1985.
2. Kitchen fire safety The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain ancillary fire protection systems for the kitchen stove hoods.
3. Utensil repair and sanitation The plaintiffs urge the Court to accept the

11

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provision:

the defendants shall maintain kitchen

pots, pans and dining utensils in good repair and in safe and

sanitary condition.
4. Inmate access to the infirmary through the kitchen

The plaintiffs recognize that the defendants

cannot, because of basic design deficiencies in the SDSP,

completely remedy this deficiency.

Because this design

deficiency cannot be remedied, plaintiffs believe that acceptance of the defendants1 partial remedial action is preferable to

requiring measures that could serve to delay emergency medical

care on nights and weekends.

Accordingly, plaintiffs urge that this Court

enter a remedial order incorporating the following provision:

the defendants shall prohibit inmate

access to the infirmary through the kitchen during normal

operational hours.

5. Kitchen food defrosting

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provision:

the defendants shall maintain the food

defrosting equipment in a safe and healthful manner, free from

potential back siphonage.

6. Other kitchen practices

The plaintiffs urge the Court to accept the

12

defendants1 proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall maintain the proper use of hair restraints among food service workers?
b) the defendants shall maintain the ice machine in good repair and in a sanitary condition; and
c) the defendants shall not allow use of any part of the kitchen area as a worker lounge or smoking area.

IV.

ENVIRONMENTAL CONDITIONS—SHOPS AND VOCATIONAL PROGRAMS

A. Welding Shop

The plaintiffs urge the Court to accept the defendants1 proposed remedy and urge that the Court enter a

remedial order incorporating the following provision:

the. defendants shall maintain adequate

ventilation and toxic fume removal in the welding booths, sanding

room and spray booths.

B. Furniture Upholstery Shop

The plaintiffs urge the Court to accept the defendants1 proposed remedy and urge that the Court enter a

remedial order incorporating the following provisions:

a) the defendants shall maintain adequate

ventilation and toxic fume removal in the furniture upholstery

shop; and

b) the defendants shall require that inmate

workers in the furniture upholstery shop wear appropriate

13
protective devices when employed in the paint stripping and spraying booths.
C. Proper Storage of Combustibles The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain safe and proper storage of combustible materials in the shops area.
D. Barbershop The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain safe and sanitary conditions in the barbershops.
E. Safety Locking Devices Although not reflected in defendants' submissions,
the defendants have taken certain necessary corrective action in this area.4 The plaintiffs urge that the Court enter the following remedial order:
the defendants will maintain appropriate safety devices on machinery in the vocational shops.
F. Sawdust Removal The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a
4 The plaintiffs are prepared to show evidence that remedial action occurred.

14

remedial order incorporating the following provision: the defendants shall provide a proper sawdust
removal system in the carpentry shop by March 15, 1985.

V.

ENVIRONMENTAL CONDITIONS—OTHER AREAS

A. Underground Corridor Lighting

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provision:

the defendants shall provide adequate lighting

in the underground corridor to the 'recreation building by

February 28, 1985.

B. Sanitary Conditions in the Infirmary

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provisions:

a) the defendants shall maintain proper sanitary

conditions in the infirmary; and

b) the defendants shall maintain the infirmary

free of potential back siphonage flows.

VI.

DOUBLE-CELLING

The plaintiffs urge the Court to accept the defendants'

proposed remedy and urge that the Court enter a remedial order

incorporating the following provision:

the defendants shall end double-celling in all

areas of the SDSP by August 31, 1985.

15

VII.

MEDICAL AND DENTAL CARE

A. Use of Inmate Workers

The plaintiffs urge the Court to accept the

defendants' proposed remedy and urge that the Court enter a

remedial order incorporating the following provisions:

a) the defendants shall not employ inmate workers

for tasks related to medical or dental health care, including the

provision of direct care services; the scheduling of appointments

or other involvement in determining the access of other inmates

to health care services; and the operation of medical or dental

equipment; and

b) the defendants shall provide that no inmate

has access to the medical or dental records of other inmates.

B. Emergency Medical Care

1. Protocols

The protocols proferred to the Court by

defendants require revision in light of the other changes in the

emergency care plan urged by plaintiffs, infra. The plaintiffs

urge that the Court enter a remedial order incorporating the

following provision:

the defendants shall maintain proper

emergency care protocols, including a provision setting forth the

identification system for the emergency medical technician (EMT)

on duty.

2. Emergency staff

Plaintiffs accept the defendants' proposed

(

i"

16

remedy of providing one EMT per shift, provided that an appropriate system is developed so that all staff can identify the on-duty EMT, that EMT staff are limited to the use of emergency equipment for which they can be appropriately trained, and provided further that use of the SDSP infirmary is restricted in recognition of the night and weekend limited medical staff coverage. See plaintiffs' section V.C. and V.F., infra. Plaintiffs urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide that at least one certified EMT shall be on duty at the SDSP at all times by July 31, 1985.
3. Crash cart The defendants' proposed plan fails to comply
with this Court's decision regarding the necessity of a crash cart. At defendants' request, plaintiffs have supplied the defendants with information relating to two different acceptable crash cart formats. The plaintiffs urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide a crash cart for emergency use at the SDSP by June 1, 1985.
4. Resuscitation equipment With the addition of a crash cart, the
defendants' proposed remedy will be adequate. The plaintiffs urge the Court to enter a remedial order incorporating the following provision:
the defendants shall maintain proper

17
emergency resuscitation equipment. C. Prescription Drugs 1. Formulary The plaintiffs urge the Court to accept the
defendants1 proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain an appropriate formulary of the prescription medications utilized at the SDSP.
2. Prohibitions on prescription of certain medications The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall not prohibit the prescription of sleeping medications, pain relievers, minor tranquilizers, appetite suppressants, and cough medicines by qualified physicians when medically appropriate in accordance with general medication policies of the SDSP.
3. Limitations on prescription of certain medications Provision 6 on p.6 of the defendants' revised
proposed health protocols is improper and should be deleted. Plaintiffs urge that the Court enter a remedial order incorporating the following provision:
the defendants shall not discourage or limit the prescription of anti-convulsive and anti-asthmatic medications by qualified physicians when medically appropriate in

18
accordance with general medication policies of the SDSP. 4. Medication dispensation The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall maintain a system in which the administration of a prescribed medication, or the inmate's refusal of such medication, is recorded.
5. Monitoring of inmates receiving major tranquilizers The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provision:
the defendants shall provide for appropriate medical monitoring of all inmates receiving major tranquilizers.
C. Protocols The defendants' proposed remedy partially conforms
with this Court's decision. In a number of important respects, however, the revised proposed protocols (1/11/85) are defective, as follows:
Section I-A-ll(p.2): This section should reflect the identification system for EMT personnel. In addition, some crash cart equipment should not be used by EMT personnel. Accordingly, this section should provide that EMT personnel will use emergency equipment for which they are properly trained.
Section I-B-l(p.2): This section should set

19

forth limits on the use of the infirmary. Because the infirmary

will not be staffed with medical staff continuously, no inmate

needing nursing care should be admitted unless special

appropriate staff coverage is provided. The infirmary should not

be used on an overnight basis at all unless a staff member is

continously present.

Section I-D-6(p.9):

Appropriate staff

coverage is provided. The infirmary should not be used on an

overnight basis at all unless a staff member is continuously

present.

Section I-D-6(p.6):-

This provision is

inconsistent with the Court's decision and should be deleted.

Section I-6(p.6): No one on the medical staff

could explain the meaning of this section, and this section has

no apparent operational meaning. According to the information

yet supplied the plaintiffs by defendants, the SDSP has yet to

devise a quality control program.

Section I.I-C-1 (p.12) : These sections lack

appropriate detail to comply with the Court's decision.

Section II-E-3(p.14): This section fails to

give meaningful guidelines regarding the distinction between

elective and non-elective procedures.

Section II-F.(p.l4):

This section is

inconsistent with the Court's decision and should be deleted or

completely rewritten.

The plaintiffs urge that the Court enter a remedial

order incorporating the following provision:

nr

20

the defendants' proposed health care protocols (1/11/85) shall be revised to reflect the Court's findings regarding emergency care, staffing, prescription drugs, quality control, financial constraints on the provision of medical and dental care, and protocols.

D. Medical Records

Plaintiffs' review of the defendants' medical records found them to be, if anything, more chaotic than at the

time of the plaintiffs' original review of the records. The defendants need to submit a specific plan detailing the steps that will be taken to correct deficiencies in this area.

Plaintiffs urge that the Court enter an order incorporating the following provision:

the defendants shall organize existing medical

files at the SDSP and shall provide that medical files are

maintained in the chart order prescribed in the defendants' health care protocols. (Section I-C-l)(p. 3-4)

E. Quality Control

The defendants have failed to develop any meaningful system of quality control for health services at the

SDSP. The plaintiffs urge that the Court enter a remedial order incorporating the following provision:

the defendants will develop and implement a meaningful system of quality control for health services by March

31, 1985. F.

Staff

Plaintiffs accept the defendants' proposed remedies

21
provided that (a) a system for the identification of the EMT on duty by other staff is developed; (b) EMT are limited to the use of emergency equipment for which they can be appropriately trained; (c) a staff member is continuously present when the infirmary is used on an overnight basis; and, (d) nursing staff is continuously provided in the infirmary when inmates needing nursing care are present. The plaintiffs urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall maintain adequate medical staff at the SDSP;
b) the defendants shall provide staff coverage on a 24-hour basis when an inmate is admitted to the infirmary; and
c) the defendants shall provide nursing staff coverage on a 24-hour basis when an inmate needing nursing services is admitted to the infirmary.
G. Financial Constraints on Medical and Dental Services As noted supra in Section V I I . C , the defendants
have failed to comply with the Court's decision because the defendants' proposed protocols contain inappropriate references to financial constraints on medical and dental services and fail to provide guidelines to distinguish elective and non-elective services. In addition, plaintiffs' review found evidence that members of the class continue to be denied appropriate access to services for financial reasons. Clear and detailed protocols, particularly in the dental area, would assist in curing this deficiency. Plaintiffs urge that the Court enter a remedial order incorporating the following provisions:

(

(

22

a) the defendants medical, surgical and dental care;

shall

provide

necessary

b) the defendants shall provide necessary

protheses free of cost to indigent inmates; and

c) the defendants shall provide that medical

judgments regarding necessary treatment shall not be overridden

by non-medical staff for financial reasons.

VIII. PSYCHIATRIC AND PSYCHOLOGICAL CARE A. Staff 1. Staff at SDSP The plaintiffs urge the Court to accept the
defendants' proposed remedy and urge that the Court enter a remedial order incorporating the following provisions:
a) the defendants shall employ an additional clinical psychologist at the SDSP by June 30, 1985;
b) the defendants shall, at a minimum, maintain the current staffing level for correctional counselors, specialized counselors, and psychiatric services.
2. Staff at the forensic unit Plaintiffs cannot evaluate the appropriateness
of the defendants' proposed remedy until they receive a specific break-down of the type of staffing to be provided at the forensic unit. Should this information not be forthcoming to the Court and the plaintiffs, plaintiffs urge that the Court enter a remedial order incorporating the following provision based on paragraph H.3.F.(p.35) of the Court's findings of fact:

c

c

23

the defendants shall provide an acute and intermediate level care facility staffed by a psychiatrist, two psychologists, six nurses, four counselors or psychiatric social workers and necessary correctional staff.^

IX.

INTAKE AREA

The plaintiffs urge the Court to accept the defendants'

proposed remedy and urge that the Court enter a remedial order

incorporating the following provision:

the defendants shall provide proper initial medical

screening for newly-admitted inmates.

X.

ACCESS TO THE COURTS

A. Access at the SDSP

Contrary to the Court's order, the defendants have

failed to prepare a plan for compliance regarding SDSP inmates'

access to the Courts. In view of the defendants' failure to

propose their own remedy, the plaintiffs urge that the Court

enter a remedial order incorporating the following provisions:

a) the defendants shall institute a formal

training program for inmate law clerks at the SDSP that will

train such clerks in the fundamentals of legal research, state

and federal court procedures, criminal law, prisoners' rights,

post-conviction remedies, and general civil matters;

^ Plaintiffs are prepared to discuss with defendants deviations from this formula so long as the overall level of services provided will not be compromised.

24
b) the defendants shall provide four trained law clerks for the assistance of inmates at the SDSP;
c) the defendants shall provide by regulation that the law clerks shall not discriminate against an inmate because of his race, religion or the nature of his sentence; and
d) the defendants shall provide by regulation that the law clerks are available for assistance in the area of prisoners1 rights.
B. Access at the Springfield Facility Plaintiffs believe that the concept of utilizing
lawyers to satisfy inmates' needs for legal assistance at the Springfield facility is a highly commendable one. The defendants' submission, however, gives no information regarding the defendants' proposed remedy. As an interim matter, this Court should order the defendants to submit information in the following areas regarding their plans for legal access at Springfield: (1) number of hours per week services will be offered; (2) priorities for service of inmate needs; (3) type of services to be offered (e.g. , advice, research memoranda, pleadings drafting); and (4) legal areas in which services will be offered (e.g. , post-conviction relief; prisoners' rights; ordinary civil matters).
When the above information has been submitted to the Court, and plaintiffs have had an opportunity to comment on the proposal, the Court can enter an appropriate order on this issue.

25

Respectfully submitted,

Douglas^Cummings ° Cummings Legal Clinic 617 West 11th Street Sioux Falls, SD 57104
Bill Froke East River Legal Services 329 North Phillips Avenue Sioux Falls, SD 57102

y
Elizabeth Alexander National Prison Project of the American Civil Liberties Union Foundation, Inc. 1346 Connecticut Ave., NW Suite 402 Washington, D.C. 20036
202/331-0500

 </s> v

%
UNITED 'STATES'*DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

WILLIAM R. CODY, Individually and on behalf of all other persons similarly situated,
Plaintiffs
ys.
CAROLE HILLARD, President of the Board of Charities and Corrections; FRANK BROST, Vice President; TED SPAULDING, Member; D.A. GELHOFF, Member; LYLE SWENSON, Member; JAMES SMITH, Executive Secretary; HERMAN SOLEM, Warden of the South Dakota State Penitentiary; sued individually .and in their official capacities,
Defendants.

CIV. 80-4039
PROPOSED FINAL ORDER

The Court having filed, May 31, 1984, findings and conclusions in a Memorandum Opinion, together with an interlocutory judgment and order; having considered proposed remedial orders, together with objections thereto, filed by the parties; having heard the parties on the merits of this Proposed Final Order to which the parties have agreed on the record on May 29, 1985; recognizing the earnest steps taken by the Defendants in addressing the issues raised in this action; acknowledging the diligence of Plaintiffs in advancing their interests herein; desiring a prompt and satisfactory resolution of the matters before it; being satisfied that the provisions of this Proposed Final Order do substantial justice and are fairly supported by
Cody v. Hillard

PC-SD-001-005

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the evidence; the Court hereby orders that notice of the following order be given the plaintiff class in this matter: I. ENVIRONMENTAL CONDITIONS—HOUSING
A. Fire Safety 1. Fire exits and stairs. a. The Defendants shall provide new fire stairs from East Hall, Federal Hall and West Hall by May 15, 1985; b. The Defendants shall provide an additional fire exit from East Hall by July 6, 1985; and c. The Defendants shall provide an additional fire exit from West Hall by December 1, 1985. 2. Automatic unlocking system. The Defendants shall provide that all cells used for inmate housing in East, West and Federal Cell Halls
i at the South Dakota State Penitentiary's main institution in Sioux Falls (hereinafter SDSP) are equipped with an automatic cell unlocking system by December 31, 1985. 3. Fire separation barriers. The Defendants shall provide for the installation of roll-up steel slat doors at the entrance to West and Federal Halls by July 6, 1985.

(

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4. Emergency lights. a. The Defendants shall provide for emergency-
lights connected to the emergency generator by July 6, 1985; and
b. The Defendants shall provide for two additional exit lights over the doorways in the converted exit from West Hall and one over the new exit from East Hall prior to installation of doors specified in paragraph A.l.b and c. above. 5. Smoke and fire detection system.
The Defendants shall continue to maintain a fire alarm system and smoke detector system in East, West and Federal Cell Halls. 6. Fire evacuation drills.
The Defendants shall conduct semiannual unannounced fire drills in East, West and Federal Cell Halls and other appropriate areas of the SDSP. 7. Other fire safety measures.
a. The Defendants shall continue to maintain smoke exhaust fans in good working order in East, West and Federal Cell Halls;
b. The Defendants shall continue the use of fire retardant mattresses and pillows, and the posting of fire evacuation instructions in every cell;

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c. The Defendants shall continue to maintain selfcontained breathing apparatus for staff use in the event of an emergency evacuation; and
d. The Defendants shall continue to submit to inspections by the South Dakota State Fire Marshal and shall abate any deficiencies found as a result of such inspection. B. Ventilation and Heating System. 1. Cell ventilation and heating.
By March 1, 1986, the Defendants shall install a new digital system to control ventilation and heating in each cell hall, install screened damper grills on the exhaust .vents in all cells, install new exhaust fans on each tier in the pipe chases behind each cell hall and install new ductwork to connect the cell exhaust vents to the exhaust fans. 2. West Hall shower.
The Defendants shall continue to maintain the West Hall shower in a safe and sanitary condition with adequate ventilation. C. Overhead Lighting and Electrica.l Wiring. 1. Cell lighting.
The Defendants shall provide adequate cell lighting in East, West, and Federal Cell Halls by December 31, 1985

TUT

-5-
2. Cell wiring. a. The Defendants shall provide properly grounded
outlets in West Cell Hall by December 31, 1985; and b. The Defendants shall provide a properly
grounded second double outlet in East Cell Hall by December 31, 1985. 3. Removal of jerry-rigged wiring.
The Defendants shall maintain the cell areas free of improper wiring jerry-rigged by the occupants. D. Hot Water and Water Control System. 1. The Defendants shall continue to provide a hot water system for individual cells in Federal Cell Hall; and 2. The Defendants shall either provide proper plugs for sinks in individual cell halls; or 3. The Defendants shall continue to maintain a temperature regulator for East and Federal Halls. II. ENVIRONMENTAL CONDITIONS—KITCHEN AND FOOD STORE AREA A. Milk Pasturization Process. 1. Should the Defendants resume pasturization operations, these operations shall be conducted in a safe and healthful manner; 2. Should the Defendants resume pasteurization operations, the Defendants shall submit such operations to monthly inspections of milk samples and quarterly

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inspections of the monitoring equipment by the South Dakota Department of Agriculture; .and 3. The Defendants shall immediately abate any deficiencies found as a result of such inspections. B. Food storage. 1. Basement food storage.
a. The Defendants shall continue to maintain all food storage areas in the SDSP in good repair and in a clean, healthful and vermin-free" condition; and
b. The Defendants shall continue to maintain canopies or some other appropriate protective measure to ensure against unsanitary spillage from the overhead pipes in or around the stored food in the basement food storage area. 2. Kitchen food storage.
a. The Defendants will continue to maintain proper kitchen freezers and coolers.
b. The Defendants will continue to maintain proper methods of food storage in the kitchen. C. Kitchen elevator. 1. The Defendants shall continue to maintain the kitchen elevator in a safe operating condition and shall

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maintain safety buffer devices on the doors to prevent injuries; and 2. The Defendants shall submit to inspections of the kitchen elevator at appropriate intervals and shall abate any deficiencies found as a result of such inspections. D. General Kitchen Practices and Conditions. 1. Ventilation.
The Defendants shall provide for adequate kitchen ventilation by August 15, 1985. 2. Kitchen Fire Safety.
The Defendants shall continue to maintain ancillary fire protection systems for the kitchen stove hoods. 3. Utensil repair and sanitation.
The Defendants shall maintain kitchen pots, pans and dining utensils in good repair and in safe and sanitary condition. 4. Inmate access to the infirmary through the kitchen.
The Defendants shall continue to prohibit inmate access to the infirmary through the kitchen during normal operational hours. 5. Kitchen food defrosting.
The Defendants shall continue to maintain the food
-nrr

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defrosting equipment in a safe and healthful manner, free from potential back siphonage. 6. Other kitchen practices.
a. The Defendants shall continue to maintain the proper use of hair restraints among food service workers;
b. The Defendants shall maintain the ice machine in good repair and in a sanitary condition; and
c. The Defendants shall continue to prohibit use of any part of the kitchen area as a worker lounge or smoking area. III. ENVIRONMENTAL CONDITIONS-SHOPS AND VOCATIONAL PROGRAMS A. Welding Shop. The Defendants shall maintain adequate ventilation and toxic fume removal in the welding booths, sanding room and spray booths. B. Furniture Upholstery Shop. a. The Defendants shall maintain adequate ventilation and toxic fume removal in the furniture upholstery shop; and b. The Defendants shall require that inmate workers in the furniture upholstery shop wear appropriate protective devices when employed in the paint stripping and spraying booths.

-mm • •"

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C. Proper Storage of Combustibles. The Defendants shall continue to maintain safe and proper storage of combustible materials in the shop area.
D. Barbershop. The Defendants shall continue to maintain safe and sanitary conditions in the barbershops.
E. Safety Locking Devices. The Defendants shall continue to maintain appropriate safety devices on machinery in the vocational shops.
F. Sawdust Removal. The Defendants shall continue to provide a proper sawdust removal system in the carpentry shop.
IV. ENVIRONMENTAL CONDITIONS—OTHER AREAS A. Underground Corridor Lighting The Defendants shall continue to provide adequate lighting in the underground corridor to the recreation building. B. Sanitary Conditions in the Infirmary. 1. The Defendants shall continue to maintain proper sanitary conditions in the infirmary; and 2. The Defendants shall continue to maintain the infirmary free of potential back siphonage.
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V. MEDICAL AND DENTAL CARE A. Use of Inmate Workers. 1. The Defendants shall not employ inmate workers in the provision of medical or dental services; nor shall inmate workers schedule appointments or be otherwise involved in determining the access of other inmates to health care services; and the operation of medical or dental equipment; and 2. The Defendants shall provide that no inmate has access to the medical or dental records of other inmates. B. Emergency Medical Care. 1. Protocols. The Defendants shall maintain proper emergency care protocols, including a provision setting forth the identification system for the emergency medical technician (EMT) on duty. 2. Emergency Staff. The Defendants shall provide that at least one certified EMT or registered nurse shall be on duty at the SDSP at all times by July 31, 1985. 3. Crash Cart. By June 30, 1985, the Defendants shall provide a

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crash cart at the SDSP for the emergency use solely of physicians and nurses and other qualified personnel otherwise on duty.
4. Resuscitation equipment. The Defendants shall maintain proper emergency
resuscitation equipment. : C. Prescription Drugs.
1. Formulary. The Defendants shall maintain an appropriate form-
ulary of the prescription medications utilized at the SDSP. 2. Prohibitions on prescription of certain medications.
The Defendants shall continue not to prohibit the prescription of sleeping medications, pain relievers, minor tranquilizers, appetite suppressants, and cough medicines by qualified physicians when medically necessary in accordance with general medication policies of the SDSP. 3. Limitations on prescription of certain medications.
The Defendants shall continue not to discourage or limit the prescription of anti-convulsive and antiasthmatic medications by qualified physicians when medi-

TWI

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cally necessary and appropriate in accordance with general medication policies of the SDSP. 4. Medication dispensation.
The Defendants shall maintain a system in which the administration of a prescribed medication, or the inmate's refusal of such medication, is recorded. 5. Monitoring of inmates receiving major tranquilizers.
The Defendants shall provide for appropriate medical monitoring of all inmates receiving major tranquilizers. D. Protocols. The Defendants shall maintain appropriate health care protocols which shall govern the provision of health care services at the SDSP. E. Medical Records. The Defendants shall organize existing medical files at the SDSP and shall provide that medical files are maintained in the chart order prescribed in the Defendants' health care protocols. F. Staff. 1. The Defendants shall continue to maintain adequate medical staff at the SDSP;

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2. The Defendants shall provide nursing staff coverage on a 24-hour basis when an inmate needing nursing servcies is admitted to the infirmary. G. Financial Contraints on Medical and Dental Services. 1. The Defendants shall provide necessary medical, surgical and dental care; 2. The Defendants shall provide necessary prostheses free of cost to indigent inmates; and 3. The Defendants shall provide that medical judgments of SDSP medical staff regarding necessary treatment shall not be overriden by non-medical staff for financial reasons. In a situation where two or more courses of medical or dental treatment are each considered by physicians or dentists at the SDSP to be adequate and consistent with community standards, the physician or dentist may recommend or prescribe the least expensive treatment VI. PSYCHIATRIC AND PSYCHOLOGICAL CARE. A. Staff at SDSP. 1. The Defendants shall employ an additional clinical psychologist at the SDSP by June 30, 1985; and 2. The Defendants shall, at a minimum, maintain the staffing ratio for correctional counselors, specialized counselors, and psychiatric services which existed as of

{
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May 31, 1984. Should such ratio change in that said counselors would have to provide services for a greater number of inmates, the Defendants have ninety (90) days within which to reestablish the ratio as it existed on May 31, 1984. B. Staff at the Forensic Unit. The Defendants shall provide an acute and intermediate level care facility with 24-hour nursing personnel coverage, staffed by a psychiatrist, a psychologist, four counselors or psychiatric social workers, and necessary nursing and correctional staff, provided, however, that Defendants may utilize personnel on a shared basis with the Human Services Center. VII. INTAKE AREA. The Defendants shall provide proper initial medical screening for newly-admitted inmates. VIII. ACCESS TO THE COURTS. To satisfy inmates' needs for legal assistance at the SDSP and Springfield facilities, the Defendants shall provide legal counsel who shall offer legal advice to indigents. Defendants shall also furnish legal counsel for the purpose of drafting pleadings where indigent inmates lack sufficient literacy to prepare pleadings on their own behalf. All of the

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foregoing services shall be provided only with respect to habeas corpus and civil rights actions other than appeals of convictions. IX. MONITORING. The Defendants shall provide the Court and plaintiffs with formal progress reports on accomplishing the above Order on June 1, 1985; September 1, 1985; December 1, 1985; and March 1, 1986.
Certain other areas of the Court's findings, specifically those related to double-celling, quality control for health services, and staff coverage of the infirmary, could not be agreed to by the parties, and will be addressed in a separate order by this Court.

 </s> UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED July 8, 1985 William F. Clayton,
Clerk JLH

WILLIAM R. CODY, Individually and on behalf of all other persons similarly situated,

Plaintiffs

vs.
CAROLE HILLARD, President of the Board of Charities and Corrections; FRANK BROST, Vice President; TED SPAULDING; D.A. GEHLHOFF, Member; LYLE SWENSON, Member; JAMES SMITH, Executive Secretary; HERMAN SOLEM, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities,

CIV. 80-4039 FINAL ORDER

Defendant.

The Court having entered its findings of fact and conclusions of law in this case, see Cody v. Hillard, 599 F.Supp. 1025 (D.S.D. 1984) , it is
ORDERED that in the event that the daily population of the SDSP, other than Protective Custody inmates, shall exceed 95% of total American Corrections Association (ACA) rated capacities for 60 consecutive days, the defendants shall commence to develop programs to reduce that population; if such population shall exceed 110% of such ACA capacities for 60 consecutive days, the State within 180 days shall reduce said population to 95% of the total ACA capacities of these facilities; provided, however, that days during which populations may exceed these percentages as a consequence of riot, fire, acts of God, labor unrest, war, civil
Cody v. Hillard

H

"

H

HH

HV

M

V

PC-SD-001-006

2-

disturbance, or any other emergencies shall be excluded in applying the foregoing;
The defendants shall cease double-celling of inmates held in Protective Custody;
The defendants will provide a meaningful system of quality control for health services, including a system of annual on-site reviews of medical personnel to be undertaken by appropriate officials of the South Dakota Department of Health;
The defendants shall provide staff coverage on a 24-hour basis when an inmate is admitted to the infirmary, consisting of at least hourly visual checks upon the inmate by a staff member. The defendants shall also provide a functioning emergency call button system in the infirmary rooms.
Dated July 8, 1985.

BY THE COURT:

DONALD J. PORTER CHIEF JUDGE, U.S. DIST. COURT

ATTEST: WILLIAM F. CLAYTON, CLERK

BY:

JUDY L. HARVEY

Deputy

(SEAL OF COURT)

 </s> STATES DISTRICT COURT

TRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

WILLIAM R. CODY, Individually ) and on behalf of all other ) persons similarly situated, )

Civ. 80-4039

Plaintiff,

)

v.

)

ORDER

CAROLE HILLARD, President of )

the Board of Charities and )

Corrections; FRANK BROST,

)

Vice President; TED SPAULDING;)

D.A. GEHLHOFF, Member; LYLE )

SWENSON, Member; JAMES SMITH, )

Executive Secretary; HERMAN )

SOLEM, Warden of the South )

Dakota State Penitentiary; )

sued individually and in their)

official capacities,

)

Defendants.

)

Commencing on July 9, 1987, this Court heard

evidence from the parties regarding the state of compliance

with the partial consent decree entered on July 8, 1985.

The Court, having fully considered the evidence and the

submissions by the parties; recognizing the earnest steps

taken by the Defendants in addressing the issues raised in

this action; acknowledging the diligence of Plaintiffs in

advancing their interests herein; desiring a prompt and

satisfactory resolution of the matters before it; being

satisfied that the provisions of this remedial order do

substantial justice and are fairly supported by the

evidence, hereby enters the following order:

Cody v. Hillard

PC-SD-001-010

1) Appointment of health and safety panel.

A. The parties shall each appoint a sanitation

and safety representative and a medical representative

within ten days of this order.

B. Within twenty days of this order, the

parties' representatives shall meet and shall make good

faith efforts to reach agreement on specific steps to remedy

deficiencies in compliance with the partial consent decree.

C. The representatives shall thereafter within

twenty days report their agreements, together with any

unresolved issues, to the parties.

D. The parties' counsel shall thereafter make

good faith efforts to reach agreement upon any unresolved

issues.

E. The parties shall thereafter report to the

Court within thirty days of receiving their representatives'

report.

F. Following receipt of the report, this Court

will consider entry of a further order.

G. Reports required by this section of the order

shall cover the following provisions of the consent decree:

I.A.6 I.A.7d I.B.I
II.B.I II.B.2 II.C. II.D.3
II.D.5 III.B. III.E.

Fire evacuation drills Fire inspections Cell ventilation and heating
Basement food storage Kitchen food storage Kitchen elevator Utensil repair and sanitation Kitchen food defrosting Furniture upholstery shop Safety locking devices

III.F. V.C.I V.C.2
V.C.5
V.F.I V.F.2 V.G.
VI.A. VLB.
2)
safety.

Sawdust removal Formulary Prohibition on prescription of certain medications Monitoring of inmates receiving major tranquilizers Staff Nursing staff coverage Financial constraints on medical and dental services Staff at SDSP Staff at the Forensic Unit
Further monitoring orders regarding sanitation and

A. The Defendants shall arrange for, and submit to, semiannual inspections for fire safety, food preparation safety and hygiene, including food storage sanitation; and vocational shop safety. Consistent with the general purposes of the partial consent decree and constitutional standards, the Defendants shall correct health and safety deficiencies found in such inspections. Corrections beyond that required by the partial consent decree and constitutional standards will be undertaken by the Defendants at their option.

B. The Defendants shall promptly submit copies of the reports of such inspections to the Plaintiffs and the Court for a period of one year from the date this order is entered.
3) Further orders regarding legal access.

The Defendants shall take the following remedial actions regarding legal access:

A. Develop a form for prisoner use in requesting legal services that does not require the prisoner to disclose the reasons for seeking to contact the appointed lawyer;
B. Replace required volumes missing from the law library;
C. Assure that illiterate prisoners will be provided assistance in preparing briefs; and
D. Report to the Court on their plan for compliance in the issue of legal access within forty-five days of this order.
4) Interim extension of monitoring requirements. Until such time as the Court enters a further
order based on the report of the health and safety panel, the Court extends the monitoring requirement established under § IV of the partial consent decree and previously extended by order of this Court dated February 12, 1987. The Defendants' progress reports shall be due on a quarterly basis commencing on December 1, 1987, and continuing for one year from that date.
Nothing in this order diminishes the responsibilities of Defendants to comply promptly and fully with the partial consent decree ordered by this Court on July 8, 1985.
5) Expenses of panel. The reasonable fees and expenses of the panel
shall be borne by the Defendants.

BY THE COURT:

ATTEST: WILLIAM F. CLAYTON, CLERK
By: Deputy Clerk
[Seal of Court]

Honorable Donald J. Porter Chief U.S. District Judge

c

CERTIFICATE OF SERVICE
I hereby certify that on October 26, 1987, I mailed a true copy of Plaintiffs' Brief in Support of Proposed Consent Order and the Proposed Consent Order by Federal Express to Richard Dale, Assistant Attorney General, State Capitol, Pierre, South Dakota 57501.

Dated: October 26, 1987

Elizabeth Alexander

 </s> UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

FILED November 4, 1987 William F. Claytc
Clej
CLM

WILLIAM R. CODY, Individually ) and on behalf of all other ) persons similarly situated, )

Civ. 80-4039

Plaintiff,

)

V.

)

)

CAROLE HILLARD, President of )

the Board of Charities and )

Corrections; FRANK BROST,

)

Vice President; TED SPAULDING;)

D.A. GEHLHOFF, Member; LYLE )

SWENSON, Member; JAMES SMITH, )

Executive Secretary; HERMAN )

SOLEM, Warden of the South )

Dakota State Penitentiary; )

sued individually and in their)

official capacities,

)

)

Defendants.

)

ORDER

Commencing on July 9, 1987, this Court heard

evidence from the parties regarding the state of compliance

with the partial consent decree entered on July 8, 1985.

The Court, having fully considered the evidence and the

submissions by the parties; recognizing the earnest steps

taken by the Defendants in addressing the issues raised in

this action; acknowledging the diligence of Plaintiffs in

advancing their interests herein; desiring a prompt and

satisfactory resolution of the matters before it; being

satisfied that the provisions of this remedial order do

substantial justice and are fairly supported by the

evidence, hereby enters the following order:

Cody v. Hillard

PC-SD-001-011

1) Appointment of health and safety panel.

A. The parties shall each appoint a sanitation

and safety representative and a medical representative

within ten days of this order.

B. Within twenty days of this order, the

parties' representatives shall meet and shall make good

faith efforts to reach agreement on specific steps to remedy

deficiencies in compliance with the partial consent decree.

C. The representatives shall thereafter within

twenty days report their agreements, together with any

unresolved issues, to the parties.

D. The parties' counsel shall thereafter make

good faith efforts to reach agreement upon any unresolved

issues.

E. The parties shall thereafter report to the

Court within thirty days of receiving their representatives'

report.

F. Following receipt of the report, this Court

will consider entry of a further order.

G. Reports required by this section of the order

shall cover the following provisions of the consent decree:

I.A.6 I.A.7d I.B.I
II.B.I II.B.2 II.C. II.D.3
II.D.5 III.B. III.E.

Fire evacuation drills Fire inspections
Cell ventilation and heating
Basement food storage Kitchen food storage
Kitchen elevator Utensil repair and
sanitation Kitchen food defrosting
Furniture upholstery shop
Safety locking devices

III.F. V.C.I V.C.2
V.C.5
V.F.I V.F.2 V.G.
VI.A. VLB.
2)

Sawdust removal Formulary Prohibition on prescription of certain medications Monitoring of inmates receiving major tranquilizers Staff Nursing staff coverage Financial constraints on medical and dental services Staff at SDSP Staff at the Forensic Unit
Further monitoring orders regarding sanitation and

safety.

A. The Defendants shall arrange for, and submit

to, semiannual inspections for fire safety, food preparation

safety and hygiene, including food storage sanitation; and

vocational shop safety. Consistent with the general

purposes of the partial consent decree and constitutional

standards, the Defendants shall correct health and safety

deficiencies found in such inspections. Corrections beyond

that required by the partial consent decree and

constitutional standards will be undertaken by the

Defendants at their option.

B. The Defendants shall promptly submit copies

of the reports of such inspections to the Plaintiffs and the

Court for a period of one year from the date this order is

entered.

3) Further orders regarding legal access.

The Defendants shall take the following remedial

actions regarding legal access:

A. Develop a form for prisoner use in requesting legal services that does not require the prisoner to disclose the reasons for seeking to contact the appointed lawyer;
B. Replace required volumes missing from the law library;
C. Assure that illiterate prisoners will be provided assistance in preparing briefs; and
D. Report to the Court on their plan for compliance in the issue of legal access within forty-five days of this order.
4) Interim extension of monitoring requirements. Until such time as the Court enters a further
order based on the report of the health and safety panel, the Court extends the monitoring requirement established under § IV of the partial consent decree and previously extended by order of this Court dated February 12, 1987. The Defendants' progress reports shall be due on a quarterly basis commencing on December 1, 1987, and continuing for one year from that date.
Nothing in this order diminishes the responsibilities of Defendants to comply promptly and fully with the partial consent decree ordered by this Court on July 8, 1985.
5) Expenses of panel. The reasonable fees and expenses of the panel
shall be borne by the Defendants.

BY THE COURT:

ATTEST: WILLIAM F. CLAYTON, CLERK
By: CAROL L. MERRILL Deputy Clerk
[Seal of court]

DONALD J. PORTPP Honorable Donald J. Porter Chief U.S. District Judge

 </s> Cody v. Hillard
/•S

PC-SD-001-012 UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

WILLIAM R. CODY, Individually ) and on behalf of all other ) persons similarly situated, )

Civ. 80-4039

Plaintiff,

V.

)

CAROLE HILLARD, President of )

the Board of Charities and )

Corrections; FRANK BROST,

)

Vice President; TED SPAULDING,)

Member; D.A. GEHLHOFF, Member;)

LYLE SWENSON, Member; JAMES )

SMITH, Executive Secretary; )

HERMAN SOLEM, Warden of the )

South Dakota State Peniten- )

tiary; sued individually and )

in their official capacities, )

DEFENDANTS1 REPORT ON LEGAL ACCESS

Defendants.

)

Defendants, by and through their counsel, Roger A.

Tellinghuisen, Attorney General, and Mark Smith, Assistant

Attorney General, submit the following report on legal

access, pursuant to this Court's Order of November 4, 1987.

In that Order, the Court has required the South Dakota State

Penitentiary to take the following remedial actions

concerning legal access:

1. Develop a form for prisoner use in requesting legal services that does not require the prisoner to disclose the reasons for seeking to contact the appointed lawyer.

2. Replace the required volumes missing from the law library.

3. Assure

that

illiterate

prisoners will be provided assistance in

preparing briefs.

The Progress Report of December 1, 1987, includes
the following concerning access to the courts:
Two attorneys continue to be retained under contract to offer legal advice to indigent inmates at the SDSP and the Springfield facility. These attorneys are authorized to draft pleadings where indigent inmates lack sufficient literacy to prepare pleadings on their own behalf. Legal services provided by these attorneys are concentrated on habeas corpus and civil rights actions other than appeals of conviction.
Pursuant to the Order entered by the Court on 11/4/87, inmates at both the SDSP and the Springfield facility may now request legal services without disclosing the reasons for seeking to contact the attorney. • All missing volumes from the law library have had replacement volumes ordered. In the future, if a volume is discovered missing, after a reasonable effort to locate the missing volume has failed, a replacement volume will be ordered.
All inmates are advised during orientation of the method for obtaining legal services. Staff members are trained to aid illiterate inmates in gaining access to legal services. The counseling staff is particularly attuned to address the needs of illiterate inmates, including access to legal services. The attorneys pay special attention to the needs of illiterate inmates and will prepare any necessary briefs for them.
In order to implement these policies, the staff at
SDSP have given notice to inmates that they do not need to
give a reason on the "kite" to request access to lawyers or
the law library. A copy of that notice is attached hereto
as Exhibit A. A memorandum to the housing unit supervisors
at the SDSP reinforces this notice. A copy of that

memorandum is attached hereto as Exhibit B. A similar policy has been instituted at the Springfield facility. Lynne DeLano, Superintendent at the Springfield Correctional Facility, has issued documents similar to those issued at SDSP. Superintendent DeLano's memorandum and the related notice to the inmates are attached hereto as Exhibits C and D.
Finally, as to legal access by illiterate inmates, it is a standard operating procedure that all inmates are verbally advised during orientation of the method of obtaining legal services. Staff members are trained to aid illiterate inmates in gaining access to legal services. Further, the counseling staff is particularly attuned to address the needs of illiterate inmates, including access -co legal services. The contract attorneys are also being made more aware of the particular needs of the illiterate inmates.
Dated this ifftr\ day of January, 1988, at Pierre, South Dakota.
ROGER A. TELLINGHUISEN ATTORNEY GENERAL
lark Smitt Assistant Attorney General State Capitol Pierre, S.D. 57501-5090 Attorneys for Defendants

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that true and correct copies of the Defendants1 Report on Legal Access in
Cody v. Hillard, et al.. Civ. 80-4039, were served upon the
Plaintiff herein, by enclosing said copies in envelopes,
first class postage prepaid and affixed thereto, and
depositing said, envelopes in the United States mail at
Pierre, South Dakota, on this &tk day of January, 1988,
addressed to the following:
Mr. DouglasOCummings Jr. Attorney at Law
623 West 11th Street Sioux Falls, S.D. 57104
Mr. William D. Froke East River Legal Services 335 North Main Avenue, #300
Sioux Falls, SD 57102
Mr. Billy Jones Dakota Plains Legal Services
PO Box 727 Mission, SD 57555
Ms. Elizabeth Alexander ACLU—National Prison Project
1616 P Street Northwest Washington, D.C. 20036
lark Smith Assistant Attorney General

Exhibit A
Board of Cnarltfes and Corrections
STATE PENITENTIARY

P.O. Box 911 Sioux Falls, South Dakota 57117-0911 Phone: 605/339-6773

NOTICE

NOTICE NOVEMBER 16, 1987

NOTICE

ACCESS TO LAW LIBRARY - CONTRACT ATTORNEY
Effective immediately, inmates may use a "Kite", stapled or taped shut, to request access to the law library and/or the contract attorney.
These "Kites" will be delivered in the same manner as Request Slips and will not be opened or read by staff other than the addressee.

HS:sl

Exhibit B

Board of Charities and Corrections

STATE PENITENTIARY

MEMORANDUM

P.O. Box 911 Sioux Falls, South Dakota 57117-0911 Phone: 605/339-6773

DATE: TO: FROM: RE:

November 16, 1987 All Housing Unit Supervisors Herman S. Solem, Warden Access To Law Library/Contract Attorney

Effective immediatelyr inmates have the option of using a "Kite" to request access to the law library and/or the contract attorney.
"Kites" are not to be opened or read by any staff member with the exception of the addressee.
To this end, the enclosed notice shall remain posted on the bulletin board in each housing unit.

November 19, 1987

Exhibit C

To: Housing Units and Counseling Staff

/

From: Lynne De Lano

Re: Inmate Legal Assistance

SCF contracts with attorney Jim Olson to provide legal assistance for the inmates. He comes to SCF every other week. A notice to the inmates regarding legal assistance should remain permanently posted on the bulletin board in each of the housing units. The inmate need only send a written request (either Kite or M-8) to see the attorney. They do not need to state the reason for their request. The kites/M-8's should be immediately directed to the Superintendent's secretary (Lois).

If an inmate i s I l l i t e r a t e , staff should a s s i s t the inmate in completing a written request to see the attorney.

Exhibit D

NOTICE

NOTICE

NOTICE

NOVEMBER 19, 1987

RE: LEGAL ASSISTANCE

SCF has contracted with attorney Jim Olson to provide legal assistance to inmates at SCF. Mr. Olson comes to SCF every other week. If you wish to see the attorney, submit a request slip (Kite or M-8 form). You do not need to state the reason or nature of your request on the form. (see sample M-8) .
Your appointment will be scheduled with the attorney for his next scheduled day at SCF.
If you have any questions about this procedure, please see a staff member for clarification.

SOUTH DAKOTA PENITENTIARY

REQUEST SLIP
MOV X.0

19JLZ.

Cell Mn H f l Z W Wnrlrc

MT

Desires an Audience u»th A I I 6 f \ M B {

Give Reason—Private Business Not Sufficient

 </s> Cody v. Hillard

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

PC-SD-001-013

THE NATIONAL PRISON PROJECT
January 13, 1988
Hon. Donald J. Porter Chief Judge United States District Court 413 U.S. Courthouse Pierre, SD 57501
Re: Cody v. Hillard 80-4039
Dear Judge Porter:
I enclose a copy of the report of the expert panel regarding physical plant. Both parties have agreed to this report. I will ask Mr. Smith to write the Court directly to confirm the defendants1 agreement to this report.
The expert panel has, unfortunately, experienced some delays with regard to the filing of its medical report. The parties jointly request an extension of time until the end of January to file this report. If the report is available earlier than the end of January, I anticipate that it will be filed earlier. I am hopeful that the extra time may make it possible for the parties to agree to the report.
Thank you for your continued patience with this matter.

1616 P Street, NW Washington. DC. 20036 (202) 331 0500
Alvin J. Bronstein
EXECUTIVE DIRECTOR
Claudia Wright
ASSOCIATE DIRECTOR
Adjoa A. Aiyetoro
DIRECTOR OF LEGISLATIVE AND COMMUNITY AFFAIRS
Elizabeth R. Alexander
CHIEF STAFF COUNSEL
Alexa P. Freeman Edward I. Koren Jere Krakott Mark J. Lopez
STAFF COUNSEL
Jan Elvin
EDITOR. NPP JOURNAL
Betsy Bernat Lynthia Gibson
ASSISTANTS TO THE DIRECTOR
Julia D. Cade Olinda Moyd
STAFF ASSOCIATES
National Headquarters 132 West 43 Street New York, NY 10036 (212)944 9800
Norman Dorsen
PRESIDENT
Ira Glasser
EXECUTIVE DIRECTOR
Eleanor Holmes Norton
CHAIR NATIONAL ADVISORY COUNCIL

Respectfully submitted,

EAbj
Enc:
cc: Mark Smith Douglas Cummings William Froke Roger Flittie

Elizabeth Alexander

TBTT

TT

BIOSAFETY SYSTEMS INC.

6474 Russell St. Detroit, Michigan 48211
DATE: December 16, 1987

(313)881-4870

TO: American Civil Liberties Union Foundation The National Prison Project 1616 P Street, NW Washington, D.C. 20036

ATTN: Elizabeth Alexander

RE:

South Dakota State Penitentiary, Sioux Falls, South Dakota

On November 20, 1937 an environmental health and safety evaluation was

conducted at the South Dakota State Penitentiary, Sioux Falls, South Dakota.

The purpose of this evaluation was to determine the level of compliance with the

partial consent decree, and agree upon any unresolved issues.

I, P.obert VI. Powitz, consulting sanitarian for the plaintiffs was accompanied

by Mr. Clyde W. Ilagen, Administrative Assistant at the South Dakota State Peniten-

tiary.

The areas covered by this report include the following provisions of

the consent decree:

I.A.6 I.A.7d I.B.I II.3.1 II.B.2 II.C. II.D.3 II.D.5 III.B. III.E.
III.F.

Fire evacuation drills Fire inspections Cell ventilation and heating Basement food storage Kitchen food storage Kitchen elevator Utensil repair and sanitation Kitchen food defrosting Furniture upholstery shop Safety locking devices
Sawdust removal

Following this report is an addendum also relating to health and safety

issues. It was felt that those issues warranted documentation and subsequent

correction, but they should not become part of the consent decree. Rather, a

good faith effort will be made in their amelioration, and it was agreed that

December 16, 1987 South Dakota State Penitentiary
Page 2
progress toward this end will be monitored on a regular basis.
Fire Evacuation Drills Full evacuation fire drills are currently conducted biannually. It was
felt that this frequency is sufficient to insure inmate safety if the following actions are taken in conjunction with these drills:
1. Each drill will become an inservice education project. Time and motion studies will be conducted to determine the efficiency and safety of inmate evacuation and written commentaries will be logged with the prison administration critiqueing the positive and negative aspects of the actual drill.
2. All correctional personnel will be given the opportunity for hands-on training with available fire suppression equipment in addition to the existing safety training.
3. All emergency lighting is in place, but the operating condition of the battery units could not be determined. Therefore, there will be quarterly tests of these units with the results and any corrective measures logged in a hardbound, paginated notebook.
Fire Inspections The State Fire Marshall tours the facility twice a year. Although this is
a reasonable interval, considering their workload, it was felt that more frequent inspections would benefit life safety. Therefore, it was agreed that an individual will be identified, who will be properly trained in fire inspection techniques and N.F.P.A. Life Safety Code. This individual will conduct frequent inspections and prepare the necessary reports for action by the warden or his representative.
Cell Ventilation and Heating The ventilation system and its operations were reviewed. Since the last
inspection, several improvements to the system had been made. The current system consists of thirty-three individually controlled constant
speed fans. These fans cannot be shut down from a central control; each has its own switch in the pipechase where it is located. An industrial vacuum had been

December 16, 1987 South Dakota State Penitentiary
Page 3
purchased for cleaning accessible duct work; those that were randomly inspected were in a clean and working condition. The vendors of the system, Johnson Controls, ran a two day training program in its maintenance, monitoring and operation. A budget request was made for sixty additional control points which will enhance overall quality control and monitor the operation of each fan. It was agreed that these monitoring sensors will be installed and operational by July 1, 1988. However, until these units are 'in place, the daily data provided by the control center will be summarized in a very simple manner and a permanent record maintained in a hardbound, paginated notebook. Any fluctuations from the normal operating parameters will be recorded along with any major repairs made to the system.
Basement Food Storage The basement has been rodent-proofed; drip pans have been placed under
sewage lines; all storage is away from the walls; proper dunnage is being used and the area is being maintained in a clean, vermin-free condition.
Kitchen Food Storage There were no major deficiencies noted during this inspection. Reportedly,
the State Sanitarian conducts a full food service inspection twice a year with the last inspection report receiving 91 points out of a possible 100. All critical .*. items had been corrected.
Kitchen Elevator The safety of the guillotine elevator door was investigated. Although the
rubber bumpers between the doors were in a resilient condition and in good repair, it was found that a hand injury can occur if the hand gets caught between the doors as a result of grasping the closing strap too short or if the hand slips from the strap which has become slick from grease and handling. Therefore, it was decided that a horizontally mounted bar-type handle be mounted on both sides of the door where it does not interfere with the normal operation of the elevator. The bars will be mounted so that the hand controlling the doors will be away from the pinch point.

