Hadix v. Johnson

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 6, 2004
• Docket: 03-1334
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hadix, et al. v. Johnson, et al. No. 03-1334 ELECTRONIC CITATION: 2004 FED App. 0130P (6th Cir.) File Name: 04a0130p.06 CORRECTIONS DIVISION, Lansing, Michigan, for Appellants. Elizabeth R. Alexander, NATIONAL PRISON PROJECT, Washington, D.C., Michael J. Barnhart, Detroit, UNITED STATES COURT OF APPEALS Michigan, Patricia A. Streeter, Ann Arbor, Michigan, for Appellees. FOR THE SIXTH CIRCUIT _________________ _________________

EVERETT HADIX , et al. X OPINION Plaintiffs-Appellees, - _________________ - - No. 03-1334 KENNEDY, Circuit Judge. Defendants appeal district v. - court’s issuance of an injunction in this long-pending case > dealing with conditions within the State Prison of Southern , Michigan, Central Complex (SPSM-CC). Defendants argue PERRY M. JOHNSON, et al., - Defendants-Appellants. - that the district court erred when it found that the failure to modify the long-existing structures and to take other steps to N protect prisoners from injury or death by fire resulted in a Appeal from the United States District Court constitutional violation. Defendants also argue that the for the Western District of Michigan at Kalamazoo. district court improperly exercised its jurisdiction over No. 92-00110—Richard A. Enslen, District Judge. facilities not subject to a Consent Decree. We reverse and remand on the issue of constitutional violation and affirm on Argued: February 5, 2004 the issue of jurisdiction.

Decided and Filed: May 6, 2004 BACKGROUND

Before: KENNEDY, DAUGHTREY, and COLE, Circuit In 1980, Everett Hadix and other prisoners incarcerated at Judges. the SPSM-CC brought a class action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern _________________ District of Michigan against various state officials charged with operation of SPSM-CC. In the complaint, the inmates COUNSEL alleged that the conditions of their confinement violated their rights under the First, Eighth, Ninth, and Fourteenth ARGUED: A. Peter Govorchin, OFFICE OF THE Amendments. On April 4, 1985, the parties entered into a ATTORNEY GENERAL, CORRECTIONS DIVISION, Consent Decree covering most aspects of health care, fire Lansing, Michigan, for Appellants. Elizabeth R. Alexander, safety, sanitation, safety and hygiene, overcrowding and NATIONAL PRISON PROJECT, Washington, D.C., for protection from harm, volunteers, food service, management, Appellees. ON BRIEF: A. Peter Govorchin, Leo H. operations, access to courts, and mail. Although the state Friedman, OFFICE OF THE ATTORNEY GENERAL, officials admitted no liability on the claims, the Consent

1 No. 03-1334 Hadix, et al. v. Johnson, et al. 3 4 Hadix, et al. v. Johnson, et al. No. 03-1334

Decree explicitly stated that it was intended by the parties to Access Plan; II.A.5.a. Professional Staff; II.A.7. Chronic assure the constitutionality of the conditions under which Disease Plan; and II.A.11. Problem Oriented Medical Record- prisoners are incarcerated at SPSM-CC. Under the terms of Health Related Disabilities of the Consent Decree. Finally, the Consent Decree, the state officials retained the ability to the court also ruled that Plaintiffs failed to sustain their apply for termination of the decree once they achieved full burden proving the existence of current constitutional compliance with all decree provisions. The district court violations as to the remaining health care provisions of the retained jurisdiction to enforce the terms of the Consent Consent Decree. Defendants appealed the November 18, Decree until compliance was achieved. In 1992, the Eastern 1996 order and this Court, in a January 22, 1998 Opinion, District of Michigan transferred the medical and mental dismissed the appeal for want of jurisdiction. health components of the Consent Decree to the Western District of Michigan. On March 18, 1999, the Eastern District transferred sections I.P., I.Q., and I.S. of the Consent Decree (regarding In April 1996, Congress enacted the Prison Litigation water temperatures, housing temperatures, and ventilation, Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110 respectively) pertaining to facility B (Southern Michigan Stat. 1321-66 (1996), amending 18 U.S.C. § 3626. Section Correctional Facility or JMF) to the Western District. The 802(a)(1) of the PLRA directs that prospective relief in prison Eastern District also transferred to the Western District conditions cases “shall extend no further than necessary to Defendants’ proposed alternatives to Facility A (Egeler correct the violation of the Federal right of a particular Correctional Facility1 or SMN). On December 2-3, 1999, the plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Section Western District conducted hearings on the medical health 802(b)(2) of the PLRA entitles the defendant “to the care provision of the Consent Decree and other issues immediate termination of any prospective relief if the relief transferred by the Eastern District. was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than On February 18, 2000, the district court issued its Order necessary to correct the violation of the Federal right, and is and Findings of Fact and Conclusions of Law. The district the least intrusive means necessary to correct the violation of court reaffirmed its findings from November 18, 1996, that the Federal right.” 18 U.S.C. § 3626(b)(2). The prospective (1) Plaintiffs sustained their burdens by proving the existence relief, however, “shall not terminate if the court makes written of constitutional violations with regard to sections II.A.3.b., findings based on the record that prospective relief remains II.A.4.a., II.A.5.a., II.A.7., and II.A.11 and (2) Plaintiffs failed necessary[, narrowly drawn, and the least intrusive means] to to sustain their burden of proving the existence of correct a current and ongoing violation of the Federal right.” constitutional violations as to the remaining health care 18 U.S.C. § 3626(b)(3). Following the enactment of PLRA, provisions of the Consent Decree and terminated its Defendants moved to terminate the Consent Decree pursuant jurisdiction over those provisions. Additionally, the district to 18 U.S.C. § 3626(b)(2)-(3). On November 18, 1996, the court found that the temperature, ventilation and fire safety district court ruled that the immediate termination provision of the PLRA was unconstitutional. In the same ruling, the court denied Defendants’ motion for immediate termination 1 and ruled that the Plaintiffs sustained their burden by proving There are 993 cells in the three blocks that make up Eleger (Block the existence of constitutional violations as to sections 1 has 334, Block 2 has 3 08, and B lock 3 has 35 1). There are currently no prisoners housed in Block 1. Block 2 houses parole violators and Block II.A.3.b. Transfer Medical Evaluation; II.A.4.a. Sick Call 3 house parole violators and 10 -12 general popu lation inmates. No. 03-1334 Hadix, et al. v. Johnson, et al. 5 6 Hadix, et al. v. Johnson, et al. No. 03-1334

