Russell v. Johnson

United States Court of Appeals
Fifth Circuit

REVISED JULY 9, 2004
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 28, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
______________________ Clerk

No. 03-60529
______________________
NAZARETH GATES, etc., ET AL
Plaintiffs
versus
THOMAS D. COOK, etc., ET AL
Defendants
________________________________________________________
WILLIE RUSSELL, Etc., ET AL
Plaintiffs
WILLIE RUSSELL, on his own behalf and on behalf of those
similarly situated; SHERWOOD BROWN, on his own behalf and on
behalf of those similarly situated; KEVIN JORDAN, on his own
behalf and on behalf of those similarly situated; JOHN NIXON, on
his own behalf and on behalf of those similarly situated; PAUL
WOODWARD, on his own behalf and on behalf of those similarly
situated
Plaintiffs-Appellees
versus
ROBERT L. JOHNSON, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS, in his official capacity; CHRISTOPHER EPPS, Deputy
Commissioner, Mississippi Department of Corrections, in his
official capacity; EMMITT L. SPARKMAN, Superintendent,
Mississippi State Penitentiary, in his official capacity; JESSIE
STREETER, Warden, Area IV, Mississippi State Penitentiary, in his
official capacity; LARRY D. HARRIS, Captain, Unit Administrator,
Unit 32, Mississippi State Penitentiary, in his official capacity
Defendants-Appellants
__________________________________________________
Appeal from the United States District Court for
the Northern District of Mississippi, Eastern Division

___________________________________________________

1
Before DEMOSS, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

Willie Russell (“Russell”) brought suit in the Northern

District of Mississippi against officials of the Mississippi

Department of Corrections (“MDOC”) on behalf of himself and other

prisoners confined to Death Row, or Unit 32-C, in the Mississippi

State Penitentiary in Parchman, Mississippi. Russell alleges that

certain conditions of confinement on Death Row violate the Eighth

Amendment’s prohibition against cruel and unusual punishment. By

consent of the parties, the case was tried to the magistrate judge,

who found several Eighth Amendment violations and entered

injunctions designed to alleviate those conditions. MDOC

appealed.1 We affirm in part and vacate in part.2

1
Russell filed a motion to dismiss the appeal, arguing
that this court was without jurisdiction because the order from
which MDOC appeals was inherently tentative. We disagree. In
addition to having jurisdiction to review final decisions of
district courts, 28 U.S.C. § 1291, this court has jurisdiction to
review interlocutory decisions “granting, continuing, modifying,
refusing or dissolving injunctions.” 28 U.S.C. § 1292(a)(1).
The order from which MDOC appeals is the “Final Judgment” issued
on May 21, 2003. That order imposes ten detailed injunctive
requirements on MDOC. As Russell points out, the order also
requires MDOC to report its “progress in meeting the remedial
actions” on July 7. The requirement of a progress report does
not change the fact that the May 21st order grants injunctions
against Mississippi requiring immediate action. In fact, this
court granted MDOC a stay of this injunctive order to relieve
MDOC from the burden of compliance pending appeal. In short, the
May 21st order qualifies as an order granting an injunction;
thus, this court has jurisdiction pursuant to 28 U.S.C. §
1292(a)(1), and Russell’s motion to dismiss for lack of

2
 BACKGROUND

Russell argues that the prisoners housed on Death Row are

knowingly and deliberately subjected to profound isolation, lack of

exercise, stench and filth, malfunctioning plumbing, high

temperatures, uncontrolled mosquito and insect infestations, a lack

of sufficient mental health care, and exposure to psychotic inmates

in adjoining cells. On May 21, 2003, the trial court issued a

“Memorandum Opinion” containing its findings of fact and

conclusions of law in which the court found that a number of the

conditions alleged by Russell violated the Eighth Amendment’s

prohibition against cruel and unusual punishment. That same day,

the court also issued a “Final Judgment” in which it mandated that

MDOC comply with injunctive relief designed to alleviate those

conditions. MDOC timely appealed. The trial court denied MDOC’s

motion for a stay pending appeal. MDOC then filed a motion for

stay pending appeal with this court; we granted MDOC’s motion.

ANALYSIS

Should this case be dismissed because it was not brought in

accordance with the Gates v. Collier class action framework?

jurisdiction is denied.
2
As mentioned in Footnote 1, this court previously granted
MDOC’s motion for a stay of the injunctive relief pending appeal.
On March 31, 2004, Russell filed a motion to lift that stay. Due
to the filing of this opinion, the stay pending appeal is vacated
and Russell’s motion to lift the stay is denied as moot.

3
 MDOC first argues that this case should have been brought

under the framework for enforcing injunctive relief on the

Mississippi prison system provided by Gates v. Collier, 501 F.2d

1291 (5th Cir 1974). MDOC bases this argument on this court’s

decision in Gillespie v. Crawford, 858 F.2d 1101 (5th Cir 1998).

The plaintiff in Gillespie attempted to bring suit in federal

district court challenging prison conditions in Texas state prison.

At that time, a separate district court still retained jurisdiction

over Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980), a class

action that successfully challenged unconstitutional Texas prison

conditions, to monitor the prison system until the injunctions

issued in Ruiz had been met. See Gillespie, 858 F.2d at 1102. The

Gillespie court stated:

Separate individual suits may not be maintained for
equitable relief from allegedly unconstitutional
Texas prison conditions. To allow individual suits
would interfere with the orderly administration of
the class action and risk inconsistent
adjudications. Individual members of the class and
other prisoners may assert any equitable or
declaratory claims they have, but they must do so
by urging further action through the class
representative and attorney, including contempt
proceedings, or by intervention in the class
action.

Id. at 1103.

Gates involved alleged constitutional deficiencies in the

Mississippi prison system, and in 1998, after twenty-five years of

oversight, the District Court for the Northern District of

4
Mississippi finally dismissed the action from its inactive docket

as to state-owned, state-operated, and private-company-contracted

facilities (not as to county facilities), complimenting the state

on its compliance with prior orders. No. GC-71-6. The court

stated:

This dismissal shall be without prejudice for the
plaintiffs, through counsel, to petition the Court
to reopen the case or a portion thereof in order to
enforce, amend, or seek additional injunctive
relief. … This dismissal shall not apply to any
order of the court with respect to the payment of
attorneys fees and costs/expenses to plaintiffs’
counsel, who shall, post-dismissal, continue to
monitor compliance in state-owned, state-operated,
and private-company-contracted facilities…. [T]he
court finds and concludes that the rule of
[Gillespie] will continue to apply in this case
with respect to prisoners in state-owned, state-
operated, and private-company-contracted
facilities, and the court will continue to forward
such prisoner petitions to plaintiffs’ class
counsel.

