Correspondence from Lani Guinier to James R. Kellogg

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 78-1289

MARVIN JONES, on his own behalf and 
on behalf of those similarly situated,

Plaintiffs-Appellants,
v s .

FRED R. DIAMOND, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District of Mississippi

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE 
AND BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
JOEL BERGER 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York

Attorneys for the NAACP Legal 
Defense & Educational Fund, 
as Amicus Curiae

Inc



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 78-1289

MARVIN JONES, on his own behalf and 
on behalf of those similarly situated,

Plaintiffs-Appellants,
vs.

FRED R. DIAMOND, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District of Mississippi

MOTION FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE 
AND STATEMENT OF INTEREST

Movant, NAACP Legal Defense & Educational Fund, Inc.
(LDF), respectfully moves the Court for permission to file 
the attached brief as amicus curiae for the following reasons. 
The statement below also includes the interest of the amicus 
and the reasons why an amicus brief is desirable as required 
by Fed.R.App.P. 29.

1) Counsel for the appellants has consented to the 
filing of a brief amicus curiae by the movant. The movant



has requested the consent of counsel for the appellees, but, 
at this time, has not received a response.

2) LDF is a non-profit corporation, incorporated under 
the laws of the State of New York to assist Blacks to 
secure their constitutional rights by the prosecution of 
lawsuits. LDF is independent of other organizations and is 
supported by contributions from the public. For many years 
its attorneys have represented parties and participated as 
amicus curiae in this Court and others in numerous cases 
involving many facets of the law.

3) LDF has participated in many cases challenging 
conditions in both pre-trial detention facilities and post­
conviction prison facilities and in cases challenging dis­
crimination against pre-trial detainees. These have included 
some of the earliest cases which first established the basic
principles underlying this area of the law: Jackson v.
Bishop, 404 F.2d 571 (8th Cir. 1968)(corporal punishment in 
Arkansas prisons); Holt v. Sarver, 300 F. Supp. 825 (E.D Ark. 
1969), subsequent opinion, 309 F. Supp. 362 (E.D Ark. 1970), 
aff'd, 442 F.2d 304 (8th Cir. 1971), on remand sub nom. Holt 
v. Hutto, 363 F. Supp. 194 (E.D Ark. 1973), aff'd in part and 
rev'd in part sub nom. Finney v. Arkansas Bd. of Corr., 505 
F.2d 194 (8th Cir. 1974), on remand sub nom. Finney v.
Hutto, 410 F. Supp. 251 (E.D. Ark. 1 976), aff 'd, 548 F.2d 740 
(8th Cir. 1977), aff'd sub nom. Hutto v. Finney, 437 U.S. 678 
(1978) (prison conditions); Hamilton v. Love, 328 F. Supp.

2



1182 (E.D Ark. 1971) subsequent opinion, 358 F. Supp. 338 
(E.D. Ark.), subsequent opinion, 361 F. Supp. 1235 (E.D. Ark.
1973) (conditions of pre-trial detention); Jones v. Witten­
berg, 330 F. Supp. 707 (N.D. Ohio 1971), aff'd sub nom. Jones 
v. Metzger, 456 F.2d 854 (6th Cir. 1972) (same); Collins v. 
Schoonfield, 344 F. Supp. 257 (D. Mass. 1 972)(same); Taylor
v. Sterrett, 344 F. Supp. 411 (N.D. Tex. 1 972), aff 'd, 499 
F.2d 367 (5th Cir. 1974), subsequent opinion, 532 F.2d 462 
(5th Cir. 1976), all prior orders vacated, No. 77-2241 (5th 
Cir. August 16, 1979), petition for reh. pending (same); 
Inmates of the Suffolk County Jail v. Eisenstadt, 360 F.
Supp. 767 (D. Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir.
1974) , cert. denied, 419 U.S. 977 (1974), subsequent opinion, 
518 F.2d 1241 (1st Cir. 1975), subsequent opinion, 573 F.2d 
98 (1st Cir. 1978) (same). LDF is involved in pending prison 
and pre-trial detention cases in this and other circuits, 
including: Guthrie v. Evans, Civ. No. 3068 (S.D. Ga.)(pending 
case: enforcement of consent decrees and various court orders 
regarding prison conditions); Costello.v. Wainwright, 387 F. 
Supp. 324 (M.D. Fla. 1973), subsequent opinion, 397 F. Supp.
20 (M.D. Fla. 1975), aff'd, 525 F.2d 1239 (5th Cir.), reh. en 
banc granted, 528 F.2d 1381 (5th Cir.), vacated and remanded, 
539 F.2d 547 (5th Cir. 1976), rev'd and remanded, 430 U.S.
325 (1979) (preliminary injunction on overcrowding; case 
pending on issues of statewide overcrowding and delivery of 
medical care); Inmates of Mobile County v. Purvis, Civ. No.

3



76-416-P (S.D. Ala. ) (awaiting trial on general conditions of 
pre-trial detention). LDF has also filed briefs as amicus 
curiae in other cases, such as the instant case, involving 
important questions regarding conditions of pre-trial deten­
tion. Bell v. Wolfish, ____ U.S. ____ , 99 S.Ct. 1861, 60
L.Ed. 2d 447 (1979); O'Bryan v. Saginaw Mich., No. 78-1169 
(6th Cir.) (pending appeal from order granting contact 
visits). LDF has a special interest in the rights of pre­
trial detainees because Blacks are disproportionately 
unable to post bail and are disproportionately represented in 
pre-trial detention facilities.

4) Movant has also participated in many of the leading 
cases involving attorneys' fees questions, both as counsel, 
e.g., Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968); Bradley v. School Board of the City of Richmond,
416 U.S. 696 (1974); Hutto v. Finney, supra; Johnson v.
Georgia Highway Express Co., 488 F.2d 714 (5th Cir. 1974); 
Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977); and as 
amicus curiae, e.g., Christiansburg Garment Co. v. Equal 
Employment Opportunity Comm., 434 U.S. 412 (1978); Copeland 
v. Marshall, No. 77-1351 (D.C. Cir.)(pending). In addition we 
have prepared and litigated counsel fee applications in numer­
ous other cases arising under the various civil rights laws, 
including cases involving prison conditions.

5) The issues raised on this appeal regarding the 
standards to be applied in judging the constitutionality of

4



conditions of confinement for both pre-trial detainees and 
convicted prisoners, and the award of attorneys' fees and 
costs to successful litigants in these and other civil rights 
cases, are of singular importance. The decision in this case 
will affect the rights of those not party to this litigation, 
including all those incarcerated in this circuit. Since this 
case will be one of the first decisions of a court of appeals 
to apply the standards only recently delineated in Bell v.
Wolfish, ____ U.S. ___ , 99 S.Ct. 1861 , 60 L.Ed. 2d 447
(1979), the precedent set in this case will affect future 
litigation in other circuits as well. Further, the issue of 
the standards to be applied in awarding attorneys' fees and 
costs under 42 U.S.C. § 1988 to successful civil rights 
litigants will affect the entire spectrum of civil rights 
litigation being brought under 42 U.S.C. § 1983. Enforcement 
of Title VII of the Civil Rights Act of 1964 prohibiting 
racial discrimination in employment will also be affected, 
since the attorneys' fees section of that statute, 42 
U.S.C § 2000e-5(k), is, in relevant part, identical to §
1988. Therefore, it is important that this Court hear from 
others not party to this litigation so that it may be as 
fully informed on these issues as possible.

5



Wherefore, movant prays that the attached brief amicus
curiae be permitted to be filed with the Court.

Respectfully submitted,

CHARLES STEPHEN RALSTON 
JOEL BERGER STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York

Attorneys for the NAACP Legal
Defense & Educational Fund, Inc.

6



Table of Authorities ................................... xi

SUMMARY OF ARGUMENT ................................... 1

ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO RELIEF AGAINST CONDITIONS OF CONFINEMENT AT THE OLD 

JACKSON COUNTY JAIL THAT SUBJECT THEM TO 
PUNISHMENT IN VIOLATION OF THE DUEPROCESS CLAUSE ........................... 3
A. The District Court and the Panel Did not Adhere to the Proper Role of 

Federal Courts in Cases Challenging 
the Constitutionality of Jail andPrison Conditions ......................  3

B. Overcrowding ........................... 9

C. Lack of Recreation .....................  19

D. Inadequate Protection from Violence .... 25

II. The Panel Decision Used Inappropriate 
Standards For the Determination of
Counsel Fees and Costs .....................  35

A. Attorneys' Fees .......................  36

B. Fees for Experts ......................  39

CONCLUSION ........................................... 4 2

TABLE OF CONTENTS
Page

CERTIFICATE OF SERVICE



TABLE OF AUTHORITIES

Cases

Allee v. Medrano, 416 U.S. 802 (1974) ...............  10
Bell v. Wolfish, __ U.S. __, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ............................. 4,5,4,5,8,17
Bono v. Saxbe, 450 F.Supp. 934 (E.D. 111.), subse- 

quent opinion, 462 F.Supp. 146, (E.D. 111.
1978)   21

Bounds v.' Smith, 430 U.S. 817 (1977) ................  4
Bradley v. School Board of the City of Richmond, 416

U.S. 696 (1974) ................................. 4
Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972) ......
Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963) .....  4
Christiansburg Garment Co., v. Equal Employment

Opportunity Comm., 434 U.S. 412 (1978) .........  4
Collins v. Schoonfield, 344 F.Supp. 257 (D. Mass.

1972) ...........................................  3
Conklin v. Hancock, 334 F.Supp. 1119 (D.N.H. 1971) ... 22
Copeland v. Marshall, No. 77-1351 (D.C. Cir.) .......  4
Costello v. Wainwright, 387 F.Supp. 324 (M.D. Fla.