conditions at JMF, Egeler, and Administrative Segregation2 (ventilation) of the Consent Decree as to Blocks 1 and 3 of support a finding of constitutional violations. The the Egeler Facility, Block 7 (the Reception and Guidance February 18, 2000 order was not final, as the district court Center), Block 8 of the Parnall Facility, and SMI reserved judgment on termination of other portions of the administrative segregation. On May 6-8, 2002, the district Consent Decree and the entry of any remedial order. court conducted hearings on the remaining medical health care provisions of the Consent Decree and other issues On July 12, 2000 the Eastern District transferred to the transferred by the Eastern District. On October 29, 2002, the Western District Plaintiffs’ claims that conditions in Facility district court issued its Order and Injunction and Findings of C (State Prison of Southern Michigan–Central Complex or Fact and Conclusions of Law. The court determined that the SMI) with regard to water, temperature and ventilation existing system of health care continues to violate sections (Sections I.P., I.Q., and I.S., respectively), endanger the II.A.3.b, II.A.4.a., II.A.5.a., II.A.7., II.A.11. of the Consent health of prisoners. On November 15, 2000, the Eastern Decree and the Eighth Amendment. The court further found District transferred to the Western District Plaintiffs’ claims that Defendants’ failure to protect prisoners from heat-related that the conditions in Facility D (Parnall Correctional Facility illnesses and the risk of injury from smoke and fire for or SMT) with regard to temperature and ventilation (Sections prisoners with disabilities and chronic diseases resulted in I.Q and I.S., respectively). On November 8, 2001, current and ongoing violations of the Consent Decree and the Defendants notified the district court that as a result of a U.S. Constitution. reduction in the MDOC’s general fund budget, Facility C (or SMI), including the administrative segregation unit, would be On the basis of those findings, the district court concluded vacated. On January 4, 2002, SMI was emptied of all that termination of the remaining portions of the Consent prisoners. There are no current plans to reopen SMI, and any Decree was inappropriate, that remedies are appropriate, and reopening of SMI would be contingent upon future bed space that further briefing and hearing were necessary to determine needs and finances. the scope of remedies. Accordingly, the district court ordered the parties to further brief the question of whether there is any On April 8, 2002, pursuant to a stipulation of the parties, alternative to compartmentalization,4 consistent with Section the Western District terminated its jurisdiction over Section VIII of the Consent Decree, as a remedy for the fire safety I.P. (water temperature) of the Consent Decree as to all Hadix problems and risks. After the briefing, the district court facilities.3 On May 3, 2002, pursuant to a stipulation of the issued its Injunction on February 25, 2003, in which it parties, it also terminated its jurisdiction over Section I.S. ordered compartmentalization of the facilities as the fire safety remedy. The injunction applied to Facilities A (Egeler) and D (Parnall). The court further ordered Defendants to 2 There are between 200 and 220 inmates in Administrative Segregation. 4 3 “Compartmentalization” means subdividing the building into The Ha dix facilities were originally defined as “all areas within smaller units to limit the area that is affected by a fire or smoke, including walls of the State Prison o f Southern M ichigan at the time this cause the number of people that might be in that area. T his allows peo ple to commenced and all areas which will supply support services under the evacuate horizontally, as well as down the stairs. It also allows them to provisions of the Consent Judgment.” Order Accep ting Consent evacuate quicker by shortening the traveled distance to a p lace of safety. Judgment, May 13, 198 5. The “within walls of the State Prison of The last dollar cost estimate for compartmentalization of Egeler was $25 Southern M ichigan” meant the C entral C omp lex. million in the early 1990 s. No. 03-1334 Hadix, et al. v. Johnson, et al. 7 8 Hadix, et al. v. Johnson, et al. No. 03-1334

submit by December 31, 2003, a synopsis of their intended Consent Decree. At the time of the entry of the Consent facilities and process modifications, detailed architectural site Decree, April 1985, SPSM-CC consisted of Blocks 3-6, 8, 11, plans and construction schedule for approval by the court. 12, and Administrative Segregation. Blocks 1 and 2, on the other hand, were part of the North Complex. Nevertheless, as ANALYSIS stated above, at that time, the Hadix facilities were defined as “all areas within walls of the State Prison of Southern Defendants on this appeal argue that the district court Michigan at the time this cause commenced and all areas abused its discretion and erred (1) by exercising its which will supply support services under the provisions of the jurisdiction over facilities not subject to the Consent Decree5 Consent Judgment.” Order Accepting Consent Judgment, and (2) in its conclusion that the MDOC’s failure to protect May 13, 1985. The “within walls of the State Prison of prisoners from injury or death by fire constituted a Southern Michigan” meant the Central Complex. constitutional violation. We address these contentions in turn. Accordingly, the question is whether Blocks 1 and 2 are “areas which will supply support services.” The district court I. Subject matter jurisdiction concluded that “those facilities have been long considered by this Court and Judge Feikens6 as Hadix facilities given the Defendants argue that the district court lacked subject delivery of support services. While, of course, the delivery of matter jurisdiction over Blocks 1 and 2 of the Egeler support services may change over time, there is no need on Correctional Facility, Blocks 9 and 10 of the Parnall the present record to declare those facilities as non-Hadix Correctional Facility, and Building C. Plaintiffs argue, and facilities.” Hadix v. Johnson, No. 4:92-CV-110, slip op. at 4 we agree, that the injunction clearly states that it applies only (W.D. Mich. Apr. 18, 2002) (ruling on the motions). to Blocks 1, 2, and 3 of Egeler, Block 7 of the Reception Defendants have presented us with no arguments on this Complex and Block 8 of Parnall. See Injunction, Feb. 25, appeal as to why it was an abuse of discretion to conclude that 2003 at 2. Accordingly, the only question is whether the Blocks 1 and 2 are “areas which will supply support district court properly exercised jurisdiction over Blocks 1 services.”7 Accordingly, we find that the district court judge and 2 of Egeler. The Consent Decree stated the following: 6 Judge Feikens of the Eastern District of Michigan was invo lved with This was an action brought pursuant to 42 U.S.C. § 1983 portions of this case prior to their transfer to the Western District of Michigan. and other applicable statutes seeking declaratory and equitable relief with respect to the conditions of 7 W e also no te that in order for a district court to have jurisdiction confinement at the Central Complex of the State Prison over Blocks 1 and 2 , there must be a finding of on-going constitutional of Southern Michigan, including the Reception and violations taking place there. Therefore, Defendants’ concerns would Guidance Center (hereinafter referred to as SPSM-CC). have had more substance prior to the enactment of PLRA in 1996, when the jurisdiction was based solely on the Consent Decree. Since the PLRA requires a continuing constitutional violation for the retention of 5 jurisdiction, even were we to find that the district court ab used its Defendants also argue that the district court abused its discretion by discretion in exercising jurisdiction over those facilities by misconstruing relying upon certain exhibits in violation of the Federal Rules of the Consent Decree, Plaintiffs could immediately file a new lawsuit Evidence. W e disagree and find that any conceivable error in connection challenging the constitutionality of prison conditions in Blocks 1 and 2. with those exhibits is harmless. W e would like to avoid that result in the interest of judicial efficiency. No. 03-1334 Hadix, et al. v. Johnson, et al. 9 10 Hadix, et al. v. Johnson, et al. No. 03-1334

