Thompson v. Raiford Settlement Agreement

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 78-1289

MARVIN JONES, et. al.,
Appellants (Plaintiffs),

vs.
FRED R. DIAMOND, et. al.,

Appelles (Defendants).

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

SUPPLEMENTAL BRIEF FOR APPELLANTS-PLAINTIFFS 
REHEARING EN BANC

DAVID M. LIPMAN 
9735 E. Fern Street Miami, Florida 33157
JOHN L. WALKER
Post Office Box 2086
440 Providence Capitol Bldg.Jackson, Mississippi 38205
ALVIN J. BRONSTEIN 
National Prison Project of the 
American Civil Liberties Union 
Foundation
1346 Connecticut Avenue, N.W. 
Washington, D.C. 20036
ATTORNEYS FOR APPELLANTS-PLAINTIFFS



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

No. 78-1289

MARVIN JONES, et. al.,
Appellants (Plaintiffs),

vs.

FRED R. DIAMOND, et. al.,
Appellees (Defendants),

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

Rule 13(a) Certificate
The undersigned, counsel of record for appellants, certifies that

those persons listed on the following page have an interest in the out­
come of this case. These representations are made in order that Judges 
of this Court may evaluate possible disqualification or recusal pur­
suant to Local Rule 13(a).

DAVID M. LIPMAN 
JOHN L. WALKER 
ALVIN J. BRONSTEIN
Attorneys for Appellants-Plaintiffs

-1 1 -



&

Rule 13(a) Certificate (Cont'd)

A. Interested Plaintiffs '
1. Marvin Jones 23. Vance Grahma
2. Lowell Dean Mitchell 24. Miss. Nikki Lawson
3. Darrell Glenn McGee 25 . John D. Flowers
$. Anthony Miller 26 . Phillip L. Winkler
5. Eugene Darrell Laanier 27. James Rivers, Jr.
6. Donald Overstreet 28. Joel E. Taylor
7. Bobby Hughes 29. Andrian J. Smiley
8. Robert LeClair 30. Robert L. Phillips
9. Larry Carver 31. Frank J. Wojciechowski
10. Albert Johnson 32. Ladon Collins
11. Walter Hoie 33 . Jeff C. MacDuffie
12. Milton Ware 34. R. Curtis
13. Hubert J. Brogan 36. William Pounds
14. Robert P. Blanchard 37. Grady W. Mectman
15. Michale L. Boyd 38. Frank C. Higginbothem
16. Darrel L. Sanders 39. Vance Graham
17.
18.
19.20. 
21. 
22.

Ted E. Blades Mrs. Bernice Hill 
Andrew C. Rhodis David L. Prince 
John E. Hanna John E. Andrews

40. Plaintiffs' class of all 
inmates who were incarcer­
ated at the time of the filing of this action 
(August 13, 1973), or who 
presently, or who in the future will be incarcerated 
at the Jackson County Jail.

B. Interested Defendants
1. Fred R. Diamond 6. J. C. May
2. Roy Tootle 7. Lum R. Cumbest
3. Jack Broadus 8. William T. Roberts
4. Andrew Thomas 9. Ed McElroy
5. Edward A. Khayat 10. United States Fidelity 

and Guaranty Company

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INDEX

Page
STATEMENT OF THE ISSUES PRESENTED .......................... 1
STATEMENT OF THE CASE...................................... 2

A. The Trial C o u r t ............................... 2
B. The Panel Decision............................. 4

STATEMENT OF THE F A C T S .................................... 6
ARGUMENT.................................................. 27

I. THE TRIAL COURT ERRED IN ITS FINDINGS OF 
FACT AND FAILED TO APPLY CORRECT CONSTI­
TUTIONAL STANDARDS IN DENYING INJUNCTIVE 
RELIEF OF THE JAIL'S CONDITIONS, PRACTICES 
AND PROGRAMS........................................ 27
A. The Effect of Bell v. W o l f i s h ....................27
B. Injunctive Relief —  The Unconsti­

tutional Conditions, Practices,
and Programs.................................... 30

II. THE DISTRICT COURT ERRED IN REFUSING TO
AWARD PLAINTIFFS DAMAGES ...........................  40
A. Federal L a w .................................... 40
B. State L a w ...................................... 44
C. Defendants Good Faith and

Qualified Immunity ............................  45
III. ADDITIONAL ISSUES RAISED BY THE PANEL

O P I N I O N .......................................... 4 8
CONCLUSION................................................ 50

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TABLE OF AUTHORITIES

Alberti V. Sheriff of Harris County, Texas,
406 F. Supp. 649 (S.D. Tex. 1975)................  33

Allee V. Medrano, 416 U.S. 802 (1974) ................  48
Ames V. Vavreck, 356 F. Supp. 931 (D. Minn. 1973) . . .  41
Bailey V. Harris, 377 F. Supp. 401, 404 (E.D. Ten 1974). 42
Barnett v. Lollar, 19 So.2d 748, 750 (1944) ..........  47
Barnes V. Government of the Virgin Islands, 415 F. Supp.

1218, 1232-33 (D.V.I. 1976)...................... 36
Baxter v. Palmingiano, 425 U.S. 308 (1976)............  35
Bell v. Wolfish, U.S. , 60 L. Ed.2d 447, 459, _ __466, 467-68, 471 (May 14, 1979)..................  4 , 27, 28, 29, 31
Berenyi v. Immigration Service, 385 U.S. 630,

636 (1967) ......................................  48
Beverly v. Morris, 470 F.2d 1356 (5th Cir. 1972) . . . .  40, 41
Bogard v. Cook, 586 F.2d 399, 415 (5th Cir. 1978) . . . 46, 47
Bolton v. Murray Envelope Corp., 553 F.2d 881, 885

(5th Cir. 1977).............................  50
Bounds v. Smith, 430 U.S. 817 (1977)..................  39
Bracey v. Grenoble, 494 F.2d 566, 571 (3rd Cir. 1974) . 42
Bryan v. Jones, 530 F.2d 1210 at 1216, 1213-15(5th Cir. 1976)............................  43, 45, 46, 47
Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972)   31
Camprise V. Hamilton, 382 F. Supp 172 (S.D. Tex. 1974) . 41
Campbell v. McGruder, 580 F.2d 521, 548-50 ............  32
Carey v. Pipus, 435 U.S. 247 (1978)   5
Clark v. Kelly, 101 W. Va. 650, 133 S.E. 365, 46 A.L.R.

799 (1926") , 14 A.R.R. 2d 353 ....................  44
Clemmons v. Greggs, 509 F .2d 1338, 1339 (5th Cir. 1975). 42

-v-



Cases Page No.

Cochran V. Eakin, 203 So.2d 587, 590 (Miss. 1967) . . . .  47
Curtis v. Everett, 489 F.2d 516 (3rd Cir. 1973)   42
Cruz v. Beto, 450 U.S. 319, 321 (1972)   34
Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975)465 F. 2d 475, 476 (5th Cir. 1973) ................  28, 39
Detainees of Brooklyn House of Detention For Men v.Malcolm, 520 F.2d 392, 396-97 (2d Cir. 1975) . . . .  30
Donaldson V. O'Connor, 454 F. Supp. 311, 315-16

(N.D. Fla. 1978).............. .................... 49a
Prayer v. Krasner, 572 F.2d 348, 353 (2d. Cir. 1978) . . 49
Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 19760 . . . .  31
Estelle v. Gamble, 429 U.S. 97, 104 (1976) ...........  43, 46
Ex Parte Hull, 312 U.S. 546 (1941) ....................  39
Farmer v. State, 79 So.2d 528, 531 (Miss. 1975) ........ 44, 45
Farmington Dowel Products Co. v. Foster Mfg. Co.,

421 F.2d 61, 91-92 (1st Cir. 1970) ................. 49a
Finney v. Arkansas Bd. of Corrections, 505 F.2d 194

(8th Cir. 1974) ..................................  42
Fitzke v. Shappel, 468 F.2d 1072 (6th Cir. 1972) . . . .  31
Gates v. Collier, 501 F.2d 1291, 1303, (5th Cir. 1974)559 F. 2d 241, 244 (th Cir. 1977)..................  28, 33, 34, 49a
Golding v. Slater, 107 So.2d 348 (Miss. 1958) .......... 47
Guarjardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) . . .  34
Haggy v. Solem, 547 F.2d 1363 (8th Cir. 1977).......... 31
Hamilton v. Landrieu, 351 F. Supp. 549 (E.D. La. 1972) . 28
Hamilton v. Schiro, 338 F. Supp. 1016, 1018

(E.D. La. 1970) ..................................  32
Hesselgesser v. Reilly, 440 F.2d 901 (9th Cir. 1971) . . 40
Holland v. Conner, 491 F.2d 539 (5th Cir. 1974) ......... 42

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Cases Page No.

Imbler v. Pachtman, 424 U.S. 409 , (1976)..............  46
James v. Britton, C.A. No. 74-203-N.................  49a
Johnson v. Avery, 393 U.S. 483 (1969) ................  39
Jones v. Diamond, 519 F.2d 1090 (5th Cir. 1975) . . . .  50
Jones v. Metzger, 456 F.2d 854 (5th Cir. 1972)   38
Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972)   46
Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1971) . 38
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) . . . .  27
Knell v. Bensinger, 489 F.2d 1014, 1017-18 (7th Cir.1973), 522 F.2d 702, 727 (7th Cir. 1973) ........  46, 47
Lee v. Washington, 390U.S. 333 (1968)...............  34
Lucas v. Kale, 364 F. Supp. 1345, 1348 (W.D. Va. 1973) . 41
Martin V. Duffie, 463 F.2d 464 (10th Cir. 1972) . . . .  46
McCray v, Burell, 516 F.2d 357 (4th Cir. 1976)   46
McCray v. Sullivan, 509 F.2d 1332 (5th Cir. 1975) . . . 28, 36
McDaniel v. Carroll, 456 F.2d 968, 969 (6th Cir. 1972) . 40
McGowan v. King, Inc., 549 F.2d 845, 850 (5th ........

Cir. 1978)   49a
Miller v. Carson, 563 F.2d 741, 745, 746, 748, 749 28, 30, 31, 32,

750 (5th Cir. 1977).............................. 34
Miller v. Twomey, 479 F.2d 701, 718, 479 at 719-20

(7th Cir. 1973).................................. 43 , 47
Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1975) . . . .  46
Mitchell v. Untreiner, 421 F. Supp. 886, 899

(M.D. Fla. 1976) ................................ 36
National Surety Co. v. Miller, 124 So. 251 (1929) . . .  47
Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977)C.A. No. 3501 - N................................. 30, 37 , 49a
Palmingiano v. Garrhy, 466 F. Supp. 732, 744 (D.R.I.

1979)............................................ 49a



Cases Page No.

Patterson v. MacDougal, 506 F.2d 1, 3-4 (5th Cir. 1975) . 43
Paxton v. Arthur, 60 Miss. 832, 838 (1893)   47
Procunier v. Navarette, 434 U.S. 55 (1978)   45
Puckett v. Cox, 456 F.2d 133 (6th Cir. 1973) ..........  42
Pugh v. Britton, C. R. No. 7 4 - 5 7 - N .................... 49a
Pufh v. Locke, 406 F. Supp. 318, 327 (M.D. Ala. 1976) . . 37, 42
Rainey V. Jackson State College, 551 F.2d 672, 677

(5h Cir 1977) ....................................  50
Rhem v. Malcolm, 507 F.2d 333, 337-39 (2nd Cir. 1974) . . 31, 32
Robert v. Williams, 456 F.2d 819, 723 (5th Cir. 1971)

Cert. Den. 404 U.S. 866 (1971)...................   33, 41, 43, 44, 4̂
Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972)   38
Runnels v. Rosendale, 499 F.2d 733 (9th Cir. 1974) . . .  32
Scheuer v. Rhodes, 416 U.S. 232, 247 (1974)........  46
Scott v. Vandiver, 476 F.2d 238, 241-43 (4th Cir. 1973) . 40
Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976) . . . .  40
Spain v. Prcunier, 600 F.2d 189 (9th Cir. 1979)   29
State ex el Tyler v. Gobin, 94 F. 48, 60 (C.C. Inc.1899). 44
Suffolk Co. Jail v. Eisenstadt, 494 F.2d 1196

(1st Cir 1976)....................................  32
Sweet v. S. Carolina Dept, of Correction, 529 F.2d 854,

858 (4th Cir. 1975)    37
Taylor v. Sterret, 499 F.2d 367, 369 (5th Cir. 1974)532 F.2d 462 (5th Cir. 1976), 344 F. Supp 411, 443(N.D. Tex. 1972)..................................  30, 33 , 34, 36
Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970)   31
United States v. United States Gypsum Co., 333 U.S. 364,395 (1948)........................................ 48
U.S. v. Mitchell, 580 F.2d 789 , 793 (5th Cir. 1978)

-viii-

49a



Cases Page No.

Valentine v. Englehardt, Civil Action No. 78-280
July 19, 1979 .................................... 28, 29

Van Cannon v. Breed, 391 F. Supp. 1371, 1374-75
(N.D. Calif. 1975) ..............................  42

Welsh v. Likins, 68 F.R. D. 589 (D. Minn. 1975) . . . .  49a
Wolff v. McDonnell, 418 U.S. 539, 561-68 (1974) . . . .  35
Wood v. Strickland, 420 U.S. 308 (1975) ..............  45, 46
Woodhaus V. Soinmonwealth of Virgina, 487 F.2d 889, 890

(4th Cir. 1973)..................................  37, 42
Wright v. McCann, 460 F.2d 126, 134-5 (2nd Cir. 1972) . 42, 43
Younger v. Gilmore, 404 U.S. 15 (1971)................  39

-ix-



Statutes and Federal Rules: Page No.