1973) , subsequent opinion, 397 F.Supp. 20 
(M.D. Fla. 1975), aff‘d. 525 F.2d 1239 (5th 
Cir.), reh. en banc granted, 528 F.2d 1381 
(5th Cir.), vacated and remanded, 539 F.2d 
547 (5th Cir. 1976), rev’d and remanded,
430 U.S. 325 (1979) ......................  3,22,31,42

Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974) .....  29
Douglas v. Singer, 386 F.2d 684 (8th Cir. 1976) .....  4

Page



Estelle v. Gamble, 429 U.S. 97 (1976)................  28' 29
Finney v. Arkansas Bd. of Corr., 505 F,2d 194 (8th

Cir. 1974)................. ........... ,........ 2'25
Finney v. Hutto, 410 F. Supp. 251 (E.D. Ark. 1976),

aff’d, 548 F.2d 740 (8th Cir. 1977)

Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 1977)....  ^
Frazier v. Ward, 426 F. Supp. 1354 (N.D.N.Y, 1977),...
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) aff'g,

349 F. Supp. 881 (N.D. Miss. 1972)..... ...... 10,15,31
Gates v. Collier, 390 F. Supp. 482 (N.D. Miss. 1975),aff'd, 548 F.2d 1241 (5th Cir. 1977)..,....___15,24,42
Guthrie v. Evans, Civ. No. 3068 (S.D. Ga.)........... 3
Hamilton v. Chaffin, 508 F.2d 904 (5th Cir. 1975)....  26
Hamilton v. Landrieu, 351 F. Supp. 549 (E.D. La.1972)............................................  22
Hamilton v. Love, 328 F, Supp. 1182 (E.D. Ark, 1971).. 2,25
Hampton v. Holmesburg Prison Officials, 546 F.2d 1077

(3rd Cir. 1976).................................. 27
Holt v. Hutto, 363 F. Supp. 194 (E.D. Ark. 1973).....  2,25

Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969),
subsequent opinion, 309 F. Supp. 362 (E.D. Ark.
1970), aff'd, 442 F.2d 304 (8th Cir. 1971).... 2,5,15

Hutto v. Finney, 437 U.S. 678 (1978)...... ....,,.2,5,14,38
Inmates of Attica Correctional Facility v. Rockefeller,

453 F. 2d 12 (2d Cir. 1971)....................... 5,11
Inmates of Mobile County v. Purvis, Civ, No. 76-416-P

(S.D. Ala. )...... ................................  4
Inmates of the Suffolk County Jail v. Eisenstadt, 360

TABLE OF AUTHORITIES
Page

ii



TABLE OF AUTHORITIES

F. Supp. 767 (D. Mass. 1973)................   3
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)....,. 2,25
Johnson v. Georgia Highway Express Co., 488 F.2d 714

(5th Cir. 1974).............................  4,36
Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert.

denied sub nom. Employee-Officer John, No. 1765 
Badge No. v. Johnson, 414 U.S. 1033 (1973) .....

Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979)   passim
Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972)....... 3,22
Jones v. North Carolina Prisoners Labor Union, 433

U.S. 119 (1977)   4'24
Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio

1971).......................................... 3'22
Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) .. H
Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965) .......  3
Little v. Walker, 552 F.2d 193 (7th Cir. 1977)   27
McMahon v. Beard, 583 F.2d 172 (5th Cir. 1978)   17
Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) 14,16,17,20-25
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977), cert.denied, 438 U.S. 915 (1978)........... .5,6 / 44 r 15,20,21,28
Newman v. Piggie Park Enterprises, 390 U.S. 400

(1968)...........................................  4'23
O'Bryan v. Saginaw Mich., No. 78-1169 (6th Cir.).....  4
Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977). 42
Procunier v. Martinez, 416 U.S. 396 (1974).............  4
Pugh v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976).....  20,31,42
Rhem v. Malcolm 389 F. Supp. 964 (S.D.N.Y.), aff'd on 

other grounds, 527 F.2d 1041 (2d Cir.,1975) ....

Page

iii

22,42



Roberts v. Williams, 456 F.2d 814 (5th Cir.), cert, 
denied, 404 U.S. 866 (1971), addendum, 456 F.2d 
834 (5th Cir. 1972).............................. 28,29

Rozecki v. Gaughan, 459 F.2d 6 (5th Cir. 1972).......  25
Sinclair v. Henderson, 331 F. Supp. 1123 (E.D. La.

1971)............................................  22
Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977)......  22
Spain v. Procunier, 600 F.2d 189 (9th Cir. 197 9) . . .5,20,22,25
Taylor v. Sterrett, 344 F. Supp. 411 (N.D. Tex. 1972), 

aff'd, 499 F.2d 367 (5th Cir. 1974) subsequent 
opinion, 532 F.2d 462 (5th Cir. 1976), vacated,
No. 77-2241 (5th Cir. August 16, 1979), petitionfor reh. pending.................................3,7,22

Tilden v. Pate, 390 F.2d 614 (7th Cir. 1968).... ..... 2
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977)...........  28
United States v. Phosphate Export Assoc., 393 U.S.

199 (1968)....................................... 10
United States v. W.T. Grant Co., 345 U.S. 629 (1953).. H
Valentine v. Englehardt, Civil Action No. 78-270

(N.D.N.J. July 18, 1979)........................  8
Watson v. City of Memphis, 373 U.S. 526 (1963).......  22
Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977)....2>14,15
Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974).....  28
Wolff v. McDonnell, 418 U.S. 539 (1974)...... ........ 4
Woodhous v. Commonwealth of Virginia, 487 F.2d 889(4th Cir. 1973).................................. 26,27,34

TABLE OF AUTHORITIES
Page

IV



OTHER AUTHORITIES
Page

122 Cong. Rec. H.12155 (daily ed. , Oct. 1, 1976)......  38
122 Cong. Rec. H.12160 (daily ed., Oct. 1, 1976)......  40
122 Cong. Rec. S.16251, 16252 (daily ed., Sept. 21,1976) 38,40 
H.
S.

Rep. No. 94-1558 (94th Cong., 2d Sess.)............  38
Rep. No. 94-1011 (94th Cong., 2d Sess.)....... ...37,38,40

v



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 78-1289

MARVIN JONES, on his own behalf and 
on behalf of those similarly situated,

Plaintiffs-Appellants,
v s .

FRED R. DIAMOND, et al. ,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Southern District of Mississippi

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

SUMMARY OF ARGUMENT

The district judge and the panel failed to afford relief 
to the plaintiffs for unconstitutional conditions of confine­
ment including gross overcrowding, lack of recreation, and 
failure to protect plaintiffs from violence. Under prior 
precedents, these conditions amount to punishment of detainees



in violation of due process and cannot be tolerated for 
convicted prisoners.

Both the panel opinion and the district court failed to 
adhere to the proper role of federal courts as arbiters of 
the Constitution. By failing to deal with issues of signifi­
cant constitutional import, they, in effect, resurrected the 
discredited "hands off" doctrine. Illustrative of their 
disregard for constitutional requirements is the way in which 
they dealt with the issues of overcrowding, lack of recrea­
tion, and failure to protect inmates from violence.

The panel and the district judge approved levels of 
overcrowding more intense than those previously condemned by 
this Court. In the old Jackson County Jail, inmates were 
confined to areas which provided as little as 6.8 to 15 
square feet per person, 24 hours a day. These conditions are 
punishing for detainees and, under prior precedents, cruel 
and unusual when imposed on convicted inmates.

Moreover, plaintiffs were confined under these condi­
tions without any opportunity for recreation. Previously, 
this Court has required recreation for inmates confined 
under similar conditions. The panel opinion failed to 
properly apply prior precedents on the issue of recreation.

The district court and the panel also failed to afford 
relief to the plaintiffs for confinement without adequate 
protection from violence. The defendants' policies and

2



practices in this case, including understaffing, lack of 
classification, and overcrowding, evidenced a deliberate 
indifference to the safety of their charges resulting in a 
jail where assault and homosexual rape were commonplace.

Finally, the panel should not have ruled upon the issues 
of attorneys' fees and costs in the absence of a determina­
tion of these questions in the first instance of the district 
court. Moreover, in so ruling, the panel ignored clear 
legislative history and applied the wrong standards for the 
determination of these issues.

ARGUMENT

I.
PLAINTIFFS ARE ENTITLED TO RELIEF AGAINST 
CONDITIONS OF CONFINEMENT AT THE OLD JACKSON 
COUNTY JAIL THAT SUBJECT THEM TO PUNISHMENT 
IN VIOLATION OF THE DUE PROCESS CLAUSE
A. The District Court and the Panel Did not

Adhere to the Proper Role of Federal Courts 
in Cases Challenging the Constitutionality 
of Jail and Prison Conditions______________

It was not much more than ten years ago that the federal 
courts still refused to hear claims of constitutional depriva­
tions brought by prisoners. Tilden v. Pate, 390 F.2d 614, 
615-16 (7th Cir. 1968). The courts regularly stated that:

[I]t is settled doctrine that except in extreme 
cases the courts may not interfere with the con­
duct of a prison, with its regulations and their enforcement, or with its discipline.

Lee v. Tahash, 352 F.2d 970, 971 (8th Cir. 1965)(mail censor­
ship). Accord Douglas v. Singer, 386 F.2d 684, 688 (8th Cir.

3



1976)(denial of due process for loss of good time); Childs v.
Pegelow, 321 F.2d 487, 489 (4th Cir. 1 963) (allowance of Muslim 
religious practices). But it is now firmly established that: 
"There is no iron curtain drawn between the Constitution and 
the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 
555-56 (1974)(due process required for loss of good time 
credits as disciplinary sanction).

It is still true that, because of notions of federalism 
and separation of powers, federal courts do defer to the ex­
pertise of prison and jail administrators. Jones v. North 
Carolina Prisoners Labor Union, 433 U.S. 119, 125-26 (1977);
Bell v. Wolfish, ____ U.S. ____, 99 S.Ct. 1861, 1875 n.23, 60
L.Ed. 2d 447, 469 n.23. (1979).