No. GC-71-6. Thus, in writing this dismissal order for Gates, the

court apparently assumed that Gates was the sole vehicle for future

prisoner complaints. Although Russell argues that the court only

intended Gates as an option for seeking future equitable relief,

the court’s invoking the rule of Gillespie indicates that it was

meant to be the sole vehicle.

But it does not appear that the reasoning of Gillespie is

applicable here. The Gillespie court justified its rule as

follows:

5
 Permitting multiple courts to entertain equitable
claims and issue decrees that might affect the
Texas prison system would require other courts to
become familiar with the Ruiz decree, the current
problems of the Texas prison system, and the
possible disruptive effect of the exercise of
equitable powers over matters covered by the Ruiz
decree. Moreover, if separate suits for equitable
relief are filed in other districts than that in
which Ruiz is pending, even with respect to
problems not encompassed by the relief granted in
Ruiz, the court's orders may hobble the effect of
the Ruiz court's continuing decree over the Texas
prison system and its power both to enforce and to
modify that decree.

Id. at 1103. As this passage illustrates, the Gillespie court was

concerned with avoiding the inefficiency of a situation in which

multiple courts would be forced to familiarize themselves with the

problems of the Texas prison system. Similarly, the court was

concerned with the increased confusion and decreased effectiveness

that would likely arise if multiple district courts were

simultaneously exercising equitable powers over the state prison

system.

In the present case, the district court judge who was the

author of the Gates dismissal order assigned this case to this

magistrate judge in light of this magistrate’s previous experience

with Gates. Thus, we are not here faced with either the problem of

a new district court being forced to get up to speed on the

factually-intensive problems of the state prison system or with the

problem of multiple district courts simultaneously exercising

6
equitable powers over the prison system. Additionally, the

magistrate judge purported to consolidate this case with Gates

after certifying the death row inmates as a subclass of Gates.

MDOC argues that this is not sufficient, citing cases stating that

“consolidation does not merge [multiple] suits into a single

cause.” See, e.g.,Johnson v. Manhattan R. Co., 289 U.S. 479

(1933). Nevertheless, because of the consolidation and because the

same judge has jurisdiction over the present action and Gates, the

problems addressed by the Gillespie court are not present here.

MDOC points out that the Gates class counsel and class

representative are not being utilized. But MDOC does not

articulate what difference that makes, and we find it to be of no

import. In fact, this court has already recognized that it may be

proper for different counsel to represent a Gates subclass. See

Gates v. Cook, 234 F.3d 221, 227-30 (5th Cir 2000) (reversing the

district court’s denial of a motion for substitution of counsel by

a Gates subclass comprised of HIV-positive prisoners in the

Mississippi prison system). Because this case was dealt with by

the same court and judge who dealt with Gates and was consolidated

with Gates, the concerns behind Gillespie are not present here and

there is thus not any reason to dismiss this case.

Should this case have been dismissed because of the class members’

alleged failure to exhaust administrative remedies?

7
 MDOC argues that the judgment should be vacated and the case

dismissed because the trial court did not require all of the

inmates who are members of the present class to exhaust their

administrative remedies. The plaintiffs respond that the named

plaintiff, Russell, did exhaust his administrative remedies, and

that no more is required. MDOC disputes the plaintiffs’ contention

that Russell exhausted his administrative remedies.

The Prison Litigation Reform Act (“PLRA”) mandates that “[n]o

action shall be brought with respect to prison conditions ... by a

prisoner ... until such administrative remedies as are available

are exhausted.” 42 U.S.C.A. § 1997e(a). The Supreme Court has

held that “the PLRA’s exhaustion requirement applies to all inmate

suits about prison life, whether they involve general circumstances

or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532

(2002). The Court made clear that exhaustion is now mandatory.

Id. at 524. This court has held that the available administrative

remedy must be pursued to its conclusion. Wright v. Hollingsworth,

260 F.3d 357 (5th Cir 2001). Thus, if the plaintiffs did not

exhaust administrative remedies, this suit should be dismissed.

The trial court found that Russell was the only class member

who had completed the MDOC Administrative Remedy Program (“ARP”).

If true, this is enough to satisfy the requirement for the class.

See, e.g., Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498-99

(5th Cir. 1968) (exhaustion of remedies requirement satisfied for

8
class action if named plaintiff representing class exhausted

remedies); 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE: CIVIL 2d § 1776 (2d ed. 1986) (“[W]hen

prospective relief is the primary remedy being sought, a

representative who has exhausted his administrative remedies may

bring a class suit on behalf of those who have not done so.”).

Thus, if Russell completed the ARP, exhausting administrative

remedies, this case was ripe for adjudication. Again, the trial

court found that Russell had completed the ARP and that the record

adequately reflected Russell’s and his counsel’s steps taken

through the administrative remedy process. MDOC disagrees.

MDOC maintains that the ARP is a three-step process: 1) the

inmate writes a letter3 to the Superintendent/Deputy Commissioner

in care of the Legal Claims Adjudicator that is referred to a

respondent by the Legal Claims Adjudicator; 2) if dissatisfied, the

inmate may request relief from the Superintendent/Deputy

Commissioner; 3) if dissatisfied, the inmate may appeal to the

Commissioner in care of the ARP Administrator. The Commissioner

will notify the inmate of his final decision within forty days of

receiving the appeal. If a request is rejected for technical

reasons or matters of form, the inmate is given five days from the

date of rejection to file a corrected grievance. The ARP also

3
The ARP rules indicate that the letter should state that it
is a request for an administrative remedy and should present as
many facts as possible.

9
provides that “[n]o more than ninety (90) days from initiation to

completion of the process shall elapse, unless an extension has

been granted” and that “expiration of response time limits without

receipt of a written response shall entitle the offender to move on

to the next step in the process.”4

The ARP rules also provide that an inmate may make a request

for emergency review by sending an emergency request to the Legal

Adjudicator “to determine to what level the grievance must be

forwarded if substantive actions must occur. The request shall be

handled as expeditiously as possible, and shall be reviewed at the

Commissioner’s level by the Commissioner or his designee.” The

emergency review procedures further provide that, if the grievance

is ruled not to be an emergency, it “may be resubmitted as a

regular grievance” and that “[a]buse of the emergency review

process ... shall be treated as a frivolous or malicious request.”

The emergency review procedure thus expedites the review process in

certain situations so that the request can be dealt with

4
Although no part of the ARP rules provide for a
certificate of completion, MDOC asserts that the inmate receives
a certificate of completion upon finishing the ARP. Under the
prior version of section 1997e, before its amendment in 1996, the
administrative remedy was required to be certified. 42 U.S.C. §
1997e(a)(2)(1994)(amended 1996). The 1994 district court order
certifying the ARP under the prior version of the statute
required inmates to complete the procedure and to attach a
certificate to that effect to their complaint.

