DOE v. LALLY, 467 F. Supp. 1339 (D.Md. 03/5/1979)

[1] UNITED STATES DISTRICT COURT, DISTRICT OF MARYLAND

[2] 74-63

[3] 467 F. Supp. 1339

[4] March 5, 1979

[5] JOHN DOE
v.
ROBERT LALLY, et al.

[6] E. Dale Adkins, III, Baltimore, Md., for plaintiff. , John P. Stafford, Jr., Asst. Atty. Gen., Baltimore, Md., for defendants.

[7] The opinion of the court was delivered by: YOUNG

[8] Plaintiff John Doe began this suit under 42 U.S.C. § 1983 seeking damages as a result of a homosexual rape suffered while an inmate at the Maryland Reception, Diagnostic and Classification Center ("MRDCC") on March 29, 1973. The complaint was later amended to include a claim for injunctive and declaratory relief. Plaintiff had been brought to the MRDCC on March 21, 1973 for classification following conviction of assault with intent to harm. Both the Maryland State Penitentiary ("Penitentiary") and the MRDCC are located in the same compound in Baltimore, but their respective facilities and inmates are supposed to remain separate. Plaintiff states that he was attacked during the course of a widespread riot in the Penitentiary which spilled over into the cell blocks of the MRDCC. In his initial complaint, plaintiff alleged that his sexual molestation was the immediate result of defendants' failure to maintain proper security and control throughout the Penitentiary at all times. Plaintiff named the following parties as defendants: Robert Lally, Maryland Secretary of Public Safety; Gordon C. Kamka, Superintendent of the MRDCC; James Jordan, the Maryland Commissioner of Corrections; and Gerald H. McClellan, the Warden at the Maryland Penitentiary.

[9] This Court denied defendants' motion to dismiss plaintiff's complaint on December 11, 1974. In the meantime, in April, 1976, another inmate of the MRDCC, Nathan M. Nance, moved to intervene as a party plaintiff asserting precisely the same claims as plaintiff Doe as to MRDCC conditions and the commingling of Diagnostic Center inmates with the Penitentiary population. See F.R.Civ.P. 24(b). Plaintiff Nance also moved to certify the proceeding as a class action. While this Court permitted Nance to intervene on January 7, 1977 it initially denied the class certification, subject to later reconsideration. Upon subsequent reconsideration and in light of the fact that several of the issues in the case were likely to become mooted, this Court granted plaintiff-intervenor's motion for class certification on October 11, 1977 pursuant to F.R.Civ.P. 23(b)(2) for the limited purpose of preserving the issues from mootness. On February 25, 1977, however, plaintiff-intervenor Nance escaped from the Southern Maryland Correctional Camp Center, and is still in an escape status, his whereabouts unknown.

[10] Defendants, represented by the Attorney General's Office of Maryland, have now moved to dismiss both that portion of plaintiff Doe's amended complaint pertaining to injunctive and declaratory relief and the order certifying the class action. They claimed that since Nance has escaped, the class action should be decertified, and without such certification, plaintiff Doe's action for injunctive and declaratory relief has become mooted because Doe no longer resides at the MRDCC.

[11] I. THE MOTION AS TO PLAINTIFF DOE

[12] Plaintiff Doe's original complaint sought only money damages as a result of the alleged pederasty and other abuses to which he was subjected during the course of a riot in the Maryland State Penitentiary on March 29, 1973. In his amended complaint, filed after he had been transferred from the MRDCC, Doe asked for certain declaratory and injunctive relief in light of what he maintained was an atmosphere of pervasive violence and danger to the inmates at the MRDCC which had created a pattern, the consequence of which was the mass riot during which plaintiff Doe was raped.

[13] Defendant would dismiss this portion of plaintiff's amended complaint on two grounds: (1) at the time of filing the amended complaint, Doe was no longer being subjected to the conditions from which he sought declaratory and injunctive relief, and (2) the request for such relief was moot because Doe's case was not at that time, nor is it now, certified as a class action. In support of their position, defendants cite Weinstein v. Bradford, 423 U.S. 147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); Sosna v. Iowa, 419 U.S. 393, 399-402, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975); DeFunis v. Odegaard, 416 U.S. 312, 319-20, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974); Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S. Ct. 1694, 40 L. Ed. 2d 1 (1974); and Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977).