did not abuse its discretion in exercising jurisdiction over all prove they have taken actions that have remedied of the facilities in question. constitutional violations previously determined and to discuss plans to remedy these violations in Egeler and Administrative II. Constitutional violation Segregation. Defendants submitted a Report of their Remedial Plans for Fire Safety, Temperature, Ventilation and A. District Court Proceedings Facility A on June 8, 2001. On February 18, 2000, the district court issued its Findings Section VIII of the original Consent Decree called for a of Fact and Conclusions of Law in which it stated: management study. This study concluded that SPSM was unmanageable and should be broken into smaller facilities for Egeler cells cannot be remotely unlocked. Moreover, in purposes of management. The parties negotiated two an emergency prisoners would be required to exit down stipulations, each of which was approved by the Court. The five stories through narrow galleries with low railings. Stipulation Regarding Implementation of Consent Decree In a fire, water flowing over the galleries from the Provisions VIII, E, F, and G, April 7, 1989, established basic affected sprinklers would make some areas more procedures. The Stipulated Agreement Regarding Plan slippery, and in some areas smoke from the fire might Element One and the Implementation of Paragraphs VIII, E, also increase the hazard. This combination of F, and G of the Consent Judgment, June 8, 1990, called for circumstances would pose an extremely great fire the unitization and compartmentalization of each of the SPSM hazard. . . The hazards of a fire evacuation would be even cell blocks into four parts. The Agreement also stated that: greater for a prisoner with medical disabilities, a category that includes much of the population. . . Fire safety The parties agree that unitization and decentralization are hazards are exacerbated for those persons with critical to the acceptance of Plan Element One. significant medical disabilities, if they are Unitization has been recommended by the Defendants in inappropriately housed on an upper tier. Defendants did their binding proposals to include “dividing each not contest Plaintiffs’ contentions that fire safety in cellblock into four smaller living units which will operate relation to prisoners with medical and mental health as a management unit.” Decentralization has been problems is deficient. Defendants’ failures to implement recommended by Defendants in their binding proposals an appropriate break-up plan, or otherwise address the to include “food service and passive recreational dangers at the Egeler facility, have resulted in current and programming . . . decentralized to each of the unitized ongoing constitutional violations. The current record housing units.” Where Defendants condition also supports a conclusion that there is an ongoing implementation of these proposals with expressions such constitutional violation regarding Administrative as “if possible” or “where possible” this condition relates Segregation. to architectural feasibility. Hadix v. Johnson, 2002 U.S. Dist. LEXIS 21283, at *376-77 June 8, 1990 Stipulated Agreement. Our reading of the (W.D. Mich. Oct. 29, 2002) (citing its previous Findings of record indicates that Defendants consented to Fact and Conclusions of Law). Since this order was not final, compartmentalization as a remedy not for the fire safety it was not appealed. The court also set a May 2002 hearing concerns, but for the concerns over violent attacks that were regarding fire safety to provide Defendants an opportunity to taking place in the prison complex. The concerns about No. 03-1334 Hadix, et al. v. Johnson, et al. 11 12 Hadix, et al. v. Johnson, et al. No. 03-1334

