The opinion of the court was delivered by: MUIR
This action was originally filed on October 30, 1975 by members of a class of all inmates subject to being placed in cells on the first floor of the Special Housing Unit (hereafter SHU) at the United States Penitentiary at Lewisburg, Pennsylvania. That action, after trial, resulted in an injunctive order dated March 25, 1976 directed to the Warden of the Penitentiary. On November 17, 1978, a motion was filed seeking an order holding Warden Charles E. Fenton in contempt for alleged violations of the order of March 25, 1976. A hearing was held on the motion from March 6, 1979 until March 29, 1979. The following are the Court's findings of fact, discussion, and conclusions of law.
1. Under date of March 1, 1976, this Court filed a written opinion in the above-captioned case based upon findings and conclusions drawn from a trial held during January, 1976. (Undisputed)
2. On March 25, 1976, after seeking proposals from counsel, this Court entered an appropriate Order based upon such findings and conclusions.
3. The first paragraph of the Order of March 25, 1976 provides: "Defendant shall maintain the ventilation system on the first floor of the Lewisburg Penitentiary Special Housing Unit so that it provides an average minimum of nine air changes per hour, per cell." (U)
4. The second paragraph of the Order of March 25, 1976, provides: "Defendant shall provide for an annual inspection of the ventilation system on the first floor of the Special Housing Unit by qualified ventilation personnel." (U)
6. The fourth paragraph of the Order of March 25, 1976, provides: "Each inmate confined in Disciplinary Segregation shall be afforded the opportunity to shower at least two times per week and shall be permitted no less than two hours of exercise per week. Both of these requirements may be dispensed with if compelling security or safety reasons dictate otherwise and such exceptions are documented. Exercise is to be provided in two one-hour periods, provided, however, that if the circumstances so require, exercise periods may be reduced to one-half hour each so long as the two-hour minimum per week is maintained. Shower periods and exercise periods shall be provided at different times." (U)
7. The fifth paragraph of the Order of March 25, 1976, provides: "Defendant shall follow Bureau of Prisons Policy Statement 7400.5D, July 7, 1975, on Inmate Discipline, or any succeeding policy statements which apply, with regard to placement of individuals in disciplinary segregation." (U)
8. The sixth paragraph of the Order of March 25, 1976, provides: "Defendant shall continue to maintain in cells numbered 101, 102, 103, and 114 on the first floor of the Special Housing Unit sinks capable of control from within the cell, commodes capable of control from within the cell but supplemented by commode override control from outside the cell. The Defendant shall continue to maintain the windows on the first floor of the Special Housing Unit unpainted. The Defendant shall provide lighting in each cell with bulbs totaling not less than 140 watts during reasonable hours." (U)
9. An extended period of inmate violence led to a Board of Inquiry into Lewisburg Penitentiary operations in 1976.
10. The Board of Inquiry recommended a number of changes at the Lewisburg institution.
11. Defendant Charles E. Fenton was appointed Warden of the United States Penitentiary, Lewisburg, Pennsylvania, and assumed the duties of Warden of the United States Penitentiary, Lewisburg, Pennsylvania, on or about September 1, 1976.
12. Prior to his assignment to the Lewisburg institution, Warden Fenton was Warden of the United States Penitentiary at Marion, Illinois. (U)
13. The Marion Penitentiary has been the one maximum penal institution in the Federal Prison System. (U)
14. Previous to his assignment to the Marion Penitentiary, Defendant Fenton had been Warden of the Federal Correctional Institution at Oxford, Wisconsin. (U)
15. At all times relevant hereto, and in particular, from January 1, 1978 to the present, Defendant Charles E. Fenton has been the Warden at the United States Penitentiary, Lewisburg, Pennsylvania, and as such has had overall responsibility for the management, maintenance, and operation of the institution and control over the staff at the Lewisburg Penitentiary, the inmates incarcerated therein, and in particular, the staff and inmates assigned to the first floor of the Special Housing Unit.
16. At all times relevant hereto, Warden Charles E. Fenton was aware of the provisions of the March 25, 1976 Order entered in the above captioned matter, having read said Order in 1976.
17. This Court amended the Order of March 25, 1976 by inserting a Background to that Order on March 14, 1979. (Order filed March 14, 1979; D-43) (U).