Rule 24 Federal Rules of Appellate Procedure ........ 4
Rule 23(c)(2) Federal Rules of Civil Procedure . . . .  5, 49
Rule 23(b)(3) Federal Rules of Civil Procedure . . . .  5, 49
Rule 54(d) Federal Rules of Civil Procedure .......... 49
Miss. Code Ann. § 3374-135 (1942)....................  34
Miss. Code Ann. § 4259 (1942)........................  34
Miss. Code Ann. § 7913 (1942)........................  34
Miss. Code Ann. § 7965 (1942)........................  34
Miss. Code Ann. § 7971 (1942)........................  34
Miss. Code Ann. § 19-25-71 (1972)....................  34
Miss. Code Ann. § 47-1-23 ( 1 9 7 2 ) ....................  34
Miss. Code Ann. § 47-1-39 ( 1 9 7 2 ) ....................  34
Miss. Code Ann. § 13-3-41 (1972) ....................  41
Miss. Code Ann. § 19-25-69 (1972)....................  41
Miss. Code Ann. § 19-25-71 (1972)....................  41
Miss. Code Ann. §19-5-1 (1972)......................  41
42 U.S. Code § 1983 ..................................  3, 5
28 U.S. Code § 1331..................................  3
28 U.S. Code § 1343 (3), ( 4)..........................  3
28 U.S. Code § 2201 (R.l)............................  3
42 U. S. Code § 1988   49a
42 U.S. Code § 1921 ..................................  49a
First Amendment......................................  39
Eighth Amendment .................................... 29
Fourteenth Amendment ................................ 39

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Other Authorities Page No.

Confronting The Conditons of Confinement, 72 HarvardC.R.C.L.L. Rev. 367, 372-76 (1977)..............  30
Pre-Trial Detainment —  The Jailer's Duty to Provide

Jail Inmates "Reasonable Protection" and Facilities 
Conforming to State and Local Housing Codes, 18 Wayne 
St. L.Rev. 1601 (1972)..........................  38

-xi-



IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 78-1289

MARVIN JONES, et. al.,
Appellants (Plaintiffs),

vs.
FRED R. DIAMOND, et. al.,

Appellees (Defendants).

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

SUPPLEMENTAL BRIEF FOR APPELLANTS-PLAINTIFFS 
REHEARING EN BANC

STATEMENT OF THE ISSUE PRESENTED
1. Did the District Court err in failing to provide sweeping re­

form of the Jackson County Jail's conditions, programs and procedures 
in the form of injunctive relief as they relate to the following cor­
rectional concepts; (1) right to recreation; (2) elimination of over­
crowding; (3) right to adequate medical care; (4) right to visitation;
(5) termination of the utilization of trusties; (6) end to racial se­
gregation; (7) right to an adequate diet; (8) right to uncensored 
communication; (9) right to a fair disciplinary proceeding; (10) imple­
mentation of a proper classification system; (11) right to protection 
from inmate assaults and abuses; (12) improvement of physical facilities;

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i£.

(13) and securing the right to unimpeded access to the courts.
2. Did the District Court err in failing to award damages to named 

plaintiff Marvin Jones and those memebers of plaintiffs' class for various 
injuries sustained while incarcerated at the Jackson County Jail.

STATEMENT OF THE CASE
A. THE TRIAL COURT

This is an appeal from an Order and Judgment (herein "Decision") of 
the United States District Court for the Southern District of Mississippi

1/(Harold C. Cox, J.) entered on December 6, 1977. (R. 697-744) (A. 18-65).
That Order principally denied plaintiffs' request for sweeping injunctive 
relief relating to the total operations, practices and conditions of the 
Jackson County Jail in Pascagoula, Mississippi. In addition, the Court 
denied named plaintiff Marvin Jones (Order of August 12, 1977) (R. 699-92)
(A. 9-14), and other members of plaintiffs' class request for an award of 
damages as compensation for constitutional violations causing various 
injuries to those inmates sustained while incarcerated at the Jail.

1/ The order did provide the following minimal relief to Plaintiff: (a)
defendants were directed to complete a new jail facility by September 15, 
1978; (b) defendants were prohibited from allowing inmates to sleep on
any mattress on the floor of the jail, at any time (c) and a list of 
"prisoners' rights", vague and general in nature (R. 745-46) (cited at 
549 F.2d 1011, N. 17), were promulgated by the Court and ordered to be 
posted at the Jail. (R. 747).

Appellees (herein "Defendants") have.not cross appealed.
We Have utilized the following record citations in our Brief:

R. -- Record on Appeal, Volume I-II (Having proceeded
in forma pauperis on appeal, at least as to 
plaintiffs' class, no appendix has been prepared)
(See, R. 759-60)

Vol. , p. —  Transcript volume and page number of trial pro­ceedings held on February 14-15, 1977 and June 
20-24, 1977. In some cases the party or witnesses 
name(s) is identified.

A. —  Partial Appendix (Portions of District CourtRecord) (Local Rule 13.).
-2-



This county jail suit was initiated more than six years ago on 
August 13, 1973 pursuant to 42 U.S.C. § 1983 and its jurisdictional 
counterpart 28 U.S.C. §§ 1331, 1343(3), (4) and 2201 (R. 1).

Early in the discovery stage of this case, plaintiffs sought and 
were denied on May 12, 1974 certification of their class. In addition 
and contemporaneous with the certification denial, Judge Cox dismissed 
the defendant Board of Supervisors. (R. 46-47).

On September 20, 1975 this Court, in an Opinion reported at 419 F.2d
2/1093 (R. 70-77), reversed Judge Cox's class action Supervisor dismissal 

orders.
A full evidentiary hearing on the merits of plaintiffs, claims was 

commenced on February 14, 1977 in United States District Court in Biloxi, 
Mississippi. Trial was held for two full days through February 15, 1977. 
Due to a conflict in the Court's calendar, trial was then continued until 
June 20, 1977. On that date, the Court resumed the evidentiary hearing 
for five additional days. The case was completed on June 24, 1977.

Judge Cox rendered a five page Opinion (R. 688-92) on August 12,
1977, in which he denied both injunctive relief and an award of damages 
to named plaintiff Marvin Jones. The Court entered no order to members 
of plaintiffs' class. Rather, Judge Cox without ruling on the claims 
of plaintiffs' class held in abeyance disposition of that issue apparently 
pending the construction of a new jail which the Court assumed "... will 
be completed and ready for occupancy in about a year after this date."

On September 23, 1977, plaintiffs petitioned this Circuit for 
issuance of a writ of mandamus. Plaintiffs, comprehending no just reason

2/ On February 9, 1977 Judge Cox certified this case as a class action. 
Plaintiffs' class is defined as "... all persons who were incarcerated 
at the time of the filing of the complaint, or are now, or in the future 
will be confined in the Jackson County Jail." (R. 139)

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this Court a directive to Judge Cox to issue a ruling on all issues, as
to plaintiffs’ class, remaining to be adjudicated. On November 3, 1977
this Court granted the petition directing Judge Cox to rule on the merits

3/of the claims of the class (R. 694-696).
Judge Cox responded to this Court's November 3, 1977 mandamus Order 

by issuing his decision on December 6, 1977, in which as previously 
reviewed, he denied most of the relief plaintiffs’ class sought. (R. 697- 
744) (A. 18-65).

On December 28, 1977 Plaintiffs filed a Motion for Leave to Appeal 
In Forma Pauperis pursuant to Rule 24 F.R.A.P. in attempting to review 
Judge Cox's orders of August 23, 1977 (Denial of relief to named plaintiff 
Marvin Jones) (R.688-92) (A. 9-14) and of December 6, 1977 (Denial of
relief to plaintiffs' class).- (R. 748-52). On January 10, 1970 Judge 
Cox granted plaintiffs' class leave to prosecute this appeal in forma 
pauperis but refused Marvin Jones' request to appeal his individual 
claim because "his ... claim ... was finally dismissed with prejudice 
by order of this court dated August 23, 1977, and the motion is not 
timely filed ..." (R. 759-60).

1/B. THE PANEL DECISION
In its lengthy decision, the panel entered some injunctive relief

for any further delay in ruling on the question of class relief, sought fron

3/ This Court's November 3, 1977 Mandamus Order is reproduced in 
Appendix A, pages la-3a, of Plaintiff's Brief filed before the original three judge panel (herein "Panel Brief") on April 15, 1978.
£/ While mindful that this Court, pursuant to Local Rule 17 vacated 
on September 7, 1979 the panel decision of April 26, 1979, reported at 594 F.2d 999 (5th Cir. 1979), in granting Plaintiff's Petition for En Banc Review, we believe that it is helpful to briefly review that decision at 
least from the prospective of how three judges in this Circuit decided 
the many issues presented by this appeal pre-Bell v. Wolfish, U.S. , 60 L. Ed.2d 447 (May 14, 1979). —  ---

-4-



b) the prohibition of confining in the new jail any more prisoners which 
exceed the number of bunks. In addition, while not granting injunctive 
relief, the majority directed the defendants to : a) prepare new visitation 
rules; b) submit a "statement of policy" as to separating "violent, dis­
turbed or contagiously ill prisoner from the general population; c) and 
grant basic "minimal due process" to inmates prior to the imposition 
of any punishment. Correctional practices involving the injunctive relief 
were denied: a) fire safety; b) heating; c) cooling; d) ventilation; e) 
diet; f) the handling of prison mail; g) medical care; h) utilization of trusties; 
i) recreational opportunities; j) prisoner safety; k) visitation privileges;
1) proper sanitation; m) meaningful access to the court; and n) general 
overcrowding.

Damage relief was also denied by the majority panel. The panel: a)
5/limited its review to damage relief for claims only of physical abuse 

by inmate trusties in ruling that plantiffs should receive no damages 
since defendants conduct was neither intentional nor in reckless disregard 
of plaintiffs' constitutional rights and b) reasoned that having failed to 
give adequate Rule 23(c)(2) F.R.C.P. notice to plaintiffs'class, the 
damage issues were not properly before the Court as plaintiffs' failed to 
adhere to Rule 23(b)(3) F.R.C.P. notice procedures.

Finally, although not having cross appealed the majority vacated 
that portion of the lower courts order requiring the defendants to 
post a list of "prisoners rights", (R. 745-46) See, 594 F.2d at 1011,

5/ Plaintiffs sought damage relief for all unconstitutional practices 
and conditions —  not limited to inmate physical abuses. See, Carey v.
Pipus 435 U.S. 247 (1978) (Damages designed to compensate persons for 
injuries caused by deprivations of rights under 42 U.S.C. § 1983).

for Plaintiffs including: a) the elimination of racial segregation and;

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N. 17 at the Jail.

STATEMENT OF THE FACTS
We now summarize the factual matters which form the day-to-day 

correctional practices and conditions at the Jail - the subject of this 
appeal.

A. OVERCROWDING
The Jail occupies the entire fourth floor of the Jackson County 

Courthouse in Pascagoula, Mississippi. All detention facilities are 
located on the fourth floor except one cell on the first floor which, due 
to overcrowded conditions, is used as a "holding cell". That cell, with 
dimensions of 11 feet by 6 1/2 feet, has a living area of approximately 
66 square feet. (Vol. 1, p. 88). The cell contains only two bunks
(Ibid., p. 92). At various times four inmates (Ibid. , p. 87-88) and at othe 
times six inmates (Ibid., p. 50) have been forced to sleep in the cell with 
only two of those prisoners having bunks. Others slept on the floor.

The north half of the Jail on the fourth floor contains two "bull- 
pens" and two maximum security cells. The east bull-pen contains five 
six-bunks cells and a day-room. The two maximum security cells are 
separated from the bull-pen, each cell contains three bunks. The north 
half of the jail is separated from the south section by a hallway about 
six feet in width. Four line cells and a large maximum security cell 
occupy the southeast quarter of the jail. A second corridor separates 
these line cells from a trusty room, storage room, elevator shaft, and 
two "padded cells".

The line cells (Cells 4, 5, 6, 7) are 12 1/2 feet by 9 1/4 feet, or 
approximately 115 square feet. (Ibid., p. 106-107). Each line cell 
contains four bunks, lavatory, shower, toilet and metal desk. (Ibid.).

-6-



These cells have held at various times, four men; and as many as seven.
When more than four inmates were assigned to those cells - they slept on 
the floor. (Vol. 1, p. 151), (Vol. 2, p. 312, 320, 459), (Vol. 6, 1460-61).

Each of the eight six-bunk bull-pen cells measure 6 feet by 12 feet and 
are equipped with a lavatory, shower and toilet. (Vol. 2, p. 301). When 
those bunks are filled, the remaining occupants of the bull pen cells have 
slept in the ajoining day room, on the floor and on table-tops. (Vol. 1, 
p.216-18), (Vol. 2, p. 311, 451-52), (Vol. 3, p. 530, 553, 579, 804),
(Vol. 6, 1460-61). The day room 16 feet by 12 feet, with an area of 192 
square feet (Vol. 1, p. 123) has, at various times contained 16 men 
(Ibid., p. 27); 18 men (Ibid., p. 123, 166); 24 to 30 men (Vol. 3, p. 530, 
553); and between 30 and 40 men (Vol. 1, p. 217), (Vol. 2, p. 457-58).

The two "padded cells" are each 6 feet by 6 feet, or 36 square feet. 
Neither has a bunk nor any furnishings. A small hole in the middle of 
the floor was designed as a urinal. (Vol. 1, p. 119, 202). The cell has 
contained two inmates. (Ibid., p. 188, 202).

Based upon a 60 square feet of floor space per inmate, the maximum 
overall capacity of the Jackson County Jail is 22 inmates. At the time 
of inspection by plaintiffs' experts in February, 1977, the Jail held 43 
inmates —  an overcrowding of 21 prisoners (Vol. 1, p. 127-28). Incredibly, 
the Jail has housed at times as many as 102 inmates (Sheriff Ledbetter,
Vol. 5, p. 1135), and at other times, 97 inmates (Ibid., p. 1134). Indeed, 
defendants [Diamond] (Vol. 3, p. 789, 804), and their expert [Ault] (Vol.
6, p. 1299) have acknowledged that the Jail is overcrowded.

B. RECREATION
The Jackson County Jail has no program of organized recreation for 

its inmates (Vol. 1, p. 25, 1976), ("Q.: Describe the jail's recreational
program and resources in detail. A.: None") (Plaintiffs' Exhibit No.38).