personal safety of the prisoners stemming from the potential Safety Code (“LSC”)9 does not specify the maximum amount of outbreak of violence have been remedied and are not of time to complete an evacuation. It does, however, require subject of the current appeal. Accordingly, the district court that where a large atrium area (e.g. cell block) is being used erred when it proceeded on the assumption that Defendants to dilute smoke as Defendants argue,10 the evacuation time had agreed on an earlier occasion to compartmentalization of must be considered in designing a smoke management the facilities to remedy fire safety violations. system. Depending on the cell block, between 22 and 27 locks must be opened at Egeler. By contrast, the LSC permits The question of architectural feasibility thus became crucial a maximum of 10 locks. Further delaying the evacuation is to the proper resolution of this long-standing conflict. the operating procedure, which mandates that a staff member Defendants retained the architectural and engineering firms of must travel to the arsenal to get the key to activate smoke Rosser Fabrap and Silver Ziskind to assess the physical and evacuation vents. Nevertheless, Mr. Carson opined at the functional conditions of the Hadix facilities and design the 2002 hearing that MDOC’s evacuation procedures and fire necessary corrective actions in accordance with the Stipulated drills are adequate to meet the requirements of the LSC. His Order to unitize and compartmentalize the facilities. Robert opinion rested in large part on the ability of the open cell Fabrap found, inter alia, that (1) all of the cell blocks at blocks to provide a large volume for the dilution of heat and Egeler violate the “means of egress” requirements of the code smoke. Undermining that conclusion was Mr. Carson’s of the Building Officials and Code Administrators, inability to tell the court how quickly smoke would actually International (“BOCA Code”);8 (2) the stairs that would be used for evacuating the cell blocks in Egeler are inadequate in size, enclosure, location, and discharge; and (3) the five-story mezzanine design in the Egeler cell blocks violates the atrium 9 The Life Safety Code is promulgated by the National Fire Protection requirements of the BOCA Code. These findings were Association and is adopted by various jurisdictions, including Michigan. accepted by Defendants’ mechanical engineering expert, The purp ose o f the Life Safety Code is to establish minimum David Sproul. requirements that will provide a reasonable degree of safety from fire in existing buildings and structures. Additionally, Defendants retained Mr. Wayne Carson as 10 their fire safety expert. Mr. Carson visited the Hadix facilities Mr. Carson presented the follow ing example during his testimo ny: on a number of occasions, both before and after issuing his If I bring a phone booth into this courtroom and w alk in and close the door and set the phone boo k on fire, I’m not going to report. During those visits, Mr. Carson walked through the be ab le to stay in the phone booth very long because of the heat facilities and interviewed the staff. Mr. Carson opined that and smoke buildup in the booth. But if I light the same phone MDOC was conducting fire drills quarterly on each shift. The book in the mid dle of the courtroom, we could stay in here and examination of the drill reports showed that evacuation times watch it burn because we have a large volume to absorb the heat in Block 3 and Block 8 approached twenty minutes. The Life and smo ke. The cell blocks, because they are so large, some of them longer than a fo otball field pro vide a huge volume to absorb heat and smoke and is also limited fuel source in the cell 8 block and the fuel is what drives the fire, that’s what produces The BOCA Code is issued by the International C ode Council and is the heat and smoke is the things that burn, and there is limited adopted by various jurisdictions. As of the date of this opinion, the Code fuel in the cells and in the block to burn, so we have a limited has been adopted by 44 states, includ ing M ichigan. It provides safety size fire and this huge volume, it’s a tremendous safety factor. requirements for newly-constructed or remodeled buildings, but not for Ha dix, 200 2 U .S. Dist. Lexis 2128 3, at *38 2-83 (W .D. M ich. Oct. 29, existing structures. 2002). No. 03-1334 Hadix, et al. v. Johnson, et al. 13 14 Hadix, et al. v. Johnson, et al. No. 03-1334

disperse to fill the whole cellblock.11 Mr. Carson also did not most recent correctional facility to have a fire resulting in loss know in what directions the smoke would travel from a fire. of life was not multi-tiered. On the other hand, Mr. DiMascio opined that the most likely path that smoke would travel would be upward, spreading out With respect to a likelihood of a fire, Mr. Carson opined as it rose and then traveling across the ceilings. that (1) the combustible materials in the cell blocks are Mr. DiMascio’s theory was confirmed by the actual path of limited,13 (2) there are no combustibles stored in the the smoke from a fire in Block 8 that Mr. Kovaleski basement of the cell blocks; (3) there are metal fans in the witnessed on an earlier occasion. However, the district court corners of the units and sprinklers over the metal fans; (4) the acknowledged that fire and smoke from a fire do not travel in structure is noncombustible14 and there is nothing in the the same direction or have the same characteristics on every basement that is combustible; (5) there are no combustible occasion. Mr. Carson attempted to bolster his smoke dilution materials in the attic space; (6) the laundry levels at the theory by testifying that his research has only disclosed one bulkheads referred to as the ends of the cell blocks at the multi-tiered open cell block fire in Ohio in the 1930s, which Egeler Facility are protected with sprinklers; and (7) all resulted in death or injury to prisoners when the wooden roof buildings are protected by automatic sprinklers in each cell. collapsed. Plaintiffs countered that aspect of his testimony On cross-examination, Mr. Carson conceded that the dry with Curtiss Pulitzer’s testimony that a number of fires had transformers and circuit breaker panels in Block 7 and 8 could taken place in multi-tier cell blocks.12 Despite Mr. Pulitzer’s catch fire and that smoke from the fire could enter the cell statement regarding the loss of life due to fires in multi-tiered block. Mr. DiMascio confirmed that the dry transformers and correctional facilities 20-25 years ago, the court noted that the circuit breaker panels in Blocks 1-3, 7, 8 are “live” and pose a serious hazard if they were to catch on fire. Mr. DiMascio testified that “sprinkler systems fail too often.” However, he was unable to provide the court with the failure rate, if any, of the sprinkler system in the subject facilities. 11 The LSC doe s provide examples of doing calculations for smoke removal rates based on assumed fuel loads. The type and amo unt of fuel Plaintiffs produced evidence, credited by the district court, load drives both how fast a fire will develop and how long the fire will that there are no automatic sprinklers in the basements of last. The LSC uses an example of a severe fuel loading of 6 pounds per square foo t. Mr. Carson testified that the approximate weight o f the cell Blocks 1, 2, 3, 7, and 8 (except at either end over the fans) furnishings is 1.7 po unds per square foot. M r. DiM ascio, Plaintiffs’ and that there are no sprinklers in the pipe chases behind the expert, did not contradict that testimony through his own calculations. cells in Blocks 7 and 8. As a result, if smoke gets into the Mr. DiM ascio did indicate that Mr. Carson may have underestimated the pipe chases in Blocks 7 and 8, it would travel vertically fuel load by only taking into consideration cell furnishings, typically- through the tiers, get to the return air vents at the top of the issued clothing, and b edd ing. The imp ortance of o ther co mbu stible property, such as personal and legal ma terials, was provid ed by Plaintiff Ronald Kovaleski, who estimated the weight of his property at about 500 13 pounds and the property of a typical prisoner at about 250 pounds. Mr. Carson ind icated that (1) the bed , desk and chair are metal Mr. Kovaleski’s experience therefore illustrates the failure o f MD OC to except for the chair’s plastic molded back; (2) the furnishings are metal; enforce its policy limiting the amount of personal property an inmate may and (3) the mattress is cotton, treated with boric acid–it is combustible but possess within their cell. has been treated to reduce its flamm ability.