December 16, 1987 South Dakota State Penitentiary Page 4
Utensil Repair and Sanitation There were no broken or repaired kitchen utensils at the time of this
inspection. All broken utensils are being promptly discarded and replaced with new utensils of an approved type. All kitchen equipment was being maintained in a sanitary condition.
Kitchen Food Defrosting All defrosting of potentially hazardous foods is being done in an approved
manner. All potential backsiphonage deficiencies have been repaired.
Furniture Upholstery Shop and Sawdust Removal At the time of this inspection extensive repairs were being made throughout
the shops area. The paint stripping room was^ under reconstruction; an improved point source capture ventilation system had been installed. Those items which had not yet been completed included the installation of a new lighting system and safety station. The room was not in operation at the time of this visit.
All machine safety guards had been installed in the carpentry shop and sawdust scavenging vacuums had been installed on most equipment.
It was agreed that by July 1, 1988 the following would be completed in the Prison Industries Area:
1. Electrical service. 2. Emergency fire suppression equipment properly installed and adequate. 3. All dust-generating equipment will have particulate scavenging devices. 4. All machines and accessible pinch points will be properly guarded. 5. All inmates and vocational personnel will be in full compliance with the sight conservation program. It was further agreed that South Dakota State University will be contracted to conduct a comprehensive occupational safety and health evaluation after the remodeling is completed or no later than July 1, 1988.
Safety Locking Devices All cells are now on an electronically controlled locking system with manual

December 16, 1987 South Dakota State Penitentiary Page 5
override capabilities. Additionally, each cell has an emergency call button and there is a policy on response protocol.
Overall, health and safety conditions have improved significantly over the last inspection. Therefore, I feel that the agreements on compliance dates and additional quality assurance monitoring are both prudent and realistic.
Respectfully submitted, BIOSAFETY SYSTEMS, INC.
Robert W. Powitz, Ph.D. Consulting Sanitarian
attachment: Addendum RWP/lel

ADDENDUM
On November 20, 1987, the following areas were evaluated. The health and safety deficiencies were noted and corrective measures were discussed. While some of these findings could be easily remedied, others will require planning and budget allocations.
Cottage The remodeling project of the cottage to replace the doors, windows and
ceilings is approximately 80% done. There will be an absolute capacity of 48 inmates in the cottage once the project is complete with no domicile areas allowed in the basement. Since the basement egress is less than six feet high, proper warnings and reflectorized tape demarkations must be placed on the low clearance areas.
The kitchen continues to be a full-service facility. The area is extremely crowded, storage is poor and there is no separation between the clean and soiled areas. Refrigerator space was lacking and cleaning supplies were being stored with food items. Baking preparation was being done on the drainboard of the dishwasher due to the lack of work space. However, overall general sanitation was quite good. It was agreed, effective immediately, that the baking could be done in the guard's kitchen and supplies could be delivered more frequently to overcome the shortage of space and lack of adequate refrigeration facilities.
Within the next few months there will be a review of the entire kitchen operations. Several options were discussed and a solution will be sought which is both safe and satisfactory to meet the inmate's needs.
Cell Blocks The excelsior used to pack inmate's ceramics will be discontinued and
replaced by a material of a lesser fire potential. Periodic inspections will be conducted to reduce fire loading and eliminate
electrical hazards in the cells.
Vocational Area/Prison Industries The following deficiencies were noted on a cursory walk-through. Many
will be corrected in the near future. However, several may depend upon the outcome of the comprehensive survey resulting in the rearrangement of entire shop areas.
I '••"

Addendum Page 2
It was agreed that large capital expenditure corrections be deferred until the survey is complete.
Tag Shop: There is a backsiphonage potential such as submerged inlets and lack of
vacuum breakers on some equipment waterlines. Aisle space of thirty-six inches was not maintained and passageway under
six feet high were not demarked. Floor fans were not properly guarded.
Sign Shop: Ventilation of the spray booth is extremely poor. The silk screening operation is unvented. Electrical connections are not protected in areas where solvents are
used. The shop area does not have adequate space for the amount of work being
done in the area.
Carpentry Shop: Although much of the dust generating equipment is now vented, the individual
vacuum devices are both noisy and space consuming. Each unit must be individually cleaned; their handling is both awkward and can result in a rerelease of dust. Therefore, a properly designed control ventilation system should be installed.
The use of compressed air to clean off work should be discontinued. A small shop vacuum will serve equally as well without further dust generation.
Personnel Protection: There is no fit testing of respirators and inappropriate respirators
are being used, e.g. dust masks in a solvent area. The sight conservation program is not universally enforced.
Power Plant There is only one full-time employee supervising the power plant. The

Addendum Page 3 remainder of the time the boiler is being watched by untrained trustee inmates, whose tenure is brief and turnover rapid. It is absolutely essential that any highpressure system be monitored by full-time personnel holding a black-seal license or equivalent. If inmates are to be used, consider initiating a vocational program for long-term trustees.
12/16/87 RWP/lel

 </s> UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

WILLIAM R. CODY, Individually and on behalf of all other persons similarly situated,

Civ. 80-4039

Plaintiff,

v.
CAROLE HILLARD, President of the Board of Charities and Corrections; FRANK BROST, Vice President; TED SPAULDING, Member; D.A. GEHLHOFF, Member; LYLE SWENSON, Member; JAMES SMITH, Executive Secretary; HERMAN SOLEM, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities,

MEDICAL PANEL REPORT

Defendants.

Defendants, by and through their counsel, Roger A. Tellinghuisen, Attorney General, and Mark Smith, Assistant Attorney General, submit the following Medical Panel Report.
Dated this ffrk day of April, 1988, at Pierre, South Dakota.
ROGER A. TELLINGHUISEN ATTORNEY GENERAL

Cody v. Hillard
PC-SD-001-015

Mark Smith Assistant Attorney General. State Capitol Pierre, South Dakota 57501-5090 Telephone: (605) 773-3215
Attorneys for Defendants

CODY V. HILLARD 80-4039
MEDICAL PANEL REPORT This report records agreements between Ronald Sable, M.D., and James Oakland, M.D., and constitutes the report of the medical panel. Also present at the November 17, 1987, meeting of the panel were Dean Hinders, Clyde Hagen, Allen Bliss, D.D.S., and William Kenfield, M.D. 1. Formulary. The SDSP will adopt the formulary attached to this report. 2. Prohibition on certain types of medications. Although clinical judgments on the use of pain medication obviously take into account individual circumstances such as a history of drug addiction, prisoners are not to be denied adequate pain medication simply because of their status as prisoners. As with members of the community, appropriate pain management under all the clinical circumstances is to be provided. A physician or dentist at the SDSP changing pain medication prescribed by an outside practitioner shall indicate in the medical record the circumstances justifying a medication change. In order to expedite review of the effectiveness of this policy, the staff at the SDSP shall keep separate records of instances in which pain medication by an outside practitioner was changed. In addition, the staff shall keep separate records indicating all occasions in which narcotic medications are used until monitoring of this case ceases.

2 3. Monitoring of psvchotherapeutic medications. The SDSP will adopt the protocol for monitoring psychotropic medications attached to this report. This protocol incorporates the policy used by the V.A. Medical Facility in Sioux Falls. An in-service training session will be held for SDSP medical staff concerning this policy. 4. Staff Issues
A. Dental hygienist program. The SDSP has contracted directly with the instructor to enable the continuation of the cooperative program with the dental hygiene students.
B. Nursing coverage at SDSP. No prisoner requiring 24-hour nursing coverage will be housed in the Health Services Unit. No prisoner needing special medical equipment such as oxygen will be kept in the SDSP. Any prisoner who needs 24-hour vital sign monitoring will be transferred out of the SDSP. A detailed protocol setting forth the circumstances under which a prisoner will be transferred for medical reasons will be developed and submitted to the Court. Orders from outside physicians for patient vital sign monitoring shall be observed. Notwithstanding the above, the SDSP may provide overnight infirmary level care at the Health Services Unit whenever 24-hour nursing coverage is provided.
C. Clinical psychologist. A full-time clinical psychologist was hired on November 23, 1987, through a contract with Sioux Valley Hospital.
5. Dental protheses. The SDSP will provide prisoners with

3 protheses. There is no policy against the provision of partial plates or bridges when such protheses are reasonably necessary to maintain dental health or normal ability to chew. The contract dentists will make all therapeutic decisions concerning dental care of the prisoners, consistent with community standards as required under the partial consent decree. In order to monitor this aspect of care, a separate record will be kept of all prisoners requesting dental protheses, along with a record of the disposition of the request.
6. Financial constraints on medical and dental care. SDSP will provide all necessary medical, dental and optometrical care at no cost to prisoners. Medical staff will be instructed to refrain from discussing the relative cost of individual treatment or services with prisoners or with non-medical staff. In the past, discussions about the cost of procedures caused some significant confusion and led to the belief that provision of adequate care was influenced by financial considerations.
7. Staff at the Correctional Treatment Unit A. Counselors. The SDSP has hired two additional
correctional counselors at the Unit. These individuals are currently in training and will assume full-time duties in February, 1988.
B. Psychologist. The SDSP has continued recruitment efforts to secure an additional full-time psychologist at the CTU. The intent is to employ the individual with the best possible credentials in this position. As an interim step to

4 full compliance, the SDSP may employ a suitable candidate with a Master's Degree. In the interim, the SDSP shall attempt to arrange for partial coverage of the position through a contract for hourly services.
C. Nursing coverage. As an interim step toward compliance the SDSP will hire an additional nurse at the CTU as soon as possible, but no later than July 1, 1988. When this position is filled, the CTU will cease any distribution of psychotropic medications by non-medical staff. In the interim, the CTU will make reasonable efforts to obtain nursing services on-call or from other units to perform this function for those occasions when it is currently being performed by non-medical staff. It will report on these efforts to the Court on March 30, 1988, and July 30, 1988. This report will also inform the Court regarding efforts to provide 24-hour nursing coverage, as required by the partial consent decree.
Attachments: Formulary Psychotropic Medication Monitoring Policy

Department of Corrections Statevflle Corn tonal Center
Health Care Unit
POLICIES ANDPROCEDURES

January 1, 1982
Section Number: 5-22-

DRUG -OF.TJLA.Tr

DRUG FORMULARY

ZND3X

I. Brand Name

A. Capsules and Tablets B. Combination Drugs (Capsules and Tablets) C. Contact Lens Preparations D. Controlled Substances E. Inhalers (Oral) F. Injectables G. IV Use Only Preparations H. Liquids (Oral) I. Ilasal Preparations J. Ophthalmic Preparations
1. Ophthalmic Ointments 2. Ophthalmic Solutions K. Otic Preparations L. Psychotherapeutic Preparations M. Rectal Preparations H. Topical Preparations

II. Generic Name (Capsules ar.d Tablets)

III. Over-the-Counter Drugs

IV. Therapeutic Use Index

A. Central Nervous System Agents
1. Analgesics 2. Migraine Products 3. Anti-Inflamatory - Pheumatic Agents k. Uricbsurics 5. Anti-emetic and Anti-vertigo Agents 6. Psychotherapeutic Agents 7. Anti-Convulsants 3. Muscle Relaxants 9. Anti-Parkinsonism Agents B. Systemic Anti-Infectives 1. Antibiotics 2. Anti-fungals 3. Sulfonamides U. Anti-tuberculosis Drugs 5. Amebicides 6. Urinary Anti-infectives ,C. Diuretics and Cardiovasculars ' 1. Diuretics
/ A-
3ate Issued Date Revised ReviawedlJy

./

JAMES HEATON

1-1-82

2-5-87.

Tom Stanski

1
10 10 11 11 13 1-17
15 16
27
27 27 27 27
28 26 23 23 23 29 29 29 £9 29 29 30 53
Page:
1 of

Department of A r e c t t o n s Stateville Correctional Center

January ] — 1982

Health Care Unit

Section Number:

5-22

POLICIES AND PROCEDURES

2. Cardiac Glycosides 3. Anti-anginal Agents h. Anti-arrythmic Agents 5. Peripheral Vasodilators 6. Anti-hypertensive Agents

7. Anti-hyperlipidemic Agents D. Respiratory Drugs
1. Systemic Bronchodilators a. Sympathomimetics b. Xanthine Derivatives
2. Respiratory Inhalant Products 3. Ar.ti-histamines h. Expectorants 5. Respiratory Combinations S. Gastrointestinal' Agents 1. Antacids 2. Anti-cholenergics 3. Histamine (H2) Antagonist U. Anti-flatulants 5. Smooth Muscle Stimulants 6. Digestive Enzymes 7. Urinary Tract Products 8. Laxatives 9. Anti-diarrheals 10. Emetics F. Hormones 1. Glucocorticoids 2. Thyroid Agents 3. Oral Hypoglycemics G. Nutritional Products 1. Vitamins .2. Minerals and Electrolytes (Oral) H. Blood Modifiers I. Miscellaneous

v. Limited Use Drugs

VI. Non-Formulary Drugs

VII. Special Forms

DRUG FORMULARY
30 30 30 30 30
31 31 31 31 31 31 31 31 31 32 32 32 32 32 32 32
33
3U. 35 35
35
36
37

Umakantha Sannesy

Jate issued Date Revised

1-1.-82

2-5^87

Page: 2 Of

%iiy. Department of Cc ;ct1ons Stateville Correctional Center Health Care Unit
POLICIES AND PROCEDURES

January 1, n932
Section Number: 5-22

DRUG FORMULA?.:

The following pages numbered one through thirty seven are the revised Drug Formulary effective 10-15-86.
Approved:

tip

Umakantha E. Sannesy, MD

Date

Acting Medical Director

Thomas Stanski, RPh, Pharmacy Director

Date

iciUL
U;nakantha Sannesy

Date issued Date Hevised

rage: of

3rand Name
A. Capsules and tablets
Accutane 20 mg. Tab (Limited Use) Accutane 40 mg. Tata (Limited Use) Actifed Tab Aidactone 25 mg. Tab Aldomet 250 mg. Tab Aiu-Caps (Limited Use) Amir.ophyi line 100 mg. Tab Aminophylline 200 mg. Tab Amoxiciliin 250 mg. Cap Amoxiciiiin 500 mg. Cap Amphojei 10 gr. Tab Ampiciiiin 250 mg. Cap Ampiciiiin 500 mg. Cap Anaprox 275 mg. Tab Antivert i2.5 mg. Tab Antivert 25 mg. Tab A?A? 500 mg. Cap . Apresoiine 10 mg. Tab Apresoiine 25 mg. Tab Apresoiine 50 mg. Tab Ariidin 6 mg. Tab Ariidin 12 mg. Tab Aristocort 4 mg. Tab Artane 2 mg. Tab Artane 5 mg. Tab Ascorbic Acid 500 me. Tab Aspirin 5 gr. Tab Aspirin 10 gr. Z.C. Red Tab Atarax 10 mg. Tab Atarax 25 mg.- Tab Atarax 50 mg. Tab Atarax 100 mg. Tab Atromid S 500 mg. Cap Azulfidine 500 mg. Tab
Bactrim Tabs 3actrim DS Tabs 3enacryl 25 mg. Caps 3enadryl 50 mg. Caps 3er.er.id .500 r.g. Tabs Bentyl 20 mg. Tabs 3erocca Tabs 3retr.ine 2.5 mg. Tabs 3rethine 5 mg. Tabs
Cafergot Tabs

Carafate i gra. Tabs (Limited Use) Calcium Gluconate 15 gr. Tabs Cardizem 30 mg. Tabs Catapres 0.1 mg. Tabs Catapres 0.2 mg. Tabs Ceclor 250 mg. Tabs (Limited Use) Chioromycetin 250 mg. Caps (Limited Use) Chiortrimeton 4 mg. Tabs Chiortrimeton 8 mg. Tabs Chiortrimeton 12 mg. Tabs Choiedyl 200 mg."Tabs Choiedyl-S.A. 400 mg. Tabs Cleocin 150 mg. Caps Clinoril 150 mg. Tabs Clinorii 200 mg. Tabs Cogent in 0.5 mg.' Tabs Cogentin i mg. Tabs Cogentin 2 mg. Tabs Coiace 100 mg. Caps Colchicine 0.6 mg. Tabs Combid Spansuies "Compazir.e 10 mg. Tabs Constant T 200 mg. Tabs Constant 7 300 mg. Tabs Corgard 40 mg. Tabs (Limited Use) Corgard 30 mg. labs (Limited Use) Coricicin Tabs Cough Calmers Coumadin 2 mg. Tabs Coumadin 2.5 mg. Tabs Coumadin 5 mg. Tabs Coumadin 7.5 mg. Tabs Coumadin 10 mg. Tabs

Decadron 0.5 mg. Tabs

,

Decadron 1.5 mg. Tabs

Decadron 4 mg. Tabs

Decadron 6 mg. Tabs

Deitasone Dose ?ak 5 mg. Tabs (Limited Use)

Depakene 250 mg. Caps

Desyrei 50 mg. Tabs

Desyrei 100 mg. Tabs

Oiabir.ese 100 mg. Tabs

Diabinese. 250 mg. Tabs

Dianox 125 mg. Tabs

Diamox 250 me. Tabs

Diamox Sequels 500 mg. Caps (Limited Use)

Dilantin 100 mg. Caps

Dilar.tir. 100 r.g. with Phenobaro 1/4 gr. Caps

Diiantin iOO mg. with Pher.obarb 1/2 gr. Caps

Dinetaoo Extentabs

Ditropan 5 mg. Tabs (Limited Use) Diuril 250 mg. Tabs Doiobid 500 mg. Tabs Donr.atai Tabs Drixoral Tabs Ducoiax 5 gr. Tabs Dyazide Caps Dynapen 250 mg. Caps (Limited Use)
Ecotrir. 5 gr. Tabs Eiavii 10 mg. Tabs Eiavii 25 mg. Tabs Ziavii 50 mg. Tabs Eiavii 75 mg. Tabs Eiavii 100 mg. Tabs Eiavii i50 mg. Tabs Entex LA Ta/os Srythromycin 250 mg. Tabs Erythromycin 500 mg. Tabs
Feider.e 20 mg. Caps (Limited Use) 7eosoi Tabs Fiagyi 250 mg.Tabs Joiic Acid i mg. Tabs
Gaviscon Chewabie Tabs Geociilin Tabs Giucotrol 5 mg. Tabs • Glucotroi 10 mg. Tabs Grisactin 250 mg. Caps
.Haidol 0.5 mg. Tabs Kaidoi i mg. Tabs Haidoi' 2 mg. Tabs Kaidol 5 mg.-.Tabs I-iaidoi 10 mg. Tabs Haidoi 20 mg. Tabs Hycrodi 2 5 mg. Tabs Kydrodi 50 mg. Tabs Hygroton 50 mg. Tabs
Imurar. 50 mg. Tabs (Limited Use: Ir.derai 10 mg. Tabs Inderai 40 rag. Tabs Incerai LA 30 mg. Caps Inderai LA 120 mg. Caps Ir.derai LA 160 mg. Caps Ir.docir. 2 5 mg. Caps INK 300 .T.g. labs Isoptin 80 me. Tabs Isordii 10 mg. Oral Tabs

Kaon-CL 6.7 mZq.' Tabs

Lanoxin 0.125 mg. Tabs
Lanoxin 0.25 mg. Tabs Lasix 20 mg. Tabs Lasix 40 mg. Tabs Lasix 80 mg. Tabs Librax Caps (Limited Use) Lioresai 10 mg. Tabs Lithonate 300 mg. Caps Lor.iten 2.5 mg. Tabs (Limited Use) Lor.iten 10 mg. Tabs (Limited Use) Lopid 300 mg. Caps (Limited Use) Lopressor 50 mg. Tabs Lopressor 100 mg. Tabs Loxitane 25 mg. Caps Loxitane 50 mg. Caps

Macroaantin 50 mg. Caps

Mar.deiamine i Gm. Tabs

Matuiane 50 mg. Caps (Limited Use)

Medroi 4 mg. Tabs - 3uik

Medroi 4 mg. Dosepak

Meiiarii 10 mg. Tabs

Meiiarii 15 mg. Tabs

Meiiarii 25 mg. Tabs

Meiiarii 50 mg. Tabs

.Meiiarii 100 mg. Tabs

Meiiarii 200 mg. Tabs

Mestonin 60 mg. Tabs (Limited Use)

Mestor.in Time Span 180 mg. Tabs (Limited Use

Metamuci'i ?wd. Paks

Methotrexate 2.5 mg. Tabs (Limited Use;

Midrin Caps

Minipress l mg. Caps

'

Mir.ipress 2 mg. Caps

Minipress 5 mg. Caps

.Minocin .50 mg. Caps

Minocin 100 mg. Caps

Mitroian Chewabie Tabs

Motrin 400 mg. Tabs

Myambiitoi 400 mg. Tabs

Myceiex 10 mg. Troches (Limited Use; •

Mycostatin 500,000 Units Orai TaDS

Myiicon 40 mg. Chewabie Tabs

Myiicon 30 mg. Chewaoie laos

Mysoiine 2 50 mg. Tabs

Naidecon Tabs Naproxyn 250 mg. Tabs

Naproxyn 375 rag. Tabs
Naproxyn 500 mg. Tabs Navane 1 mg. Caps Navane 2 mg. Caps Navane 5 mg. Caps Navane 10 mg. Cans Navane 20 mg. Caps Neomycin Sulfate 0.5 Gm. Tabs (Limited Use) Neptazane 50 mg. Tabs (Limited Use) Niacin 50 mg. Tabs Niacin 100 mg. Tabs Nicobid 125 mg. Caps Nicobid 250 mg. Caps Nitrobid 2.5 mg. Caps Nitrobid 6.5 mg. Caps Nitrostat 0.4 mg. S.L. Tabs Nizorai 200 mg. Tabs (Limited Use) Norgesic Forte Tabs (Limited Use) Norpace CR 150 mg. Caps (Limited Use) Norpraxnin 25 mg. Tabs Narpramin 50 mg. Tabs Norpramin 100 mg. Tabs

Orinase 500 mg. Tabs Ornade Spansules Oscai 500 Tabs (Limited Use)

Pancrease Caps

Parafon Forte Tabs

Pavabid 150 mg. Caps

Pen'VK 250 mg. Tabs

Pen VK 500 mg. Tabs

Periactin 4 mg. Tabs-

Pericoiace Caps

Persantine 25 mg. Tabs

Persantine 50 mg. Tabs

,

•Piaquer.il 200 mg. Tabs (Limited Use)

Potassium Chloride 500 mg. TaDs (6.7 .T.Eq. )

Prednisone 1 mg. Tabs

Prednisone 2.5 mg. Tabs

Prednisone 5 nig. Tabs

Prednisone 5 mg. Tabs - DosepaK

Prednisone 10 mg. Tabs

Prednisone 20 mg. Tabs

Prednisone 50 mg. Tabs

Probantnine 15 mg. Tabs

Procan SR 750 mg. Tabs (Limited Use)

Procardia 10 mg. Caps

Proiixin 2.5 mg. Tabs

Proiixin 5 mg. Tabs

Proiixin 10 mg. Tabs Pronestyi 2 50 mg. Caps Propylthiouracii 50 mg. Tabs (Limited Use) Prostaphyiin 250 mg. Caps Prostaphyiin 500 mg. Caps Pyridium 100 mg. Tabs Pyridium 200 rag. Tabs
Quibron Caps Quinamm 260 mg. Tabs (Limited Use) Quinidiner Giuconate 324 mg. Tabs (Limited Use) Quinidine Suifate 200 mg. Tabs (Limited Use)
Reglan Tabs Rimactane 300 mg. Caps Robaxin 750 mg. Tabs
Seldane 60 mg. Tabs Sinemet 25/100 Tabs Sinemet 2 5/250 Tabs Steiazine 1 mg. Tabs Steiazine 2 mg. Tabs Steiazine 5 mg. Tabs Steiazine 10 mg. Tabs Sudafed 30 mg. Tabs Sudafed 60 mg. Tabs Synthroid 0.1 mg. Tabs Synthroid 0.15 mg. labs Synthroid 0.3 mg. Tabs
Tagamet 200 mg. Tabs Tagamet 300 mg. Tabs Tapazoie 5 mg. Tabs (Limited Use) Tapazoie 10 mg. Tabs (Limited Use) Tegopen 250 mg. Caps (Limited Use) , Tegopen 500 mg. Caps (Limited Use) Tegretoi 200 mg. Tabs Teiepaque Tabs Temarii 2.5 mg. Tabs Tenormin 50 mg. Tabs Tetracyciine 250 mg. Caps Tetracyciine 500 mg. Caps Theo-Dur 300 mg. Tabs Thermotabs Thorazine 10 mg. Tabs Thorazine 25 mg.- Tabs Thorazir.e 50 mg. Tabs Thorazine 100 mg. Tabs Ihorazir.e 200 mg. Tabs Tigan 250 mg. Caps "ofranii 50 mg. Tabs

Toiectin - DS Caps (Limited Use) Tonocard 400 mg.Tabs (Limited Use) Trecator - SC 250 mg. Tabs (Limited Use) Trilafon 2 mg. Tabs Tuss Ornade Caps Tylenol 325 mg. Tabs Tylicebo #4 Caps (Yellow)

•Uni-Mult-M Tabs

Urecholine 10 mg. Tabs

'

Urechoiine 25 mg. Tabs

Urispas 100 mg. Tabs (Limited Use)

Vasotec 10 mg. Tabs Vasotec 5 mg. Tabs Veiosef 250 mg. Caps Velosef 500 mg. Caps ' Vibramycin 50 mg. Caps Vibramycin 100 mg. Caps (and/or Tabs) Vistarii'25 mg. Caps .Vitamin A 25,000 I.U. Caps Vitamin A 50,000 I.U. Caps Vitamin Bl 100 mg. Tabs Vitamin B6 50 mg. Tabs Vitamin C 500 mg. Tabs Vitamin E 400 I.U. Caps Vitamin Tabs (Multiple)

Zantac 150 mg. Tabs (Limited Use) Zovirax 200 mg Caps (Limited Usei Zyloprim 100 mg. Tabs Zyioprim 300 mg. Tabs

Combination Drugs (Capsules and Tablets)

Actifed Tabs Triproiidine 2.5 mg. Pseudoephedrine 60 mg.

3actrim Tabs Trimethoprim 80 mg. Sulfamethoxazoie 500 mg.

Berocca Tabs Vitamin 3 Complex Vitamin C 500 mg.

Cafergot Tab Zrgotamir.e Tartrate 1 mg. Caffeine 100 mg.

Combid Spansules Prochiorperazine 10 mg. Isopropamide 5 mg.
Coricidin Tabs Chlorpheniramine Maieate 2 mg. Aspirin 5 gr.
Cough Caimers Guaifenesin 50 mg. Dextromethorphan 7.5 mg.
Diiantin with PB 1/4 gr. Caps Phenytoin 100 mg. Phenobarbital 16 ing.
Diiantin with PB 1/2 gr. Caps Phenytoin 100 mg. Phenobarbital 32 mg.
Dimetapp Extentabs Brompheniramine Maieate 12 mg. Phenylephrine HCL 15 mg. Phenylpropanoiamine KC? 15 mg.
Donnatal Tabs Phenobarbital 16.2 mg. Kyoscyamine 1.1037 mg. Atropine 0.0194 mg. Scopolamine 0.0065 mg.
Drixorai labs Dexbrompheniramir.e Maieate 6 mg. Hydrochiorothiazide 25 mg.
Gaiscon Antacid Chewable Tabs Aluminum Hydroxide Dried Gei - 80 mg Magnesium Trisiiicate 20 mg.
Librax Caps Chiordiazepoxide 5 mg. Ciidinium Bromide 2.5 mg.
Midrill Caps Isometheptene Mucate 65 mg. Dichioralphenazone 100 mg. Acetaminophen 325 ng.
Naidecon Tabs Phenylpropanolamir.e 40 mg.

Phenylephrine 10 mg. Phenyltoloxamine 15 mg. Chlorpheniramine 5 mg.

Norgesic Forte Tabs Orphenadrine Citrate 50 mg. Aspirin 770 mg. Caffeine 60 mg.

Os-Cal 500 Tabs 1250 mg. of Calcium Carbonate from oyster shell, as organic Calcium 2 500 mg. of Elemental Calcium

Ornade Spansules Phenylpropanolamine 75 mg. Chiorpheniramine 12 mg.

Pancrease Caps (PancreLipase 2.C. Microspheres) Lipase 4,000 USP Units Amyiase 2,000 USP Units Protease 25,000 USP Units

Parafon Forte Tabs Chiorzoxazone 250 mg. Acetaminophen 300 mg.

Pericoiace Caps Dioctyi Sodium Suifosuccinate 100 mg. Casanthranol 30 mg.

Qui'oron Caps Theophyiiir.e Anhydrous 150 rr.g. Guiafenesin (Giyceryi Guaiacoiate) 90 mg.

Sinemet 25/100 Tabs

i

Carbidopa 25 mg.

Levodopa 100 mg.

Sinemet 25/250 Tabs Carbidopa 25 mg. Levodopa 250 mg.

Tuss-Ornade Caps Caramiphen Edisylate 40 mg. Phenylpropanoiamine HCL 75 rag.
Uni-Mult-M (Multiple Vitamin and Mineral Caps! Vitamin A 5000 I.U. Vitamin D 400 I.rJ . Vitamin C 50 mg.

Vitamin 31 2.5 ing. Vitamin B2 2.5 mg. Niacinamide 20 mg. Vitamin 36 0.5 mg. Vitamin B 12 2 meg. Pantothenic Acid 5 mg. Calcium 20 mg. Phosphorus 15 mg. Iron 15 mg. Magnesium 3 mg. Zinc 1 mg. Potassium 5 mg. Manganese 1 mg.

Vitamin Tabs (Multiple)

Vitamin A 5000 I.U.

Vitamin D 400 I.U.

Vitamin C 50 mg.

Vitamin Bl 3 mg.

Vitamin B2 2.5 mg.

Niacin 20 mg.

• •

Vitamin B6 l mg.

Vitamin 312 3 meg.

C. Contact Lens Preparations

Adapt (For Kara Lens) 15 mi.

3.H. Wetring Solution 2 oz.

Clean-n-Soak 4 oz.

Clerz 25 mi. (Lubricating and rewetrir.g ey< crops - :or r.ard

and soft contacts!

Dacriose Eye Wash 4 oz.

Znuciene 15 mi. (Cleaning and iubricarir.g solution for

artificial eyesi

Opti Clean 12 mi. (Cleaning solution for hard and soft

contacts)

'

Opticrom 4% Ophthalmic Solution 10 ml.

Pre-Fiex 45 mi.

Soac-Lens 4 oz. (Wetting and soaking solution for hard

contacts)

Soft Lens Cleaning Solution

D. Controlled Substances
Dalmane.15 mg. Caps Daimane 30 mg. Caps Fiorinai Caps Haicion 0.25 mg Tabs Haicion 0.5 mg Tabs Kionopin 2 mg. Tabs Lomotii 2.5 mg. labs

Mebaral 100 rag. Tabs Meperidine 25 rag./ml. Tubex Meperidine 50 rag/ral. Tubex Meperidine 75 mg./ml. Tubex Meperidine 100 mg./ml. Tubex Morphine 4 mg./ml. Tubex Noctec Syrup (500 mg. Chloral Hydrate/5mi.) Percocet Tabs Percodan Tabs Phenobarbital Amps. 120 mg./ml. Phenobarbital Elix. 20 mg./5ml. Roxanol Liquid 20 mg./ml. Roxanol-SR 30 mg. Tabs Tylenol with Codeine Elixir (12 mg. Codeine + 120 mg.
Acetominophin/5ml.) Tylenol with Codeine Tabs #3 (with 1/2 gr. Codeine) Valium Inj . 10 rag./2ml. Valium 5 mg.-Tabs Vaiium 10 mg. Tabs Vicodin Tabs Xanax 1.0 mg. Tabs ' Xanax 0.5 mg. Tabs
E. Inhalers - Orai
Alupent Intai with Spin Haler Isuprei Proventil Vanceril
F. Injectabies
Adrenalin Chloride 1:1000 Amps. (Img./ml.) 1 ml. Amp. Adrenalin Chloride Soln. 1:1000 (Muiti-dose Vial) Aquamephyton lOmg./lml. Amp. Atropine Sulfate 0.4 mg. lmi. Amp. Atropine Sulfate 0.1 mg./mi. in 5 ml. Abboject
Benadryl 50 mg./ml. Amps. 3enadryl 50 mg./ml. (Pre-fiiled syringe) Bentyl 10 mg./ mi. Multi-dose Vial 3entyl 10 mg./mi. 2 ml. Amps Bretyioi . (Bretylium Tosyiate) 50 mg./mi.
Cogentin 2 mg./2mi. Amps Compazine 5 mg./mi. Amps Cyanocobaiamin 1000 meg./mi. - Muiti-dose vial
Depo-medroi 40 40mg./mi. 1 mi. Vial Diiantin 100 mg./2 mi. (pre-fiiied syringe)

Dilantin 250 mg./5mi. (Prefilied syringe)

Epinephrine 1:10,000 (Pre-filied syringe)

Gammar Immune Serum Globulin (Human) Garamycin 80 mg./2 ml. Amp Geopen 1 gm. Vials

Kaldol 5 mg./ml. 1 ml. Amps H-3ig 5 ml. Vial-Hepatitis B Immune Globulin (Human) Heparin 5000 Units/ml. Tubex Heparin 10,000 Units/ml. Tubex Heparin 20,000 Units/ml. Tubex Hyperstat I.V. 20 ml. Amps (15 mg. Diazoxide/mi.)

Insulin Beef Regular U-iOO Insulin Human Lente U-100 "Insulin Human N?H Insulin Human Regular U-100 Insulin Lente U-100 Insulin NPK U-100 Insulin Regular U-100 Isuprel 1:5000 (0.2 mg/1 ml. Amps)

Xenalog - 40 1 ml. Vial (40 mg. Triamcir.eione/1 mi.)

Lanoxin 0.5 mg. 2 ml. Amps Lasix 10 mg./ml. 2 ml. Amps

Marcaine HC1 0.5% 50 mi. MultiDose Vial .

Narcan 0.4 mg./mi. 1 ml. Amps Nebcin (Tobramycin) 60 mg./1.5 mi.) Nubain 10 mg./ml. 10 ml. Vial

Oxacillin 1 gm. Vials

,

Penicillin Benzathine 1.2 Mil. Units Penicillin Procaine 1.2 Mil. Units Penicillin Procaine 2.4 Mil. Units Proiixin Decanoate 25 mg./ml. 5 mi. Multi-dose Prolixin 2.5 mg./ml. 10 ml. Multi-dose Pronestyi 100 mg./mi. -.Multi-dose vial Prostaphiin 500 mg./Viai

Robaxin 100 mg./mi. in 10 mi. Single Dose Vial

Sodium Chloride (Bacteriostaxic) 9 mg./ml. 30 ml. Vial Soiu-Cortef 100 mg./2mi. Solu-Medroi 40 mg. 1 mi. Mix-o-Viai Susphrine 1:200 (Sub-q) 0.3 mi. Amps

Tagamet 300 mg./2ml. Vial Tetanus Immune Globulin (Human) U.S.P. 250 Unit Viai Tetanus^ and Diphtheria Toxoids Absorbed 5 ml. viai Thiamine 100 mg./ml. 1 ml. Amps Thorazine 50 mg./2 ml. Amp Tigan 200 mg./2 ml. Amp Tubersol (Purified Protein Derivative) 5 ml. Muiti-Dose Via:
Vistaril 50 mg./mi. - Multi-Dose Vial Vitamin B 1 100 mg./ml. l ml. Amps Vitamin B 12 1000 mcg./cc. 30 ml. Vial (Cyanoicobalamin) -
Multi-Dose Vial Vitamin K 10 mg./ml. Amp. (Aqua Mephyton)
Water for Injection, Sterile, US? 10 ml. Viai
Xylocaine 1* (lOmg./ml.) 50 ml. Multi-dose Vial Xylocaine 1* with Epinephrine 1:100,000 20 ml. Muiti-Dose
Viai Xylocaine 2% (20 mg./ml.) 20 ml. Muiti-dose Vial Xylocaine 2* with Epinephrine 1:100,000 20 mi. Muiti-Dose
Vial
G. I.V. Use Only Preparations
Aminophylline 250 mg./iO ml. Amp Aminophylline 500 mg./20 mi. Amp
Calan 5 mg./2ml. Amp (Verapamii HCL) Calcium Gluconate 10$ (Slow IV) 10 mi. Air.:. Cefadyi 1 Cm. Viai (Cephapirin Na) Cefadyl 2 Gm. Viai (Cephapirin Sodium)
Dextrose 5* in Lactated Ringers Dextrose 5* in Normal Saline (0.9*') Dextrose 5* in Sod. Chloride 0.45* Dextrose 5* in Water Dextrose 50* 500 mg./ml. Pre-fiiied syringe Dextrose 50* 50 mg./ml 50 ml. Viai
Hypaque Megiumine 60* 50 mi. Viai
Inderai 1 mg./l mi. Amp
Intropin 400 mg. (IV Infusion Oniy) Rap-Add syringe
Lactated Ringer's Solution
Plasma Protein Fraction (Human) US? 250 mi. Viai Polyciliin-N" 2 Gm. Vial (Ampiciiiir.: Potassium Chloride 40 m£q./20 mi. Amo (IV Use After
ir

Dilution)

Ringer's Solutions

Sodium Bicarbonate Inj. USP 7.5* 50 ml. Amp Sodium Chloride Solution 0.9*

Xylocaine 1* (Single Dose 30 ml. Vial - for major nerve block)
' Xylocaine 100 mg. (20mg./ml.) Pre-filled syringe for cardiac arrhythmias
Xylocaine 2 Gm. (IV Infusion in cardiac arrhythmias) 20 mg./ml. 50 ml. Single use container

H. Liquids (Oral)

Amoxicillin Oral Susp. 250 mg./5 ml. 150 ml. 3tl. Ampicillin Oral Susp. 250 mg./5 ml. 80 ml. Btl.

Belladonna Tincture Benyin Cough Syrup

Castor Oil

Diiantin 125 (125 mg./5 ml.) Donnagel

E.S.S. (Erythromycin Oral Susp. 200 rag./ 5m..) 60 mi. 3tl.

Glycerin USP Glyoxide 15 ml.

Ipecac Syrup

Haidol Liquid 2 mg./ml.

,

Kapectolin (i.e., Kaopectate)

Maaiox Liquid 6 oz. Milk of Magnesia

Nilstat Susp. 100,000 Units/ml. 60 cc.

Pen VK 250 mg./5 mi. 100 ml. Potassium Iodide Soln. (SSKI)

Robitussin Liquid Robitussin DM Liquid

Sinequan Susp. lOmg./mi. Steiazine Liquid 10 mg./ml.

Thorazine 30 mg./mi. Triiafon Cone. 16 mg./5ml. Tylenol Elixir 160 mg./5 ml.
Velosef Oral Susp. 250 mg./5 ml. 100 ml. 3tl.
Xylocaine Viscous Solution 2%
I. Nasal Preparations
Afrin Naal Spray 15 ml.
Nasalide (0.025* Flunisolide) Nasal Solution 10 ml (50 metered sprays)
Neosynephrine 135 Nasal Solution Neosynephrine 1* Naal Spray 15 ml. J. Ophthalmic Preparations
1. Ophthalmic Ointments
Chloromycetin 1* Cortisporin
Decadron
Gantrisin Garamycin
Iiotycin
Lacri-lube
Neodecadron Neosporin
Sodium Siamyd 10%
Tobrex 0.3*
Yellow Mercuric Oxide 1*
2. Ophthalmic Solutions
Atropine 1/2* 5 ml. Atropine 1* 5 ml. and 15 ml.
Chloromycetin Ophthalmic Solution 0.5% Cortisporin Susp. 5 mi. Cyciogel 1* 5 ml.

Decadron Ocuraete 0.1* 5mi.

Gantrisin 15 ml. Garamycin 5 mi. Glaucon 2* 10 ml.

Inflamase Forte 135 5 ml. Isopto Homatropine 2* 5 ml. Isopto Homatropine 5* 5 mi. Isopto Hyoscine 1/4* 5 mi.

Muro 128 15 mi. Mydriacyl 1* 15 ml.

Naphcon. A 15 ml. Neodecadron Ocumeter 5 ml. Neosporin 10 ml. Neosynephrine 2-1/2* 15 ml. Neosynephrine 10* 5 mi.

Ophthaine 15 ml. Ophthochlor (0.5* Chloramphenicol Sol.) 15 mi Opticrom 4* 10 mi.(Cromoiyn Na, US?)

Pilocarpine 1* 15 ml. Piiocarpine 2* 15 mi. Pilocarpine 4* 15 mi.

Sulamyd 10* 5 mi.

Teraisol 15 mi. Timoptic 0.25* Ocumeter 5 mi. Timoptic 0..5* Ocumeter 5 mi. and 10 mi. Tobrex 0.3*
• Vasocon 15 ml. Visine 15 ml.
•Zincfrin 15 ml.

K. Otic Preparations

Auraigan 15 ml.

.

Cortisporin Otic Susp. 10 mi.

Debrox 15 mi.

Vosoi 15 mi. Vosoi HC 10 ml.

1

L. Psycotherapeutic Preparations
Atarax 10 mg. tabs Atarax 25 mg. tabs Atarax 50 mg. tabs Atarax 100 mg. tabs
Compazine 10 mg. tabs Compazine Inj. 10 mg. amps Compazine Suppositories
Desyrel 50 mg. tabs Desyrei 100 mg. Tabs
Elavil 10 mg. Tabs Eiavii 25 mg. Tabs Elavil 50 mg. Tabs Elavil 75 mg. Tabs Elavii 100 mg. Tabs Elavil 150 mg. Tabs Elavii Inj. 10 mg./ml. 10 ml viai
Haldoi 1/2 mg. Tabs Haidoi 1 mg. Tabs Haldoi 2 mg. Tabs Haidoi 5 mg. Tabs Haidoi 10 mg Tabs Haidoi 20 mg Tabs Haidoi Inj 5 mg. amps Haidoi Oral Cone. 2 mg./ml Kydergine l mg. Oral Tabs
Lithonate 300 mg. Caps Loxitane 25 mg.. Caps Loxitane 50 mg. Caps
Meliaril 10 mg. Tabs Mellaril 15 mg. Tabs Meliaril 25 mg. Tabs Meliaril 50 mg. Tabs Meilaril 100 mg. Tabs Meilarii 200 mg. Tabs
Navane 1 mg. Caps Navane 2 mg. Caps Navar.e 10 mg. Caps Navane 20 mg. Caps Norpramine 25 mg. Tabs Norpramine 50 mg. Tabs Norpramine 100 mg. Tabs

Prolixin 2.5 mg. Tabs Prolixin 5 mg. Tabs Prolixin 10 rag. Tabs Proiixin Inj. 2.5 mg./ml. Prolixin Decanoate 25 mg./ml.
Sinequan Oral Cone. 10 mg./ml. Stelazine 1 mg. Tabs Stelazine 2 mg. Tabs Stelazine 5 mg. Tabs Stelazine 10 mg. Tabs Stelazine Oral Cone. 10 mg./ml.
Thorazine 10 mg. Tabs Thorazine 25 mg. Tabs Thorazine 50 mg. Tabs Thorazine 100 mg. Tabs Thorazine 200 mg. Tabs Thorazine Inj. 50 mg./amp Thorazine Oral Cone. 30 mg./ml. Tofranil 50 mg. Tabs Trilafon 2 mg. Tabs Trilafon Oral Cone. 16 mg./5 ml.
Vistaril 25 mg. Caps Vistaril 50 mg. Caps
Vistaril Inj. 50 mg./ml.
M. Rectal Preparations
Aspirin Suppositories 10 gr.
Compazine Suppositories 25 mg.
Dulcoiax Suppositories
Evac-Q-Kit
Fleet Enema (reg.) 4 1/2 oz.
Glycerin Suppositories
Hemorrhoidal Suppositories Kemorrhoidai Suppositories with Kydrocortisone Tigan Suppositories 200 mg. Tucics Pads
N*. Tooicai Preoarations

Alphosyl Lotion 8 02. (Limited Use) Ammoniated Hg Ointment 5* 1 oz. tube Analgesic Balm 1 02. tube Aquaphor (for compounding use) 1 ib. jar Aristocort cream 0.1* 15 gm. tube Aristocort cream 0.1* 60 gm. tube Aristocort ointment 0.1* 15 gm. tube A/T/S- 2* Topical Soln. (Erythromycin) 2 02. 3tl. Aveeno bath powder 1 ib.
3asis soap Ben2oin Tincture 4 02. 3en2oyl Peroxide 5* gel 1.5 02. tube Betadine ointment 1 02. tube 3oric Acid ointment 10* 1 02. tube
Calamine lotion 4 02. Cleocin-T 10* 30 ml. Coal Tar Solution 20* 4 02. Compound W (Supervision use only) Cortisporin ointment 20 gm.
Dermassage lotion 8 02. (Limited Use) Dermoplast 3 02. spray can Dibucaine ointment (Nupercainal Oint.) 1 oz, tube Diprolene Oint. 0.05* 15 Gm. tube Diprolene Oint. 0.05* 45 Gm. tube Domeboro Powder Paks
Efudex Cream 5* 25 gm. Elase Ointment i or. Epsom Salts (4 Ib. box) Ethyl Chloride Spray 4 oz, Eugenol, U.S.P. 1 02.
Fluonid Soln. 0.01* 60 mi. Btl.
Garamycin Cream 0.1* 15 gm. tube Garamycin Ointment 0.1* 15 gm. tube
Hexachlorophene Bar Soap (Until Current Stcck Expires Hydrocortisone Cream 0.5* 1 02. tube Hydrocortisone Cream 1* 20 gm. tube 1 oz. Kydrocortisone Lotion 1/2* 4 oz. Hydrocortisone Lotion 1* 4 02. Hydrocortisone Ointment 0.5* 1 oz. tube Hydrocortisone Ointment 1* 1 oz. tube Hydrogen Peroxide U.S.P. 3* 16 oz.
Kwell Lotion Kwell Shampoo

K-Y Lubricating Jelly 2 oz. tube

Lanolin Ointment 1 oz. tube Lidex Cream 0.053s 15 gm. tube Lidex Ointment 0.05* 15 gm. tube Lotrimin Cream 1* 15 gm. tube Lotrimin Lotion 1* 10 ml.

Micatin Cream 15 Gm. tube Mineral Oil Mycitracin Ointment 15 gm. tube Mycolog Cream 15 gm. tube Mycolog Ointment 15 gm. tube Mycostatin Cream 15 gm. tube and 30 gm. tube

Nitrobid Ointment 2% 20 gm. tube

P & S Licuid 4 oz.

Phenol (liquified) U.S.?.

c

Phisohex Lotion 16 oz. (Limited Use)

Podoben (Limited Use)

R & C Spray 10 oz. (Limited Use) Retin-A*0.01* 15 gm. tube

Salicylic Acid Plaster 40* Sebulex Shampoo 8 oz. Sebutone Shampoo 4 oz. Selsun Susp. 4 oz. Silvadene Cream 50 gm. Sodium Thiosuifate (prepared to order)

Tegrin Cr. 4.4 oz. tube
Tinactin Cream 1/2 oz. 15 gm. tube Tinactin Powder 1 1/2 oz. 45 gm. tube Tinactin Solution 10 ml. Tridesilon 0.05* Cr. 15 gm. tube

Ureacin - 20 2.5 oz. jar

Valisone Cream 0.1* 15 gm. tube and 45 gm. -ube Vioform Cream 30 gm. tube Vioform with Kydrocortisone Cream 20 gm. tuoe Vioform with Hydrocortisone Ointment 20 gm. tube Vitamin A & D Ointment 2 oz. tube

Whitfields Ointment 1 oz. tube

Xylocaine 2% Jelly 30 cc. tube

Zovirax 5* Oint. 15 Gm. tube (Limited Use)

Generic Name - Capsules and Tablets

Acetaminophen 325 mg. Tabs Acetaminophen 500 mg. Caplets Acetazolamide 125 mg. Tabs Acetazolamide 250 mg. Tabs Acetazolamide S.R. 500 mg. Caps Acyclovir 200 mg. Caps Allopurinol 100 mg. Tabs Allopurinol 300 mg. Tabs Aluminum Hydroxide 475 mg. Caps Aluminum Hydroxide 10 gr. Tabs Aminophylline 100 mg. Tabs Aminophylline 200 mg. Tabs Amitriptyline 10 mg. Tabs Amitriptyline 25 mg. Tabs Amitriptyiine 50 mg. Tabs Amitriptyline 75 mg. Tabs Amitriptyline 100 mg. Tabs Amitriptyline 150 mg. Tabs Amoxicillin 250 mg. Caps Amoxicillin 500 mg.. Caps Ampicillin 250 mg. Caps Ampiciliin 500 mg. Caps Ascorbic Acid 500 mg. Tabs Aspirin.5 gr. Tabs Aspirin 5 gr. S.C. Orange Tabs Aspirin 10 gr. S.C. Red Tabs Atenolol 50 mg..7abs Azathioprine 50 mg. Tabs

Tylenol APA? Diamox Diamox Diamox Sequels Zovirax Zyloprim Zyloprim Alu-Caps Amphojel Aminophy1line Aminoohylline Elavil Elavil Elavil Elavii Slavil Elavil Polymox Polymox Ampicillin Ampicillin Vitamin C Aspirin Ecotrir. Aspirin Tenorir.ir. Imuran.

3aclofen 10 nig. Tabs Benztropine.Mesylate 0.5 mg. Tabs 3enztropine Mesylate 1 mg. Tabs Bethanechol Chloride 10 mg. Tabs Bethanechol Chloride 25 mg. Tabs Bisacodyl 5 mg. Tabs

Lioresal Cogentin Cogenrin Urechoiir.e Urechoiir.e Ducoiax

Calcium Gluconate 15 gr. tube Calcium Polycarbophii Chew Tabs Carbamazepine 200 mg. Tabs Carbeniciiiin Cefacior 250 mg. Caps Cephradine 250 mg. Caps Cephradine 500 mg. Caps Chicramphenicol 250 mg. Caps Chiorothiazide 250 mg. Tabs Chiorpheniramine Maleate 4 mg. Tabs Chiorpheniramine Maieate 8 mg. Tabs Chiorpheniramine Maleate 12 mg. Tabs

Calcium Gluconate Mitroiar. Tegretol Geocillin Ceclor Velosef Velosef Chioromycetir. Chlortrz.rr.etor. Cr.lortrirr.etor. Chiortriveton Chlortr-rr.etor.