But a policy of judicial restraint cannot encom­
pass any failure to take cognizance of valid 
constitutional claims whether arising in a federal 
or state institution. When a prison regulation or 
practice offends a fundamental constitutional 
guarantee, federal courts will discharge their 
duty to protect constitutional rights.

Procunier v. Martinez, 416 U.S. 396, 405-06 (1974)(striking
down mail censorship practices); Bounds v. Smith, 430 U.S.

1/817, 832 (1977). This principle has been reaffirmed

]_ / The Ninth Circuit has just recently affirmed this prin­
ciple with regard to the eighth amendment:

[E]nforcement of the eighth amendment is not al­
ways consistent with allowing complete deference 
to all administrative determinations by prison 
officials. Whatever rights one may lose at the 
prison gates, cf. Jones v. North Carolina 
Prisoners Union, 433 U.S. 119, 97 S.Ct. 2532, 53 
L.Ed. 2d 629 (1977)(prisoners have no right

4



by this Court on more than one occasion. In Newman v. 
State of Alabama, 559 F. 2d 283 (5th Cir. 1977), this Court
made clear that:

Most assuredly, however, in proper cases a federal 
court can, and must, compel state officials or em­
ployees to perform their official duties in com­
pliance with the Constitution of the United States.

Id. at 288. Accord Williams v. Edwards, 547 F .2d 1206, 1212
(5th Cir. 1977); Campbell v. Beto, 460 F.2d 765, 767-68 (5th
Cir. 1972). Moreover, this Court has been zealous in that
regard,

cognizant of the fact that deference which shields 
officials engaging in intemperate action and which 
excuses judicial myopia is incompatible with our

] _ / cont'd.
to unionize), the full protections of the 
Eighth Amendment most certainly remain in force.
The whole point of the amendment is to protect 
persons convicted of crimes. Eighth Amendment 
protections are not forfeited by one's prior 
acts. Mechanical deference to the findings of 
state prison officials in the context of the 
eighth amendment would reduce that provision to 
a nullity in precisely the context where it is 
most necessary. The ultimate duty of the 
federal court to order that conditions of state 
confinement be altered where necessary to 
eliminate cruel and unusual punishments is well 
established. See Bell v. Wolfish, U.S.
____, 99 S.Ct. 1 861 , 60 L. Ed. 2d 447 (1 979);
Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct.
2565, 57 L.Ed. 2d 522 (1978); Newman v. Alabama,
559 F.2d 283, 286 (5th Cir. 1977), cert, denied,
438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed. 2d 1160 
(1978); Williams v. Edwards, 547 F.2d 1206,
1211-12 (5th Cir. 1977); Inmates of Attica 
Correctional Facility v. Rockefeller, 453 F.2d 12, 22-23 (2d Cir. 1971 ).

Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir. 1979).
5



role as arbiters of the Constitution and hence cannot be countenanced.
Newman v. State of Alabama, 503 F.2d 1320, 1329 (5th Cir. 1974) 
(footnote omitted).

Although the panel opinion in the instant case does not, 
in terms, resurrect the discredited "hands off" doctrine, it 
evidences an equivalent "judicial myopia," reflecting the 
same basic antipathy to the retained rights of the incar­
cerated, both those awaiting trial and those serving sentences 
after conviction. For example, the panel opinion went out of 
its way to reverse part of the limited relief granted below.
The district court had ordered that the defendants post a 
list of prisoners' rights in the jail. The panel reversed 
that. Instead, it directed the district court to order that 
the jail officials fulfill their state law duties to maintain 
order and discipline in the jail and that this directive be 
posted in lieu of the list of prisoners' rights. As Judge 
Rubin noted, the posting of the list of prisoners' rights 
was not even an issue presented on appeal.

The defendant have filed no cross-appeal.
They have sought no relief from the trial court's order. On their own motion, my brethren vacate 
that part of the district court's order that 
directed the jail officials to post the re­
latively simple list of "Prisoners Rights.__"

Jones v. Diamond, 594 F.2d 997, 1039 (5th Cir. 1979) (Rubin,
C.J., concurring in part and dissenting in part). The language
of the panel opinion on this point is revealing. It said:

The notion has arisen in some quarters that jails 
are maintained solely for the benefit of the

6



inmates. ... If prisoners are to be informed 
of their constitutional rights (as they should be) 
it is not amiss that they should also be informed 
that the Constitution does not excuse breaches 
of good conduct, violations of jail rules or 
hazards to prison security.

594 F.2d at 1030. The panel simply failed to cite either
jurisdictional or legal authority for the unprecedented, and
unsought, "relief" it afforded.

In concluding, the panel noted that:
The day to day management and operations of a 
jail must, within the framework herein set forth, 
be left for the duly elected and appointed public 
officials, who are answerable to the law if they 
deliberately or recklessly impinge on the con­
stitutional rights of prisoners.

Id. In light of the failure of the panel to redress the 
flagrant violations of constitutional rights relfected in 
the record (some of which are detailed below), this can only 
be understood as a return to the "hands off" doctrine. This 
is also implicit in the way that the panel opinion dealt with 
prior precedent, applied the lower eighth amendment standard 
to questions regarding the rights of those awaiting trial, 
and misapplied undisputed law. The distinct impression left 
by the panel opinion in this case, and by the panel in Taylor 
v. Sterrett, No. 77-2241 (5th Cir. Aug. 16, 1979), petition 
for reh. pending (vacating orders of district court and dis­
missing jurisdiction in a case involving prior findings of un­
constitutional conditions in a pre-trial detention facility), 
is that this Court is now backing away from the zealous



protection of the constitutional rights of those incarcerated 
that has marked its prior opinions. It is important that the 
panel opinion not be reaffirmed so that the courts in this 
circuit not be deterred from properly applying the principles 
of the Constitution to the conditions of confinement in local 
jails and prisons.

It is one thing to recognize that the Constitution 
requires an appropriate measure of deference to jail and 
prison administrators. It is quite another to allow indif­
ference to the maintenance of unconstitutional levels of 
overcrowding, inadequate recreation, and violence.

The ambit of the administrator's discretion
and judgment may be wide - but it is not unbounded.
The Court is not to usurp the role of the jailer.
But it cannot abandon its role as the proper forum for adjudication of the rights of prisoners.

Valentine v. Englehardt, Civil Action No. 78-270, Slip. Op.
at 13 (N.D.N.J. Jirly 1 8, 1 979). The panel opinion did not
adhere to this role for which, as Judge Rubin noted, "the
Constitution provides both warrant and duty ...." 594 F.2d at
1039. An examination of some of the facts of this case and the
way in which the panel opinion dealt with the issues they
raised should suffice to illustrate the degree to which the
panel strayed from the requirements of the Constitution.

2/ Valentine is the first decided case of which amicus is aware applying the standards delineated in Bell v. Wolfish, supra, to 
conditions of pre-trial detention.

8



Three areas in which the panel approved the most flagrant 
violations of constitutional rights were overcrowding, the 
lack of exercise, and the failure of the jail officials to 
provide their charges with adequate protection from violence.

B. Overcrowding

(i)

The uncontrovertible fact is that, even when operating 
at what might be called "design capacity," the old Jackson 
County Jail was grossly overcrowded. See discussion infra at 
12-14. The panel opinion recognized these "crowded conditions, 
as well as the fact that the facilities were generally 
"inadequate." 594 F.2d at 1009. Indeed, "[a]ll of the 
parties, as well as the trial judge, agree that the old jail 
was crowded." Id_. at 1018. As Judge Rubin noted in 
partial dissent:

It is clear ... that the Jackson County Jail 
was, when this suit was filed, and still is, being 
operated in a manner that violates the federal 
constitution. The most egregious, though not the 
sole, wrongs were racial segregation of its prisoners, 
and such intense overcrowing as to constitute 
cruel and unusual punishment and violation of due 
process. It is implicit in the trial court's actions that the trial judge, despite his explicit 
disclaimer, found the confinement of prisoners 
in the old jail to be unconstitutional, for on 
December 6, 1977 that court ordered a new jail 
ready by September 15, 1978.

594 F.2d at 1032 (emphasis added).

9



The panel opinion places heavy reliance on the fact that
a new, modern, adequate facility has been built in Jackson 

3/
County. But the provision of 80 square foot cells to 
future detainees at the new jail does not prevent the con­
tinued operation of the old jail in its grossly overcrowded 
state should the new jail prove to be inadequate to handle 
the influx of prisoners at some later time. In the absence 
of a declaratory judgment or injunction on the overcrowding 
issue, there is no reason to assume that the same defendants 
who operated the old jail in its grossly overcrowded and 
segregated condition for the six years in which this case was 
pending, and who blithely ignored the district court's order 
in this case regarding the deadline for opening the new jail, 
will not resort to their former unconstitutional practices in 
the future. It is black letter law that:

Changes made by the defendants after suit is filed 
do not remove the necessity for injunctive relief, 
for practices may be reinstated as swiftly as they 
were suspended.

Gates v. Collier, 501 F.2d 1 291 ,. 1 321 (5th Cir. 1 974); Allee v. 
Medrano, 416 U.S. 802, 810 (1974); United States v. Phosphate

3/ The new county jail was not completed and ready for 
occupancy by Sept. 15, 1978, as ordered by the district 
court. Defendants failed to apply for an extention of time 
from the district court. At the time of oral argument before the panel, the old Jackson County Jail was still the sole 
facility housing detainees and convicted prisoners in the county. The record is, in fact, silent on whether the new 
jail is in operation, although it appears from the majority 
opinion that it has been opened. 594 F.2d at 1018; id. at 
1033 (dissent).

10



Export Assoc., 393 U.S. 199, 203 (1968); United States v. W.T.
Grant Co., 345 U.S. 629, 632 (1953); Inmates of Attica Cor­
rectional Facility v. Rockefeller, 453 F.2d 12, 23 (2d Cir. 
1971); Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir.
1966).