12 14 Mr. Pulitzer is a planner and a licensed architect with over twenty Mr. Carson indicated that all Blocks were “heavy concrete and years experience in the planning o f correctional facilities. maso nry construction.” No. 03-1334 Hadix, et al. v. Johnson, et al. 15 16 Hadix, et al. v. Johnson, et al. No. 03-1334

building and be exhausted. The smoke detectors in the air constructed in 1926. Blocks 7-8 were constructed in 1928. handling units would shut down the unit in the event of large Blocks 11-12 were constructed in 1944. Administrative volumes of smoke. At that point, the smoke would not be Segregation was constructed in 1930. The court concluded recirculated in the building; nor would it be exhausted. that as a renovated facility, Egeler was subject to BOCA. Mr. Carson discounted the dangers presented by the lack of sprinklers in the pipe chases of Blocks 7 and 8 because there Mr. Carson also acknowledged that he did not take into is no fuel in the pipe chases. He concluded that Blocks 1, 2, consideration the number of prisoners with medical problems. 3, 7, and 8 are fully sprinkled within the intent of the LSC.15 However, he indicated that a problem of occupants with He also opined that the Blocks provide an equivalent level of medical problems exists in all facilities, including the private protection intended by the Code.16 sector and that the LSC takes this problem into consideration. The court disagreed because it found that Hadix facilities A major point of contention during the trial was whether or house a very substantial numbers of inmates who, “because not Blocks 1-3 and 7-8 are single-story or multi-storied for of age, physical impairment, medical or mental condition, or the purposes of the LSC. Those Blocks are each five stories medication are more at risk from smoke than a general tall and the length of a football field. Mr. Carson opined that population and evacuate more slowly.” Hadix, 2002 U.S. the Blocks are single-story for purposes of the LSC. Dist. LEXIS 21283, at *411-12 (W.D. Mich. Oct. 29, 2002). Mr. DiMascio, and the district court, disagreed. The district court further found that even if the claim that these Blocks are B. District Court Conclusions one-story buildings is accepted, Defendants would then be violating a separate code provision–the requirement that After considering all evidence the district court found the ceiling height not exceed twenty-three feet.17 following specific fire safety deficiencies with respect to various areas of concern. With regard to building evacuation Another point of contention was the applicability of BOCA the court found that: to these facilities. BOCA requires more safety precautions than does the LSC. Mr. Carson, who is involved with BOCA If inmates cannot quickly evacuate a housing block in the and is a member of BOCA, stated that BOCA is not event of the a serious fire, they would likely die. The applicable to the subject facilities because BOCA only applies current population is at risk in a fire emergency. . . to new construction and remodeling, and not to existing According to Defendants’ records, a substantial number structures. The district court noted that Blocks 1-5 were of cell locking mechanisms do not work properly at any given time. . . In order to exit a block, an inmate must travel half the length of his tier to the nearest stairs, 15 Mr. Carson was on the committee that drafted Section 15-3.1.3 of which are at either end of each block; travel down as the LSC . The purpose and intent of that Section was to address fire safety many as five flights of open stairs;18 and cross the open in existing large multi-tiered open cell blocks. area on base to the exit. The distance an inmate must 16 The LSC has an equivalency provision to allow the authority enforcing the Code to make judgments concerning its application. 18 17 The blocks in question have five tiers. It therefo re appears to this The ceiling height in the cellblock s varies b etween 42 feet in court that there are only four flights of stairs that an inmate must travel Egeler and 51 feet in 7 and 8 Block. unless the exit is below the first floor. No. 03-1334 Hadix, et al. v. Johnson, et al. 17 18 Hadix, et al. v. Johnson, et al. No. 03-1334

travel in 1-3 Blocks and 7-8 Blocks to exit the block from the cell on fire and, as it rose from gallery to exceeds the maximum travel distance of 150 feet gallery, it would gather air and expand, affecting more permitted by the Life Safety Code. Blocks 1, 2, 3, 7, and cells. When the smoke reached the top of the block, it 8 cannot be classified as one-story buildings under the would move horizontally through the block and then Life Safety Code because they are not fully sprinkled. downward into the block. The air space in a housing “Fully sprinkled” is an absolute without exceptions for block above the occupied cells will act as a reservoir for unsprinkled areas. The BOCA Code would not permit a smoke but it would be of limited use before it began five-tiered cell blocks such as those at Egeler and Parnall. affecting inmates trying to use upper galleries to exit. The primary concern associated with Blocks 1-3, 7 and Smoke will also form eddies in areas that inmates on 8 is that they are five-tiered open celled structures. In other levels are trying to use as exits. Mr. DiMascio addition to applying to new or renovated structures, the made calculations based on Life Safety Code, indicating BOCA code requires that unsafe structures be taken that each block in Egeler would need to be able to down or made safe. Blocks 1-3, Administrative evacuate 150,000 cubic feet per minute (“CFM”) of Segregation, and Blocks 7-8 are unsafe and should be smoke from a block. The ventilation fans are rated to corrected. Application of the BOCA Code to Blocks 1-3, evacuate 20,000 CFM . . . Accordingly, under conditions 7 and 8 is essential if the buildings are to be made safe. in a fire as anticipated under the Code, the cell block The ceiling height in Blocks 1-3, 7 and 8 is 51 feet. The could fill with smoke at the rate of ten feet per minute. BOCA Code permits a ceiling height that does not In light of the fact that the ceiling height in Blocks 1-3, exceed 23 feet long, only so long as one of the exits does 7 and 8 is 51 feet, these calculations imply that smoke not require inmates to traverse stairs from higher than the from the bottom tier could reach the top tier in 23 feet. The BOCA ceiling height requirement serves to approximately five minutes. However, the chances of reduce the number of people at risk. The intent of the such a fire are reduced by the presence of sprinklers. The ceiling height requirement is to assure ventilation system in 1-3, 7 and 8 Blocks is no more than compartmentalization, reducing the population at risk an add-on. It is not a smoke controlled system as from a fire in a particular unit and assuring that prisoners described in the codes. There are “live” dry transformers can move horizontally to the next unit in the event of and electric breaker panels in the basements of 1-3, 7 and fire, rather than being required to negotiate distances in 8 Blocks. These can catch fire and the smoke generated excess of what is permitted by the code. can travel into the housing area. There are no sprinklers in the basements. Mr. Carson agreed with these Hadix, 2002 U.S. Dist. LEXIS 21283, at *400-03 (W.D. statements as to 7 and 8 Blocks. Fire drill reports from Mich. Oct. 29, 2002). Block 3 of Egeler show evacuation times ranging from eight minutes to eighteen minutes. The reports for Block With respect to smoke removal, the district court found 8 evacuation times range from three minutes to twenty that: minutes. However, the codes do not specify maximum evacuation times. It takes four minutes just to unlock all Notwithstanding MDOC regulations, there is a sufficient of the cells in Blocks 7 and 8, not counting the time from fuel load within a cell to burn for 15 minutes. Some cells the base level through an exit door. have footlockers full of books and other papers. Smoke caused by a fire in a cell would be most likely to rise Id. at *403-06. No. 03-1334 Hadix, et al. v. Johnson, et al. 19 20 Hadix, et al. v. Johnson, et al. No. 03-1334