[14] Defendants' arguments must be rejected. In granting plaintiff Nance's motion to intervene in this civil rights case, the Court recognized the essential similarity of the claims being raised by the two petitioners. On the same day that it granted plaintiff Nance leave to intervene, the Court also denied his request for class certification, subject to later reconsideration should the facts warrant it. Class certification was in fact granted upon such later consideration.

[15] It now appears that plaintiff Nance has escaped from custody, and for these reasons, considered in more detail below, defendants would also seek to have the class action decertified. Acceptance of the logic of defendants' theories would have the unwarranted effect of preventing litigation of the equitable issues raised by both plaintiffs. Inmates at the MRDCC were, and still are, confined for short periods of time prior to being transferred to other penal institutions. Plaintiff Doe was at the MRDCC for some fifteen days, from March 21 to April 5, 1973. The rape occurred on March 29, 1973. Unless courts adopt a liberal attitude towards mootness aspects of civil rights claims brought in connection with alleged deprivations occurring at temporary prison facilities, such claims will continue to recur and escape adjudication. As the Supreme Court said in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S. Ct. 279, 283, 55 L. Ed. 310 (1911), such deprivations will be "capable of repetition, yet evade review" by the courts. Plaintiff Doe's Original complaint was also filed After he had left the MRDCC, and as far as this Court is concerned, a plaintiff's essential right to relief pursuant to civil rights claims should not depend on his remaining within the institution where the deprivation occurred. Otherwise, defendants in such actions could simply defeat a court's jurisdiction in every instance by transferring inmates from institution to institution.

[16] Thus, claims for money damages are clearly not mooted by a transfer or release from confinement, or by alleviation of the alleged violation. See Mawhinney v. Henderson, 542 F.2d 1 (2d Cir. 1976); United States ex rel. Jones v. Rundle, 453 F.2d 147 (3d Cir. 1971). In Inmates v. Owens, 561 F.2d 560 (4th Cir. 1977), the Fourth Circuit decided that claims for injunctive relief become mooted whenever the prisoner is no longer subject to the alleged deprivation, unless the suit has been filed and certified as a class action.

[17] II. THE MOTION AS TO PLAINTIFF NANCE

[18] The ultimate resolution of the motion to dismiss parts of the Doe complaint is conceptually intertwined with defendants' motion to dismiss plaintiff Nance as intervenor and to decertify the class action. To grant defendants' motion would be to confine the scope of any hearing merely to damages claimed by plaintiff Doe.

[19] When a court decides to certify an action as a class action, it must be able to distinguish or define membership of the class at the outset. See, e.g., D & A Motors v. General Motors Corp., 19 F.R.D. 365, 366, 22 F.R.Serv. 23a. 11, Case 1 (S.D.N.Y.1956); 3B Moore's Federal Practice P 23.04(1), at 23-114 (2d ed. 1978). The representative plaintiff or plaintiffs may maintain a class action only if the requirements of Rule 23(a) and (b) *fn1" of the Federal Rules of Civil Procedure are satisfied at the time of certification. Since plaintiff Nance had been permitted to intervene in plaintiff Doe's original suit, it would appear that for the purposes of class certification, either named plaintiff could serve as a proper class representative. Once an affirmative determination has been made, however, the action should be viewed as having been a class action from the date of commencement and not merely the determination date. 3B Moore's Federal Practice P 23.50, at 23-434 (2d ed. 1978). As the court in Philadelphia Electric Co. v. Anaconda American Brass Co., 42 F.R.D. 324, 326, 11 F.R.Serv.2d 621.1, Case 1 (E.D.Pa.1967) noted:

[20]

"The use of the word "maintained' in 23(c)(1) is some indication that the court is expected to determine What the lawsuit has always been, not what it is about to become." (Emphasis added).