Chlorpromazine 10 rag. Tabs Chiorpromazine 2 5 rag. Tabs Chiorproraazine 50 rag. Tabs Chlorpromazine 100 mg. Tabs Chiorpromazine 200 mg. Tabs Chlorpropamide 100 mg. Tabs Chlorpropamide 250 mg. Tabs Cimetidine 300 mg. Tabs Clindamycin HCL 150 mg.. Caps Clofibrate 500 mg. Caps •Clonidine 0.1 mg. Tabs Clonidine 0.2 mg. Tabs Clotrimazole 10 mg. Troches Cloxaciilin 250 mg. Caps Cloxacillin 500 mg. Caps Colchicine 0.6 mg. Tabs Cyproheptadine 4 mg. Tabs
Desipramine 25 mg. Tabs Desipramine 50 mg. Tabs Desipramine 100 mg. Tabs Dexamethasone 0.5 mg. Tabs Dexamethasone 1.5 mg. Tabs Dexamethasone 4 mg. Tabs Dexamethasone 6 mg. Tabs Dicioxaciilin 250 mg. Caps 3icyclomine HCL 20 mg. Tabs Digoxin 0.125 mg. Tabs Digoxin 0.25 mg. Tabs Diflunisai 500 mg. Tabs Diltiazem HC1 30 mg. Tabs Dioctyl Sodium Suifosuccinate
100 mg. Caps Diphenhydramine KCL 25 mg. Caps Diphenhydramine KCL 50 mg. Caps Dipyridamole 25 mg. Tabs Disoppyramide C-R 150 mg. Caps dl-Alpha-Tocopheryl 400 I.U. Caps Doxycycline Hyclate 50 mg. Caps Doxycycline Hyclate 100 mg. Caps
Enaiapril Maieate 5mg. Tabs Znaiapril Maieate 10 mg. Tabs Erythromycin 250 mg. Tabs Srythromycin 500 mg. Tabs Ethambutoi 400 mg. Tabs Ethionamide 250 mg. Tabs
Ferrous Suifate 5 gr. Tabs Fiavoxate 100 mg. Tabs Fluphenazine 2.5 mg. Tabs

Thorazine Thorazine Thorazine Thorazine Thorazine Diabinese Diabinese Tagamet Cleocin Atromid-S Catapres Catapres Mycelex Tegopen Tegopen Colchicine Periactin
Norpramine Norpramine Norpramine Decadron Decadron Decadron Decadron Dynaper. 3entyl Lanoxir. Lanoxir. Doiobic Cardize.T. Coiace
3enadryl Benadryl Persantir.e Norpace C-R Vitamin £ Vibramycir. Vibramycir.
Vasotec Vasotec Erythronycir. Srythror.ycir. Myambutci Trecator - SC
Feosol Urispas Proiixir.

Fluphenazine 5 mg. Tabs Folic Acid 1 mg. Tabs Furosemide 20 mg. Tabs Furosemide 40 mg. Tabs Furosemide 80 mg. Tabs
Gemfibrozii 300 mg. Caps Glipzide 5 mg. Tabs Glipzide 10 mg. Tabs
Haloperidol 0.5 mg. Tabs Kaloperidol 1 mg. Tabs Haioperidoi 2 mg. Tabs Kaioperidol 5 mg. Tabs • Haioperidoi 10 mg. Tabs Kaloperidoi 20 mg. Tabs Hydralazine 10 mg. Tabs Kydralazine 25 mg. Tabs Kydralazine 50 mg. Tabs Kydrochlorothiazide 25 mg. Tabs Kydrochlorothiazide 50 mg. Tabs Hy.droxychloroquine S04 200 mg. Tabs Hydroxyzine HCL 10 mg. Tabs Hydroxyzine HCL 25 mg. Tabs Hydroxyzine HCL 50 mg. Tabs Hydroxyzine HCL 100 mg. Tabs Kydroxyzine Pamoate 25 mg. Caps
Ibuprofen 400 mg. Tabs Indomethacin 25 mg. Caps lopanoic ACLD Tabs Isoniazid 300 mg. Tabs Isosorbide Dinitrate 10 mg. Oral
Tabs Isotretinoin 20 mg. Caps Isotretinoin 40 mg". Caps
Ketoconazole 200 mg. Tabs
Levothyroxine 0.1 mg.- Tabs levothyroxine 0.15 mg. Tabs Levothyroxine 0.3 mg. Tabs Lithium Carbonate 300 mg. Caps Loxapine Succinate 25 mg. Caps Loxapine Succinate 50 mg. Caps
Meclizine HCL 12.5 mg. Tabs Meciizine KCL 2 5 mg. Tabs '. Mercaptopurine 50 mg. Tabs Methenamine Manceiate i gm. Tabs Methocarbamoi 750 mg. Tabs

Prolixin Folic Acid Lasix Lasix Lasix
Lopid Glucotrol Glucotrol
Haidol Haidol Haidol Haidol Haidol Haidol Apresoline Apresoline Apresoline Hydrodi-25 Hydrodi-50 Plaquenil Atarax Atarax Atarax Atarax Vistaril
Motrin Ip.docin leiepaq'- ^ ::IK Isordil
Accutane Accutane
Nizoral
Synthroid Synthroiz Synthroid lithonaze Loxitane loxitar.e
Antivert Antivert Purinethol
Mar.rieiamir.e
Robaxir.

Methotrexate 2.5 mg. Tabs Methyldopa 250 mg. Tabs Methylprednisoione 4 mg. Tabs Methylprednisolone Dose Pale Metoclopramide HCL 10 mg. Tabs Metoproloi 50 mg. Tabs Metoprolol 100 mg. Tabs Metronidazole 250 mg. Tabs Minocycline 50 mg. Caps Minocycline 100 mg. Caps Minoxidil 2.5 mg. Tabs" Minoxidil 10 mg. Tabs Multiple Vitamins
Nadolol 40 mg. Tabs Nadoloi 80 mg, Tabs Naproxen 250 mg. Tabs Naproxen 375 mg. Tabs Naproxen 500 mg. Tabs Naproxen Na 275 mg. Caps Neomycin S04 0.5 Gm. Tabs Niacin 50 mg. Tabs Niacin 100 mg. Tabs Niacin SR 125 mg. Caps Niacin SR 250 mg. Caps Nifedipne 10 mg. Caps Nitrofurantoin Macrocrystals
50 mg. Caps Nitroglycerin Sustained Release
2.5 mg. Caps Nitroglycerin Sustained Release
6.5 mg. Caps Nitroglycerin Sublingual Tabs 0.4 nig, Nylidrin 6 mg. Tabs Nystatin 500,000 Units Oral Tabs
Oxacillin 250 mg. Caps Oxacillin 500 rag. Caps Oxtriphyiline 200 mg. Tabs Oxtriphyiline SA 400 mg. Tabs Oxybutynin Chloride 5 mg. Tabs
Papaverine HCL Time Released 150 mg. Caps
Penicillin V Potassium 250 mg.'Tabs Penicillin V Potassium 500 mg. Tabs Perphenazine 2 mg. Tabs Phenazopyridine HC1 100 mg. Tabs Phenazopyridir.e HC1 200 mg. Tabs Phenytoin Na 100 mg. Caps Phytonadione 5 mg. Tabs

Methotrexate Aldomet Medrol Medrol Dose Pale Reglan Lopressor Lopressor Flagyl Minocin Minocin Lonitin Lonitin Vitamin Tabs
Corgard Corgard Naprosyn Naprosyn Naprosyn Anaprox Neomycin Niacir. Niacin Nicobid - 125 Nicobid - 250 Procardia
Macrodar. in
Xirrobic
Nitrobic Nitrostat Ariidir. Mycostatin •
Prostaphylir. Prostaphylin Choiedyl Choledyi SA Ditropar.
Pavabid
Pen VK Pen VK Trilafon Pyridiux Pyridiun Dilantir. y.evr.vzon

Piroxicam 20 tug. Caps Placebo (Yellow) Caps Potassium Chloride 6.7 mEq. Tabs Prazosin HCL 1 mg. Caps Prazosin HCL 2 mg. Caps Prazosin HCL 5 mg. Caps Prednisone 1 mg. Tabs Prednisone 2.5 mg. Tabs Prednisone 5 mg. Tabs Prednisone 5 mg. dose pak Prednisone 10 mg. Tabs Prednisone 20 mg. Tabs Prednisone 50 mg. Tabs Pridostigmine Bromide 60 mg. Tabs Pridostigmine Bromide Timespan Primidone 250 mg. Tabs Probenecid 500 mg. Tabs Procainamide HCL 250 mg. Caps Procainaraide HC1 750 mg. S.R. Tabs Procarbazine HCl 50 mg. Caps Prochlorperazine 10 mg. Tabs Propantheline Bromide 15 mg. Tabs P'ropranolol 10 mg. Tabs Propranolol 40 mg. Tabs Propranolol LA 80 mg. Caps Propranolol LA 120 mg. Caps Propranolol LA 160 mg. Caps Propylthidura'cil 50 mg. Tabs Pseudoephedrine KCL 30 mg. Tabs Pseudaephedrine KCL 60 mg. Tabs Psyllium Hydrophiiic Mucilloid Pyridoxine 50 mg. Tabs
Quinidine Gluconate 324 mg. Tabs Quinidine Sulfate 200 mg. Tabs Quinine Sulfate 260 mg. Tabs
Ranitidine HCl 150 mg. Tabs Rifampin 300 mg. Caps
Simethicone 40 mg. cheyjable Tabs Simethicone 80 mg. chewabie Tabs Sodium Chloride Buffered Tabs
Spironolactone 25 mg. Tabs Sucralfate 1 gm. Tabs Sulfasaiazine 500 mg. Tabs * Suiindac 150 mg. Tabs Sulindac 200 mg. Tabs

Feldene Tylicebo #4 Kaon-CL Minipress Minipress Minipress Prednisone Prednisone Prednisone Deltasone Dose Pak Prednisone Prednisone Prednisone .Mestinon Mestinon 180 mg. Tabs Dosepan Mysoline Benemid Pronestyl Procan SR Matulane Compazine Probanthine Inderal Inderai Inderal LA 80 Inderai LA 120 Inderal LA 160 Propyi": iduracii Sudafec Sudafec Meramuc.I ?wd. Paks Vitamin 3 6
Quinagiu-e Dura Tabs Quinidine Suifate Quinamm
Zantac Rimactar.e
Myiicor. Myiicon 30 Thermotaos
Aldactcne Carafate Azulfidine Clinoril Clinorii

Terbutaline Sulfate 2.5 mg. Tabs Terbutaiine Sulfate 5 mg. Tabs Terfenadine 60 mg. tabs Tetracycline 250 mg. Caps Tetracycline 500 mg. Caps Theophylline Anhydrous SA 200 mg. Tabs Theophylline Anhydrous SA 300 mg. Tabs Theophylline Anhydrous SA 500 mg. Tabs . Therapeutic Vitamin with Minerals Thiamin HCL 100 mg. Tabs Thioridazine 10 mg. Tabs Thioridazine 15 mg. Tabs Thioridazine 25 mg. Tabs Thioridazine 50 mg. Tabs Thioridazine HCL 100 mg. Tabs Thioridazine HCL 200 mg. Tabs Thiothixene 1 mg. Caps Thiothixene 2 mg'. Caps Thiothixene 10 mg. Caps Thiothixene 20 mg. Caps Tocainide HCL 400 mg. Tabs Tolbutamide 500 mg. Tolmetin Na 400 mg. Caps Trazodone HC1 50 mg. Tabs Trazadone HC1 100 mg. Tabs Triamcinolone 4 mg. Tabs Trifluoperazine 1 mg. tab Trifluoperazine 2 mg. Tabs Trifluoperazine 5 mg. Tabs Trifluoperazine 10 mg. Tabs Trihexyphenidyl HCL 2 mg. Tabs Trihexypheni'dyl HCL 5 mg. Tabs Trimeprazine Tartrate 2.5 mg. Tabs Trimethobenzamide HCL 250 mg. Caps

Brethine
Brethine Seldane Tetracycline Tetracycline
Constant-T
Constant-T Theo-Dur Uni-Mult-M Vitamin B 1 Mellaril Mellaril Mellarii Mellaril Mellaril Mellaril Navane Navane Navane Navane Tonocard Orinase Tolectin DS Desyrel Desyrei Aristocort Steiaz-- .• Stelazn.-i 3teiazirt
Steiazi: i Artane Artane Temaril Tigan

Valproic Acid 250 mg. Caps Verapamil HCL 80 mg. Tabs Vitamin A 25,000 I.U. Caps Vitamin A 50,000 I.U. Caps

Depakene Isoptin Vitamin A Vitamin A

Warfarin Na 2 mg. Tabs Warfarin Na 2.5 mg. Tabs Warfarin Na 5 mg. Tabs Warfarin Na 7.5 mg. Tabs Warfarin Na 10 mg. Tabs

Coumadir. Coumadir. Coumadir. Coumadin Coumadin

III. Over-the-Counter Drugs

Cough Calmers Cold Tablets Caiamine Lotion

Analgesic Balm Bacitracin-Neomycin-Polymicin Ointment Anti-Fungal Cream Rectal Ointment Antacid Tablets (Gelusil) Antacid Liquid Milk of Magnesia Kaopectate ASA Tylenol / Sudafed 30 mg. Viof orni
IV. Therapeutic Use Index
A. Central Nervous System Agents
'• 1. Analgesics
Acetaminophen (Tylenol 325 mg.) APAP (Tylenol Extra Strength 500 mg. Caplets) Acetylsalicylicacid (Aspirin 325 mg.) Aspirin 5 gr. £.C. (Orange) I.E. Ecotrin Aspirin 10 gr. E.C. (Red) I.E. Ecotrin Diflunisal (Dolobid 500 mg.)
2. Migraine Products
Midrin Cafergot
3. Anti-Rheumatic and Anti-Inflammatory kger.zs
Ibuprofen (Motrin 400 mg.) •Indomethacin (Indocin) 25 mg.1 Naproxen (Naprosyn 250 mg.). Naproxen (Anaprox 275 mg., 375 mg. ar.c 500 mg, Piroxicara (Feldene 20 mg.) Sulindac (Clinoril 150 and 200 rags.) Tolmetin (Tolectin DS 400 mg.)
4. uricosurics
Allopurinal (Zyloprim 100 and 300 mg.; Probenecid (Benemid 500 mg.)
5. Anti-Emetic and Anti-Vertigo Agents
Prochlorperazine (Compazine 10 mg.) Meclizine (Antivert 12.5 mg. and 25 mg.)

Trimethobenzamide (Tigan 250 rag.)
6. Psychotherapeutic Agents
a. Anti-Anxiety Agents
Hydroxyzine KCL (Atarax 10, 25,50 & 100 mg.) Hydroxyzine Pamoate (Vistaril 25 mg. and 50 mg.)
b. Anti-Depressants
Amitryptiline (Elavil 10, 25,50, 75,100& 150mg)
Desipramine (Norpramin 25, 50 & 100 mg.)
Trazodone (Desyrel 50 mg. and 100mg. Tabs)
c. Anti-Psychotics
Chlorpromazine (Thorazine 10, 25, 50, 100-, &200mg) Compazine 10 mg. Fluphenazine (Trilafon 2 mg.) Haloperidol (Haldol 0.5, a, 2, 5, 10 & 20 mg.) Lithium Carbonate (Lithonate 300 mg.) Loxapine Succinate (Loxitane 25 mg. and 50 mg. Caps) Perphenazine (Trilafon 2 mg.) Thioridazine (Mellaril 10, 15,2 r . 50, 100&200mg) Trifluphenazine (Stelazine 1, 2, 5 & 10 mg.)
7. Anti-Convulsants
Carbamazepine (Tegretol 200 .T.g.) Dilantin with Phenobarbitoi i/i gr . Dilantin with Phenobarbitoi 1/2 gr. Phenytoin (Dilantin 100 mg.) Primidon'e (Mysoline 250 mg.) i
8. -Muscle Relaxants
Methocarbamol (Robaxin 750 mg.) Norgesic Forte Tabs Parafon Forte
9. Anti-Paricinsonism Agents
3enztropine (Cogentin 0.5, l, 2mg.) Carbidopa and Lavodopa (Sinemet 25/10C and 25/250) Trihexphenidyl (Artane 2 & 5 mg.)
B. Systemic Anti-Infectives

Antibiotics
a. • Cephalosporins Cefacior (Ceclor 250rag.Caps) Cephradine (Velosef 250 & 500 mg.)
b. Erythomycins (250 mg. and 500 mg. Tabs)
c. Penicillins
Amoxicillin 250 & 500 mg. Ampicillin 250 & 500 mg. Carbenicillin 382 mg. Cloxacillin 250 & 500 mg. Oxacillin 250 & 500 mg. Penicillin VK 250 & 500 mg.
d. Tetracyclines
Minocycline (Minocin 50 & 100 mg. Caps) Tetracycline (250 & 500 mg. Caps) Vibramycin (50 & 100 mg. Caps)
Anti-Fungals
Griseofulvin Microsize (Grisactin 250 mg.) Ketoconazole (Nizoral 200 mg.)
Sulfonamides
Azo Gantrisin Bactrim Bactrim DS Sulfasalazine (Azuifidine 500 mg.)
Anti-Tuberculosis Agents ' i
Ethambutol (Myambutol 400 mg.) Ethionamide (Trecator SC 250 mg.) Isoniazid (INH 300 mg.) Rifampin 300 mg.
Amebicides
Metronidazole (Flagyl 250 mg.)
Urinary Anti-Infectives
Mether.amine Mandelate 1 gm. ( Mandeiamir.e) Nitrofurantoin (Macrodar.tin 50 mg.) Pyridium 100 sig. and 200 mg. Tabs

C. Diuretics and Cardiovascular Agents
1. Diuretics
Acetazolamide (Diamox 125, 250, & 500 mg. Sequels) Chlorothiazide (Diuril 250 rag.) Furosemide (Lasix 20, 40 & 80 mg.) Hydrochiorothiazide (Hydrodi 25 & 50 mg.) Spironolacton (Aldactone 25 mg.) Dyazide
2. Cardiac Glycosides
Dioxin (Lanoxin 0.125 and 0.25 mg.)
3. Anti-Anginal Agents
Diltiazem (Cardizem 30 mg. Tabs) Isosorbide Dinitrate (10 mg. oral) Nifedipine (Procardia 10 mg.) Nitrobid Paste 20 gin. tube Nitroglycerin'Sustained Release (Nitrobid 2.5&6.5mg) Nitroglycerine Sublingual (Nitrostat 0.4 S.L. Tabs)
4. Anti-Arrythmic Agents
Disopyramide Phosfate (Norpace CR 15C nig. ) Procainamide (Pronestyl 250 mg. and ? ocan SR 750 mg. Tabs) Propranoloi (Inderal 10, 40, & 80 LA. 120 LA, 160 LA) Quinidine Gluconate (Quinaglute 324 me,.) Quinidine Sulfate 200 mg. Tocainide (Tonocard 400 mg.)
5. Peripheral Vasodilators
Dipyridamole (Persantine 25 mg. and 5C mg. Tabs) Minoxidil (Loniten 2.5 & 10 mg.) Papaverine Time Release (Pavabid 150 -g.) Prazosin (Minipress 1, 2, & 5 mg.) Verapamil Inj. (Calan 5 mg./2mi.) Verapamil Oral (Isopin 80 mg.)
6. Anti-Hypertensive Agents
Clonidine (Catapres 0.1 & 0.2 mg.) Hydralazine (Apresoline 10, 25 & 50 mg.) Metaprolol (Lopressor 50 mg. and 100 mg. Tabs) Methyidopa (Aldomet 250 mg.) Nadolol (Corgard 40 mg. and 80 mg. Tabs)

7. Anti-Hyperlipidemic Agents
Clofibrate (Atromid-S 500 mg.) Gemfibrozil (Lopid 300 mg.) Nicotinic Acid (Niacin 50 & 100 rag.)

D. Respiratory Agents

1. Systemic Bronchodilators

a. Sympathomimetics

Terbutaline (Brethine 2.5 & 5 mg.)

b. Xanthine Derivatives

Aminophylline 100 & 200 mg. Anhydrous Theophylline (Constant-T 200 mg. and 300 mg.) Anhydrous Theophylline (Theo-Dur 500 mg. Tabs) Oxtriphylline (Choledyl 200 & 400 mg.)

2. Respiratory Inhalant Agents

Albuterol (Proventil) Aromatic Ammonia Vaporole Beclomethasone (Vanceril) Brethine 1 ml. Amps i mg./mi. Isoetharine (Bronicosoi 1056 soin.) Isoproterenol (Isuprei) Metaproterenol (Aiupent) • N-Acetylcysteine (Mucomyst 10 %) Sodium Chloride 0.4536 (Unit Dose 5 ml.)

3. Anti-Histamines

,

Chlorpheniramine (Chlortrimeton 4, 8 & 12 mg.) Cyproheptadine (Periactin 4 mg.) Diphenhydramine (Benadryl 25 & 50 mg.; Trimeprazine (Temaril 2.5 mg.)

4. Expectorants

Guaifenesin (Cough Calmers)

5. Respiratory Combinations - Antihistamine and/or Decongestants

Actifed Tabs Cold Tablets Dimetarjo Extentabs

-•rw

Drixoaj. Tabs Naldecon Tabs Ornade Spansules Quibron Caps Seldane Caps Sudafed 30 & 60 mg. Tuss - Ornade
2. Gastrointestinal Agents 1. Antacids
a. Aluminum Hydroxide Alucaps Amphojel Chewable Tabs
b. Combinations
Maalox
2. Anti-Cholinergic Agents
Dicyclomine (Bentyl 20 mg.) Propantheline (Probanthine 15 mg.)
Combination Anti-Cholinergic Agents
Combid Spansules Donnatal Librax 3. Histamine (H2) Antagonist
Cimtidine (Tagamet 300 mg.) Ranitidine (Zantac 150 mg.)
4. Anti-Fiatulants
Simethicone (Mylicon 40 & 80 mg.)
5. Stimulants
Hegian
6. Duodenal Ulcer Short Term Treatment
Sucralfate (Carafate 1 gm.)
7. Urinary Tract Products

a. Antispasmodics

Flavoxate (Urispas 100 mg.) Oxybutynin (Ditropan 5 mg.)

b. Cholinergic Stimulants

Bethanechol (Urecholine 10 & 25 mg.)

c. Analgesics

'

Phenazopyridine HCL (Pyridium 100 mg. and 200 mg.) 8. Laxatives
a. Stimulants
Bisacodyl (Dulcolax 5 rag.) b. Bulk

Psyllium Hydrophiliic Mucilloid Pwd. Paks (Metamucil & Modane Bulk Lax)
c. Emollients
Castor Oil
d. Fecal Softeners Dioctyl Na Sulfosuccinate 100 my.
e. Combinations
Peri-colace f. Liquids
Milk of Magnesia g. Chewable Tablets
Mitrolan
9. Anti-Diarrheal Agents Donnagel Lomotil Mitrolan Kaopectolin (Kaopectate)

10. Emetics
pecac Syrup
Hormones
1. Glucocorticoids
Methylprednisolone (Medrol 4 mg.) Methylprednisolone (Medrol Dose Pak) Prednisone 1, 2.5, 5, 10, 20, 50 mg. & 5 mg. Dose Pak
(Deltasone Dose Pak 21) Triamclnolone (Aristocort 4 mg.)
2. Thyroid Agents
Sodium Levothyroxine (Synthroid 0.1, 0.15, & 0.3 mg.)
3. Oral Hypoglycemics
Chlorpropamide (Diabinese 100 & 250 mg.) Tolbutamide (Orinase 500 mg.)
Nutritional Products
1. Vitamins-
Folic Acid 1 mg. Multiple Vitamin (Vitamin Tabs) Nicobid - 125 Nicobid - 250 • Oscal 500 Tabs Therapeutic Vitamins with Minerals
(Uni-Mult-M) Vitamin-A 25,000 I.U. Vitamin A 50,000 I.U. Vitamin B 1 100 mg. Vitamin B 6 50 mg. Vitamin B 12 100 meg. Inj. Vitamin B Complex with Vitamin C 500 ~g.
(Berocca) Vitamin C 500 mg. Vitamin S 400 I.U. Vitamin K 5 mg. (Mephyton)
2. Minerals and Electrolytes
a. Potassium Replacements
Potassium Chloride 500 mg. (Kaon-Cl

6.7 mEq.) b. Iron
Ferrous Gluconate 5 gr. Ferrous Sulfate (Feosol 5 gr.) c. Thermotabs H. Blood Modifiers 1. Iron Products Feosol 5 gr. Ferrous Gluconate 5 gr. 2. Vitamins Folic Acid 1 mg. Vi.tarain B 12 1000 meg. Inj. Vitamin K 5 mg./ml. 3. Anti-Coagulants Coumadin (2, 2.5, 5, 7.5 & 10 mg.) I. Miscellaneous Products 1. Placebos Placebo #4 (Tylicebo #4 Yellow Capst 2. Immunosuppressive Drugs Imuran 50 mg. Tabs 3. Cholinergic Muscle Stimulants Mestinon 60 mg. Tabs Mestinon Timespan 180 mg. Tabs 4. Antimetabolites and Antipsoriatic Drugs Methotrexate 2.5 mg. Tabs V. Limited Use Drugs Drugs in this category are.to be used only after other regular formulary drugs have been tried and found to be non-acceptable.

Accutane 20 mg. and 40 mg. Caps

Alu-Caps

Carafate 1 gm. Tabs

Cordarone (Amiodarone 200 mg. Tabs)

Corgard 40 mg. Tabs

Ceclor 250 mg. Caps

Chloromycetin 250 mg. Caps

Deltasone Dose Pak 5 mg.

Diamox Sequels 500 mg.

Ditropan 5 mg. Tabs

Dynapen 250 mg. Caps

Entex-LA Tabs

Feldene 10 & 20 mg. Caps

Imuran 50 mg. Tabs

Librax

Loniten 2.5 mg. Tabs

Loniten 10 mg. Tabs

Lopid 300 mg. Caps

Matulane 50 mg. Caps

Mephyton 5 mg. Tabs

Mestonin 60 mg. Tabs

Mestonin Timespan 180 mg. Tabs

Methotrexate 2.5 mg. Tabs

Mycelex 10 mg. Troches

Neomycin S04 0.5 Gm. Tabs

Neptazane 50 mg. Tabs

Nizoral 200 mg. Tabs

Norgesic Forte Tabs

Norpace - CR 150 mg. Caps

Os-cal 500 mg. Tabs

Plaquenii 200 mg. Tabs

Procan SR 750 mg. Tabs

Propythiouracil 50 mg. Tabs

Quinamm 260 mg. Tabs

Quinidine Gluconate 324 mg. Tabs

• Quinidine Sulfate- 200 mg. Tabs

,

Reglan Tabs

Sinemet 25/100 Tabs

Sinemet 25/250 Tabs

Tapazole 5 mg. and 10 mg. Tabs

Tegopen 250 & 500 mg. Caps

T.olectin DS Caps

Tonocard 500 mg. Tabs

Trecator - SC 250 mg. Tabs

Urispas 100 mg. Tabs

Zantac 150 mg. Tabs

Zovirax 200 mg. Tabs

VI. Non-Formulary Drugs Drugs in this category are in the Pharmacy as a resuit

of a patient having a specific condition which could not be properly treated with regular formulary drugs. They remain in the Pharmacy as a result of the inmate being transferred from the Institution or a change in the inmate's treatment plan. They will remain available only until their expiration dates have been reached at which time they will be removed from stock and disposed of accordingly.
Atabrine 100 mg. Tabs Azogantrisin Tabs Cascara Cpd. Tabs Colehicine 0.6 mg. Tabs Questran Pwd. Paks
VII. Special Forms (Available from Pharmacy)
A. Formulary Addition Request Form (see attached)
B. Request for Non-Formulary Drugs (see attached)
C. Request for Deletion of Formulary Drugs (see attached)

TOBMULAKf ADDITION REQUEST TOFM

1. Jtonprcprietary (generic) nama

2. Brand (trade) nara .

3. ^Sariufacturar(s)

4. Dosage(s) and strength (s) requested

5. Pharaacologic prcperty($). Ihis item will te cotpleted by tha Cirsctor of

Phacnacy Servicssr if desired. A. rharnacclogisaily ralared ts ths follovir.g available cccro-crjfs or groups

cccrtpcrnds

3. Sits of acticn

C. Msde of action D. Where

E. Cr^st of acticn

F. Duratim of action

G. Disxriiraticn to body tissues

H. Ebrn rretablilized: Liver

Kidr-ev

Ct±er

1) Where treated

At what

rate

2) In what chemical fora or' stats i s i t excreted? Lis-c -±is rretabciitas

XV.Adverse drug reactions and drug interactions

6. UsxaLL dcsc and dosage rsr.ge 7. Special ecutiens or rc-Tirics 8. Cost

9%. Estimated nuntsr of patisnts receiving drug 10. rym'ml irzlicaticns (include TJiorapeutic and/or other advantages)

11. V7ill this drug replace an-existing fornalary drug? If so, which drug(s)

12. Valid published litarstere,. reference which sufasrantitatss plans and 11 aicve. If docosntaticn is scientifically valid but unpub ccpies of these data should be attached

is i:

13. If the requested drug is supericr to tfcs exLstir-g drug en forniLary", 'said

rsisens with perfect rsfersr.css

^^^^

•0

.. REQUEST PDR

DKD3

Patient's name Eesident nurfcer Kcnfosnelary drug Total quantities prsscrUsed Paason for ordsring nonfozrulary drug

KSrjforndary drugs vail not fce stocked in the dispensor*/, but iray be obtained for patients u?cn~cSwSI5fijcn o f t h i r reqaastu As tha dennrjd and crccursTrent: of zhsse madicatdcns is increasedr ccst ever equivalent formulary drugs most be anticipate
Przctitdcner's sigaatxse Data

• • ' •.

REQUEST P3R DELETION OF F0I£!ULAI« DPL'G

Kaine of d r a g

•

Reascn for disccntinuation of dnjg from formulary

•

Physician's sisnafcxe

.
:
: ™
C
:
f

"^ XVI. GtflDELIHSS FOtt USB OF K ..JHOTROPiq THWG5 IN M.H.C.

A. Definition*

A psychotropic drug is onowhich oxercises direct effeot upon the cen nervous system andwhich io capable of influencing and modifying beha

Drog3 included in the3e guidelines J

1« Antipsychotics. 2. Antidepressants. 3. Antianxiety agents.
In Lithium carbonate. f>. Sedatives and hypnotics. 6, Paychomotor stimulants.

B. Standards.

•

'

1* ^Whenever possiblela comprehensive drug history should bo obtaine "before initiating treatment. This history should include consid oration of cardiac, liver, renal, central nervous system and otht disease. Communication is essential between the physician treating the behavior disorder and other physicans who may be treatinj other disease entities in the same patient if serious drug inter' actions are to be avoided*

2. Target symptoms and behavior problems to bo treated should be recorded in the clinical record. Theso signs and aymptona con3titute a baselina against which the patient's clinic condition is evaluated and also permits evaluation of the outcome of treatment interventions.

3» Effects of medication on the targot symptoms and patient behavior should be recorded, at each visit, in the patient's progress note:

U. Adequate initial doses should bo used to obtain desired results. Adequacy of initial dosage should bo oautiously and individually
• determined and monitored' by more frequont clinic visits to quicklj obviate inappropriate high or low doaes. An exception of this guideline should be the occasional drug which can be started on a low dosage and gradually built up to an adequate amount, eapeclally in the elderly or debilitated patients and thoso who have
exhibited reaction to othor psychotropic agents.
5. Dosage should be gradually reduced to tho minimum maintenance dose after tho de3irodclinical result i3 obtained and the patient'; condition has atabilisod.

6. A psychotropic drug should be administered for a sufficient period

of time to determine its clinical effectiveness in each individual

case. In general, a period of thrap to nit. ye_aka may be required

before significant impro>ejnej^t_jLn_E3JjeJlotlc symptoma is observed.

In acuto cases, the patiel^s managemont probloms nay bo so aovore

/

that a change in drug in shorter periods (less than three to six

j

woeks) may bo necossary. A.brief period as an inpaticnt may be

necessary.

XVI - 1

fl
C

7» -::- •

With tha use of antlpsychotic and anbideprosaant agents a ain&lo daily doao nay be used onco the individualized jdose fo the patient has boon established. With single evening doses t of side affects are frequently reduced and sedative propertie: aid in sleep* Those medicines that possess some properties o: psychostijnulation should be used in morning and midday doses : as to not interfere with sleep patterns. It is recognised thi small doses of long acting drugs tend to cause less fluctuatit in plasma levels and may be of clinical, value.

8. Drug holidays may be established a3 part of the drug" dosage scheduled for an occasional patient. There is some evidejicj to show that druiLJl5lidaYJ--maY_in.crea3B tha risk of tardive dy3kino3ia so this concept should be used in very selective eases,and the rationale for such opeoifically addressed in the progress notes at each clinic visit*

?• In goneral, the continuing use of antianxiety agents is not justified. Prolonged use may increase drug dependence and/or -thorapeutic paradox. The maimum for use r\?nn*A&nx.in*.j agpnhw might veil be that only anxiety_vhich markg.d.ly interferes with - human~~pe'rf^ormance~sh'ouldi_be._drug treatod and than only^lih"~dn that are not~fcblerance or dependence forming.

10. Specific concerns t

-

.....(a) If dosage levels significantly in excess of tho maximum listed in the AH\_Drug Evaluating*, the Physicians Desk Reference or an ASHP Formulary Sorvico aro used, tho medical rationale should be documented in tha patient's clinical record in accordance with the writton roviev procedures established by the hospital staff.

(b) Thioridasine 3hould_no.t-bB-givnn lr .. .. 800 mg dally because of the danger of. retinopathy.
.. (d) Tho Mental Hygiene Clinic at the Sioux Falla VAM3 is not . listed as a Kothadono Treatment Center. Thorofore outpatient treatment of patient3 Using opiates.and opiate derivatives will not be condoned. Patients with this
:•-. problem 3hould be referred to an appropriate methadona clinic.

11. Generally only one antlasvchotlc druft 3hould be prescribed at ono time. Drug consultations may bo indicated when combined antipsychotics are used. G,enerally^hl3i_^3__ai3Q_ii^ij_of_tho antldepre33ants. There are important exceptions to tho suggestion of prescribing only one drug at a time, somo of which are» •

(a) The combination of an antidoproasant with an antipsychotlc
(b) The prophylactic and routine uso of antiparkinaon ngenta with an antipsychotic should be discouraged bocauao of

T>Vl - 2

~ side effects (antlcholinergic ps/chosis and possibly increasing therislc of tardive dyskinesia). Theuse of antiparkin.sonian.drugs la usually indicated only when extratnramydal . -.slde-.ef facts appear. Often thoanticholinGrgic can bo reducc -•and.in 30me.case3 discontinued- once optimum level of functior and appropriate titration of the psychotropic medication has occurred. This should be considered in every case. .

(c) Patients with a major affective"disorder and" patients'with a

psychotic disorder and a secondary depression.may benefit frc

a combination of Lithium Carbonate and antipsychotic and anti

y^ yfy?^ depressant. This combination is fra^hJb_w,ith_tM-HkeJlihgod_

*?-"*~::

complications and shouloT be" mohltorgd clO3ely__by_jfrequent vis

fn_the clinic and appropriate blood levels of the agents bein

12. Theuseof psychotropic drug3 on a "prn" basi3 is discouraged. The need forsuch use often indicates that thepatient has notyet been stabilized on a clinically effective dosage* Exceptions might be the "prn" usage of an antipsychotic forthetreatment of flashbacks.

13. Because of thenarrow therapeutic index of Lithium Carbonate care-

-ful assessmeht'of the aatient and the rationnle foritsnssshould

be well_do_cmDejAid« Biood levels and dosage should be charted. •.

Lithium Carbonate should be used only after a complete historyt physical examination and laboratory assessment of the patient ha3

been completod. Essential components of tho work-up needed before

Lithium use Include:

...:.•

(a) History of previous useof Lithium with particular attention of evidences of Lithium sensitivity.
(b) •'The medical history must probe forevidence of cardiac, renal, or thyroid disease.
(c) Appropriate laboratory tests should confirm adequate kidney functioning andinclude a serum creatinine and BUN.
(d) "Adequate cardiac evaluation including an EKG. (e) appropriate thyroid assessment with (1) a physical exam-
ination and (2) T3, Tb, and TSH. (f) "I3erum Na, X, Cl levels should'be done prior to initiating
therapy.

0 v .*.••••••.'••

••• •

Maintenance procedures required with theU3e of Lithium:

(a) Guidelines forlaboratory work: (1) serum Lithium levels - 3hould be determined at least twotjjne.3_we_gkly untilthe patient is 3tabillzedj the_n_wgekly_for a month, then monthly Tor a year, and after one Irear these levels should be determined at three to six month intervals as long as the patient is on medication.
(b) Thyroid, cardiac andrenal function should be checked and documented in thepatient's record at sixto nine month intervals.
j (c) Serum Lithium levels should not exceed 1.$ mSq/L or Call below O.h mEq/L during maintenance therapy.

A>JL - 3

' /
/

1^) Adjunctive therapeutic .requirements: (l) Daily fluid intake

of 2,500 - 3»000 cc, (2) Dietary sodium chloride adjusted as

indicated by laboratory findings.

• - ..•-. •„;•—•._.

ll|. Laboratory surveillance when prescribing psychotropic .drugs should -

consist of: . :.?—•;—;.• . --

:

(a) C3C, urinaly3J3 and a 12-panel at 3Jx to nine, month intervals.
(b) In the case of Lithium therapy, thyroid, cardiac and renal stud: should be done in addition to (a) at six to nine-month interval;
(c) When appropriate and when available, serum and cellular levels of the medications used should be considered.

15. Physicians in the MHC who prescribe Antabuse will review with tho patie the "Consent for the Administration of Antabuse" and have the patient s this form, which will be filed in the medical record. (Sea copy of for attached to this section of the manual)

16. Administration of Long-Acting Neuroleptics.

(a) The Chief of Psychiatry Service is responsible for establishing : ..:. a ^ coordinating a long-acting neuroleptic (LAM) clinic with
Medical Administration Service.

(b) The physician following the patient is responsible for writing ..an order to schedule the patient for the LAN. He/she mu3t state
. • :the drugj dosage and frequency of administration.
(c) The Psychiatric Physician Assistance is responsible for the clini He/she will administer the medication in his/her office on ward 2 "orth and make appropriate documentation in tho Mental Health Clinic component of the patient'3 medical record. He will inform the patient's physician of any missed appointments and observatio behavior of the patients. He will coordinate with the head nurse 2 North, to obtain clinic coverage when on leave.

(d) Medical Administration Service will provide a Ii3t of patients scheduled for the clinic' and their medical records.

(c) The head nurse or charge nurse will order the long-acting neuroleptics from Pharmacy Service on a work order form. Multiple dos<
• vials of the medication will be maintained for outpatient use. Medication will be secured with other ward medications.

(f) The Physicians Assistant, or any other person who administers the medications to MHC patients, will completed a Mental Hygiene Clini "Daily Record" form on each patient seen in the LAM clinic. He will enter on it the name of the patient seen, social security ift date, length of time seen, and the date the patient is to be rescheduled for tho LAW clinic. Those comoleted "Daily Records" wil be sent to the MHC secretary on the sams day the Clinic is finishe so she can process the completed forma, enter "no shows'1 on tho conoutcr, and re-schcdule appointments per instructions.

XVT - u

;vtXVI. GUIDELINES FOR USE 07 PSYCHOTROPIC DRUGS IN M.H.C.

A. Definition.

A psychotropic drug is one which exercises direct effect upon the central nervous system and which i3 capable of influencing and modifying behavior.

Drugs included in these guidelines:

1. Antip3ychotics. 2. Antidepre33ants. 3. Antianxiety agents. U. Lithium carbonate <> 5. Sedatives and hypnotics, 6, Psychomotor stimulants.

B. Standards.

1. Whenever possible a comprehensive drug history should be obtained before initiating treatment. This history should include consideration of cardiac, liver, renal, central nervous system and other disease. Communication is essential between the physician treating the behavior disorder and other physicans who may be treating other disease entities in the same patient if seriou3 drug interactions are to be avoided.

2. Target symptoms and behavior problems to be treated should be recorded in the clinical record. These sign3 and symptom constitute a baseline against which the patient's clinic condition is evaluated and also permits evaluation of the outcome of treatment interventions.

3. Effects of medication on the target symptoms and patient behavior should be recorded, at each visit, in the patient's progress notes*

U. Adequate initial doses should be used to obtain desired results. Adequacy of initial dosage should be cautiously and individually determined and monitored by more frequent clinic visits to quicidy obviate inappropriate high or low doses. An exception of this guideline should be the occasional drug which can be started on a low dosage and gradually built up to an adequate amount, especially in the elderly or debilitated patients and those who have exhibited reaction to other psychotropic agents.

5. Dosage should be gradually reduced to the minimum maintenance
dose after tho desireddinical result is obtained and the patient's condition has stabilised.

6. A psychotropic drug should be administered for a sufficient period

of time to determine its clinical effectiveness in each individual

case. In general, a period of three to six weeks may be required

before significant improvement in psychotic symptoms is observed.

In acute cases, the patient's management problems may be 30 severe

(

that a change in drug in shorter periods (Ie3s than three to six weeks) may bo necessary. A brief period as an inpatient may be

necessary.

7<> With the use of antipsychotic and antideprossant agents a

c

single daily do3e nay be used once the individualised dose for the patient has been established. With single evening doses compls of side effects are frequently reduced and sodativa properties may

aid in 3leep. Those medicines that po33ess some properties of

psycho3timulation should be used in morning and midday doses so

as to not interfere with sleep patterns. It is recognised that

small doaea of long acting drugs tend to cause less fluctuation

in plasma levels and may bs of clinical value.

8. Drug holidays may be established as part of the drug dosage scheduled for an occasional patiento There is some evidence to show that drug holidays may increase the risk of tardive dyskineaia so this concept should be used in very selective cases and the rationale for 3uch specifically addressed in tha progress notes at each clinic visit*

9. In general, the continuing use of antianxlety agents is not justified. Prolonged use may increase drug dependence and/or therapeutic paradox. The maircuia for use of antianxioty agents might well be that only anxiety which markedly interferes with human performance should be drug treated and then only with drugs that are not tolerance or dependence forming.

10, Specific concerns:

- "

.

(a) If dosage levels significantly in excess of tho maximum listed in the A M Drug Evaluation, the Physicians Desk Reference or an ASHP Formulary Servica are U3ed, the medical rationale should be documented in the patient's clinical record in accordance with the written review procedures established by the hospital staff.

(b) Thioridazine should not be given in amount exceeding 800 mg daily because of the danger of retinopathy.

(d) The Mental Hygiene Clinic at the Sioux Falls 7AK3 is not listed as a Kathadono Treatment Center. Therefore outpatient treatment of patients using opiates and opiate derivatives will not be condoned. Patient3 with this problem should be referred to an appropriate methadona clinic.

11. Generally only one antipsychotic drug should be prescribed at one time. Drug consultations may be indicated when combined antipsychotics are used. Generally this is also true of tho antidepres3ants. There are important exceptions to the suggestion of prescribing only one drug at a time, 3or*o of which are: •

(a) The combination of an antidoproasant with an antipsychotic,

(b) The prophylactic and routine U30 of antiparkinson agent3

/

with an antipsychotic should be discouraged because of

side effects (anticholinergic psychosis and possibly increasing the rislc of tardive dyskinesia). The use of antiparkinsonian drugs is usually indicated only when extraparamydal side effects appear. Often the anticholinergic can be reduced and in some cases discontinued once optimum level of functioning and appropriate titration of the psychotropic medication has occurred. This should be considered in every case.

"'•'"••

(c) Patients with a major affective disorder and patients with a psychotic disorder and a secondary depression may benefit from a combination of Lithium Carbonate and antipsychotic and antidepressant. This combination is fraught with the likelihood of complications and should be monitored closely by frequent visits in the clinic and appropriate blood levels of the agents being administered.

12. The use of psychotropic drugs on a "prn11 ba3i3 is discouraged. The need for such use often indicates that the patient has not yet been stabilized on a clinically effective dosage. Exceptions might be the "prn" usage of an antipsychotic for the treatment of flashbacks.

13. Because of the narrow therapeutic index of Lithium Carbonate care-

f u l assessment of the patient and the rationale for its use should

be well documented. Blood levels and dosage should be charted.

Lithium Carbonate should be used only after a complete history,

physical examination and laboratory assessment of the patient has

been completed. Essential components of the work-up needed before

Lithium use include:

c

(a) History of previous use of Lithium with particular attention

of evidences of Lithium sensitivity.

(b) The medical history must probe for evidence of cardiac,

renal, or thyroid disease.

(c) Appropriate laboratory tests should confirm adequate kidney

functioning and include a serum creatinine and BUM.

(d) Adequate cardiac evaluation including an EKG.

(e) Appropriate thyroid assessment with (l) a physical exam-

ination and (2) T3, TU, and TSH.

(f) Serum Ka, K, Cl levels should be done prior to initiating

therapy.

Maintenance procedures required with the use of Lithium:

(a) Guidelines for laboratory works (1) serum Lithium levels - should be determined at least two times weekly until the patient is stabilized, then weekly for a month, then monthly for a year, and after one year these levels should be determined at three to six month intervals as long as the patient is on medication.
(b) Thyroid, cardiac and renal function should be checked and documented in the patient's record at six to nine month
intervals. (c) Serum Lithium levels should not exceed 1.5 mEq/L or fall
below O.U mEq/L during maintenance therapy.

(d) Adjunctive therapeutic requirements: (l) Daily fluid intake of 2,£00 - 3,000 cc, (2) Dietary sodium chloride adjusted as indicated by laboratory findings.
lli. Laboratory surveillance when prescribing psychotropic drugs should consist of:
(a) C8C, urinalysis and a 12-panel at six to ninrs month intervals. (b) In the case of Lithium therapy, thyroid, cardiac and renal studies
should be done in addition to (a) at six to nine month' intervals. (c) When appropriate and when available, serum and cellular levels
of the medications used should be considered.
1$ „ Physicians in the MHC who prescribe Antabu^e will review with tho patient the "Consent for the Administration of Antabuse" and have the patient sign this form, which will be filed in the medical record. (Sse copy of form attached to this section of the manual)
16o Administration of Long-Acting Neuroleptlcs*
(a) The Chief of Psychiatry Service is responsible for establishing and coordinating a long-acting neuroleptic (LAM) clinic with Medical Administration Service.
(b) The physician following the patient i3 responsible for ',;ritir.g an order to schedule the patient for the LAN. He/she must state the drug, dosage and frequency of administration.
(c) The Psychiatric Physician Assistance is responsible for the clinic. He/she will administer the medication in his/her office on ward 2 "orth and make appropriate documentation in the Mental Health Clinic component of the patient's medical record. He will inform the patient's physician of any missed appointments and observations/ behavior of the patients. He will coordinate with the head nurse, 2 North, to obtain clinic coverage v;hen on leave.
(d) Medical Administration Service will provide a list of patients scheduled for the clinic and their medical records.
(e) The head nurse or charge nurse will order the long-acting neuroleptics from Pharmacy Service on a work order form. Multiple dose vials of the medication will be maintained for outpatient use. Medication will be secured with other ward medications.
(f) The Physicians Assistant, or any other person who administers the medications to .MHC patients, will completed a Mental Hygiene Clinic "Daily Record" form on each patient seen in the LAM clinic. He will enter on it the name of the patient seen, social security #, date, length of time seen, and the date the patient is to be rescheduled for the LAN clinic. These comoleted "Daily Records" will be sent to the MHC secretary on the same day the Clinic is finished so she can process the completed forma, enter "no shows" on tho computer, and re-schedule appointments per instructions.

CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that true and
correct copies of the Medical Panel Report in Cody v.
Hillard. et al.. Civ. 80-4039 were served by enclosing said
copies in envelopes, first class, postage prepaid and
affixed thereto, and depositing said envelopes in the United
States mail at Pierre, South Dakota, on this ff&\ day of
April, 1988, addressed to the following:
Mr. Douglas Cummings, Jr. Attorney at Law 623 West 11th Street Sioux Falls, SD 57104
Mr. William D. Froke East River Legal Services 335 North Main Ave., #300 Sioux Falls, SD 57102
Mr. Billy Jones Dakota Plains Legal Services P. 0. Box 727 Mission, SD 57555
Ms. Elizabeth Alexander ACLU—National Prison Project 1616 P Street NW Washington, D. C. 20036
Mark Smith Assistant Attorney General

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Filed October 31, 1988 William F. Clayton
Clerk VJR

WILLIAM R. CODY, et al.,

)

) Plaintiffs, )

)

V.

)

)

CAROLE HILLARD, et al.,

)

) Defendants. )

CIV. 80-4039

ORDER

The Court has carefully reviewed the reports submitted

pursuant to the remedial order entered on November 4, 1987, and

has determined that the reports are appropriate for incorporation

into the further remedial order of the Court. The Court

accordingly accepts the defendants' plan for legal access

compliance dated January 6, 1988; the panel report on physical

plant compliance dated January 13, 1988; and the panel report on

medical compliance dated April 19, 1988.

IT IS THEREFORE ORDERED that the defendants' plan for legal

access compliance dated January 6, 1988; the panel report on

physical plant compliance dated January 13, 1988; and the panel

report on medical compliance dated April 19, 1988, are accepted

by the Court, and the same are issued by the Court as further

remedial orders incorporated into the Court's previous order of

November 4, 1987.

ATTEST: WILLIAM F. CLAYTON, Clerk

BY:

VICKY J. REINHARD

Deputy

BY THE COURT
DONALD J. PORTER HONORABLE DONALD J. PORTER chief U.S. District Judge

Dated: J u n e 2 7 f ] 9 8 S

 </s> United States Court of Appeals
FOR THE EIGHTH CIRCUIT

No. 97-2020

William R. Cody, individually and on behalf of all other persons similarly situated,

Plaintiff- Appellant,

Roger Flittie, individually and on

behalf of all other persons similarly

*

situated,

*

*

Appellants,

*

* Appeal from the United States

v.

* District Court for the * District of South Dakota.