10
expediently at the Commissioner’s level.5 The ARP does not provide

a definitive end for the emergency review procedure, but, as the

emergency review procedure facilitates quicker review at the

Commissioner’s level, it follows that the requirement that the

Commissioner provide a written answer within forty days of

receiving the complaint likewise applies to the emergency review

procedure.

Russell maintains that he exhausted his administrative

remedies by utilizing the emergency review process. On January 31,

2002, Russell’s counsel delivered to MDOC Commissioner Johnson a

document titled “Emergency Request by Inmate Willie C. Russell for

5
MDOC argues that the emergency request procedure only
provides a mechanism for temporary relief and does not excuse an
inmate from pursuing relief through the three-step ARP process.
Thus, MDOC maintains that Russell did not exhaust administrative
remedies because, in addition to utilizing the emergency relief
process, he did not complete the three-step process culminating
in a certificate of completion.
But MDOC’s contention is simply not supported by the
language of the policy outlining the ARP process. The portion of
that policy detailing the procedure for emergency relief requests
does not indicate that the inmate must simultaneously proceed
through the three-step process. In fact, it refers to the
regular grievance process only as an alternative when an
emergency request has been deemed to be a non-emergency. MDOC
never rejected the emergency request nor advised Russell to
resubmit it as a regular grievance. The policy does not indicate
that the emergency request procedure is simply designed to
provide stop-gap measures while the request proceeds through the
normal administrative procedures. The most natural reading of
the policy leads to the conclusion that the emergency request
procedure simply expedites the administrative process by allowing
the request to be reviewed at the Commissioner’s level without
having to proceed through the entire three-step process in
limited circumstances.

11
an Administrative Remedy Concerning Conditions on Death Row,”

complaining of the conditions at issue here and requesting a

meeting to discuss these problems in an effort to avoid

litigation.6 On March 8, before a March 12 meeting with

Commissioner Johnson, Russell’s counsel sent the Commissioner a

memorandum, outlining the complained of conditions on Death Row in

greater detail.

On April 1, Russell’s counsel sent a third letter to

Commissioner Johnson referencing the original emergency request for

an administrative remedy. This letter noted that Commissioner

Johnson had agreed to remedy such conditions, if they existed, at

the March 12 meeting. It further asked MDOC to respond by May 1 so

as to inform Russell whether it would be able to make the necessary

repairs by June 1. On April 15, Johnson sent a letter to Russell’s

counsel asserting that Russell’s concerns regarding ventilation

(heat) had been addressed by simply drilling some holes in the

metal sheet on his cell door and that the concerns regarding

6
Although the form was submitted directly to Commissioner
Johnson instead of being sent through the Legal Adjudicator, MDOC
never rejected the request for technical reasons or for matters
of form. To the contrary, as discussed below, MDOC addressed the
substance of Russell’s request, albeit with some delay. As MDOC
ignored this technical defect but instead addressed Russell’s
request at the administrative level and denied it for matters of
substance, it cannot now claim that Russell failed to exhaust
based on this technical defect. Cf. Wendell v. Asher, 162 F.3d
887, 890 (5th Cir. 1998) (stating that the exhaustion requirement
imposed by the PLRA is subject to the defenses of waiver and
estoppel).

12
sanitation and pest control were unwarranted. On June 14,

Russell’s counsel sent Johnson a final letter reiterating Russell’s

complaints and disputing Johnson’s April 15th denial of the accuracy

of the inmates’ claims; Commissioner Johnson never responded.

Throughout these negotiations, MDOC never rejected the emergency

request on technical grounds or for matters of form nor advised

Russell to resubmit it as a regular grievance. On the contrary,

MDOC addressed Russell’s core concerns by simply disagreeing with

Russell’s characterization of the conditions on Death Row.

We agree with the trial court that Russell concluded the ARP

and thus exhausted administrative remedies. Initially, MDOC failed

to comply with ARP procedures by failing to deal with Russell’s

complaint within the time limits provided by the ARP. Over ninety

days expired between the time that Russell initiated the process

and the time he finally filed suit, and Commissioner Johnson did

not provide a written response to Russell’s complaint within the

forty day period. Available administrative remedies are exhausted

in compliance with the PLRA when the time limits for the prison’s

response set forth in the prison grievance procedures have expired.

Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998). Similarly,

per the terms of the ARP, Commissioner Johnson’s failure to provide

a written response to Russell’s complaint within the forty day

period entitled Russell to “move on to the next step in the

process.” As review at the Commissioner’s level constitutes the

13
final step in the process, Russell was then entitled to file suit.

Finally, even if MDOC was allowed to unduly delay the

administrative process in violation of the terms of the ARP by

failing to provide an answer from Commissioner Johnson within the

forty day period, the April 15th letter denied that relief was

warranted, effecting a rejection of the claim. That letter thus

terminated the administrative process, as evidenced by Commissioner

Johnson’s refusal to respond to any further communications

regarding these complaints. We agree with trial court’s conclusion

that Russell completed the ARP by utilizing the procedure for

emergency review. Thus, Russell, and by extension the plaintiffs,

properly exhausted administrative remedies.

Should the injunctions be vacated on the grounds that they are not

justified by conditions constituting cruel and unusual punishment

in violation of the Eighth Amendment?

The Eighth Amendment Standard

MDOC argues that none of the provisions of the injunctive

decree were warranted by conditions constituting Eighth Amendment

violations. The Eighth Amendment dictates that cruel and unusual

punishment shall not be inflicted, U.S. CONST. amend. VIII, and it

is applicable to the States by reason of the Due Process Clause of

the Fourteenth Amendment. Robinson v. California, 370 U.S. 660,

675 (1962). The treatment a prisoner receives in prison and the

14
conditions under which he is confined are subject to scrutiny under

the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 31 (1993).

The Constitution does not mandate comfortable prisons, but

neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S.

825, 832 (1994). Prison officials must provide humane conditions

of confinement; they must ensure that inmates receive adequate

food, clothing, shelter, and medical care, and must take reasonable

measure to ensure the safety of the inmates. Id. This circuit has

worded the test as requiring extreme deprivation of any "minimal

civilized measure of life's necessities.” Davis v. Scott, 157 F.3d

1003, 1006 (5th Cir 1998). Further, mental health needs are no

less serious than physical needs. Partridge v. Two Unknown Police

Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th Cir.

1986). The Supreme Court has made clear that the standards against

which a court measures prison conditions are "the evolving

standards of decency that mark the progress of a maturing society"

and not the standards in effect during the time of the drafting of

the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 50 L.

Ed. 2d 251, 97 S. Ct. 285 (1976) (internal quotation omitted).

A prison official has violated the Eighth Amendment when he 1)

shows a subjective deliberate indifference to 2) conditions posing

a substantial risk of serious harm to the inmate. Farmer, 511 U.S.

at 833-34. Whether a prison official had the requisite knowledge

of a substantial risk is a question of fact subject to

15
demonstration in the usual ways, including inference from

circumstantial evidence, and a factfinder may conclude that a

prison official knew of a substantial risk from the very fact that

the risk was obvious. Id. at 842.