[21] In the instant case, certification came after plaintiff Doe's amended complaint and at the request of intervenor Nance who is now unavailable for trial. At the time Nance filed his complaint for declaratory and injunctive relief, he was still confined in the MRDCC. Since his complaint was subsequently certified as a class action, it cannot be mooted due to any later transfer to another institution. Inmates v. Owens, supra. The issue which does arise, however, is whether a representative class exists in light of the fact that its original plaintiff-representative, Nance, is unavailable to participate in the trial. Without Nance, say defendants, the action must be decertified as a class action, and without a class action, plaintiff Doe is limited to recovering only damages under the holding in Mawhinney v. Henderson, supra. While defendants' logic may be straightforward, it is not compelling.

[22] The courts have frequently faced the recurring problem of mootness in connection with class action suits as well as the question of whether the original plaintiff remains a proper representative. With regard to mootness, the Supreme Court made it clear in Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975), that a representative party must have standing at the time the action is begun And when it is certified under Rule 23(c)(1). Footnote 11 of the opinion, cited by defendants, suggests that in cases where the time frame prior to mootness arising appears narrow, the district court may even make its certification after the plaintiff's claim is moot:

[23]

"There may be cases in which the controversy involving the named plaintiffs is such that it becomes moot as to them before the district court can reasonably be expected to rule on a certification motion. In such instances, whether the certification can be said to "relate back' to the filing of the complaint may depend upon the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review." 419 U.S. at 402 n.11, 95 S. Ct. at 559.



[24] In Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), the Supreme Court further liberalized the mootness requirements in class action cases by holding that where plaintiff attacked the constitutionality of state rules on pretrial detention in a class action but it later became apparent that at certification plaintiff was already convicted and no longer detained under the statute, the action was not moot as it fell within the exception for "rapidly mooting" cases referred to in Sosna, supra. 3B Moore's Federal Practice P 23.04(2), at 23-133 (2d ed. 1978). *fn2"

[25] Recent cases have demonstrated that the Supreme Court favors a liberal approach Both with regard to mootness and an individual plaintiff's representative capacity. Even though an individual original plaintiff may cease to remain a proper representative, See Willard v. Ciccone, 507 F.2d 1 (8th Cir. 1974) (plaintiff's action challenging conditions at correctional institution mooted by transfer to another institution; court held he was no longer a proper representative of present inmates and affirmed dismissal as to class claims as well), this fact does not automatically mean that the class action necessarily fails. Franks v. Bowman Transportation, Inc., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976), held that even though the plaintiff, a black truck driver, had been discharged for cause, there was still a current controversy between the class of black workers, the employer, and the union. The Sosna court had, after all, made the following pronouncement:

[26]

"When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by (the named representative)." 419 U.S. 393, 399, 95 S. Ct. at 557, 42 L. Ed. 2d at 540. *fn3"



[27]

Although plaintiff-intervenor Nance may not in fact be present in this action, the Court must not overlook the fact that the interests of others than those of plaintiff Nance are at stake in this action. A district court has "broad discretion in determining whether the action may be maintained as a class action," 3B Moore's Federal Practice P 23.50 at 23-437, and so long as the court considers the proper criteria, it is permitted to exercise such discretion. Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975) (affirming denial of class treatment); Monarch Asphalt Sales Co. v. Wilshire Oil Co. of Texas, 511 F.2d 1073 (10th Cir. 1975) (affirming class definition).



[28]

At the time of certification, plaintiff Doe was a proper representative of the class he sought to represent even though plaintiff Nance was no longer in custody. Defendants themselves cite with emphasis the appropriate language from Sosna, supra, on this point:



[29]

"A litigant must be a member of the class which he or she seeks to represent at the time the class action is certified by the district court." 419 U.S. at 403, 95 S. Ct. at 559.



[30]

This Court ordered that a class action be certified in this case pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. On April 25, 1978, defendants filed a motion to dismiss Nance as an intervenor because he had escaped from the Southern Maryland Correctional Camp Center, and his whereabouts were unknown. There is no indication, however, that "at the time the class action (was) certified," 419 U.S. at 403, 95 S. Ct. at 559, a proper class representative did not exist. Moreover, since the certification applies to claims brought by both Nance and Doe, this Court can now recognize plaintiff Doe as a proper class representative in light of the "relation back" reasoning suggested in Sosna, supra. See also Frost v. Weinberger, 515 F.2d 57 (2d Cir. 1975), Cert. denied, 424 U.S. 958, 96 S. Ct. 1435, 47 L. Ed. 2d 364 (1976).