In addition to these general findings, the district court gallery of 8 Block. The inmate put a few papers and a identified physical problems unique to each facility in sheet in a trash can, ignited this material and placed his question. With respect to Egeler, the court noted that: mattress over the fire. Mr. Kovaleski was on the third gallery at the time. There was so much smoke produced A maximum of ten locks can be released to meet the Life by this fire that he could not see the cell opposite his on Safety Code. Two of the Egeler blocks have 22 locks the other side of the common area. The smoke came up that must be manually opened to evacuate the building. the front of the tiers and into his cells. . . There are no One block has 27 locks that must be manually opened, sprinklers in the 7 and 8 Block pipe chases. If an inmate because there are five top-lock cells. The smoke-purging in 7 or 8 block were to ignite his possessions, the smoke system in each block of Egeler is the roof exhaust fans. from the fire could travel into the pipe chase, which does To activate those fans, staff must go to the Arsenal to not have sprinklers, and travel up in the chases and enter retrieve the key to the lock on the exhaust fans. In the the cells at higher levels. If transformers in the 7 and 8 event of a fire, staff would be expected to unlock cells Block basements caught fire, the smoke from the fire and the exit doors, travel back and forth from the Arsenal could travel into the housing units. to get the key to unlock the switch to the smoke purging system, and assist handicapped inmates. A Block 2 cell Id. at 407-09. With respect to Administrative Segregation, (which was subject to double-bunked [sic] at the time of the court concluded that “[i]f a fire started in a basement it hearing) has a distance of 18.5 inches between the bunk could ignite the insulation at each floor” and that “Defendants bed and the side-by-side lockers opposite the bed, 22 inappropriately rely on this ventilation system to exhaust inches from the sink to the bunk bed and 9.5 inches from smoke in Administrative Segregation.” Id. With respect to the sink to the desk, not including the space for the chair. RGC, the court noted that “[i]nmates in RGS may never Defendants did not made any changes to the ventilation participate in a fire drill, because of the short period of time system in 2 Block after it was double-bunked, nor have they are in the facility [10 days to 4 weeks], placing them at Defendants made any changes in the ventilation since the increased risk.” Id. It further concluded that “in the Egeler Court made its findings of unconstitutionality, with the facility, Blocks 7 and 8, Administrative Segregation and exception of increasing the population by double-celling RGC, the risk of injury from smoke and fire for prisoners for a time. This double-bunking placed Block 2 with disabilities and chronic diseases continues to violate prisoners at risk in a fire emergency. Constitutional requirements . . .” Id. at 412-13. Id. at *406-07. With respect to Blocks 7 and 8, the court C. Current Appeal noted that: In the context of prison conditions, the Cruel and Unusual The quartermaster area of 7 Block contains substantial Punishment Clause forbids conditions that involve the flammable materials. Smoke could get into the housing “wanton and unnecessary infliction of pain,” or are “grossly unit up the stairs or through the passageway used by disproportionate to the severity of the crime. . .” Rhodes v. inmates to get into the cell block. [Plaintiff] Kovaleski Chapman, 452 U.S. 337, 347 (1981). To succeed in an estimated that inmates have substantial weights of Eighth Amendment challenge, Plaintiff must establish that (1) flammable materials in their cells. . . Mr. Kovaleski a single, identifiable necessity of civilized human existence is described a fire that was set by an inmate on the first being denied (objective prong) and (2) the defendant prison No. 03-1334 Hadix, et al. v. Johnson, et al. 21 22 Hadix, et al. v. Johnson, et al. No. 03-1334

official acted with a sufficiently culpable state of mind. See, best be compared to criminal law’s “subjective recklessness.” e.g., Wilson v. Seiter, 501 U.S. 294, 298 (1991); Brown v. Id. at 839-40. In Farmer, the Court, concerned with the Bargery, 207 F.3d 863, 867 (6th Cir. 2000). subjective component, explained that an “inmate seeking an injunction on the ground that there is a contemporary With respect to the objective prong,“[p]risoners have the violation of a nature likely to continue must adequately plead right not to be subjected to the unreasonable threat of injury such a violation; to survive summary judgment, he must come or death by fire . . ..” Hoptowit v. Spellman, 753 F.2d 779, forward with evidence from which it can be inferred that the 783-84 (9th Cir. 1985). The contemporary standards of defendant-officials were at the time suit was filed, and are at civilized decency that currently prevail in society determine the time of summary judgment, knowingly and unreasonably whether conditions of confinement are cruel and unusual. See disregarding an objectively intolerable risk of harm, and that Rhodes v. Chapman, 452 U.S. at 346. It is those they will continue to do so . . .” Farmer, 511 U.S. at 845-46. contemporary standards, and not courts’ own “notions of In this case, we are concerned with future conduct to correct enlighted policy” that are controlling. Tillery v. Owens, 907 prison conditions. If those conditions are found to be F.2d 418, 426 (3rd Cir. 1990). To satisfy this prong, objectively unconstitutional, then that finding would also “extreme deprivations are required . . .,” Hudson v. McMillan, satisfy the subjective prong because the same information that 503 U.S. 1, 9 (1992), and only deprivations denying “the would lead to the court’s conclusion was available to the minimal civilized measure of life’s necessities” are grave prison officials. enough to create a violation of the Cruel and Unusual Punishment Clause. Rhodes, 452 U.S. at 347. Harsh and The district court concluded that Plaintiffs established both uncomfortable prison conditions do not automatically create the objective and the subjective prongs. The review in this such a violation. Dixon v. Godinez, 114 F.3d 640, 642 (7th case is made difficult because the district court’s finding of a Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825 (1994)). constitutional violation with respect to fire safety was first However, a “remedy for unsafe conditions need not await a made in 2000, together with a number of issues which have tragic event.” Helling v. McKinney, 509 U.S. 25, 33-34 since been resolved. However, since no injunction was issued (1993). See also Hill v. Marshall, 962 F.2d 1209, 1211, 1215 at the time, no appeal was available. The present injunction (6th Cir. 1992) (holding that failure to provide prophylactic was issued after a further evidentiary hearing held in 2002, medication to prevent the possible future development of where expert testimony was offered by each party as to active tuberculosis is “actual injury,” even though prisoner compliance with fire safety codes and current conditions with did not develop active tuberculosis). respect to fire safety. In making its findings supporting the injunction, the district court incorporated its principal findings With respect to the subjective prong, there is no violation of its 2000 opinion finding fire safety conditions in the of the Eighth Amendment unless the defendant is “aware of affected buildings unconstitutional. the facts from which the inference could be drawn that a substantial risk of serious harm exists” and he draws “that Defendants have not attacked any of those factual findings inference.” Farmer, 511 U.S. at 837. Even if the defendant as clearly erroneous. Indeed, the only fact that they appear to draws such an inference, he is not liable if he took reasonable be challenging is the district court’s finding that a large steps to avert the harm. Id. at 844. Negligent exposure to a percentage of the prisoners in the general prison population risk is not sufficient to create an Eighth Amendment have health problems that would affect their ability to deal violation. Id. at 835-36. Rather, deliberate indifference can with smoke from possible fires. However, Defendants fail to No. 03-1334 Hadix, et al. v. Johnson, et al. 23 24 Hadix, et al. v. Johnson, et al. No. 03-1334