Carole Hillard, President of the Board *

of Charities and Corrections; Frank

*

Brost, Vice President; Ted Spaulding, *

Member; D. A. Gehlhoff, Member; Lyle *

Swenson, Member; James Smith,

*

Executive Secretary; Herman Solem, *

Warden of the South Dakota State

Penitentiary, individually and in their

official capacities,

*

*

Defendants - Appellees. *

Submitted: December 12, 1997

Filed: March 27, 1998

Cody v. Hillard

• II

all • •

mm B a rm™'

PC-SD-001-017

Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
William R. Cody and Roger Flittie, individually and as class representatives, appeal from the district court's order dissolving the consent decree in this South Dakota prison reform litigation. Cody and Flittie argue that the district court did not consider the relevant criteria in deciding whether to dissolve the decree and that the court's findingthat the defendants had complied with the decree substantially and in good faith was clear error. Cody and Flittie also argue that the district court should have held an evidentiary hearing before resolving the factual issues of defendants' past and present compliance with the decree and their future compliance with the Constitution. We remand for more complete findings and articulation of the basis for the district court's exercise of its discretion.
This case was filed in 1982, challenging conditions and practices of confinement at the South Dakota State Prison and Women's Correctional Facility. On May 31, 1984, after trial, the district court held that conditions at the South Dakota State Penitentiary violated the Eighth and Fourteenth Amendments. Cody v. Hillard. 599 F. Supp. 1025,1062 (D.S.D. 1984). The court's final order was entered on July 8, 1985, covering the subjects of overcrowding, double-celling, and inadequate quality control and staffing for health services. We reversed in part and affirmed in part. Cody v. Hillard. 830 F.2d 912 (8th Cir. 1987) (en bane), cert, denied. 485 U.S. 906 (1988). On July 8,1985, the court entered a detailed consent decree covering the discrete subjects of environmental conditions, medical and dental care, psychiatric and psychological care, and access to courts. The consent decree is the subject of the present motion. The consent decree did not state the time of its duration, but it did provide that the
-2-

defendants would provide formal progress reports concerning their compliance with the decree in June, September, and December 1985, and March 1986.
On two occasions, in July 1987 and May 1992, the district court held hearings to determine whether the prison was in compliance with the consent decree. After the July 1987 hearing the district court filed an order "recognizing the earnest steps taken by the Defendants in addressing the issues raised in this action," but requiring the parties to appoint a health and safety panel to agree on specific steps to remedy deficiencies in compliance with the decree. The court also extended the monitoring requirement of the consent decree through 1988. After the 1992 hearing, the court entered an order requiring the defendants to take various actions the court held to be necessary under the consent decree and supplemental orders. For instance, the court ordered the defendants to balance the ventilation system in the prison, to cease storing non-polar solvents in ungrounded containers in the prison shop area, and to install a vacuum-based cleaning system in the carpentry shop and eventually install a central ventilation system in that shop. In particular, the court noted that the prison was not in compliance with fire safety and ventilation requirements of the consent decree and the court's supplemental orders in the prison furniture refinishing shop. The court ordered immediate compliance with fire safety requirements in that shop and compliance with dust removal requirements "forthwith, but in any event by December 31, 1992." The court was quite critical of the defendants' compliance with the fire safety requirements, stating that "fire safety hazards have continued for years after they were ordered to be remedied and defendants still have no plans to abate them."
On April 16,1996, the defendants filed a motion under Fed. R. Civ. P. 60(b) to dissolve the consent decree and supplemental orders. The defendants filed a memorandum in support of their motion, contending that they had substantially complied with the consent decree and attaching exhibits (such as reports by the plaintiffs' experts) which they argued established that compliance. The plaintiffs opposed vacatur of the consent decree, arguing that the district court had to hold a
-3-

hearing to determine defendants' past and present compliance with the decree and the outlook for defendants' future compliance with the Constitution.
The district court refused to order a hearing, but ordered the plaintiffs to file supplemental materials setting forth the areas of defendants' non-compliance with the consent decree. The plaintiffs filed the declaration of their expert Robert Powitz, Ph.D., who stated that he had inspected the prison in October 1996 and that he had concluded that "there are a number of conditions that pose serious health or safety risks." Powitz detailed those conditions, but except for one paragraph in a four-page report, he did not specify whether the conditions he pointed out were covered by the consent decree. The plaintiffs filed a supplemental brief linking the conditions noted by Powitz to provisions of the consent decree and supplemental orders.
The district court then entered an order dissolving the consent decree. The findings of fact and conclusions of law consisted entirely of the following two paragraphs:
The Court having considered the motion herein filed does determine that the consent decree has served its purposes and is no longer needed in order to serve the public interest.
Throughout the period of the consent decree, lasting as it has for over ten years, the defendants have conscientiously and in good faith complied substantially with its terms. Notwithstanding defendants' compliance, plaintiff invites the Court to continue its jurisdiction. However, in the absence of ongoing substantial violations, the Court declines the invitation. Board of Educ. of Oklahoma City Public Schools v. Powell. 498 U.S. 237, 111 S. Ct. 630, 1121. Ed.2d 715 (1991). The Court sees no need for a further evidentiary hearing.
-4-

The decision to terminate jurisdiction over a consent decree rests in the district court's discretion. See McDonald v Carnahan. 109 F.3d 1319, 1321 (8th Cir. 1997). In exercising that discretion, the district court should consider the following factors:
(1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement.
Id; see also Board of Educ. v. Powell. 498 U.S. 237,247 (1991) (if district court finds that defendant operating in compliance with Constitution and unlikely to return to "its former ways," purposes of injunction have been achieved).
The plaintiffs contend that the district court clearly erred in ignoring thenevidence that there were past and present violations of the consent decree. The defendants contend that the district court did not ignore that evidence, but simply determined that the alleged past violations were insubstantial and that many of the conditions currently complained of by Powitz are not covered by the consent decree.1
The abbreviated order of the district court fails to demonstrate compliance with McDonald v. Carnahan. Further, we cannot determine the basis for the district court's decision from this brief order. The record indicates that there have been failures in the
defendants argue that the court should not consider Powitz's declaration because it does not comply with the formal requirements of 28 U.S.C. § 1746 (1994). Defendants did not raise this question at the district court level, where the defect could have easily been corrected. Even more crucial, in opposing the plaintiffs' request for an evidentiary hearing, the defendants relied on similar declarations of Powitz, which they referred to as "a vast evidentiary foundation" supporting the district court's ruling. We need hardly say that defendants' objection is waived.
-5-

past to comply with the decree and supplemental orders, and that there are still at least some violations of the decree. The district judge's order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants' future compliance with the Constitution. Sfi£ McDonald. 109 F.3d at 1322-23. Moreover, the ultimate question of whether the defendants are likely to comply with the Constitution in the absence of court supervision is a question of fact, see Powell. 498 U.S. at 247, for which the district court made no finding.
We may not make these findings of fact or exercise discretion in the district court's stead. See Duffie v. Deere & Co.r 111 F.3d 70, 74 (8th Cir. 1997) (function of appellate court is to review findings of fact, not to make them); Bannister v. Sorenson. 103 F.3d 632, 636-37 (8th Cir. 1996). At the same time, the district court's findings and conclusions are simply too cryptic for us to ascertain whether the court applied all the factors listed in McDonald, and if it did, whether it did so without clear error or abuse of discretion.
Federal Rule of Civil Procedure 52(a) generally requires findings of fact and conclusions of law for rulings on injunctions, but not on motions. However, we need not decide what Rule 52 requires on this motion to dissolve an injunction, since we may remand even a ruling on a motion for findings and conclusions if our review would be hindered without them. DeShane v. Deere & Co.. 726 F.2d 443, 446 (8th Cir. 1984); see also Romer v. Green Point Sav. Bank. 27 F.3d 12, 16-17 (2d Cir. 1994) (remanding for findings on temporary restraining order, even though Rule 52 does not require findings for t.r.o.; without further explanation of the district court's ruling, court of appeals would have difficulty understanding the basis of the ruling and determining whether district court applied law correctly). We therefore remand to the district court
-6-

to apply the factors we recited in McDonald and to enter findings of fact and conclusions of law that will enable us to review its decision.
The plaintiffs further argue that they were entitled to an evidentiary hearing. They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision over a decree (as opposed to modifying a decree, see Heath v. DeCourcy. 992 F.2d 630, 634 (6th Cir. 1993)). At any rate, the necessity of a hearing depends on whether there are disputed factual issues. In this case there appear to be factual disputes crucial to resolution of the motion. It is, therefore, necessary that the court either conduct such a hearing or articulate the rationale that would make such a hearing superfluous.
We remand for further proceedings in accordance with this opinion. We retain jurisdiction.
A true copy. Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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 </s> South Dakota District Court Version 1.1 LIVE DATABASE - Docket R... https://ecf.sdd.uscourts.gov/cgi-bin/DktRpt.pl?901495218130046-L_92...

U.S. District Court District of South Dakota (Southern Division) CIVIL DOCKET FOR CASE #: 4:80-cv-04039-LLP

CLOSED

Cody v. Charities&Corr Dept, et al Assigned to: U. S. District Judge Lawrence L. Piersol Demand: $230,000 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 03/07/1980 Jury Demand: None Nature of Suit: 540 Mandamus & Other Jurisdiction: Federal Question

Plaintiff
William R. Cody Individually and on behalf of all others similarly situated

represented by Donna Lee National Prison Project of ACLUF, Inc. 1875 Connecticut Ave. NW Washington, DC 20009 (202)234-4830 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Douglas P. Cummings, Jr. East River Legal Services 335 N. Main Ave. Suite 300 Sioux Falls, SD 57104 336-9230 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Alexander National Prison Project of ACLUF, Inc. 1875 Connecticut Ave. NW Washington, DC 20009 (202)234-4830 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas W. Clayton 300 N. Dakota Ave. Suite 310 Sioux Falls, SD 57104-6026 331-2565 Fax: 331-5828 Email: twc.clo@midconetwork.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.

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Defendant Charities & Corrections, Secretary of Carole Hillard, President of the Board, Individually and in their official capacities
Defendant Frank Brost Vice President, Indivdually and in their official capacities

represented by Frank E. Geaghan Attorney General's Office 1302 E. Highway 14 Suite 1 Pierre, SD 57501 773-3215 Fax: 773-4106 TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore Woods, Fuller, Shultz & Smith, PC PO Box 5027 Sioux Falls, SD 57117-5027 336-3890 Fax: 339-3357 Email: jmoore@wfss.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Smith Hughes County State's Attorney's Office 104 E. Capitol Pierre, SD 57501 773-7462 Fax: 773-7460 TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer Attorney General's Office 500 E. Capitol Pierre, SD 57501-5070 773-3215 Fax: 773-4106 TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore

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Defendant Ted Spaulding Member, Individually and in their offical capacities
Defendant D. A. Gehlhoff Member, Individually and in their offical capacities

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore (See above for address) LEAD ATTORNEY

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Defendant Lyle Swenson Member, Individually and in their official capacities
Defendant James Smith Executive Secretary, Individually and in their official capacities

ATTORNEY TO BE NOTICED
Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Herman Solem Warden of the South Dakota State Penitentiary, Individually and in their official capacities
Interested Party Clerk, USCOA TERMINATED: 12/09/2002

Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frank E. Geaghan (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Ellis Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Smith (See above for address) TERMINATED: 01/15/1993 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert E. Mayer (See above for address) TERMINATED: 02/12/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Clerk, USCOA 500 Federal Courts Building 316 N. Robert Street St. Paul, MN 55101 (651) 848-1303 PRO SE

Date Filed 03/07/1980

#

Docket Text

5 COMPLAINT: 12 summons(es) issued delivered to U.S. Marshal, Sioux Falls (KMH) (Entered: 05/16/1991)

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04/09/1980 03/09/1981 06/05/1981 10/02/1981 12/10/1982 06/07/1983 12/16/1983 10/01/1989 10/02/1989 11/08/1989 11/20/1989 05/16/1991 08/09/1991
08/09/1991
01/10/1992
01/10/1992 01/13/1992 01/13/1992 01/14/1992 04/02/1992

7 ANSWER by defendants to complaint [5-1]; jury demand (KMH) (Entered: 05/16/1991)
15 ORDER FOR JOINDER Filed on 3/9/81 (SKM) Modified on 07/02/2002 (Entered: 06/28/2002)
41 ORDER Filed on 6/5/81 (SKM) Modified on 07/02/2002 (Entered: 06/27/2002)
47 AMENDED COMPLAINT [5-1] by plaintiff (KMH) (Entered: 05/16/1991)
62 ANSWER by defendants to amended complaint [47-1] (KMH) (Entered: 05/16/1991)
Court Trial began (admin) (Entered: 03/05/1998)
Court trial ended (admin) (Entered: 03/05/1998)
235 JUDGMENT Filed on 7/18/85 (SKM) Modified on 05/02/2002 (Entered: 04/22/2002)
422 MOTION by plaintiff for order of expungement (KMH) (Entered: 05/16/1991)
428 RESPONSE by defendants to motion for order of expungement [422-1] (KMH) (Entered: 05/16/1991)
429 REPLY by plaintiff to response to motion for order of expungement [422-1] (KMH) (Entered: 05/16/1991)
4 DOCKET SHEET Case Filed on 3/7/80 (SLL) (Entered: 04/02/2002)
437 MEMORANDUM OPINION by Donald J. Porter (cc: all counsel) Enter Correct Copy in 1991 S.D. Order Book, page 135 (FE) Modified on 08/12/1991 (Entered: 08/12/1991)
438 ORDER by Donald J. Porter denying motion for order of expungement [422-1] (cc: all counsel) Enter Correct Copy in 1991 S.D. Order Book, page 136 (FE) Modified on 08/12/1991 (Entered: 08/12/1991)
439 LETTER from Elizabeth Alexander advising that the depositions of Marlene Boysen, Dr. Allan Bliss, Dr. James Oakland, and Herman Solem may be destroyed (CLM) Modified on 01/10/1992 (Entered: 01/10/1992)
440 LETTER from plaintiff re: destruction. Plaintiffs exhibits destroyed. (CLM) Modified on 01/15/1992 (Entered: 01/10/1992)
441 RECEIPT for returning depositions taken on behalf of the defendant (CLM) Modified on 01/24/1992 (Entered: 01/13/1992)
442 RETURN OF EXHIBITS RECEIPT from defendant (CLM) Modified on 01/24/1992 (Entered: 01/24/1992)
443 RECEIPT from plaintiff for returning depositions taken on behalf of the plaintiff (CLM) Modified on 01/15/1992 (Entered: 01/15/1992)
444 MOTION by plaintiffs for enforcement and further relief (CLM) Modified on 04/16/1992 (Entered: 04/02/1992)

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04/02/1992
04/08/1992 04/10/1992 04/16/1992 04/16/1992 04/16/1992 04/20/1992
05/01/1992 05/04/1992
05/12/1992 05/12/1992 05/18/1992 05/29/1992 05/29/1992
06/18/1992 07/10/1992
07/27/1992 07/28/1992

445 MEMORANDUM BRIEF by plaintiffs in support of motion for enforcement and further relief [444-1] (exhibits in expando) (CLM) Modified on 04/16/1992 (Entered: 04/02/1992)
446 BRIEFING SCHEDULE re: plaintiffs' motion for enforcement and further relief [444-1] (CLM) (Entered: 04/09/1992)
447 LETTER to counsel in regard to briefing schedule on plaintiffs' motion for enforcement and further relief. (CLM) (Entered: 04/10/1992)
448 REQUEST for admissions by plaintiffs (CLM) (Entered: 04/16/1992)
449 INTERROGATORIES by plaintiffs to defendants (CLM) (Entered: 04/16/1992)
449 REQUEST FOR PRODUCTION OF DOCUMENTS by plaintiffs to defendants (CLM) Modified on 04/16/1992 (Entered: 04/16/1992)
450 ORDER by Donald J. Porter that defendant shall file its response brief to plaintiff's motion for enforcement by 4/30/92 and that plaintiffs file their reply brief by 5/18/92 (cc: all counsel) (KMH) (Entered: 04/20/1992)
451 RESPONSE by defendants to plaintiffs' motion for enforcement and further relief [444-1] (CLM) (Entered: 05/01/1992)
452 SCHEDULING ORDER by Donald J. Porter; in court hearing on plaintiff's motion for enforcement and further relief set for 9:30 a.m. on 5/28/92 in Sioux Falls, SD; - (cc: all counsel) (FE) (Entered: 05/04/1992)
453 RESPONSE by defendants to plaintiffs' request for admissions [448-1] (KMH) (Entered: 05/12/1992)
454 ANSWERS by defendant to plaintiffs' interrogatory [449-1], and to plaintiff's request for production of documents [449-1] (KMH) (Entered: 05/12/1992)
455 REPLY by plaintiffs to defendants' response to plaintiffs' motion for enforcement and further relief [444-1] (KMH) (Entered: 05/18/1992)
456 EXHIBIT LIST (KMH) (Entered: 06/01/1992)
457 MINUTES RE: Enter HEARING on Plaintiffs' Motion for Enforcement and Further Relief before the Hon. Donald J. Porter, Senior Judge, presiding. Ruling reserved. (KMH) (Entered: 06/01/1992)
458 TRANSCRIPT of Hearing on Motion for Enforcement (in expando) (CLM) (Entered: 06/18/1992)
459 ORDER by Donald J. Porter directing counsel to file simultaneous briefs on or before 5:00 p.m. Monday, July 27, 1992 (cc: all counsel) (JMM) (Entered: 07/13/1992)
460 HEARING BRIEF by plaintiff in support of their motion for enforcement and further relief[444-1] (CLM) (Entered: 07/27/1992)
461 BRIEF by defendants regarding plaintiffs' motion for enforcement and further relief [444-1] (CLM) (Entered: 07/28/1992)

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11/25/1992 12/15/1992 12/15/1992 12/16/1992 01/15/1993 01/15/1993 01/15/1993 01/27/1993
02/24/1993 02/24/1993 02/24/1993 06/21/1993 09/10/1993
09/28/1993 09/30/1993 11/08/1994 11/08/1994

462 ORDER by Donald J. Porter granting plaintiff's motion for enforcement and further relief [444-1] (cc: all counsel) (CLM) Modified on 08/20/2001 (Entered: 11/25/1992)
463 MOTION for extension of time to comply with Courts Order filed 11/25/92 by plaintiff (FE) (Entered: 12/15/1992)
464 MEMORANDUM by plaintiff in support of motion for extension of time to comply with Courts Order filed 11/25/92 [463-1] (FE) (Entered: 12/15/1992)
465 ORDER by Donald J. Porter granting plaintiff's motion for extension of time till 2/15/93 to comply with Courts Order filed 11/25/92 [463-1] (cc: all counsel) (FE) (Entered: 12/16/1992)
466 REPORT on law library conference by defendant (KMH) (Entered: 01/19/1993)
467 SUBSTITUTION OF ATTORNEY John E. Haak for Mark Smith for defendants (KMH) (Entered: 01/19/1993)
468 CERTIFICATE OF SERVICE by defendants (KMH) (Entered: 01/19/1993)
469 ORDER by Donald J. Porter that the parties shall file with the Clerk, on or before 3/1/93 a written system for replacing missing volumes at the law library in the South Dakota State Penitentiary at Sioux Falls, South Dakota (cc: all counsel) (CLM) (Entered: 01/27/1993)
470 Letter REQUEST (motion) for extension of time for filing the report of the physical plant panel by plaintiff (Fax copy received 2/16/93) (CLM) Modified on 02/24/1993 (Entered: 02/24/1993)
471 MOTION for Order regarding West Hall Show, Physical Plant Panel Report and Penitentiary Inspection by defendants (CLM) Modified on 02/24/1993 (Entered: 02/24/1993)
472 RESPONSE by defendants on procedure for replacing missing volumes pursuant to Court's Order filed 1/27/93 [469-1] (CLM) Modified on 02/24/1993 (Entered: 02/24/1993)
473 LETTER from defendants in regard to status of case (CLM) (Entered: 06/21/1993)
474 ORDER by Donald J. Porter Case reassigned to the Hon. Richard H. Battey, U.S. District Judge, District of South Dakota, Western Division. (cc: all counsel, Judge Battey) Mailing original file and docket sheet to clerk's office, Rapid City. (FE) (Entered: 09/10/1993)
475 STIPULATION extending deadline for installation to 2/1/94 (FE) (Entered: 09/28/1993)
476 ORDER by Richard H. Battey granting stipulation [475-1] (cc: all counsel) (FE) (Entered: 10/01/1993)
477 ATTORNEY APPEARANCE of Timothy J. Wilka for plaintiff William R. Cody (FE) (Entered: 11/09/1994)
478 MOTION to reopen the case , for hearing on the matter , and for attorney fees by plaintiff William R. Cody (FE) (Entered: 11/09/1994)

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11/08/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994 11/09/1994
11/16/1994
11/21/1994 11/21/1994 12/09/1994

479 MEMORANDUM by plaintiff William R. Cody in support of motion to reopen the case [478-1] (FE) (Entered: 11/09/1994)
MAILING entire file to Clerk's Office, Rapid City, at the request of the Hon. Richard H. Battey, Chief Judge (FE) (Entered: 11/09/1994)
480 AFFIDAVIT of William R. Cody (FE) (Entered: 11/10/1994)
481 SUBPOENA for deposition for Owen Spurrell returned (FE) (Entered: 11/10/1994)
482 SUBPOENA for deposition for Robert M. Schuknecht returned (FE) (Entered: 11/10/1994)
483 SUBPOENA for deposition for Captain James Severson returned(FE) Modified on 11/10/1994 (Entered: 11/10/1994)
484 SUBPOENA for deposition for Corporal Craig Baumberger returned (FE) (Entered: 11/10/1994)
485 SUBPOENA for deposition for Corporal Thorson returned (FE) (Entered: 11/10/1994)
486 SUBPOENA for deposition for Officer Hosek returned (FE) (Entered: 11/10/1994)
487 SUBPOENA for deposition for Officer Waylen returned (FE) (Entered: 11/10/1994)
488 SUBPOENA for deposition for Sargeant Baker returned (FE) (Entered: 11/10/1994)
489 CERTIFICATE OF SERVICE by plaintiff William R. Cody (FE) (Entered: 11/10/1994)
490 MOTION for temporary restraining order , for hearing on application for restraining order , for review by court of evidence re: disciplinary proceedings , for costs by plff. and attorney fees by plaintiff William R. Cody (FE) (Entered: 11/10/1994)
491 ORDER by Richard H. Battey denying motion to reopen the case [478-1], denying motion for hearing on the matter [478-2], denying motion for attorney fees [478-3] denying motion for temporary restraining order [490-1], denying motion for hearing on application for restraining order [490-2], denying motion for review by court of evidence re: disciplinary proceedings [490-3], denying motion for costs by plff. and attorney fees [490-4] (cc:all counsel) 1994 SDOB page 472 (FE) (Entered: 11/16/1994)
492 MOTION for reconsideration of Order #491 by plaintiff William R. Cody (FE) (Entered: 11/21/1994)
493 CERTIFICATE OF SERVICE by plaintiff (FE) (Entered: 11/21/1994)
494 LETTER RESPONSE by defendant to motion for reconsideration of Order #491 [492-1] (FE) (Entered: 12/09/1994)

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12/21/1994 12/23/1994 12/27/1994 01/06/1995 01/06/1995 01/30/1995 02/28/1995 04/15/1996 04/16/1996 04/17/1996 04/17/1996 04/17/1996 04/29/1996 05/02/1996 05/13/1996 06/14/1996 06/17/1996
09/19/1996
09/27/1996

495 TRANSCRIPT of telephonic status conference held on 12/12/94 (in expando) (FE) (Entered: 12/22/1994)
496 AMENDED MOTION to reopen the case by plaintiff William R. Cody (FE) Modified on 12/27/1994 (Entered: 12/27/1994)
497 CERTIFICATE OF SERVICE by William R. Cody (FE) (Entered: 12/27/1994)
498 MOTION to extend time to file response by defendant (FE) (Entered: 01/06/1995)
499 ORDER by Richard H. Battey granting motion to extend time to file response [498-1] (cc:all counsel) (FE) (Entered: 01/06/1995)
500 RESPONSE by defendant to motion to reopen the case [496-1] (FE) (Entered: 02/01/1995)
501 ORDER by Richard H. Battey denying motion to reopen the case [496-1] (cc:all counsel) (FE) (Entered: 02/28/1995)
SEE VOLUME 9 (FE) (Entered: 04/19/1996)
VOLUME 9 (FE) (Entered: 04/19/1996)
502 MOTION for order dissolving Consent Decree by defendants (FE) (Entered: 04/19/1996)
503 MEMORANDUM by defendant in support of motion for order dissolving Consent Decree [502-1] (FE) (Entered: 04/19/1996)
504 CERTIFICATE OF SERVICE by defendant (FE) (Entered: 04/19/1996)
505 CERTIFICATE OF SERVICE (copy) of interrogatories etc. by plaintiff William R. Cody (FE) (Entered: 04/29/1996)
506 RESPONSE by plaintiff William R. Cody to motion for order dissolving Consent Decree [502-1] (FE) (Entered: 05/06/1996)
507 REPLY by defendant to response to motion for order dissolving Consent Decree [502-1] (FE) (Entered: 05/13/1996)
508 LETTER from E. Alexander, ACLU, requesting telephone participation in requested status conference. (FE) (Entered: 06/14/1996)
509 ORDER by Richard H. Battey denying letter request for hearing; that plaintiff file supplemental brief setting forth areas of non-compliance [508-1] (cc:all counsel) (FE) (Entered: 06/17/1996)
510 ORDER by Richard H. Battey that plaintiff shall file his supplemental briefing by 10/7/96 and defendants shall have ten days in which to respond to the supplemental briefing; further ordered that if plaintiff fails to file his supplemental briefing by 10/7/906, defendants' motion to dissolve the consent decree shall be granted (cc:all counsel) (CLM) (Entered: 09/20/1996)
511 MOTION for enlargement of time in which to file a supplemental brief by plaintiff William R. Cody (JLH) (Entered: 09/27/1996)

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09/27/1996 10/04/1996 10/15/1996
02/14/1997 02/14/1997
03/05/1997 03/13/1997
03/13/1997 04/09/1997 04/09/1997 04/09/1997 04/29/1997 04/01/1998 04/30/1998 04/30/1998 05/07/1998 05/07/1998 06/01/1998

512 ORDER by Richard H. Battey granting motion for enlargement of time in which to file a supplemental brief [511-1] (cc:all counsel) (JLH) (Entered: 09/27/1996)
513 MOTION to extend time to respond to Court Order to Submit Brief by plaintiff William R. Cody (FE) (Entered: 10/08/1996)
514 ORDER by Richard H. Battey finding the motion to extend time to respond to Court Order to Submit Brief [513-1] moot. (cc:all counsel) (FE) (Entered: 10/15/1996)
515 MOTION (letter) for additional extension by plaintiff William R. Cody (FE) (Entered: 02/18/1997)
516 ORDER by Richard H. Battey denying motion for additional extension [515-1]; plaintiff shall file supplemental brief by 3/5/97 unless Court is notified of settlement by both parties (cc:all counsel) (FE) (Entered: 02/18/1997)
517 SUPPLEMENTAL BRIEF as per Order #516 by plaintiff William R. Cody ion of Robert Powitz & Armond Start attached) (FE) (Entered: 03/05/1997)
518 ORDER by Richard H. Battey granting motion for order dissolving Consent Decree [502-1] and that Court shall terminate supervision of consent decree. (cc:all counsel) (FE) (Entered: 03/13/1997)
519 MOTION to extend time to respond to brief by defendant (FE) (Entered: 03/14/1997)
520 NOTICE OF APPEAL by plaintiff William R. Cody from [518-1] , Appeal fee paid - cc: all counsel, Ct Rptr (FE) (Entered: 04/09/1997)
521 CERTIFICATE OF SERVICE by plaintiff (FE) (Entered: 04/09/1997)
TRANSMITTING Notice of Appeal to 8th Circuit COA (FE) (Entered: 04/09/1997)
NOTIFICATION by Circuit Court of Appellate Docket Number 97-2020SDRC (FE) (Entered: 04/29/1997)
522 MANDATE from 8th Circuit Court of Appeals remanding the matter back to District Court [Appeal [520-1] (cc: all counsel) (FE) (Entered: 04/02/1998)
523 MINUTES RE: telephonic status conference (FE) (Entered: 04/30/1998)
524 ORDER by Richard H. Battey that defendants submit proposed findings by 6/1/98, plaintiffs by 7/1/98 (FE) (Entered: 04/30/1998)
525 ORDER by Richard H. Battey Case reassigned to Lawrence L. Piersol (cc:all counsel) (FE) (Entered: 05/07/1998)
File to be DELIVERED by US Marshal's to Sioux Falls Clerk's Office on 5/8/98 (FE) (Entered: 05/07/1998)
526 MOTION for enlargement of time to submit proposed findings of fact and conclusions of law by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (SLL) (Entered: 06/02/1998)

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06/10/1998 06/22/1998 07/01/1998 07/20/1998 07/21/1998 01/13/1999 01/29/1999
02/09/1999
02/09/1999 02/09/1999 02/12/1999
02/22/1999 02/23/1999
02/23/1999

527 ORDER by Lawrence L. Piersol granting motion for enlargement of time to submit proposed findings of fact and conclusions of law [526-1] (cc:all counsel) (SLL) (Entered: 06/11/1998)
528 PROPOSED FINDINGS OF FACT and conclusions of law by defendant Charities & Corr Sec (DLS) (Entered: 06/23/1998)
SEE VOLUME 10 (FE) (Entered: 07/21/1998)
VOLUME 10 (FE) (Entered: 07/21/1998)
529 PROPOSED FINDINGS OF FACT and conclusions of law by plaintiff William R. Cody (in expando) (FE) Modified on 07/21/1998 (Entered: 07/21/1998)
530 ORDER Scheduling Evidentiary Hearing by Lawrence L. Piersol ; evidentiary hearing set for 9:00 3/30/99 (cc:all counsel) (SKM) (Entered: 01/13/1999)
531 NOTICE OF INTENT TO PROCEED UNDER PROVISIONS OF PRISON LITIGATION REFORM ACT by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (SLL) (Entered: 02/02/1999)
532 ORDER REGARDING EVIDENTIARY HEARING by Lawrence L. Piersol; parties to present evidence directed to time frame including date of Judge Battey's 3/13/97 order dissolving Consent Decree; parties to file responses to isues in this order on or before 2/22/99 (cc:all counsel) (SLL) (Entered: 02/10/1999)
533 MOTION to strike defendants' notice of intent to proceed under the prison litigation reform act by plaintiff William R. Cody (SLL) (Entered: 02/10/1999)
534 MEMORANDUM by plaintiff William R. Cody in support of motion to strike defendants' notice of intent to proceed under the prison litigation reform act [533-1] (SLL) (Entered: 02/10/1999)
535 ATTORNEY APPEARANCE of James E. Moore for defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem; attorney James E. Moore added (SKM) (Entered: 02/12/1999)
536 ATTORNEY APPEARANCE of Thomas W. Clayton for plaintiff William R. Cody; attorney Thomas W. Clayton added (DLS) (Entered: 02/23/1999)
537 RESPONSE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem to order regarding evidentiary hearing [532-1] (SKM) (Entered: 02/24/1999)
537 RESPONSE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem to motion to strike defendants' notice of intent to proceed under the prison litigation reform act [533-1] (SKM) (Entered: 02/24/1999)

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02/24/1999
03/17/1999 03/17/1999 03/24/1999 03/24/1999
04/12/1999 05/14/1999 05/20/1999 05/26/1999 06/03/1999
06/09/1999 06/09/1999 06/10/1999 06/10/1999

538 ORDER by Lawrence L. Piersol directing parties to file supplemental breifs addressing issues raised by Court's order issued 2/9/99 or by motion to strike defendant's notice of intent to proceed under the Prison Litgation Reform Act (doc 533) (cc:all counsel) (DLS) (Entered: 02/26/1999)
539 MOTION for preliminary approval of proposed settlement agreement , for approval of notice to Class by plaintiff William R. Cody (FE) (Entered: 03/18/1999)
540 MEMORANDUM/Brief by plaintiff William R. Cody in support of motion for preliminary approval of proposed settlement agreement [539-1], of motion for approval of notice to Class [539-2] (SKM) (Entered: 03/24/1999)
541 ORDER by Lawrence L. Piersol; evidentiary hearing cancelled on 3/24/99 ; hearing continued until further order of the Court (cc:all counsel) (SKM) (Entered: 03/24/1999)
542 REQUEST for Permission to Exceed the Scope of the Eighth Circuit's Remand Order by Lawrence L. Piersol (cc: 3cc to Clerk of COA, Hon. John R Gibson (1cc), Hon. Frank J. Magill (1cc), Hon. Diana E. Murphy (1cc)) (SKM) Modified on 03/24/1999 (Entered: 03/24/1999)
543 ORDER from 8th Circuit COA remanding case to District Court per communication dated 3/24/99 (cc: all counsel) (SLL) Modified on 04/13/1999 (Entered: 04/13/1999)
544 MANDATE from 8th Circuit Court of Appeals remanding case to District Court per communication filed 3/24/99 (cc: all counsel) (SLL) (Entered: 05/18/1999)
545 ORDER by Lawrence L. Piersol ; status hearing set for 9:00 5/26/99 ; counsel may appear by telephone if arrangements are made with the Court prior to the date of hearing (cc:all counsel) (FE) (Entered: 05/26/1999)
546 MINUTES RE: Fairness Hearing via telephone before the Hon. Lawrence L. Piersol, US Chief Judge Total In Court Time 25 minutes (FE) (Entered: 05/26/1999)
547 ORDER by Lawrence L. Piersol granting motion for preliminary approval of proposed settlement agreement [539-1], granting motion for approval of notice to Class [539-2]; fairness hearing set for 9/27/99 9:00 (SEE EXHIBITS ATTACHED TO ORDER) (COPIES OF ALL OBJECTIONS FILED WILL BE SENT TO COUNSEL FOR ALL PARTIES AND JUDGE PIERSOL) (cc:all counsel) (SKM) Modified on 06/16/1999 (Entered: 06/04/1999)
548 OBJECTIONS to proposed settlement by Jody L. Shreve on behalf of plaintiffs (copy sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
549 OBJECTIONS to proposed settlement by John D. Hatch III on behalf of plaintiffs (copy sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
550 OBJECTIONS to proposed settlement by William B. Hart on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
551 OBJECTIONS to proposed settlement by Daniel C. Cady on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)

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06/10/1999 06/15/1999 06/15/1999 06/15/1999 06/15/1999 06/16/1999 06/16/1999 06/17/1999 06/17/1999 06/17/1999 06/17/1999 06/22/1999 06/22/1999 06/23/1999 06/29/1999 07/01/1999 07/06/1999
07/07/1999 07/14/1999

552 OBJECTIONS to proposed settlement by Shawn Schuster on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
553 OBJECTIONS to proposed settlement by Kendall M. Robinson on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
554 OBJECTIONS to proposed settlement by Gary Thares on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
555 OBJECTIONS to proposed settlement by Larry A. Eaton on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
556 OBJECTIONS to proposed settlement by Daniel C. Cady on behalf of plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
557 OBJECTIONS to proposed settlement by David Timperley on behalf of plaintiffs (copies sent to all counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
558 OBJECTIONS to proposed agreement by Harlan Kjergaard on behalf of plaintiffs (Copies sent to counsel and Judge Piersol) (FE) (Entered: 06/16/1999)
559 OBJECTIONS to proposed settlement by Charles Russell Rhines (JMM) (Entered: 06/18/1999)
560 OBJECTIONS to proposed settlement by Chad Battern on behalf of the plaintiffs (Copies sent to counsel and Judge Piersol) (FE) (Entered: 06/18/1999)
561 OBJECTIONS to proposed settlement by Eric C. Blair on behalf of the plaintiffs (Copies sent to counsel and Judge Piersol) (FE) (Entered: 06/18/1999)
562 OBJECTIONS to proposed settlement by Buck Scouts Enemy on behalf of the plaintiffs (Copies sent to counsel and Judge Piersol) (FE) (Entered: 06/18/1999)
563 OBJECTIONS to proposed settlement by LaMonte Johnson on behalf of the plaintiffs (Copies sent to counsel and Judge Piersol) (FE) (Entered: 06/22/1999)
564 OBJECTIONS to proposed settlement by Ken Allison on behalf of the plaintiffs (copies sent to counsel and Judge Piersol) (FE) (Entered: 06/23/1999)
565 OBJECTIONS to proposed agreement by Jerry Bender on behalf of plaintiffs (copy sent to Counsel and Judge Piersol) (FE) (Entered: 06/23/1999)
566 OBJECTIONS to proposed agreement by Timothy J. Bergee on behalf of plaintiffs (copy sent to Counsel and Judge Piersol) (FE) (Entered: 06/30/1999)
567 OBJECTIONS to proposed settlement agreement by Ronnie Murphey on behalf of plaintiffs (copy sent to Counsel and Judge Piersol) (FE) (Entered: 07/01/1999)
568 OBJECTIONS to proposed settlement agreement by Elroy L. Wabasha, et al on behalf of the plaintiffs (copy sent to Counsel and Judge Piersol) (FE) (Entered: 07/06/1999)
569 OBJECTIONS to proposed settlement agreement by Randy Jaeschke on behalf of the plaintiffs (copy sent to counsel and Judge Piersol) (FE) (Entered: 07/07/1999)
570 OBJECTIONS to proposed settlement agreement by William Schmidt on behalf of plaintiffs (copy sent to all counsel and Judge Piersol) (FE) (Entered:

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07/15/1999 07/15/1999 07/19/1999 07/19/1999 07/20/1999 07/20/1999 07/20/1999 07/20/1999 07/20/1999 07/21/1999 07/22/1999 08/18/1999 08/19/1999 08/19/1999 08/30/1999
09/03/1999 09/07/1999

07/15/1999)
571 OBJECTIONS to proposed settlement agreement by Edward Aaron Newa on behalf of plaintiffs (copies sent to counsel and Judge) (FE) (Entered: 07/16/1999)
572 OBJECTIONS to proposed settlement agreement by Richard Amundson on behalf of plaintiffs (copy sent to counsel and Judge) (FE) (Entered: 07/16/1999)
573 OBJECTIONS to proposed settlement agreement by John D. Hatch III on behalf of plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
574 OBJECTIONS to proposed settlement agreement by Bryan Nei on behalf of plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
575 OBJECTIONS to proposed settlement agreement by Fidel Arguello on behalf of plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
576 OBJECTIONS to proposed settlement agreement by Scott A. Mertz on behalf of the plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
577 OBJECTIONS to proposed settlement agreement by John Dale Hurney on behalf of the plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
578 OBJECTIONS to proposed settlement agreement by Daniel Hanic on behalf of the plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
579 OBJECTIONS to proposed settlement agreement by Steve Layton on behalf of the plaintiffs (copies sent) (FE) (Entered: 07/20/1999)
580 OBJECTIONS to proposed settlement agreement by Dennis Lufkin on behalf of plaintiffs (copies sent) (FE) (Entered: 07/21/1999)
581 OBJECTIONS to proposed settlement agreement by Blaine Walters on behalf of the plaintiffs (copies sent) (FE) (Entered: 07/23/1999)
SEE VOLUME 11 (SKM) (Entered: 08/19/1999)
VOLUME 11 (SKM) (Entered: 08/19/1999)
582 MEMORANDUM by plaintiff William R. Cody in support of proposed settlement agreement (SKM) (Entered: 08/19/1999)
583 ORDER by Lawrence L. Piersol granting motion for preliminary approval of proposed settlement agreement [539-1], granting motion for approval of notice to Class [539-2] ; Fairness Hearing set for 9:00 a.m. on Monday, 11/1/99 (SEE EXHIBITS ATTACHED TO ORDER) (COPIES OF ALL OBJECTIONS FILED WILL BE SENT TO COUNSEL FOR ALL PARTIES AND DELIVERED TO JUDGE PIERSOL) (certified copy of this Order handed to James Moore this date) (cc:all counsel) (LMZ) Modified on 08/30/1999 (Entered: 08/30/1999)
584 OBJECTIONS to proposed settlement by Charles Lamadrid (copies sent to counsel and Judge) (JMM) (Entered: 09/07/1999)
585 OBJECTIONS to proposed settlement by Christopher Hagan (copies sent to counsel and Judge) (JMM) (Entered: 09/07/1999)

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09/17/1999 09/27/1999 10/01/1999 10/05/1999 10/14/1999 10/18/1999 10/19/1999 10/20/1999 10/22/1999
10/28/1999 11/01/1999 11/01/1999
11/01/1999 11/01/1999
11/05/1999
11/05/1999

586 OBJECTIONS to proposed settlement by Jose Sanchez (copies sent to counsel and Judge) (DLS) (Entered: 09/17/1999)
587 OBJECTIONS to proposed settlement by James E. Bruguier (copies sent to counsel and Judge) (SLL) (Entered: 09/28/1999)
588 OBJECTIONS to proposed settlement by Robert S. Rye and Daniel E. McMains on behalf of plaintiff (cc: to counsel and Judge) (FE) Modified on 10/01/1999 (Entered: 10/01/1999)
589 OBJECTIONS to Proposed Settlement by Jeff Crandall (copies sent to counsel and Judge) (SKM) (Entered: 10/06/1999)
590 SUPPLEMENTAL MEMORANDUM IN SUPPORT OF PROPOSED SETTLEMENT AGREEMENT by plaintiff William R. Cody (SLL) (Entered: 10/15/1999)
591 AFFIDAVIT of David Schiefen (SLL) (Entered: 10/18/1999)
592 AFFIDAVIT of Troy Ponto (SLL) (Entered: 10/20/1999)
593 AFFIDAVIT of Israel Suarez (DLS) (Entered: 10/21/1999)
594 CERTIFICATE OF SERVICE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (LMZ) (Entered: 10/22/1999)
595 ORDER by Lawrence L. Piersol ; in-court hearing set for 9:00 11/1/99 (cc:all counsel) (FE) (Entered: 10/28/1999)
596 OBJECTIONS to Proposed Settlement by Vernon Edwards on behalf of plaintiffs (FE) (Entered: 11/02/1999)
597 MINUTES RE: Settlement Agreement Hearing before the Hon. Lawrence L. Piersol, US Chief Judge, Sioux Falls, SD; Court orders counsel to submit simultaneous briefs due 11/08/99; Total In Court Time 7 hours 30 minutes (FE) (Entered: 11/02/1999)
598 EXHIBIT LIST for Settlement Agreement Hearing by plaintiff William R. Cody (exhibits attached) (FE) (Entered: 11/02/1999)
599 EXHIBIT LIST for Settlement Agreement Hearing by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (FE) (Entered: 11/02/1999)
600 POSTHEARING BRIEF in Support of Settlement by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (SKM) (Entered: 11/08/1999)
601 CERTIFICATE OF SERVICE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (SKM) (Entered: 11/08/1999)

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11/05/1999 11/06/1999 11/08/1999 12/07/1999 12/07/1999
12/07/1999
12/23/1999 12/23/1999 12/27/1999
12/27/1999 12/27/1999 12/27/1999 12/27/1999 12/27/1999
01/03/2000 01/03/2000 01/03/2000 01/03/2000

SEE VOLUME XII (FE) (Entered: 11/08/1999)
VOLUME XII (FE) (Entered: 11/08/1999)
602 POST HEARING BRIEF by plaintiff William R. Cody in Support of Approval of the Proposed Settlement Agreement (FE) (Entered: 11/08/1999)
603 Copy of Portions of verified COMPLAINT submitted for Court's review by William Cody (FE) (Entered: 12/08/1999)
604 LETTERS from Bryan Nei (dated 11/6/99, 11/9/99, 11/11/99, 11/13/99, 11/16/99) for consideration by the Court re prison conditions (FE) (Entered: 12/08/1999)
605 ORDER re: Supplemental Information to Counsel by Lawrence L. Piersol; counsel to advise Court within 20 days of the date of this Order re: allegations (DOC 603, 604 attached to Order) (cc:all counsel) (FE) (Entered: 12/08/1999)
606 SUPPLEMENT by plaintiff William R. Cody re brief in support of approval of the suttlement agreement [602-1] (DLS) (Entered: 12/27/1999)
607 CERTIFICATE OF SERVICE by plaintiff William R. Cody (DLS) (Entered: 12/27/1999)
608 RESPONSE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem to Supplemental Information to Counsel dated 12/7/99 (LMZ) (Entered: 12/28/1999)
609 AFFIDAVIT of Darold Diede re Defendant's Response [608-1] (LMZ) (Entered: 12/28/1999)
610 AFFIDAVIT of Dennis Kingsbury re Response of Defendants [608-1] (LMZ) (Entered: 12/28/1999)
611 AFFIDAVIT of Douglas Weber re Response of Defendants [608-1] (LMZ) (Entered: 12/28/1999)
612 AFFIDAVIT of David Schiefen re Response of Defendants [608-1] (LMZ) (Entered: 12/28/1999)
613 CERTIFICATE OF SERVICE by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem (LMZ) (Entered: 12/28/1999)
614 NOTICE OF WITHDRAWAL OF REQUEST TO APPROVE SETTLEMENT AGREEMENT by plaintiffs William R. Cody, et al (LMZ) (Entered: 01/03/2000)
614 MOTION (Request) for Status Conference Hearing by plaintiffs William R. Cody, et al (LMZ) (Entered: 01/03/2000)
615 MEMORANDUM by plaintiff William R. Cody re: motion for Status Conference Hearing [614-1], re: notice of withdrawal [614-1] (LMZ) (Entered: 01/03/2000)
616 CERTIFICATE OF SERVICE by plaintiff William R. Cody (LMZ) (Entered: 01/03/2000)

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01/10/2000
01/10/2000 01/14/2000 01/18/2000 01/28/2000 02/17/2000
02/28/2000 02/28/2000 03/08/2000 03/16/2000 03/16/2000 03/20/2000 04/04/2000
04/20/2000 04/20/2000

617 RESPONSE/BRIEF IN OPPOSITION by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem to Notice of Withdrawal of Request to Approve Settlement Agreement [614-1] (SLL) (Entered: 01/10/2000)
618 MINUTES re: hearing on request for withdrawal of request to approve settlement agreement before the Hon. Lawrence L. Piersol, Chief Judge, Sioux Falls. Court requests attorney fee statements. (JMM) (Entered: 01/10/2000)
619 Attorney Fee Statement In Response to Status Conference of 1/10/00 (SLL) (Entered: 01/14/2000)
620 REPLY BRIEF REGARDING WITHDRAWAL OF AGREEMENT by plaintiff William R. Cody (SLL) (Entered: 01/18/2000)
621 Addendum to Submission in Response to Status Conference 1/10/00 in re [619-1] attorney fee statement by plaintiff (SLL) (Entered: 01/28/2000)
622 MEMORANDUM OPINION AND ORDER by Lawrence L. Piersol; Settlement Agreement is approved; case dismissed without prejudice; parties ordered to carry out terms of Settlement Agreement; dismissing case (cc: all counsel) (FE) (Entered: 02/18/2000)
623 CONSENT MOTION to extend time for filing petition for attorney fees by plaintiff William R. Cody (SLL) (Entered: 02/29/2000)
624 MEMORANDUM by plaintiff William R. Cody in support of consent motion to extend time for filing petition for attorney fees [623-1] (SLL) (Entered: 02/29/2000)
625 ORDER by Lawrence L. Piersol granting motion to extend time for filing petition for attorney fees [623-1]; plaintiffs have until 3/16/00 to file petition for attorney fees (cc:all counsel) (FE) (Entered: 03/09/2000)
626 MOTION for award of reasonable attorney fees and costs by plaintiff William R. Cody (LMZ) (Entered: 03/16/2000)
627 MEMORANDUM by plaintiff William R. Cody in support of motion for award of reasonable attorney fees and costs [626-1] (LMZ) (Entered: 03/17/2000)
628 NOTICE with attached original declaration of Thomas W. Clayton by plaintiff William R. Cody (SLL) (Entered: 03/21/2000)
629 MEMORANDUM/BRIEF by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem in opposition to motion for award of reasonable attorney fees and costs [626-1] (FE) (Entered: 04/04/2000)
630 REPLY by plaintiff William R. Cody to response to motion for award of reasonable attorney fees and costs [626-1] (SLL) (Entered: 04/20/2000)
631 INDEX OF EXHIBITS by plaintiff William R. Cody in support of reply brief [630-1] (SLL) (Entered: 04/20/2000)

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04/20/2000 11/15/2000
11/15/2000
11/29/2000
11/29/2000 11/29/2000 12/11/2000 12/13/2000 11/29/2001 05/08/2002 05/08/2002 05/08/2002 05/08/2002 05/08/2002 05/08/2002 05/08/2002 05/08/2002 12/09/2002 12/09/2002

632 CERTIFICATE OF SERVICE by plaintiff William R. Cody (SLL) (Entered: 04/20/2000)
633 MEMORANDUM OPINION AND ORDER by Lawrence L. Piersol granting in part and denying in part motion for award of reasonable attorney fees and costs [626-1] (cc: all counsel) (JMM) (Entered: 11/16/2000)
634 JUDGMENT in favor of William R. Cody and against Charities & Corr Sec, Frank Brost, Ted Spaulding, D. A. Gehlhoff, Lyle Swenson, James Smith, Herman Solem in the amount of $ 106,877.74 by Lawrence L. Piersol ; (cc: all counsel) (JMM) (Entered: 11/16/2000)
635 NOTICE OF APPEAL by defendant Charities & Corr Sec, defendant Frank Brost, defendant Ted Spaulding, defendant D. A. Gehlhoff, defendant Lyle Swenson, defendant James Smith, defendant Herman Solem from [634-1] , Appeal fee paid (cc: all counsel) (FE) Modified on 11/30/2000 (Entered: 11/30/2000)
APPEAL FILING FEE PAID: on 11/29/00 in the amount of $ 105.00, receipt # 0027026. (FE) Modified on 11/30/2000 (Entered: 11/30/2000)
TRANSMITTING Notice of Appeal to 8th Circuit COA (FE) (Entered: 11/30/2000)
NOTIFICATION by Circuit Court of Appellate Docket Number 00-3918 (SKM) (Entered: 12/12/2000)
636 NOTICE of Change of Address of plaintiff's counsel effective 1/2/01 by plaintiff William R. Cody (SLL) (Entered: 12/14/2000)
68 Order Filed on 03/29/83 (FE) (Entered: 05/20/2002)
91 ORDER Filed on 5/3/83 (SKM) (Entered: 05/08/2002)
137 Memorandum Opinion Filed on 4/30/84 (SLL) (Entered: 06/10/2002)
138 Judgment filed on 4/30/84 (SLL) (Entered: 06/10/2002)
143 Supplemental Memorandum Opinion Filed on 5/22/84 (SLL) (Entered: 06/10/2002)
144 Order Filed on 5/22/84 (SLL) (Entered: 06/10/2002)
Memorandum Opinion Filed on 5/31/84 (SLL) (Entered: 06/10/2002)
156 Order Filed on 6/4/84 (SLL) (Entered: 06/10/2002)
155 MEMORANDUM OPINION . Signed by Judge Donald J. Porter on 5/31/84. (Attachments: # 1 # (2))(SLL, ) (Entered: 12/16/2003)
637 OPINION from 8th Circuit COA affirming the decision of the District Court [634-1] (SLL) (Entered: 12/11/2002)
638 MANDATE from 8th Circuit Court of Appeals affirming the decision of the District Court [634-1] (cc: all counsel, District Judge) ; involvement terminated for Interested Party Clerk, USCOA (SLL) (Entered: 12/11/2002)

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 </s> 599 F.Supp. 1025 (1984)
William R. CODY, Individually and on behalf of all other persons similarly situated, Plaintiffs, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gehlhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants.
Civ. No. 80-4039.
United States District Court, D. South Dakota, S.D.
May 31, 1984.
1026 *1026 Elizabeth Alexander, Washington, D.C., William D. Froke, East River Legal Services, Sioux Falls, S.D., Douglas P. Cummings, Jr., Sioux Falls, S.D., for plaintiffs.
Mark V. Meierhenry, Atty. Gen., S.D., Mark W. Barnett, Asst. Atty. Gen. and Richard Dale, Sp. Asst. Atty. Gen., Pierre, S.D., for defendants.
MEMORANDUM OPINION
DONALD J. PORTER, District Judge.
Plaintiff William Cody represents a class of persons who are now or who will be incarcerated in the South Dakota State Penitentiary at Sioux Falls, South Dakota or in the Women's Correctional Facility at Yankton, South Dakota. [1] The plaintiff class challenges the constitutionality under the first, fifth, sixth, eighth and fourteenth amendments to the United States Constitution of numerous conditions and practices of confinement primarily at the South Dakota State Penitentiary (SDSP) and secondarily at the Women's Correctional Facility. Plaintiffs proceed under 42 U.S.C. § 1983[2] and this Court exercises subject matter jurisdiction under 28 U.S.C. § 1343(a) (3).
1027 *1027 Defendants Hillard, Brost, Spaulding, Gehlhoff, Swenson and Smith are officers or members of the Board of Charities and Corrections of South Dakota, charged with the administration, supervision and maintenance of the SDSP and the Women's Correctional Facility. Defendant Herman Solem is the Warden of the SDSP. Plaintiffs request both declaratory and injunctive relief.
This action was tried to the court seven days in June, (June 7-10, and 13-15) and four days in December (December 13-16), 1983, in Sioux Falls, South Dakota. The case has been fully briefed by the parties and extensive proposed findings of fact have been submitted. At trial plaintiffs called four expert witnesses, and defendants three such witnesses.
The following is a brief summary of the qualifications and areas of testimony of each of the plaintiffs' experts:
1. Robert W. Powitz, Ph.D., Environmental Health, is the Director of Environmental Health and Safety at Wayne State University in Detroit, Michigan. He is a licensed sanitarian in the states of New Jersey and Michigan, and is an accredited sanitarian by the National Environmental Health Association and by the American Academy of Sanitarians. He was a contributing author of an official report by the American Public Health Association entitled "Standards for Health Services in Correctional Institutions." He inspected the SDSP on May 16, 1983, viewing among other things the individual cells, the food service areas and the vocational shop areas.