[31]

Finally, even without resort to the "relation back" approach just discussed, it is by no means clear that the case would have to be dismissed even if Both Nance And Doe had escaped. In Cox v. Babcock and Wilcox Company, 471 F.2d 13 (4th Cir. 1972), the Fourth Circuit held that where the plaintiff is no longer found to be a proper representative of the class, the case could be remanded to the District Court "with instructions that the class action be retained on the docket for a reasonable time to permit the presentation of any proper claims for further relief under such class action." 471 F.2d at 16. In the instant case, there is no reason to delay this case since plaintiff Doe is and always has been ready and able to serve as a proper class representative. Although Doe did not himself initiate the class action in this case, the Court granted certification and there is no reason to penalize the rest of the class because of the unavailability of Nance for trial.



[32]

Defendants also rely on Holt v. Moore, 541 F.2d 460 (4th Cir. 1976), in which the Fourth Circuit held that where plaintiff's action for declaratory and equitable relief had become mooted as of the date of his transfer from state to federal custody and since he was no longer in the custody of North Carolina authorities at the time of class certification, plaintiff could not be a member of the class which he sought to represent. Consequently, the Fourth Circuit remanded the case for dismissal of the injunctive, declaratory and class action aspects of the suit. Defendants argue that since Nance has escaped and is no longer in the custody of the Maryland authorities, nor the MRDCC, he cannot be a member of the class he seeks to represent. This reliance on Holt is misplaced, since the court's ruling turned on the fact that plaintiff Holt was Not a member of the class at the time of certification. Here, however, in light of the intervention by plaintiff Nance, the claims of each petitioner were, in effect, consolidated in one case. The class certification granted by this Court applied to the entire controversy in which Nance and Doe were representative plaintiffs. This Court granted class certification in order to avoid mootness and to promote litigation which will "insure the full and fair consideration of the common issue." Hansberry v. Lee, 311 U.S. 32, 43, 61 S. Ct. 115, 119, 85 L. Ed. 22 (1940). Nance's absence does not preclude certification in this case since a representative plaintiff, Doe, was present when the action was certified.



[33]

As the Supreme Court noted in Sosna, supra:



[34]

"There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, but there must be a live controversy at the time this Court reviews the case. . . . The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot." 419 U.S. at 402, 95 S. Ct. at 559.



[35]

Furthermore, certification does not fail because neither Nance nor Doe were in the MRDCC at the time of certification. Since the MRDCC is intended to be a central diagnostic and classification center, inmates do not typically remain there for extended periods of time. To rule in defendants' favor would mean that transfer of a prisoner could automatically defeat the court's certification decision. The ultimate result, then, would be to establish an end run around the liberalized approach to mootness and certification in the context of "rapidly mooting" cases.



[36]

III. TRIAL ON THE MERITS



[37]

A. Sexual assaults and overcrowding in the Maryland Penitentiary



[38]

This case proceeded to trial on the merits on September 25, 1978. During the course of the three day trial, the Court listened to numerous harrowing allegations concerning episodes of homosexual rape occurring in the Maryland Penitentiary and the MRDCC in particular. The pattern which emerged revealed serious inadequacies in both the operational aspects of the Maryland Penitentiary and the Diagnostic Center, and the classification and screening procedures employed by officials at the Diagnostic Center. As this opinion will make clear, these constitutional inadequacies are the by-product of widespread overcrowding in Maryland's prison facilities. *fn4" Any remedies mandated by this Court, then, must treat the specific allegations of this case within the context of the problems confronting Maryland's correctional facilities as a whole.



[39]

The MRDCC is physically situated within the confines of the Maryland Penitentiary in Baltimore and functions as the central diagnostic and classification facility for prisoners entering the state's correctional system. While the Diagnostic Center receives almost every offender destined for state incarceration, including first-time as well as repeat offenders, the inmates at the Maryland Penitentiary are typically the most serious offenders who warrant maximum security incarceration. Deposition of Defendant Bartram at 64-65, 68, and 70. (Plaintiff's Exhibit No. 25). By way of comparison between the two facilities, where the Maryland Penitentiary receives the "meanest inmates," *fn5" the Diagnostic Center typically receives the "greenest."