18. The Special Housing Unit at the Lewisburg Penitentiary is divided into three floors. (U)
19. The part of the Lewisburg Penitentiary now referred to as the "Special Housing Unit" originally was designed and built with one level of segregation cells, that level being the bottom floor.
21. The third floor of the Special Housing Unit is normally used to house inmates assigned to Administrative Detention, while the second floor of the Special Housing Unit is used to house inmates who are holdovers, as well as those assigned to Administrative Detention. (U)
22. The second and third floors also have been used to house inmates in disciplinary segregation status, as well as prisoners having acute mental problems, marshal's prisoners, and protection cases, among others.
23. The first floor, or "basement" of the Special Housing Unit, consists of 14 single cells, and is normally used to house inmates assigned to Disciplinary Segregation. (U)
24. The bottom floor of the Special Housing Unit also has been used for other prisoners who have high security priority, E. g., a highly assaultive prisoner in transit to the Control Unit at the United States Penitentiary, Marion, Illinois. (U)
25. The bottom floor occasionally has been used to provide single-cell housing for other inmates when that housing is not available elsewhere in the Special Housing Unit.
26. The national Federal Bureau of Prisons Policy Statement on the subject of Inmate Discipline, numbered 7400.5D, and dated July 7, 1975, defines "administrative detention" and "disciplinary segregation" in language subsequently utilized in the Local Policy Statement, No. NE 7400.5D.
27. Policy Statement NE 7400.5D, dated 9/9/75, on Inmate Discipline has been the applicable policy statement from January 1, 1978 to the present concerning conditions in Disciplinary Segregation and requirements for placement of individuals in Disciplinary Segregation. (U)
28. According to Policy Statement NE 7400.5D, Inmate Discipline, Administrative Detention is the status of confinement which results in a loss of some privileges which the inmate would have if assigned to the general population. (U)
29. According to Policy Statement NE 7400.5D, Inmate Discipline, Disciplinary Segregation includes the status of confinement of an inmate housed in an individual cell either by himself or with other inmates, separated from the general population, as a result of a hearing before the Institution Discipline Committee (IDC) in which the inmate has been found to have committed a prohibited act.
30. The 14 cells on the first floor of the SHU are separated from the other areas of the SHU located in the basement by glass doors.
31. Within the area occupied by the 14 cells on the first floor of the SHU any cells which might be used to house prisoners in Administrative Detention status are not physically separated as a group from the remainder of the cells.
32. Most of the inmates who have been housed on the first floor of the SHU have been in Disciplinary Segregation or temporary Disciplinary Segregation status, and as such are entitled to significantly fewer privileges than those inmates in Administrative Detention.
33. Cells 101, 102, 103 and 114 were used solely as disciplinary segregation cells for some time during Warden Floyd E. Arnold's tenure at the Lewisburg Penitentiary.
34. The remaining cells on the first floor were used for either disciplinary segregation or administrative detention purposes.
35. Some time after arriving at the Lewisburg Penitentiary, as Warden, the Defendant, Charles E. Fenton, changed the institution's procedures so that all cells on the first floor could be used for disciplinary segregation or administrative detention purposes.
36. Those inmates who are housed on the first floor of the Special Housing Unit who are not in Disciplinary Segregation or temporary Disciplinary Segregation status are considered by the penitentiary staff to be in Administrative Detention status.
38. When Defendant came to the Lewisburg Penitentiary cell door wickets were being used to seclude inmates from others who were working in cell corridors. (U)
39. During an inspection shortly after his arrival at Lewisburg, several inmates, and one in particular, attempted to intimidate Warden Fenton by threats and insults, at which the Warden directed that the inmates' cell door wickets be raised to a closed position.
40. Defendant directed that the cell door wicket be closed for any prisoner who attempted to intimidate any staff member in the performance of his duties. (U)
41. Authority to close cell door wickets earlier had been delegated to the Supervisor of the Special Housing Unit, but, now orders to close wickets either must be cleared by the Warden in advance or presented for his review as soon as practicable. (U)
42. More recently transparent wickets have been installed on a number of cell doors on the first floor of the Special Housing Unit. (U)
43. As Warden, Defendant Fenton averages several visits weekly to the first floor of the Special Housing Unit. (U)
44. During his visits to the first floor of the Special Housing Unit, conditions of sanitation, food, temperature, discipline, and other operational details are observed. (U)
45. During his visits to all levels of the Special Housing Unit, Defendant converses with prisoners indicating a desire to do so, usually including several on the first floor.