Here, the record does not even reflect that the old jailV
has been replaced. Its continued existence, not subject 
to a court order or ruling, will be an open invitation 
to the resumption of unconstitutional overcrowding the first
time the new jail cannot handle the overflow of prisonersV
from Jackson County. Indeed, the panel's order limiting 
the new jail's population to "design capacity," 594 F.2d at 
1029, would seem to suggest that the old jail will be used to 
house the overflow, despite defendants' assertion that the 
old jail will not house inmates overnight. Ic3. at 1034 
(dissent). The panel thus endorses the grossly overcrowded 
conditions of the old jail as constitutionally acceptable for 
future use.

As noted by Judge Rubin;
[T]he forthright declaration that jail operation 
has been and is likely to continue to be violative of federal rights not only is the justification for

£/ See n.3, supra.
5/ The panel recognized the unconstitutional overcrowding
and that "to avoid a repetition of past problems at the old county jail future overcrowding should be prohibited." 504 F.2d at 1018. However, the relief it afforded related only to 
possible future overcrowding at the new facility. Id_. at 1029. There was neither a declaratory judgment nor an injunc­
tion entered regarding the old jail.



the relief the majority accord; it also is the reason 
why that relief provides neither adequate recompense 
for past wrongs nor appropriate protection against 
their future repetition.

6/
594 F.2d at 1032.

(ii)

As noted above, even the panel opinion recognized that
the old Jackson County Jail was overcrowded. The extent of
this overcrowding, however, is well worth detailing. As the
panel opinion indicates, 594 F.2d at 1018 n.20, the maximum
space available to inmates at the old county jail ranged from
less than 22 square feet per inmate in the east bull pen to
all of 39 square feet in the padded cells, which were not
furnished with bunks nor with plumbing any more advanced7/
than a hole in the floor.

Even the above figures are misleading since they con­
sider both sleeping and dayroom space together. In fact, in

6/ The district court and panel opinions did not rule on 
the issue of damages for past unconstitutional conditions 
including overcrowding, and thereby failed to redress the 
constitutional deprivations inflicted on past inmates who are 
part of the plaintiff's class.
!_ / The large maximum security cell, which provides only 2 
of the 76 bunks in the institution, is the only exception.
It provides 75 square feet per person.

12



the east and west bull pens (which provide 48 of the 76 bunks 
in the jail), inmates were confined solely to the dayrooms 
from 7 a.m. to 8 p.m., and solely to their cells for the 
remainder of the day. (Transcript Vol. 1 at 166, 169; Vol. 5 
at 1141—42). Each of the bull pens consists of several six 
bunk cells of approximately 90 square feet (7' 1" x 12'9"), and 
a dayroom of approximately 204 square feet (16' x 12'9" ).
594 F.2d at 1008 n.7. After 8 p.m., each group of six 
inmates is confined solely to the 90 square foot cells, 
thus according each person only 15 square feet each, includ-
.illS_sPace occupied by beds. During the day, these inmates
are locked into the 204 square foot dayroom. In the west 
bull pen, which has 18 inmates (3 six-bunk cells), there is 
thus only 11 square feet per person, including space occupied 
by tables. Conditions in the east bull pen, which has 30 
inmates (5 six-bunk cells), are worse. For those inmates 
to share a 204 square foot space, limits each person to only 
6.8 square feet (including table space).

The 76 bed "design capacity" is computed as follows:East bull pen - 5 six bunk cells - 30West bull pen - 3 six bunk bells - 1 8Maximum security cell - 2 with 3 bunk each - 6Line cells
Large maximum security

- 4 with 4 bunks each — 16
cell - 2 bunks — 2Padded cells - 2 — 2Holding cell - 2 bunks — 2T?T

13



The shocking nature of the overcrowding is even more 
intense if it is realized that these figures are premised on 
"design capacity." But, at various times, the jail has housed 
as many as 97 or 102 inmates, about 29 and 36%, respectively, 
over "design capacity." These extra inmates slept on mat­
tresses (when available) on the floor of the holding, line and 
bull pen cells. (Transcript Vol. 5 at 1134-35; Vol. 1 at 151, 
216-18; Vol. 2 at 311-12, 320, 541-52, 459; Vol. 6 at 1460-61; 
See 594 F.2d at 1011). Further, confinement under these 
conditions was unrelieved, extending twenty-four hours a day, 
since there are neither outdoor nor indoor facilities for 
recreation at the old jail.

The panel found no constitutional problems with this 
abysmal state of affairs. Rather, it marshalled prior Fifth 
Circuit cases in such a way as to imply that the precedents 
countenanced such plain denials of humane treatment. It 
cited Newman v. Alabama, 559 F.2d 283, 288 (5th Cir. 1977), 
and Williams v. Edwards, 547 F.2d 1206, 1215 (5th Cir. 1977), 
for the proposition that this circuit has never accepted 
minimum square foot figures as the sole determinants of 
constitutional conditions. It also cited Miller v. Carson,
563 F.2d 741 (5th Cir. 1977), for the further point that 
"design capacity" does not set constitutional minima either.

Analysis of the cases cited by the panel, which constitute 
the undisputed authority in this circuit, reveals that this 
Court has never countenanced conditions as barbarous as these.

14



In Gates v. Collier, 390 F. Supp. 482, 486 (N.D. Miss. 1975),
aff'd, 548 F .2d 1241 (5th Cir. 1 977), cited by the panel, the 
district court noted that:

... generally accepted correctional standards require 
a minimum of 50 square feet of living [housing] area 
for every prison inmate. Penologists offered by the 
private inmates and the government as well as the 
correctional specialists on the Parchman staff agree 
that this requirement is needed to insure a minimum 
level of decency.

Id. at 486 (emphasis added). In Newman, supra, the court
merely remanded a 60 square foot figure for reconsideration
in light of the decision in Williams. But Williams clearly
held only that the setting of a maximum capacity figure for
Angola Prison Farm in Louisiana based on an 80 square foot
figure should be reconsidered in light of the functions and
characteristics of each building and in light of the new
facilities then under construction. 547 F.2d at 1215.
This Court has never countenanced the caging of inmates in
areas affording as little as 6-15 square feet per person9/
without even the opportunity for recreation. Even the 
relatively "luxurious" square footage considered in Gates, 
Newman and Williams, must be viewed in light of the fact

•

that, at least in some of those cases, convicted inmates

9/ In Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969), 
the court observed that while it would not undertake

to state with specificity the exact point at which one of the isolation cells becomes "over­
crowded" rather than simply "crowded," ... two 
men are a crowd in an 8 x 10 cell when they have 
to stay there 24 hours a day for weeks on end....

Id. at 833. Here, there is far less than 40 square feet per 
inmate for virtually all inmates in the jail.



spent much of their time outside of living area at work
(mostly outdoors) and generally had access to outdoor

10/recreation as well.
Reliance upon Miller, supra, is similarly misplaced. The 

reported opinions in Miller do not reflect what the square 
footage allotments were. But the overcrowding in that case was 
not dissimilar. The panel opinion sought to distingush Miller 
on the ground that the facility in Miller housed 100 inmates 
over "design capacity." But there the "design capacity" was 
much greater. As determined by the district court (401 F.
Supp. at 873), it was four hundred and thirty two; 100 inmates 
represented a 23% excess over "design capacity." By com­
parison, the old Jackson Jail was more overcrowded. It has 
approximately 76 beds and has housed up to 97 to 102 inmates, 
between 29 and 36% over "design capacity." Here, as in 
Miller, the inmates in excess of design capacity were forced 
to sleep on mattresses on the floor. Miller, supra, 563 F.2d 
at 745.

(iii)
The panel opinion simply failed to properly apply prior 

precedents to the conditions of gross overcrowding that existed 
at the Jackson County Jail. It approved conditions that, viewed 
under these prior precedents, are cruel and unusual when imposed 
on convicted prisoners. Certainly they cannot be countenanced 
for pre-trial detainees.

10/ See n.13, infra.
- 16 -



Even before the Supreme Court's decision in Bell v. Wolfish,
supra, it was clear that unconvicted detainees could not be
punished without violating the essense of due process. As this
Court stated in Miller v. Carson, 563 F.2d 741 (5th Cir. 1977):
"A government may hold a citizen without showing that he has
done wrong, but it may not punish him without proof." Id_. at
746. Thus, the reliance by the panel on the fact that detainees
"are being held on probable cause to believe that they are, in
fact, guilty of a violation of the criminal statutes...," 594
F.2d at 1004, is of no more relevance to the standard to be
applied than the panel's recitation of past problems of
discipline in the instant facility. Ici. at 1 004.

In fact, the panel opinion starts by recognizing that
detainees are protected by the requirements of due process,

11/citing McMahon v. Beard, 583 F.2d 172 (5th Cir. 1978).
But, it applies only an eighth amendment standard to the

12/issues in this case. It then goes on to approve condi­
tions that can only be described as punishing.

In the only recently decided case of Bell v. Wolfish,
____U.S. ____, 99 S.Ct. 1 861 , 60 L.Ed. 2d 447 (1 979), the
Supreme Court set the standard by which the constitutionality

11/ In McMahon, the Court noted that for the purposes of 
that case the requirements of the eighth amendment and the 
due process clause did not differ. 583 F.2d at 174. But there the issue was the constitutionality of practices that were only prudent steps necessary for the protection of an inmate who was both suicidal and in danger of assault from 
other inmates. Id_. at 175.
12/ See 594 F.2d at 1004, 1013, 1017, 1019, 1029.

