dissenting in part,
concurring in part.
The present appeal does not involve one of the rather frequently filed prisoner cases where in the normal context of prison life there has been a claimed unconstitutional interference with matters such as access to legal materials, communication rights with the courts, counsel or family, or needed medical care; most of these factual situations probably not being of a nature which the Founding Fathers would have had in mind as constituting cruel and unusual punishment but which in appropriate cases have been the recipient of judicial protection under the aegis of due process.1
It is true that in the present appeal the claimed deprivations for the most part could be similarly categorized with those mentioned above. The trenchant difference is that the deprivations here involved did not come into being in the normal context of prison life but instead followed a vicious attack by inmates on six prison officers which resulted in the deaths of three of them and the serious injury of three others as well as substantial damage and, indeed, destruction of physical facilities of the prison complex. Following the cessation of the rioting, other officers, not surprisingly, left employment and despite the bringing of officers from other prisons and the employment of new, but inexperienced, personnel it appears clear to me from the record of this case that a complete and immediate return to conditions as they existed prior to July 22, which the prison authorities flatly assert is impossible, can reasonably be expected to produce further real danger to the life and safety not only of the prison employees but to those confined therein because of having been found to be guilty of *305serious crimes against society. I decline to add a burning match to the fuse and therefore respectfully dissent.
With all due respect to the district court judge who heard testimony resulting in more than 2000 pages of transcript and to my fellow members of the panel of this court, who despite the 13 volumes of transcript, are prepared forthwith to affirm the district court’s order of November 3 across the board, I can only regard this litigation insofar as it compels compliance with that part of the district court’s order which this court previously had stayed as being unwise second-guessing of the efforts of those on the scene. It is they who have the expertise in the matter of prison administration and who appear to me to be attempting in good faith to restore as rapidly as possible normalcy in a frighteningly dangerous situation.
Both this court and the district court, in my opinion, have given insufficient heed to the undoubted wisdom and verity of Mr. Justice Powell’s words in Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974):
The Herculean obstacles to effective discharge of these duties [of prison administrators] are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. (Footnote omitted.)
The majority opinion of the panel of this court, while paying respect to the frequently stated principle that courts should be hesitant to interfere with the discretion afforded prison officials, disregards what I deem to be an extremely significant aspect of this case as it was presented to us. Despite the statements in the majority opinion that only portions of the November 3 order were being appealed, the notice of appeal was not so limited, and in both briefs and oral argument the state defendants asked that the judgment of the district court granting the preliminary injunction be reversed in its entirety.
Notwithstanding their position that the injunction in toto constituted an improper exercise of judicial discretion, when the emergency appeal came to this court, the state authorities limited their request for a stay pending appeal to only two parts of the injunction order, namely, that all prisoners be provided two showers per week and each inmate of the West cellhouse be provided one hour of yard recreation per day. These might seem, on first blush, not to be of great consequence to the institution but of much importance to those confined. The prison authorities do not regard them lightly, however, and have unswervingly and emphatically averred impossibility of performance. This has been stated in the context of an expressed desire to return as soon as possible to conditions as they were before the riot, accompanied by a detailed explanation of the plan for a step-by-step implementation of that return.
As an initial matter, noting that customarily when we receive an appeal challenging a preliminary injunction grant, the request is for a stay of the entire decree, I regard the fact that the attack here was as to only two phases of the order to be indicative of good faith and responsible advocacy on the part of the authorities. The defendants state that they did not seek a stay of the other provisions because they were either in compliance or substantial compliance prior to the issuance of the November 3 order.2
*306Additionally, the defendants point out that the ordered recreational schedule would spread supervisory personnel to the point at the present time of insufficient supervision to prevent disturbances. The movement of inmates of two cellhouses had contributed substantially to the severity of the July 22 riot. Further, the yard recreation for the West cellhouse occupants as ordered would require cessation of the program underway for the North cellhouse with resultant increase of tensions there.
In its conclusions of law the district court stated that the “number of staff personnel that are required to provide showers, which are the ordinary degree of sanitation, is limited in number.” The court, however, made no finding that the available staff, considering all other demands on the officers’ time, was even sufficient to meet the indefinite “limited” quantity. Likewise there was no finding that two showers, although concededly desirable, were necessary immediately. The plan which had been filed by the prison authorities on November 1 provided for one shower per week for all inmates. While this scarcely qualifies for a country club atmosphere, it, on the other hand, would appear to meet minimal constitutional standards. Sostre v. McGinnis, 442 F.2d 178, 186 (2d Cir. 1971). The district court specifically found that the removal of a deadlock must be gradual; yet the requirement for immediate implementation when there was no showing of practicable possibility assumes aspects of imposing individual judicial concepts for improvement of the prison system. The aftermath of a riot such as that which occurred at Pontiac would not seem to be the appropriate time or context for reforming the system more expeditiously than practicality permits.
It is to be regretted that the necessarily slow and deliberate return to-normalcy following the traumatic events of July 22 must undoubtedly adversely affect some prisoners who were innocent of any wrongdoing in relation to the rioting activity. It perhaps, however, is the time also to remember that normalcy as to a prison still contemplates confinement for transgression against societal rules of behavior. Whatever other objectives our prison system may hope to accomplish one of them remains that of punishment and as to that the very fact of involuntary confinement precludes a promise of a Rose Garden.
I am not dissenting from that part of the majority opinion with regard to the matter of the intervention by the Union representing the Pontiac guards primarily because of the belatedness of the attempted intervention and in view of the fact that guards individually did have input in the lengthy hearings in the district court. Despite my not dissenting at this time I express the hope that if the district court’s handling of this case continues on any substantial time basis the court will see to it that the guard position on lack of security is fully developed as a part of the overall picture. While I think that the matter of prison reform properly belongs to the executive and legislative branches,3 if the judicial branch does become involved, as it has here, then all pertinent matters bearing on the situation should be given appropriate consideration. In the Pontiac picture, I regard the lack of security for the guards as having a crucial bearing on the return to normalcy.
On the principal matter here involved, in sum, while we are reviewing an exercise of discretion, it is a discretion which the cases require should be exercised sparingly and cautiously. In the explosive atmosphere fairly reflected by the record as existing at Pontiac, it appears to me that the discretion was abused as to the two items which had previously been stayed by this court. Irrespective of whether an emergency (itself a fluid term) continues to exist at Pontiac, *307the record clearly demonstrates in my opinion that the situation in the prison is such as to preclude at this time a complete return to conditions as they existed prior to July 22. Finally, I would hope that on remand the district court will give full consideration to the majority’s suggestion that “the precise provisions of the order are, if necessary, subject to reconsideration and revision by the district court.”
. It is to be noted in the present litigation that there has been no determination made that the prisoners’ Eighth Amendment rights to be free from cruel and unusual punishment have been violated.
. The fact that a party does not seek a stay of all parts of an injunction should not, it would seem, prevent that party from seeking a complete invalidation on appeal. Nevertheless in *306view of the apparent lack of burden to the authorities, the possible mootness, and the fact that only a preliminary injunction is involved, I am limiting my dissent to the two points which were the subject of a stay in this court.
. It is patent that the prison system in Illinois is past due for an extensive overhaul by someone with a substantial increase in the expenditure of necessary public funds.