46. When in the course of conversations with inmates, he has occasion to hear various complaints which concern operational matters on which logs are maintained, Defendant Fenton often personally checks the logs, if available, or directs that others do so.
47. Shortly after his arrival at Lewisburg, Defendant discussed compliance as to paragraphs 1 and 2 of the March 25, 1976, Order with individuals employed in the Penitentiary's Mechanical Services Department. (U)
48. Defendant was advised that, prior to his arrival, the first floor ventilation system had been made operational to comply with the first paragraph of the March 25, 1976 Order. (U)
49. Defendant further was advised that the Penitentiary's Mechanical Services Department was complying with the second paragraph of the March 25, 1976 Order on an ongoing basis.
50. Defendant Fenton received a letter dated April 5, 1978 from Plaintiffs' counsel concerning ventilation on the first floor of the Special Housing Unit.
51. Because counsel's letter appeared to request more documentation than existed, Defendant directed that additional testing and documentation be obtained.
52. Defendant further directed that periodically the Penitentiary's Mechanical Services Department should conduct ventilation tests and document the same.
53. Mr. Franklin E. Cook, pipefitter, conducted inspections of the ventilation system on the first floor of the SHU and performed maintenance during 1977 on the following dates: January 11 and 25; February 4 and 25; March 4 and 27; May 5, 19, and 31; June 30; July 14; August 11, 19, and 26; September 6, 16, and 30; October 14, 18 (unit cleaned), and 28; November 15, and 25; and December 20. (F. E. Cook).
54. Mr. Franklin E. Cook, pipefitter, conducted inspections of the ventilation system on the first floor of the SHU and performed maintenance during 1978 on the following dates: January 11; February 9 and 24; March 21; April 7, 11 and 24; May 5; June 1, 9 and 14 (unit cleaned); June 21; July 6 and 19. (F. E. Cook)
56. Mr. James Swartz, Engineering Technician, Mechanical Engineer at the Penitentiary, holds a Bachelor of Science degree from Bucknell University. (U)
57. Mr. Swartz ran tests to measure the minimum air change per cell, per hour, in cells on the first floor of the SHU on April 14, 1978. (Swartz)
58. Mr. Swartz conducted an air change test on December 15, 1978, and this test revealed an average minimum number of 9.01 air changes per cell per hour, Including recirculated air, on the first floor of the SHU. (Swartz)
59. Mr. Swartz is not a "qualified ventilation" person.
60. Mr. David Bachman, a heating and ventilation contractor, conducted air change tests on the cells on the first floor of the SHU on February 8, 1979, and this test revealed an average minimum air change per cell, per hour of 4.5. (Bachman) (U)
61. Based upon the ventilation tests of David Bachman on February 8, 1979, it was determined that the number of air changes per hour for each of the cells on the first floor of the SHU were as follows:
Cell 101 5.2; Cell 102 2.3; Cell 103 4.9; Cell 104 5.9; Cell 105 4.25; Cell 106 4.75; Cell 107 4.0; Cell 108 3.2; Cell 109 3.7; Cell 110 4.0; Cell 111 5.1; Cell 112 5.2; Cell 113 7.3; Cell 114 8.7. (U)
62. According to Mr. Bachman, the ventilation system on the first floor of the SHU on February 8, 1979 provided approximately one half of the ventilation which it was providing on January 20, 1976.
63. The exhaust fan from the ventilation system on the first floor of the SHU is sufficient to provide the 9.0 air changes per hour per cell as provided for in the Court's Order.
64. When Mr. Bachman consulted with Plaintiffs for the purpose of the original action, he based his recommendation as to the required number of air changes in the SHU in part upon those recommended for public restrooms.