Conditions of confinement may establish an Eighth Amendment

violation "in combination" when each would not do so alone, but

only when they have a mutually enforcing effect that produces the

deprivation of a single, identifiable human need such as food,

warmth, or exercise -- for example, a low cell temperature at night

combined with a failure to issue blankets. Wilson v. Seiter, 501

U.S. 294, 304 (1991). The Supreme Court has noted that "the length

of confinement cannot be ignored.... A filthy, overcrowded cell ...

might be tolerable for a few days and intolerably cruel for weeks

or months.” Hutto v. Finney, 437 U.S. 678, 686-87 (1978). It is

also important to note that the inmate need not show that death or

serious illness has occurred. Helling, 509 U.S. at 32 (“It would

be odd to deny an injunction to inmates who plainly proved an

unsafe, life-threatening condition in their prison on the ground

that nothing yet had happened to them.”).

Standard of Review

MDOC argues that many of the trial court’s findings of fact

were clearly erroneous. In reviewing the factual findings, this

court employs a “clearly erroneous” standard. Alberti v.

Klevenhagen, 790 F.2d 1220, 1224 (5th Cir 1986). A finding is

16
clearly erroneous when, although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.

Id. Whether the official showed a deliberate indifference to the

condition is a factual finding that is reviewed under a “clearly

erroneous” standard. Brice v. Virginia Beach Correctional Ctr., 58

F.3d 101, 105 (4th Cir. 1995). Once the facts are established, the

issue of whether the facts constitute a constitutional violation is

a question of law to be reviewed de novo. Alberti, 790 F.2d at

1224. If a constitutional violation is found, we employ an abuse

of discretion standard in reviewing the equitable remedy itself.

Swann v. Charlotte - Mecklenburg Bd. of Educ., 402 U.S. 1, 15-16

(1971).

The Trial Court’s Factual Findings

The trial court made the following findings of fact, inter

alia, as to the conditions on Parchman’s Death Row.

Sanitation

Inmates have been subjected to cells that were extremely

filthy with chipped, peeling paint, dried fecal matter and food

encrusted on the walls, ceilings, and bars, as well as water from

flooded toilets and rain leaks. Inmates are routinely moved from

cell to cell and are forced to clean their new cells that may have

been left in horrendous sanitation by the prior occupants,

17
especially if the occupant were mentally ill. Adequate cleaning

supplies and equipment are not routinely made available for inmates

to clean their cells. These filthy conditions contribute to the

infestation of pests and play a role in the mental well-being of

inmates. Russell v. Johnson, 2003 U.S. Dist. LEXIS 8576 at *4-5

(N.D. Miss.).

Heating and Cooling

The summer temperatures in the Mississippi Delta average in

the nineties with high humidity, and Death Row is primarily not an

air-conditioned facility. There are industrial type fans in the

hallways to help with air circulation, and most inmates have

smaller fans. Relief from the heat can be obtained by keeping the

windows open in the cell using fans. But keeping the windows open

increases the mosquito population in the cells since there are

holes in the cell window screens and the screen gauge is not

sufficient to keep mosquitoes out. The ambient temperature in the

cells is within reasonable limits except during the summer months.

The ventilation is inadequate to afford prisoners a minimal level

of comfort during the summer months. The probability of heat-

related illness is extreme on Death Row, and is dramatically more

so for mentally ill inmates who often do not take appropriate

behavioral steps to deal with the heat. Also, the medications

often given to deal with various medical problems interfere with

the body’s ability to maintain a normal temperature. The inmates

18
are not afforded extra showers, ice water, or fans if they don’t

have fans when the heat index is 90 or above. The heat problem

extends to all of Death Row and possibly throughout Parchman. Id.

at *5-7.

Pest Control

The heat problem also exacerbates the problem of pest control.

Mosquitoes in Mississippi, and the Delta in particular, are a

problem that cannot be eliminated. But the problem must be

addressed and the impact lessened, especially with the incidence of

West Nile virus, a mosquito-born disease increasing in Mississippi.

Inadequate screening on the cell windows causes the inmates to

choose between suffering from the heat or increasing the mosquitoes

in their cells. The problems of heat and mosquitoes must be

addressed to provide the inmates with conditions that would meet

minimal constitutional standards. The problem of roaches and other

vermin will be met by adhering to the ACA standards and by meeting

the sanitation goals the court will set. Id. at *7.

“Ping-Pong” Toilets and Plumbing

Fecal and other matter flushed by a toilet in one cell will

bubble up in the adjoining cell unless the toilets are flushed

simultaneously. This has been a problem since the unit opened.

Parchman officials have identified the problem as one of

calibration, especially if the water is shut off. The toilets must

be recalibrated to work properly. Recalibration has helped, but

19
not eliminated, the problem of ping-pong toilets. No one in

civilized society should be forced to live under conditions that

force exposure to another person’s bodily wastes. The showers,

water temperature, and quality of water are adequate. Id. at *7-8.

Lighting

The lighting in the cells is grossly inadequate. While 20

foot-candles7 is the appropriate level of lighting for the cells,

the maximum foot-candles measured by Russell’s expert was seven or

eight, with the typical cell being in the 2-4 foot-candle range.

Id. at *9-10.

Preventive Maintenance Program

The preventive maintenance program instituted by MDOC appears

to be adequate, although it should be in writing. Id. at *10.

Laundry

The inmates’ laundry is returned foul-smelling, necessitating

the inmates to wash their clothes in their cells. The inmates are

entitled to laundry that is clean and not foul-smelling. Id.

Mental Health Issues

7
A foot-candle is “[a] unit of measure of the intensity of
light falling on a surface, equal to one lumens per square foot
and originally defined with reference to a standardized candle
burning at one foot from a given surface.” THE AMERICAN HERITAGE
COLLEGE DICTIONARY 530 (3rd ed. 1993).

20
 At least six severely psychotic prisoners are housed on Death

Row, and many more are diagnosed with quantifiable mental health

problems. The extremely psychotic prisoners scream at night, throw

feces, and generally make life miserable for the other inmates and

guards. As stated by Dr. Kupers, a psychiatry professor and expert

for Russell, “it boils down to warehousing people with severe

mental illness ... some are medicated, but there is essentially no

other mental health services.” The mental health care afforded the

inmates on Death Row is grossly inadequate. The isolation of Death

Row, along with the inmates’ pending sentences of death and the

conditions on Death Row are enough to weaken even the strongest

individual. What mental health services are provided generally

take place at the inmate’s cell within hearing of other inmates and

guards. This results in the failure of inmates to tell the mental

health specialists anything of substance. Moreover, comprehensive

mental health evaluations are consistently inadequate. Inmates are

also prescribed psychotropic drugs with only sporadic monitoring.