-7-



Prisoners are not taken outdoors for recreational purposes (Vol. 1, p. 25, 
176), (Vol. 3, p. 743). Other than trusties, inmates are not allowed out 
of their cells. (Vol. 1, p. 54, 93). Those prisoners assigned to bunks 
in the bull-pen cells remain locked in their cell for 13 hours a day, 
between 8 p.m. and 7 a.m. During the day time they are housed in the bull­
pen. Inmates assigned to the line cells remain locked in 24 hours per 
day, 7 days per week. (Vol. 5, p. 1141-42, 1293-94).

C. MEDICAL CARE
No preadmission medical examination is given new inmates (Vol. 1, 

p. 42-43, 99, 165), (Vol. 5, p. 1307), (Plaintiffs Exhibit No. 30-31); 
and no physician is employed at the Jail. Inmates medical requests are 
screened by untrained jail officials who decide whether or not medical 
attention is warranted. (Vol. 1, p. 46), (Vol. 5, p. 1190, 1220), 
(Plaintiffs' Exhibit No. 30-31).

Inmates have waited for days, weeks or even months after making their 
requests before they are taken to a doctor. (" ... might take two or 
three weeks to see a doctor.") (Vol. 1, p. 146); (Sometimes, takes a 
"couple of days") (Jailer Broadus, Vol. 5, p. 1222-23); ("Taken [Inmates 
Collins] to hospital two days after initial complaint".) (Vol. 1, p. 187) 
(Taken to hospital [Inmate Tucker] one week after complaining of chills, 
fever, and swelling.) (Vol. 2, p. 265-66); (Made complaint [Inmate 
Hoskinson] to jailer about back pain in July or August, 1976, taken to 
doctor in January) (Ibid., p. 318-19).

Even in emergency situations, there are substantial delays in 
securing medical attention for inmates. (Took one hour to get help for 
man needing insulin) (Ibid., p. 468); (Took one hour to get help for man 
with apparent heart trouble) (Ibid., p. 469); (Took 20 minutes for jailer 
to come and another 20 minutes for ambulance to arrive, after Inmate 
McGee was stabbed in chest) (Ibid., p. 285) ; (Burst cyst was bleeding

-8-



from 10:00 a.m. until 9:00 p.m. when inmate was finally taken to hospital,
after 6 or 7 requests) (Ibid., p. 324).

Inmates have been refused medical attention by jail officials (Vol.
1, p. 195), and have had to inflict wounds upon themselves in order to
be allowed to see a doctor (Vol. 2, p. 461-63).

The very minimal provisions that the Jail has made for the care of
psychologically-disturbed prisoners are not sufficient even for temporary
confinement, and are often not even utilized. The Jail maintains a
cell, the "padded cell", which is used by defendants to house psycho-

67
logically-disturbed inmates ("Well, it was actually used more or less 
for lunatics [sic] than anything else"). (Sheriff Diamond, Vol, 3, p. 
728); ("Most of the time its —  we hold mental patients in it ...") 
(Sheriff Ledbetter, Vol. 4, p. 1065) (Vol. 1, p. 47); (Plaintiffs'
Exhibit 32); (Johnny Farmer put in padded cell. Diagnosed as "crazy") 
(Plaintiffs' Exhibit No. 26). The cell is actually not padded; and as 
previously described has only a hole in the middle of the cell with no 
facilities and not even a light. (Vol. 1, p. 206), (Vol. 4, P. 838-39).

D. VISITATION
Official visiting hours at the Jail are from 2;00 to 3:30 on Sundays 

(Plaintiffs' Exhibit No. 43) and only for inmates' immediate family

£/ However, inmate Lowell Dean Mitchell was held in the padded cell 
for four days. Jail officials told him he was put there because there 
was no room anywhere else (Vol. 1, p. 201-02). Trusty Thomas testified 
that people were put in the padded cell for being disorderly or dis­
ruptive and that the cell was sometimes used to hold drunks (Vol. 2, p. 
347-48).

-9-



ft

(Mother, father, sister, brother, husband or wife) (Ibid.).
Visiting privileges may be withheld from individuals as punish­

ment for rule violations (Ibid., p. 34) (Plaintiffs' Exhibit No. 65), 
and visiting was stopped entirely for a 10 month period of time by 
Jailer.Broadus (Vol. 1, p. 212).

Inmates in the bull-pen receive their visitors from the day room. 
Inmate and visitor are about 10 feet apart, separated by 2 sets of bars. 
There are no provisions for privacy —  no partitions are set up to 
divide one inmate and his visitor from the next pair. As many as 10 
inmates may have visitors at the same time (Ibid., p. 177-78). Sheriff 
Ledbetter acknowledged that there was "not adequate space" for visita­
tion (Vol. 5, p. 1103).

7/

E. USE OF TRUSTIES
During the Ledbetter administration (January 5, 1976-presf- t) 

(Stipulation, Vol. 3, p. 688), there was only one civilian staff person 
on duty at the Jackson County Jail at any given time to supervise manage­
ment of the Jail (Vol. 1, p. 20, 33), (Plaintiffs' Exhibit No. 12).

During the entire Diamond administration (January, 1972 - January 
5, 1976) (Stipulation, Vol. 3, p. 688), trusties were the only persons 
supervising the Jail between 5:00 p.m. through 8:00 a.m. the next morning 
(Vol. 3, p. 585), (Diamond, Vol. 3, p. 745-46). The Sheriff's deputies 
on the first floor of the building, did "check once every hour" the 
jail on the fourth floor, but were not assigned nor responsible for jail

7/ There are several versions of the visitation hours at the Jail 
(From 1:30 to 2:00 on Sundays and Wednesday) (Plaintiffs' Exhibit No.
65, Rule 6); (Only Sunday from 1:30 p.m. to 2:00 p.m.) (Sheriff Ledbetter, Vol. 4, p. 1079). Under either of these rules, visitation is inadequate.

-10-



operations (Plaintiffs' Exhibit No. 12-13). Diamond defended this 
practice because he felt he could "hear everything going on upstairs"
[the Jail is on the fourth floor] from his living area on the third 
floor of the courthouse (Diamond, Vol. 3, p. 745-46).

Defendants depend on inmate trusties for almost every phase of 
jail operation. Trusties carry the keys to the cells, and let the in­
mates in and out of their cells, unaccompanied by the jailer (Vol. 1, p. 
169, 186, 203), (Vol. 2, p. 464). Women were often incarcerated at the 
jail and left alone at night with only supervision of male trusties (Vol. 
5, p. 1139-40).

Trusties are responsible for relaying inmates' medical complaints 
to the jailer (Vol. 1, p. 186-87), (Vol. 2, p. 342), and for dispensing 
medication (Vol. 4, p. 875), carrying the pills or tablets to the inmates 
in their bare and sometimes dirty hands (Vol. 1, p. 149), (Vol. 2, p. 268, 
290, 325, 340, 464). Trusties deliver packages from free-world people to 
the prisoners (Vol. 1, p. 173-74), and also deliver envelopes from the 
jailer to certain prisoners (Vol. 2, p. 378).

Trusties administer the jail store or canteen, taking orders from 
inmates, collecting money for their purchases, and delivering the items 
to them (Vol. 1, p. 174, 206), (Vol. 2, p. 300, 340-41). Trusties serve 
food and pour beverages for the inmates (Vol. 2, p. 360-62, 464), (Vol.
4, p. 874) and wash the dishes (Vol. 2, p. 380). They control the water 
temperature for all of the showers, including the women's shower (Ibid., 
p. 358). Trusties are supposed to clean up and to supply inmates with 
cleaning materials (Ibid., p. 366, 464). They are allowed outside the 
jail to empty the trash cans (Ibid., p. 383). Trusties are supposed 
to report unruly conduct of prisoners to the jailer (Ibid., p. 367), 
and watch over inmates for "fighting" (Plaintiffs' Exhibit No. 14). A 
trusty helped conduct a tour of the Jail by Plaintiffs' experts in

-11-



February, 1977 (Vol. 1, p. 71).
Men selected by defendants to be trusties have included persons 

charged with narcotics violations and persons having escape records 
(Ibid., p. 40). Anyone except those charged with murder are eligible 
to become a trusty (Sheriff Diamond, Vol. 3, p. 798-99). No training 
is given trusties. ("Q.: State what training is .given to an inmate
before becoming a trusty? ...A.: No training is given'). (Plaintiffs'
Exhibit No. 14).

F. SEGREGATION
The Jackson County Jail is segregated by race. Until recently,

jail officials maintained two bull-pens: one for black prisoners and
one for white prisoners. (Diamond, Vol. 3, p. 751), ("White and colored
bull-pens are separated") (Plaintiffs' Exhibit No. 8), (Vol. 1, P. 217-18),
(Vol. 2, p. 259, 314, 369-70, 410-11, 429, 458). The "white bull-pen"
is no longer in use —  white inmates are now housed in the line cells,
while the other bull-pen continues to be used exclusively for black

8/inmates (Vol. 1, p. 181-82, 204-05), (Vol. 2, p. 305, 472).

G. DIET
Meals served to inmates of the Jackson County Jail do not fulfill 

their "minimum nutritional needs," (Vol. 1, p. 63). The diet of the 
prisoners is "heavily starchy" (Ibid.). Prisoners are rarely, if ever, 
given milk (Vol. 1, p. 171), (Vol. 2, p. 456), and never served fruit 
juices or fresh fruit (Vol. 1, p. 173), (Vol. 2, p. 456). Food sometimes

8/ Two days prior to the February 13-14, 1977 trial in this case, 
one white prisoner, Lowell Dean Mitchell, was transferred into the all 
black bull-pen. This is the only exception that has been made to the 
total racial segregation of inmates in the Jackson County Jail. (Vol. 1, p. 181-82, 204-05).

-12-



contain foreign material and is not edible (Vol. 1, p. 148), (Vol. 2, 
p. 455). Inmates confined in the holding cell, which on the first floor 
separate from the rest of the fourth floor jail cells, have been served 
as much as 4 hours later than the scheduled mealtime (Vol. 1, p. 148), 
and have frequently missed supper entirely (Ibid., p. 158-60).

H. MAIL AND PACKAGES
Mail of prisoners in the Jail is opened and read at the discretion 

of the jail officials. There are no rules or regualtions limiting or 
defining the scope of this practice —  it is just done "one certain 
inmates which may be considered dangerous to check for information on 
attempted jail escapes or getting dope up to the jail" (Vol. 1, p.53), 
(Plaintiffs' Exhibit No. 42); (Searched all mail that appeared bulky.) 
(Vol. 4, p. 853, 954-57).

I. DISCIPLINE AND DUE PROCESS
The rules and regulations of the Jackson County Jail, as promulgated9/

by both Sheriff Diamond and Sheriff Ledbetter, are arbitrary and vague.
Prisoners charged with violations of the Jail rules are not given 

notice of the charges against them, nor an opportunity to respond to the 
charges (Vol. 1, p. 41), (Plaintiffs' Exhibit No. 18). Prisoners are not

9/ The current Rules and Regulations of the Jackson County Jail, 
promulgated by Sheriff Ledbetter during his administration (January 5, 
1976 - present) include:

Rule 7 "Anyone breaking rules or causing trouble will
not be able to have visitors." (Emphasis added)

* * * * * *
Rule 14 "There will be no loud noise or trouble out of 

anyone I" (Emphasis added)
The Ledbetter Rules and Regulations are reproduced in their entirety 

in Appendix B, page 4a, Panel Brief.

-13-



m

given a hearing before being punished (Vol. 1, p.42), (Plaintiffs'
Exhibit No. 19-20). Further, no appeal procedure exists from an unfavor­
able decision of the jailer (Plaintiffs' Exhibit No. 22).

J. CLASSIFICATION
Defendant officials of the Jail employ no system of inmate classifi­

cation other than to make cell assignments on the basis of the inmates' 
race. Pre-trial detainees are not separated from convicted prisoners 
(Vol. 1, p. 11), (Plaintiffs' Exhibit No. 3), (Sheriff Ledbetter, Vol. 5, 
p. 1105).

Juveniles are held in the same cell as older inmates (Vol. 1, p. 12,
15). Women are housed on the same floor as men, in a line cell that is 
between two cells occupied by men and that is across from the trusty cell. 
There are no women matrons on duty to supervise the female prisoners (Vol. 
5, p. 1139-40). The trusty on duty has a key to the women's cell (Vol. 1, 
p. 21-22), (Vol. 2, p. 249), (Sheriff Diamond, Vol. 3, p. 801).

Mentally disturbed inmates are not housed separately from other 
inmates (Vol. 1, p. 22-25), except for those inmates who are termed 
"crazy" and are then placed in the "padded" cell (Vol. 2, p. 728, 801),
(Vol. 4, p. 932-33, 1065).

K. INADEQUACY OF PROTECTION- 
 INMATE ABUSES_______

There has existed a pattern and practice of inmates physically 
abused by: (a) other inmates, (b) inmate trusties, and or (c) civilian
guards within the Jackson County Jail. The causes of these abuses, 
include inter alia: (1) a lack of civilian supervision (Trusties were
the only persons in the Jail in the evenings during the Diamond administra­
tion) (Vol 4, p. 895); (2) severe overcrowded conditions; (3) inmate

-14-



tensions and anxieties created by a lack of recreational programs and in­
mates being "locked down" 24 hours per day; (4) inadequate security 
practices including, (a) a lack of adequate shakedowns and pat-downs 
(Vol. 3, P. 558-60, 582), (b) permitting possession of weapons to exist at
the Jail (Ibid.), (Vol. 4, P. 1072), (c) failure to purchase metal detectors
or other appropriate law enforcement equipment (Vol. 3, p. 582, 786-87),
(Vol. 5, p. 112, 1311-12); (5) and a failure to properly classify inmates.