65. The ventilation standard for a prison cell block propounded by the American Society of Heating, Refrigerating and Air Conditioning Engineers (ASHRAE) is a minimum of 7 cubic feet per minute (cfm) per person, and a recommended level of 10 to 15 cfm. (Swartz, Bachman) (U)
66. The ventilation standard for a prison cell block propounded by the American Correctional Association (ACA) is a minimum of 10 cfm per person. (Swartz) (U)
67. The air flow in cells on the first floor of the SHU averages 30 cfm per cell. (Swartz, P-281) (U)
68. Inmates confined in Disciplinary Segregation were routinely afforded the opportunity to shower at least two times per week except when compelling security or safety concerns dictated otherwise.
69. When compelling security or safety concerns prevented correctional officials from giving Disciplinary Segregation inmates the requisite two showers per week, the omission was adequately documented.
70. Inmates confined in Disciplinary Segregation were afforded the opportunity to partake of at least two hours of exercise per week in two one-hour periods or their equivalent except when compelling security or safety concerns required otherwise.
71. When less than two hours of exercise per week was provided, the omission was properly documented.
C. Placements in Disciplinary Segregation.
72. During the discovery phase of the civil contempt proceedings, Plaintiffs requested various information and documents concerning inmates known to have been place on the first floor of the SHU without a prior hearing. In addition, Plaintiffs requested the names of, and information and documents concerning other inmates who have been placed on the first floor of the SHU. (U)
73. The penitentiary kept no central listing or file of any type which would record those inmates who had been placed on the first floor of the SHU. However, the Special Housing Unit Log Book prior to September 19, 1978, routinely listed the number of the cell in the SHU to which a person was assigned from general population.
74. The SHU Log Books for the period January 6, 1978 through September 18, 1978, indicate that during this period 1053 inmates were moved from general population to the SHU. Of these 1053 entries, 957 contain the number of the SHU cell in which the inmate was initially placed. The remaining 96 entries do not contain such a cell designation. (Stipulation) (U)
75. The SHU Log Books for the period of January 6, 1978 through September 18, 1978, indicate that during this period 2062 inmates were admitted to the SHU from areas other than the general population of the United States Penitentiary, Lewisburg. Of these 2062 entries, 720 contain the number of the cell in the SHU in which the inmate was initially placed. The remaining 1342 entries do not contain such a cell designation. (Stipulation) (U)
76. Since the only document resembling a centralized listing of inmates who have been placed on the first floor, i. e., the Special Housing Unit Log Book ceased listing such placements as of September 19, 1978, Plaintiffs were unable to prove all other possible violations of the March 25, 1976 Order which might have existed following September 18, 1978.
77. On February 11, 1978, inmate Allen Best was received at the Lewisburg Penitentiary from another institution and was immediately placed in a cell on the first floor of the SHU without first having received a hearing before the IDC, and at a time when no incident report had been filed against him for any alleged misconduct.
78. Best is an extremely assaultive offender; he has a history of impulsivity and frequent misbehavior.
79. Upon commitment to Lewisburg, inmate Best refused to submit to fingerprinting and prints were taken only after he was forceably restrained.
80. While in a Connecticut institution for robbery Best had been involved in serious assaults. Because he was a serious management problem he was transferred to the Federal System.
81. At approximately 8:40 P.M., on February 13, 1978, while confined on the first floor of the SHU in Administrative Detention status, Best became hostile and insolent toward three officers by yelling in a loud voice and spitting in the face of one of the officers. (P-1)
82. Best while remaining on the first floor of the SHU was not provided a hearing before the Institution Discipline Committee (IDC) until February 17, 1978. This hearing was held on charges that he was insolent towards a staff member on February 13, 1978 while on the first floor of the SHU. (Exhibits P-1, P-2).
83. Best was found by the IDC to have committed the prohibited act charged.
84. The IDC withheld statutory good time (SGT) for the month of February, placed Best in Disciplinary Segregation, and scheduled him for review on February 24, 1978. (P-1, P-2)
85. On the afternoon of August 13, 1978, inmate Robert Chappelle had to be moved from the pitcher's mound of Softball Field # 2 in the main recreation yard where he was sitting with an aluminum baseball bat across his legs preventing other inmates from using the field. (P-6, D-60, Mr. Thomas)
86. Inmate Chappelle was charged with disrupting activities in the yard and giving a false statement to a staff member, which charges resulted in an Incident Report. (P-6). (U)
87. As a result of this Incident Report, and prior to any hearing before the IDC, inmate Chappelle was moved to the first floor of the SHU. (D-60, D-61, Mr. Thomas)