This can result in life-threatening situations due to the toxicity

of these drugs. Appropriate treatment of mentally ill inmates will

in turn help address the issues of excessive noise and sanitation

problems caused by severely psychotic inmates. Id. at *11-12.

Exercise

Proper exercise is advantageous for mental health and well-

being. The exercise facilities provided are adequate. While, in

21
general, the use of “flip-flops” is understandable as a security

measure, such shoes do not allow effective exercise. The inmates

should be given access to sneakers prior to entering the exercise

pen and should be given access to water and shade while exercising.

Id. at 12.

The Trial Court’s Conclusions of Law

The court concluded that the conditions identified in the

court’s findings of fact constituted Eighth Amendment violations

because they posed a substantial risk of harm to the inmates’

health and, based on the obvious nature of these risks, the prison

officials showed a deliberate indifference to such harm.

Injunctive Relief Entered by the Trial Court

The court directed the following remedial actions.

1. If defendants wish to continue the practice of
moving inmates from cell to cell in Unit 32-C, they
will insure that the cell to which an inmate is
moved is clean prior to the move. While an inmate
should be required to keep his own cell clean, he
should not be required to clean the cell of another
inmate in order to inhabit it.

2. Adequate cleaning supplies and equipment shall
be provided inmates in order that they may clean
their cells at least weekly.

3. A general preventive maintenance schedule and
program shall be reduced to writing within 60 days
of this order.

22
4. Defendants shall take the necessary
measurements in the unit in order to determine the
heat index on the individual tiers. These
measurements shall be taken daily at 10:00 a.m.,
1:00 p.m., 4:00 p.m., and 7:00 p.m. during the
months of May through September and at 1:00 p.m. in
all other months. If the heat index reaches 90
degrees or above, the defendants will insure that
each cell is equipped with a fan, that ice water is
available to each inmate, and that each inmate may
take one shower during each day when the heat index
is 90 degrees or above. As an alternative, the
defendants may provide fans, ice water, and daily
showers during the months of May through September.
This remedy shall apply to all of Unit 32.

5. The defendants shall continue their efforts at
mosquito eradication and pest control. The
defendants shall also insure that all cell windows
are repaired and screened with 18 gauge window
screen or better. This remedy shall apply to all
of Unit 32.

6. The defendants shall insure that the problem of
“ping-pong” toilets in Unit 32 as a whole is
addressed. The defendants shall provide to the
court within 60 days the details of a plan to
eradicate this problem. The court is not convinced
that recalibration is sufficient, but will await
the defendants’ report on their plan.

7. The defendants shall also upgrade the lighting
in Unit 32 as a whole to provide lighting in each
cell equal to 20 foot-candles.

8. The defendants shall insure that the proper
chemical agents are used at the laundry so that
inmates’ laundry is returned clean and without a
foul smell.

9. The defendants shall insure that the new vendor
for medical services complies with the ACA and the
National Commission on Correctional Healthcare
medical and mental health standards. Each inmate
on Death Row shall be given a comprehensive mental

23
 health examination in private. These comprehensive
examinations shall be conducted on a yearly basis.
Those inmates diagnosed with psychosis and severe
mental health illnesses shall be housed separately
and apart from all other inmates. The medication
levels of all inmates receiving psycotropic
medications shall be monitored and assessed in
accordance with appropriate medical standards. All
inmates receiving mental health counseling or
evaluation shall meet with the mental health
professionals in a private setting.

10. The inmates on Unit 32-C shall continue to
receive the opportunity to exercise as currently
available. However, the inmates shall be given the
opportunity to wear sneakers while exercising if
they prefer rather than “flip-flops.” A shaded
area for exercise shall be provided with access to
water.

Russell v. Johnson, 2003 U.S. Dist. LEXIS 8573 at *1-4 (N.D.

Miss.).8

8
MDOC makes a cursory argument that the injunctions must be
reversed because the trial court failed to make particularized
findings required by the PLRA, 18 U.S.C. § 3626(a). There are
multiple problems with this argument. The first is that MDOC
never presented this argument to the trial court. This court
does not generally review issues raised for the first time on
appeal. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). Additionally, MDOC cites Castillo v. Cameron County, 238
F.3d 339, 351 (5th Cir. 2001), for the proposition that a court
must make particularized findings, on a provision-by-provision
basis, that each injunction is narrowly drawn, goes no further
than necessary to correct the violation, and is the least
intrusive means of correcting the violation. But MDOC’s reliance
on Castillo is misplaced. Castillo requires such findings to be
made when the district court holds that prior injunctive relief
should not be terminated, relying on section 3262(b)(3). Id. at
351-54. Section 3262(b)(3) on its face requires such written
findings. Conversely, section 3262(a)(1), which applies to
prospective relief and is thus applicable here, does not.

24
Is the injunctive relief entered by the trial court justified by

conditions in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment?

MDOC asserts that, as to several of the injunctions

(Injunctions #2, #5, #6, #7, and #9), it is already meeting,

intending to meet, or attempting to meet the standards enunciated

by the trial court. Thus, MDOC argues, the injunctions are not

required. But MDOC’s assertions that it intends to meet these

standards do not suffice to moot the issue. It is well settled

that a defendant's voluntary cessation of a challenged practice

does not deprive a federal court of its power to determine the

legality of the practice. Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000) (citations

omitted). If it did, the courts would be compelled to leave “the

defendant . . . free to return to his old ways.” Id. In accordance

with this principle, the standard for determining whether a case

has been mooted by the defendant's voluntary conduct is stringent:

"A case might become moot if subsequent events made it absolutely

clear that the allegedly wrongful behavior could not reasonably be

expected to recur." Id. The "heavy burden of persuading" the

court that the challenged conduct cannot reasonably be expected to

start up again lies with the party asserting mootness. Id. The

trial court’s citation to Friends of the Earth accompanied by its

assertion that Russell’s claims were not moot indicates that the

25
trial court was not persuaded. The fact that many of these

conditions have persisted for years despite MDOC’s purported

efforts leads us to likewise conclude that MDOC has not met the

heavy burden of showing that its voluntary conduct has mooted any

of the issues presented here.

Similarly, MDOC also argues, as to several of the

injunctions, that Parchman’s accreditation by the American

Correctional Association (“ACA”) is proof that the conditions in

question don’t violate the Eighth Amendment. But it is absurd to

suggest that the federal courts should subvert their judgment as to

alleged Eighth Amendment violations to the ACA whenever it has

relevant standards. Additionally, the ACA’s limited inspections

are not be binding as factual findings on the magistrate or on this

court. While compliance with ACA standards may be a relevant

consideration, it is not per se evidence of constitutionality. See

Ruiz v. Johnson, 37 F. Supp. 2d 855 924-25 (S.D. Tex. 1999)

(recognizing the limitations of ACA accreditation and noting

situations where it has not equated to constitutionality), rev’d on

other grounds, 178 F.3d 385.