* * * * *
10/

SPECIFIC ABUSES
We now review several specific instances of inmate physical abuses.
(a) Marvin Jones. Named plaintiff Marvin Jones was placed in the 

padded cell, without a disciplinary hearing (Vol. 3, p. 810), for two 
and a half days. Jones had thrown his breakfast tray and refused to clean 
it up, after it had already been dropped on the floor and his food spilled 
by the trusty serving breafast (Vol. 2, p. 430-32). For all but three 
hours of this period, he was without a mattress, and had to lie on the bare, 
dirty cell floor (Ibid., p. 434-35). When he was let out of the cell,
Jones had inflammation of the right foot and hip, soreness of the left 
shoulder and arm, could not move his right leg or left arm, and was in 
severe pain (Vol. 2, p. 436), (Vol. 4, p.914). He continued to have 
problems with his limbs for some time and had to have assistance to move. 
Jones could not use his left arm at all (Vol. 2, p. 443-44). Doctors who

10/ It is plaintiffs' position, that every inmate incarcerated in the 
Jackson County Jail since the filing of this suit —  8,580 inmates 
through January 28, 1977 (Plaintiffs' Exhibit No. 44) —  is entitled to 
an award of damages for being incarcerated in an unconstitutional facility 
violating each inmates rights to all of the practices and conditions that 
we have outlined.

-15-



examined him at Singing River Hospital, in Pascagoula, Mississippi re­
commended that he see a specialist to treat his condition (Ibid., p. 447). 
Jail officials did not bring him to a specialist and he did not see one 
until plaintiffs' attorney brought him to Jackson, Mississippi, took him 
to his personal physician, and arranged for him to begin a drug treatment 
program at the Mississppi State Hospital at Whitfield. It was at Whitfield 
that he was finally examined by a specialist (Ibid., p. 447-48). Doctors
at Whitfield began a program of physical therapy and prescribed medication;

11/his condition began to improve (Ibid., p. 452-53) .
Ten days after he began the program at Whitfield, he was taken back 

to the Jackson County Jail and placed in the bull pen (Vol. 2, p. 448-49). 
There he received no additional medical treatment for his arm and leg 
(Ibid., p. 450, 454), and did not get the medication or treatment that had 
been prescribed for him at Whitfield (Ibid.., p. 453) . Mr. Jones continues 
to experience pain in his right leg, which has atrophied and is somewhat 
smaller in size than his left leg (Ibid., p. 460-61), (Vol. 4, p. 922).

11/ Physicians examining Jones at Whitfield determined that he had a 
""muscle-nerve disease” (Plaintiffs' Exhibit No. 106, Admission Note of 
Dr. Kimble, Report of August 24, 1973), that he suffered from leg pain
appearing to be caused from " __ stress: solitary confinement and jail"
(Ibid., Report of August 27, 1973) and that there was nerve damage in his 
leg. (Ibid., Report of September 4, 1973).

Most significantly, it was recommended by the treating physician at 
Whitfield:

"1. Place Mr. Jones under the care of a physician because he
has real physical and emotional illness. (emphasis added)

"5. By this time Mr. Jones should have completed his sulfa 
regimen for urinary tract infection. His urine should 
be re-checked on 9/20/73."
(Ibid., Report of September 6, 1973)

-16-



(b) Lowell Dean Mitchell. Lowell Dean Mitchell, a white inmate,
was handcuffed and sprayed in the face with Mace by a deputy when he 
objected to being placed in the all-black bull-pen. This occurred after 
he had talked to plaintiffs' attorneys. (Vol. 1, p. 207-08).

(c) Darrell Glenn McGee. In October 1976, Darrell Glenn McGee was 
stabbed in the chest by another inmate while incarcerated at the Jackson 
County Jail. The weapon used was a knife that the perpetrator had con­
cealed under his mattress (Vol. 2, p. 283-84). The jailer was not on the 
floor when the stabbing occurred, and did not arrive until 20 minutes after 
the incident (Ibid., p. 285). McGee was taken to the hospital and remained 
there for two and half weeks (Ibid., p. 385-87).

(d) Anthony Miller. In the latter part of April, 1977, or the early 
part of May, 1977, Anthony Miller was raped by another inamte. This 
occurred while he was in the east bull pen (Vol. 6, p. 1456-57). At that 
time, a knife was placed to Miller's neck by the inmate, and Miller was 
forced to lay in one of the bunks in the east bull pen and have inter­
course (Ibid).

Prior to the incident, threats of several assaults had been made to 
Miller (Ibid., p. 1465). Miller had asked to be transferred from the 
bull pen and placed in a line cell or even the padded cell (Ibid.).
Miller's requests were denied by all three jailers on duty (Ibid., p. 1460, 
1465).

The day after the raping, Miller sent a series of notes to jailer 
Broadus and assistant jailer Meadows requesting to receive medical treat­
ment (Ibid., p. 1456-57). They however, refused to provide Miller medical 
care. Miller, up through the trial in this case in June, 1977, had not 
seen a physician since the date of his sexual assault. No investigation, 
by defendant jail officials, of the incident has ever taken place (Ibid., 
p. 1509).

-17-



2?

(e)/(f) Eugene Darrell Ladnier and Donald Overstreet. On May 13, 
1975, inmates Ladnier and Overstreet were beaten with a flat iron bar by 
inmate Malcolm Jackson while confined at the Jail. Their attack occurred 
while they were sleeping in the bull pen cells. (Vol. 3, p. 531-32). 
Malcolm Jackson had been incarcerated in the Jackson County Jail for 
assualting and attacking an employee of the Jackson County Sheriff's 
Office, Detective Huntley on March 25, 1975. Jackson's beating of Huntley 
received wide publicity in the area since it involved a law enforcement 
official and since Huntley was beaten "near death" and required extensive 
medical attention (Vol. 4, p. 959).

On May 12, 1975, one day prior to the Ladnier-Overstreet assault, 
Malcolm Jackson asked Jailer Tootle twice to be removed from the bull pen 
and placed in the padded cell (Vol. 3, p. 594). Jackson's request was 
denied (Ibid.). Additionally, prior to the incident, inmate Robert 
Mitchell also indicated to Tootle that Jackson should be moved to the 
padded cell. (Ibid., p. 596). Nonetheless, Tootle refused to move 
Jackson (Ibid.).

Malcolm Jackson - accused and incarcerated for a crime which had
received wide publicity and who had personally requested transfer to the
padded cell - had exhibited "crazy" and "distrubed" behavior to other
inmates (Ibid., p. 593, 596), ("...[Jackson] had his mouth full of toilet
paper —  I mean full of toilet paper") (Ibid., p. 596). He had been
tormented by the trusty on duty, Odom, who told Jackson that others were

12/"screwing his wife." (Ibid., p. 593-94).

12/ Indeed, eyewitness Robert Mitchell was attacked by Jackson along 
with Overstreet and Ladnier because Jackson thought he was having sexual 
relations with his wife (Vol. 3, p. 598).

Compare Judge Cox's assessment of these facts. "Jackson, the black, 
had been a model prisoner, had exhibited good behavior, and there was no 
reason to believe that he would attack a friend and fellow prisoner."
(R. 729) (Decision of December 7, 1977).

-18-



The attack took place between 4:30 and 5:00 a.m. on May 13, 1975. As 
was the usual case during Sheriff Diamond's administration, the only 
persons supervising the jail were inmate trusties at that hour (Vol. 3, 
p. 534), (Vol. 4, p. 895-97).

Sheriff Diamond never talked to eyewitness Mitchell about the incident 
after it occurred (Vol. 3, p. 608). None of the Supervisors ever appeared 
in the Jail nor investigated the incident (Ibid., p. 609).

After the incident, Jackson was moved to the padded cell. However, 
"not long after" he was returned to one of the line cells, where he was 
incarcerated with other inmates (Ibid., p. 610). Jackson died soon there­
after in the Jackson County Jail, and apparent suicide (Ibid., p. 612-14).

Ladnier and Overstreet sustained severe skull fracturs (Plaintiffs' 
Exhibit No. 109). Plastic plates were inserted in each of the youth's 
brain cavity (Ibid.), (Vol. 3, p. 543, 638). Ladnier had been rendered 
blind in his left eye (Plaintiffs' Exhibit No. 109, Report of Dr. Wm. 
Bridges, 6/9/75), (Vol. 3, p. 634); he frequently has seizures (Ibid., p. 
635)); has reduced intelligence from organic brain damage (Ibid., p. 634); 
has difficulty talking (Ibid.,); and has problems keeping his balance. 
(Ibid.) Examining physician Dr. Richard E. Buckley recommends continuing 
neurological and psychiatric care for Ladnier (Ibid., p. 635), (Plaintiffs' 
Exhibit No. 109). Ladnier had been employed as a bricklayer prior to the 
incident but can now no longer perform such physically demanding work 
(Ibid., p. 650); for that matter, Ladnier can no longer tolerate most forms 
of employment (Ibid., p. 635-36) .

Overstreet, who at the time of the attack was a pre-trial detainee 
(Vol. 3, p. 530), also continues to require medical attention for his 
injuries. He has recurring headaches; has stiffness and soreness of his 
neck; has blurring of vision; and suffers from dizziness (Plaintiffs'

-19-



Exhibit No. 109), (Vol. 3, p. 542, 569, 636-38). Mrs. Overstreet observed 
that her son has had nightmares presently, and he frequently wanders from 
and around the house out into the city (Ibid., p. 569).

Overstreet, prior to the incident, had been trained and intended to 
pursue a career as a welder (Ibid, p. 540-42, 570). Since the attack, 
however, he has remained unemployed. He had repeatedly tried to obtain 
work as a laborer and has consistently been rejected when potential 
employers found out that he had "that plastic in his head." (Ibid., p. 570)

(g) Bobby Hughes. On April 1, 1977 Hughes was placed in the black 
bull pen and fell asleep on one of the benches located in the bull pen
(Ibid., p. 661). After falling asleep, he was later awakened by the smell 
of something burning. When Hughes woke up, he saw that his right pants leg 
had been set on fire. Another inmate was able to cut the burning pants leg 
off Hughes' leg. (Ibid.)

Shortly after this incident, Hughes was taken to the emergency room of 
the Singing River Hospital in Pascagoula, Mississippi, but was not seen by 
a physician there because the two law enforcement officers who accompanied 
him to the emergency room took him back to the Jail before he had the 
opportunity to be treated at the hospital (Ibid., p. 662-64).

After he was released from the Jail, Hughes was admitted to the Gulf 
Coast Community Hospital in Biloxi, Mississppi, on April 4, 1977, and 
remained there until June 4, 1977 for treatment for his burns (Ibid., p. 665 
See also. Plaintiffs' Exhibits No. 110A and B (Photographs of Hughes right 
leg taken while at the Gulf Coast Community Hostiptal.) Hughes, prior to 
the incident had been employed as a laborer. He can now no longer perform 
physical work (Ibid., p. 671).

(h) Robert LeClair. A pre-trial detainee (Vol. 6, p. 1473-74) Le- 
Clair had a knife put to his throat while in the bull pen and was forced

-20-



by another inmate to commit sodomy (oral sex) (Ibid., p. 1471-77).
(i) Larry Carver. Carver was beaten by inmate Jimmy Williams on 

March 30, 1973. The beating was so severe that Williams " ... almost lost 
his eye" (Plaintiffs' Exhibit No.27).

(j) Unknown Inmates. Several inmates, whose identity has not been
4ascertained, were abused in the following manner by Robert Kinlea and 

Johhny Fountain: (a) beaten; (b) forced to have "unnatural intercourse"
and, (c) forced to "suck off" other prisoners(Plaintiffs' Exhibit No. 27), 
(Vol. 4, p. 945).

(k) Albert Johnson. On May 23, 1973 Johnson was forced to commit 
unnatural intercourse and beaten severely resulting in a broken rib and 
multiple bruises (Plaintiffs' Exhibit No.28), (Ibid., p. 950).

(l) Walter Hoie. On January 30, 1973 Hoie was beaten in the head, 
face, shoulder and neck.

(m) Unknown Inmate. A man brought in as drunk was beaten on the 
head with jail-keys by a jailer known as "Slim" (Vol. 2, p. 303).

(n) Unknown Inmates. Robert Mitchell observed numerous beatings 
while incarcerated in the Jackson County Jail; especially on weekends, of 
new inmates. Mitchell also observed inmates setting drunks on fire. Some 
inmates conducted kangaroo courts. Certain inmates were placed on trial 
before other inmates and, if found guilty, were sentenced to perform actions 
such as sodomy (Plaintiffs'- Exhibit No. 27, 28), (Vol. 3, P. 616-17).

L. PHYSICAL FACILITIES
(1) Lighting and Ventilation

The holding cell in the Jackson County Jail has lighting equivalent 
to 10 foot-candles —  a 20 foot-candle deficiency in lighting (Ibid., p. 97).

-21-



A

The line cells have the same lighting problems as the holder cell (Ibid., 
13/

p.  109). Lighting in the bull pen is a "definite problem" —  there
is no source of light for the bull pen, other than that which comes in 
from two windows facing the cell on one side (Vol. 1, p. 121). The light 
meter reading for the bull pen was 5 foot-candles (Ibid.) .

Although the Jail is equipped with a mechanical system of ventilation, 
it is "nonfunctional" (Ibid., p. 97), resulting in a "total lack of venti­
lation" in the Jail (Ibid., p. 98).

(2) Fire Safety
A potential fire hazard exists at the Jackson County Jail (Vol. 2, 

p. 250). There is only one means of egress from the Jail - not two as 
recommended by The American Correctional Association. (Vol. 1, p. 130), 
(Vol. 2, p. 250) (Fire procedure is for all inmates to "go to the front 
door and take elevator or stairs.") (Plaintiffs' Exhibit No. 34). In case 
of fire, inmates must go through a number of locked doors in order to 
evacuate (Vol. 1, p. 131). To leave the bull pen, inmates must go through 
six doors, four of which have to be unlocked (Vol. 1, p. 131-35). Only 
the guard has the keys for these locks —  the trusty does not —  and the 
guard is not stationed on the floor where the inmates are housed (Vol. 1, 
p. 131), (Vol. 2, p. 343-43). There is no written plan for evacuation.of 
the Jail in case of fire (Vol. 1, p. 131), and no evacuation procedure is 
explained orally to the inmates (Ibid., p. 185), nor are fire drills 
practiced (Ibid.). Although the building itself is concrete and "somewhat

13/ The minimum standard for lighting in penal institutions by the Society 
of Illuminating Engineers is 30 foot-candle for reading and writing pur­
poses (Vol. 1, p. 959-96).