17



of the conditions of confinement of detainees must be judged.
In evaluating the constitutionality of conditions 
or restrictions of pretrial detention ... we think that the proper inquiry is whether those conditions 
amount to punishment of the detainee. For under the 
Due Process Clause, a detainee may not be punished 
prior to an adjudication of guilt in accordance with 
due process of law.... [T]he Government ... may detain 
him to insure his presence at trial and may subject him 
to the restrictions and conditions of the detention 
facility so long as those restrictions and conditions 
do not amount to punishment....

^d. , 99 S.Ct. at 1 872, 60 L.Ed. 2d at 466 (emphasis added).
One of the specific issues before the Court in Wolfish 

was that of overcrowding. There the issue was whether double- 
celling in cells of 75 square feet amounted to punishment 
of pre-trial detainees. The Court held that it did not. 99 
S.Ct. at 1875, 60 L.Ed. 2d at 470—71. But the square footage 
approved by the Wolfish Court was substantially in excess of 
that provided to inmates at the Old Jackson County Jail. 
Moreover, even the "admittedly rather small" 37 1/2 square 
feet per inmate approved by Wolfish, id., can only be under­
stood in the context of the practices and facilities of the 
particular jail involved in that case. The Supreme Court 
opinion makes clear that a significant factor in the approval 
of double-celling as practiced at that institution was that 
inmates were only confined to their cells during sleeping 
hours, between 11 P.M. and 6:30 A.M., and had free run of 
spacious common areas for 16 hours a day. Ici. Also, as the 
Supreme Court noted:

18



The MCC differs markedly from the familiar image 
of a jail; there are no barred cells, dank, color­
less corridors, or clanging gates. It was intended 
to include the most advanced and innovative features 
of modern design of detention facilities. As the 
Court of Appeals stated: " [I]t represented the
architectural embodiment of the best and most pro­gressive penological planning."

99 S.Ct. at 1866, 60 L.Ed. 2d at 459. Although not detailed
in the opinion, the facility involved in Wolfish provides
substantial amenities including carpeted living and dayroom
areas; barless windows; rooms rather than cells; substantial
recreational facilities including color television, pool
tables and roof-top handball courts; and a substantial
library, legal and non-legal. See generally, Wolfish v.
Levi, 573 F.2d 118, 121-22 (2d Cir. 1978).

In short, the facility in Wolfish was a far cry from the 
old Jackson County Jail with its cage-like atmosphere and 
intense overcrowding. To cram detainees in areas pro­
viding as little as 6.8 square feet per person is degrading, 
dehumanizing and severely punishing. Neither this Court nor 
the Supreme Court in Wolfish has previously condoned such 
punishing conditions of overcrowding. This Court should 
not now.

C. Lack of Recreation
The way in which the panel dealt with the issue of out­

door recreation is even more disturbing. The panel cited 
Miller for the proposition that outdoor exercise is not a per

19



se constitutional requirement for convicted prisoners. 594 
F.2d at 1013. But Miller was unequivocal in stating its 
holding.

We hold that both presumably innocent inmates 
and convicted inmates must be "allowed reason­
able recreational facilities." Pretrial detainees are entitled to such facilities be­
cause of the due process clause of the Four­
teenth Amendment. For convicted criminals, as 
we stated in Newman, 559 F.2d at 291, "We 
do this simply because such facilities may play 
an important role in extirpating the effects of the conditions which undisputably prevailed in 
these prisons at the time the District Court 
entered its order."

Miller, supra, 563 F.2d at 749-50. The undisputed conditions 
at the old Jackson County Jail are not substantially different 
from those that led the Miller and Newman courts to provide 
for outdoor exercise for all inmates: living quarters where

13/

inmates were forced to spend all of their time under extremely 
close and crowded conditions in absolute idleness. See Miller,
supra, 563 F.2d at 751; Newman, supra, aff 'g, Pugh v. Locke, 
406 F. Supp. 318, 346 (M.D. Ala. 1976). See also Spain v.

13/ The panel opinion found it "odd" that some courts have 
held that convicted prisoners have no right to outdoor exer­
cise despite the greater length of their confinement. However, 
this is accounted for, in part, by the fact that convicted 
prisoners held in prisons generally have greater mobility, as well as work assignments. See text accompanying n.10, supra. 
Quite to the contrary, the Ninth Circuit has recently required 
daily outdoor recreation for convicted inmates confined for an extended period of time "in continuous segregation, spending 
virtually 24 hours every day in their cells with only meager out-of-cell movement and corridor exercise." Spain v. Procunier, 600 F.2d 1 89, 1 99 ( 9th Cir. 1 979). And, of 
course, Pugh v. Locke required outdoor recreation for inmates 
continuously confined in idleness. 406 F. Supp. at 346.
See discussion in text, infra.

20



Procunier, 600 F.2d 189, 199-200 (9th Cir. 1979)(prisoners
held for several years); Bono v. Saxbe, 450 F. Supp. 934,
940, 946, 948 (E.D 111.), subsequent opinion, 462 F. Supp.
146, 149 (E.D 111. 1978)(7 hours per week for high risk
inmates in the Control Unit of Marion Federal Penitentiary).

The panel held that outdoor recreation is not con­
stitutionally required, per se. It held that indoor recrea­
tion might be a reasonable alternative under some circum­
stances. But the issue here is not whether there is a per se 
requirement; it is the need for outdoor recreation, indeed, 
any recreation, under circumstance substantially similar 
to those that existed in Miller and Newman. How an inmate 
can be expected to obtain reasonable exercise in a cell
where living space at any given time varies from a maximum of
15 square feet per person to as little as 6.8 square feet per 
person is a mystery not solved by the panel opinion.

The panel refused to grant outdoor exercise absent medical 
testimony regarding its necessity. 594 F.2d at 1013. But, 
given the clear precedents in this circuit, to require every 
case to prove anew what has already been established, and 14/
which as Judge Rubin noted in dissent is common knowledge,

14/ As phrased so pointedly by Mr. Justice Cardozo: "We are
not to close our eyes as judges to what we must perceive as men. 
People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 
63 (1920).

In requiring daily outdoor exercise for seven inmates 
held in administrative segregation for a period of years, 
the Ninth Circuit held that:

21



is to place an undue burden on both plaintiffs and trial courts 
not justified by any rule or reason.

The panel also read Miller as only requiring recreation 
"where outdoor recreation is reasonably possible." 594 F.2d 
at 1013. It distinguished the instant case from Miller on the 
ground that

14/ cont'd.
There is substantial agreement among the 

cases in this area that some form of regular out­
door exercise is extremely important to the psychological and physical well being of the 
inmates. Frazier v. Ward, 426 F. Supp. 1354, 1 367- 
69 (N.D.N.Y. 1977); Rhem v. Malcolm, 389 F. Supp.
964, 972 (S.D.N.Y. ),~aff*d on other grounds, 527 
F.2d 1041 (2d Cir. 1975); Hamilton v. Landrieu,
351 F. Supp. 549, 550 (E.D. La. 1972); Taylor v.
Sterrett, 344 F. Supp. 411, 420 (N.D. Tex. 1972), 
modified on other grounds, 499 F.2d 367 (5th Cir.
1974); Conklin v. Hancock, 334 F. Supp. 1119, 1122 (D.N.H. 1971); Sinclair v. Henderson, 331 F. Supp.
1123, 1129-31 (E.D. La. 1971); Jones v. Wittenberg,
330 F. Supp. 707, 717 (N.D. Ohio 1971), aff'd sub nom. 
Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); see 
also, Smith v. Sullivan, 553 F.2d 373, 379 (5th Cir. 1977).

Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). It 
affirmed the district court, noting that

...when confronting the question whether penal 
confinement in all its dimensions is consistent with the constitutional rule, the court's judg­
ment must be informed by current and enlightened 
scientific opinion as to the conditions necesary to insure good physical and mental health for 
prisoners. We think the district court gave 
proper recognition to this principle in its 
order requiring outdoor exercise for these plaintiffs.

Id. at 200. See discussion n.13, supra. In Costello v. 
Wainwright, 397 F. Supp. 20 (M.D. Fla. 1975), the court quoted 
the testimony of Dr. Thomas E. Michell of the University of 
South Florida College of Medicine and the Tampa General

22



there are no such facilities [reasonably available 
without large expenditures of funds] in the vicinity 
of the old Jackson County Jail. Unless the courts 
were to order the erection of a large barbed wire 
fence around or near the county courthouse in down­
town Pascagoula, or to order that prisoners be 
bussed to some out-of-the way [sic] location on a daily 
basis, neither of which we are prepared to do, 
there is no reasonably available facility for outdoor exercise.

594 F.2d at 1018. However, the panel's reasoning must be 
rejected for two reasons. First, the panel misreads Miller, 
the outdoor facilities were no more available there than 
here. In Miller the defendants argued that "the present 
structural deficiencies ... render it almost impossible to 
provide daily outdoor recreation for the inmates." 401 F. 
Supp. at 891. There, the only available space for recreation 
consisted of the roof of the jail, which would have required 
structural modification; the parking lot where the Sheriff 
and his subordinates parked county owned police and unmarked 
cars; or a limited access street which the court indicated

14/ cont'd.
Hospital which deplored conditions where men are

incarcerated within their cells for a year or more 
without anything other than a two-or-three times a week bath shower and a small amount of 
exercise. This I think would produce in anyone 
both physical and emotional problems. Physically, 
you get into a negative nitrogen, negative cal­
cium balance. There are lots of things that 
can happen to you physically, demonstrable in the laboratory.

Emotionally, I think it's equally obvious that while this is not solitary confinement, it is confinement in a closed area with no oppor­tunity for any of the usual outlets, and I think 
it creates more emotional problems.

Id. at 30.
23



could have been blocked off. As a result of the litigation,
the defendants in Miller put barbed wire on the top of the
fence surrounding the parking lot and began using the lot for
recreation. .Id. at 892. In the instant case, it may be
presumed that the old Jackson County Jail has a roof, and
while "there is little unused space on the courthouse lot,"
594 F.2d at 1008, it would be proper to have the district
court on remand, not the Court of Appeals, make the initial
factual determination whether unused or potential multi-useIVspace is available.