MDOC finally argues that none of the injunctions are based on

Eighth Amendment violations and, thus, that all of the injunctions

must be reversed. Using the relevant Eighth Amendment standard, we

will examine each of the injunctions in turn.

Injunctions #1 and #2

26
 MDOC argues that the first injunction, which prohibits MDOC

from requiring inmates to clean the cells into which they are

transferred, cannot stand because there was no proof of any medical

injury or illness resulting from this practice. MDOC similarly

maintains that the second injunction, which requires that adequate

cleaning supplies be provided to the inmates at least weekly, is

unsupported by any evidence of medical illness arising from this

situation or a showing of deliberate indifference by MDOC

officials. MDOC also contends that cleaning supplies are regularly

issued to inmates and that the cells were clean as of the date of

trial.

This court has previously held that filthy cell conditions may

constitute an Eighth Amendment violation. See Harper v. Showers,

174 F.3d 716, 720 (5th Cir 1999). Other circuits have made similar

holdings; the Eighth Circuit has held that a prisoner being placed

in a cell covered with filth and human waste for a two-year period

without proper cleaning supplies constitutes cruel and unusual

punishment. Howard v. Adkison, 887 F.2d 134, 137 (8th Cir. 1989)

(recognizing that “inmates are entitled to reasonably adequate

sanitation, personal hygiene, and laundry privileges, particularly

over a lengthy course of time”); see also McBride v. Deer, 240 F.3d

1287, 1292 (10th Cir. 2001) (holding that three days in a feces-

covered cell states a claim upon which relief could be granted).

27
 Russell points to testimony adduced at the trial court

indicating that the cells were “extremely filthy” with crusted

fecal matter, urine, dried ejaculate, peeling and chipping paint,

and old food particles on the walls. Living in such conditions

would present a substantial risk of serious harm to the inmates,

and we cannot say that trial court’s decision to credit this

testimony was clearly erroneous. Also, in light of substantial

testimony indicating that such conditions were not atypical and

were easily observed, we cannot say that the trial court’s

conclusion that MDOC officials showed a deliberate indifference to

this risk is clearly erroneous. Further, the testimony was

conflicting as to the frequency and quality of the provision of

cleaning supplies, and we cannot say that the trial court’s

conclusion to credit testimony supporting the inadequacy of

cleaning supplies was clearly erroneous. As living in such filthy

conditions would present the inmates with a risk of serious harm to

which MDOC officials have displayed a deliberate indifference,

Injunctions #1 and #2 were justified by an Eighth Amendment

violation. They are, therefore, affirmed.

Injunction #3

MDOC challenges the third injunction, which directs MDOC to

reduce a general preventive maintenance schedule and program to

writing. MDOC argues that there is no evidence supporting the

elements required for a finding of cruel and unusual punishment

28
that would support this injunction. Russell responds that “[t]he

risks of squalid conditions and the constantly recurring break-down

of the water, plumbing, and other operating systems were obvious,”

and Russell’s environmental health and safety expert testified that

the same problems would continue to recur if MDOC did not put a

written plan in place.

While federal courts can certainly enter injunctions to

prevent Eighth Amendment violations, they are not to micromanage

state prisons. Bell v. Wolfish, 411 U.S. 520, 562 (1979). The

trial court entered injunctions to directly remedy each of the

complained-of conditions that rise to the level of an Eighth

Amendment violation. Russell has cited no case that supports the

proposition that the trial court can further affect the internal

operations of MDOC by requiring it to produce a writing preventive

maintenance program to which it will adhere. The additional

requirement of a written preventive maintenance program, while

desirable, is not independently supported by additional conditions

that constitute an Eighth Amendment violation, and it cannot stand.

Thus, we vacate that injunction.

Injunction #4

The fourth injunction directs MDOC to provide fans, ice water,

and daily showers when the heat index is 90 degrees or above, or

alternatively to make such provisions during the months of May

through September. The injunction also purports to apply to all of

29
Unit 32, as opposed to only Unit 32-C. Initially, it is important

to note that the class represented by Russell consists entirely of

Parchman’s Death Row prisoners, who are housed in Unit 32-C. Thus,

to the extent that the injunction purports to apply to parts of

Unit 32 beyond Unit 32-C, it exceeds the scope of the litigation

and is therefore invalid. See Thomas v. County of Los Angeles, 978

F.2d 504, 509-10 (9th Cir. 1992) (reversing an injunction as

overbroad when it purported to apply to the entire Los Angeles

County Sheriff’s Department although the plaintiff’s complaint and

evidence only applied to one specific station).

MDOC contends that no Unit 32-C inmate has ever suffered any

serious heat-related illness. But, as noted above, Russell does

not need to show that death or serious illness has yet occurred to

obtain relief. He must show that the conditions pose a substantial

risk of harm to which MDOC officials have shown a deliberate

indifference. Russell presented the court with expert testimony

from Dr. Vassallo9 that it was “very likely” that, under current

conditions on Death Row, an inmate will die of heat stroke or some

other heat-related illness. In fact, Dr. Vassallo’s testimony

indicated that Death Row prisoners had made many complaints of

9
Dr. Vassallo is a faculty member of the Department of
Surgery and Division of Emergency Medicine at New York University
School of Medicine and is a medical toxicologist at the New York
Regional Poison Control Center. She has lectured extensively on
thermoregulation and hyperthermia (heat illness) and has authored
the “Thermoregulatory Principles” chapter of Goldfrank’s
Toxicologic Emergencies, a textbook on medical toxicology.

30
symptoms commonly recognized to be related to heat-related illness

and that those conditions had simply gone undiagnosed.

MDOC further cites language from Woods v. Edwards, 51 F.3d 577

(5th Cir. 1995), in which Woods, a prisoner at the Louisiana State

Penitentiary at Angola, claimed, inter alia, that the conditions in

extended lockdown were unconstitutional. Extended lockdown

isolates inmates as punishment for disciplinary violations. One of

Woods’ claims was that the cell used in his extended lockdown was

inadequately cooled and that the high temperature aggravated his

sinus condition. Id. at 581. This court noted that Woods “failed

to present medical evidence of any significance.” Id. This court

went on to state: “[w]hile the temperature in extended lockdown may

be uncomfortable, that alone cannot support a finding that the

plaintiff was subjected to cruel and unusual punishment in

violation of the Eighth Amendment.” Id. The Woods court found

that Woods had not presented medical evidence sufficient to state

an Eighth Amendment violation; Woods does not stand for the

proposition that extreme heat can never constitute cruel and

unusual punishment. Finally, MDOC points out that the Seventh

Circuit has held that one shower a week is sufficient. Davenport

v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir. 1988). But

Davenport is inapt, as it dealt only with cleanliness while the

testimony upon which this injunction rests indicated that cold

showers would help alleviate the risk of heat-related illness.