2. Ronald Sable, M.D., is board certified in internal medicine. He is currently the attending physician in internal medicine at Cook County Hospital in Chicago, Illinois and staff physician at the Cook County Jail. He reviewed and inspected the medical, dental and psychiatric and psychological policies and practices at the SDSP one day in May, 1983.

3. Gordon Kampka is the Vice-President of Abraxas Associates, Inc., a management consultant firm in Fallston, Maryland. He has studied, lectured and written in the fields of criminal justice and public administration; he is a contributing editor to the Journal of Prison Health. He has consulted the National Institution of Corrections, the National Prison Overcrowding Project and several state and local correctional systems. He was formerly employed as Maryland's Secretary for Public Safety and Correctional Services and for approximately six years before that as Warden of the Baltimore City Jail. He conducted a general inspection of the SDSP on June 8, 1983.

4. Lloyd T. Baccus, M.D., is an Assistant Professor of Psychiatry at Emory University School of Medicine in Atlanta, Georgia. He also has a private practice with emphasis in forensic psychiatry. He has served and continues to serve as a consultant to several state corrections systems in the evaluation and administration of mental health care services. He is currently involved in developing with other experts a mental health plan for the Texas Corrections System 0907this as a result of a class action suit brought on behalf of more than 33,000 inmates challenging the conditions of confinement in various institutions operated by the Texas Department of Corrections. (see Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.1982), cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983)). He inspected the mental health care services and policies at the SDSP for approximately one day in September, 1983.

The defendants called the following experts:

1028

1. Bonnie C. Norman, M.S. in Public Administration and specializing in hospital administration, is currently employed and has been for more than seven years as the Director of Medical Services for the Los Angeles County Sheriff's Department. Her primary responsibility in this position is to direct health care services for approximately 14,000 inmates housed in the Los Angeles County Jail system. She has attended and also organized numerous seminars regarding *1028 the administration of health care services in correctional institutions. She has authored articles on health care services in corrections systems, and has participated in drafting, revising and/or auditing state and national standards for the administration of health care services in corrections systems. She inspected the health care services and policies at the SDSP for approximately two days in May, 1983, and one day in December, 1983.

2. Winston Satran is the Warden of the North Dakota State Penitentiary in Bismarck, North Dakota. He has been employed in various correctional positions for approximately sixteen years. He has attended several seminars respecting corrections administration and as a part of his training and experience he has visited numerous state and federal prison facilities. He toured the SDSP for approximately one and one-half days in May, 1983 and again for approximately one and one-half days in December 1983.

3. William R. Gore is a sanitarian from Sacramento, California. For approximately eight years he has served as Program Supervisor, Office of Local Environmental Health Programs, Department of Health Services, State of California. In that position he is in charge of conducting environmental health surveys for numerous state institutions, including nearly all of California's correctional institutions. He has been involved over the years with formulating and applying several national and state standards associated with environmental health aspects of correctional institutions in California. He toured the SDSP, focusing particularly on environmental health concerns raised by the plaintiffs, for approximately two days in December, 1983.

In addition to expert testimony, the court had the benefit of sworn testimony from several corrections officers at the SDSP, including the Warden, other staff and also inmates. The Court also received in evidence 131 exhibits.

One of these exhibits, entitled the "South Dakota Penitentiary Study", (hereafter cited "SDSP" Study"), was particularly helpful in substantiating a number of the court's findings of fact. This comprehensive survey, published in 1981, identifies deficiencies in the physical plant as well as in several practices, programs and services at the SDSP. The survey was conducted primarily by a team of professional consultants from Sioux Falls, South Dakota, Chicago, Illinois and Omaha, Nebraska, with the assistance of members of (1) the South Dakota Board of Charities and Corrections; (2) an advisory committee composed of various state public officials such as the attorney general and several legislators; (3) the SDSP staff including the Warden; and (4) the Division of Law Enforcement Assistance. Appendix A to the SDSP Study contains fifty-eight unnumbered pages of evaluations performed by the consultants on specific aspects of confinement at the SDSP. Included in these evaluations are the findings and conclusions of the consultants based in part on the degree of compliance with the "most important" correctional standards promulgated by two nationally-recognized associations of experts in the field of corrections: the American Correctional Association (ACA) and the American Public Health Association (APHA). SDSP Study at 79-80. The Study further presents potential solutions, both current and long-term, to alleviate these various deficiencies, and also identifies the most cost-effective options available to the State.
I. BACKGROUND INFORMATION
Portions of the SDSP physical plant were constructed more than one hundred years ago. There have been a number of improvements and renovations over the years. There are currently a total of three cell blocks at the SDSP: West Hall, which contains 140 cells; East Hall, which contains 200 cells; and Federal Hall, which contains 100 cells. At the time of trial on December 15, 1983, there were 538 inmates living inside the three cell halls.
Plaintiffs in their complaint allege that (1) the conditions of their confinement at the SDSP amount to cruel and 1029 unusual punishment in violation of the eighth and *1029 fourteenth amendments; (2) as to those inmates housed
in protective custody, the conditions of their confinement not only amount to cruel and unusual punishment but also deny them equal protection of the laws as applied to other inmates at the SDSP in 0907 violation of the fourteenth amendment; and (3) inmates at the SDSP and at the Women's Correctional Facility are denied meaningful access to the courts, as guaranteed by the Constitution. Specifically, as to the conditions of their confinement at the SDSP, the plaintiff class asserts that (1) various environmental conditions exist in the cell halls, such as inadequate fire protection, inadequate ventilation and heating, lack of hot running water and inadequate water temperature control, insufficient lighting, and inadequate electrical wiring; (2) a number of inmates housed in protective custody and a number of newly admitted inmates housed in the intake area are double-celled; (3) the medical and dental care is inadequate; (4) the mental health care is inadequate; (5) a number of inmates in the general population are double-celled; (6) various environmental conditions exist in the kitchen and food storage area, such as an improper milk pasteurization process, improper food storage, a potential for back siphonage, an unsafe kitchen elevator, and several other unsanitary and improper conditions; and (7) various environmental conditions and practices exist in the shops, vocational programs, and other areas, such as inadequate ventilation, lighting and fire protection, and unsanitary practices and conditions.
II. FINDINGS OF FACT
A. ENVIRONMENTAL CONDITIONS0907 CELL HALLS
1. Fire Safety
The SDSP provides inadequate on-site fire protection to inmates housed in West, East and Federal Halls. At present there exists in all three halls: an insufficient number of fire safety exits including exit stairs; insufficient night staff to adequately respond to an emergency fire; no remote automatic unlocking devices to simultaneously release inmates from their individual cells; no compartmentalization of these halls by the use of smoke partitions; an absence of a fire alarm system, smoke detectors, sprinklers, emergency lighting, and exit stairs encased with fire-resistant materials. In addition, East Hall is serviced by plastic pipe in the plumbing chases, which pipe would emit toxic vapors in the event of exposure to fire. Inadequate ventilation systems, especially

1030

existing in West Hall, compound the aforementioned hazardous conditions. In most prison fires, exposure to toxic vapors and smoke, rather than to the fire itself, poses the greatest threat to the lives of inmates.
2. Ventilation and Heating System
a. Inadequate ventilation poses a severe health problem. Adequate ventilation constitutes an important environmental factor relating to degrees of comfort and disease prevention.
b. Ventilation in the individual cells in West Hall is virtually non-existent. In East and Federal Halls, ventilation through each cell is generally inadequate. However, the air moves on an even plane from a small vent located on the bottom of the back wall of each cell toward the front of the cell. This lack of air movement poses a health hazard to inmates in the event of a fire. In addition, insufficient ventilation exists in the West Hall shower area.
c. In each of the three halls there exists one heat source for the entire cell block. Heat is pumped into the cells through the baseboards located on the bottom tier of cells. The heat then rises through the upper tiers, creating generally cold temperatures on the bottom tiers and hot temperatures on the upper tiers. This system inadequately distributes warm air through the cell halls and results in generally uncomfortable living conditions. Inadequate ventilation in the individual cells compounds these conditions.
3. Overhead Lighting and Electrical Wiring
a. In all three halls the cells are poorly lighted. An overhead fluorescent bulb in *1030 each cell furnishes insufficient light in order for inmates to conduct ordinary cell activities. Although inmates are issued small plug-in lamps to supplement the otherwise available light, there still exists inadequate illumination for the entire cell. The lack of adequate overhead lighting compounds the safety hazards due to faulty electrical wiring in the cells.
b. There exists in many cells a significant amount of "jerry-rigged" electrical wiring; i.e., wiring fashioned by the inmates for their own use. This poses a safety and fire hazard to the inmates.
c. In large part, the electrical wiring in the cells is substandard and inadequate. The electrical outlets in many cells, particularly in West Hall, are improperly grounded, thereby presenting a safety hazard to the inmates.
4. Hot Water and Water Temperature Control System
a. Basic personal hygiene requires that hot water be available for washing and cleansing.
b. No running hot water is available to inmates in cells in Federal Hall. Rather, hot water is currently delivered to these cells once each day by inmate runners who circulate through the Hall.
c. The hot water temperature in the individual cell wash basins in East Hall measures 140° Fahrenheit, presenting potential hazards to inmates such as burning and scalding. The sinks in West and East Hall cells lack an automatic mixing valve to deliver water at reasonably comfortable temperatures. Running water in these sinks cannot be blended manually in the spigot prior to delivery.

B. ENVIRONMENTAL CONDITIONS0907 KITCHEN AND FOOD STORAGE AREA

1. Milk Pasteurization Process
a. The SDSP kitchen is equipped with a batch pasteurizer to purify milk. Pasteurization serves to eliminate harmful bacteria and other disease-carrying organisms from the milk.

1031

b. The consumption of improperly pasteurized milk can result in serious disease. Proper pasteurization requires that the temperature readings and the length of time associated with each pasteurization be recorded and regularly monitored by those in charge.
c. On several random occasions milk samples taken from the SDSP batch pasteurizer were determined bacteriologically unsatisfactory by the South Dakota State Chemical Laboratory. Moreover, no temperature and time of duration readings associated with each pasteurization are recorded and monitored by those in charge. These conditions present a health hazard to the inmates.
2. Food Storage
a. Proper storage of food serves to prevent spoilage and the spread of food borne diseases. Proper storage is particularly important where the same foods are being prepared for a large, contained population, such as for inmates at the SDSP.
b. The lower level (basement) food storage area stocks primarily canned goods (single service articles) but also other food stuffs. Some of these items are stored under drain pipes which have the potential for breaking or cracking0907 thereby causing unsanitary spillage over and around these stored foods. It was evident to defendants' environmental health export, Mr. Gore, upon his tour of the area, that such breaking or cracking had occurred in the past. At the time plaintiffs' environmental health expert, Dr. Powitz, inspected this area on May 16, 1983, one of these drain lines had in fact broken, causing waste-water to leak out. Drip troughs are presently in place in an attempt to prevent spillage over these stored food items. However, in the event of a break in a pressure-flowtype *1031 pipeline, the potential for contamination of these food articles is great. Under these conditions the lower level food storage area provides inadequate protection against contamination and therefore presents a health hazard to the inmates.
c. When Dr. Powitz toured the lower level storage area, he saw one dead mouse and fresh mouse droppings along one wall, indicating not only an active mice infestation but also infrequent cleaning in this area. Defendants' environmental health expert, Mr. Gore, also noted mouse droppings in this area upon his tour in December, 1983.
d. Food storage in the kitchen area is deficient. Basic refrigeration space for short-term food storage is inadequate. The freezer space is also inadequate to meet the needs of the total inmate population. The kitchen is not equipped with a walk-in freezer. The existing freezer space presents sanitation problems. The freezer is infrequently cleaned and is overloaded with food items.
Dr. Powitz inspected the freezer and found some food articles stored on the floor of the freezer, thereby subjecting these foods to condensation, dripping, splashing and dirt.
e. The methods of storing meat in the kitchen area are improper in some respects. During Mr. Gore's inspection of the refrigerated meat storage box in the kitchen, he found raw kidneys and other uncooked foods placed above uncovered cheese slices. It is improper to store raw or uncooked foods above uncovered ready-to-serve, prepared foods; storage in this manner subjects these food to potential contamination and adulteration.
3. Kitchen Elevator
a. The kitchen elevator is outdated and unsafe. The heavy metal doors of the elevator must be manually opened and closed by the passenger. These doors are not equipped with handles on the inside, but only on the outside. Therefore, in order to operate the elevator, a passenger must stand inside and at the same time reach outside the elevator to close the doors.
b. There have been two reported incidents of injuries incurred by inmates who have slammed their hands in between these elevator doors in an attempt to operate the elevator.

1032

4. General Kitchen Practices and Conditions
a. Ventilation in the kitchen areas is makeshift and inadequate. Stand-up fans are used to distribute air in the closed area. The kitchen hoods lack an ancillary fire protection system.
b. Many pots and pans and a majority of dining utensils are in a state of disrepair to the extent that they cannot be properly cleaned and sanitized.
c. The kitchen oftentimes serves as a walk-through area for inmates, particularly those proceeding to the infirmary. The use of the kitchen in this manner is both unsanitary and a bad practice. Inmates and other plainclothes people may in this way expose the kitchen area to germs, dirt and viruses. This increases the potential for contacting and spreading communicable diseases among the inmates.
It is also possible for inmates in the general population to sabotage the area by placing, for example, foreign matter in foods ultimately consumed by inmates and staff.
d. Hair restraints (ie., hair nets) or hair covering of some sort for the kitchen staff, along with proper footwear are necessary to maintain a sanitary environment in the kitchen area.
e. The ice machine is inadequately maintained and serviced. This causes a build-up of mold, minerals and stains on the interior walls of the machine, resulting in unsanitary conditions.
f. At the time Dr. Powitz visited the kitchen area, frozen fish were being thawed in still water rather than, for example, under running water. This an *1032 improper method for defrosting frozen foods.
g. The kitchen area is not equipped with a separate lounge for the inmate kitchen staff. As a result, the staff use the kitchen area as a lounge. This is an unsanitary practice in a food preparation area.
h. The dishwashing area is characterized by excessive noise, some of which cannot be avoided.
i. At the time of Dr. Powitz' tour of the kitchen area, the temperature in the milk holding box registered 48° Fahrenheit. This temperature is excessive for storing a potentially hazardous food product such as milk.
j. Overall, the kitchen area is maintained in a sanitary condition.

C. ENVIRONMENTAL CONDITIONS0907 SHOPS AND VOCATIONAL PROGRAMS

a. In the welding shop, exhaust ventilation is inadequate in the midshop welding booths. Toxic fumes produced from the welding benches are directed up into the welder's breathing zone. There is no scavenger ventilation system to remove such fumes from the air at their source. This presents a health hazard to the inmates.
b. In the furniture upholstering shop, particularly in two spray booths, the ventilation is inadequate to remove fumes toxic to the liver.
c. Several drums containing a considerable amount of solvent are improperly stored in the sign shop. These drums are not kept in a storage cabinet or room designed specifically for the storage of solvent0907thus creating a fire hazard to the inmates.
d. In the barbershops there are no sanitizers used on the combs, brushes and clippers and no single service neck papers. These unsanitary conditions can cause skin infections.

e. In the book bindery, tag and sign shops there are no safety or lock-out devices on any of the presses and paper cutters. This presents a safety hazard to the inmate workers.
f. One inmate worker injured his hand when the printing machine in the print shop was unexpectedly engaged0907even though the safety shield on the machine was in place and this was designed to prevent operation of the machine.
g. Several table saws and other power tools in the carpentry shop lacked adequate devices to collect and remove saw-dust from the air.

D. ENVIRONMENTAL CONDITIONS0907 OTHER AREAS

a. The lighting in the underground corridor leading to the recreation building is inadequate.
b. Several unsanitary conditions and practices exist in the infirmary. Transfer forceps are improperly stored in a disinfectant solution which has the potential for contamination. There are no vacuum breakers attached to the x-ray developer and the washtub in order to prevent back siphonage flows into the regular water system. A deep fat fryer is sometimes used in the infirmary without proper ventilation or fire prevention equipment.

E. CONDITIONS OF CONFINEMENT 0907 DOUBLE-CELLING

1033

1. General
a. The general inmate population at the SDSP has increased dramatically since 1974. In October, 1983 the inmate population reached an all-time high of approximately 560 men housed inside the walls of the prison. Taking all three cell halls, the SDSP is equipped with a total of 440 cells.
b. At the time of trial on December 15, 1983, there were 538 inmates living inside the three cell halls. Ninety-eight cells (196 inmates) were doubled up. Therefore, as of December 15, 1983, the SDSP was over physical capacity by ninety-eight inmates (approximately 22 per cent).
*1033 c. Approximately seventy-five to eighty per cent of the inmate population at the SDSP are serving sentences for non-violent crimes. Approximately fifty-five per cent of the population are first offenders.
d. West Hall contains 140 cells which each measure approximately sixty-three square feet in space. East Hall contains 200 cells, each measuring approximately fifty-six square feet in space. Federal Hall contains 100 cells, each measuring approximately fifty-five square feet in space.
2. Impact of Double-Celling
a. Double-celling, depending on such factors as the extent and duration of this practice, the size of the double cell, and the amount of out-of-cell time afforded these inmates, places stress on both staff and inmates as well as on existing programs, services, equipment and the physical plant at the SDSP. Double-celling over time has a negative impact on all programs and services, including medical, food and laundry services, and work, recreation, and school programs. Double-celling over time also affects the level of tension among inmates and staff in a prison.
b. Double-celling at the SDSP has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring.
c. Double-celling at the SDSP has resulted in an overloading of services such as the work, recreation and school programs.

1034

d. The SDSP administration has attempted to reduce the negative impact of double-celling by expanding the amount of out-of-cell time afforded inmates, by making a reasonable effort to double-cell only those inmates who volunteer to live with another inmate in the same cell, and by increasing the placement of inmates: (1) into trustee status in a detached unit of SDSP, located immediately outside the walls of the prison, known as the "Cottage"; (2) into trustee status in a unit located at the Human Services Center in Yankton; (3) into a detached dormitory, outside the walls of the prison, known as the "West Farm"; (4) into public service restitution programs in various communities in South Dakota. There are presently approximately 220 to 230 inmates housed outside the walls of the prison.
e. The SDSP has also attempted to place inmates in work release or school release programs throughout the state. There are approximately thirty-five to forty inmates participating in these programs.
f. There is a relatively low level of tension between inmates and staff at the SDSP. Since the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons in November, 1981, and approximately sixty incidents (recorded in the disciplinary logs for the period January 1, 1981 to June 30, 1983) of fighting or assaults between inmates and/or inmates and staff.
g. The SDSP is grossly under-staffed. The level of prison staff has not increased in proportion to the level of the general inmate population.
3. Availability of Jobs
a. There are approximately 200 inmates in the general population inside the walls of the SDSP who are without jobs. For various reasons, approximately 30 to 40 of these inmates do not wish to work outside of their cells. That leaves approximately 150 inmates who want to work, but for whom no jobs are available.
b. An over-capacity inmate population at the SDSP has a negative impact on the availability of jobs for a significant number of inmates.
4. Public Health Impact of Double-Celling
a. Double-celling at the SDSP creates a serious potential both for injuries and the *1034 spread of communicable diseases among the inmates. In order to reduce this potential public health problem it is a generally recognized standard that each inmate should be accorded a minimum of 60 square feet of living space. Double-Celling at the SDSP presently precludes 196 inmates (representing approximately 36 per cent of the total inmate population) from attaining this standard.
b. The majority of double-celling at the SDSP exists in the West Hall cells, which lack adequate ventilation (see Findings of Fact No. II(A)(2) supra.) There are also a number of double cells in Federal Hall in which no running hot water is available to the inmates.
c. There is an increased potential for inmates who are double-celled to contact upper respiratory diseases.
d. In 1983, two inmates housed in the double-celled areas were treated for a communicable disease. One of these inmates was treated for pediculosis. Another inmate was diagnosed, after approximately two months of medical attention at the SDSP, by an outside dermatologist as having contracted scabies. By the time he was referred to the dermatologist, this inmate had a rash covering all areas of his body. In response to this diagnosis for scabies, only those individuals housed on this inmate's same tier were treated prophylactically for scabies.
5. Double-Celling in the Intake Area

a. The intake area at the SDSP where newly admitted inmates are housed, has a capacity of seventeen cells. On occasion as many as seven or eight of these cells are doubled up. Newly admitted inmates may spend from eight to fourteen days in this area.
b. Double-celling in the intake area has occurred and will likely occur in the future.
c. The SDSP administration makes reasonable efforts: to double-cell new admittees who are compatible with one another; to provide these inmates a sufficient amount of out-of-cell time in orientation and training activities; and to reduce the total amount of time these inmates are double-celled.
d. From a public health standpoint, it is inappropriate to double-cell new admittees. The potential for inmates to contract contagious disease is heightened because these inmates have not been medically screened prior to entering this area. Double-celling new admittees also impedes legitimate correctional objectives in successfully orienting and screening new admittees.
6. Double-Celling in the Protective Custody Area
a. Out of approximately 45 inmates housed in protective custody, 22 inmates are double-celled.
b. The practice of double-celling inmates housed in protective custody at the SDSP is inappropriate and without correctional justification. These inmates need protection not only from other inmates in the general population but also from other protective custody inmates. The negative impact attributed to double-celling in other areas of the institution is exacerbated in the protective custody area due to the inordinately limited out-of-cell time available to these inmates.

F. CONDITIONS OF CONFINEMENT0907 PROTECTIVE CUSTODY INMATES

1035

a. There are approximately forty-five inmates at the SDSP in protective custody. These inmates are provided protection from the general inmate population for a variety of reasons.
b. Inmates in protective custody do not generally have equal access with the general inmate population to jobs and programs at the SDSP.
c. It is sound correctional policy to provide protective custody inmates equal access with the general inmate population to jobs and programs as long as protective custody inmates can be adequately protected and a safe environment maintained.
*1035 d. Approximately ten protective custody inmates hold jobs. Most protective custody inmates perform laundry jobs which are reserved exclusively for these inmates. Also one or two protective custody inmates work in the protective custody area as runners or clean-up men.
e. It is possible for the SDSP to safely provide protective custody inmates with equal access to jobs and programs.
f. There are no protective custody inmates enrolled in the regular school program at the SDSP. The regular school program enrolls approximately 400 to 500 general population inmates per year.
g. One or two protective custody inmates are participating in the education program by correspondence from within their cells. Inadequate staff prevent the SDSP from extending to protective custody inmates the benefits of regular classroom schooling.
h. There are no protective custody inmates enrolled in vocational programs at the SDSP.

i. Several special classes, involving instruction in art, first aid and self-motivation and offered to inmates in the general population, are not available to protective custody inmates. An alcohol and drug dependency awareness class is available to protective custody inmates.
j. Protective custody inmates can use the law library only on Thursdays from 9:00-11:15 a.m. and from 1:00-3:30 p.m.
k. Protective custody inmates are denied Class I contact visits with outsiders unless these inmates waive their right to protection during these visits. Contact visits by protective custody inmates are currently conducted at the same time as those for general population inmates. The contact visitation room has a capacity for approximately sixty people. No guards are stationed in the room during contact visitation.
l. Protective custody inmates are allowed three out-of-cell recreation periods per week for a total of one and one-half to three hours per week.
m. A protective custody inmate who does not have a job spends approximately twenty-three hours per day in his cell.
n. Protective custody inmates receive less out-of-cell recreation time than do inmates housed in close custody in the Adjustment Center. Inmates housed in close custody in the Adjustment Center, by court order (see Judicial Notice of Judgment in Wabasha v. Solem, No. 79-4064, slip op. at 4 (D.S.D.Feb. 18, 1983)) receive at least five exercise periods per week for forty-five minutes each, for a total of at least three hours, forty-five minutes.
o. Protective custody inmates go to the dining room to pick up their food (at a time when inmates in the general population are confined to their cells) but return to their own cells to eat their meals. The only eating utensil provided is a spoon.
p. The policies and practices associated with protective custody status at the SDSP, particularly in terms of excessive in-cell time and a basic lack of access to programs and activities, are similar to those associated with punitive segregation status at most institutions.
q. The above-identified policies and practices associated with protective custody status at the SDSP with respect to a basic lack of access to jobs, programs and activities, and excessive in-cell time, constitute serious deficiencies without correctional justification. These deficiencies could be remedied without major expense or institutional restructuring.

G. CONDITIONS OF CONFINEMENT 0907 MEDICAL AND DENTAL CARE

1036

1. Use of Inmate Workers
(i) Initial examinations and Screening Functions.
a. Mr. Shelton, one of the inmate medical workers at the SDSP, has no formal training or education in the medical field.
b. Mr. Huth, formerly an inmate dental assistant, had no formal training or education as a dental assistant.
*1036 c. There are no nurses or qualified medical staff regularly scheduled at the SDSP between the hours of 8:30 p.m. and 7:30 a.m. on weekdays, or at any time on weekends. During this time, Shelton or another inmate medical worker would perform an initial examination on any inmate needing qualified medical attention. For example, if Shelton was called to attend to an apparent heart attack victim at a time when no qualified medical staff were present, he would take the patient's history and vital signs, review the patient's medical chart, and report the results of his

1037

examination by telephone to the doctor on call. This practice has since changed in that Shelton no longer has access to a patient's medical record.
d. Mr. Shelton occasionally performs visual examinations of an inmate's genitals at the request of the nurses.
e. During times when the dentist is not present at the SDSP, the inmate dental workers screen inmate requests for dental service. There are no written rules or guidelines which regulate the manner in which inmates are selected for dental care and treatment. Inmate dental workers assist the nurses in scheduling other inmates for dental treatment. It is inappropriate for inmate dental workers under these circumstances to be involved in scheduling other inmates for dental services.
f. In scheduling inmates for medical treatment, the nurses would give Shelton the medical charts of those inmates requesting medical treatment. Shelton in turn makes a list of these names, signs passes that will summon these inmates to the infirmary, and finally gives this list and the passes to a prison official who then will issue the passes and summon the inmates for treatment. It is inappropriate for inmate medical workers to be involved in scheduling other inmates for medical treatment.
(ii) Inmates' Access to Medical Records
a. Mr. Shelton is involved in typing and filing inmate medical records. During times that the nurses are present, Shelton has access to inmate medical records.
b. Inmate workers have on occasion made entries in the medical records.
c. Until approximately one month before trial in June, 1983, Shelton had a key to the files for inmate medical records.
d. It is inappropriate for inmate workers to have any sort of access to the medical records of other inmates.
(iii) Treatment of Other Inmates
a. Until approximately one month before trial in June, 1983, Shelton routinely performed medical x-rays on other inmates. Shelton received on-the-job training in how to perform x-rays from another inmate medical worker.
b. During times when Mr. Shelton was absent, Mr. Huth performed medical x-rays on other inmates.
c. Shelton routinely developed and performed a first reading on an x-ray. If Shelton, in reading an x-ray, discovered for example, in his estimation, a possible fracture of a bone, he would submit the x-ray to a nurse for a second reading. On the other hand, if Shelton, after performing a first reading of the x-ray, determined that there was no fracture, he would not submit the x-ray to a nurse for a second reading.
d. Until approximately one month before trial in June, 1983, Shelton routinely performed medical x-rays on other inmates during times when no qualified medical personnel were present at the SDSP. During these times, if Shelton, in performing the first reading of an x-ray, discovered in his estimation, an apparent hairline fracture of a bone for example, he would wrap the area around the bone with an ace bandage and give the inmate an order slip for ice and either Tylenol or aspirin. Shelton would not contact qualified medical personnel under these circumstances. On the other hand, if Shelton in his own estimation determined a bone fracture to be serious, he would *1037 notify a prison official who would then decide whether to call upon a qualified medical person.

e. Although during the time when Shelton was performing medical x-rays he received monthly reports with respect to how much his body had been exposed to x-ray radiation, he never understood these reports and no qualified medical personnel assisted him in interpreting these reports. Shelton was never instructed by qualified medical personnel on x-ray safety precautions and procedures.
f. In October, 1983, an inmate was given a medical x-ray by a prison guard who had no formal training or education in the use of x-ray equipment. Shelton advised the guard as the guard performed the x-ray.
g. It is inappropriate for inmate medical workers having no formal training or education in the medical field to perform medical x-rays on other inmates. It is also inappropriate for such inmate medical workers to perform a first reading of medical x-rays. On-the-job training of a medical inmate worker by another medical inmate worker in the use of x-ray equipment is inappropriate.
h. Mr. Huth, the inmate dental worker, routinely performed dental x-rays on other inmates. Normally there were no qualified medical personnel present when Huth performed x-rays. In order to take dental x-rays, Huth routinely placed his hand within the inmate patient's mouth to position the x-ray film.
i. It is inappropriate for inmate dental workers having no formal training or education in the use of dental x-ray equipment and the proper procedures and safety precautions for its use to perform dental x-rays on other inmates.
j. During a time when no qualified medical personnel were present at the SDSP, Mr. Almont, an inmate dental worker, attempted to perform an EKG exam with the assistance of Shelton upon another inmate who was experiencing heart problems. Neither Shelton nor Almont possessed proper training in the use of an EKG machine or in reading and interpreting the output from such a machine.
k. During a time when qualified medical personnel were not present, Shelton treated an inmate who had injured his chin. After he examined the injury, Shelton determined that it would require stitches. Shelton then notified a prison official, who sent the inmate patient out of the institution for qualified medical treatment.
l. During this same time (when qualified medical personnel were not present) Shelton treated an inmate who had lost consciousness and was transferred to the SDSP infirmary from the prison farm, which is approximately twelve miles from the main prison. Shelton treated the inmate for approximately five minutes before a qualified prison nurse arrived in answer to the emergency.
m. During this same time when there were no qualified medical personnel present at the SDSP, Shelton treated an inmate who experienced breathing problems. The treatment consisted of setting the inmate up to a breathing machine.
n. On occasions when Shelton was not present, Huth participated in treating medical emergencies among the inmate population. Such treatment typically consisted of treating and bandaging the wounded area but also consisted of, for example, attempting to administer oxygen to a potential heart attack victim.
o. Huth routinely assisted the dentist at the SDSP in performing amalgrams [fillings], bridge and dental work on inmates.
p. During times when the dentist was not present and an inmate complained of a sore tooth, Huth routinely treated the inmate by placing a temporary filling in the sore tooth. On occasion an inmate treated with such a temporary filling would not be scheduled to see the dentist until he again complained of a sore tooth.

1038

q. On occasions when the dentist was not present, Mr. Almont would operate both a low and high speed drill on another *1038 inmate's mouth in 0907 an attempt to grind down a crown or a chipped tooth or a burr from a temporary filling, or to adjust the bite on a filling.
r. It is inappropriate for inmate workers, whether dental or medical, to be in any way involved in the direct treatment of another inmate.
2. Emergency Medical Care
a. There are no protocols, i.e., written guidelines setting forth the systems and procedures to be employed in responding to a particular emergency, governing emergency medical care at the SDSP.
b. Correctional officers at the SDSP are not required to achieve or to maintain certification in cardiopulmonary resuscitation (CPR). Although the SDSP administration makes reasonable efforts to train custodial staff in CPR, the institution does not maintain adequate documentation of such training. As a result, there is no established system at the SDSP to ensure that a custodial staff person properly trained in CPR will be called upon in the event of an emergency.
c. During times when no qualified medical personnel are present, inmates requiring medical treatment are examined initially by an inmate worker.
d. In the event of a medical emergency during a time when qualified medical emergency personnel are not present, the decision whether to call for an ambulance rests ultimately with a supervisor. It takes approximately two to three minutes for a correctional officer responding to an emergency to obtain the necessary keys to open up the cell and attend to the stricken inmate. It takes approximately two to three additional minutes for the supervisor to reach the cell in order to make a decision whether to call for an ambulance. Depending on the circumstances, a correctional officer junior in command to the supervisor may make the decision whether to call for an ambulance. If an ambulance is summoned it normally takes from ten to twenty-five minutes for the ambulance to arrive at the scene of the emergency.
e. The SDSP does not have a crash cart, nor does it have all the medical equipment normally found on a crash cart.
f. The SDSP lacks adequate resuscitation equipment. Not all corrections officers are trained in the proper use of existing resuscitation equipment.
g. Aside from the above-detailed deficiencies in emergency care, the SDSP staff has taken reasonable efforts to properly respond to and treat medical emergencies.
3. Prescription Drugs
a. There is no formulary, i.e., a list of those prescription drugs which qualified medical personnel choose from in prescribing medication for a particular condition, of prescription drugs at the SDSP.
b. The SDSP infirmary has a written policy prohibiting physicians from prescribing certain medications for the inmates. The list of prohibited medications includes: sleeping medications of any type; pain relievers such as darvon, talwin, demerol, codeine and methadone; minor tranquilizers such as serax, librium, valium; mood stimulators such as dexedrine and ritalin; appetite suppressants of any type; and various cough medicines such as robitussin, terpin hydrate, and various codeine preparations. Under certain circumstances a physician at the SDSP may find it necessary to indicate one of the above enumerated drugs in treating an inmate; it is inappropriate to strictly prohibit the use of these medications by a treating physician.
c. The SDSP infirmary also has a written policy discouraging physicians at the SDSP from prescribing certain anti-asthmatic preparations (such as aminophyllin, amesec and tedral) and

1039 1040

certain anti-convulsant medications (such as dilantin, mysoline and phenobarbital) in treating inmates. It is inappropriate to strictly limit and discourage a treating physician *1039 at the SDSP from prescribing these medications under all circumstances.
d. At present corrections officers at the SDSP deliver pre-packaged unit-dose prescription medications, which are brought into the institution each day and inspected by the registered nurse, to those inmates who have been indicated for treatment. This procedure for dispensing prescription medications is adequate. However, there is currently no procedure by which the receiving inmate acknowledges, by his signature or his initials on a form to be filed in his permanent medical file, receiving or refusing to receive the prescription medication. It is inappropriate for the SDSP staff to only record those instances when the inmate refuses his medication, rather than recording both instances where the inmate receives his medication and when the inmate refused to receive his medication.
e. One inmate, Mr. Lone Eagle, was admitted to the SDSP in December, 1982, while on prescribed medications of, among other things, dilantin. Mr. Lone Eagle's medical records revealed a history of epileptic seizures, for which he was placed on dilantin in 1979. For approximately four or five days after he was admitted to the SDSP, Mr. Lone Eagle did not receive his prescribed medications. An inmate who enters the SDSP while on a prescription for dilantin and whose medical records indicate a history of seizures should be continued on dilantin until receiving a full medical evaluation. Since being admitted, Mr. Lone Eagle has experienced three seizures 0907each one of them occurring at a time when he was denied his prescription medication.
f. In September, 1983 there were approximately 27 inmates on major tranquilizers at the SDSP. It is important for inmates on major tranquilizers to be regularly monitored by the treating psychiatrist, on a schedule ranging from several times a week to once every three months, depending on the stabilization of the individual. Proper monitoring procedures allow the psychiatrist to regulate the dosage of the particular tranquilizer given the inmate, and to detect possible harmful side effects from the particular tranquilizers, such as creating deficiencies in the immunity system. The SDSP has no written policies governing such a monitoring procedure, nor is there any indication that the SDSP maintains such a monitoring procedure.
4. Provisions for Special Diets
a. The SDSP provides one general food line and one special food line. The special diet line consists of low-salt or no-salt content foods, with a salt substitute available.
b. Although there are no records kept regarding the names and the number who are diabetic, it is estimated that there are approximately six diabetics at the SDSP. There is no special diet line provided for these diabetic inmates, nor are the various foods included in the general or special food lines labeled as to their nutritional or calorie content. These deficiencies are offset by the reasonable attempts made by the SDSP nurses to educate these diabetic inmates on a one-toone basis regarding their special dietetic needs. These inmates are also given literature by the nurses, explaining proper diabetic diet control. So long as diabetic inmates receive proper dietary counseling by trained staff, these inmates can make appropriate food selections from either the general or special diet line in order to properly control their diet.
c. The SDSP adequately provides for the special dietary needs of the inmates.
5. Protocols
a. Protocols, i.e., written statements of policy and procedure, enable the health care staff to appropriately respond to the health care needs of the prison inmates. Protocols assist the health care staff and the prison administration in setting in advance various policies and procedures to be followed in meeting the health care *1040 and needs of the inmates. Protocols also protect the inmates.

1041

b. At present there are no protocols at the SDSP relating to standing orders and telephone orders received by the nursing staff from the attending physicians; emergency care; infection control and reporting; treatment of hypertensive inmates; treatment and monitoring of inmates on psychotropic drugs or major tranquilizers; and the treatment and monitoring of inmates on INH medication.
c. In March, 1983, the SDSP adopted written policies relating to: general health care services; dental care; the use of inmate workers; the provision of medical, dental or orthopedic prostheses; infirmary care; notification of serious illness or death; employee use of institutional medical staff and facilities; the maintenance of medical records; a prohibition on medical experimentation upon inmates; provisions for informed consent; psychiatric transfers; utilization of pharmaceutical products; and optometric services. In general these protocols are inadequate and incomplete; they fail to describe in specifics the policies and procedures associated with each area of health care.
6. Medical Records
a. At present the medical records of inmates at the SDSP are inadequately organized. The records are not placed in an inmate's medical file in any particular order. Also, the information contained in an inmate's medical file inadequately identifies such areas as the subjective, objective, assessment, and planning data associated with the inmate's care and treatment while at the prison.
b. Aside from these deficiencies the medical records and files of the inmate at the SDSP are kept in a satisfactory manner.
7. Quality Control
There is at present no defined quality control program at the SDSP, particularly governing laboratory services.
8. Staff
a. There are an equivalent of three full-time registered nurses at the SDSP. This is an inadequate number of full-time registered nurses.
b. There are two physician sessions and one physician's assistant session per week for an average of two to three hours each at the SDSP. The attending physician or physician's assistant makes reasonable efforts to see every inmate scheduled for examination and/or treatment.
9. Financial Constraints on Medical and Dental Services
a. Inmate James Weinandt has a severely deformed left foot, which was operated on prior to his admission to the SDSP. After his admission to the SDSP and during a general physical examination by a SDSP physician, Weinandt was told, in reference to his physical deformity, that there was nothing that could be done for his foot. Mr. Weinandt was issued regular, hard-soled inmate shoes upon his admission to the SDSP. Weinandt suffered bruises and blisters on his left foot as a result of wearing these shoes; he requested of SDSP officials that he be issued tennis shoes in place of the other shoes. Weinandt was then informed by prison officials that he could have tennis shoes only if he could pay for them; Weinandt could not afford to pay for the tennis shoes. Weinandt was further informed that he could not leave his cell without wearing shoes. Approximately one week before Weinandt's trial testimony in June, 1983, he was informed that he would be issued a pair of tennis shoes.
b. Inmate Thomas S. Seidschlaw was referred to an outside dermatologist by a SDSP physician, for treatment of a severe acne condition. The dermatologist examined Seidschlaw and prescribed among other things the medication Acutane which is a drug used to treat severe *1041 acne problems. Seidschlaw's medical records indicate that the day following his visit to the dermatologist, the SDSP physician reviewed the dermatologist's recommendations for treatment

and issued the following order to the on-duty nurse: "Do not start Acutane at present [check with the] administration regarding cost (Acutane therapy as ordered would cost $100 per month) ...." The associate warden was notified that same day and, according to Seidschlaw's medical records, approximately four days later the warden and the associate warden ordered the permanent discontinuance of Acutane therapy on Seidschlaw. The outside dermatologist described his recommended treatment as "medically necessary" in the treatment of Seidschlaw's severe acne condition.
c. The expense associated with prescribing and monitoring the Acutane treatment for Seidschlaw, as recommended by the dermatologist, was a factor in discontinuing such treatment. If Seidschlaw had offered to pay for the Acutane treatment himself, it would have been prescribed for him.
d. It is inappropriate for a warden, an associate warden or any member of the prison administration staff to overrule a specialist's medical judgment on the sole ground that the recommended treatment is too expensive.
e. It is improper to deny an inmate medical treatment based solely on the cost of the treatment.
f. Inmate Earl Anderson has a skin condition consisting of lesions, blisters, eruptions and open sores. This condition covers most of his body and has been a recurring problem for many years. Anderson's condition recurred in late October, 1983, and he was given medication which caused facial swelling, extreme irritation to the problem areas of his skin, and an increase in the redness of the rash. Anderson subsequently requested an appointment with an outside dermatologist, but he was told that it could be three and one-half months before he could see a dermatologist. Therefore on his own initiative Anderson called a dermatologist direct and arranged for an appointment. Anderson was then told by correctional staff at the SDSP that he would lose his trustee status if he kept the appointment with the dermatologist. Anderson cancelled his appointment. Subsequently, Anderson consulted with counsel for the plaintiffs and shortly thereafter an appointment with an outside dermatologist was arranged. As a result of treatment by this dermatologist, Anderson's skin condition has generally been suppressed.
g. There are no written policies with respect to whether various medical procedures are elective or necessary in any given instance. A mandatory or necessary medical procedure leaves no discretion in the treating physician to deny or withhold treatment by such a procedure; elective procedures on the other hand leave to the treating physician relatively full discretion in determining whether, under all the circumstances of the particular case, to provide or to withhold treatment by way of such a procedure. On occasions the medical and dental staff at the SDSP have consulted the warden regarding whether in individual cases an elective or somewhat doubtful elective treatment or procedure should be performed in light of the expense associated with such a treatment or procedure. The SDSP has failed to establish clear written guidelines relating to cost and elective procedures.
h. In the absence of protocols distinguishing elective from necessary medical services, the decision whether a particular procedure or treatment is elective or medically necessary is one properly left to the treating physician.

H. CONDITIONS OF CONFINEMENT0907 PSYCHIATRIC AND PSYCHOLOGICAL CARE

1042

1. Staff
a. At present there is one psychiatrist at the SDSP who performs his work on a *1042 volunteer basis. The psychiatrist visits the institution one day each week for approximately five hours. One visit per month is typically devoted primarily to performing inmate evaluations for the parole board.

1043

b. The psychiatrist's direct involvement with inmates is largely devoted to identifying and assessing a particular inmate's needs and treatability, prescribing medication and occasionally arranging the transfer of certain inmates to the Human Services Center in Yankton. The actual psychiatric treatment provided by the psychiatrist to the inmate patients is normally limited to prescribing medications, brief counseling, conducting intermittent follow-up examinations until the patient is stabilized, and referring patients to other personnel within the SDSP or to other persons or institutions outside the SDSP. At the time of trial in June, 1983, the psychiatrist was engaged in individual psychiatric therapy, on a continuing basis, with two inmates. The psychiatrist visited one of these inmates approximately five times in five months; the other inmate had been visited approximately three times in six weeks. It is not possible under present circumstances for the psychiatrist to conduct long-term psychotherapy on individual inmates experiencing nonemergency mental problems, i.e., inmates having a difficult time adjusting to the prison environment.
c. The SDSP employs one full-time psychologist.
d. The psychologist's first priority and the largest single part of his work consists of performing a series of psychological tests and evaluations on inmates upon their initial entry into the SDSP. The psychologist does not see any inmate on a regular counseling basis. The SDSP psychologist does some counseling for inmates with mental problems of a less severe nature; he typically spends approximately one-half hour to forty-five minutes a day (the equivalent of approximately one or two interviews per day or eight to ten interviews per week) counseling inmates.
e. The SDSP employs seven full-time counselors and the equivalent of two and one-half full-time drug and alcohol counselors.
f. It is important for a prison institution to have a sufficient counseling staff. Adequate counseling staff reduces the number of instances in which individuals in the general population deteriorate both physically and mentally, thus reducing the number of inmates who must be referred to a mental hospital for psychiatric treatment. Adequate counseling services aid in the treatment and prevention of mental health problems among the inmate population by enabling qualified personnel to intervene at an early stage in the diagnosis, care and treatment of these problems. Adequate counseling services also assist, for example, in the continued monitoring of inmates who have returned to the general population after having been removed from the general population for psychiatric treatment. At present, the counseling staff at the SDSP does not have time to adequately perform psychotherapy or psychological treatment on inmates.
2. Demand for Mental Health Services
a. There are approximately 20 to 25 psychotic inmates at the SDSP. The SDSP psychologist encounters inmates during the intake evaluation and assessment process whose psychological problems are so severe that these inmates will potentially experience or have experienced and will continue to experience a deterioration in their physical health. There are occasions at the SDSP when inmates experiencing a deterioration in their physical health due in part to mental health problems have not been referred to or treated by qualified personnel, so that the physical health of these inmates continues to deteriorate.
b. There are inmates at the SDSP who have serious psychiatric needs which are not being addressed by qualified personnel.
*1043 c. It is estimated by the psychiatrist at the SDSP that at least ninety-five per cent of inmates at the SDSP have personality disorders.
d. An inmate's mental condition need not present a risk of harm to himself or to others before psychiatric intervention by qualified personnel is required. Psychiatric intervention is clearly necessary in those instances where an inmate is contemplating suicide or where he exhibits

1044

psychiatric symptoms in such a degree that the inmate presents a risk of harm to himself or to others. There are also instances in which psychiatric intervention is necessary where an inmate exhibits psychiatric symptoms short of the contemplation of suicide or the risk of harm to himself or to others. An inmate experiencing significant personality distress in the form of depression or psychotic symptoms to the degree that he has lost contact with reality not only requires but is amenable to psychiatric intervention and treatment.
e. Upon inmate Charles P. Lone Eagle's admission to the SDSP it was recommended (on the basis of a report by an outside psychiatrist who examined Mr. Lone Eagle) by the judge who sentenced him that the SDSP consider giving Mr. Lone Eagle psychiatric treatment. Mr. Lone Eagle met with the volunteer psychiatrist at the SDSP on three or four occasions; the average length of these meetings was three or four minutes. Mr. Lone Eagle has not been seen by any other psychiatrists since his admission to the SDSP. Mr. Lone Eagle has received no group or individual psychiatric therapy (other than his brief encounters with the psychiatrist) since his admission to the SDSP, other than through Alcoholics Anonymous meetings. There is no indication that Mr. Lone Eagle ever received a comprehensive psychiatric examination and assessment (including a full mental status examination and a review of all pertinent personal, family, work and education background and history) to determine whether intensive psychiatric treatment is required.
f. It is not uncommon for inmates to attempt to interfere with or to obstruct a psychiatric inmate's medication treatment plan. In order to minimize the potential for such interference or obstruction, an institution needs adequate staffing to maintain a sufficient level of contact with the inmatepatient.
g. One inmate who eventually committed suicide in 1983 and who, prior to this time, was taking medication pursuant to a treatment plan devised by his psychiatrist was persuaded by two other inmates to discontinue taking his medication. This inmate-patient, so long as he continued his medication, exhibited a relatively stable mental health condition; however, once the patient discontinued his medication his mental condition destabilized to the point that he required further psychiatric care and treatment.
3. Proper Treatment of Mental Illness Among Inmates at the SDSP
a. The development of a plan for the appropriate treatment of mental illness among inmates at an institution such as the SDSP requires a detailed assessment of the needed levels of care.
b. There are three levels of care which are essential in providing an adequate system of psychiatric and psychological care. Absent such a system, the probability is strong that inmates requiring psychiatric and psychological treatment will not be cared for adequately and will experience unnecessary mental and/or physical deterioration in the general inmate population.
c. The first necessary level of care consists of in-patient hospitalization care to treat acutely psychotic individuals, individuals experiencing suicidal tendencies, and those other individuals most significantly impaired by psychiatric illness.
d. The second necessary level of care consists of intermediate care and treatment for those individuals who have been stabilized by medication and supportive psychotherapy but who cannot return immediately to the general inmate population. *1044 This level of care is designed to provide a transition for inmates coming from an inpatient psychiatric hospital environment back into the general inmate population. An intermediate level care facility would provide the inmates an environment less intensive than the first level psychiatric hospital, but more supportive than that provided by the general population facility. An intermediate level care facility requires appropriate nursing staff, support staff, and psychiatric and psychological staff.
e. The third necessary level of care consists of out-patient care for inmate-patients who have received psychiatric treatment and who have returned to the general population so that these

inmates can have prescribed medications monitored and can receive supportive group or individual psychotherapy as indicated.
f. The mental health needs of inmates at the SDSP require that the SDSP maintain an acute (first level) care and an intermediate (second level) care facility equipped with approximately twenty to twenty-five beds. Of these number, approximately eight to ten beds would be devoted to psychiatric care0907requiring twenty-four hour nursing coverage and adequate support staff. The remaining beds would be devoted to intermediate care.
g. Staffing for this facility would require a full-time psychiatrist, two full-time psychologists, approximately six full-time equivalent nurses in order to provide twenty-four coverage, at least four full-time equivalent counselors or psychiatric social workers to provide support to the psychiatric and psychology staff, and the necessary correctional staff to provide twenty-four hour security over the facility.
h. The mental health needs of inmates at the SDSP also require that the SDSP provide outpatient (third level) care.
i. In addition to the staff necessary to provide acute and intermediate care, adequate outpatient care would require approximately two days per week of on-site psychiatric coverage, a full-time psychologist whose work is devoted exclusively to the treatment component of mental health care, and increased counseling staff. The full-time psychologist position would be in addition to the present full-time psychologist who performs primarily administrative functions involving the evaluation and assessment of newly admitted inmates. While it is preferable that every counselor have a master's degree, a counselor holding a bachelor's degree accompanied by sufficient experience and appropriate supervision is acceptable.