[40]

Because of this difference between the inmate populations at the two facilities, inmates at the Maryland Penitentiary, known as population inmates, are supposedly segregated from the diagnostic inmates awaiting classification at the MRDCC. To this end, the diagnostic inmates wear white uniforms with large green numbers on the trouser legs unlike the population inmates who are permitted to wear regular "street clothes." Officials from the Diagnostic Center testified that while it was generally difficult to prevent commingling of the two inmate groups, prison officials were directed to prevent mixing while at meals, in the showers, at the movies, and on the cellblocks generally. Because of substantial overcrowding, however, these measures have not been altogether successful. The Diagnostic Center is located in the West Wing of the Maryland Penitentiary in the five story cage known as B Block. Immediately adjacent to B Block, at the east end of the same building is A Block where the population inmates live. Until a year ago, both diagnostic inmates and prisoners on protective custody could be housed on A Block. Today, however, a twenty-foot high chain fence separates the two cell blocks, but there are still several occasions when population inmates must traverse the B Block flats and diagnostic inmates must walk through A Block. These occasions provide opportunities for both commingling and sexual assaults.



[41]

Plaintiff Doe was homosexually raped during the course of a major riot occurring at the Maryland Penitentiary on March 29, 1973. At that time he was awaiting classification as a diagnostic inmate. Shortly before the riot broke out, Doe was waiting in his cell on the fourth tier in B Block to go to the showers between 6:00 and 6:30 p.m. The riot began on the ground level of A Block, and plaintiff could see inmates running along the tiers below him. One inmate had a cell key and was running along the tiers unlocking doors. Seeing other inmates being molested, plaintiff broke up a chair as a defensive weapon, at which point four or five population inmates came by and told plaintiff, "when we come back we're going to fuck you." Plaintiff ran immediately to the back of the tier, was pursued, hit over the head, knocked unconscious, and gang raped. As a result of this incident, he suffered severe injuries about the rectum, back, and head. *fn6"



[42]

As a result of the rape, plaintiff brought this suit pursuant to 42 U.S.C. § 1983 charging the defendants with having failed to maintain security and control of the penitentiary in order to prevent the riot and his own resulting injuries.



[43]

Had the riot and sexual assaults which transpired on March 29, 1973 been a totally unforeseen, unforeseeable occurrence, this case would probably not have reached the trial stage. The amended complaint, however, charges defendants with "deliberate failure and/or gross negligence . . . in failing to take proper steps to provide proper security for and to insure the safety of the plaintiff and to protect him from threats, assaults, and sexual assaults." Amended Complaint at paragraph 25. The Complaint further noted that:



[44]

During his short confinement in the (MRDCC) plaintiff was threatened, harassed and was the recipient of homosexual advances. Other prisoners, specifically inmates of the Penitentiary, demanded plaintiff's possessions or requested homosexual favors in exchange for protection. On March 29, 1973, a complete failure of the already inadequate security occurred and a riot ensued. This riot which defendants had actual warning of or should have anticipated was due to the failure of the defendants to take proper security actions in the face of the danger, the existence of the already inadequate security measures, and the deplorable conditions in the Penitentiary and the (MRDCC).



[45]

Amended Complaint at paragraph 22. In Woodhous v. Commonwealth of Virginia, 487 F.2d 889 (4th Cir. 1973), this Circuit had already recognized that:



[46]

While occasional, isolated attacks by one prisoner on another may not constitute cruel and unusual punishment, Penn v. Oliver, 351 F. Supp. 1292 (E.D.Va.1972), confinement in a prison where violence and terror reign is actionable. A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.



[47]

487 F.2d at 890. See also Withers v. Levine, 449 F. Supp. 473, 476 (D.Md.1978); Martinez Rodriguez v. Jimenez, 409 F. Supp. 582, 594 (D.P.R.1976); Van Horn v. Lukhard, 392 F. Supp. 384, 387 (E.D.Va.1975).