Second, the reasoning of the panel suggests that the 
relative availability of facilities and financial resources is 
a factor in determining whether a past constitutional viola­
tion has occurred. But nowhere in Bell v. Wolfish, ___U.S. __
99 S.Ct. 1861, 60 L.Ed. 2d 447 (1979), or Jones v. North 
Carolina Prisoners Labor Union, 433 U.S. 119 (1977), did the 
Supreme Court even indicate that cost is a relevant factor in 
determining the existence of a constitutional violation.
This Court has been forthright in asserting this fundamental 
principle: "Shortage of funds is not a justification for
continuing to deny citizens their constitutional rights."
Gates v. Collier, 501 F.2d 1291, 1320 (5th Cir. 1974). And

15/ If the relief suggested by defendants' own representa­
tion, that the old county jail will not be used as an overnight 
facility, were to be adopted by this Court, then the issue of 
costs and facilities would be irrelevant. The new facility 
does not, apparently, have the same space limitations as the 
old jail. See 594 F.2d at 1010.

24



this Court has not been alone in maintaining this important 
pr inciple:

Where state institutions have been operating 
under unconstitutional conditions and practices, the [defense] of fund shortage ... [has] been re­
jected by the federal courts.

Id. at 1319, citing Watson v. City of Memphis, 373 U.S.
526, 537 (1963); Rozecki v. Gaughan, 459 F.2d 6, 8 (5th Cir.
1972); Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968);
Hamilton v. Love, 328 F. Supp. 1182, 1194 (E.D. Ark. 1971);and
Holt v. Sarver, 309 F. Supp. 362, 385 (E.D. Ark. 1 970), aff'd,
442 F.2d 304 (8th Cir. 1971). And see Spain v. Procunier, 600
F.2d 189, 200 (9th Cir. 1979) (recreation); Finney v. Arkansas
Board of Corr., 505 F.2d 194, 201 (8th Cir.1974). As Mr.
Justice Blackmun, then Circuit Judge, stated it in Jackson,
supra:

Humane considerations and constitutional requirements 
are not, in this day, to be measured or limited 
by dollar considerations....

404 F.2d at 580. Moreover, constitutional requirements
cannot be blunted because of mere aesthetics. There is no
reason why Duval County, Florida, can use barbed wire —
—  Miller, supra, —  and Jackson County, Mississippi, cannot.

D. Inadequate Protection from Violence 
The panel also found that inmates at the old Jackson 

County Jail had not been denied their right to be free from 
violence and assault. 594 F.2d at 1016-17, 1019-20. It 
started with the unassailable premise that,

25



confinement in a prison where violence and 
terror reign is actionable. A prisoner has 
a right ... to be reasonably protected from 
constant threat of violence and sexual assault 
by his fellow inmates.

594 F.2d at 1016, quoting Woodhous v. Commonwealth of
Virginia, 487 F.2d 889, 890 (4th Cir. 1973). Nevertheless,
it found no constitutional violations here, in part because:

All of the allegations of injuries, save one, 
assert injuries at the hands of other prisoners and not at the hands of any jail officials....
In none of the other nine cases did the defen­
dants actually participate in the alleged assaults, and there is no evidence that they 
knew of the potential for violence and, acting 
with that knowledge, abetted the assault through 
inaction.... On ... occasions when there were 
outbreaks of violence, the jail officials in­
variably responded immediately and took injured 
prisoners to the hospital when necessary.

594 F.2d at 1020, and in part because it could find no "delib­
erate indifference" to the constitutional right of security of 
the inmates. 594 F.2d at 1016-17, 1019-20.

The panel opinion is in error on at least three counts. 
First, as made obvious by its own citation of Woodhous,
supra, it is irrelevant that the jail officials did not

16/
actively participate in the assaults. Second, there was
evidence that, with regard to particular incidents, the 
defendants were put on notice that a particular inmate had a

16/ As noted by the panel itself, there was at least one such 
incident. 594 F.2d at 1020. In fact, there was evidence of 
two. A jailer known as "Slim" beat a drunk on the head with 
jail keys. Transcript Vol. 2 at 303. These incidents are 
actionable apart from the general claim of confinement in an 
unsafe institution. See, e.g., Hamilton v. Chaffin, 508 F.2d 
904 (5th Cir. 1975); Johnson v. Glick, 481 F.2d 1028 (2d 
Cir.), cert, denied sub nom. Emplovee-Officer John, No. 1765 
Badge No. v. Johnson, 414 U.S. 1033 (1973).

26



propensity for violence or was in danger of assault, but,±7/
nonetheless, failed to act. Third, other acts and
omissions of the defendants did establish the "deliberate
indifference" required by the panel opinion. 594 F.2d at

J_8/
1016-17, 1019-20.

What the panel failed to do was to distinguish between 
the application of the deliberate indifference standard in 
the context of an individual action relating to a specific 
incident and its application in the context of an action 
alleging systemic deficiencies. The cases relied upon by 
the panel, Hampton v. Holmesburg Prison Officials, 546 F.2d 
1077 (3rd Cir. 1976), and Little v. Walker, 552 F.2d 193 
(7th Cir. 1977), both fall in the former category. However 
the issue on this appeal is whether there was deliberate 
indifference to the security of the inmates in the way that 
the old Jackson County Jail was run, resulting in a jail 
"where violence and terror reign." Woodhous, supra, 487 
F.2d at 890.

17/ See discussion, infra, of incidents involving inmate 
Anthony Miller and inmates Ladnier and Overstreet.
18/ Amicus does not concede that "deliberate indiference" is necessarily the appropriate standard governing determina 
tion of this issue. See Appellants Petition for Rehearing 
at 5-6; and see, e.g ., Sims v. Adams, 537 F.2d 829, 831 (5th Cir~ T 976) ; Wright v. McMann, 3”60 F.2d 1 26, 1 34-35 (2d 
Cir. 1972); Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 
1971). Rather, it is the position of the amicus that even under the standard applied by the panel, the ruling of the 
district court should be reversed.

27



The Second Circuit has further defined this standard, 
noting that

while a single instance . . . viewed in 
isolation, may appear to be the product of 
mere negligence, repeated examples of such 
treatment bespeak a deliberate indifference 
by prison authorities to the agony engendered 
by haphazard and ill-conceived procedures.
Indeed, it is well-settled in this circuit 
that "a series of incidents closely related in time . . . may disclose a pattern of con­
duct amounting to deliberate indifference to 
the medical needs of prisoners." Bishop v.
Stoneman, 508 F.2d 1224 (2d Cir. 1974). See 
Newman v. Alabama, 503 F.2d 1320 (5th Cir.
1974), cert. denied, 421 U.S. 948, 95 S.Ct.
1680, 44 L.Ed. 2d 102 (1975). When systematic 
deficiencies in staffing, facilities or proce­
dures make unnecesary suffering inevitable, a 
court will not hesitate to use its injunctive 
powers.

Todaro v. Ward, 565 F.2d 48, 52 (2d Cir. 1977). Previously, 
in Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974), the 
Second Circuit had equated deliberate indifference with a 
"callous indifference to the predictable consequences of
one's behavior upon the prisoners under one's control" Id.19/ —
at 546 n.11. In delineating this standard, the Vincent
court relied on this Court's decision in Roberts v. Williams,
456 F .2d 819 (5th Cir.), cert, denied, 404 U.S. 866 (1971),
addendum, 456 F.2d 834 (5th Cir. 1972). Although the Court
in Roberts ultimately rested its decision on pendent state

19/ In applying the deliberate indifference standard to the 
issue of medical care, the Supreme Court in Estelle v. Gamble, 
429 U.S. 97 (1976), relied on the already well developed line 
of cases in the circuit courts applying this standard. One 
of the cases cited with specific approval by the Court, id. 
at 106 n.14, was Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974).

28



law grounds, it discussed the standards to be applied under 
the eighth amendment, establishing that federal jurisdiction 
existed. The court indicated that the eight amendment 
violation consisted of the

... callous indifference ... at the manage­
ment level, in the sustained knowing main­
tenance of bad practices and customs. When 
prison wardens are cruel in their attitudes, 
negligent as well as intended injuries result.

Id. at 827. In Roberts, the court viewed the facts in that 
case and

the demonstrated indifference to prisoners' 
safety, as establishing a cruel state of 
mind which with physical harm and causation 
provide the basis of Eighth Amendment liability.20/

Id. at 828.

20/ In Roberts, the plaintiff was injured when the shotgun 
carried by a trustee went off directly at him. The practices 
condemned by the court in Roberts included the failure to 
adequately clasify those eligible for trustee status —  the 
trustee involved had only a fourth grade education and a 
conviction for assault with intent to kill —  and the 
failure to adequately train the trustee in the use of weapons. 456 F.2d at 827-28.

See also Dewell v. Lawson, 489 F.2d 877 (10th Cir.
1974), cited with approval in Estelle v. Gamble, 429 U.S. 97,
106 n . (1976). Dewell applied a similar standard in a case 
involving a § 1983 claim against a police chief for failure 
to provide adequate personnel and training to distinguish 
between people in a diabetic coma and people who are merely 
drunk. The court held that the alleged supervisory failings 
were enough to survive a motion to dismiss and constituted 
allegations of sufficient incompetence and inadequacy to violate constitutional guarantees.