Indeed, defendants expert Commissioner Ault, observed that the line 
cells had "[N]o lighting at all. None in the cell or no lighting shining 
into the cell." Further, he noted, that "there should be adequate lighting 
going into every cell so that they [inmates] can be easily observed by 
jailers to protect inmates against assualts." (Emphasis added) (Vol. 6 ,
P. 1282-83).

-22-



fire-resistent" (Ibid., p. 132), (Vol. 2, p. 230), the plastic mattresses
and other materials in the cells are combustible, and would produce toxic 
fumes if ignited (Vol. 1, p. 132). This, in combination with the "inade­
quate mechanical ventilation" is a "very serious hazard." (Ibid.). There 
were two fire extinguishers in the Jail at the time plaintiffs' expert 
visited —  one in the kitchen area and one outside the entrance area behind 
a locked door (Vol. 2, p. 235-36). There was also another C O f i r e  extin­
guisher in the kitchen for grease fires (Ibid.). There were no fire extin­
guishers in the back area, by the bull pens (Ibid., p. 253).

(3) Sanitation
Housekeeping and maintenance within the Jail are "substandard"

(Vol. 1, p. 105), (Vol. 2, p. 246). Cockroach infestation is "active 
throughout the entire institution" (Vol. 1, p. 105), (Vol. 2, p. 245-46). 
Garbage is allowed to accumulate in the holding cell; the shower stall is 
filled with trash that has been swept but that has not be collect and 
removed from the cell (Vol. 1, p. 13-14, 94, 144-45). In the day room of 
the black bull pen, water leaks from the showers onto the floor, compounding 
the already-existing cleaning problem (Ibid., p. 123-24). The "padded cell" 
is "totally unfit for human habitation " and is "similar to a doghouse" (Ibid. , 
p. 120). The hole in the floor that is supposed to serve as a toilet was 
"stuffed full of trash and filth" (Vol. 2, p. 430).

Shower facilities are either deficient or lacking throughout the 
Jail. In the holding cell, the shower is not operable, has no water supply, 
and the stall is crammed with garbage —  an "impossible sanitary situation" 
(Vol. 1, p. 93-94, 144). Men assigned to the holding cell must be taken 
elsewhere to shower; however, this is not done with any frequency (Ibid., 
p. 143). Others have been denied the opportunity to shower for a period

-23-



of two and half weeks (Vol- 2, p. 320).
There is no shower in the "padded cell" (Vol. 1, p. 120); inmates 

confined there must be let out to take their showers elsewhere. The shower 
in the bull pen is the push-botton type; it is operable, but leaks, 
and the shower curtain is torn and mildewed (Ibid., p. 123, 167).
The shower is located in the day room and must be used by all of the 
prisoners in the bull pen (Ibid., p. 199). The maximum security cell has a 
shower, but it has no curtain, so the bunks in the cell get wet when it is 
used (Vol. 2, p. 307, 315-16).

Toilet facilities are filthy (Vol. 1, p. 18) and insufficient in
number. The holding cell, which has held as many as six prisoners, has14/
only one toilet hole (Ibid., p. 50). The padded cell has no toilet; 
occupants must be removed from the cell to use other facilities (Ibid., 
p. 51, 120). In order to be taken to the bathroom, the inmate must call 
out to the trusty to let him out; quite often there is a delay by the 
trusty in responding to the inmate's call (Ibid., p^ 203). If it is after 
9:30 p.m., the inmate must use a can which is placed in the cell and which 
remains there overnight (Ibid., p. 202) . A female prisoner held in the 
padded cell for 3 days was never taken to the bathroom by the trusty, 
although she was the only person there at night (Vol. 2, p. 350-51).

The bull pen contains only one toilet, which must be used by all of 
the prisoners confined there (Ibid., p. 124), and which is not partitioned 
off from the rest of the bull-pen area (Ibid., p. 166).

Inmates are not provided with bed linen or clothing, they must rely 
on family or.friends to send them these items (Vol. 1, p. 33-34, 51-52,

14/ There is a hole in the floor of the padded cell which is supposed to 
serve as a toilet, but it is not usable (Vol. 1, p. 202), (Vol. 2, p. 349, 430) .



113-14, 119, 179), (Vol. 2, p. 301). Some inmates have no sheets, but 
sleep directly on mattresses (Vol. 1, p. 117.179). The matresses and 
blankets provided by jail officials are dirty, smelly, and vomit and urine 
stained (Ibid., p. 118, 180), (Vol. 2, p. 301, 311-12, 321, 454).

M. ACCESS TO THE COURTS -
ATTORNEY/CLIENT RELATIONSHIP

Eighty per cent of all inmates at the Jackson County Jail have not 
been convicted of a crime. Thus, their ability to communicate and confer 
in privacy with their counsel is crucial in attempting to work with their 
attorney in reviewing their case.

The Jail offers no regularly maintained private area for inmates to 
confer with their attorneys (Plaintiffs' Exhibit No. 44), (Vol. 6 , p. 1431- 
84). Often the trusties' rooms, on the fourth floor Jail, are used when 
inmates went to confer with their attorneys (Ibid.).

SUMMARY OF AGRUMENT
1. Comprehensive injunctive relief, relating to the correctional 

concepts as outlined at pages 6-25, supra, is warranted in this case in 
reforming the intolerable conditions and practices at the Jackson County 
Jail.

2. Plaintiffs are entitled to an award of damages. This conclusion 
is supported by the overwhelming evidence reflecting a direct causal link 
between defendants conduct, constitutional violations stemming from that 
conduct, and injuries suffered by plaintiffs. The various causation 
elements of these injuries - - (a) selection of trusties absent any criteria, 
standards or proper process; (b) failure to train trusties; (c) lack of 
definitive rules and regulations in general and the failure to set forth 
specific guidelines relating to the care of inmates; (d) lack of civilian 
supervision of trusties and inmates; (f) failure to promulgate any inmate

-25-



classification process; (g) failure to maintain inmate security by, (1 ) 
instituting proper shakedowns and patdowns, (2 ) by purchasing metal de­
tectors or other devices to eliminate the flow of weapons; and (h) the 
failure to alter policies and practices in the face of continual inmate 
sexual, physical, and psychological abuses —  constitute acts and practices 
which violate plaintiffs' right to secure and protected incarceration. 
Plaintiffs must be compensated for these injuries.

-26-



ARGUMENT

I. THE TRIAL COURT ERRED IN 
ITS FINDINGS OF FACT AND 
FAILED TO APPLY CORRECT 
CONSTITUTIONAL STANDARDS 
IN DENYING INJUNCTIVE RELIEF 
OF THE JAIL'S CONDITIONS, 
PRACTICES AND PROGRAMS

A. THE EFFECT OFBELL v. WOLFISH

The District Court did not have the benefit of the first decision 
by the Supreme Court of the United States examining the constitutionality 
of conditions and practices at a jail rather than a prison. See Bell v. 
Wolfish, ___ U.S. __, 60 L. Ed.2d 447 (May 14, 1979).

The High Court in Wolfish recognized that in evaluating deprivations
of due process in the adequacy of pretrial detention facilities the proper
inquiry is "[W]hether those conditions amount to punishment of the detainee"
(emphasis added) Wolfish, supra at 466. In contrast, the trial court
appears to measure plaintiffs' various deprivations by applying only the15/
cruel and unusual punishment standard. The Court identified seven specific 
factors, articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), to
be considered in determing whether a particular restriction and condition 
accompanying pretrial detention constitute punishment. Wolfish, supra at 
467-68.

Thus the Supreme Court made it clear that any punishment as measured

1 5/ The now vacated panel decision followed this same path. "Furthermore, 
fUr a prisoner to establish a prima facie § 1983 case of cruel and unusual punishment he must prove that the prison authorities acted with deliberate 
or callous indifference to his constitutional rights." 594 F.2d at 1004.

-27-



by their guiding factors would violate the due process rights of detainees 
while the District Court, in addition to overlooking a number of these
factors, relied on a more restrictive cruel and unusual punishment standard.

Thus, by applying an inappropriate pre-Bell v. Wolfish standard, the 
District Court reached a conclusion in conflict with other decisions in 
this Circuit on a number of issues: For example, prisoners have no consti­
tutional right to be classified absent deliberate indifference to a constant 
threat of violence and detainees have no right to be separated from sentenc­
ed prisoner [compare, McCray v. Sullivan, 509 F.2d 1332 (5th Cir. 1975); i
Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974); Hamilton v. Landrieu,
351 F.Supp. 549 (E.D.La. 1972)]; pre-trial detainees have no due procees 
right to outdoor recreation [compare, Miller v. Carson, 563 F.2d 741 (5th 
Cir. 1977)]; pre-tiral detaines have no right of access to legal materials 
and law libraries [compare, Cruz v. Hauck, 515 F.2d 322 (5th Cir. 1975)].

Two post-Wolfish cases, in which lower federal courts properly applied 
the Supreme Court's standard, are illustrative of how far the District 
Court in the present case wandered. In a very recent jail case in New 
Jersey, Valentine v. Englehardt, Civil Action No. 78-270, July 18, 1979

i
D.C.N.J., (slip opinion), Judge Stern found the defendants' policy of 
banning all visits with children under 18 years old unconstitutional. In 
the matter of various other challenged visitation practices the court

16/

16/ For example, in Wolfish, the Supreme Court examined conditions at 
ETTe Metropolitan Correctional Center opened in 1975 to see if there was 
any punishment being inflicted.

"The MCC differs markedly from the familiar image of a jail; 
there are no barred cells, dank, colorless corridors, or 
clanging steel gates. It was intended to include the most 
advanced and innovative features of modern design of detention 
facilities." Bell supra, at 459.
The District Court in the case sub judice examined a 30 year old jail, 

already found to be inadequate and overcrowded by local officials.

-28-



appointed a special master to investigate the facts. Judge Stern saw his 
task as deciding, in light of all the factors enumerated in Wolfish, 
whether visitation policies were reasonable. The Court refused to abdicate 
its responsibility. "The Court must be especially alert when the alleged 
justification for an administrative decision in institutional security, 
because literally any restraint could be justified on the ground of 
increased security. A naked man in chains in a bare cell poses no risk." 
Valentine, at 14. After evaluating the evidence, including substantial 
expert testimony the Court ruled that plaintiffs had met their burden as to 
the 18 year old children issue.

In a recent prison case, Spain v. Procunier, 600 F.2d 189 (9th Cir. 
1979), seven prisoners, the "most dangerous men in the prison population," 
brought suit challenging several conditions of their confinement. The 
trial court granted some claims and dismissed others. On appeal the Ninth 
Circuit, generally affirmed. The defendants argued that federal judicial 
interference in prison management was not justified by the facts of this 
case. The Court refused to take this position, stating " [E]nforcement 
of the Eighth Amendment is not always consistent with allowing complete 
deference to all administrative determinations by prison officials." Id 
at 192. "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." Id. at 194. 
Wolfish is cited for the proposition that court should defer to prison 
officials’ expertise, but that they should not abandon their responsibi­
lity to enforce the Eighth Amendment.

Plaintiffs submit that the conditions and practices reviewed consitute 
punishment as developed in Wolfish. Relief is thus appropriate.

-29-



B. INJUNCTIVE RELIEF —  
THE UNCONSTITUTIONAL 
CONDITIONS, PRACTICES, 
AND PROGRAMS

We now review separately specific conditions and practices which have 
been found to exist in the Jail. It is appropriate for this Circuit to
focus on the "totality of conditions" in reviewing these separate practices.

-7

(1) Overcrowding
Overcrowding of inmates in jail institutions is violative of plaintiffs

— 7constitutional rights. While the Supreme Court recently rejected a consti-

17/ Miller v. Carson, 563 F.2d 741, 746, N .6 (5th Cir. 1977) ("Once a Court has found that the cumulate effect of interrelated ccnditions violates the eighth 
Amendment, sweeping remedies may be appropriate case."); Newman v. Alabama,
559 F.2d 283 (5th Cir. 1977). See generally, Comment, Confronting the 
Conditions of Confinement, 72 Harvard C.R.C.L.L. Rev. 367, 372-76 (1977).
18/ Miller v. Carson, 563 F.2d 741, 751-52; Detainees of Brooklyn House oT Detention for Men v. Malcolm, 520 F.2d 392, 396-97 (2d Cir. 1975);
Taylor v. Sterrett, 499 F.2d 367 (5th Cir. 1974).

In his initial decision rendered in this case on August 12, 1977,
Judge Cox recognized that "No informed person can contradict the irrefrag­
able fact that this Jail on many occasions has been overcrowded, but there 
has however never been any practice or plan for the systematic deprivation 
of any constitutional right of any prisoner regardless of his race." (R. 692 .

This Court, in granting mandamus relief on November 3, 1977 (R. 694- 
96) see Appendix A, pages la-3a, Panel Brief, admonished the trial judge 
to rule on the "overcrowding" issue without waiting on the completion of 
a new jail facility. ("We say only that present constitutional deficits 
cannot be allowed to continue, if abatement is possible, because tomorrow 
holds a brighter promise.") (R. 695), Appendix A, page 2a, Panel Brief.

Ignoring this Court's admonition, Judge Cox once again refused plaintiffs' relief on overcrowded facilities:
The completion of the new Jackson County Jail in 1978, together with the progress that 

has been made by the defendants in reducing 
the numbers in the Jackson County Jail, will 
not only solve any problems of space which are currently existing, but would far exceed the 
square footage standards established by the 
Federal court for the State penitentiary in Mississippi, to-wit, 50 feet per prisoner

(R. 734) (Decision of December 6 , 1977)
-30-



tutional attack against overcrowding in Bell v. Wolfish, 60 L. Ed. 470-81--------------- 19/
that facility (MCC) is hardly an analogue to the Jackson County Jail.
A finding of overcrowding with appropriate relief is compelled by the 
facts of this case.