31
 Based on the evidence presented, we cannot say that the trial

court’s finding that the probability of heat-related illness is

extreme at Unit 32-C was clearly erroneous. Thus, this condition

presents a substantial risk of serious harm to the inmates. Again,

based on the open and obvious nature of these conditions and the

evidence that inmates had complained of symptoms of heat-related

illness, the trial court’s finding regarding MDOC’s deliberate

indifference is not clearly erroneous. Thus, Injunction #4 was

justified by an Eighth Amendment violation, and it is affirmed

insofar as it applies to Unit 32-C.10

Injunction #5

The fifth injunction requires MDOC to continue its efforts at

pest control and, more specifically, to ensure that all cell

windows are repaired and screened with 18 gauge window screen or

better. Injunction #5 purports to apply to all of Unit 32.

Initially, like Injunction #4, to the extent that Injunction #5

purports to apply to parts of Unit 32 beyond Unit 32-C, it is

invalid.

10
In a footnote in its brief, MDOC asserts that the extra
showers ordered by the trial court would cause a major prison
security problem. Russell replies that no such evidence was
presented at trial and, thus, that the trial court should be
given the first opportunity to rule on this issue. In their
reply brief, MDOC admits that such evidence was only presented to
the court as part of MDOC’s July 2003 progress report. But only
the May 21, 2003, final order of the trial court is currently
under review, not any subsequent monitoring of the trial court’s
injunctive relief. This issue is thus not before us.

32
 MDOC first argues that there is no basis for a federal court

to order MDOC to continue to do what it is already doing. But, as

discussed above, the pest infestation problems persist, and MDOC

has not met the burden of convincing the trial court or this court

that its efforts at pest control have mooted this issue. MDOC

also argues that the evidence shows that there were no holes in the

screens at the time of trial. But the trial court was presented

with testimony that there were cells with holes in the screens,

and, in any event, the insufficient gauge on the screens would

allow the infestation problem to continue even in absence of holes

in the screens.

MDOC argues generally that Russell did not show either a

substantial risk of harm to the inmates or deliberate indifference

on the part of MDOC officials. But the trial court was presented

with testimony that insects swarm in the inmates’ food and beds and

that the inmates often must choose between opening the window for

relief from the heat or closing the window for protection from

mosquitoes, as the gauge on the screens is too large to keep out

the mosquitoes. It is important to recognize that this injunction

is supported by the trial court’s findings on heat, as the court

noted that the mosquito infestation accompanied by the insufficient

screen gauge exacerbated the heat problems by deterring the inmates

from opening their windows to increase circulation. In addition to

the risk of heat-related illness, the pest infestation problems

33
were linked to chronic sleep deprivation, which exacerbates the

symptoms of mental illness. As Injunction #5, like Injunction #4,

is supported by the constitutional violation stemming from the

excessive heat, it is affirmed as to Unit 32-C.

Injunction #6

The sixth injunction requires MDOC to remedy the problem of

“ping-pong” toilets. Like Injunctions #4 and #5, this injunction

is invalid to the extent it purports to apply to parts of Unit 32

outside of Unit 32-C.

MDOC argues that there is no evidence of any serious medical

problem stemming from the ping-pong toilets and, further, that in

absence of objective evidence of such a problem there can be no

finding of deliberate indifference on the part of MDOC officials.

MDOC cites Tokar v. Armontrout, 97 F.3d 1078 (8th Cir. 1996), for

the proposition that exposure to raw sewage is not cruel and

unusual punishment where there has been no demonstration of an

adverse medical reaction. But MDOC seriously misconstrues Tokar.

Tokar complained generally that the prison toilets were “filthy”

without specifying how long the toilets remained filthy and while

acknowledging that he had not asked for cleaning supplies because

cleaning the toilets was the job of other inmates. Id. at 1081.

The facts of Tokar are quite different from the facts presented

here, in which inmates have regularly been exposed to each others’

feces for over a decade. In fact, the Eighth Circuit’s

34
recognitions that exposure to waste may constitute cruel and

unusual punishment and that the length of time a prisoner must

endure unsanitary conditions is undoubtedly a factor in the

constitutional calculus, id. at 1082 n.4, both weigh in Russell’s

favor. While evidence of a past medical injury would clearly

strengthen Russell’s case, Russell does not have to prove a past

medical injury. He must prove a substantial risk of serious harm

and MDOC officials’ deliberate indifference to that harm.

Russell points to expert testimony stating that the situation

presented when the feces of one inmate bubbles up in the

neighboring cell, exacerbated when the toilets overflow, does

constitute a serious health hazard. Russell also presented evidence

to the trial court that the Mississippi State Department of Health

warned MDOC every year for the past eleven years that the

malfunctioning toilets in Unit 32-C are a critical public health

problem requiring immediate attention. Additionally, Russell

points to several circuit court cases indicating that “courts have

been especially cautious about condoning conditions involving

exposure to human waste.” Fruit v. Norris, 905 F.2d 1147, 1151 (8th

Cir. 1990); see also, e.g., Despain v. Uphoff, 264 F.3d 965, 974

(10th Cir. 2001)(exposure to human waste “evokes both the health

concerns emphasized in Farmer and the more general standards of

dignity embodied in the Eighth Amendment”).

35
 MDOC also asserts that there was substantial testimony

regarding its attempts to correct the toilet problem, presumably

arguing that this further rebuts a finding of deliberate

indifference. As evidence of deliberate indifference, Russell

points to the fact that the problems persist despite MDOC officials

having been warned that the problem was urgent for more than a

decade. Frequent exposure to the waste of other persons can

certainly present health hazards that constitute a serious risk of

substantial harm. Given the evidence presented to the trial court,

we cannot say that the court’s factual findings regarding the ping-

pong toilets or the MDOC officials’ deliberate indifference were

clearly erroneous. Thus, this injunction, as applied to Unit 32-C,

is affirmed.

Injunction #7

This injunction requires MDOC to upgrade the lighting in each

cell to the level of twenty foot-candles. This injunction also

purports to apply to Unit 32 as a whole and is invalid insofar as

it purports to apply beyond Unit 32-C. MDOC argues that the

injunction is wholly invalid because MDOC officials were in the

process of upgrading cell lighting. As with the sanitation issues,

the pest control issues, and the ping-pong toilets, MDOC’s

assertions that it is working on the problem are inadequate to moot

the issue. MDOC also argues that there was no evidence of a

substantial risk of serious harm stemming from the admittedly

36
inadequate lighting or of MDOC officials’ deliberate indifference

to such harm. But the trial court judge apparently credited expert

testimony asserting that the lighting in the cells was grossly

inadequate for the purposes of sanitation, personal hygiene, and

reading, that this condition also contributes to further mental

health deterioration, and that twenty foot-candles was the

appropriate minimum level at which these activities could take

place. Thus, this injunction is supported by the conditions

supporting Injunctions #1, #2, and #9, discussed below, and it is

affirmed.