29



The issue here is whether there was a "callous indif­
ference .. at the management level" resulting in the "sustained 
knowing maintenance of bad practices and customs." Id_. at 827. 
The record reveals that there was. For example, during the 
Diamond administration (until 1976), trustees were the only 
persons supervising the jail during the evenings and at night, 
between 5 p.m. and 8 a.m. (Stipulation, Vol. 3 at 688 &
585). The deputies on the first floor did check the fourth 
floor jail, but only once an hour. (PI. Ex. 12). Sheriff 
Diamond defended this practice on the ground that he could 
"hear everything going on upstairs" from his third floor 
apartment. (Vol. 3 at 745-46). Under the current Ledbetter 
administration, there is a free world jailer on duty, but he 
does not spend much time on the jail floor. (Vol. 1 at 186; 
Vol. 2 at 270, 470). Other practices were equally sure to 
result in inmate violence. Juveniles were held in the same 
cells as older inmates. (Vol. 1 at 12, 15). Women were housed 
in a cell across from the trustee cell; the trustee on duty 
had a key to their cell. (Vol. 1 at 21-22; Vol. 2 at 249;
Vol. 3 at 801). And not least, the jail was operated under 
conditions of gross overcrowding, 24 hour "lock-down," and 
idleness, the inmates confined to their cells and dayrooms 
without adequate classification and without recreation.
These conditions predictably lead to increased tension 
between inmates resulting in fights and assaults. Gates v.

30



Collier, 501 F.2d 1291, 1309 (5th Cir. 1974), aff'g, 349 F.
Supp. 881, 888, 894 (N.D. Miss. 1972); Pugh v. Locke, 406 F.
Supp. 318, 329-30 (M.D. Ala. 1976); Costello v. Wainwriqht,TT7---------
397 F. Supp. 20, 27, 28,31 (M.D. Fla. 1975).

Nor was there a shortage of proof in the record of 
the actual results of these deliberate policies. The panel

2J/ In Costello, the court quoted and credited the testimony 
of Dr. Kenneth Babcock:

Q. What is the effect on the mental stability 
of an individual when he is placed in overcrowed con­ditions?

A. To me it merely creates a greater bitterness 
and a greater incompatibility with the establishment 
and those concerned in his care. It is not a good thing.

Q. Is there a heightened degree of tension, 
anxiety, agressiveness? [sic]

A. This would seem to be the case in many insti­
tutions that have been studied -- that have been studied 
and I believe absolutely that it's true.

Q. Is there a correlation in your opinion 
between overcrowding and subsequent violence?

A. There has to be, yes.
Q. Is there any danger as a consequence of 

overcrowding to the health, life, safety and limb 
of the correctional officer as well as the inmate?

A. Well, as the tension among the inmates in­
creases, the chances of something happening to the 
custodial officers in due proportion increases, in 
my estimation. It's like a teeter-totter, the 
higher the crowding and the closeness together of 
those, the greater chance because of the fewer cus­todial people for trouble is paramount and is there.

397 F. Supp. at 27. The Court also noted the testimony of Dr.
Alderete, Chief Medical Officer of the federal penitentiary in
Atlanta, Georgia:

31



refers to only ten incidents. But there was ample testimony 
that violence and sexual assaults were commonplace. Robert 
Mitchell testified that he observed numerous beatings of new 
inmates, especially on weekends. He testified that inmates 
would conduct kangaroo courts, trying inmates for alleged 
wrongs and sentencing them to perform oral sex on others. He 
also testified that inmates would set drunks on fire. (PI.
Ex. 27; 28; Vol. 3 at 616-17). Inmate Bobby Hughes went to 
sleep on a bench in the west bull pen and awoke to the smell 
of something burning. Another inmate had set his pants leg on 
fire. An inmate was able to cut the burning pants leg off,

21/ cont'd.
Q. Does overcrowding create medical and 

mental problems?
A. Yes, sir, it has a tremendous im­

pact medically and emotionally.
Medically, it's conducive to spreading 

of epidemic-type diseases. It's conducive 
to diseases in which there's a breakdown of 
resistance, such as, for example, TB and the 
incidence of infection is —  where people are 
really in close proximity to each other, is much greater. And finally, the —  emotionally 
it produces a lot of depression, frustration,
activates violence, promotes aggression. When
you ' re in an institution that's overcrowded, you
can begin to feel the tension, you can almost
cut it with a knife.

Id. at 28 (emphasis added). Based on the testimony the court 
concluded:

[I]t appears that severe overcrowding endangers 
the very lives of the inmates because of its being 
a factor in the causation of violence within 
the prison system.

Id. at 31.
32



but Hughes suffered burns to his leg that have caused perma­
nent disability. (Vol. 3 at 661, 671).

Inmate Mitchell also witnessed the assault by inmate 
Malcom Jackson upon inmates Ladnier and Overstreet. Jackson 
had assaulted a Jackson County detective, beating him severely. 
While incarcerated after arrest for that crime, he exhibited 
disturbed behavior. Both Jackson and inmate Mitchell asked 
that Jackson be placed in isolation in one of the padded 
cells. On the day of the assault, Jackson was being harassed 
by the trustee on duty, who was telling him that others were 
sleeping with his wife. Jackson assaulted the other two in­
mates with an iron bar, fracturing both their skulls. (Vol. 3 
at 531-32, 543, 593-96, 638; Vol. 4 at 959).

There was also testimony of beatings and homosexual rapes 
by two inmates, Kinklea and Fountain. These inmates attacked 
several unknown inmates on different occasions, beating them 
and forcing them to perform oral sex and submit to anal 
intercourse. (PI. Ex. 27; Vol. 4 at 945). In the Spring of 
1977, inmate Anthony Miller was forced at knife point to lay 
across a bunk and submit to anal intercourse. Miller had 
previously received threats and had asked to be moved to 
another cell or placed in isolation for his own protection. 
(Vol. 6 at 1456, 1460, 1465). Inmate Albert Jackson was raped 
and beaten; he suffered a broken rib and numerous bruises.
(Vol. 4 at 950; PI. Ex. 28). Robert LeClair was forced to

33



perform oral sex with a knife at his throat. (Vol. 6 at 
1471-74).

There was evidence of other assaults. Barry Carver was 
beaten by an inmate, Jimmy Williams, in March of 1973. (PI. 
Ex. 27). In January of that year, inmate Hoie was beaten on 
his head, face, neck and shoulders. Inmate McGee was stabbed 
in the chest with a knife while incarcerated in the jail in 
1976. (Vol. 2 at 283-87). There was also evidence of thirty 
other inmates who, during the pendency of this action, were 
treated at the local hospital for injuries —  predominately 
lacerations but also concussions, contusions and fractures —  
which, taken together, suggest a high level of violence 
at the jail. (PI. Ex. 66).

In sum, there was overwhelming evidence that defendants 
failed to provide adequate protection from violence to the 
inmates_of the old country jail. There was proof of the 
deliberate indifference in the maintenance of bad practices 
and customs that would predictably lead to violence by inmates 
upon other inmates. There was substantial evidence that these 
predictable results did actually occur. This is not a case of 
an "occasional, isolated attack by one prisoner on another." 
Woodhous, supra, 487 F .2d at 890. Rather, this is a case of 
a jail where violence and homosexual rape were common occur­
ences, allowed to continue because of the jailer's deliberate 
indifference and his failure to take the steps necessary 
to protect his charges. This Court should not countenance

34



the district judge's failure to grant relief against such 
practices. Nor can it allow these practices to continue as 
these same defendants administer the new jail.

II.

The Panel Decision Used Inappropriate 
Standards For the Determination of 
Counsel Fees and Costs_______________

Initially, amicus urges that it is premature for this 
Court to deal with the issues of counsel fees and costs for 
expert witnesses. Assuming that the case is remanded to 
the district court for further proceedings, it will only then 
be ripe for determination of the appropriate amount of 
counsel fees. After the district court makes its decision 
it would then be open to either of the parties to appeal the 
question of whether proper standards have been applied. The 
same considerations apply to expert witness fees, since, as 
will be discussed below, the determination of what fees should 
be paid would be governed by the extent such testimony was 
helpful and important to the district court in determining the 
complex issues before it.

However, if this Court does decide to set out guidelines 
for the district court, then amicus respectfully urges that 
the panel opinion as to both attorneys' fees and expert 
witness fees was in error and should be rejected.

35



r

A. Attorneys 1 Fees
In complex civil rights litigation, and particularly in 

prisoners' rights cases, issues are overlapping and inter­
twined. In order to represent their clients adequately, 
attorneys must explore fully every aspect of the case, 
develop all evidence and present it to the court. For example, 
in a case involving health care, recreation, and security, it 
would be necessary to interview and present numerous inmate 
witnesses, each of whom might testify to all three issues. If, 
at the end of the ligigation, the court determines that consti­
tutional violations had been established with regard to medical 
care and inmate security, but not as to recreation, the plain­
tiffs could be said to have prevailed on only two out of three 
issues. It would be virtually impossible, however, to arrive 
at any accurate assessment of the time spent on each issue and 
apportion fairly the amount of counsel fees to be recovered.

The legislative history of the Civil Rights Attorneys'
Fee Act of 1976 (42 U.S.C. § 1988) makes it clear that 
counsel fee awards should not be based on the proportion of 
the case that has been won. / The Senate Report on the the 
Act discusses the standards which should be used in determin­
ing counsel fee amounts and states:

The appropriate standards, see Johnson v. Georgia 
Highway Express, 488 F.2d 714 (5th Cir. 1974), are 
correctly applied in such cases as Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 1 974); Davis' 
v. County of Los Angeles, 8 E.P.D. 1(9444 (D.C.
Calif. 1974); and Swann v. Charlotte-Mecklenburg 
Board of Education, 66 F.R.D. 483 (W.D. N.C. 1975)
.... In computing the fee, counsel for prevailing 
parties should be paid, as is traditional with

36



attorneys compensated by a fee-paying client, "for 
all time reasonably expended on a matter," Davis, 
supra, Stanford Daily, supra, at 684.