(2) Right to Recreation
No outdoor recreational program exists at the Jackson County Jail.

supra. Inmates in a county jail have a fundamental right to physical
20/

exercise.
(3) Right to Adequate 

Medical Care---------------  21/
Prisoners have a constitutional right to adequate medical care.

There is no intake medical examinations for inmates who are initially
entering the Jackson County Jail. Such intake diagnostic examinations are

13/ The Metropolitan Correctional Center (MCC), subject of Wolfish, built 
In" 1975 involved the issue of overcrowding in the context of double bunking 
in cells with floor space of approximately 75 square feet. Moreover, 
inmates at the MCC spent only seven or eight hours in their cells each day, time presumably for sleeping. Wolfish, supra, at 471. Indeed, the High Cour 
contrasted MCC with "the cases cited by respondents concerned facilities markedly different from the MCC. They involved traditional jails and cells 
in which inmates were locked during most of the day." Ibid, at 471, N.27.
20/ in denying an outdoor recreational program, Judge Cox ruled that to 
take inmates outside "would create problems of safety and security and, 
perhaps, even danger, for employees and persons within the courthouse and 
persons in the downtown areas near the courthouse, as well as to persons 
in areas where the prisoners might be taken for outdoor recreation or 
exercise." (R. 705); See also, ("Outdoor recreation is not available in any area adjacent to, or reasonably near the jail. There is a problem of 
safety and security connected with removing the prisoners from the jail.")(R. 720). "[C]ontinuous incarceration of presumably innocent person in
an institution designed to punish, where outdoor recreation is reasonably possible, is unnecessarily restrictive and therefore punishes the innocent
in violation of procedural due process." Miller v. Carson, 563 F.2d 741,
750 (Duval County Jail). See also, Rhem v. Malcolm, 507 F.2d 333 (2nd Cir. 
1974); Duran v. Elrod, 542 F.2d 998, 999 (7th Cir. 1976) and Haggy v.
Solem, 547 F.2d 1363 (8th Cir. 1977).
21/ Fitzke v. Shappel, 468 F.2d 1072 (6th Cir. 1972); Tolbert v. Eyman,
434 F.2d 625 (9th Cir. 1970); and Campbell V. Beto, 460 F.2d 765 (5th Cir. 
1972).

-31-



isft :i*X**-

mandatory.
The Jail should have a licensed physician on call at all hours; and in

addition, those inmates in need of psychiatric care should be transferred
23/to appropriately-equipped facilities.

(4) Visitation
Defendants permit only family members to visit inmates —  mother, 

father, sister, brother, husband or wife —  for only a 1 1/2 hours period 
on Sundays. (Plaintiffs' Exhibit No. 43). One and one-half hours of

24/visitation once each week is constitutionally defective. Inmates at 
the Jackson County Jail visit with their family members while they remain 
locked in their cells or the bull-pen area. No contact visits are per­
mitted. Nor have they been ordered by the lower court as constitutionally

25/required.
(5) Utilization of Trusties

During the Diamond administration (January 5, 1972 through January 5, 
1976) (Stipulation, Vol. 3, p. 6 8 8), trusties had sole supervision of 
inmates between 5:00 p.m. through 8:00 a.m. (Plaintiffs' Exhibit No. 12). 
During both the Diamond and Ledbetter administrations trusties performed 
almost all supervising functions including: dispensing medicine, insuring

22/

22/ Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196 (1st Cir.
1976) ; and Hamilton V. Schiro, 338 F. Supp. 1016, 1018 (E.D. La. 1970).
23/ Campbell v. McGruder, 580 F.2d 521, 548-50 (D.D.C. 1978) and Runnels 
v. Rosendale, 499 F.2d 733 (9th Cir. 1974).
24/ Miller V. Carson, 563 F.2d 741, 748-49 (5th Cir. 1977) (one, two hour 
visit per week limited to immediate family members inadequate) and Rhem v. 
Malcolm, 507 F.2d at 337-39.

Judge Cox reviewed the inadequacies of the Jail's visitation program,(R. 720-21) but concluded: "The new jail will provide an improved visita­
tion area and visitation opportunities." (R. 721). (Opinion of December 7,
1977) .
25/ See e.<3. , Miller v. Carson, 563 F.2d 741, 749 (5th Cir. 1977) and 
cases cited therein.

-32-



discipline, handling mail, serving food, controlling egress and ingress 
through the cells and bull-pens, and administering the jail store. Indeed, 
trusties maintain and run almost all phases of the Jail operations.

Plaintiffs submit that the total reliance upon trusties for all admin­
istrative functions, relegates the trial court characterization and approval
of that system as being "custodial" in nature as inconsistent with prior26/
decisions within this Circuit which have condemned such practices.

(6 ) Racial Segregation
77/

Jackson County Jail is segregated by race. Until recently defen-

26/ Gates v. Collier, 501 F.2d 1291, 1303 (5th Cir. 1974) and Taylor v. 
Sterret, 499 F.2d 367, 369 (5th Cir. 1974). The test is not necessarily 
whether trusties are used for merely "custodial" purposes as contrasted 
to "security" functions. Rather, jail officials are constitutionaly require 
to employ sufficient number of civilian employees to ensure proper operatior 
Alberti v. Sheriff of Harris County, Texas, 406 F. Supp. 649 (S.D. Tex. 197. 
Moreover, inmates selected by defendants to be trusties have included perscr 
charged with narcotics violations and those with having escape records (Vol 
1, p.40). Inmates with convictions of violent crimes have been selected as 
trusties. In addition, no training has been provided for trusties at the 
jail. The lack of selection criteria and training further compounds the 
illegality of the defendants trusty system. Roberts v. Williams, 456 F.2d 
819, 723 (5th Cir. 1971), cert, den., 404 U.S. 866 (197i).
27/ Incredibly, Judge Cox concluded "The Court finds that prisoners are not 
assigned to cells on the basis of race and the Jackson County Jail is inte­
grated, both in cells and in the bull-pen areas." (R. 726) (Decision of December 7, 1977).

Compare: "White and colored bull-pens are separated [by race]" (Plain­
tiff's Exhibit No.8 ); (Q. "So a large part of the time then the bull-pens
were segregated?" A. 'Yes, sir.") (Sheriff Diamond, Vol. 3, p. 751). See, also (Vol. 1, p.217-18), (Vol. 2, p. 259, 314, 369-70, 410-11, 429, 458).

Judge Cox however, justified the fact that "occasionally" the bull-pens "might become all black or all white" due to the fact that bull pen assign­
ment was based upon an inmate's personal choice. (R. 726). (Decision of December 7, 1977).

In granting mandamus relief, this Court had earlier cautioned Judge Cox, 
"This includes [Review of the Segregation Question] consideration and adjudi­
cation of whether the County's "freedom of choice" plan by which prisoners 
are required to elect to be incarcerated in either black or white racially 
segregated facilities is constitutionally permissible." (R.696, n. 2) (Order 
of November 3, 1977). See Appendix A, pages la-3a; Panel Brief.

-33-



a

dants maintained two bull pens: one for black prisoners and one for white28/
prisoners. Penal facilities may not be racially segregated.

(7) Right to AnAdequate Diet
Meals at the Jackson County Jail do not fufill their minimum nutri­

tional needs and are nutritionally deficient. In addition, inmates testi­
fied that food often contains foreign materials and is not edible. (Vol. 1,

29/
p. 148), (Vol. 2, p. 455). Relief is warranted to cure this practice.

(8 ) Right to Uncensored 
Communication

Mail of prisoners at the Jackson County Jail is opened and read at the 
discretion of the Jail officials. There are no rules or regulations limit­
ing or defining the scope of this practice —  it is just done "on certain 
inmates which may be considered dangerous to check for information on at­
tempted jail escapes of getting dope up to the jail." (Vol. 1, p. 53),
(Plaintiffs' Exhibit 42). The lower court has failed and this Court should30/
now promulgate appropriate mail regulations.

28/ Lee v. Washington, 390 U.S. 333 (1968), Cruz v. Beto, 450 U.S. 319,
321 (1972).

The State of Mississippi, at one time, required racial segregation 
in state, county, and municipal jails. Miss. Code Ann. §§ 3374-135, 4259, 
7913, 7965, 7971 (1942). The segregation requirement was deleted from new statutes made effective on April 29, 1968, and passed after the Supreme 
Court's March 11, 1968 decision in Lee v. Washington, supra. Miss. Code Ann. 
§§ 19-25-71, 47-1-23, 47-1-39 (1972).
29/ Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974) and Miller v. Carson,
563 F.2d 741, 745 (5th Cir. 1977).
30/ This Circuit's most recent review of prison mail standards under the Firs_ 
and Fourteenth Amendments in Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) 
would offer plaintiffs far greater protection than they presently enjoy.
These safeguards would include: 1) no numerical limitation on general corre
pondence but use of a "negative mail list", supra, at 753-56; 2) outgoing 
mail to licensed attorneys, courts and court officials must be sent unopened and incoming mail of that nature can only be opened in the presence of the 
inmate to check for contraband or ascertain authenticity. supra, 758-59.
See also, Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976).

-34-



(9) Right to a Fair
Disciplinary Procedures

Defendants' disciplinary procedures are constitutionally intolerable. 
The rules and regulations of the Jackson County Jail —  as established both 
by Sheriff Diamond (Plaintiffs' Exhibit No. 60) and Sheriff Ledbetter 
(Ibid., No. 65), See Appendix B, p. 4a, Panel Brief —  are vague, arbitrary 
and infirm.

Prisoners charged with violations of jail rules are not given written 
notice of the charges against them (Ibid., No. 18), are not afforded a 
hearing (Ibid., No. 19), are not offered counsel or counsel substitute 
(Ibid., No. 21) and have no appeal procedure to question disposition of an 
unfavorable finding.

Apart from procedural protections at inmate disciplinary hearings, the 
judiciary has recognized that due process requires the promulgation of fair 
and coherent substantive rules of conduct with communication of these rules 
to the inmate population.

Proper rules and regulations of inmate conduct together with discipli­
nary procedures adhering to Wolff v. McConnell, 418 U.S. 539 (1974) guide------- JT7----lines should be ordered by this Court.

(10) A Proper Classification 
System_________________

Defendants at the Jackson County Jail employ no system of inmate 
classification other than to make cell assignments on the basis of an 
inmate's race. Pre-trial detainees are not separated from convicted

31/ The trial court ambiguously ordered, "No major discipline may be ad- 
minstered without disciplinary proceedings, which shall be conducted in 
accordance with prisoner fairness and due process; however a trial is not 
contemplated. No hearing is required for minor discipline such as limiting 
or restricting visitation, canteen privileges and the like." Prisoners 
Rights, (R. 745-46) Order of December 6 , 1977 cited at 594 F.2d 1011, N. 17. Cf. Wolff v. McDonnell, 418 U.S. 539, 561-68 (1974). (Notice, hearing, and 
in some circumstances counsel substitute. Accord, Baxter v. Palmigiano,
425 U.S. 308 (1976).

-35-



felons (Vol. 1, p.ll) (Plaintiffs' Exhibit No. 3); juveniles are not 
separated from adults (Ibid., No. 4); inmates charged or convicted of 
minor offenses are not separated from those inmates charged or convicted 
of major offenses (Ibid.); and males are not place on a different floor 
or facility from females.

The trial courts order that "Prisoners who are pre-trial detainees
shall not be placed with convicted persons, except where space requirements,
safety of the prisoner, peace and order of the jail and security of the
jail require it, Prisoners Rights, R. 745-46, Order of December 6 , 1977;
cited at 594 F.2d at 1011, N. 17, is inadequate.

Pre-trial detainees have an absolute right to be separated from 32/
convicted felons. Additional classification should result in separately

33/ 34/
confining male prisoners from females ; and juveniles from adults.

(11) Right to Protection:
Inmate Security_____

We have previously documented the physical abuse and assaults per­
petuated upon various inmates while confined at the Jackson County Jail, 
(stabbing of Darrell McGee); (rape of Anthony Miller); (rape of Robert 
LeClair); (assault of Donald Overstreet); (assault of Darrell Ladnier); 
(numerous beatings of inmates observed by Robert Mitchell); (acts of 
sodomy and sexual abuse observed by Robert Mitchel); and (arson and 
burning of leg of Bobby Hughes) See pages 22-28, supra.

32/ McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975) cert. denied 423 U.S. 859 (1976). See also, Taylor v. Sterrett, 344 F. Supp. 411, 443 
(N.D. Tex. 1972), aff'd 499 F.2d 367 (5th Cir. 1974)

33/ Barnes v. Govenment of the Virgin Islands, 415 F. Supp 1218, 1232-33 
(D.V.I. 1976).
34/ Mitchell v. Untrelner, 421 F. Supp 8 8 6 , 899 (M.D. Fla. 1976).

-36-



Defendants have breached each inmate, and in addition other inmates 
within plaintiffs' class, constitutional right to be free from physical 
harm and abuse. Defendants have a constitutional obligation to protect a 
prisoner's security.

The various causation elements of these incidents: selection of
trusties absent any criteria, standards, or proper process; failure to 
train trusties; lack of definitive rules and regulations in general and 
the failure to set forth specific guidelines relating to the care of in­
mates; lack of civilian supervison of trusties and inmates; intolerable 
overcrowded conditions; failure to promulgate any inmate classification 
process; failure to maintain inmate security by maintaining proper shake- 
downs and patdowns; failure to purchase metal detectors or other devices 
to eliminate the flow of weapons in inmates' possession; and the failure 
to alter policies and practices in the face of continual inmate sexual, 
physical, and psychological abuses constitute acts and practices which 
violate plaintiffs' right to secure and protected incarceration. 35/

The trial courts' relief in this area is again, unsatisfactory.