provide any record to support their position while Plaintiffs It is unclear whether the court simply (and erroneously) direct us to various exhibits and disclosures. concluded that the violation of the LSC or the BOCA is equivalent to a constitutional violation. Having reviewed the Defendants do argue that their expert, Mr. Carson, is better evidence before us, we conclude that the court abused its qualified than plaintiff’s expert, Mr. DiMascio. Mr. Carson discretion when it found that the current prison conditions at testified that the LSC properly applies to these existing the facilities in question are so unsafe as to violate the buildings and not the BOCA Code, and that the buildings Constitution and when it issued an injunction requiring substantially comply with the LSC even though the distance compartmentalization. that must be traveled to stairs exceeds the distance permitted under the Code and even though there is an insufficient The Fifth Circuit encountered a similar problem with fire exhaust system. This deficiency, Mr. Carson stated, was safety concerns in various institutions operated by the Texas compensated for by the large space of the building which Department of Corrections (“TDC”). Ruiz v. Estelle, 679 would dissipate smoke from a limited fire in a prisoner’s cell. F.2d 1115 (5th Cir. 1982). In Ruiz, the district court found Mr. Carson, however, gave no calculations as to what time that (1) the TDC prisons were woefully deficient in the that would take or how much smoke could be handled. On number of fire exits, (2) the few available exits in the housing the other hand, Plaintiffs’ expert calculated that the space was areas were too small and inadequately constructed to serve insufficient to dissipate the amount of smoke that could result effectively during an actual fire, and (3) a similar problem in from a fire in a cell, considering the amount of papers a work areas created a potential for serious injury in the face of prisoner could accumulate in his cell. Plaintiffs’ expert also a disaster. Concluding that these conditions violated the called attention to areas of the buildings which were not fully Eighth Amendment, the district court ordered TDC to comply sprinkled. However, sprinklers were installed in certain areas, with the current edition of the Life Safety Code of the both after Plaintiffs’ expert’s inspection and since the hearing. National Fire Protection Association. Id. at 1152-53. On the Furthermore, some of the hazards (e.g. unused transformers) other hand, the record contained “no evidence either of a have been or are in the process of being removed.19 If we single fatality or a serious injury at TDC caused by fire or were satisfied that the district court applied a proper standard smoke inhalation in the recent past. Although there is danger in its analysis, we would defer to its judgment about the from inflammable materials used inside the buildings, the credibility of the conflicting witnesses. buildings themselves are built of materials that do not burn easily.” Id. at 1153. The Fifth Circuit acknowledged that We reserve our judgment on the battle of the experts, TDC had a duty to provide adequate fire safety for its however, because the district court does not, in either its 2000 inmates. Nevertheless, it found that: or 2002 order, state the standard it is applying to find that the conditions relating to fire prevention and fire safety are The deficiencies in fire safety found at TDC, however, inadequate. It does not state in what particular ways do not constitute cruel and unusual punishment, either Defendants’ deficiencies were unconstitutional in 2002, alone or in combination with the other conditions in its merely reciting that it had found those conditions prisons. Indeed, the fire safety problems have little unconstitutional in 2000 and that they had not been remedied. connection with the other conditions found to violate the eighth amendment. Moreover, although the standards set by private organizations’ safety codes may be 19 The parties stipulated that these changes have taken place. instructive in certain cases, they simply do not establish No. 03-1334 Hadix, et al. v. Johnson, et al. 25 26 Hadix, et al. v. Johnson, et al. No. 03-1334