I. CONDITIONS OF CONFINEMENT 0907 INTAKE AREA

1045

a. Initial medical screening of newly admitted inmates at the SDSP is conducted by corrections officers. There are no formal procedures, guidelines or protocols regarding this initial screening process.
b. There is no training program at the SDSP to properly instruct corrections officers in how to conduct initial medical examinations and assessments of newly admitted inmates.
c. It is good medical practice for an institution such as the SDSP to have protocols relating to the immediate medical screening of newly admitted inmates.
d. A full medical history and physical examination of newly admitted inmates is taken some time within the week that these inmates arrive at the SDSP. The current medical policies of the SDSP provide only for a physical examination of new inmates within fourteen days of admission. Depending upon the date and time of his initial entry to the SDSP, an inmate may spend from eight to fourteen days in the intake area.
e. Although on weekdays inmates in the intake area are typically involved in orientation and classification activities from five to six hours per day, the amount of out-of-cell time afforded these inmates on weekend days is limited to mealtimes and time for attending church. These inmates are denied altogether time *1045 out of their cells for purposes of recreation.
f. The psychological examination and screening of newly admitted inmates at the SDSP is adequate.
g. Aside from the orientation and classification activities and the psychological screening programs conducted for newly admitted inmates, the operation of the intake area at the SDSP constitutes a

serious deficiency which has no correctional justification and which could be corrected at no major cost.
h. The SDSP administration has taken reasonable efforts in attempting to acclimate newly admitted inmates, through orientation, classification and counseling programs, to the SDSP prison environment.
J. ACCESS TO THE COURTS

1046

1. Inmates at the SDSP
a. The contents of the law library at the SDSP conform to the requirements of this court in the Agreement In Settlement And Judgment Confirming Settlement entered in Crowe v. Erickson, No. 72-4101, slip op. at 11 and Exh. A (D.S.D. May 4, 1977). (Nichol, C.J., presiding). From approximately August, 1982 to January, 1983, the SDSP temporarily cancelled all subscriptions for the pocket parts and supplements for volumes contained in the law library 0907due to an inability to obtain sufficient funding from the state to continue these subscriptions.
b. In addition to the materials contained in the library, the inmates may obtain xerox copies of other documents or cases, up to a maximum of twenty-five pages, from the University of South Dakota law library.
c. There are inmates who have been hired to work in the SDSP law library who have had no previous training or experience in legal research or in the practice of law. There is no paid, fulltime, non-inmate staff employed in the law library.
d. At the time that then-inmate Roger Flittie (one of the original named representatives of the plaintiff class in the present action) was hired as an inmate law clerk, his only law-related training consisted of a twelve week, four credit community college course in criminal law. Subsequent to his appointment, Flittie sat through another twelve week course in criminal law, and received four credit hours in a community college course in family law.
e. At the time when Mr. Huth, another inmate law clerk, began his work in the SDSP law library, he had no paralegal training. Subsequently, Huth paid the expenses for a paralegal course which he attended outside the SDSP for a time and then completed inside the SDSP by correspondence. This training did not include instruction in methods of legal research.
f. As law clerks in the SDSP law library, Flittie and Huth assisted other inmates in legal research and in preparing and filing appeals of their convictions, post-conviction motions and other matters, and a variety of civil litigation matters, including civil rights actions under 42 U.S.C. § 1983. Huth also assisted other inmates in the filing of institutional grievances against correctional officers and other personnel at the SDSP.
g. Under the consent decree entered into by the parties in Crowe v. Erickson, supra, this court ordered that: "The state will provide periodic workshops to train selected inmates in the fundamentals of legal research." The parties to the decree further agreed that this provision among others "constituted the minimum responsibility [of the state toward the inmates at the SDSP] required under law." Although the SDSP has periodically provided certain inmates with law courses conducted by various outside attorneys, this undertaking fails to satisfy the minimum requirements of Crowe v. Erickson; the SDSP has failed to train selected inmates, especially inmates selected as law clerks in the law library, in the fundamentals of legal research. Inmates at the SDSP are denied meaningful access to the courts if they must *1046 depend upon inmate workers who are inadequately trained in the fundamentals of legal research to assist them in legal matters.

h. The inmate law clerks determine the order in which inmate requests for access to the law library will be granted. The SDSP normally limits the use of the law library to no more than four inmates at any one time. The library is open from approximately 7:30 to 11:30 a.m. and approximately 12:25 to 3:40 p.m. five days per week.
i. During the time when Flittie and Huth served as law clerks, they were either prohibited or strongly discouraged by correctional officers at the SDSP from assisting other inmates in civil rights litigation against the State of South Dakota or SDSP officials.
j. Inmates proceeding in federal court on their own or with the assistance of another inmate who is inadequately trained in the law are generally a burden on the court 0907due to their inability to properly prepare and file legal documents.
2. Inmates at the Women's Correctional Facility
a. There is no law library at the Women's Correctional Facility in Yankton, South Dakota. Inmates at the facility have access to a set of state statutes.
b. There is no written policy at the Women's Correctional Facility regarding legal access. The Facility currently practices an informal policy which affords any inmate who first requests it access to the University of South Dakota law library approximately thirty miles away. Before transporting an inmate to this library, the warden of the facility attempts to solicit the assistance of either a law student or a faculty member at the school. A notice describing the procedure by which inmates at the Women's Correctional Facility will be transported to the University of South Dakota law library and given assistance if possible is posted on the bulletin board at the Facility. This notice constitutes the primary, if not the only, source of information available to inmates at the Facility regarding legal access.
c. The Women's Correctional Facility does not have professionally trained staff members to assist inmates with their legal problems. An outside legal services program is available to assist these inmates on civil matters only.
d. The average educational background of inmates at the Women's Correctional Facility is a tenth grade education. Approximately ninety per cent of these inmates are indigent.
III. CONCLUSIONS OF LAW
A. Scope of Federal Judicial Involvement
At the outset, this Court recognizes that "[t]raditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration." Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). These problems are "complex and intractable, ... they are not readily susceptible of resolution by [judicial] decree. Most [prisons] require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Id. at 405, 94 S.Ct. at 1807.
However, this court is also mindful that "[c]ourts certainly have a responsibility to scrutinize claims of cruel and unusual confinement.... When conditions of confinement amount to cruel and unusual punishment, `federal courts will discharge their duty to protect constitutional rights.'" Rhodes v. Chapman, 452 U.S. 337, 352, 101 S.Ct. 2392, 2402, 69 L.Ed.2d 59 (1981) (citing Procunier, 416 U.S. at 405-06, 94 S.Ct. at 1807-08).

B. Cruel and Unusual Punishment Under the Eighth Amendment: The Constitutional Standard

In Rhodes v. Chapman, 452 U.S. at 344-45, 101 S.Ct. at 2397-98, the Supreme Court confronted for the first time 1047 the *1047 contention by inmates that the conditions of confinement at a particular state prison amounted to cruel
and unusual punishment in violation of the eighth and fourteenth amendments.[3] The constitutional standards established in Rhodes guide this court's decision. The Court there explained:

No static "test" can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 [78 S.Ct. 590, 598, 2 L.Ed.2d 630] (1958) (plurality opinion). The Court has held, however, that "Eighth Amendment judgments should neither be or appear to be merely the subjective views" of judges. To be sure, "the Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability" of a given punishment. But such "`judgment[s] should be informed by objective factors to the maximum possible extent.'"

Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (citations omitted).

Conditions of confinement which "involve the unnecessary and wanton infliction of pain," Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976) (joint opinion), or are "grossly disproportionate to the severity of the crime warranting imprisonment" are violative of the eighth amendment. Rhodes, 452 U.S. at 346-47, 101 S.Ct. at 2398-2400. Included in prison conditions that involve the unnecessary and wanton infliction of pain are those that are "totally without penological justification." Gregg v. Georgia, 428 U.S. at 183, 96 S.Ct. at 2929; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976), quoted in Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399. "[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.

Both the plaintiff class and the defendants agree that Rhodes counsels this court to examine the totality of conditions of confinement in order to determine whether the plaintiff class has stated an eighth amendment violation.[4] The Court in Rhodes declared that "conditions ... alone or in combination" may constitute cruel and unusual punishment. Id.; see 452 U.S. at 363 n. 10, 101 S.Ct. at 2407 n. 10 (Brennan, J., concurring) ("The Court today adopts the totality-of-the-circumstances test.") Justice Brennan in a concurring opinion explained:

1048

It is important to recognize that various deficiencies in prison conditions "must be considered together." Holt v. Sarver, 309 F.Supp. [362, 373 (E.D.Ark.1970), aff'd 442 F.2d 304 (8th Cir.1971) [5]]. The individual conditions "exist in combination; each affects the other; and taken together they [may] have a cumulative impact on the inmates." Ibid. Thus, a court considering an Eighth Amendment challenge to the conditions of confinement must examine the totality of the circumstances. Even if no single condition of confinement would be unconstitutional *1048 in itself, "exposure to the cumulative effect of prison conditions may subject inmates to cruel and unusual punishment." Laaman v. Helgemoe, 437 F.Supp. 269, 322-[23 (D.N.H.1977).].

Rhodes, 452 U.S. at 362-63, 101 S.Ct. at 2407 (Brennan, J., concurring).

In order for this court to make a judgment based on "objective factors to the maximum possible extent" and on "contemporary standards of decency", it is necessary to consult pertinent expert opinions in the form of sworn testimony and exhibits received in evidence, relevant case law regarding particular conditions of confinement in a factually similar setting, and various nationally recognized correctional standards relating to particular conditions. In this regard the court also draws from the conclusions and recommendations contained in the SDSP Study. While the opinions of experts as well as the correctional standards promulgated by certain professional

organizations, such as the American Correctional Association, the American Public Health Association and the American Medical Association, do not establish per se the constitutional minimum standards of decency, they do establish recommended goals which are instructive on certain questions. See Rhodes, 452 U.S. at 348-49 n. 13, 101 S.Ct. at 2400 n. 13; Ramos v. Lamm, 639 F.2d 559, 567 n. 10 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981).
C. Legal Effect of Changed Conditions and Practices Occurring in the Midst of or in Anticipation of Trial.
This court is aware that with respect to several of the allegedly unconstitutional conditions and practices of confinement at the SDSP the defendants have instituted in the midst of or in anticipation of trial changes or improvements, or have presented evidence of planned, future changes or improvements. "It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption." United States v. Oregon State Medical Society, 343 U.S. 326, 333, 72 S.Ct. 690, 696, 96 L.Ed. 978 (1952). As a general proposition, the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.... The defendant is free to return to his old ways." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (footnote omitted). Although defendants' efforts to ameliorate or correct in the midst of or in anticipation of trial various alleged deficiencies at the SDSP are commendable, they do not deprive this court of the power to order injunctive and/or declaratory relief, where otherwise proper, unless: "(1) it can be said with assurance that `there is no reasonable expectation' that the alleged violations[s] will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. at 897). Defendants bear a "heavy" burden of showing that both of these conditions have been satisfied in order to render moot any allegedly deficient conditions or practices of confinement. County of Los Angeles, 440 U.S. at 631, 99 S.Ct. at 1383. One way, of course, to meet this burden is by consent or stipulation of the parties which is entered in the record and so decreed by the court.
D. Application of the Constitutional Standard to the Findings
1. General
At the core of the eighth amendment lies the state's obligation to provide inmates with reasonably adequate shelter, fire protection provisions, food, sanitation, ventilation, medical care, dental care and mental health care, hygienic materials and utilities, such as hot and cold water, light, heat and plumbing. See Ramos v. Lamm, 639 1049 F.2d at 568; Newman v. Alabama, 559 *1049 F.2d 283, 291 (5th Cir.1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Grubbs v. Bradley, 552 F.Supp. 1052, 1122 (M.D.Tenn.1982). These are the "basic necessities of civilized life" which are wholly controlled by prison administration and staff; inmates must necessarily rely on administration and staff to ensure that these basic needs are met. Grubbs v. Bradley, 552 F.Supp. at 1122; Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976).
2. Environmental Conditions0907Cell Halls
a. Fire Safety
The South Dakota Penitentiary Study ("SDSP Study") supports each court finding with respect to fire safety in the SDSP cell halls. See SDSP Study at 88, Appendix A at 41-46, 49 (unnumbered pages of appendix numbered in sequence according to "Evaluation Summary", SDSP Study at 90-91). In adopting such findings, the court minimizes its intrusion into the details of prison administration with respect to fire safety, allowing South Dakota's

own state-sponsored published standards to govern. Cf. Williams v. Edwards, 547 F.2d 1206, 1213 (5th Cir.1977) (use in part of state fire and health codes to establish eighth amendment violation minimizes intrusion by federal court into details of prison administration).
b. Ventilation and Heating System
The SDSP Study concluded that "[a]ll housing areas are deficient in air movement." Appendix A at 3. The SDSP Study also disapproved the inadequate ventilation in the West Hall lower level shower area, see id. at 1, as well as the generally obsolete heating system servicing all three cell halls: "The existing heating system is inefficient and the facility design generally does not allow for proper distribution of tempered air. This is a result of both obsolescence in [the] original design of various sections [of the SDSP] as well as the patch-work accumulation of [heating] components." Id. at 47; see also id. at 48, 49.
On several occasions, federal courts have held ventilation and heating deficiencies similar to those existing at the SDSP violative of the eighth amendment. See Ramos v. Lamm, 639 F.2d at 569-70 (inadequate ventilation especially in cell and shower areas, coupled with deficient heating system and other unsanitary conditions constitutes breach of "minimal shelter and sanitation standards contribut[ing] immeasurably in making the main living areas unfit for human habitation."); French v. Owens, 538 F.Supp. 910, 913, 926 (S.D.Ind.1982); Hutchings v. Corum, 501 F.Supp. 1276 at 1282, 1293 (W.D.Mo.1980) (constitutionally inadequate ventilation system); Palmigiano v. Garrahy, 443 F.Supp. 956, 962, 979, 987 (D.R.I.1977), remanded on other grounds, 599 F.2d 17 (1st Cir.1979); Pugh v. Locke, 406 F.Supp. 318, 323, 329, 334 (M.D.Ala.1976), aff'd in relevant part and remanded sub nom. Newman v. State of Alabama, 559 F.2d 283 (5th Cir.1977), rev'd in part on other grounds, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam) cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978).
c. Overhead Lighting and Electrical Wiring
The SDSP Study concluded that: "An area of deficiency [in the three cell halls] is the obsolescence [sic] of the cell block construction and the lack of adequate lighting in the cells. This inadequacy goes further to present a very real safety hazard, with inadequate and exposed wiring and an array of extension cords." Appendix A at 5; see also id. at 49 (provisions for electricity in cell blocks are generally obsolete); id. at 39 (in large part, electrical wiring is substandard and nonconforming to Underwriters Electrical Code).
Several courts have also condemned similar lighting and electrical wiring deficiencies as violative of the eighth amendment. See Grubbs v. Bradley, 552 F.Supp. at 1052, 1072-74, 1098-99, 1126 (inadequate lighting and 1050 electrical wiring); French v. *1050 Owens, 538 F.Supp. at 913-14, 926 (inadequate in-cell lighting); Ramos v. Lamm, 485 F.Supp. 122 at 135, 155 (D.Colo.1979) (same); Palmigiano v. Garrahy, 443 F.Supp. at 961, 979-80, 987 (same); Pugh v. Locke, 406 F.Supp. at 323, 329, 334 (inadequate lighting and electrical wiring).
d. Hot Water and Water Temperature Control System
The SDSP Study noted the absence of running hot water in the cells in Federal Hall. See Appendix A at 19. Basic personal hygiene requires the availability of hot running water, and for this reason, several courts have condemned the absence of hot water as violative of the eighth amendment. See Grubbs v. Bradley, 552 F.Supp. at 1100, 1126, 1132; French v. Owens, 538 F.Supp. at 925, 926; Lightfoot v. Walker, 486 F.Supp. 504, 510, 525, 528 (S.D.Ill. 1980); Ramos v. Lamm, 485 F.Supp. at 135, 155; Battle v. Anderson, 447 F.Supp. 516, 523, 524-25 (E.D.Okla.), aff'd, 564 F.2d 388 (10th Cir.1977); Palmigiano v. Garrahy, 443 F.Supp. at 961, 979, 987; Pugh v. Locke, 406 F.Supp. at 323, 332. The provision for delivery of hot water once each day to inmates in Federal Hall does not rectify this fundamental deficiency.
Plaintiffs complain of the potential for burning and scalding due to the extremely high temperatures of running hot water in individual wash basins in cells in East Hall. Although the cell wash basins in East and West Halls lack an automatic mixing valve to deliver running water at reasonably comfortable temperatures, the court concludes

that, so long as these basins are equipped with stoppers or plugs in order to allow inmates to manually blend hot and cold water, these deficiencies are adequately rectified.
3. Environmental Conditions0907Kitchen and Food Storage Areas
The SDSP Study supports several of the court's findings regarding environmental conditions in the kitchen and food storage areas. With respect to the provisions at the SDSP for proper food storage, in order to preserve foods and prevent waste, spoilage and the spread of food-borne diseases, the Study concluded:
This is an area in which the existing physical plant is grossly deficient. The kitchen area, remodeled in 1944, has no walk-in freezer, as an institution of this size should. Also, the basement located food storage area is inadequate in every respect including the ability to be secured against pilferage. Use of the former slaughterhouse for food supply warehousing helps to ameliorate this problem but creates a separate logistic problem in the frequent movement of supplies which it necessitates.
Appendix A at 30. See also id. at 28 (ventilation in kitchen area is "makeshift and hazardous;" inmates regularly circulate through kitchen; "[k]itchen elevator is outdated and unsafe;" and kitchen hoods lack an ancillary fire protection system); id. at 31 (food storage provisions in food preparation area are "[v]ery poor ... both in quality and in basement location"). These conclusions were substantiated by expert testimony at trial.
Several courts have condemned as violative of the eighth amendment similar environmental conditions in the kitchen and food storage areas. See Ramos v. Lamm, 639 F.2d at 570-72 ("old, outdated" kitchen and food storage area, inadequate kitchen ventilation, active rodent and insect infestation, improper food storage, noncompliance with state health code, along with other unsanitary conditions and practices in food service areas has "substantial and immediate detrimental impact" on health of inmates in maximum security unit of Colorado State Penitentiary); Grubbs v. Bradley, 552 F.Supp. at 1074-75, 1089, 1099-1100, 1128, 1132 (improper food storage, active rodent infestation, "old, dirty and uncleanable" utensils, leakage of overhead plumbing line onto stored food box, generally dirty refrigerator, among other unsanitary conditions and practices pose "substantial risk" to 1051 health of inmates in three Tennessee prisons); French v. Owens, 538 F.Supp. at 921-22; Lightfoot v. Walker, 486 *1051 F.Supp. at 512-13, 524, 525, 528; Battle v. Anderson, 447 F.Supp. at 522, 523, 525; Palmigiano v. Garrahy, 443 F.Supp. at 962-63, 979-80, 987; Laaman v. Helgemoe, 437 F.Supp. at 278-79, 323, 326; Pugh v. Locke, 406 F.Supp. at 323, 329, 334. See also Capps v. Atiyeh, 559 F.Supp. 894, 914, 915 (D.Ore.1982) (milk pasteurization process, due to non-functioning thermometer, alone constitutes cruel and unusual punishment).
4. Environmental Conditions 0907 Shops and Vocational Programs
Inadequate ventilation in regard to cell areas has been condemned by several courts as violative of the eighth amendment under the totality-of-conditions standard. See supra at p. 1049. The court likewise recognizes the potentially harmful health effects of inadequate ventilation in the welding and furniture upholstering shops at the SDSP, especially since toxic fumes are often present in these shops. In French v. Owens, 538 F.Supp. at 921, 926, the court held that inadequate ventilation in the furniture shop and in the paint spray booths at an Indiana prison, along with the use by inmates of toxic glues without adequate ventilation, respirators or gloves, contributed to a finding of cruel and unusual punishment under the totality-of-conditions test.
The court concludes that the findings of fact with respect to environmental conditions in the SDSP shops and vocational programs demonstrate serious deficiencies presenting health hazards to inmates employed in these areas.
5. Conditions of Confinement 0907 Double-Celling

a. General Inmate Population
In Rhodes, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59, the Supreme Court held that double-celling does not constitute a per se violation of the eighth amendment. The Court overturned a lower court injunction prohibiting, except as a temporary measure, double-celling at an Ohio prison. A careful review of the totality of conditions of confinement present in Rhodes, as compared with the totality of conditions existing at the SDSP leads this court to distinguish Rhodes on its facts.
The Ohio prison scrutinized in Rhodes was described by the district court as "unquestionably a top-flight, firstclass facility." 434 F.Supp. 1007, 1009 (S.D.Ohio 1977). It was built in the early 1970's and the cells, which each measured approximately 63 square feet, were described as "exceptionally modern and functional." 452 U.S. at 349 n. 13, 101 S.Ct. at 2400 n. 13. The cells were adequately ventilated and temperatures throughout the cellblock were "well-controlled". Id. at 342, 101 S.Ct. at 2397. A heating and air circulation vent was located near the ceiling of each cell and a majority of cells had a window that inmates could open or close. Id. at 341, 101 S.Ct. at 2396. Each cell contained a sink with hot and cold running water and each cell was equipped with a builtin radio. Id. Located adjacent to each cell block was a dayroom furnished with a wall-mounted television, card tables, and chairs; the day-room was open to inmates each day between 6:30 a.m. and 9:30 p.m. Id. Of those inmates double-celled (approximately 1400 out of a total inmate population of 2300), about 75 percent had the opportunity "of spending much of their waking hours outside their cells, in the dayrooms, school, workshops, library, visits, meals, or showers." Id. at 341, 101 S.Ct. at 2396. Job and educational opportunities diminished only marginally as a result of double-celling. Id. at 348, 101 S.Ct. at 2400. The kitchen and food services were adequate, and there was no evidence of systematic failures to meet inmate medical or dental needs. Id. at 342, 101 S.Ct. at 2396-97. Amidst these "generally favorable findings", Id. at 343, 101 S.Ct. at 2397, the Supreme Court held that "double-celling under these circumstances" did not constitute cruel and unusual punishment in violation of the eighth amendment. Id. at 348, 101 S.Ct. at 2400.
1052 This court's findings of fact detail the extent of double-celling at the SDSP and its *1052 impact on all programs and services, as well as on the physical plant. The court is convinced that these findings taken together with the other findings respecting various conditions of confinement at the SDSP distinguish the instant case from Rhodes.
In contrast to the "exceptionally modern and functional" facility under review in Rhodes, the SDSP is generally old and nonfunctional; inmates housed in individual cells in West, East and Federal Halls are subjected to numerous substandard living conditions. In this regard, the SDSP Study, at 95, concluded: "Existing cell blocks are totally unsatisfactory for housing inmates from the individual and combined application of numerous minimum standards for correctional facilities."
This court's findings with respect to various conditions of confinement at the SDSP run contrary to the "generally favorable findings" cited in Rhodes: the ventilation system, especially regarding West Hall where the majority of double-celling exists, is inadequate; the heating system in all three cell halls is generally inadequate and fails to adequately control air temperatures throughout each cell hall; several inmates are double-celled in Federal Hall where there is no running hot water; there are no lounges or dayrooms available to ameliorate the effects of double-celling (see SDSP Study, Appendix A at 7, 12); the Warden at the SDSP testified that double-celling at the SDSP has placed undue burdens on various services, programs and maintenance activities with respect to the physical plant; the SDSP is grossly understaffed; overcrowding at the SDSP has a negative impact on the availability of jobs for a significant number of inmates; several unsanitary conditions exist in the kitchen and food storage areas; and system-wide deficiencies are present in the areas of physical and mental health care. These findings, despite other more favorable findings such as the generally adequate level of sanitation throughout the SDSP, the generally low tension among inmates and among inmates and staff, and the sincere efforts made by the SDSP administration and staff to maintain a healthful prison environment, constitute for the most part structural deficiencies of a permanent nature in numerous services, programs and in the physical plant at the SDSP. Many of these findings relating to structural deficiencies at the SDSP spring directly from the State-

commissioned SDSP Study. The record in this case supports the conclusion that overcrowding, as evidenced by the extent of double-celling, substantially contributes to the substandard living conditions at the SDSP.
Several post-Rhodes decisions have held the practice of double-celling, when considered among the totality of conditions of confinement similar to those prevailing at the SDSP, unconstitutional under the eighth amendment.
See Grubbs v. Bradley, 552 F.Supp. at 1070-87, 1110-13, 1125-26, 1131 (extensive double-celling in old, poorlymaintained Tennessee prison units, combined with inadequate ventilation, lighting, fire safety provisions, job and educational opportunities, kitchen and food storage facilities, physical and mental health care, and other deficient conditions); French v. Owens, 538 F.Supp. at 924-26, 927 (distinguishing Rhodes; double-celling in 59 year old Indiana prison, combined with inadequate ventilation and heating system, deficient electric wiring, unsanitary kitchen and food areas, inadequate fire protection provisions, inadequate job and vocational opportunities, no running hot water in cell basins, absence of dayrooms, inadequate medical care, and other conditions); Cf. Hendrix v. Faulkner, 525 F.Supp. 435, 463-510, 525-26 (N.D.Ind.1981), aff'd in relevant part sub. nom. Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (although double-celling not practiced, excessive in-cell time in cells ranging in size from 54 to 59.2 square feet in Indiana state prison over 100 years old, combined with otherwise constitutionally adequate conditions of confinement, constituted unconstitutionally overcrowded conditions). But see Smith v. Fairman, 690 F.2d 122 (7th 1053 Cir.1982), cert. denied, *1053 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983) (double-celling approximately 56 percent of the general inmate population at an Illinois prison in cells ranging in size from roughly 55 to 65 square feet 0907 combined with totality of other conditions of confinement 0907 did not constitute eighth amendment violation).
In Burks v. Walsh, 461 F.Supp. 454 (W.D.Mo.1978), aff'd sub. nom. Burks v. Teasdale, 603 F.2d 59 (8th Cir.1979), a pre-Rhodes decision, the court held inter alia, that double-celling inmates in 65 square foot cells (Housing Unit 3 constructed in 1865), combined with other conditions of confinement at the Missouri State Penitentiary, did not violate the eighth amendment. 461 F.Supp. at 487-88. This court distinguishes the holding in Burks on two grounds. First, although basing its decision on the totality-of-conditions standard, the Burks court limited its analysis only to inmate allegations concerning "over-crowding and unsanitary conditions", deferring other issues, such as claims of inadequate medical care, for a separate trial. 461 F.Supp. at 456 & n. 1. Second, although the Eighth Circuit affirmed in general the district court, the appeals court did so "[s]ubject to [certain] observations, requirements and possible caveats." Burks v. Teasdale, 603 F.2d at 63. In this regard, the Eighth Circuit made the following observation with respect to the practice of double-celling inmates in Housing Unit 3:
We are concerned with the action of the district court in permitting double-celling to continue permanently or indefinitely in Housing Unit 3. We do not hold categorically that putting two men in a cell with a floor space no larger than 65 square feet either is or is not constitutionally permissible ... But, we think that it must be recognized that putting two men in such a small cell and keeping them there for long periods of time can produce intolerable tensions and will almost inevitably cause trouble not only to the inmates but also prison personnel. As stated, the district court has retained jurisdiction of the case; we think that the district judge should keep a close watch on the situation in Housing Unit 3, and we think that whether constitutionally required or not, doublecelling in that unit ought to be eliminated when practicable.
Id.
b. Inmates Housed in the Intake and Protective Custody Areas
The practice of double-celling newly admitted inmates, taken together with other conditions of their confinement at the SDSP (see Findings of Fact, supra, II. E.5. & I.), particularly the fact that qualified medical staff do not timely screen these inmates for potentially dangerous communicable diseases (see Conclusions of Law, infra, III. D.7.d.), constitutes a serious deficiency. Cf. Lareau v. Manson, 651 F.2d 96, 107-08 (2d Cir.1981) (confining up to eight new arrivals in double-bunked dormitory and forcing some of them to sleep on mattresses placed on the floor 0907 combined with other conditions, especially inadequate medical screening 0907 constitutes cruel and unusual punishment in violation of eighth amendment).

At their own request, protective custody inmates at the SDSP are removed from the general population and confined to a group of cells located in East Hall. As such, these inmates are subject to the same general conditions of confinement as are inmates in the general population, i.e., environmental conditions, health care policies and practices, and general effects of double-celling. Inmates housed in protective custody, despite their having chosen this confinement status, retain their eighth amendment rights.

1054

The fact that these inmates for the most part requested placement in protective custody does not change the status of their conditions of incarceration. It is obvious that those who request protective custody must exercise the classic Hobson's choice. They opt between the lesser of two evils, and in no way can those inmates requesting protective custody be characterized as having exercised voluntary relinquishment of a *1054 known right to be free from incarceration under conditions which are intolerable and a clear violation of Eighth Amendment standards.

M.C.I. Concord Advisory Board v. Hall, 447 F.Supp. 398, 401 (D.Mass.1978).

The practice of double-celling protective custody inmates, considered along with other conditions of their confinement at the SDSP, particularly the insufficient out-of-cell time available (see Findings of Fact, supra, II.F.), constitutes a deficiency of constitutional dimension. In Campbell v. Cauthron, 623 F.2d 503, 507 (8th Cir.1980), the Eighth Circuit recognized that the duration of confinement affects whether the conditions of incarceration are constitutionally adequate. Even acknowledging that "most inmates are confined in the jail for relatively short periods of time," the court had "no trouble" in holding that overcrowded conditions which accorded each inmate approximately eighteen to twenty-six square feet of dormitory space, coupled with only a few hours each week of out-of-cell time, constituted cruel and unusual punishment. Id. at 506.

Several courts have held unconstitutional the practice of double-celling protective custody inmates under conditions similar to those existing at the SDSP. See French v. Owens, 538 F.Supp. at 916, 924, 926, 927 (double-celling protective custody inmates combined with severe restrictions on out-of-cell time); Burks v. Walsh, 461 F.Supp. at 486-89 (double-celling protective custody inmates, who had "substantially less" out-of-cell time than inmates in general population, in cells measuring 47.18 square feet, is "plainly intolerable"); Battle v. Anderson, 457 F.Supp. 719, 738 (E.D.Okla.1978) (double-celling protective custody inmates in overheated cells, combined with no outdoor exercise but approximately two hours per day out-of-cell time, constitutes conditions of confinement which "are punitive in nature and would not be allowable even if the inmates were being subjected to disciplinary sanctions"), remanded on other grounds, 594 F.2d 786 (10th Cir.1979); M.C.I. Concord Advisory Board v. Hall, 447 F.Supp. at 401, 404 (double-celling protective custody inmates in cells measuring approximately sixty-six square feet, accompanied by inadequate ventilation, plumbing and lighting, is "sufficiently shocking as to violate standards of common decency").

6. Conditions of Confinement 0907 Protective Custody Inmates

Protective custody inmates at the SDSP are denied various educational and job opportunities, various dining, outdoor recreation and visiting privileges, and access to various programs and other activities otherwise available to inmates in the general population (see Findings of Fact, supra, II.F.). A necessary component of protective custody status, however, is the limited access to programs, activities and privileges that would tend to bring inmates accorded this status in contact with inmates in the general population. See Lovell v. Brennan, 566 F.Supp. 672, 691 (D.Me.1983). Protective custody inmates desire this protection and defendants have an interest in maintaining it 0907 principally by isolating these inmates from other inmates.
Whether under the equal protection clause of the fourteenth amendment[6] or the "unconstitutional conditions" 1055 standard developed in Wojtczak v. Cuyler, 480 F.Supp. 1288, 1291, 1302-07 (E.D.Pa.1979),[7]*1055 the interests
of protective custody inmates in increased access to opportunities, rights and privileges accorded other inmates must be balanced with the legitimate interests of the defendants 0907 as well as of protective custody inmates 0907 in securing protection for inmates in protective custody.

The Court concludes that there are valid security considerations present for, and defendants have a rational basis for, placing restrictions, of the kind and to the extent detailed in the findings of fact, on the rights, privileges and opportunities available to protective custody inmates. See Lovell v. Brennan, 566 F.Supp. at 690-92. Plaintiffs have not shown that protective custody inmates at the SDSP receive "treatment invidiously dissimilar to that received by other inmates." Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984) (per curiam).
7. Health Care
a. Constitutional Standard
Although the adequacy of health care is included in the totality of conditions which determine whether inmates have been subjected to cruel and unusual punishment, see e.g., Rhodes, 452 U.S. at 342, 101 S.Ct. at 2396-97, a separate standard governs whether prison health care, standing alone, is constitutionally adequate. The Supreme Court in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), concluded that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Id. at 104, 97 S.Ct. at 291 (quoting Gregg v. Georgia, 428 U.S. at 173, 96 S.Ct. at 2925). In reaching this conclusion the Court explained: "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met." Id. 429 U.S. at 103, 97 S.Ct. at 290.
Where, as here, a class of inmates challenge as unconstitutional a prison's entire health care system, "deliberate indifference to serious medical needs" is established where systematic deficiencies in staffing, facilities, equipment, or procedures effectively deny inmates access to adequate health care. See Wellman v. Faulkner, 715 F.2d at 272; Ramos v. Lamm, 639 F.2d at 575; Todaro v. Ward, 565 F.2d 48, 52 (2d Cir.1977) ("[w]hen systematic deficiencies in staffing, facilities or procedures make unnecessary suffering inevitable, a court will not hesitate to use its injunctive powers").
A court need not wait "until an inmate bleeds to death" or until institutional health care deficiencies reach catastrophic proportions in order to exercise its declaratory or injunctive powers to cure an otherwise inadequate health care system. Palmigiano v. Garrahy, 443 F.Supp. at 973; see Todaro v. Ward, 565 F.2d at 53 (institutional practices need not be defective in maximum degree before eighth amendment violation is found).
b. Application of Constitutional Standard to the Findings
(i) Use of Inmate Workers
The court's findings detail the extent to which inmate workers have been used by the SDSP to perform various medical and dental tasks. These inmates have no formal training or education in the medical or dental care fields. They have performed or substantially assisted qualified personnel in performing a variety of medical and dental care services, including the direct treatment of other inmates, the scheduling of other inmates for health care services, the taking of both medical and dental x-rays, the conducting of initial examinations, the screening and diagnosis of inmate-patients at times when no qualified personnel are present, and the operation of certain 1056 equipment for which they are not trained. In *1056 addition, these inmate workers have access to other inmates' medical records.
Several courts have condemned as violative of the eighth amendment the use of untrained inmate workers to perform health care services similar to those performed by inmate workers at the SDSP. See Ramos v. Lamm, 639 F.2d 577-78 (use of untrained inmates as lab technicians, dental assistants, orderlies, x-ray technicians, and medical file clerks effectively denies inmates access to diagnosis and treatment by qualified personnel and contributes to constitutionally inadequate health care system); Williams v. Edwards, 547 F.2d at 1216-19 (use of untrained inmate workers to, among other things, treat other inmates, operate x-ray equipment as well as other technical equipment, and handle other inmates' medical records contributes to unconstitutional health care

system); Lightfoot v. Walker, 486 F.Supp. at 517, 524-25, 526-27 (use of untrained inmate workers to prescribe and distribute medicine, participate in sick call screening, handle medical records, and perform laboratory work contributes to unconstitutional health care system).
The American Medical Association Standards For Health Services In Prisons (1979) (Exhibit no. 170; hereafter cited "AMA Standards") establishes twenty-three "essential" accreditation standards which are "recognized by organized medicine as critical for a viable [prison] health care delivery system." AMA Standards at ii. One of these essential standards (no. 133) prohibits inmates from "[p]erforming direct patient care services, [s]cheduling health care appointments, [d]etermining access of other inmates to health care services, [h]andling or having access to ... [h]ealth records, and [o]perating equipment for which they are not trained." Id. at 17. The SDSP's use of untrained inmate workers violates this essential standard.
(ii) Emergency Medical Care
In Laaman v. Helgemoe, 437 F.Supp. at 312-13, the court held that:
inmates are entitled to qualified medical coverage at all times, sufficient to meet both their routine and emergency health care needs. A failure to staff a prison around the clock with qualified personnel trained to identify and cope with medical emergencies and reliance upon unqualified and untrained inmates, civilians and employees of prison to make medical decisions and to perform medical functions infringe upon the constitutional rights of prisoners.
Several courts have condemned as contributing to an unconstitutional health care system various emergency health care provisions or inadequacies similar to those existing at the SDSP. See Palmigiano v. Garrahy, 443 F.Supp. at 974, 983-84 (lack of certain "essential" emergency medical equipment such as a defibrillator and suction devices; emergency nursing staff untrained in administering CPR and in treating other commonly occurring emergencies; and lack of protocols or in-service training programs concerning treatment of various medical emergencies); Burks v. Teasdale, 492 F.Supp. 650 at 678 (W.D.Mo.1980) (failure to provide crash cart in reasonably accessible location so to avoid unnecessary delay in administering treatment in event of emergency); Lightfoot v. Walker, 486 F.Supp. at 520, 527 (inadequate defibrillator believed to have caused adult inmate's death; court ordered Illinois prison to obtain adequate emergency medical equipment); Ramos v. Lamm, 485 F.Supp. at 158, aff'd in relevant part, 639 F.2d at 575-76, 578 (lack of qualified emergency medical staff).
Emergency medical care provisions at the SDSP also violate certain essential AMA standards. See AMA Standards at 29, No. 154 (prison must have protocols providing for "24-hour emergency medical and dental care"); id. at 15, No. 128 (prison must provide training program to adequately train "all correctional personnel who work with inmates to respond to health-related emergency situations"; such training to include appropriate 1057 responses to various emergencies, signs and symptoms of various emergencies, and administration *1057 of first aid treatment); id. at 9, No. 225 (prison must have protocols providing for "adequate number of health trained correctional officers", including at a minimum, one such officer per shift who is trained in administering CPR and in recognizing symptoms of common illnesses).
The court concludes that the SDSP fails to provide inmates with minimally adequate emergency health care coverage.
(iii) Prescription Drugs
The SDSP lacks an institutional formulary. In Palmigiano v. Garrahy, 443 F.Supp. at 975, 983-84, lack of an institutional formulary was condemned as unconstitutional when considered together with other health care deficiencies. A formulary helps to ensure that medication will be prescribed with reasonable consistency, that meaningful data will be compiled on usage of various medications, and that medication will be properly dispensed and distributed. See id. at 975.
The lack of an institutional formulary also violates an essential AMA standard. See AMA Standards at 34, No. 163.

Provided that corrections officers are adequately trained by the responsible physician in accounting for and recording whether inmates have accepted or refused to accept prescription medication, present procedures for delivering prescription medication to inmates at the SDSP are constitutionally adequate. See id. at 14, No. 127 (essential).
The written policies of the SDSP prohibiting or discouraging the use by treating physicians of certain medications, when the use of such medications may under certain circumstances be properly indicated, constitutes a health care deficiency. In Feliciano v. Barcelo, 497 F.Supp. 14 (D.P.R. 1979), the court held unconstitutional, as contributing to a deficient health care system, the prison's failure to provide on a regular basis medications necessary to maintain health. See id. at 32, 34. The court ordered that inmates be provided with "any medication prescribed by a qualified physician." Id. at 41.
(iv) Provisions for Special Diets
The court concludes on the basis of the record developed at trial that the SDSP makes adequate provisions for the special dietary needs of the inmates.
(v) Protocols
The lack of adequate protocols respecting various aspects of the SDSP health care system violates an essential AMA standard and constitutes a serious deficiency. See AMA Standards at 3-4, No. 105 (requiring prison to develop written policies and procedures regarding a variety of health care functions).
(vi) Medical Records
The eighth amendment is implicated when "`inadequate, inaccurate and unprofessionally maintained medical records' give rise to `the possibility for disaster stemming from a failure to properly chart'" the medical care received by inmates. Dawson v. Kendrick, 527 F.Supp. 1252, 1306-07 (S.D.W.Va.1981) (quoting Burks v. Teasdale, 492 F.Supp. at 676). In Burks, 492 F.Supp. at 676, the court recognized "the critical importance of adequate and accurate medical records in any attempt to provide a continuity of medical care." It held that "inadequate, inaccurate and unprofessionally maintained medical records" constituted a "grave risk of unnecessary pain and suffering" in violation of the eighth amendment. Id. at 676, 678. Similarly, in Lightfoot v. Walker, 486 F.Supp. at 517, 524-25, the court found that inmate medical records were "disorganized and failed to meet minimal standards" and that the recording system was not properly coordinated to ensure that all medical information and test results were entered in an inmate's file within a reasonable time. The court held that these deficiencies contributed to an unconstitutional health care system, and it ordered prison officials to develop and 1058 maintain "[c]omplete and accurate records documenting all medical examinations, medical findings and *1058 medical treatment ... pursuant to accepted professional standards." Id. at 527.
Applying these principles to the instant case, the court concludes that the inadequate organization of medical records and files at the SDSP constitutes a deficiency in the health care system.
(vii) Quality Control
The SDSP lacks a quality control program, particularly governing laboratory services. In addition, the SDSP lacks an institutional formulary (see, supra at p. 1038, Finding of Fact G.3.a.). These findings constitute deficiencies of constitutional dimension in the SDSP health care system.
In Lightfoot v. Walker, 486 F.Supp. at 518-19, the court found that "[a] primary component of a minimally acceptable correctional health care system is the implementation of procedures to review the quality of medical care being provided." In Lightfoot, the court ordered prison officials to establish a quality control program consisting of (1) the promulgation and review of written regulations concerning medical procedures and services;

(2) regular audits of medical services; and (3) peer review of all medical personnel on a regular and periodic basis. Id. at 527.
Several courts have held the lack of quality control over medical care, when considered among other health care deficiencies, unconstitutional under the eighth amendment. See Palmigiano v. Garrahy, 443 F.Supp. at 975, 983-84 (lack of institutional formulary; staff performance evaluations and compilations of statistical data governing various medical services); Williams v. Edwards, 547 F.2d at 1216-17 (no written organizational plan or policies or procedures concerning medical tests, no quality control over laboratory services or equipment, and no quality control over dental care); Dawson v. Kendrick, 527 F.Supp. at 1273, 1308 (lack of rules, regulations, or policies to record and control deliveries of health care services).
(viii) Staff
Defendants' health care expert acknowledged that the SDSP has an inadequate number of full-time registered nurses. Other portions of the record support this conclusion, and this court likewise concludes that this inadequacy constitutes a health care deficiency of constitutional dimension.
(ix) Financial Constraints on Medical and Dental Services
The court's findings establish that inmates at times have been denied treatment for serious medical needs due to the cost of the particular treatment. Prisons may not deny, on account of cost, inmates from obtaining constitutionally adequate health care. See Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir.1968) (Blackmun, J.) ("Humane considerations and constitutional requirements [under eighth amendment] are not, in this day, to be measured or limited by dollar considerations."); Todaro v. Ward, 565 F.2d at 54 n. 8 (inadequate financial resources cannot excuse denial of constitutional rights); Heitman v. Gabriel, 524 F.Supp. 622, 624 (W.D.Mo.1981) (costs cannot stand in way of eliminating prison conditions which violate eighth amendment).
c. Conditions of Confinement 0907 Mental Health Care
The adequacy of a prison's mental health care system is governed by the same constitutional standard which applies when determining the adequacy of a prison's medical and dental health care system (see Conclusions of Law, supra, III.7.a. constitutional standard for medical care). Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 763 (3d Cir.1979); Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir.1977).
The court's findings establish the strong demand for qualified psychiatric and psychological treatment of inmates at the SDSP. There are inmates at the SDSP who have serious psychiatric needs which are not being addressed 1059 by qualified personnel; some of these inmates have experienced deterioration in physical health because *1059 their mental health needs have gone untreated. In addition, the findings indicate the critically inadequate number of mental care staff at the SDSP. There is only one psychiatrist available to the inmates; he visits the SDSP one day each week and performs only limited direct, ongoing treatment on inmates. The findings also demonstrate the shortage of psychologists and full-time counselors at the SDSP. In the court's view, the area of mental health care at the SDSP, as detailed in the Court's findings in this area, constitutes an especially grave deficiency at the SDSP.
Courts have condemned as unconstitutional under the eighth amendment various mental health care deficiencies similar to those pervading the SDSP. See Ramos v. Lamm, 639 F.2d at 577-78 (inadequate staffing, causing serious mental health care needs of inmates to go untreated, constitutes deliberate indifference to serious mental health care needs of prison population); Lightfoot v. Walker, 486 F.Supp. at 521-22, 525 (lack of clinical psychologist to provide group or individual therapy, combined with lack of psychiatrists to perform ongoing psychotherapy on inmates needing treatment and failure of prison officials to design and implement adequate mental health care delivery system subjects inmates to needless suffering and constitutes deliberate indifference); see also Williams v. Edwards, 547 F.2d at 1217-18.

Plaintiff's mental health care expert recommended, in the court's view, a reasonable and constitutionally adequate proposal to rectify the serious deficiencies existing in the mental health care system at the SDSP.
d. Conditions of Confinement 0907 Intake Area
The court concludes that, consistent with the findings, the psychological examination and screening of newly admitted inmates at the SDSP is adequate. However the existing policies and procedures respecting medical screening of newly admitted inmates are constitutionally inadequate.
Provisions for adequate and timely medical screening of newly admitted inmates are designed to prevent the spread of disease and to ensure that inmates who are physically ill or who otherwise require it are promptly given treatment.
In general, proper medical screening of inmates is a "vital element of adequate medical services. Written protocols and properly trained staff members are necessary to accomplish this goal." Lightfoot v. Walker, 486 F.Supp. at 517. See Heitman v. Gabriel, 524 F.Supp. at 627 (procedures for adequate and timely medical screening is integral part of inmate admissions process). In Lareau v. Manson, the Second Circuit held that the failure to adequately screen newly admitted inmates in a local jail for infectious diseases constituted a "serious" threat to the health of inmates "`sufficiently harmful to evidence deliberate indifference to serious medical needs.'" 651 F.2d at 109 (quoting Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292). The court declared that "it is unnecessary to require evidence that an infectious disease has actually spread in an overcrowded jail before issuing a remedy." Id.
8. Access to the Courts
a. The Constitutional Standard
In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) the Supreme Court "established beyond doubt that prisoners have a constitutional right of access to the courts." Id. at 821, 97 S.Ct. at 1494. The Court reviewed a number of its earlier cases and concluded: "[O]ur decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts." Id. at 824, 97 S.Ct. at 1496.
This responsibility of the States toward convicted prisoners is founded on the premise that "habeas corpus and civil rights actions are of `fundamental importance ... in our constitutional scheme' because they directly protect 1060 our most valued rights." Id. at 827, 97 S.Ct. at 1498. Recognizing that the primary concern is enabling an *1060 inmate to prepare a petition or complaint, see id. at 828 n. 17, 97 S.Ct. at 1498 n. 17, the Court in Bounds held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id. at 828, 97 S.Ct. at 1498. The Court further explained:
[W]hile adequate law libraries are one constitutionally acceptable method to assure meaningful access to the courts, our decision ... does not foreclose alternative means to achieve that goal. Nearly half the States and the District of Columbia provide some degree of professional or quasiprofessional legal assistance to prisoners. Such programs take many imaginative forms and may have a number of advantages over libraries alone. Among the alternatives are the training of inmates as paralegal assistants to work under lawyers' supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs, the organization of volunteer attorneys through bar associations or other groups, the hiring of lawyers on a part-time consultant basis, and the use of full-time staff attorneys, working either in new prison legal assistance organizations or as part of public defender or legal services offices.... Independent legal advisors can mediate or resolve administratively many prisoner complaints that would otherwise burden the courts, and can convince inmates that other grievances against the prison or the legal system are

ill-founded, thereby facilitating rehabilitation by assuring the inmate that he has not been treated unfairly.... [A] legal access program need not include any particular element we have discussed, and we encourage local experimentation. Any plan, however, must be evaluated as a whole to ascertain its compliance with constitutional standards.
Id. at 830-32, 97 S.Ct. at 1499-1500 (footnotes and citations omitted).
b. Inmates at the SDSP

The plaintiff class contends that since the defendants do not purport to provide inmates at the SDSP with "adequate assistance from persons trained in the law," the question is whether, under the constitutional principles set forth above, the inmates are provided an adequate law library. There is no contention in this regard that the present library contains an inadequate stock of legal materials. Rather, plaintiffs submit, on the authority of more recent case law interpreting the scope of Bounds that the presence of a law library, without adequate provisions for trained legal assistance, is insufficient to accord inmates meaningful access.

"The central question in evaluating whether a law library adequately provides meaningful access to the courts is whether the facility will enable the prisoners to fairly present their complaints to a district court." Cruz v. Hauck, 627 F.2d 710, 720 (5th Cir.1980). The defendants bear the burden of proving that the SDSP law library, as presently operated, provides the inmates meaningful access. See Ruiz v. Estelle, 679 F.2d at 1154, n. 197; Storseth v. Spellman, 654 F.2d 1349, 1352 (9th Cir. 1981).

Several courts have held that an adequate law library as conceived under the principles established in Bounds requires some provision for assistance by persons trained in the law. In Cruz v. Hauck, the Fifth Circuit held:

It is not enough simply to say the books are there, when the plaintiffs contend that they do not have the assistance necessary to use the books properly. All of the circumstances must be evaluated in determining the adequacy of a library, and the district court erred by holding that a prison library without any assistance in its use sufficed to provide access to the courts for all the prisoners detained.

627 F.2d at 720. Similarly, in Glover v. Johnson, 478 F.Supp. 1075 (E.D.Mich. 1979), the court concluded:

1061

*1061 Defendants' position that they are obligated only to provide either an adequate law library or qualified legal assistance is too narrow a reading of Bounds. An adequate library cannot provide meaningful aid to a prisoner unschooled in the most basic techniques of legal research. As a result, courts have recognized the need for the assistance of others who possess these skills in order to render the inmate's right to access effective.

Id. 478 F.Supp. at 1096 (emphasis in original; citations omitted).