88. Robert Chappelle received a hearing before the IDC on August 16, 1978.
90. The IDC placed Chappelle in Disciplinary Segregation status, referred him for a mental health evaluation and recommended a disciplinary transfer. (P-8, Mr. Thomas)
91. On August 19, 1978, during his exercise period in the SHU gym, Chappelle refused to leave the area and be escorted to his assigned cell. (D-62)
92. On August 28, 1978, inmate Chappelle and three other inmates created a serious disruption in the SHU by banging on their cell doors and shouting at staff members. (P-193, Mr. Mort)
93. Although each of the four inmates was given a direct order to stop his disruptive conduct, each refused to stop and instead attempted to encourage others to join in their demonstration. (P-193, Mr. Mort)
94. Although he submitted to having restraints placed upon him, inmate Chappelle made hostile and insolent remarks, including profanity, wherein he was heard to state "Yeah, you can place the cuffs on me any day because I know by your fucking rules you must take them off tomorrow at the same time." (P-193, Mr. Mort)
95. Inmate Chappelle participated in a major disturbance in the SHU on December 16, 1978. (D-53, Humme)
96. On August 27, 1978, while assigned to quarters C-X, general population, inmate Charles Howard, Jr., was charged with refusing to obey an order of a staff member, which charge resulted in an Incident Report. (P-9) (U)
97. As a result of this Incident Report, inmate Howard was immediately placed on the first floor of the SHU, prior to receiving an IDC hearing. (P-11, P-279) (U)
98. Inmate Howard was placed in cell 110 on the first floor of the SHU at approximately 5:20 P.M. by Lt. John Klopf. (P-9, P-11)
99. Inmate Howard received a hearing before the IDC on this charge on August 30, 1978. (P-10)
100. The IDC found that Howard had committed the prohibited act of refusing to obey an order of a staff member; the IDC placed him in Disciplinary Segregation status, withheld SGT for the month of August, and scheduled him for review on September 6, 1978. (P-10) (U)
101. On August 7, 1978, a disturbance erupted on the "red top" area outside the institution's inmate dining rooms when inmate McCollum who had just learned that his cell had been "burned out" by other inmates broke away from correctional staff escorting him to the correctional supervisor's office in the east corridor. (Hudson, Mort)
102. Inmate McCollum proceeded to assault a number of prisoners in the inmate dining room. (Hudson, Mort)
103. A large group of inmates gathered quickly on the "red top" area and refused to leave after being ordered to do so by staff members.
104. The correctional staff almost lost control of the situation on August 7, 1978. The emergency siren was sounded and additional employees were summoned to assist in the quelling of the disturbance. (Hudson, Mort)
105. On August 7, 1978, while assigned to general population, inmate Frederic Cox was taken from population directly to Cell 107 on the first floor of the SHU, without a prior IDC hearing, pending investigation of possible participation in a group demonstration. (P-21)
106. Inmate Cox remained on the first floor of the SHU until some time between August 22 and August 28, 1978, during which period he was not given an Incident Report, was not given an IDC hearing and was not found guilty of any infraction by the IDC. (P-22, P-23, P-24)
108. The reason for placing inmates Cooley, Peterson and Patton in the SHU was for investigation of a large group disturbance in general population, the penitentiary officials apparently having received information that these inmates were encouraging other inmates to become disruptive. (U)
109. Although encouraging others to riot or engage in disruptive activities is a rule infraction at the penitentiary, none of the four inmates was ever charged with any rule infraction and none ever received any incident report concerning the August 7, 1978 incident.
110. Inmates Cooley and Peterson remained on the first floor of the SHU from August 7, 1978 until August 12, 1978, during which time they received no hearing before the IDC. (U)
111. Inmate Alexander Patton was kept on the first floor of the SHU from August 7, 1978 until sometime during the week of August 22, 1978, during which time he received no IDC hearing.
112. On December 7, 1978, inmate Ronald Cooley received an Incident Report charging him with threatening another with bodily harm, insolence toward a staff member, and conduct which disrupts. (D-51, Humme) (U)
113. On December 13, 1978, inmate Cooley received a hearing before the IDC on the December 7 Incident Report; at this hearing he was found to have committed the prohibited acts charged and the IDC ...