S. Rep. No. 94-1011 (94th Cong. 2d Sess.), p.6.
The quoted language from Davis relates directly to

the question of proportionate fees. The full quote is:
It also is not legally relevant that plain­

tiffs' counsel expended a certain limited amount of 
time pursuing certain issues of fact and law that 
ultimately did not become litigated issues in the 
case or upon which plaintiffs ultimately did not 
prevail. Since plaintiffs prevailed on the merits 
and achieved excellent results for the represented 
class, plaintiffs' counsel are entitled to an award 
of fees for all time reasonably expended in pursuit 
of the ultimate result achieved in the same manner 
that an attorney traditionally is compensated by a 
fee-paying client for all time reasonably expended 
on a matter.

8 EPD 1[9445, p. 5049. Similarly, in Stanford Daily, at the
page cited in the legislative history, the district court
rejected the position taken by some federal courts, "that
hours spent on the litigation of unsuccessful claims should be
deducted from the number of hours upon which an attorneys'
fee award is computed." The Court held:

However, several recent decisions, adopt­
ing a different tack, deny fees for clearly 
meritless claims but grant fees for legal work 
resonably calculated to advance their clients' 
interests. These decisions acknowledge that 
courts should not require attorneys (often 
working in new or changing areas of the law) 
to divine the exact parameters of the courts' willingness to grant relief. See, e.g.,
Trans World Airlines v. Hughes, 312 F. Supp.478 (S.D.N.Y. 1970), aff'd with respect to fee award, 449 F .2d 51 (2nd Cir. 1971), rev'd on 
other grounds, 409 U.S. 363, 93 S.Ct. 648, 34 
L.Ed. 2d 577 (1973). One Seventh Circuit panel, 
for example, allowed attorneys' fees for legal

37



services which appeared unnecessary in 
hindsight but clearly were not "manufactured."
Locklin v. Day-Glo Color Corporation, 429 F.2d 
873, 879 (7th Cir. 1970) (concerning fees for 
antitrust counterclaims).

64 F.R.D. at 684. Given the clarity of the legislative 
history of § 1988, the proportional recovery approach of the 
panel must be rejected. See Hutto v. Finney, 437 U.S. 678 
(1978); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977).

the overall intent of Congress in passing the various counsel 
fee provisions. Indeed, the allocation of counsel fees on the 
basis of the percent of the case won would also contravene congres­
sional intent because it would have a discouraging affect on 
the willingness of attorneys to become involved in civil rights 
litigation. The legislative history of the statute is replete 
with references to the difficulty in maintaining civil rights 
cases because of their costs, and the necessity for plaintiffs 
being able to retain attorneys with the assurance that they 
will be paid on the same basis as they would in comparable 
civil litigation. See, e.g., S. Rep. No. 94-1011 (94th Cong.,
2d Sess. ) pp. 2, 6; H. Rep. No. 94-1 558 (94th Cong., 2d Sess. ) 
pp. 2-3; 122 Cong. Rec. S. 16251 (daily ed., Sept. 21, 1976) 
(remarks of Sen. Scott); Ld., at 1 6252 (remarks of Sen. Kennedy); 
122 Cong. Rec. H. 12155 (daily ed., Oct. 1, 1976)(remarks of

Other courts have, following the above considerations, 
interpreted various civil rights attorneys' fee provisions in

This I Hrterpr:et<rfe4̂ vroi--§--4-̂ 8- is also consistent with

38



the same way. See, e. g. , Donaldson v. O'Connor, 454 F. Supp. 
311, 316 (N.D. Fla. 1978), in which the court discussed the 
above legislative history and concluded, "...Congress clearly 
could not have contemplated that an award of attorney's fees 
should depend upon the extent to which a plaintiff prevails 
in gaining all the relief requested ...", citing Seals v. 
Quarterly County Court, 562 F.2d 390 (6th Cir. 1977); Howard v. 
Phelps, 443 F. Supp. 374 (E.D. La. 1978); and Southeast Legal 
Defense Group v. Adams, 436 F. Supp. 891 (D. Ore. 1977); See 
also Cooper v. Curtis, 16 EPD 1(8099 (D.D.C. 1 978) (fees awarded 
under 42 U.S.C. § 2000e-5(k) ) ; Palmer v. Rogers, 10 EPD 1(10,499 
(D.D.C. 1975) (same).

B. Fees for Experts
The panel decision also holds that experts should receive 

fees limited to the statutory amount for witnesses. Amicus 
urges this result is also inconsistent with the purpose of the 
civil rights acts' counsel fees provisions. Looking to the 
legislative history of the 1976 act again, concern was con­
sistently expressed over the cost of maintaining such complex 
litigation. The Senate report's section setting out the 
purpose of the statute, states:

If private citizens are to be able to assert their 
civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, 
then citizens must have the opportunity to recover 
what it costs them to vindicate those rights in 
court.

39



S. Rep. 94-1011 (94th Cong. 2d Sess.), p. 2. Senator Scott,
speaking as one of the bill's sponsors, stated that:

/
/ ,  .Congress must insure that they have the means to 
to to court and to be effective once they get there. 
This is particularly true in the civil rights area, 
where those men and women whom the laws protect are rarely, if ever, in a financial position*to under- 
take the costly taks of enforcement of their riqhts.*T,122 Cong. Rec. S. 1 6251 (daily ed. Sept. 21 , 1 976)'. Simi­

larly, Senator Kennedy, another sponsor of the bill, stated:
... legal battles to vindicate basic human rights 
--can be as costly as any other form of liti­gation, and the costs frequently outrun the 
economic benefits ultimately obtained by success­
ful litigants. Inevitably this leads to the inability of the victims of discrimination to 
obtain legal redress because they cannot shoulder 
the full costs of vindicating their rights.

Id. at 16252. On the House side, Representative Drinan, one
of the floor leaders for the bill, made it clear that the act
contemplated more than simply counsel fees as such. Thus, he 
stated:

I should add that the phrase 'attorney's fee" 
would include the values of the legal services 
provided by counsel, including all incidental 
and necessary expenses incurred in furnishing 
effective and competent representation.

122 Cong. Rec. H. 12160 (daily ed., Oct. 1, 1976).
Using a similar standard, lower courts have in many

instances awarded the full fees of experts on the ground
that their testimony and assistance was necesary or helpful
to represent effectively clients in civil rights litigation.
Thus, in Keyes v. School District No. 1, Denver, Colo.,

40



439 F. Supp. 393, 418 (D. Col. 1973), the court noted 
that:

Without the testimony of experts, the original 
claim could not have been established nor a 
viable desegregation plan determined.

In Comm, of Pennsylvania v. O'Neill, 431 F. Supp. 700, 713
(E.D Pa. 1977), the court taxed fees because of the "helpful"
and "important" role of the testimony. The court held:

The defendants correctly argue that gen­
erally fees for expert witnesses cannot be 
recovered as costs. See 6 J. Moore, Federal 
Practice fl 54.77[5.-3], at 1734 (2d ed. 1948).
Recently, however, many courts have awarded 
expert's fees as costs where the expert's 
testimony was helpful to the Court and played 
an important role in the resolution of the issues.
See Wallace v. House, 377 F. Supp. 1192 (W.D.
La. 1974); modified, 515 F.2d 619 (5th Cir. 1975);
Pyramid Lake"Paiute Tribe of Indians v. Morton,
360 F. Supp. 669 (D.D.C. 1973), rev'd, 163 U.S.
App. D.C. 90, 499 F.2d 1095 (1974), cert, denied,420 U.S 962, 95 S.Ct. 1 351 , 43 L.Ed.~23“ 439 
(1975); Sims v. Amos, 340 F. Supp. 691, 695 n.11 
(M.D. Ala.), aff'd, 409 U.S. 942, 93 S.Ct. 290,34 L.Ed. 2d 2T5 (T972); La Raza Unida v. Volpe,
57 F.R.D. 94, 102 (N.D. Cal. 1972), aff'd, 488 
F.2d 559 (9th Cir. 1973), cert, denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L7Ed. 2d 1138 (1974).
I am in agreement with these cases insofar as 
they award expert witness fees as costs.
This result is wholly consistent with the congressional 

purpose in enacting the attorneys' fee provisions. Put simply, 
counsel must have the assistance of experts to furnish "effec­
tive and competent representation." In most civil rights 
litigation, and in prison cases in particular, expert testimony 
is a vital ingredient in the proper presentation and decision



of a case. Without the ability to recover these fees, 
plaintiffs, particularly prison inmates who are almost always 
indigent, will be discouraged from and unable to bring these 
cases, precisely the opposite result intended by Congress.

22/

CONCLUSION

For the 
court should

foregoing reasons, the decision of the district

CHARLES STEPHEN RALSTON 
JOEL BERGER 
STEVEN L. WINTER 

Suite 2030 
10 Columbus Circle 
New York, New York

Attorneys for the NAACP Legal
Defense & Educational Fund, Inc. 
as Amicus Curiae

22/ See, for example, Gates v. Collier, 390 F. Supp. 482 
(N.D. Miss. 1975); Pugh v. Locke, 406 F. Supp. 318, 322 (M.D. 
Ala. 1976); Rhem v. Malcolm, 432 F. Supp. 769, 771-72 (S.D.N.Y. 
1977); Palmigiano v. Garrahy, 443 F. Supp. 956, 960 (D.R.I. 
1977); Costello v. Wainwright, 397 F. Supp. 20 (M.D. Fla.
1975)(court appointed experts). In all of these cases the district judges noted the central importance of expert testimony in the litigation.

42



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Amicus 
Brief have been served by United States mail, Special 
Delivery, postage prepaid to Raymond Brown, Esq., P.0. Box 
787, Pascagoula, Mississippi 39507 and by United States mail, 
postage prepaid, to John L. Walker, P.O. Box 2086, Jackson, 
Mississippi 39205; David B. Lipman, 9735 E. Fern Street,
Miami, Florida 33157; and Alvin J. Bronstein, National Prison 
Project of the ACLU, 1346 Connecticut Avenue, N.W.,
Washington, D.C. 20036, this 1st day of October, 1979.