Injunction #8

The eighth injunction requires MDOC to return the inmates’

laundry clean and without a foul smell. MDOC argues that the

prison laundry condition is not sufficiently serious to implicate

the Eighth Amendment, citing Green v. Ferrell, 801 F.2d 765, 771

(5th Cir. 1986), and similarly that there was no proof of any

serious medical harm to any inmate stemming from this condition.

The Green court reiterated that “jails must provide ‘reasonably

adequate’ sanitation” but overturned the district court’s

injunction requiring the jail to provide laundry services because

the prisoners were provided with laundry detergent that they could

use to wash their own clothes in the sink located in their cells.

Id.

37
 Russell points to testimonial evidence that, unlike the

situation in Green, the Death Row inmates are not provided with

detergent and in fact can be disciplined for doing their own

laundry. First, the trial court found that the inmates do in fact

wash their own clothes, as conceded by one of MDOC’s witnesses, who

testified that the inmates wash their own clothes because it is

part of “prison culture.” This finding was supported by

substantial evidence and is incongruous with the proposition that

inmates are disciplined for washing their own clothes. Given that

the inmates do wash their own clothes, the only distinction between

this case and Green is that the prisoners in Green were provided

with laundry detergent while the Death Row inmates in this case

wash their clothes with the bar soap. The difference between

laundry detergent and bar soap is not sufficient to distinguish

this case from Green and thus does not implicate the Eighth

Amendment. Injunction #8 is therefore vacated.

Injunction #9

The ninth injunction outlines a number of requirements

designed to alleviate some of the problems stemming from the

allegedly inadequate mental health care afforded the inmates on

Death Row. This injunction requires MDOC to comply with ACA and

National Commission on Correctional Healthcare (“NCCH”) standards

regarding mental health, to give each inmate private, comprehensive

mental health examinations on a yearly basis, to monitor and assess

38
the medication levels of inmates receiving psychotropic

medications, and to house the inmates with psychosis and severe

mental illnesses separately from the other inmates.

MDOC argues that it was already in compliance with ACA

standards and, somewhat contradictorily, that MDOC has already

begun the process of selecting a new medical vendor that would

comply with ACA and NCCH standards. Once again, MDOC’s assertion

that it was already on the path towards compliance is insufficient

to moot the issue. Further, the injunction does not require only

ACA compliance. In any event, MDOC’s assertion that it is already

in compliance with ACA and NCCH standards is incongruous with the

trial court’s findings, including the statement that “the mental

health care afforded the inmates on Death Row is grossly

inadequate.” These findings were based on substantial testimony

adduced at trial and apparently credited by the trial court. For

example, Russell produced evidence that the isolation and idleness

of Death Row combined with the squalor, poor hygiene, temperature,

and noise of extremely psychotic prisoners create an environment

“toxic” to the prisoners’ mental health. There was also evidence

that the severely psychotic prisoners smear garbage and excrement

in their cells, scream all night, and flood the tiers. This

contributes to the problems of uncleanliness and sleep deprivation,

and by extension mental health problems, for the other inmates.

There was also testimony that prisoners seldom see medical staff

39
and that monitoring of medication was sporadic, with prisoners

potentially being prescribed the wrong medication or no medication

for long periods of time, potentially leading to extremely

dangerous physical side effects or psychotic breakdowns.

MDOC also points out that two inmates have refused psychiatric

medication so as to remain incompetent for execution. But this

does not refute the trial court’s findings that the mental health

care afforded to inmates on Death Row is grossly inadequate. MDOC

is only obligated to make adequate mental health care available for

all Death Row inmates. The fact that some inmates may refuse to

take advantage of such treatment so as to avoid execution is

irrelevant to whether MDOC is meeting its obligation of complying

with constitutional standards.

MDOC further argues that there was no demonstration of

deliberate indifference to any serious mental or medical problem

stemming from insufficient mental health care. In analyzing this

argument, it is important to remember that mental health needs are

no less serious than physical needs. Partridge v. Two Unknown

Police Officers of City of Houston, Texas, 791 F.2d 1182, 1187 (5th

Cir. 1986). This court has previously held that an inmate stated

a nonfrivolous claim in complaining that he was placed in cells

next to psychiatric patients who scream, beat on metal toilets,

short out the power, flood the cells, throw feces, and light fires,

resulting in his loss of sleep for days at a time. Harper v.

40
Showers, 174 F.3d 716, 720 (5th Cir. 1999). The trial court’s

findings indicate that the inmates are subjected to substantial

risk of serious harm based on the mental health conditions on Death

Row, and, based on the evidence presented to the trial court, we

cannot conclude that the court’s credibility determinations and

factual findings are clearly erroneous. We agree that the

conditions of inadequate mental health care, as found by the trial

court, do present a risk of serious harm to the inmates mental and

physical health. Again, the obvious and pervasive nature of these

conditions supports the trial court’s conclusion that MDOC

officials displayed a deliberate indifference to these conditions.

Thus, this injunction was justified by an Eighth Amendment

violation and is affirmed.

Injunction #10

The tenth injunction requires MDOC to allow the inmates to

wear sneakers instead of flip-flops while exercising and to provide

the inmates with a shaded area for exercise and access to water.

MDOC argues that this is impermissible micromanagement of state

prison operations and that no evidence was presented establishing

a constitutional violation. The evidence shows that inmates are

allowed an hour of exercise four or five days a week. The evidence

also shows that shoes and boots were replaced with flip flops

because the inmates used the boots and shoes to kick other inmates

and to throw at MDOC staff, and because the flip flops make escape

41
more difficult. In fact, the trial court stated that it understood

“the use of ‘flip-flops’ as general footwear as a security

measure.”

Russell argues that the flip-flops make it difficult or

impossible to exercise vigorously. But there is no support for the

proposition that exercising in flip-flops constitutes cruel and

unusual punishment. Nor is there any support for the proposition

that an hour of outdoor exercise without water or shade constitutes

cruel and unusual punishment. While exercise is certainly

beneficial to physical and mental health, we find that the

provisions for exercise made by MDOC are appropriate and that the

tenth injunction is not justified by conditions in violation of the

Eighth Amendment. Thus, the tenth injunction is vacated.

CONCLUSION

Injunctions #3, 8, and 10 are vacated in their entirety.

Injunctions #4, 5, 6, and 7 are vacated to the extent they purport

to apply to portions of Unit 32 beyond Unit 32-C. The remainder of

the injunctive relief is AFFIRMED.

42