See Canterino v. Wilson, 562 F.Supp. 106, 108-12 (W.D.Ky.1983) (unlimited physical access to sufficiently stocked law library is unavailing to inmates lacking sufficient opportunity or intellectual ability to utilize the facility; adequate library under Bounds includes assistance by law-trained advisors so that all inmates have actual access); Wade v. Kane, 448 F.Supp. 678, 684 (E.D.Pa.1978) (prison required under Bounds to provide assistance to inmates who are unable to perform effective legal research 0907 even though prison maintained sufficiently stocked law library), aff'd mem., 591 F.2d 1338 (3d Cir.1979); see also Comment, An Overview of Prisoners' Rights: Part I, Access to the Courts Under Section 1983, 14 St. Mary's L.J. 956, 971-74 & n. 97 (1983) (discussion of what constitutes adequate law library under Bounds).

Applying these principles to the present findings (see Findings of Fact, supra, J.1.), the court concludes that inmates at the SDSP are denied the fundamental constitutional right of meaningful access to the courts. Bounds places on the State of South Dakota the affirmative duty to provide all inmates at the SDSP meaningful access to the courts. More recent case law interpreting the scope of Bounds establishes that a law library, without more, is not sufficient to enable prison inmates, most of whom are unschooled in the basics of legal research and legal writing, "to prepare a petition or complaint." Bounds, 430 U.S. at 828 n. 17, 97 S.Ct. at 1498 n. 17. Inmates at the

SDSP must be afforded a reasonable form of law-trained assistance in the use of the library in order to give effect to the United States Supreme Court mandate in Bounds.[8]
c. Inmates at the Womens' Correctional Facility
The court concludes that based on the findings (see Findings of Fact, supra, II.J.2.), the inmates at the Womens' Correctional Facility are denied their constitutional right of meaningful access to the courts. These inmates are provided neither a law library nor law-trained assistance.
Defendants contend that their informal policy of transporting these inmates, upon request, to a law library approximately thirty miles from the prison is an acceptable, alternative method of providing these inmates meaningful access to the courts. Defendants furthermore submit that this means of access is equivalent to that provided inmates at the SDSP. Defendants have cited no authority in support of their contentions. They bear the burden of proving the adequacy under Bounds of any alternative method of meaningful access (See Conclusions of Law, supra, III.8.2.). Applying the constitutional standard set forth in Bounds, defendants have failed to prove that all inmates at the Womens' Correctional Facility are accorded meaningful access to the courts.[9]See Leeds v. Watson, 630 F.2d 674 at 676-77 (9th Cir.1980).
1062 *1062 IV. CONCLUSION
Given the most generous application of judicial restraint, the Court concludes that the totality of conditions of confinement at the SDSP, as enumerated in detail above, subject the plaintiff class to cruel and unusual punishment in violation of the eighth and fourteenth amendments.
The Court reaches this conclusion with the greatest reluctance but the findings of fact compel this result. The prison administration at the SDSP continues to make dedicated good faith efforts to improve the conditions of confinement at the prison. This court is well aware of the financial restraints placed on the defendants, but the good will shown by them cannot serve as a defense. Nor is the lack of financing a defense to a failure to provide minimum constitutional standards. If the state wishes to hold the inmates in institutions, it must provide the funds to maintain the inmates in a constitutional manner. These considerations properly are weighed by the Legislature and prison administration rather than a court. Finney v. Arkansas Board of Correction, 505 F.2d 194, 199, 201 (8th Cir.1974); see Hendrix, 525 F.Supp. at 526-27.
The above constitutes the findings of fact and conclusions of law of the court.
JUDGMENT
For the reasons given in the opinion, it is now
ADJUDGED that the conditions of confinement in the South Dakota State Penitentiary, to the extent set forth in the opinion, violate the Eighth Amendment and the Fourteenth Amendment to the Constitution, and it is further
ORDERED that defendants shall file with the clerk, on or before 120 days from this date, a plan by which defendants propose to change or modify the conditions of confinement to comply with the Eighth Amendment and Fourteenth Amendment. Upon the filing of such plan by defendants, this Court will, on notice, hear the parties on the issue of whether or not such plan, if implemented by defendants would render constitutional the conditions of confinement, and after such hearing, the Court will enter such further order as appropriate or as required to carry into effect the declaratory judgment set out in the memorandum opinion of the Court.
The Court retains jurisdiction of the parties and subject matter of this action for the purposes above stated; and for the purpose of granting plaintiffs such injunctive relief as may be just and equitable under this judgment.
[1] By stipulation of the parties this court by order filed August 23, 1982 certified plaintiffs' cause as a class action.

[2] Although plaintiffs also alleged causes of action under 42 U.S.C. §§ 1985, 1988, they have not pursued these alternative causes and the court finds it unnecessary to consider them.
[3] The eighth amendment, which prohibits "cruel and unusual punishments", U.S. Const.amend. VIII, is applicable to the States through the fourteenth amendment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
[4] The vast majority of federal courts have interpreted Rhodes as adopting the "totality of conditions" standard. See Ruiz v. Estelle, 679 F.2d 1115, 1139 & n. 98 (5th Cir.) (citing cases), modified per curiam, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983).
[5] One commentator has remarked that the district court in Holt v. Sarver was the first court to employ the totality-of-conditions test in analyzing conditions of confinement. See Robertson, When the Supreme Court Commands, Do the Lower Courts Obey? The Impact of Rhodes v. Chapman on Correctional Litigation, 7 Hamline L.Rev. 79, 81 n. 15 (1984).
[6] Under the equal protection clause, defendants are entitled to place restrictions on the opportunities, rights and privileges accorded protective custody inmates, as compared to those available to inmates in the general population, provided that these restrictions are rational rather than arbitrary and capricious. Nadeau v. Helgemoe, 561 F.2d 411, 416 (1st Cir.1977). In order to prevail on an equal protection claim, the protective custody inmates must demonstrate "that they received treatment which was invidiously dissimilar to that received by other inmates." Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984) (per curiam).
[7] In Wojtczak v. Cuyler, the court concluded:
[T]he denial to [a protective custody inmate] of benefits which other prisoners enjoy, solely because he is in need of protection from other inmates, violates the Eighth Amendment unless the disparity is justified by considerations of institutional security. Put differently, ... absent valid security considerations, [a protective custody inmate] may not be required to renounce his right to reasonable protection from other inmates as a condition of receiving the opportunities afforded to prisoners in the general population.
480 F.Supp. at 1303 (footnotes omitted).
[8] The court's holding may be construed as extending beyond the consent decree approved by Judge Nichol in Crowe v. Erickson, No. 72-4101, slip op. at 11 & Exh. A (D.S.D. May 4, 1977) (see Findings of Fact, supra, J.1.a., g). In all probability neither the court nor the parties to that decree had the benefit of the Supreme Court's decision in Bounds (decided April 27, 1977). They certainly did not have the benefit of later case law defining the full scope of Bounds. It is with the teaching of this further line of precedent that this court considers the meaningful access issue in a 1984 setting.
[9] Inmates at the Womens' Correctional Facility also complain that because they are not provided the same means of access to the courts as those accorded inmates at the SDSP, the women inmates are denied equal protection of the law, in violation of the fourteenth amendment. Due to the disposition of the women inmates' right of access claim under Bounds, the court finds it unnecessary to reach their equal protection argument. See Wojtczak v. Cuyler, 480 F.Supp. 1288, 1299 n. 12 (E.D.Pa.1979).
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 </s> 799 F.2d 447 (1986)
William R. CODY, individually and on behalf of all other persons similarly situated, Appellees, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gehlhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Appellants. William R. CODY, Individually and on behalf of all other persons similarly situated, LaVerne Koenig, member, Protective Custody Plaintiffs, Appellant, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding; D.A. Gehloff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued
individually and in their official capacities, Appellees.
Nos. 85-5270, 85-5302.
United States Court of Appeals, Eighth Circuit.
Submitted February 13, 1986. Decided September 2, 1986. Rehearing Granted October 28, 1986.[*]
448 *448 Richard Dale, Asst. Atty. Gen., Pierre, S.D., for appellant.
Elizabeth Alexander, Washington, D.C., for appellees.
Before HEANEY and BOWMAN, Circuit Judges, and HANSON,[*] Senior District Judge.
HEANEY, Circuit Judge.
This is an appeal from an order of the district court requiring officials at the South Dakota State Penitentiary (SDSP) to cease double celling inmates at SDSP, both in the general population and in protective custody. On appeal, the officials contend that the trial court erred in finding that double-celling inmates at SDSP violates the Eighth and Fourteenth Amendments to the United States Constitution. They also claim the court erred in using the "rated capacities" of the American Corrections Association as a referrent for measuring constitutional violations. Protective custody inmates cross-appeal claiming that they are treated differently from inmates in the general population in violation of equal protection guarantees. We affirm.
BACKGROUND
William R. Cody filed this class action suit under 42 U.S.C. § 1983 on behalf of all persons who are now or will be incarcerated in the South Dakota State Penitentiary at Sioux Falls, South Dakota or in the Women's Correctional 449 Facility at Yankton, South Dakota. Cody complained of overcrowding and living conditions hazardous *449 to the health of the inmates. He protested, among other things, poor medical care, inadequate recreation, contaminated food, and noncompliance with fire safety standards. After an eleven day trial, the district court found that many of these conditions violated the eighth and fourteenth amendments to the United States Constitution. The trial court ordered the prison officials to prepare plans to cure the constitutional violations, which prison officials submitted by the summer of 1985. After extensive negotiation, the parties entered into a consent decree covering certain improvements to be made at the SDSP.

Following a hearing on July 8, 1985, the trial court entered the partial consent decree, and a second judgment on the remaining contested issues, which is the subject of this appeal. It ordered: 1) That except in the case of certain emergencies, the daily population of the SDSP be reduced in compliance with a schedule aimed at reducing the population to 95% of that specified by the American Corrections Association (ACA) as the capacity of SDSP; 2) that SDSP will stop double-celling inmates in protective custody; and 3) further improvements in health services. The state appeals orders one and two which concern double-celling.
On appeal, the officials claim that they have already ended the practice of double-celling general population inmates and have greatly reduced the double-celling of protective custody inmates, but they do not believe this is required by the Constitution, and they want to retain the flexibility to double-cell, if necessary, in the future. They also claim that the district court erred in requiring them to comply with American Correctional Association guidelines for setting prison population maximums.
DISCUSSION
The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court considered for the first time the limitation that the eighth amendment imposes upon the conditions in which a state may confine those convicted of crimes. The Court stated that conditions of confinement "must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment." Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399.
The Rhodes Court specifically considered whether double-celling at an Ohio prison constituted cruel and unusual punishment. The Court held that in light of the otherwise exceptionally good conditions of confinement at the institution,[1] double-celling was not unconstitutional because it "did not lead to deprivations of essential food, medical care, or sanitation. Nor did it increase violence among inmates or create other conditions intolerable for prison confinement." Rhodes, 452 U.S. at 348, 101 S.Ct. at 2400. Thus, in determining whether prison conditions such as double-celling violate the eighth amendment, courts must consider all of the circumstances surrounding the conditions of confinement.
Applying this test, we affirm the district court's holding that SDSP's practice of double-celling, in light of the numerous deficient conditions of confinement at the prison, constitutes a violation of the eighth amendment under Rhodes. We point out that the prison officials did not appeal from the district court's detailed findings of deficient 450 conditions at SDSP. Accordingly, in assessing SDSP's appeal of the double-celling orders, we accept as true *450 the district court's findings as to the conditions at SDSP.
At the time of trial, the SDSP housed 538 general population inmates in 440 single occupancy cells. One hundred and ninety-six inmates were doubled up. The cells ranged in size from fifty-five square feet to sixty-three square feet. Some of the cells lacked adequate ventilation, and other cells lacked running hot water. The electrical wiring in the cells is substandard.
The court found that fire safety measures are inadequate: exit doors insufficient, night staff insufficient to respond in an emergency, ventilation inadequate, no fire alarm system, sprinkling system, or automatic unlocking device for the cells doors, and that there were plastic pipes throughout the prison with the potential to emit toxic vapors during a fire. The court further found that kitchen conditions are unsanitary and unsafe, including an inadequate milk pastuerization procedure, improper storage of canned goods and uncleanable dishes and pots. Additionally, medical and dental care available to prisoners is grossly inadequate. The medical and dental units are understaffed, and SDSP resorts to the use of untrained inmates to examine and x-ray patients.
The district court also made findings as to the impact of double-celling on the inmates, which SDSP officials again have not appealed from. The court found that:

Double-celling at the SDSP has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring.
Double-celling at the SDSP has resulted in an overloading of services such as the work, recreation and school programs.
Since the advent of double-celling in the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons in November, 1981, and approximately sixty incidents * * * of fighting or assaults between inmates and/or inmates and staff.
The SDSP is grossly under-staffed. The level of prison staff has not increased in proportion to the level of the general inmate population.
Cody v. Hillard, 599 F.Supp. 1025, 1033 (D.S.D.1984).
Moreover, the court found that double-celling creates a serious potential for the spread of communicable diseases due to cramped living spaces and an increased potential for inmates to contact upper respiratory diseases.
We now turn to the district court's findings with respect to protective custody inmates. Out of forty-five inmates housed in protective custody at the SDSP, twenty-two were double-celled. The district court found that "[t]he negative impact attributed to double-celling in other areas of the institution is exacerbated in the protective custody area due to the inordinately limited out-of-cell time available to these inmates." Cody, 599 F.Supp. at 1034.
In light of the uncontested findings of fact that we have summarized, we conclude that the district court did not err in banning double-celling both in the general population and in protective custody cells. The facts found serve as an adequate basis to constitutionally require more space for inmates, not only to improve the health and safety conditions for the inmates, but to enhance security and to reduce violence. Our finding is supported by numerous decisions holding double-celling unconstitutional where there are other serious deficiencies in the conditions of confinement. See e.g., French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), (Seventh Circuit upheld a ban on double-celling "in light of the poor supervision, safety, medical care and food preparation at the facility[.]"); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984) (injunction upheld against double-celling where it "engenders violence, tension and psychological problems"); Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984) (overcrowding can violate eighth amendment).
451 *451 The SDSP, like the institutions at issue in French, Toussaint, and Wellman, is very different from the prison under scrutiny in Rhodes. It is anything but "a top flight institution," and the horrible conditions are greatly exacerbated by double-celling of inmates.
In so holding, we do not intimate that the order banning double-celling cannot be modified in the future. Prison officials apparently have submitted progress reports 0907 which are not part of the record on this appeal 0907 alleging that improvements have been made at the SDSP. Prison officials should apply to the district court for an evidentiary hearing to determine the extent of the improvements. Upon a proper showing, the district court may determine that the ban on double-celling is no longer justified.
Finally, the state attacks the district court's use of the ACA standards for prison capacity as the guidelines for constitutional requirements. It is true that Rhodes v. Chapman, suggested that district courts refrain from overreliance on expert opinions on prison capacity. However, the Court did not prohibit such consideration and several post-Rhodes decisions have approved the use of such guidelines as the ACA guidelines where the conclusions therein are supported by other independent evidence. See e.g., Touissaint, 722 F.2d 1490 (9th Cir.1984). The district court's use of these guidelines is appropriate in light of its detailed factual findings, based on a wide-range of evidence.

The final issue on appeal is the cross-appeal by the protective custody inmates. They claim that the ban on double-celling is not enough and that they are entitled to additional relief such as more exercise time. Their argument essentially is that conditions in the protective custody unit are not as good as conditions in the general population units and that this violates their rights to equal protection. We have previously stated that "[t]o succeed on an equal protection claim the [protective custody inmates are] required to show that they received treatment which was invidiously dissimilar to that received by other inmates." Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984). We conclude that the cross-appellants have made no such showing.
BOWMAN, Circuit Judge, concurring in part and dissenting in part.
I concur only in the Court's holding concerning the cross-appeal by the protective custody inmates. The remainder of the Court's decision, in my view, both "wrench[es] the Eighth Amendment from its language and history," Rhodes v. Chapman, 452 U.S. 337, 348, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981), and engages in analysis directly foreclosed by Supreme Court precedent. I respectfully dissent.
Initially, I believe a more complete exposition of Eighth Amendment standards is necessary than the Court's opinion provides. In Rhodes, the Supreme Court stated that "when the conditions of confinement compose the punishment at issue," those conditions "must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment." Id. at 347, 101 S.Ct. at 2399. The Court referred to conditions that are "totally without penological justification," Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2930, 49 L.Ed.2d 859 (1976), as the kind of conditions that violate the Eighth Amendment. 452 U.S. at 346, 101 S.Ct. at 2399. Recently, the Court elaborated further on this standard in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O'Connor, writing for the Court, observed that "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Id. at 1084.
The Eighth Amendment leaves very broad latitude to the states in the administration of their prisons. "[C]onditions 452 that *452 cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the
extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Moreover, the federal courts traditionally
have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.
Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). All of these observations aptly fit this case.
Even granting that the District Court's factual findings are correct, I do not agree that double-celling at SDSP evidences the "obduracy and wantonness" necessary to constitute a violation of the Eighth Amendment. Double-

celling at SDSP is not "totally without penological justification." Rhodes, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Gregg, 428 U.S. at 183, 96 S.Ct. at 2929). While double-celling may not be desirable, it allows the continued detention of persons convicted of serious crimes when they might otherwise have to be released at the peril of law-abiding members of our society. As the Court's opinion notes, double-celling would be cruel and unusual punishment under Rhodes only if the double-celling "[led] to deprivations of essential food, medical care, or sanitation" or if it "increase[d] violence among inmates or create[d] other conditions intolerable for prison confinement." 452 U.S. at 348, 101 S.Ct. at 2400. In my judgment, the record in this case falls far short of supporting the Court's conclusion that the line drawn by Rhodes has been crossed by double-celling at SDSP. Accordingly, I believe there is no constitutional basis for the remedial order that the Court today affirms.
The District Court's final order provides that
in the event that the daily population of the SDSP, other than Protective Custody inmates, shall exceed 95% of total American Corrections Association (ACA) rated capacities for 60 consecutive days, the defendants shall commence to develop programs to reduce that population; if such population shall exceed 110% of such ACA capacities for 60 consecutive days, the State within 180 days shall reduce said population to 95% of the total ACA capacities of these facilities; provided, however, that days during which populations may exceed these percentages as a consequence of riot, fire, acts of God, labor unrest, war, civil disturbance, or any other emergencies shall be excluded in applying the foregoing.
Cody v. Hillard, Civ. No. 80-4039, at 1-2 (D.S.D. July 8, 1985) (Final Order). This order could not conceivably be 453 proper unless *453 the ACA standards relied upon by the District Court represented the constitutional norm. But
the Supreme Court explicitly has rejected this approach. In Bell v. Wolfish, the Court stated that "while the recommendations of these various groups [such as ACA] may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question." 441 U.S. 520, 543-44 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979). In Rhodes, the Court quoted the foregoing statement from Wolfish and further observed in regard to Eighth Amendment claims that
generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as "the public attitude toward a given sanction." We could agree that double celling is not desirable, especially in view of the size of these cells. But there is no evidence in this case that double celling is viewed generally as violating decency.
452 U.S. at 348-49 n. 13, 101 S.Ct. at 2400 n. 13. Contrary to this clear instruction from the Supreme Court, the order of the District Court effectively transforms the ACA standards into Constitutional requisites under the Eighth Amendment, and it does so without a shred of evidence for the counter-intuitive proposition that double-celling is viewed generally as violating decency. Thus, it is apparent that neither the District Court nor our Court has properly applied the Constitutional standards to the facts of this case.
The District Court found that "[d]ouble-celling over time has a negative impact on all programs and services" and "has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring." Cody v. Hillard, 599 F.Supp. 1025, 1033 (D.S.D. 1984). The District Court detailed such problems in these areas as unsanitary practices in storing and preparing food, the use of untrained inmates to provide medical services to other inmates, inadequate ventilation and plumbing, and substandard electrical wiring and other fire hazards. Whatever the merit of these findings, there has been no showing, and the District Court has made no finding, that the elimination of doublecelling will alleviate these problems to any perceptible degree. An appropriate remedy would relate to correction of the constitutionally deficient conditions that have been found to exist, if any there be, rather than to the elimination of double-celling.
The Court's opinion quotes with approval the District Court's finding that double-celling "has resulted in an overloading of services such as the work, recreation and school programs," id., but never tells us why this matters for purposes of Eighth Amendment scrutiny. In fact, the Supreme Court dismissed precisely this sort of contention as a basis for finding cruel and unusual punishment in Rhodes, stating that "limited work hours and

delay before receiving education do not inflict pain, much less unnecessary and wanton pain; deprivations of this kind simply are not punishments." 452 U.S. at 348, 101 S.Ct. at 2400.
The District Court found, as the Court's opinion notes, that "[s]ince the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons ... and approximately sixty incidents ... of fighting or assaults between inmates and/or inmates and staff." 599 F.Supp. at 1033. Prison violence is, of course, not a recent development and occurs with similar frequency in institutions that do not double-cell. There is nothing in the record to show the comparable number of incidents of violence at SDSP before and after double-celling. Accordingly, there is no evidentiary basis for a conclusion that double-celling has caused an increase in such incidents, and we note that the District Court did not make a finding on this question of fact.
The Court's opinion also is notable for those portions of the District Court opinion that it does not mention. No 454 mention is *454 made of the District Court's finding that "[t]here is a relatively low level of tension between
inmates and staff at the SDSP." Id. at 1033. Nor does the Court discuss the District Court's findings that the level of sanitation at SDSP is adequate or that the prison administrators and staff have made sincere efforts to maintain a healthful environment. Id. at 1052. Similarly, the Court does not acknowledge the District Court's finding that the prison
administration has attempted to reduce the negative impact of double-celling by expanding the amount of out-of-cell time afforded inmates, by making a reasonable effort to double-cell only those inmates who volunteer to live with another inmate in the same cell, and by increasing the placement of inmates: (1) into trustee status in a detached unit of SDSP ... ; (2) into trustee status in a unit located at the Human Services Center in Yankton; (3) into a detached dormitory, outside the walls of the prison, known as the "West Farm"; (4) into public service restitution programs in various communities in South Dakota.... The SDSP has also attempted to place inmates in work release or school release programs throughout the state.
Id. at 1033. As the District Court recognized, the prison administration is striving within the limits of available resources to limit the amount of double-celling that must be done to accommodate the rising tide of convicted felons. This hardly reflects "obduracy and wantonness" on the part of those whose job it is to manage SDSP. See Whitley, 106 S.Ct. at 1084.
I fail to comprehend how the conditions described in this record can be said to inflict pain or amount to punishment and how prison administrators making "sincere efforts" can be said not to be acting in "good faith." Id. at 1084. The present case is light years removed from the type of torture, deprivation, and sadistic punishment with which the Cruel and Unusual Punishments Clause is concerned. See Hutto v. Finney, 437 U.S. 678, 681-84 & nn. 3-6, 98 S.Ct. 2565, 2568-70 & nn. 3-6, 57 L.Ed.2d 522 (1978) (conditions included use of a five-foot long leather strap to whip inmates for minor offenses, use of a device to administer "electrical shocks to various sensitive parts of an inmate's body," and use of inmate guards authorized to use deadly force against "escapees" and who therefore could "murder another inmate with practical impunity"). The lack of anything in this record even remotely approaching these conditions, or even remotely showing any conditions of confinement that fall below the Constitutional standards elucidated in cases such as Rhodes and Whitley, reveals the impropriety of the Court's action today.
Further, it seems to me that the incongruity of the order prohibiting double-celling of inmates who voluntarily have chosen to live together in the same cell should cause the Court to pause. The necessary implication from this feature of the order 0907 that voluntary "double-bunking" constitutes "wanton and unnecessary infliction of pain" amounting to cruel and unusual punishment 0907 is insupportable. What is worse, it trivializes the Constitution and mocks the purposes of the Eighth Amendment.
Finally, the District Court also enjoined the State from double-celling in the protective custody area of the prison. The court found that 22 out of 45 protective custody inmates were double-celled and concluded that this was "inappropriate and without correctional justification." 599 F.Supp. at 1034. The court further noted that "[t]hese inmates need protection not only from other inmates in the general population but also from other protective custody inmates" and concluded that the negative impact of double-celling was exacerbated for these inmates

"due to the inordinately limited out-of-cell time available to these inmates." Id. I believe that the District Court here merely has substituted its "judgment for that of officials who have made a considered choice." Whitley, 106 S.Ct. at 1085. Whether an inmate in protective custody needs protection from someone with whom he is assigned to share a cell is a matter more appropriately left to the prison officials who are charged with making decisions of 455 this nature. Courts *455 should be mindful that our authority in such questions "spring[s] from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility." Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (citations omitted). I have found nothing in the record or the District Court's findings of fact to persuade me that my views concerning double-celling generally should be different in regard to the protective custody area of the prison.
The record before us at most demonstrates that SDSP is not always comfortable. As the Supreme Court noted in Rhodes, however, "the Constitution does not mandate comfortable prisons, and prisons of [SDSP's] type, which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court." 452 U.S. at 349, 101 S.Ct. at 2400. Because I do not believe that double-celling in the circumstances presented by this record is violative of the Eighth Amendment, I would reverse the District Court's order with respect to double-celling.
[*] See 8th Cir., 804 F.2d 440.
[*] The Honorable William C. Hanson, Senior United States District Judge for the Northern and Southern Districts of Iowa, sitting by designation.
[1] The physical plant, built in the early 1970s, was "unquestionably a top-flight, first-class facility." Rhodes, 452 U.S. at 341, 101 S.Ct. at 2396. The cells there averaged sixty-three square feet and contained a cabinet-type night stand, a shelf and radio built into the wall, a wall-mounted sink with hot and cold running water and a flush toilet. All cells had a heating and air circulation vent near the ceiling and more than half of them had a window that the inmates could open and close. All cells used to house two inmates were equipped with two-tiered bunk beds. Medical, food and other services were good.
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 </s> 830 F.2d 912 (1987)
William R. CODY, individually and on behalf of all other persons similarly situated, Appellees, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gehlhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary, Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Appellants. William R. CODY, individually and on behalf of all other persons similarly situated, LaVerne Koenig, member, Protective Custody Plaintiffs, Appellant, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding; D.A. Gehlhoff, Member; Lyle Swenson, Member; James Smith Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued
individually and in their official capacities, Appellees.
Nos. 85-5270, 85-5302.
United States Court of Appeals, Eighth Circuit.
Submitted January 12, 1987. Decided October 6, 1987.
Rehearing Denied November 24, 1987.
Richard Dale, Asst. Atty. Gen., Pierre, S.D., for appellants.
Elizabeth Alexander, Washington, D.C., for appellees.
Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, J.R. GIBSON, FAGG, BOWMAN, WOLLMAN, and MAGILL, Circuit Judges, en banc.
BOWMAN, Circuit Judge.
This is an appeal from an order of the District Court requiring officials at the South Dakota State Penitentiary (SDSP) to cease the double-celling of inmates at SDSP, both in the general population and in protective custody. On appeal, before a panel of this Court, the officials contended that the trial court erred in finding that doublecelling of inmates at SDSP violates the Eighth and Fourteenth Amendments to the United States Constitution. They also claimed that the District Court erred in using the "rated capacities" of the American Corrections Association (ACA) as a reference for measuring the permissible capacity of the prison under the Eighth 913 Amendment. Inmates in protective custody cross-appealed, claiming that under *913 SDSP rules they were treated differently from inmates in the general population in violation of their rights under the equal protection clause. The panel, with one member dissenting, affirmed the District Court's order. Cody v. Hillard, 799 F.2d 447 (8th Cir.1986). The prison officials petitioned this Court for rehearing en banc, and we granted the petition. Cody v. Hillard, 804 F.2d 440 (8th Cir.1986). After further briefing and oral argument to the Court en banc, we now reverse the District Court's order with respect to double-celling.
The facts of the case are detailed in the panel opinion, 799 F.2d at 448-49, and in the extensive factual findings of the District Court, Cody v. Hillard, 599 F.Supp. 1025, 1026-46 (D.S.D.1984). We will not repeat them here.
As recognized by the District Court, the panel majority, and the panel dissent, the inmates' Eighth Amendment claims regarding the conditions of their confinement are governed by the Supreme Court's opinion in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In Rhodes, the Supreme Court specifically

considered whether double-celling at an Ohio prison constituted cruel and unusual punishment under the Eighth Amendment. The Court held, based on the undisputed factual findings of the district court, that the "conclusion that double celling at [the Ohio facility] constitutes cruel and unusual punishment is insupportable." Id. at 347, 101 S.Ct. at 2400.

The Court made clear in Rhodes that "when the conditions of confinement compose the punishment at issue," those conditions "must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment." Id. The Court referred to conditions that are "`totally without penological justification,'" id. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)), as the kind of conditions that violate the Eighth Amendment. Recently, the Court elaborated further on this standard in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O'Connor, writing for the Court, observed that "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cell-block." Id. 106 S.Ct. at 1084.

As Rhodes and Whitley make clear, the Eighth Amendment leaves very broad latitude to the states in the administration of their prisons. "[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Moreover, the federal courts traditionally

have adopted a broad hands-off attitude toward problems of prison administration. In part this

policy is the product of various limitations on the scope of federal review of conditions in state

penal institutions. More fundamentally, this attitude springs from complementary perceptions

about the nature of the problems and the efficacy of judicial intervention. Prison administrators are

responsible for maintaining internal order and discipline, for securing their institutions against

unauthorized access or escape, and for rehabilitating, to the extent that human nature and

inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to

effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the

problems of prisons in America are complex and intractable, and, more to the point, they are not

readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and

the commitment of resources, all of which are peculiarly within the province of the legislative and

914

executive branches of government. For all of those reasons, courts are ill *914 equipped to deal

with the increasingly urgent problems of prison administration and reform. Judicial recognition of

that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions

are involved, federal courts have a further reason for deference to the appropriate prison

authorities.

Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (footnotes omitted). All of these observations aptly fit this case. See also Goff v. Nix, 803 F.2d 358, 371 (8th Cir.1986), petition for cert. filed, May 20, 1987.

Even granting that the District Court's factual findings are correct, double-celling at SDSP simply does not evince the "wanton and unnecessary infliction of pain" necessary to constitute a violation of the Eighth Amendment. Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Double-celling could be viewed as cruel and unusual punishment only if it "[led] to deprivations of essential food, medical care, or sanitation" or if it "increase[d] violence among inmates or create[d] other conditions intolerable for prison confinement." 452 U.S. at 348, 101 S.Ct. at 2400. The record in this case falls far short of supporting the District Court's conclusion that the line drawn by Rhodes has been crossed by double-celling at SDSP. Accordingly, there is no constitutional basis for the District Court's remedial order with respect to double-celling.

In the District Court's final order its remedy is based on compliance with ACA rated capacities, which in turn were based on recommendations by the South Dakota penitentiary authorities. The Supreme Court has explicitedly rejected the proposition that such standards establish a constitutional norm. In Bell v. Wolfish, the Court stated

that "while the recommendations of these various groups [such as ACA] may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question." 441 U.S. 520, 543-44 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979). In Rhodes, the court quoted the foregoing statement from Wolfish and further observed in regard to Eighth Amendment claims that
generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as "the public attitude toward a given sanction."
We need not consider the propriety of the District Court's final order mandating relief and its reference to ACA rated capacities in view of our conclusion that on the record before us double-celling at SDSP does not violate the Eighth Amendment.
The District Court found that "[d]ouble-celling over time has a negative impact on all programs and services" and "has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring." Cody v. Hillard, 599 F.Supp. 1025, 1033 (D.S.D.1984). The District Court detailed such problems in these areas as unsanitary practices in storing and preparing food, the use of untrained inmates to provide medical services to other inmates, inadequate ventilation and plumbing, and substandard electrical wiring and other fire hazards. Whatever the merit of these findings, there has been no showing, and the District Court has made no finding, that the elimination of doublecelling will alleviate these problems to any perceptible degree. An appropriate remedy would relate to correction of the constitutionally deficient conditions that have been found to exist, if any there be, rather than to the elimination of double-celling.
The District Court also found that double-celling at SDSP has resulted in an overloading of services such as the work, recreation, and school programs. 599 F.Supp. at 1033. Even accepting this finding, we cannot conclude that such overloading is significant for purposes of the Eighth Amendment. In fact, the Supreme Court dismissed precisely this sort of contention as a basis for finding cruel and unusual punishment in Rhodes, stating that 915 "limited work hours and delay before receiving education do not inflict pain, much less unnecessary *915 and wanton pain; deprivations of this kind simply are not punishments." 452 U.S. at 348, 101 S.Ct. at 2400.
The District Court further found that "[s]ince the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons ... and approximately sixty incidents ... of fighting or assaults between inmates and/or inmates and staff." 599 F.Supp. at 1033. Prison violence is, of course, not a recent development and occurs with similar frequency in institutions that do not double-cell. There is nothing in the record to show the comparable number of incidents of violence at SDSP before and after double-celling. Accordingly, there is no evidentiary basis for a conclusion that double-celling has caused an increase in such incidents, and we note that the District Court did not make a finding on this question of fact.
Significantly, many of the District Court's factual findings suggest that the conditions at SDSP, regardless of the impact of double-celling, fall well within constitutional standards. The District Court found that "[t]here is a relatively low level of tension between inmates and staff at the SDSP," 599 F.Supp. at 1033, that the level of sanitation at SDSP is adequate, id. at 1052, and that the prison administrators and staff have made sincere efforts to maintain a healthful environment. Id. Similarly, the District Court found that the prison administration has taken various steps "to reduce the negative impact of double-celling." Id. at 1033. As the District Court recognized, the prison administration is striving within the limits of available resources to restrict the amount of double-celling that must be done to accommodate the rising tide of convicted felons. This hardly reflects "obduracy and wantonness" on the part of those whose job it is to manage SDSP.[1]See Whitley, 106 S.Ct. at 1084.
The conditions described in this record cannot be said to inflict pain or amount to punishment, nor can prison administrators making "sincere efforts" be said not to be acting in "good faith." Id. at 1084. The present case is light years removed from the torture, cruel deprivation, and sadistic punishment with which the Cruel and Unusual Punishments Clause is concerned. See Hutto v. Finney, 437 U.S. 678, 681-84 & nn. 3-6, 98 S.Ct. 2565, 2568-70 & nn. 3-6, 57 L.Ed.2d 522 (1978) (conditions included use of a five-foot long leather strap to whip inmates for minor offenses, use of a device to administer "electrical shocks to various sensitive parts of an inmate's body,"

and use of inmate guards authorized to use deadly force against "escapees" and who therefore could "murder another inmate with practical impunity"). The lack of anything in this record even remotely approaching these conditions, or even remotely showing any conditions of confinement that fall below the constitutional standards elucidated in cases such as Rhodes and Whitley, reveals the impropriety of the District Court's order.
The District Court enjoined the State from double-celling in the protective custody area of the prison. The court found that the double-celling of protective custody inmates was "inappropriate and without correctional justification," and that "[t]hese inmates need protection not only from other inmates in the general population but also from other protective custody inmates." 599 F.Supp. at 1034. The District Court here merely substituted its "judgment for that of officials who have made a considered choice." Whitley, 106 S.Ct. at 1085. Whether an inmate in protective custody needs protection from someone with whom he is assigned to share a cell is a matter more appropriately left to the prison officials who are charged with making decisions of this nature. Courts should 916 be mindful that our authority in such questions "spring[s] from constitutional requirements *916 and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility." Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (citations omitted). We have found nothing in the record or the District Court's findings of fact to persuade us that our conclusions regarding double-celling generally should be different with regard to the protective custody area of the prison.
The record before us at most demonstrates that SDSP is not always comfortable. As the Supreme Court noted in Rhodes, however, "the Constitution does not mandate comfortable prisons, and prisons of [SDSP's] type, which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court." 452 U.S. at 349, 101 S.Ct. at 2400. Double-celling in the circumstances presented by this record does not violate the Eighth Amendment. We therefore reverse the District Court's order with respect to double-celling.
The panel opinion also addressed the cross-appeal of the protective custody inmates, who claimed that conditions in the protective custody unit were inferior to conditions in the general population units, and that the order ending double-celling was not sufficient, for purposes of their constitutional right to equal protection, to bring the conditions in which they were kept in line with those of the general inmate population. 799 F.2d at 451. The panel unanimously held that the protective custody inmates had not shown "`that they received treatment which was invidiously dissimilar to that received by other inmates,'" and thus that the protective custody inmates could not succeed on their equal protection claim. Id. (quoting Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984) (per curiam)). A petition for rehearing en banc of the cross-appeal was rejected by this Court. Cody v. Hillard, Nos. 87-5270/5302 (8th Cir. Oct. 6, 1986). Accordingly, that portion of the panel opinion rejecting the claim of the cross-appellants is not before the Court en banc, and the panel's disposition of the claim will stand.
To summarize, we reverse the order of the District Court insofar as it finds that double-celling of inmates at SDSP violates the Eighth and Fourteenth Amendments. We leave undisturbed the panel affirmance of the District Court's order rejecting the protective custody inmates' challenge to the additional restrictions attendant to their protective custody. We remand the case to the District Court and direct it to vacate its order requiring SDSP to cease double-celling and to bring its inmate population within ACA guidelines.
Affirmed in part, reversed in part, and remanded with directions.
LAY, Chief Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, dissenting.
I respectfully dissent.
I would agree that double celling is not per se unconstitutional. The Supreme Court has so ruled. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). However, this is not the holding of the district court so it is difficult to understand the need for this en banc rehearing.[1] The district court found that the effects of double celling (overcrowding) were causally related to the myriad of other deficiencies in the prison. The majority disagrees with the finding. The record is replete with the causal relationship between these deficiencies 917 and the ongoing practice of double celling. The majority simply substitutes its *917 judgment for that of the district court in finding no causality and in doing so violates the clearly erroneous rule. See Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).[2]

The difficulty I have in all of this is that at the time of the oral submission of this case in January of 1987, we were informed by the State of South Dakota that they had fully complied with the district court's order of May 31, 1984. The district court's ban on double celling was conditioned solely upon the overcrowding contributing to the many deficiencies in the prison itself. The district court's order makes clear that if the deficiencies were otherwise corrected the ban on double celling would not continue. At our request, the state furnished the court with the list of improvements in compliance with the district court's decree. I attach this list as an addendum. It is obvious that if the state has complied with the order of the district court, the totality of circumstances no longer exists and that double celling, absent a record of violence or assault, is permissible in South Dakota. Therefore, no viable issue remains on appeal. In light of these changed circumstances, the willingness for the en banc court to render a final judgment is inexplicable. The case should be remanded to the district court. The district court should determine the issue of compliance because this court has no means to provide an evidentiary record.[3]
918 There is another even more cogent reason for remanding this case to the district *918 court. On remand the trial court may wish to consider the current use of double celling in both the intake and protective areas. During the long pendency of this case in this court, a district court judgment was entered on the first day of November 1986 on a jury verdict of $10,000 for a 19-year-old South Dakota inmate based upon the pervasive and reckless failure of the state to provide protection from sexual assault in the intake and protective areas where double celling is used. The case of Vosburg v. Solem, No. 87-5032/33SD was heard by a three judge panel of this court in the September term of court. I take judicial notice of this proceeding and report that the Attorney General of South Dakota has now discontinued double celling in the intake area. Evidence in that record shows that the inmate was sexually violated on December 22, 1982, January of 1983, April of 1983, and June of 1983. Evidence by other inmates showed nightly assaults upon young inmates. In the summer of 1981, an 18- or 19-year-old was raped three different times by his cell mate. He tried to commit suicide after those rapes. The record is replete ad nauseam with sexual assaults on younger inmates placed in double cells. The record shows that more than 500 crimes were investigated in the South Dakota prison last year; there were also reports of over 140 instances of fighting and assaults from 1984 to 1985.
919 Surely Judge Porter should have the opportunity to review this record and review *919 his ban on double celling. This court provides a totally inadequate and uninformed forum to pass on the current need for double celling in South Dakota.
The policy of the federal courts is firmly established that we ought to decline to address a constitutional issue unless it is necessary. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985) ("We call to mind [a] cardinal rule[] governing the federal courts: `"* * * never to anticipate a question of constitutional law in advance of the necessity of deciding it * * *."' United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (1885)."). This rule has been stated innumerable times; its roots are almost as old as the federal courts themselves. Hayburn's Case, 2 U.S. (2 Dall.) 408, 409, 1 L.Ed. 436 (1792). To ignore the rule at this late date serves only to obscure our judicial role. The action of the court here is totally unnecessary. The issue is no longer ripe for review.
In view of the overall record, what the en banc court achieves today is meaningless to the case before us. Therefore, I must dissent.
ADDENDUM
SUPPLEMENTAL REPORT
The Court having requested certain additional information in the above cases, Appellants Carole Hillard, et al., by and through their attorney, hereby file this Supplemental Report.
IMPROVEMENTS AT THE SOUTH DAKOTA STATE PENITENTIARY REQUIRED BY THE COURT ORDER.

On July 8, 1985, the District Court issued its Final Order covering those areas where it felt improvements were necessary. The Appellants' compliance with that order is set forth below (what follows traces the final Order omitting only those provisions dealing with facilities other than the main prison in Sioux Falls):

I. Environmental Conditions 0907 Housing.

A. Fire safety.

1. Fire exits and stairs.

a. The Appellants have provided new fire stairs from East Hall, Federal Hall, and West Hall.

b. The Appellants have provided an additional fire exit from East Hall.

c. The Appellants have provided an additional fire exit from West Hall.

2. Automatic unlocking system.

a. All cells used for inmate housing in East, West and Federal Halls are equipped with an automatic cell unlocking system.

3. Fire separation barriers.

a. Roll-up steel slat doors have been installed at the entrances to West and Federal Halls.

4. Emergency lights.

a. Emergency lights have been connected to the emergency generator.

b. Two additional exit lights over the doorways in the converted exit from West Hall and one over the new exit from East Hall have been installed.

5. Smoke and fire detection system.

a. The Appellants are continuing to maintain a fire alarm system and smoke detector system in East, West and Federal cell halls.

6. Fire evacuation drills.

a. The Appellants have conducted unannounced fire drills in East, West and Federal cells halls and other appropriate areas of the SDSP, the most recent being several weeks ago.

7. Other fire safety measures.

a. The Appellants are continuing to maintain smoke exhaust fans in good working order in East, West, and Federal cell halls.

b. The Appellants are continuing the use of fire retardant mattresses and pillows, and the posting of fire evacuation instructions in every cell.

920

*920 c. The Appellants are continuing to maintain self-contained breathing apparatus for staff use

in the event of an emergency evacuation.

d. The Appellants are continuing to submit to inspections by the South Dakota State Fire Marshal and shall continue to abate any deficiencies found as a result of such inspection.

B. Ventilation and heating system.

1. Cell ventilation and heating.

a. The Appellants have installed a new digital system to control ventilation and heating in each cell hall, installed screened damper grills on the exhaust vents in all cells, installed new exhaust fans on each tier in the pipe chases behind each cell hall and have installed new duct work to connect the cell exhaust vents to the exhaust fans. 2. West Hall shower. a. The Appellants are continuing to maintain the West Hall shower in a safe and sanitary condition with adequate ventilation. C. Overhead lighting and electrical wiring. 1. Cell lighting. a. The overhead fluorescent fixtures in all cells have been replaced with larger fixtures to improve overall cell illumination. 2. Cell wiring. a. The Appellants have provided properly grounded outlets in West Hall. b. All cells now have two properly grounded double outlets. 3. Removal of jerry-rigged wiring. a. Improper wiring jerry-rigged by inmates is prohibited in all cell areas. D. Hot water and water control system. 1. The Appellants have installed a hot water system for individual cells in Federal Hall. 2. The Appellants have provided proper plugs for sinks in individual cell halls. 3. A temperature regulator has been installed on the main hot water line to East and Federal cell halls.
II. Environmental Conditions 0907 Kitchen and Food Storage Area.
A. Milk pasteurization process. 1. The SDSP discontinued pasteurizing its own milk on November 12, 1984. B. Food Storage. 1. Basement food storage. a. All food storage areas are in good repair and are maintained in a clean, healthful and vermin free condition. The basement food storage area has been completely cleaned and painted, and all racks have had metal canopies installed to protect against the potential for leakage from the overhead pipes. 2. Kitchen food storage. a. The Appellants have continued to maintain proper kitchen freezers and coolers. b. The Appellants have continued to maintain proper methods of food storage in the kitchen. C. Kitchen elevator.

1. The Appellants are continuing to maintain the kitchen elevator in safe operating condition and have installed safety buffer devices on the doors to prevent injuries.

2. The Appellants have submitted to inspections of the kitchen elevator at appropriate intervals and will abate any deficiencies found as a result of any such inspections.

D. General kitchen practices and conditions.

1. Ventilation.

a. The Appellants have provided for adequate kitchen ventilation by installation of a large makeup air unit in the kitchen area.

2. Kitchen fire safety.

a. All kitchen stove hoods continue to be maintained with ancillary fire protection systems.

3. Utensil repair and sanitation.

921

a. The Appellants are continuing to maintain kitchen pots, pans and *921 dining utensils in good

repair and in safe and sanitary condition.

4. Inmate access to the infirmary through the kitchen.

a. The Appellants are continuing to prohibit inmate access to the infirmary through the kitchen during normal operational hours. Escorted access is permitted through the kitchen area only during nights, weekends, holidays and emergencies.

5. Kitchen food defrosting.

a. The frozen food defrosting basin is maintained in a safe and healthful manner, free from potential back siphonage.

6. Other kitchen practices.

a. All inmate food service workers are required to wear appropriate hair restraints and proper footwear.

b. All ice machines are cleaned regularly and kept in sanitary condition.

c. No part of the kitchen area is utilized as a work or lounge or smoking area.

III. Environmental Conditions 0907 Shops and Vocational Programs.

A. Welding shop.
1. The welding program has been transferred to facilities designed for that purpose at the Springfield Correctional Facility.
B. Furniture upholstery shop.
1. Ventilation systems in the upholstery shop have been repaired and regular cleaning and replacement schedules have been established for all air filters. A roof mounted exhaust fan has been installed in the upholstery shop to improve ventilation and fume removal.
2. Chemical cartridge masks are provided for inmates working in the paint stripping and spraying booths.
C. Proper storage of combustibles.

1. Combustible materials continue to be maintained in a specially designed storeroom in the upholstery shop. D. Barbershop. 1. The barbershop continues to be maintained in a safe and sanitary condition. E. Safety locking devices. 1. Appropriate safety devices continue to be maintained on machinery in the vocational shops. F. Sawdust removal. 1. A sawdust removal system has been installed in the carpentry shop, and is fully operational.

IV. Environmental Conditions 0907 Other Areas.

A. Underground corridor lighting.
1. Fifteen fluorescent lights in security casings have been added to the previous lighting system in the underground corridor, and the entire corridor has been painted white.
B. Sanitary conditions in the infirmary.
1. Proper sanitary conditions continue to be maintained in the infirmary. Plumbing on the X-ray developer and washtub has been reconfigured with an air gap installation to prevent potential back siphonage.

V. Medical and Dental Care.

A. Use of inmate workers.

1. Inmate workers no longer provide any type of medical or dental services, nor do they schedule appointments or have any other involvement in determining the access of other inmates to health care services or the operation of medical or dental equipment.

2. No inmate has access to the medical or dental records of other inmates.

B. Emergency medical care.

1. Protocols.

a. The Appellants are maintaining proper emergency care protocols, including a provision setting forth the identification system for the emergency medical technician (EMT) on duty.

2. Emergency staff.

922

a. The Appellants are providing that at least one certified EMT or registered *922 nurse is on duty

at the SDSP at all times.

3. Crash cart.

a. A "crash cart" is now on site at the SDSP. It includes a portable automatic emergency defibrillator and a portable trauma kit.

4. Resuscitation equipment.

a. The Appellants continue to maintain emergency resuscitation equipment, including ambu bags, oxygen tanks and masks, spare oxygen tanks, and CPR masks.

C. Prescription drugs.
1. Formulary.
a. The Appellants are maintaining an adequate formulary at the SDSP infirmary. The formulary serves as a general guide to prescription and nonprescription medications most commonly used at the SDSP.
2. Prohibitions on prescription of certain medication.
a. The Appellants continue not to prohibit the prescription of sleeping medications, pain relievers, minor tranquilizers, appetite suppressants, and cough medicines by qualified physicians when medically necessary in accordance with the general medication policies of the SDSP.
3. Limitations on prescription of certain medications.
a. The SDSP continues not to discourage or limit the prescription of anticonvulsive and antiasthmatic medications by qualified physicians when generally necessary and appropriate in accordance with the general medication policies of the SDSP.
4. Medication dispensation.
a. The Appellants continue to maintain a system for recording the administration or refusal of all prescribed medications.
5. Monitoring of inmates receiving major tranquilizers.
a. The Appellants provide appropriate medical monitoring of all inmates receiving major tranquilizers. In accordance with the health care protocols, inmates on major tranquilizers are monitored on a regular basis by medical personnel, and at other appropriate intervals as determined by the prescribing physician.
D. Protocols.
1. Appropriate health care protocols are maintained which govern the provision of health care services to the inmates at the SDSP.
E. Medical records.
1. The existing medical records at the SDSP have been reorganized and are maintained in the chart order specified in the health care policies and procedures.
F. Staff.
1. The SDSP continues to maintain adequate medical staff.
2. The Appellants provide twenty-four hour nursing staff coverage when an inmate needing nursing services is kept in the infirmary.
G. Financial constraints on medical and dental services.
1. The Appellants continue to provide necessary medical, surgical and dental care to inmates, as well as necessary prosthesis free of cost to indigent inmates.
2. Medical judgments of the SDSP medical staff regarding necessary treatments are not overridden by nonmedical staff.