(12) Physical Facilities
We have outlined in length the abhorent condition of physical facili­

ties at the Jackson County Jail. Testimony relating to the conditions

3 5/ The lower court ruled, "Prisoners are entitled to reasonable protection 
against other prisoners and the Sheriff and jailer may shift or reassign 

prisoners to avoid trouble." Prison Rights, (R. 745-46) Order of Decem­
ber 7, 1977.

Jail officials are under a duty to provide inmates "reasonable protec­
tion from the constant threat of violence." Woodhaus v. Commonwealth 
Virginia, 487 F.2d 889, 890 (4th Cir. 1973); Pugh v. Locke, 406 F. Supp.
318 (m D Ala. 1976), aff'd., Newman v. Alabama. While the very nature of 
a prison community must be considered m  the oalance, prison authorities 
must take "all reasonable steps" to protect its prisoners from inmate 
attack. Sweet v. South Carolina Dept, of Corrections, 529 F.2d 854, 858 
(4th Cir. 1975).

-37-



maintenance" (Vol. 1, 
p. 105, p. 245-6);

included, inter alia: "substandard housekeeping and
p. 105, 246); "active cockroach infestation" (Ibid., 
accumulated garbage in cells (Ibid., p. 13-14, 94); leaking showers in 
the day room of the bull pen (Ibid., p. 123-24) ; utilization of the padded 
cell which is totally unfit for human habitation (Ibid., p. 1 2 0 ); showers 
that don't work in the holding cell (Ibid., p. 14, 19); filthy toilet 
facilities (Ibid., p. 18); mattresses without sheet or bed linen (Ibid., 
p.117,179); reusable trays which contain food are not properly cleansed 
(Ibid., p. 134-35); general inadequate lighting in the cells and bull 
pens (Ibid., p. 95-96, 121); inadequate ventilation (Ibid., p. 98); 
potential fire hazard due to only one means of egress from the jail (Ibid., 
p.205); and general lack of minimum hygenic materials for both male and 
female prisoners (Ibid., p. 258). See pages 31-35, supra.

Until remedial measures have been taken, this Court should enjoin36/
the use of the jail as a facility to detain human beings.

(13) Right to Access to 
the Courts________

Their exist no facilities nor provisions for attorneys to interview 
and confer with client-inmates, most of whom are pre-trial detainees. The 
lack of facilities, provisions and rules providing for unimpeded access to

36/ There have been countless judicial orders recognizing that improper 
facilities in correctional institutions do indeed violate constitutional 
standards and that courts will require drastic alterations in a penal institution's operations and facilities. See, e.g., Jones v. Wittenberg, 
323 F. Supp. 93 (N.D. Ohio 1971), ^ff'd Sub nom. Jones v. Metzger, 456 
F.2d 854 (5th Cir. 1972), Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972). 
See also, Note, Pretrial Detainment— The Jailer's Duty to Provide Jail "Reasonable Protection" and Facilities Conforming to State and Local 
Housing Codes, 18 Wayne St. L.Rev. 1601 (1972).

-38-



counsel violates plaintiffs' rights under the First and Fourteenth Amend­
ments. These conditions should be corrected by this Circuit.

The Constitutional right of prisoners* access to the courts, arising 
out of the First and Fourteenth Amendments, is well recognized. This
Court has deemed it "The fundamental, constitutional right. Cruz v. Huack,37/465 F.2d 475, 476 (5th Cir. 1973) (per Brown, C.J.).

37/ The fundamental right of access to the courts has been enforced in a 
variety of circumstances. Ex Parte Hull, 312 U.S. 546 (1941) (Interference 
with prisoner's right to petition to the Court held unconstitutional); Johnson v. Avery, 393 U.S. 483 (1969) (Prohibition against inmates writ- 
writers invalidated); Younger v. Gilmore, 404 U.S. 15 (1971) and Bounds v. 
Smith, 430 U.S. 817 (1977) (Provision of minimum law library to prisoners).

-39-



II. THE DISTRICT COURT
ERRED IN REFUSING TO 38/
AWARD PLAINTIFFS DAMAGES

Plaintiffs seek an award of damages —  both compensatory and punitive - 
for named plaintiff Marvin Jones and all other members of plaintiffs' class. 
We have previously reviewed specific incidents of assaults, batteries, 
beatings, and rapes that several members of plaintiffs' class have been 
subjected to while incarcerated at the Jackson County Jail.

In addition, the record in this case is replete with a "pattern and 
practice" of inmate abuses which relate to the common claims of all 
plaintiffs' class members, i.e., defendants' unconstitutional conditions, 
practices and conduct. We now review the various standards which consti­
tute a sufficient basis for § 1983 liability under federal law.

A. Federal Law - § 1983
(1) Breach of a Duty Imposed By State Law

A "supervisory defendant is subject to § 1983 liability when he 
breaches a duty imposed by state ... law, and this breach causes plaintiff 
constitutional injury." Sims v. Adams, 537 F.2d 829, 831 (5th Cir. 1976), 
Beverley v. Morris, 470 F.2d 1356 (5th Cir. 1972) , Hesselgesser v. Reilly, 
440 F.2d 901 (9th Cir. 1971), Scott v. Vandiver, 476 F.2d 238, 241-43 (4th 
Cir. 1973), McDaniel v. Carroll, 456 F.2d 968, 969 (6th Cir..1972), see

38/ Judge Cox, after reviewing several of plaintiffs' individual claims 
for damages ruled that for plaintiffs' to recover damages they would have 
to prove "defendants not only brought about the injuries, but [the injuries] 
constitute a pattern and practice that requires injunctive relief." (R. 738) 
In denying plaintiffs any actual or punitive damages (R. 744), Judge Cox 
also dismissed defendant United States Fidelity and Guaranty Company (U.S.F. and G.) underwriters of defendants’ surety bonds, from this case. (Ibid.)

On appeal we challenge the denial of damage relief, and of course, the dismissal of defendant U.S.F. and G. from this lawsuit.

-40-



The Board of Supervisors must keep the jail in "good repair". Miss. Code 
Ann. § 13-3-41 (1972); b) Sheriffs Diamond and Ledbetter must keep the jail 
in a "clean and comfortable condition." Miss. Code Ann. § 19-25-69 (1972); 
c) Sheriffs Diamond and Ledbetter must provide "daily wholesome and suf­
ficient food and drink," "proper lighting," and "sufficient and clean bed­
ding" for all inmates. Miss. Code Ann. § 19-25-71 (1972); d) and, Board of 
Supervisors shall at least once in every three months "secure inmates at 
county jail" against escape, sickness and infection, and have the jail 
cleansed. Miss. Code Ann. § 19-5-1 (1972).

We have previously documented how each of these statutory duties has 
been breached.

generally Roberts v. Williams, 457 F.2d 819 (5th Cir.), cert, denied, 404
U.S. 866 (1971). Duties imposed by state law upon defendants include: a)

(2) Failure to Properly
Supervise Subordinates

Liability under § 1983 is imposed where defendants fail to properly 
supervise their subordinates through the promulgation of policy directives, 
rules and procedures. Beverly v. Morris, 470 F.2d 1356 (5th Cir. 1972)
(per curiam) (chief of police liable for beating imposed by auxiliary police 
officer where evidence showed supervisor's complete absence of supervision 
or training); Lucas v. Kale, 364 F. Supp. 1345, 1343 (W.D.Va. 1973); Ames 
v. Vavreck, 356 F. Supp. 931 (D. Minn. 1973); and Camprise v. Hamilton,
382 F. Supp. 172 (S.D. Tex. 1974).

In the chain of command in Jackson County, each defendant —  from the 
supervisors to the sheriff to the jailor to the assistant jailor to the 
trusties —  have improperly administered the Jail facility causing injury 
to plaintiffs.

-41-



(3) Personal Knowledge of
Widespread Similar Practices

This is not a case where defendants had no prior knowledge of improper
conditions and similar assaults on the parts of subordinates, e.g. , Curtis
v. Everette, 489 F.2d 516 (3rd Cir. 1973), cert, denied, 416 U.S. 985 (1974)
Defendants had personal knowledge of notorious and widespread practices of
abuses of inmates. Holland v. Conner, 491 F.2d 539 (5th Cir. 1974), Bracey
v. Grenoble, 494 F.2d 566, 571 (3rd Cir. 1974), Van Cannon v. Breed, 391 F.
Supp. 1371, 1374-75, (N.D. Calif. 1975), Wright v. McMann, 460 F.2d 126 (2nd
Cir. 1972), cert. denied, 409 U.S. 885 (1973) (History of previous episodes
which require warden to take some corrective action).

The scope of evidence of inmate violence —  beatings, rapes, knifings,
etc. —  clearly goes far beyond a mere isolated incident of failure to
provide reasonable protection. E.g., Puckett v. Cox, 456 F.2d 133 (6th

39/Cir. 1973); Bailey v. Harris, 377 F. Supp. 401, 404 (E.D. Ten. 1974).
The constant threat and infliction of tortious injury by trusties and the 
injuries to plaintiffs were the "product of a long standing ... condition," 
Clemmons v. Greggs, 509 F.2d 1338, 1339 (5th Cir. 1975), in penal institu­
tion "where violence and terror reign." Pugh v. Locke, 406 F. Supp. 318,
327 (M.D. Ala. 1976). Confinement in such a prison in itself is actionable, 
Finney v. Arkansas Bd. of Corrections, 505 F.2d 194 (8th Cir. 1974), Woodhau-J 
v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973).

(4) Causation: Sustained Maintenance
of Substandard Conditions

Plaintiffs' abuses present a classic § 1983 claim. The teachings of

39/ The injuries sustained by plaintiffs are not isolated incidents of an inmate attack upon another inmate. Such an attack upon another inmate does 
not usually constitute a deprivation of civil rights under § 1983. Clemmons 
v. Greggs, 509 F.2d 1338, 1339 (5th Cir. 1975) ("[W]hat Greggs did was not 
the result of prison policy nor was it the product of a long standing prison 
condition or practice ... Greggs reacted almost by reflex ... In any event, 
the whole thing boils down to a single act of a minor prison functionary") 
(Emphasis added).

-42-



Roberts v. Williams, 456 F.2d 819 (5th Cir. 1971), cert, denied, 404 U.S.
866 (1971), are instructive. In rejecting the Superintendent of the 
Leflore County Penal Farms defense, 456 F.2d at 825-828, the Court postured 
the § 1983 violation upon either: (a) specific intent to be cruel, or (b)
a wrong in prison management. This Court held that both criteria are 
satisfied when one of the following circumstances is present: (a) "A
conscious purpose to inflict suffering," or (b) "the sustained maintenance 
over a period of time of a needlessly hazardous condition," or (c) "a 
callous indifference to it (suffering) at the management level, in the 
sustained knowing maintenance of bad practices and customs." (456 F.2d at 
827)

The first criterion applies to cases based on intentional tort theories 
the second and third are both concerned with inferred intentional infliction 
of cruel and unusual punishment and/or deprivation of due process of law 
over a period of time, as has been amply developed during the course of this 
trial. See also, Estelle v. Gamble, 429 U.S. 97, 104 (1976) (Deliberate 
indifference to medical needs of prisoner constitutes cause of action 
under 42 U.S. C. § 1983.); Miller v. Twomey, 479 F.2d 701, 719 (7th Cir. 
1973) (per Stevens, J.) cert, den. 414 U.S. 1146 (1974) (Callous indif­
ference to the predictable consequences of substandard prison conditions 
constitutes Eighth Amendment violation.); Patterson v. MacDougal, 506 F.2d 
1, 3-4 (5th Cir. 1975) (Failure to act where improper prison conditions 
brought to Director of Corrections attention.); and Wright v. McMann, 460
F.2d 126, 134-5 (2nd Cir. 1972) (liability of warden where he failed to take

40/
corrective action in light of history of previous similar episodes.)

40/ The language of Bryan v. Jones is informative: One of the critical 
elements is that the official demonstrates that he has employed efficient 
management principles so as to minimize the change of error and maximize 
the likelihood of full satisfaction of contitutional and statutory 
obligations. 530 F.2d 1210 at 1216 (5th Cir. 1976) (en banc) (Brown, C. J. 
concurring).

-43-



The principles of the cases cited support our claim that defendants 
sustained knowing maintenance of a pattern of dangerous conditions render
them liable for plaintiffs; injuries.

41/B. State Law
Mississippi law imposes a duty on prison authorities having custody 

of an inmate "to exercise ordinary and reasonable care under the circum­
stances of each particular case, for the preservation of his life and health, 
and for a breach of this duty he is liable." Farmer v. State, 79 So.2d 528, 
531 (Miss. 1955) , quoting State ex rel. Tyler v. Gobin, 94 F. 48, 60 (C.C. Ind. 139Q)

The Farmer court in applying this standard, adopted the common law 
42/view that a jailer owes a duty to prisoners in his custody to exercise 

"reasonable care" for their protection. Under this standard, prison 
officials are expected to take adequate measure to ensure the safety of thei 
prisoner "he cannot be charged with negligence in failing to prevent what 
he could not reasonably anticipate, but he is responsible for the conse­
quences of his own neglect." 41 Am. Jur., Prisons and Prisoners, §§ 12 and
13, pp. 893-94, quoted with approval in Roberts V. Williams, 302 F. Supp. 
at 986 (N.D. Miss. 1970), aff'd 456 F.2d 819 (5th Cir. 1971), cert. denied, 
404 U.S. 866 (1971).

41/ Plaintiffs apply Mississippi law under their state pendent claim. IR. 727) (A. 48).
42/ in adopting the prevailing standard, the Mississippi Supreme Court 
expressly rejected a minority view providing a lower standard of care:

The authorities are not unanimous in upholding 
liability in a case like this but they are 
numerous. See Clark v. Kelly, 101 W. Va. 650,
133 S.E. 365, 46 A.L.R. 799 (1926); Annotations 14 A. R. R. 2d 353 , et_ seq. Mississippi seems to have 
heretofore aligned itself with those jurisdictions 
which hold liability of the sheriff and his surety 
in a case of this nature. Farmer, supra, at 531.

