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Relief for Unconstitutional Mississippi Death Row Conditions Affirmed on Appeal

By Bob Williams

The United States Court of Appeals for the Fifth Circuit has affirmed most of the sweeping reforms to be implemented at the Mississippi State Penitentiary (MSP), Unit 32-C, Death Row.

After several death row prisoners staged a hunger strike over conditions on death row, the National Prison Project of the ACLU began a battle with the Mississippi Department of Corrections (MDOC) over squalid conditions in the unit. Willie Russell and five other prisoners were named as plaintiffs in a 42 U.S.C. § 1983 complaint filed in July 2002. A magistrate bench trial was held between February 13-15, 2003. On May 21, 2003, the United States District Court for the Northern District of Mississippi entered judgment against the MDOC and issued ten injunctive orders. [For details on the death row conditions and the District Court's injunctions, see: PLN, April 2004, pp. 26-27].

On appeal, the Fifth Circuit affirmed seven injunctions (four modified to apply only to Unit 32-C) and vacated the other three. Before reaching the merits, however, the appeals court addressed this case in relation to the MDOC reform class action suit and exhaustion doctrines.

This case was certified as a subclass of the ongoing Gates v. Collier, 501 F.3d 1291 (5th Cir. 1974) class action suit against MDOC. The Court found Gates was dismissed as to "state-owned, state-operated, and private-company-contracted facilities" in 1998. However, the case was assigned to the magistrate by the same judge who dismissed Gates and was consolidated with Gates as a subclass, eliminating the problem of maintaining multiple actions in multiple courts.

The District Court found Russell's claims were exhausted by virtue of their incorporation with Gates. Citing the U.S. Supreme Court's mandate in Porter v. Nussle, 122 S.Ct. 983 (2002), that exhaustion is required in all prisoner actions, the Fifth Circuit extensively analyzed MDOC's exhaustion process and found Russell was the only class member who completed MDOC's administrative remedy program, which was enough to satisfy the requirement for the entire class. Russell used the abbreviated emergency review version, which the Court found had only expedited, not circumvented, the process.

Turning to the injunctive relief, the Court found it well-settled that while the Constitution does not mandate comfortable prisons, neither does it permit inhumane ones. Farmer v. Brennan, 114 S.Ct. 1970 (1994). Under Farmer, an Eighth Amendment violation occurs if MDOC shows a subjective deliberate indifference to conditions posing a substantial risk of serious harm to prisoners. On review, if the District Court's factual findings are not found mistaken (under the clearly erroneous standard) and those facts are found to constitute a constitutional violation (on de novo review), then the injunctive relief is reviewed for abuse of discretion. Applying these standards, the appellate court analyzed all ten injunctive requirements.

The Court rejected MDOC's multiple claims of mootness. MDOC claimed (1) they intended to fix the problems and (2) ACA accreditation was proof of no Eighth Amendment violations. The Court found it "absurd to suggest that the Federal Courts should subvert their judgment as to alleged Eighth Amendment violations to the ACA whenever it has relevant standards." Also rejected were MDOC's multiple claims that many of the injunctions could not stand because no proof of medical injury or illness resulted from the challenged practices. Russell did not have to show that death or serious illness had occurred, only that the conditions posed a substantial risk of harm.

Sanitation. Affirming the first two injunctions, cells must be (1) cleaned before occupied by a prisoner and (2) adequate cleaning supplies must be provided to maintain sanitation.

Preventive Maintenance. The appeals court vacated as micromanagement the third injunction requiring a written preventive maintenance schedule. They found it desirable but "not independently supported by additional conditions that constitute an Eighth Amendment violation."

Heating & Cooling. Injunction four, as originally ordered, applied to all of Unit 32; it was vacated as to areas outside Unit 32-C (as beyond the scope of the litigation) and affirmed as to Unit 32-C only. It provides for fans, ice water and daily showers when the heat index is 90 degrees or above, or, alternatively, provided for such measures daily during May through September.
Vermin. Injunction five, also affirmed only as applied to Unit 32-C, provides for all cell windows to be repaired and screened with at least 18 gauge window screen to prevent swarms of mosquitoes from infesting cells. This will also help with cooling by allowing prisoners to open windows for air flow without letting in insects.

Plumbing. Injunction six, affirmed only as applied to Unit 32-C, mandates a plan to repair the "ping-pong" toilets whereby the contents of one toilet appears in the adjoining cell's toilet when the former is flushed.

Lighting. Affirmed only as applied to Unit 32-C, injunction seven requires a cell lighting upgrade from 2-4 (and sometimes as high as 8) foot-candles to a minimum of 20 foot-candles.

Laundry. The Court vacated injunction eight which had required clean laundry. At trial, MDOC conceded that prisoner's clothes were returned foul smelling, necessitating prisoners to hand wash. Despite evidence that prisoners can be disciplined for hand washing and must use only their bar soap as no laundry detergent is provided, no Eighth Amendment violation was found.

Mental Health. Affirming injunction nine, the Fifth Circuit found mental health needs no less serious than physical needs and thus required one annual comprehensive, private mental health exam. Additional requirements include the separation of prisoners diagnosed with severe mental illness and strict monitoring of medications.

Exercise. Finally, the Court vacated injunction ten, finding one hour of outdoor exercise without shade or water or shoes other than flip-flops was not an Eighth Amendment violation. See: Russell v. Johnson, 376 F.3d 323 (5th Cir. 2004).

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Related legal case

Russell v. Johnson