VI. Psychiatric and Psychological Care.
A. Staff at the SDSP. 1. The Appellants have been unable to fill the second psychologist position at the SDSP. However, an outside psychologist was retained, under contract, and has been providing services to the inmates at the SDSP. 2. The Appellants have maintained the staffing ratio for correctional counselors, specialized counselors, and psychiatric services which existed as of May 31, 1984.
923 *923 VII. Intake Area.
A. The Appellants provide proper initial medical screening of all newly admitted inmates, in accordance with the penitentiary's health care policies and procedures.
VIII. Access to the Courts.
A. Two attorneys, retained under contract, continue to provide legal services to indigent inmates at the SDSP and the Springfield facility.
DISTRICT COURT EVIDENTIARY HEARING
The Appellants have not made an application to the district court for an evidentiary hearing to determine whether the order prohibiting double celling can be rescinded in light of the improvements made at the SDSP.
COMMENTS OF SOUTH DAKOTA OFFICIALS CONCERNING RELEASE OF INMATES
Copies of two articles from the Sioux Falls, South Dakota, Argus Leader, appearing on October 23, 1986, and October 25, 1986, respectively, contain several comments by the then Governor and others concerning early release of inmates. The Argus Leader has the largest circulation of any newspaper in South Dakota. A request has been made to the Argus Leader to further search its files and provide copies of any other articles concerning inmate release. Those articles, if any, will be forwarded to the Court when available.
PROFILE OF INMATES RELEASED UNDER GOVERNOR'S COMMUTATION
The Appellants' Supplemental Brief indicated that thirty-seven inmates had been released in October, 1986, under the Governor's early release program. The actual number released was thirty-six; Appellants' counsel apologizes for the error. The inmate profile requested by the Court is attached. Also attached is a copy of the commutation agreement each inmate was required to sign and the Governor's commutation order. Dated this 28th day of January, 1987. /s/ Richard Dale Richard Dale Assistant Attorney General State Capitol Pierre, S.D. XXXXX-XXXX Telephone: (605) 773-3215 Attorney for Appellants

McMILLIAN, Circuit Judge, dissenting.
I respectfully dissent.
First, the constitutional issue presented in this case may now be moot. Progress reports filed this year by the state indicate that conditions at the penitentiary have been significantly improved. The district court's remedial order prohibiting double-celling and adopting ACA rated capacity standards was expressly based upon the conditions existing at the time of the district court's decision in 1984. If the state has in fact made substantial progress in improving the very conditions which warranted the district court's remedial order, then the district court should be given the opportunity to assess the state's improvements and, if conditions have significantly improved, perhaps modify its remedial order. The prohibition against double-celling and the requirement that prison officials follow ACA rated capacity standards may no longer be necessary. Accordingly, I would remand the case to the district court for the limited purpose of holding an evidentiary hearing.
On the merits, the state has not argued that the district court's factual findings about the conditions at the penitentiary are clearly erroneous. Given the district court's comprehensive and detailed findings about the many serious deficiencies in the conditions of confinement, including the physical plant, security, staffing, sanitation, safety and fire hazards, overcrowding, violence, food services, and medical and other prisoner services, I would hold that the district court did not err in holding that, under these conditions, considered as a whole, double924 celling was unconstitutional. *924 Accordingly, I would affirm the remedial order of the district court prohibiting double-celling and adopting the ACA rated capacity standards for the reasons discussed in the panel majority opinion. Cody v. Hillard, 799 F.2d 447, 449-51 (8th Cir.1986) (Heaney, J.), citing French v. Owens, 777 F.2d 1250, 1252 (7th Cir.1985), cert. denied, ___ U.S. ___, 107 S.Ct. 77, 93 L.Ed.2d 32 (1986), Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir.1984), and Wellman v. Faulkner, 715 F.2d 269 (7th Cir.1983), cert. denied, 468 U.S. 1217, 104 S.Ct. 3587, 82 L.Ed.2d 885 (1984). Cf. Rhodes v. Chapman, 452 U.S. 337, 347-50, 101 S.Ct. 2392, 2399-2401, 69 L.Ed.2d 59 (1981) (given otherwise relatively good conditions at prison, double-celling held not unconstitutional).
This case is not about prisoner discomfort; it is about the minimum standards of humane imprisonment required by the eighth amendment. "[C]onditions [of confinement] that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id. at 347, 101 S.Ct. at 2399. "But incarceration is not an open door for unconstitutional cruelty or neglect. Against that kind of penal condition, the Constitution and the federal courts, it is to be hoped, together remain as an available bastion." Id. at 369, 101 S.Ct. at 2411 (Blackmun, J., concurring in the judgment).
[1] The District Court's order prohibits double-celling of even those inmates who voluntarily have chosen to share the same cell, and thus implies that such voluntary double-bunking constitutes an Eighth Amendment violation. The suggestion that such voluntary double-bunking constitutes cruel and unusual punishment under the standards announced in Rhodes and Whitley clearly is insupportable.
[1] The futility of the rehearing en banc requiring the judicial energies of ten judges is fully demonstrated on this record. The ill side effects of any en banc rehearing are disclosed here. The district court filed its memorandum opinion on May 31, 1984. On July 8, 1985, the district court filed its final order. Notice of appeal was filed on July 22, 1985. The case was submitted to the panel on February 13, 1986. At that time it was fully reviewed on the record concerning the totality of the circumstances. The panel decision was issued on September 2, 1986. It was later placed en banc and submitted to the court on January 12, 1987. Now a year and a half after this case was originally submitted to a panel of this court, the majority of the en banc court finally concludes that double celling in South Dakota is not per se impermissible. Such a decision at this late date in light of the changed circumstances is rendered in a vacuum. As will be explained, it is totally irrelevant to the facts which now exist.
[2] The majority simply disagrees with the district court's finding as to the relationship of double celling to the overall deficiencies. The district court found similar overcrowding conditions as existed in Campbell v. Cauthron, 623 F.2d 503, 505-07 (8th Cir.1980). The majority overlooks Judge Porter's statement that:

This court's findings with respect to various conditions of confinement at the SDSP run contrary to the "generally favorable findings" cited in Rhodes: the ventilation system, especially regarding West Hall where the majority of double-celling exists, is inadequate; the heating system in all three cell halls is generally inadequate and fails to adequately control air temperatures throughout each cell hall; several inmates are double-celled in Federal Hall where there is no running hot water; there are no lounges or dayrooms available to ameliorate the effects of double-celling (see SDSP Study, Appendix A at 7, 12); the Warden at the SDSP testified that double-celling at the SDSP has placed undue burdens on various services, programs and maintenance activities with respect to the physical plant; the SDSP is grossly understaffed; overcrowding at the SDSP has a negative impact on the availability of jobs for a significant number of inmates; several unsanitary conditions exist in the kitchen and food storage areas; and system-wide deficiencies are present in the areas of physical and mental health care. These findings, despite other more favorable findings such as the generally adequate level of sanitation throughout the SDSP, the generally low tension among inmates and among inmates and staff, and the sincere efforts made by the SDSP administration and staff to maintain a healthful prison environment, constitute for the most part structural deficiencies of a permanent nature in numerous services, programs and in the physical plant at the SDSP. Many of these findings relating to structural deficiencies at the SDSP spring directly from the Statecommissioned SDSP Study. The record in this case supports the conclusion that overcrowding, as evidenced by the extent of double-celling, substantially contributes to the substandard living conditions at the SDSP.
Cody v. Hillard, 599 F.Supp. 1025, 1052 (D.S.D.1984).
[3] The district court wrote some 83 pages carefully analyzing the overall deficiencies of the South Dakota prison system. In my judgment, it is one of the most thorough analytical district court opinions I have ever read. It holds, albeit reluctantly, that under the totality of circumstances the prison system in South Dakota is unconstitutional as violating the eighth amendment. It does not hold any specific area of the prison unconstitutional without reference to the whole of the inhumane conditions which existed. These findings were not appealed. The only finding the state appealed was the ban on double celling. When considered on the record as a whole, the majority ignores all of these findings on the simple, conclusory ground that the various findings are not related. On the face of this record, this does not rationally follow.
There is no question that courts are less competent to "administer" prisons than wardens and state correctional officers. But this does not mean that courts must continue to treat prisoners inhumanely without respect to their conditions of confinement. The "hands-off doctrine" no longer bars constitutional application inside the prison walls. The United States Supreme Court has acknowledged this as have various federal courts, including this court. Rhodes v. Chapman, 452 U.S. 337, 354, 101 S.Ct. 2392, 2403, 69 L.Ed.2d 59 (1981) ("Thus, the lower courts have learned from repeated investigation and bitter experience that judicial intervention is indispensable if constitutional dictates 0907 not to mention considerations of basic humanity 0907 are to be observed in the prisons." (Brennan, J., concurring) (emphasis in original)); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974) ("prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime"); Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) ("[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution." censorship of mail involves free speech); Morrissey v. Brewer, 408 U.S. 471, 480-82, 92 S.Ct. 2593, 2599-2601, 33 L.Ed.2d 484 (1972) (parole revocation, although it is not a criminal prosecution involves constitutional considerations); Campbell v. Cauthron, 623 F.2d 503, 505 (8th Cir.1980) (overcrowding, inadequate diet and forced religious indoctrination; court ordered its elimination); Finney v. Arkansas Bd. of Correction, 505 F.2d 194 (8th Cir.1974) (problems of housing, lack of medical care, torture, racial discrimination; some amelioration was insufficient); Jackson v. Bishop, 404 F.2d 571 (8th Cir.1968) (use of strap was cruel and unusual; injunction ordered); Campbell v. Miller, 787 F.2d 217, 227 n. 17 (7th Cir.) ("[O]ur deference to the administrative expertise and discretionary authority of correctional officials must be schooled, not absolute." declining to interfere with commissary account impoundment), cert. denied, ___ U.S. ___, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986); Abdul Wali v. Coughlin, 754 F.2d 1015, 1018 (2d Cir.1985) (preliminary injunction permitting inmates to receive critical report of prison conditions upheld); Battle v. Anderson, 708 F.2d 1523, 1539 (10th Cir.1983) (per curiam) (overcrowding, understaffing; ordered district court to retain jurisdiction and monitor compliance), cert. denied, 465 U.S. 1014, 104 S.Ct. 1019, 79 L.Ed.2d 248 (1984); Smith v. Sullivan, 611 F.2d 1039, 1044 (5th Cir.1980) (overcrowding; remanded for hearing to determine if it reached constitutional

proportions); Nadeau v. Helgemoe, 561 F.2d 411, 419 (1st Cir.1977) (limitation of access to library cannot be arbitrary and capricious). To treat prisoners as mere numbers to be discarded as human waste is far from my understanding of the Constitution. Surely courts should not run prisons. But to those who have been so unfortunate as to violate the law, the Constitution no longer closes its eyes to the total process of dehumanization. Campbell v. Cauthron, 623 F.2d 503 (8th Cir.1980) (overcrowding, inadequate diet, forced religious inculcation); Burks v. Teasdale, 603 F.2d 59 (8th Cir.1979) (overcrowding; upheld enforcement of timetable for compliance and retention of jurisdiction by district court); c.f. Carpenter v. State, 536 F.2d 759, 763 (8th Cir.1976) (asserted first amendment violations carefully scrutinized, but no right to sexually explicit mail), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977). It is an old axiom that it is human nature to abuse power 0907 nowhere is this more true than in the prison setting. It is not judicial activism to recognize constitutional intervention when the state refuses to provide humane treatment to those incarcerated. Federal judges who blindly interpret the hands-off doctrine to mean that the Constitution stops at the prison wall are grossly mistaken. A person who violates the law is separated from society as punishment for the crime committed. He serves time in a custodial setting. However, he is not sent to prison to have further punishment inflicted upon him by inhumane treatment. To close the eyes of judges by reference to the hands-off doctrine is a throwback to the Dark Ages.
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 </s> 139 F.3d 1197 (1998)
William R. CODY, individually and on behalf of all other persons similarly situated, Plaintiff 0907 Appellant,
Roger Flittie, individually and on behalf of all other persons similarly situated, Appellants, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gehlhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary, individually and in their official capacities, Defendants 0907 Appellees.
No. 97-2020.
United States Court of Appeals, Eighth Circuit.
Submitted December 12, 1997. Decided March 27, 1998.
Elizabeth Alexander, Washington, DC, argued (Donna H. Lee, Washington, DC, on the brief), for PlaintiffAppellant.
Todd Alan Love, Pierre, SD, argued (Mark Barnett, Atty. Gen., Frank E. Geaghan, Pierre, SD, on the brief), for Defendants-Appellees.
Before MURPHY, JOHN R. GIBSON, and MAGILL, Circuit Judges.
1198 *1198 JOHN R. GIBSON, Circuit Judge.
William R. Cody and Roger Flittie, individually and as class representatives, appeal from the district court's order dissolving the consent decree in this South Dakota prison reform litigation. Cody and Flittie argue that the district court did not consider the relevant criteria in deciding whether to dissolve the decree and that the court's finding that the defendants had complied with the decree substantially and in good faith was clear error. Cody and Flittie also argue that the district court should have held an evidentiary hearing before resolving the factual issues of defendants' past and present compliance with the decree and their future compliance with the Constitution. We remand for more complete findings and articulation of the basis for the district court's exercise of its discretion.
This case was filed in 1982, challenging conditions and practices of confinement at the South Dakota State Prison and Women's Correctional Facility. On May 31, 1984, after trial, the district court held that conditions at the South Dakota State Penitentiary violated the Eighth and Fourteenth Amendments. Cody v. Hillard, 599 F.Supp. 1025, 1062 (D.S.D.1984). The court's final order was entered on July 8, 1985, covering the subjects of overcrowding, double-celling, and inadequate quality control and staffing for health services. We reversed in part and affirmed in part. Cody v. Hillard, 830 F.2d 912 (8th Cir.1987) (en banc), cert. denied, 485 U.S. 906, 108 S.Ct. 1078, 99 L.Ed.2d 237 (1988). On July 8, 1985, the court entered a detailed consent decree covering the discrete subjects of environmental conditions, medical and dental care, psychiatric and psychological care, and access to courts. The consent decree is the subject of the present motion. The consent decree did not state the time of its duration, but it did provide that the defendants would provide formal progress reports concerning their compliance with the decree in June, September, and December 1985, and March 1986.
On two occasions, in July 1987 and May 1992, the district court held hearings to determine whether the prison was in compliance with the consent decree. After the July 1987 hearing the district court filed an order "recognizing the earnest steps taken by the Defendants in addressing the issues raised in this action," but requiring the parties to appoint a health and safety panel to agree on specific steps to remedy deficiencies in compliance with the decree. The court also extended the monitoring requirement of the consent decree through 1988. After the 1992 hearing, the court entered an order requiring the defendants to take various actions the

court held to be necessary under the consent decree and supplemental orders. For instance, the court ordered the defendants to balance the ventilation system in the prison, to cease storing non-polar solvents in ungrounded containers in the prison shop area, and to install a vacuum-based cleaning system in the carpentry shop and eventually install a central ventilation system in that shop. In particular, the court noted that the prison was not in compliance with fire safety and ventilation requirements of the consent decree and the court's supplemental orders in the prison furniture refinishing shop. The court ordered immediate compliance with fire safety requirements in that shop and compliance with dust removal requirements "forthwith, but in any event by December 31, 1992." The court was quite critical of the defendants' compliance with the fire safety requirements, stating that "fire safety hazards have continued for years after they were ordered to be remedied and defendants still have no plans to abate them."
On April 16, 1996, the defendants filed a motion under Fed.R.Civ.P. 60(b) to dissolve the consent decree and supplemental orders. The defendants filed a memorandum in support of their motion, contending that they had substantially complied with the consent decree and attaching exhibits (such as reports by the plaintiffs' experts) which they argued established that compliance. The plaintiffs opposed vacatur of the consent decree, arguing that the district court had to hold a hearing to determine defendants' past and present compliance with the decree and the outlook for defendants' future compliance with the Constitution.
The district court refused to order a hearing, but ordered the plaintiffs to file supplemental materials setting forth 1199 the areas of defendants' non-compliance with the consent *1199 decree. The plaintiffs filed the declaration of
their expert Robert Powitz, Ph.D., who stated that he had inspected the prison in October 1996 and that he had concluded that "there are a number of conditions that pose serious health or safety risks." Powitz detailed those conditions, but except for one paragraph in a four-page report, he did not specify whether the conditions he pointed out were covered by the consent decree. The plaintiffs filed a supplemental brief linking the conditions noted by Powitz to provisions of the consent decree and supplemental orders.
The district court then entered an order dissolving the consent decree. The findings of fact and conclusions of law consisted entirely of the following two paragraphs:
The Court having considered the motion herein filed does determine that the consent decree has served its purposes and is no longer needed in order to serve the public interest.
Throughout the period of the consent decree, lasting as it has for over ten years, the defendants have conscientiously and in good faith complied substantially with its terms. Notwithstanding defendants' compliance, plaintiff invites the Court to continue its jurisdiction. However, in the absence of ongoing substantial violations, the Court declines the invitation. Board of Educ. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 1. Ed.2d 715 (1991). The Court sees no need for a further evidentiary hearing.
The decision to terminate jurisdiction over a consent decree rests in the district court's discretion. See McDonald v. Carnahan, 109 F.3d 1319, 1321 (8th Cir. 1997). In exercising that discretion, the district court should consider the following factors:
(1) any specific terms providing for continued supervision and jurisdiction over the consent decree; (2) the consent decree's underlying goals; (3) whether there has been compliance with prior court orders; (4) whether defendants made a good faith effort to comply; (5) the length of time the consent decree has been in effect; and (6) the continuing efficacy of the consent decree's enforcement.
Id.; see also Board of Educ. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 636-37, 112 L.Ed.2d 715 (1991) (if district court finds that defendant operating in compliance with Constitution and unlikely to return to "its former ways," purposes of injunction have been achieved).
The plaintiffs contend that the district court clearly erred in ignoring their evidence that there were past and present violations of the consent decree. The defendants contend that the district court did not ignore that

evidence, but simply determined that the alleged past violations were insubstantial and that many of the conditions currently complained of by Powitz are not covered by the consent decree.[1]
The abbreviated order of the district court fails to demonstrate compliance with McDonald v. Carnahan. Further, we cannot determine the basis for the district court's decision from this brief order. The record indicates that there have been failures in the past to comply with the decree and supplemental orders, and that there are still at least some violations of the decree. The district judge's order does not give us enough information to determine whether he ignored the evidence of past and present violations or whether he considered any violations inconsequential in the context of substantial compliance. If the conditions Powitz complained of constitute violations of the consent decree, the district court must exercise its discretion in determining whether those violations were serious enough to constitute substantial noncompliance and to cast doubt on defendants' future compliance with the Constitution. See McDonald, 109 F.3d at 1322-23. Moreover, the ultimate question of 1200 whether the defendants are likely to comply *1200 with the Constitution in the absence of court supervision is a question of fact, see Dowell, 498 U.S. at 247, 111 S.Ct. at 636-37, for which the district court made no finding.
We may not make these findings of fact or exercise discretion in the district court's stead. See Duffie v. Deere & Co., 111 F.3d 70, 74 (8th Cir.1997) (function of appellate court is to review findings of fact, not to make them); Bannister v. Sorenson, 103 F.3d 632, 636-37 (8th Cir.1996). At the same time, the district court's findings and conclusions are simply too cryptic for us to ascertain whether the court applied all the factors listed in McDonald, and if it did, whether it did so without clear error or abuse of discretion.
Federal Rule of Civil Procedure 52(a) generally requires findings of fact and conclusions of law for rulings on injunctions, but not on motions. However, we need not decide what Rule 52 requires on this motion to dissolve an injunction, since we may remand even a ruling on a motion for findings and conclusions if our review would be hindered without them. DeShane v. Deere & Co., 726 F.2d 443, 446 (8th Cir.1984); see also Romer v. Green Point Sav. Bank, 27 F.3d 12, 16-17 (2d Cir.1994) (remanding for findings on temporary restraining order, even though Rule 52 does not require findings for t.r.o.; without further explanation of the district court's ruling, court of appeals would have difficulty understanding the basis of the ruling and determining whether district court applied law correctly). We therefore remand to the district court to apply the factors we recited in McDonald and to enter findings of fact and conclusions of law that will enable us to review its decision.
The plaintiffs further argue that they were entitled to an evidentiary hearing. They do not cite any cases stating that a hearing is a necessary prerequisite to terminating supervision over a decree (as opposed to modifying a decree, see Heath v. DeCourcy, 992 F.2d 630, 634 (6th Cir.1993)). At any rate, the necessity of a hearing depends on whether there are disputed factual issues. In this case there appear to be factual disputes crucial to resolution of the motion. It is, therefore, necessary that the court either conduct such a hearing or articulate the rationale that would make such a hearing superfluous.
We remand for further proceedings in accordance with this opinion. We retain jurisdiction.
[1] The defendants argue that the court should not consider Powitz's declaration because it does not comply with the formal requirements of 28 U.S.C. § 1746 (1994). Defendants did not raise this question at the district court level, where the defect could have easily been corrected. Even more crucial, in opposing the plaintiffs' request for an evidentiary hearing, the defendants relied on similar declarations of Powitz, which they referred to as "a vast evidentiary foundation" supporting the district court's ruling. We need hardly say that defendants' objection is waived.
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 </s> 304 F.3d 767 (2002)
William R. CODY, individually and on behalf of all others similarly situated, PlaintiffAppellee, v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gellhoff, Member; Lyle Swenson, Member; James
Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants-Appellants.
No. 00-3918.
United States Court of Appeals, Eighth Circuit.
Submitted: December 14, 2001. Filed: September 11, 2002.
7678901 *768 *769 *770 *771 James E. Moore, argued, Sioux Falls, SD, for appellant.
Elizabeth Alexander, argued, Washington, DC (Tom Clayton, on the brief), for appellee.
Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The Cody class[1] in this long-running prison civil rights litigation seeks attorneys' fees for counsel's work that culminated in a private settlement agreement dismissing the case without prejudice. Because the class had earlier obtained a consent decree lasting more than a decade, and because the parties' earlier practice had been for the defendants to pay the class's legal fees, the district court[2] awarded fees. The State appeals, and we affirm.
I.
The class members are South Dakota prisoners. Defendants are that state's main prison officials, whom we refer to as the State. In 1980 the class sued under 42 U.S.C. § 1983 to challenge conditions of confinement in several South Dakota prisons as violative of the Eighth and Fourteenth Amendments. After a bench trial, the district court held that numerous conditions in the prison system were unconstitutional. Cody v. Hillard, 599 F.Supp. 1025 (D.S.D.1984). In July 1985, the parties entered into a consent decree that set out remedies for many of the violations found by the court. The decree addressed prison environmental conditions, fire safety, medical and psychological care, and prisoners' access to the courts, among other subjects. The decree recited that its remedial provisions were "fairly supported by the evidence."
In the years that followed, the State paid attorneys' fees to the class on multiple occasions beginning at least as early as 1985. The State did not dispute the class's entitlement to fees, though the parties sometimes negotiated the reasonableness of particular fee and expense requests.
The court held evidentiary hearings in 1987 and 1992 to monitor the State's compliance with the consent decree. After the 1987 hearing the court entered a supplemental order outlining procedures to identify "deficiencies in compliance." After the 1992 hearing the court found that the State had failed to comply with the decree in certain respects relating to sanitary conditions in the prison and inmate fire safety. It entered supplemental remedial orders.
772 *772 On April 16, 1996, the State, arguing that it was now in substantial compliance, moved under Fed.R.Civ.P. 60(b) to dissolve the consent decree and supplemental orders. The class opposed the motion. After submissions,

but without an evidentiary hearing, the district court entered a two-paragraph order terminating the decree. The class appealed. We remanded, holding that the district court's order had not provided a sufficient factual or legal basis to explain its decision. Cody v. Hillard, 139 F.3d 1197, 1199-1200 (8th Cir. 1998). We noted that the record suggested "there [we]re still at least some violations of the [consent] decree." Id. at 1199.
After remand, before the district court entered any further ruling, the parties entered into a settlement agreement stipulating that the case would be dismissed without prejudice. Most of the agreement consists of promises by the State to take specific steps to improve prison conditions. The agreement contains no provision expressly discussing attorneys' fees.
The district court approved the settlement agreement on February 17, 2000. Cody v. Hillard, 88 F.Supp.2d 1049 (D.S.D.2000). Shortly thereafter, the class moved for an award of fees for the work its counsel had done since December 1, 1995. Over the State's opposition, the district court awarded most of the fees sought. The court held that the initial litigation had established the class's status as prevailing parties under 42 U.S.C. § 1988 (2000), entitling them to attorneys' fees for work done to enforce the relief ordered in the consent decree. The court further held that the work done by class counsel in monitoring the decree, resisting the State's motion to vacate it, and negotiating the settlement agreement upon remand was inextricably intertwined with the initial litigation. Finally, the court held that awarding fees did not violate the Prison Litigation Reform Act of 1996. The court applied the Prison Litigation Reform Act's hourly rate caps to the work done after the Act's effective date, and calculated a final fee award of $106,877.74.
The State appeals this award. It presents the same arguments it raised below: (1) that with respect to most of the work at issue here, the class was not a "prevailing party" under 42 U.S.C. § 1988; (2) that the award was contrary to the Prison Litigation Reform Act, which limits fees not "directly and reasonably incurred" in proving a violation, see 42 U.S.C. § 1997e(d)(1)(A) (2000); and (3) that the class waived any right to seek attorneys' fees by entering into a settlement agreement silent about fees. We consider each argument in turn.
II.
Under 42 U.S.C. § 1988, district courts may award attorneys' fees to the "prevailing party" in suits brought under 42 U.S.C. § 1983 and other civil rights statutes. A plaintiff who prevails under a statute covered by § 1988 is normally entitled to fees. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir.1998). We review legal issues relating to fee awards de novo, the awards themselves for abuse of discretion. Jenkins v. Missouri, 127 F.3d 709, 713-14 (8th Cir.1997).
The Supreme Court recently clarified the meaning of "prevailing party" in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). That case held that a plaintiff must secure a "judicially sanctioned change in the legal relationship of the parties" to qualify 773 as a prevailing party. *773 Id. at 605, 121 S.Ct. 1835.[3]Buckhannon affirmed that a plaintiff who obtains either an enforceable judgment on the merits or a court-ordered consent decree has established the required judicially sanctioned change in legal relationship, and so is a prevailing party. Id. at 604, 121 S.Ct. 1835.
Here, the class obtained a court-ordered consent decree which governed the operation of the prison for twelve years. This was clearly a "judicially sanctioned change" in the parties' relationship that conferred prevailing party status on the class under Buckhannon. Id. at 605, 121 S.Ct. 1835.
Nevertheless, that a plaintiff has once established prevailing party status does not make all later work compensable. Compensability is subject to several limitations. First, the award of fees should take into account the degree of a plaintiff's success in the case as a whole. Jenkins, 127 F.3d at 718. Second, an earlier established prevailing party status extends to postjudgment work only if it is a "necessary adjunc[t] to the initial litigation." Id. at 716. Work that is more "like a new, separate lawsuit" requires a fresh determination of entitlement to fees. The test is whether the later issues litigated were "inextricably intertwined with those on which the plaintiff prevailed in the underlying suit." Id. at 717. Third, plaintiffs cannot over-litigate. Postjudgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree. Hensley v. Eckerhart, 461 U.S. 424, 433-34,

103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "[S]ervices that were redundant, inefficient, or simply unnecessary are not compensable." Jenkins, 127 F.3d at 716.
It is helpful to divide the period of time for which the class seeks fees into three phases. See Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 549, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (describing analysis by phases as "useful in protracted litigation"). In the first phase, the class seeks a small amount of fees for monitoring the State's compliance with the consent decree after December 1, 1995. This phase ended when the State filed its motion to dissolve the decree under Rule 60(b) on April 16, 1996. The second phase consists of the class's litigation before the district court and this court in opposition to the motion to dissolve. It culminates in our remand order of March 27, 1998, Cody v. Hillard, 139 F.3d 1197 (8th Cir.1998). Finally, the third phase is work done after the remand to negotiate and secure approval of the private settlement agreement. The district court approved the settlement on February 17, 2000, and this phase ends with the filing of the class's petition for fees on March 15, 2000.
One of the State's arguments against prevailing-party status applies to the entire period at issue. The district court's 1997 order said it "vacated" the consent decree and remedial orders in the case, rather than saying it 774 "terminated" them. Some courts have expressly distinguished *774 these terms. In construing the automatic termination provisions of the Prison Litigation Reform Act, the First Circuit stated that "`terminate' means `to put an end to' or `to end,' whereas `vacate' means `to annul' or `to render ... void.'" Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir.1997) (internal citation omitted) (quoting Black's Law Dictionary 1471, 1548 (6th ed.1990)). The court thought this distinction "may well possess practical significance" in the context of prison civil rights litigation. Id. "While terminating a consent decree strips it of future potency," it observed, "the decree's past puissance is preserved.... Vacating a consent decree, however, wipes the slate clean ... and, indeed, cast[s] a shadow on past actions taken under the decree's imprimatur." Id. Citing Rouse, the State argues that because the district court said "vacate," its order wiped away the earlier existence of the consent decree, depriving the class of its prevailing-party status, which is based on the decree.
We are reluctant to consider this argument since it was not clearly articulated until the State's reply brief. See Akeyo v. O'Hanlon, 75 F.3d 370, 374 n. 2 (8th Cir. 1996). Assuming it is proper to address the argument, we reject it. Our own most recent opinion in this case described the order as a "decision to terminate jurisdiction over a consent decree," and analyzed it accordingly. Cody, 139 F.3d at 1199. Quite apart from our choice of words, it is facially clear from the order that it was a termination order, of prospective effect. It recited that "the consent decree has served its purposes and is no longer needed in order to serve the public interest." Id. (emphasis added). The order added that the class had asked the court "to continue its jurisdiction," but that "in the absence of ongoing substantial violations, the Court declines the invitation." See id. None of this suggests that the district court held the decree to have been void from the start. Rather, the court held only that it need not be extended into the future. Hence the order did not "cas[t] a shadow on past actions" under the decree, Rouse, 129 F.3d at 662, or nullify the class's prevailing-party status.
The State does not otherwise dispute that class counsel's activity in the first of the three phases was compensable under prevailing-party case law. A district court may award fees to a prevailing party for reasonable postjudgment monitoring. Association for Retarded Citizens of North Dakota v. Schafer, 83 F.3d 1008, 1010-11 (8th Cir.1996); see Mills v. Freeman, 118 F.3d 727, 733-34 (11th Cir.1997). The class's considerable success in the litigation as a whole supports a fee award in this phase. The parties do not dispute the district court's assessment of reasonable fees for the particular steps class counsel took during this time. We thus uphold the award for this phase without further discussion.
The State does argue, however, that the class members fail to qualify as prevailing parties with respect to the second and third phases, which begin with the State's motion to vacate the decree. The State maintains that this part of the litigation was not "inextricably intertwined" with the constitutional violations recognized in the class's consent decree, because the settlement agreement the parties finally entered into after remand addressed issues not contained in the decree. Hence the class cannot claim fees unless it "prevailed" anew on these issues under Buckhannon's standards. Securing the settlement agreement, the State further argues, was not enough to do this.

We reject the State's contention with respect to the second phase, resisting the motion to vacate. We have held 775 before *775 that work done to defend a remedy for a constitutional violation is inextricably intertwined with the
litigation that yielded that remedy. See Jenkins, 127 F.3d at 717-18; Schafer, 83 F.3d at 1011. The fact that plaintiffs did not prevail before the district court in this phase of litigation does not deprive them of fees. When a remedial consent decree is threatened, "plaintiffs' counsel [are] under clear obligation to make the defensive effort." Id. (quoting Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir.1990)). We have also held that as long as a plaintiff's litigation to protect a remedy does not rise to the level of overkill, "even largely unsuccessful defensive efforts may be compensable." Schafer, id. at 1011-12; see Plyler, 902 F.2d at 280-81 (awarding full compensation for plaintiffs' largely unsuccessful opposition to attempt to modify consent decree; work was "essential to the preservation of the integrity of the consent decree as a whole"). Here, the class achieved partial success in this phase by winning a remand from this court. The State does not contend that they engaged in excessive litigation, nor would the record support this view. We therefore hold that the district court's award of fees for class counsel's work before the district court and this court during the second phase was consistent with the "prevailing party" requirement, and a permissible exercise of the court's discretion.
Similar reasoning justifies compensating class counsel's activity in the third phase, negotiating the settlement agreement after remand. The settlement agreement's provisions correspond to the more general provisions of the original consent decree and the supplemental remedial orders. As the district court earlier observed, the agreement
contain[s] more specific language than is found in the 1985 Consent Decree. For example, the Consent Decree provides that defendants "shall provide proper medical screening for newly admitted inmates" while the Settlement Agreement specifies diagnostic and infection control procedures consistent with Center for Disease Control guidelines. In addition, the Consent Decree states that "adequate ventilation" must be provided in the West Hall shower, while the Settlement Agreement specifies that defendants shall provide at least ten air exchanges per hour.
Cody, 88 F.Supp.2d at 1059. In addition to the examples given by the district court, the settlement agreement's provisions dealing with fire safety inspections, plumbing and ventilation maintenance, the storage of food and combustible materials, and initial medical screening of prisoners for tuberculosis likewise implement more general commands on these subjects in the consent decree. Similarly, the agreement's provision for chemical disposal in the prison wheelchair shop corresponds to the consent decree's requirement that adequate ventilation be maintained in the prison shops. We agree with the district court that the issues dealt with by the agreement are "inextricably intertwined" with the issues in the consent decree. Thus, class counsel's work on all three phases is compensable under the general fee-shifting framework.

III.

Because the class members are prisoners, their civil rights suit is also subject to the Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321-1371, or PLRA, which imposes special limitations on fee awards. It provides:

(1) In any action brought by a prisoner who is confined to any jail, prison or other correctional

776

facility, in which attorney's fees are authorized under [42 *776 U.S.C. § 1988], such fees shall not

be awarded, except to the extent that 0907

(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under [42 U.S.C. § 1988]; and

(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or

(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.

42 U.S.C. § 1997e(d)(1) (2000). The State argues that this provision bars any award of fees for the work done by class counsel after March 13, 1997, when the district court entered its order vacating the consent decree. The State claims that because the work after this event yielded only a private settlement agreement, it was not "directly and reasonably incurred in proving an actual violation of the plaintiff's rights," § 1997e(d)(1)(A), and so is not compensable.
To evaluate this argument we must interpret § 1997e(d)(1), which, like other parts of the PLRA, "is not a paragon of clarity." Rouse, 129 F.3d at 654. The language of subsection (B)(ii) envisions that fees will sometimes be available for legal work that "enforc[es] ... relief" ordered for constitutional violations. Yet (B)(ii) is connected by an "and" to subsection (A), which authorizes only fees that are "incurred in proving" a violation. Read in isolation, subsection (A) might be thought to forbid any fees for legal work done to enforce previously established relief. One would not ordinarily say that a lawyer performing such work is "proving" a violation.
Statutes are to be interpreted as a whole, however. United States v. Talley, 16 F.3d 972, 976 (8th Cir.1994). In particular, courts should not interpret one provision "in a manner that renders other sections of the same statute inconsistent, meaningless, or superfluous." United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999) (quotation marks omitted). Here, subsection (A) and subsection (B)(ii) are flatly inconsistent unless (A) permits some fee awards for enforcement work, thus allowing some effect to (B)(ii).
A reasonable reading of the statute accomplishes this. Under the PLRA, attorneys' fees can be awarded in a prisoner civil rights case only if the prisoner "prov[es] an actual violation of ... rights" protected by a relevant statute. § 1997e(d)(1)(A). Once a violation has been proven, later work is compensable if it is "directly and reasonably incurred in enforcing the relief ordered" for the violation. § 1997e(d)(1)(B)(ii).[4]Accord Webb v. Ada County, 285 F.3d 829, 834-35 (9th Cir.2002). See also Martin v. Hadix, 527 U.S. 343, 353, 360, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (affirming fee award under PLRA for postjudgment monitoring, while reducing award in accordance with PLRA's hourly rate cap; describing § 1997e(d)(1) in dictum as permitting awards for fees "`directly and reasonably incurred' in the suit, and ... `directly and reasonably incurred in enforcing' the relief ordered."). The PLRA, so interpreted, permits fees for the work at issue here. We divide the period into three phases for analysis, as we did in Part II supra.
777 The first phase is routine monitoring prior to the filing of the state's motion *777 to vacate. This work was performed before the PLRA's effective date of April 26, 1996, so the statute does not apply to it. Hadix, 527 U.S. at 347, 119 S.Ct. 1998.
The second phase is the class's litigation from April 16, 1996 to March 27, 1998, opposing the motion to vacate. The PLRA governs most of this work. However, this work satisfies the PLRA's requirements. The class members "prov[ed] ... actual violation[s] of [their] rights" at the start of the litigation by obtaining a bench verdict in their favor and a consent decree. Cf. Siripongs v. Davis, 282 F.3d 755, 758 (9th Cir.2002) (holding that prisoner was not eligible for fees under § 1997e(d)(1)(A) when district court issued only a temporary restraining order and never finally adjudicated the question of whether prisoner's rights were violated). The district court's remanded order vacating the decree did not wipe the slate clean, requiring the class to prove a new violation from scratch, as the State argues. The order ended the prospective effect of the consent decree but did not deem it void from the start. Hence it did not change the fact that the class members had proven actual violations of their rights.
Awarding fees is thus authorized to the extent that class counsel directly and reasonably incurred them in enforcing the relief ordered for the violations. § 1997e(d)(1)(B)(ii). There is little precedent applying this requirement. One authority states: "The implication of the provision ... is that only services calculated to enforce, by noncompliance or contempt motion, for example, the judgment and not merely to monitor the defendant's compliance with it, may be compensable under § 1988." 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation § 2.8, at p. 39 (3d ed.1997). We agree, but note that noncompliance and contempt motions are not the only types of work compensable under § 1997e(d)(1)(B)(ii). We hold that the class's effort to prolong the efficacy of the remedial decree was time spent "enforcing" that decree, and is fully compensable. Whether a plaintiff is pressing a contempt motion or defending against a motion to vacate, in both cases the point is to give effect to an existing remedy, suggesting that the two circumstances should be treated alike. The Supreme Court has suggested such an equivalence. In Delaware Valley, the Court considered a victorious plaintiff's counsel's

participation in a separate administrative proceeding that threatened to curtail the remedy the client had gained in court. The Court held this administrative litigation to be compensable. It observed that "[p]rotection of the full scope of relief afforded by the consent decree was ... crucial to safeguard the interests asserted by [the plaintiff]," describing this effort as "enforcement of the decree." 478 U.S. at 558, 106 S.Ct. 3088.
We also hold that the work in the third phase of litigation, securing the settlement agreement, is compensable under the PLRA. As discussed in Part II supra, the settlement agreement sets forth specific responses to constitutional violations that were acknowledged in the trial court's decision and the consent decree. It is reasonable to regard the work class counsel did to secure these parts of the agreement as work "incurred in enforcing" the decree. § 1997e(d)(1)(B)(ii).
IV.
The State's final argument, applicable to all three phases of class counsel's work, is that the class waived its right to seek fees by entering into the private settlement agreement. As support the State cites Young v. Powell, 729 F.2d 563 (8th Cir. 1984), and Wray v. Clarke, 151 F.3d 807 (8th Cir.1998), in which we held that civil rights 778 plaintiffs had waived fees by entering *778 into settlement agreements lacking a fees provision.
Young was an employment discrimination suit and Wray a prisoner civil rights suit, but their procedural facts were the same. In both cases the parties settled before trial and the plaintiff obtained no consent decree. The parties entered into a settlement agreement that purported to resolve all disputed issues and said nothing about plaintiff's entitlement to attorneys' fees. Young, 729 F.2d at 565; Wray, 151 F.3d at 809. We construed the agreements as excluding a fee award. Young, 729 F.2d at 566-67; Wray, 151 F.3d at 809. In Young we stated generally that "[i]f a settlement does not resolve all issues in a case, the parties should not stipulate to a dismissal without reserving the unresolved issues or in some appropriate way indicating their intent as to such issues." 729 F.2d at 567 n. 3. However, we emphasized that "[t]he case before us [did] not involve a situation wherein a settlement was finalized by a consent decree." Id. 729 F.2d at 566 n. 1 (citing Maher v. Gagne, 448 U.S. 122, 124, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)).
Wray and Young imply that if the parties to a civil rights litigation enter into a settlement agreement before entry of an enforceable judgment or consent decree, and the agreement purports to resolve all issues in the case, then it will be presumed to exclude an award of attorneys' fees to plaintiff unless the parties expressly provide to the contrary. This rule has added force after Buckhannon, since that case clarifies that a plaintiff is rarely, if ever, legally entitled to court-awarded fees unless he or she has gained a consent decree or judgment.
However, no presumption against fees applies here. The settlement we interpret was reached after the class won a consent decree, clearly establishing its status as a prevailing party. In addition, the agreement here, unlike the agreements at issue in Wray and Young, nowhere purports to resolve all disputed issues. We must therefore determine the parties' intent from other features of the agreement. We analyze settlement agreements according to general contract law principles. Gilbert v. Monsanto Co., 216 F.3d 695, 700 (8th Cir.2000).
The class argues that the text of the agreement implicitly preserves its right to seek fees. One provision permits plaintiffs to inspect the South Dakota State Penitentiary for three years after the date of the agreement. It specifies that "[t]he cost of any such inspection will be borne by the plaintiffs." The class submits that this provision only makes sense against a background assumption that it would be compensated for the time and effort that its counsel put into the case. We agree that this provision tends to support the class's reading of the document. See Crowley v. Texaco, Inc., 306 N.W.2d 871 (S.D.1981) ("Every effort should be made to give effect to every part of the contract....").
This argument is at least sufficient to establish that the agreement is textually ambiguous with respect to fees. In such a circumstance the district court could properly consider extrinsic evidence of the parties' prior conduct, as it did. A course of dealing between the parties may explain or supplement an agreement's meaning in matters left ambiguous by its express language. See Swiden Appliance & Furniture, Inc. v. Nat'l Bank of S.D., E. Branch, 357 N.W.2d 271, 274-75 (S.D. 1984); 2 E. Allan Farnsworth, Farnsworth on Contracts § 7.13, at pp. 307-09 (2d

779 ed.1998). The existence of a course of dealing is an issue of fact reviewed for *779 clear error. Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 770-71 (8th Cir.1989).
The court held that the agreement permitted a fee petition after observing that the "defendants [have] ma[d]e periodic payments of attorney fees to plaintiffs over the course of twelve years." Mem. Op. at 9. This history further distinguishes the present case from Wray and Young, where no fees had ever been paid. The State responds that other extrinsic evidence in the record undermines the conclusion the district court drew from the parties' dealings. It cites a February 26, 1996, letter from the South Dakota Attorney General's office to the class's Washington, D.C. counsel, in which counsel for the State wrote: "As I indicated on the telephone, I question the need for continued monitoring in this matter and the attorney fees incurred as a result thereof." The State argues that this letter disputed the class's entitlement to fees for monitoring work. This argument is not persuasive. If anything, the letter reflects a realization that the State would be paying any attorneys' fees "incurred as a result" of the "continued monitoring" of the case. To the extent that the letter raises a dispute, the dispute relates only to the reasonableness of continued monitoring, not to the class's status as a prevailing party entitled to fees for work class counsel reasonably performed. Alternately, the district court could have reasonably interpreted the letter as evidence that the parties did not intend the settlement to resolve the disputed issue of fees one way or the other 0907 which would still permit the class to seek fees.
The State also points to a letter of May 14, 1997, shortly after the district court's termination order, in which class counsel told the State that "we will delay our action on plaintiffs' attorneys' fees claim until the court of appeals has acted." This terse document sheds little light on the issues. At most it suggests that the State had reservations about the fees claim. Again, this would show only that the issue of fees was in dispute, not that it was resolved against the class by the agreement.
The district court's conclusion was consistent with the text of the agreement, and its interpretation of the extrinsic evidence was not clearly erroneous. There was no waiver of the right to seek fees.
For the foregoing reasons, we affirm the district court's order awarding the class $106,877.74 in attorneys' fees.
[1] Class representative William Cody also proceeds here individually, and is represented by the same counsel as the class.
[2] The Honorable Lawrence L. Piersol, Chief United States District Judge for the District of South Dakota.
[3] The claims before the Supreme Court in Buckhannon involved the "prevailing party" provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. However, Buckhannon's analysis of the meaning of "prevailing party" was general. The Court stated that it was interpreting "a legal term of art," id. at 603, 121 S.Ct. 1835, employed "in numerous statutes in addition to those at issue here," id. at 602, 121 S.Ct. 1835 (citing 42 U.S.C. § 1988). We agree with our sister circuits that Buckhannon applies broadly to fee-shifting statutes that employ the "prevailing party" language. See, e.g., Richardson v. Miller, 279 F.3d 1, 4 (1st Cir.2002); New York State Fed. of Taxi Drivers, Inc. v. Westchester County Taxi and Limousine Comm'n, 272 F.3d 154, 158 (2d Cir.2001).
[4] Enforcement work under subsection (B)(ii) is not governed by subsection (B)(i) (which is connected to (B)(ii) by an "or"), so the PLRA does not require courts to reduce fees for enforcing relief in proportion to the relative success of the claims the plaintiff originally asserted.
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 </s> Cody v. Hillard, 804 F.2d 440 (1986)

804 F.2d 440 United States Court of Appeals,
Eighth Circuit.
William R. CODY, etc., et al., Appellees, v.
Carole HILLARD, etc., Appellants. LaVerne KOENIG, etc., Appellant, Carole HILLARD, etc., et al., Appellees.
Nos. 85-5270-SD, 85-5302-SD. | Oct. 28, 1986.
*440 Appeals from the United States District Court for the District of South Dakota; Donald J. Porter, Chief Judge.

Opinion Prior opinion, 799 F.2d 447.
ORDER Appellants/cross-appellees’ petition for rehearing en banc is granted. The Clerk is directed to schedule these appeals for argument on Monday, January 12, 1987, in St. Louis, Missouri.
	
  

1

 </s> Cody v. Hillard, 485 U.S. 906 (1988)
108 S.Ct. 1078 Supreme Court of the United States William R. CODY, et al., petitioners,
v. Carole HILLARD, et al. No. 87-1171 | February 29, 1988
Case below, 799 F.2d 447; 804 F.2d 440; 830 F.2d 912.

Opinion Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Denied.
Parallel Citations 108 S.Ct. 1078 (Mem), 99 L.Ed.2d 237
	
  

1

 </s> Cody v. Hillard
United States Court of Appeals for the Eighth Circuit July 26, 1984 No. 84-1697

Reporter: 1984 U.S. App. LEXIS 20148 W. R. Cody v. Hillard

Opinion

Prior History: [*1] Appeal from the United States District Dismissed Court for the District of South Dakota


[CONTENT] March 7, 1980 | the South Dakota State Penitentiary | Sioux Falls | South Dakota | the U.S. District Court | 42 | 1983 | the South Dakota Department of Corrections ||| the National Prison Project | the American Civil Liberties Union | East River Legal Services ||| winter ||| May 31, 1984 | Donald J. Porter | 120 days ||| Cody v. Hilliard | 599 | 1025 |||  ||| October 28, 1986 | the U.S. Court of Appeals | the Eighth Circuit | Gerald W. Heaney ||| Cody v. Hilliard | 799 | 447 | 1986 ||| the Eighth Circuit | October 28, 1986 | the Eighth Circuit ||| Cody v. Hilliard | 804 | 440 | 8th Cir. 1986 ||| October 6, 1987 | Eighth Circuit | Pasco Middleton Bowman II ||| Cody v. Hilliard | 830 | 912 | 8th | 1987 |||  ||| February 29, 1988 | the U.S. Supreme Court ||| Cody v. Hilliard | 485 | U.S. | 906 | 1988 ||| July 8, 1985 | Porter ||| the years ||| April 16, 1996 ||| March 13, 1997 | Richard H. Battey |||  ||| March 27, 1998 | the Eighth Circuit | John R. Gibson ||| Cody v. Hilliard | 139 | 1197 | 8th | 1998 ||| February 17, 2000 | Lawrence L. Piersol ||| Cody v. Hilliard | 88 F.Supp.2d 1049 | (D.S.D. 2000 ||| Jude Piersol’s | 1985 ||| monthly |||  |||  ||| November 15, 2000 | Piersol | 106,877.74 |||  ||| September 11, 2002 | the Eighth Circuit | Gibson ||| Cody v. Hilliard | 304 | 767 | 8th Cir. 2002 |||  [SUMMARY] On March 7, 1980, inmates of the South Dakota State Penitentiary in Sioux Falls, South Dakota filed a class action in the U.S. District Court for the District of South Dakota under 42 U.S.C. § 1983 against the South Dakota Department of Corrections. The plaintiffs, represented by the National Prison Project of the American Civil Liberties Union and by East River Legal Services, asked the court for class certification and declaratory and injunctive relief, alleging that their constitutional rights had been violated by the conditions of their confinement. Specifically, they complained of fire hazards, unsanitary food, work safety hazards, poor ventilation, inadequate plumbing, inadequate medical care, inadequate dental care, inadequate psychological care, overcrowding, lack of hot water, lack of heat in winter, inadequate law library, lack of recreation and exercise, and inadequate grievance procedures.

On May 31, 1984, the district court (Judge Donald J. Porter) granted declaratory and injunctive relief to the plaintiffs, ordering the defendants stop double-celling inmates and to file a plan to fix the other problems within 120 days. Cody v. Hilliard, 599 F.Supp. 1025 (D.S.D. 1984). The defendants appealed. On October 28, 1986, the U.S. Court of Appeals for the Eighth Circuit (Judge Gerald W. Heaney) affirmed the district court's decision. Cody v. Hilliard, 799 F.2d 447 (8th Cir. 1986).  

The defendants asked the Eighth Circuit for a rehearing en banc, and on October 28, 1986, the Eighth Circuit agreed to rehear the case. Cody v. Hilliard, 804 F.2d 440 (8th Cir. 1986). On October 6, 1987, the en banc Eighth Circuit (Judge Pasco Middleton Bowman II) reversed the district court's order forbidding double-celling, declaring that the practice was not unconstitutional, but affirmed all other orders of the district court. Cody v. Hilliard, 830 F.2d 912 (8th Cir. 1987). The plaintiffs appealed. On February 29, 1988, the U.S. Supreme Court declined to hear the appeal. Cody v. Hilliard, 485 U.S. 906 (1988).

On July 8, 1985, the district court (Judge Porter) issued a consent decree in the case, addressing issues such as prison environmental concerns, fire safety, medical care, psychological care, prisoners' access to courts, and food preparation and sanitation.  In the years that followed, the defendants paid attorneys' fees to the plaintiffs on multiple occasions, never disputing the plaintiffs' entitlement to fees.  

On April 16, 1996, the defendants asked the district court to terminate the consent decree, arguing that they were in substantial compliance. On March 13, 1997, the district court (Judge Richard H. Battey) dissolved the consent decree and vacated all supplemental orders. The plaintiffs appealed. On March 27, 1998, the Eighth Circuit (Judge John R. Gibson) reversed the decision to dissolve the decree and remanded the case back to the district court, holding that the dissolution of the decree was not supported by sufficient findings or an articulation of basis for the decision. Cody v. Hilliard, 139 F.3d 1197 (8th Cir. 1998). 

On February 17, 2000, the district court (Judge Lawrence L. Piersol) approved a private settlement agreement between the parties and dismissed the case without prejudice. Cody v. Hilliard, 88 F.Supp.2d 1049 (D.S.D. 2000). According to Jude Piersol’s opinion, the settlement agreement contained more specific language and guidelines than the 1985 consent decree and established procedures for continued monitoring of prison conditions. The defendants agreed to monthly self-inspections for fire safety and yearly OSHA-type inspections of all shop areas. The settlement agreement provided more relief with regards to the tuberculosis isolation provision, quality control provision, and specific shop provisions.

The plaintiffs asked the district court to award them attorneys' fees.  On November 15, 2000, the district court (Judge Piersol) awarded $106,877.74 in attorneys' fees to the plaintiffs. The defendants appealed. On September 11, 2002, the Eighth Circuit (Judge Gibson) affirmed the fee award. Cody v. Hilliard, 304 F.3d 767 (8th Cir. 2002). The case is now closed.