-44-



This Court has recognized the Mississippi "reasonable and ordinary
care" standard in two significant decisions. Mississippi v. Durham, 444 F.2d 
152, 157 (5th Cir. 1971) ("A sheriff [under Mississippi law] cannot escape
his responsibility to take reasonable care of prisoners in his custody ...
We are reinforced in this view by the language of Farmer Roberts
v. Williams, supra, 456 F.2d at 822, ("The trial court, citing Farmer v.
State, 79 So. 2d 528 (1955), held that under state law, Arterbury owed a 
duty to the prisoners in his charge to exercise ordinary and reasonable 
care to protect them from unnecessary harm and for the preservation of their 
life and health. It is an on point citation.")

Ordinary and reasonable care is the standard in Mississippi in 
measuring jail officials' conduct. Defendants have breached this standard 
entitling plaintiffs to an award of damage.

C. Defendants Good Faith 
and Qualified Immunity
(1) The Federal Law

(a) The Standards. Even when prison administrators have violated an
43/individual's constitutional rights , they may enjoy a good faith immunity 

defense to § 1983 actions. Procunier v. Navarette, 434 U.S. 555 (1978).
The standard of qualified good faith immunity was elaborated upon in Wood 
v. Strickland, 420 U.S. 308 (1975) where the Supreme Court held that the 
appropriate standard contains both a subjective element of good faith and 
objective level of reasonableness measured by whether the officials' acts 
are in disregard of established constitutional principles. Moreover,

43/ In § 1983 cases, the question of what degree of culpability a public 
oTficer must have to make his conduct a constitutional violation is often 
obscured with the distinct separate issue of what culpability will strip 
him of his good faith immunity defense. See Bryan v. Jones, 530 F.2d 
1210, 1213-15 (5th Cir. 1976) (en banc) .

Judge Cox failed to review the good faith, qualified immunity princi­ples in his Decision of December 6 , 1977. See, R. 697-744.
-45-



qualified immunity also depends upon weighing the "scope of discretion
44/

and responsibilities of the office and all the circumstances as they 
reasonably appeared at the time of the action ..." Scheuer v. Rhodes,
416 U.S. 232, 247 (1974). See also Bogard v. Cook, 586 F.2d 399 (5th Cir. 
1978).•

(b) Burden of Proof. Determinations as to the availability of these 
defenses almost always turn on the facts. See, e.g., Imbler v. Pachtman,
424 U.S. 409, (1976); Wood v. Strickland, supra, Scheuer v. Rhodes, supra
(1974). Such defenses therefore constitute "question[s] of fact for the 
district court to resolve in the first instance." Knell v. Bensinger,
489 F.2d 1014, 1017-18 (7th Cir. 1973). Consequently, the defendants have 
the burden of proving the immunity defense. McCray v. Burell, 516 F2d 
357 (4th Cir. 1976), cert, dismissed, 426 U.S. 471 (1976); Milton v. Nelson, 
527 F.2d 1158 (9th Cir. 1975); Martin v. Duffie, 463 F.2d 464 (10th Cir. 
1972); Jones v. Perrigan, 459 F.2d 81 (6th Cir. 1972).

Defendants have not met their burden in proving that they have acted 
in good faith. This conclusion is sound when considered against the back­
ground (all of which was presented at trial and is analyzed throughout our 
factual discussion) of a pervasive pattern of jail mismanagement; against 
the background over a period of time of "deliberate indifference"; 
and against the background of "callous indifference to the suffering of 
inmates at the management level, in the sustained knowing maintenance of 
bad practices and customs." Estelle v. Gamble, supra, 429 U.S. at 104;

44/ The level of reasonableness to which the official will be held is 
closely linked to the nature of his duties (discretionary/ministerial). 
Bryan v. Jones, supra, at 1214. Thus, the degree of discretionary autho- 
rity in which the defendants in the case sub judice are vested by state 
law affects the standard of reasonableness from which this Court must judge their conduct.

-46-



Miller v. Twomey, supra, 479 at 719-20.
Alternatively, there is nothing in the record to support even considera­

tion by this court of whether defendants acted in "good faith". This 
court as a matter of law can find, based on the evidence, that defendants 
have not acted in good faith. Cf. Knell v. Bensinger, 522 F.2d 702, 727,
(7th Cir. 1973).

(2) The State Law
(a) The Standards. Mississippi offers public officials a form of 

limited qualified immunity. An honest mistake justified by real or 
apparent facts which reasonably caused the official to make the mistake, 
renders the public officer immune from liability. Barnett v. Lollar,
19 So. 2d 748 (1944) (honest mistake); Paxton v. Arthur, 60 Miss. 832, 838 
(1893) (honest but mistaken belief in facts); National Surety Co. v. Miller, 
124 So. 251 (1929) (Good faith exists where defendants act with honest 
motions and there is no express statute making him liable); Barnett v.
Woods, 18 So. 2d 443, 445-6 (Miss. 1944); Golding v. Salter, 107 So. 2d 
348 (Miss. 1958); and Cochran v. Eakin, 203 So. 2d 587, 590 (Miss. 1967).
1) Cf. Bogard v. Cook 586 F.2d 399, 415 (Application of Mississippi qualified 
immunity to a state-wide official).

(b) Burden of Proof. The burden of proving the "real or apparent 
existence of facts which reasonably caused the honest mistake" is. on the 
public official. Barnett v. Lollar, supra, at 750; See also, cases cited 
above. Under no interpretation of the factual record in this case could 
one possibly justify defendants conduct upon the basis of their making an 
"honest mistake."

45/

45/ See also, Bryan v. Jones, 530 F.2d 1210, 1216 (en banc) (Brown, C.J. 
concurring): "[A]dministrative, logistical management problems are atthe heart of humane, dignified prison dentention."

-47-



III. ADDITIONAL ISSUES RAISED 
BY THE PANEL OPINION

Although vacated by this Court's Order of September 7, 1979, we 
find it necessary to comment on several issues raised by the panel decision 
of April 26, 1979.

A. The New Jail
Construction of the new jail does not obviate plaintiffs need for 

injunctive relief against future violations. Allee v, Medrano, 416 U.S. 802 
(1974). New brick and mortar offer plaintiffs' no guarantee that past

4 ,unconstitutional practices and policies will not continue in a new facilityt
Additionally, our claims for an award of damages are based upon past 

conduct —  defendants' conduct in the future is irrelevant to our damage 
claim.

B. The Standard GoverningReview of Finding of Fact
Whether reviewed under the clearly erroneous standard, Rule 52 F.R.C.P. 

or the more strict standard of scrutiny where constitutional facts/rights 
are at stake, Berenyi v. Immigration Service, 385 U.S. 630, 636 (1967) 
and cases cited therein, we .believe that in the final analysis this reviewing 
Court will be "left with the definite and firm conviction that a mistake 
has been committed," United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948).

C. Damages-Rule 23(b)(2) and (b)(3)
Plaintiffs' chief objective in this case has been to cure improper

46/ Morever, as Judge Rubin recognized in the panel decision, 594 F.2d at 
1033 (dissent) defendants have failed to comply with the District Court's 
Order to initiate operations of the new facility on September 15, 1978.

-48-



conditions and practices through injunctive relief. Ten inmates have 
set forth their individual damage claims before the trial court. As an 
incident to Rule 23(b)(2) F.R.C.P. relief, see 594 F.2d 997, 1037-38 
(Rubin, J.) this Court should now review those claims. Possible Rule 22(b)
(3) certification for others is appropriate upon remand.

D. Marvin Jones' Individual
Claims are Properly Before 
This Court________________

On January 10, 1978, the district court entered an order which denied 
named Plaintiff Marvin Jones permission to appeal in forma pauperis on the 
grounds that "his individual claim, as distinguished from his status as a 
member of the class, was finally dismissed with prejudice by order of this 
court dated August 23, 1977, and the motion is not timely filed as to 
Marvin Jones individually." The panel then ruled that this Courts' earlier 
May 22, 1978 denial of Jones' Motion to Appeal in Forma Pauperis was a 
"determination that the lower court's August 23, 1977 order was final and 
appealable." 594 F.2d at 1005, N. 2. Thus Jones' personal claims, under 
the majority's reasoning, are not before this Court. We disagree.

As the dissenting member of the panel recognized, 594 F.2d at 1036, N. 
2, Judge Cox's August 23, 1977 was a partial interlocutory judgment lacking 
Rule 54 (d) F.R.C.P. certification. Jones' claims are now proper before 
this Court - his appeal perfected when a final complete judgment was entered 
on December 6 , 1977 (A. 66-67) and a timely perfection of appeal filed.
See, Prayer v. Krasner, 572 F.2d 348, 353 (2d. Cir. 1978) (Failure to take 
an appeal of an interlocutory order does not preclude raising the question 
on appeal from the final judgment).

E. Attorneys Fees and Costs
1. On remand, the District Court should not reduce plaintiffs' 

attorneys' fees - either by reduction of the hourly rate or by refusal
-49-



to credit certain hours for that portion of counsels' work devoted to claims, 
if ultimately they are found to be unsuccessful. To the extent that the 
panel suggests that the fee award be fragmented by not compensating 
plaintiff's counsel for "losing hours," it is in error. <

Having once determined that plaintiffs are the prevailing part y,
plaintiff's counsel should be awarded fees for all time reasonable 
expended in the prosecution of this case. U.S. v. Mitchell, 580 F.2d 789,
793 (5th Cir. 1978); Donaldson v. O'Connor, 454 F. Supp 311, 315-16 (N.D.
Fla. 1978); McGowan v. King, Inc., 569 F.2d 845, 850 (5th Cir. 1978) and 
Farmington Dowel Products Co. v. Foster Mfg.Co., 421 F.2d 61, 91-92 (1st 
Cir. 1970);

2. The panel ignored the Civil Rights Attorney's fees Awards Act
47/of 1976 in limiting expert witness fees to a statutory per diem.

It would defeat the intent of Congress if the successful private 
litigant had to pay the many thousands of dollars sometimes required to 
hire expert witnesses and then be limited to a recovery of $20 for each 
day of the expert's court attendance.

48/
The impact of the 1976 Act has already been recognized in this 

Circuit. Although the particular amounts are not evident from the face of 
the opinion, this Court affirmed an award to the plaintiffs of $10,986.05

47/ The panel decision held "... that the statutory fees provided in 28 UTs.C. § 1821 are exclusive, and a district court has no authority to tax costs for compensation the expert witnesses in excess of the statutory 
per diem [$20 for each day's attendance] ...". 594 F.2d at 1029. Thedecision then cites a list of authorities, all of which are decisions that 
predate the passage of the Civil Rights Attorney's Fees Awards Act of 1976, amended 42 U.S.C. § 1988. For a pre-1976 decision allowing reason­
able expert fees, not limited by § 1821, see Welsh v. Likins, 68 F.R.D. 589 
(D. Minn. 1975) aff'd , 525 F.2d 987 (8th Cir. 1975). Newman v. Alabama, C.
A. No. 3501-N; Pugh v. Britton, C.A. No. 74-57-N; James v. Britton, C.A.
No. 74-203-N, Memorandum Opinion and Judgment (M.D. Ala. June 26, 1979).
See also, Palmingiano v. Garrhy, 466 F. Supp. 732, 744 (D.R.I. 1979) (Plain­
tiffs awarded $7,874.40 for costs and expenses in a Rhode Island prison case)
48/ See, Gates v. Collier, 559 F.2d 241, 244 (5th Cir. 1977).

-49a-



for reimbursable expenses (in addition to attorney's fees) under the new 
Act, which amount we believe included reasonable expert witness fees in 
excess of $20 per diem. A number of other courts have made similar post- 
Act awards. Most recently in this Circuit, then Chief Judge Frank M. 
Johnson, Jr. (now Circuit Judge), awarded The National Prison Project the 
sum of $14,806.29 in costs, which included fees of $1,126 (9 days at 
$125 a day) for one expert and $1,500 (for an architectural study) to 
another expert in the Alabama prison case.

CONCLUSION
1. Having initiated this action more than six years ago on August 13, 

1973, Plaintiffs return once again, for the fourth time, to this Court, 
see, (1) "Jones I", 519 F.2d 1090 (5th Cir. 1975) (Reversing Judge Cox's 
Orders denying plaintiffs' request for class certification and dismissing 
the defendant members of the Board of Supervisors), (2) "Jones II,"
Appendix A, pages la-3a, Panel Brief (Granting mandamus relief in ordering 
a ruling on issues relating to plaintiffs’ class), and "Jones III," the
now vacated panel opinion of April 26, 1979.

2. We now ask this Court to remand this action back to the trial
judge with complete detailed instructions relative to formulating appro­
priate a) injunctive and b) damage relief. In so doing, this Court should 
retain jurisdiction of this appeal and review the trial court's findings, 
should parties so request, within a definite time schedule. See, Bolton v. 
Murray Envelope Corp., 553 F.2d 881, 885 (5th Cir. 1977) and Rainey v. 
Jackson State College (Rainey III), 551. F.2d 672, 677 (5th Cir. 1977).

-50-



JOHN L. WALKER 
P.O. Box 2086
440 Providence Capitol Building 
Jackson, Mississippi 38205
ALVIN J. BRONSTEIN National Prison Project of the 
American Civic Liberties Union 
Foundation
1346 Connecticut Avenue, N.W. 
Washington, D.C. 20036
ATTORNEYS FOR APPELLANTS-PLAINTIFFS

CERTIFICATE OF SERVICE
I, David M. Lipman, hereby certify that copies of the foregoing

Supplemental Brief for Appellants-Plaintiffs (Rehearing En Banc) have
been served on the following counsel of record for Appellees by placing
same in the United States Mail, postage prepaid on this date:

Raymond Brown, Esq.
P. O. Box 787

Dated: 1 October

Of Assistance:
Florida Justice Institute, Inc.
Board of Directors:

Chesterfield H. Smith
LeRoy Collins
Hugh MacMillan, Jr.Roderick N. Petrey John Edward Smith 
1260 AmeriFirst Bldg.
One S.E. Third Avenue 
Miami, Florida 33131