[48]

While riots may not have been frequent enough at the Maryland Penitentiary to have established a perpetual reign of terror, it did appear at trial that the institutional procedures for segregating diagnostic and population inmates were not taken seriously. As a result, a subculture of crime grew up and was fostered within the walls of the Penitentiary itself. Superintendent Valenti acknowledged that population inmates would often single out newly arrived diagnostic inmates for sexual relations and then "set up" the diagnostic inmates by offering protection from other inmates, food, cigarettes or other favors. When a sexual relationship was consummated, the victim was said to have been "snatched." These snatchings are rarely reported for several reasons. First, there is the fear of reprisals, but more importantly there is the stigma which attaches once it becomes known throughout the institution that an inmate was raped. The stigma, in this instance, serves to single out an inmate as an easy mark, thereby increasing the likelihood of further sexual assaults. See Withers v. Levine, supra, 449 F. Supp. at 475. *fn7"



[49]

At trial, several inmates and former inmates of the Diagnostic Center, all of whom had been sexually accosted and some of whom had been raped, testified as to how the sexual "pick up" process operated in prison. A population inmate would get the attention of a new inmate by calling out to him, "Hey "home boy' or "slim' " and then provide him with some sort of favor. Once the new inmate accepted the favor, he became indebted to his benefactor and sexual relations were a frequent Quid pro quo. Dr. Stanley Brodsky, an expert in psychology and corrections, essentially confirmed this hunter-hunted pattern described by the inmates. Remarking that homosexual relations in prison frequently took many forms consensual, commercial, romantic, promiscuous, and coercive Dr. Brodsky confirmed that a fairly routine pattern could be identified insofar as young, effeminate, newly admitted inmates were concerned. Inmates with these characteristics were stalked, coerced, bribed, offered protection, or simply raped. Insofar as the attackers were concerned, Dr. Brodsky testified that they were generally population inmates convicted of more serious crimes and sentenced to longer terms. Sensing their freedom limited and a reversal of their status after lengthy confinement, an assaulter would use sexual assault to overcome or compensate for his own feelings of degradation or to enhance his status among his fellow inmates.



[50]

The possibility of precisely this type of situation arising explains the necessity for segregating the two inmate populations. Both the victim and likely offender are identifiable at least in terms of general characteristics, but there was considerable evidence demonstrating that a reasonably precise profile of the likely victim could be painted. According to prison officials, several witnesses, and Dr. Brodsky, the typical sexual assault victim in prisons is young, between seventeen and twenty-three years of age, with a small physical frame in the neighborhood of 125 to 130 pounds, and relatively new to the institution. Given this well-entrenched institutional sub-culture of which the prison authorities were undoubtedly aware, *fn8" any serious deficiencies in actual prison procedures which allowed frequent commingling between diagnostic and population inmates and the ensuing sexual assaults border on gross negligence, thereby negating any good faith immunity defense under 42 U.S.C. § 1983. See e.g., Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 43 L. Ed. 2d 214, Reh. denied, 421 U.S. 921, 95 S. Ct. 1589, 43 L. Ed. 2d 790 (1975); Little v. Walker, 552 F.2d 193, 196 (7th Cir. 1977), Cert. denied, 435 U.S. 932, 98 S. Ct. 1507, 55 L. Ed. 2d 530 (1978); Knell v. Bensinger, 522 F.2d 720, 724-25 (7th Cir. 1975).



[51]

The evidence of negligence in this case was both overwhelming and incredulous. Commingling of diagnostic and population inmates occurs in almost every nook and cranny of the Maryland Penitentiary and has been going on for some time. Population inmates attend movies with diagnostic inmates and may be found together at the prison hospital, recreational and dining facilities, at religious gatherings, and on the flats in the cell blocks. Several witnesses reported that population inmates roam the diagnostic tiers both night and day selling goods such as sodas, cigarettes, and even several varieties of hot and cold sandwiches. Population inmates often do repairs in cells on the diagnostic tiers, and there have been occasions according to plaintiff Doe where population inmates could obtain phony work orders to gain access to a diagnostic inmate's cell. In one instance in 1977, two population inmates each morning for two successive weeks entered one diagnostic inmate's cell, ostensibly to correct the plumbing.