the constitutional minima; rather they establish goals complains is not one that today’s society chooses to recommended by the organization in question. tolerate. Id. (citations omitted) (emphasis added). In finding that Helling, 509 U.S. at 36. A review of cases dealing with fire private safety codes, such as the LSC, do not establish the safety in the constitutional context illustrates a continuum of constitutional minima, the Fifth Circuit relied on the various violations of fire safety, generally, and fire safety following footnote in a Supreme Court’s opinion: codes, specifically. Some of these amounted to a constitutional violation while others did not.20 See generally Respondents and the District Court erred in assuming Women Prisoners of the Dist. of Columbia Dep’t of Corr., that opinions of experts as to desirable prison conditions 877 F. Supp. 634, 669 (D.D.C. 1994) (finding that the suffice to establish contemporary standards of decency. following living conditions, working in concert, presented a As we noted in [an earlier case], such opinions may be risk of fire so serious that it violated contemporary standards helpful and relevant with respect to some questions, but of decency where (1) the dormitories were overcrowded and they simply do not establish the constitutional minima; carried a heavy combustible load; (2) the walls could not rather, they establish goals recommended by the contain a fire within any room; (3) only one fire exit organization in question. Indeed, generalized opinions of consistently remained unlocked; (4) there was no fire alarm experts cannot weigh as heavily in determining system; (5) there was no sprinkler system; and (6) fire drills contemporary standards of decency as the public attitude were not regularly conducted); Carty v. Farrelly, 957 F. toward a given sanction. We could agree that double Supp. 727, 737 (D.V.I. 1997) (finding a constitutional celling is not desirable, especially in view of the size of violation where (1) the cell locking devices, manual alarm these cells. But there is no evidence in this case that systems, smoke dampers, and heat detectors were inoperable, double celling is viewed generally as violating decency. thereby creating a security risk during a fire emergency, and (2) the building itself could not adequately protect the Rhodes, 452 U.S. at 348 n. 13 (citations omitted). The occupants during a fire because of an inadequate fire alarm Supreme Court more recently reiterated its commitment to system); Toussaint v. McCarthy, 597 F. Supp. 1388, 1410 “contemporary standards of decency” approach to claims of (N.D. Cal. 1984) (finding an Eighth Amendment violation alleged Eighth Amendment violations: where (1) lockup units at both prisons were replete with fire hazards; (2) evacuation procedures were nonexistent or, at [D]etermining whether McKinney’s conditions of best, untested; and (3) the record showed that multiple fire- confinement violate the Eighth Amendment requires related fatalities occurred); Capps v. Atiyeh, 559 F. Supp. 894, more than a scientific and statistical inquiry into the 915 (D. Or. 1983) (finding an Eighth Amendment violation seriousness of the potential harm and the likelihood that despite the absence of evidence of a death or serious injury such injury to health will actually be caused by exposure cause by fire or smoke inhalation at the facility because (1) to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency 20 to expose anyone unwillingly to such a risk. In other The citations that follow represent this continuum. The cases are words, the prisoner must show that the risk of which he listed in the order of the seriousness of the constitutional violations alleged, and/or proven, therein, from the more serious (and, hence, unconstitutional) cond itions to the less serious ones. No. 03-1334 Hadix, et al. v. Johnson, et al. 27 28 Hadix, et al. v. Johnson, et al. No. 03-1334

the prison was a very old structure unlike solid concrete 1986) (observing that “[t]he eighth amendment does not complexes approved by Ruiz; (2) the inmates, many of whom constitutionalize the Indiana Fire Code. Nor does it require are older, lived in crowded dormitories; (3) the facility needed complete compliance with the numerous OSHA regulations” either smoke detectors or a fire alarm system, and an and remanding to the district court to order only those emergency exit on the north end of the building; (4) the south remedies that are necessary to bring conditions above emergency exit was locked and only one guard could unlock constitutional minima); Miles v. Bell, 621 F. Supp. 51, 64-5 it; and (5) the ladder did not reach the ground); Leeds v. (D. Conn. 1985) (no constitutional violation even though the Watson, 630 F.2d 674, 675-76 (9th Cir. 1980) (remanding for laundry room door in prison was not a one-hour fire resistant further hearing on the adequacy of the plan to remedy door, as required by the LSC). constitutional violations where (1) “there is room for the belief that the second floor of the facility could still be a death In this case, the district court failed to identify the point at trap in the event of fire” because the only exit for inmates which certain fire safety deficiencies ceased being mere may be blocked by fire and the alternative means of regress deficiencies and, instead, became constitutional violations. would take too much time; and (2) “[t]here is still some As noted above, this Court was informed at oral argument possibility, moreover, that persons will be housed in ‘grave that Defendants have taken steps to remedy some of the emergencies’ in a locked cell area that has no fire exit.”); problems noted by the district court, such as removing the dry Santana v. Collazo, 714 F.2d 1172, 1182-83 (1st Cir. 1983) transformers from the basement and installing additional (remanding because the district court failed to adequately sprinklers. It is unclear to us whether those remedies are address “the evidence presented to it that conditions at sufficient to cure the constitutional violations at the Hadix Mayaquez are not as safe from the danger of fire as the facilities. constitution requires that they be” where (1) the polyurethane mattresses were used throughout the institution and that We understand that the judicial supervision over prison polyurethane is highly inflammable, burns quickly at high conditions is a daunting task. We cannot, however, accept the temperatures and emits extremely toxic gasses; (2) two approach taken by the district court in this case, namely, juveniles actually died several years ago in a fire that they set providing a laundry list of all the things that were wrong in to their mattresses; (3) fire extinguishers may not have been the Hadix facilities, declaring a constitutional violation, and properly changed; and (4) there was a need for an evacuation ordering a highly expensive, and potentially ineffective,21 plan in the event of fire); Masonoff v. DuBois, 899 F. Supp. solution. This approach renders it impossible for this Court 782, 798-99 (D. Mass. 1995) (finding that there is a triable to review on appeal the legal conclusions of the lower court. issue concerning the plaintiffs’ fire hazard claim where (1) it We owe deference to the district court’s decision to issue an was undisputed that the prison lacked automatic locks on the injunction to remedy the constitutional violations. However, cell doors and a functioning sprinkler system and (2) that the we must review de novo its legal conclusion that there were state building code applicable to the prison required a constitutional violations. Absence of a clear constitutional sprinkler system and encouraged the use of automatic door locks, but (3) where the prison may have mitigated any danger to withstand constitutional scrutiny when it 21 implemented rigorous fire safety procedures, including This Court has no evidence before it to explain the use of compartmentalization as a fire safety re med y. Nor was one provided to evacuation drills, fire drills and inspections of fire safety us by the counsel during the oral argument despite being asked by the equipment); French v. Owens, 777 F.2d 1250, 1257 (7th Cir. bench. No. 03-1334 Hadix, et al. v. Johnson, et al. 29

analysis in the present case by the lower court renders this task impossible. Accordingly, we remand this case for a more detailed analysis of how the current conditions in the Hadix facilities continue to be deprivations denying “the minimal civilized measure of life’s necessities” rather than potentially minor deviations that may satisfy the equivalency provisions of the LSC. Also, we remand for a more detailed analysis of why the steps taken by the prison officials, which the lower court may disagree with, constitute “deliberate indifference,” rather than a mere difference of opinion. CONCLUSION For the foregoing reasons, we conclude that the district court properly exercised jurisdiction over all facilities in question. However, we remand for a more detailed constitutional analysis on the question of fire safety violations.