Del Raine v. Williford

Plaintiff's original complaint was filed on November 2, 1984, and on November 4,Page 10281985, plaintiff filed an amended complaint, in which he named several new defendants. Neither these defendants nor certain others originally named were ever served. The Magistrate held that because plaintiff failed to serve the defendants within 120 days of the filing of the complaint, as required by Rule4(j) of the Federal Rules of Civil Procedure, those defendants should be dismissed without prejudice from the instant suit.

Plaintiff contends that on April 12, 1986, he mailed sixteen typed amended complaints, along with the United States Marshal Forms (U.S.M.-285 forms), to the United States Marshal's Office for service upon defendants. The sixteen complaints were returned by the Clerk's office because the submitted copies did not match the original amended complaint in the Court's file. (Apparently, the Court's copy was partially typed, and the copies submitted by plaintiff for service were completely typed.) Although plaintiff attempted to serve defendants on April 12, 1986, this was nevertheless more than 120 days after the filing of the amended complaint. Plaintiff has not shown good cause why service was not made within the required period, and the Court therefore agrees with the Magistrate that defendants Brush, Deer, Denton, Gora, Edwards, Sansom, John Doe Guards, Sullivan, Clark, Morrison, Sively, Krajenta, Sheffer, Barker, Wertenberger, Williams, John Doe No. 4, Pysher, Thompson, Pool and Thomas should be dismissed without prejudice from the instant suit. The Court also finds that because defendant Trusty was never served, he should likewise be dismissed without prejudice.

The documents indicate that on November 7, 1983, plaintiff was suspected of concealing contraband. Warden Miller and Regional Director . . . Ralston authorized Dillow to administer x-rays and a rectal probe of the plaintiff. Dillow does not recall the reason for the suspicion and was not responsible for investigating the reason for the search. Dillow did not authorize the searches and cannot perform rectal searches without prior administrative authorization.

To the extent that plaintiff protests the propriety of the authorization of the searches, summary judgment should be entered in favor of defendant Dillow, as it is undisputed that he was not personally involved in the assessment of the suspicion against plaintiff or the decision to authorize the rectal and x-ray procedures.

Prison guards do not want prisoners to have their home addresses, and the Bureau of Prisons is reluctant to tell prisoners even the current place of employment of their former guards. This is a sensible precaution, for prisoners aggrieved by guards' conduct may resort to extra-legal weapons after release if they do not deem the results of the litigation satisfactory. Prisoners also have friends not noted for their scruples. Although the Department of Justice affords means to learn the addresses of its employees in order to serve them, these are sufficiently complex that even lawyers often trip up.See Lewellen v. Morley,875 F.2d 118(7th Cir. 1989). Our impression from a series of cases is that prisoners appearingpro seget the runaround, no matter how hard they try to follow the Department's preferred methods of inquiry. Having the Marshal serve the papers enables the case to proceed while holding in confidence information in which the guards have a strong interest. Because the Marshals Service is part of the Department of Justice,28 U.S.C. § 561, it should have ready access to the necessary information.

The Marshal needs from the prisoner information sufficient to identify the guard ("John Doe No. 23" won't do); once that information has been provided, the Marshal should be able to obtain a current business address and complete service. If the Department of Justice declines to furnish the address to its own employee the Marshal, that hardnosed attitude satisfactorily explains a prisoner's inability to serve papers within 120 days. How is the prisoner to obtain information the Bureau of Prisons will not entrust to a Marshal? We join the Ninth Circuit in holding that when the district court instructs the Marshal to serve papers on behalf of a prisoner, the prisoner need furnish no more than the information necessary to identify the defendant.Puett v. Blandford,895 F.2d 630,635(1990). The Marshal's failure to accomplish the task is automatically "good cause" within the meaning of Rule 4(j).See also Romandette v. Weetabix Co.,807 F.2d 309,311(2d Cir. 1986);Rochon v. Dawson,828 F.2d 1107,1109-10(5th Cir. 1987); andMondy v.Secretary of the Army,269 U.S.App.D.C. 306,845 F.2d 1051,1053(D.C. Cir. 1988), all holding that an indigent prisoner representing himself is entitled to rely on the Marshal to achieve service of process.

Every few days I'm striped searched in my cell (notwithstanding the bitter cold resulting from the open window above my cell), cuffed behind my back, pulled backwards from my cell, put in an empty cell while cuffed, from fifteen to thirty minutes, while my cell is ransacked i.e. personal property is stolen, legal papers mixed up, scattered, walked on, towels and sheets thrown on the floor. This practice continues to the present time. On December 23, 1983 while the chill factor was minus 40 degrees to 50 degrees below zero, according to the radio weather reports, I was strip searched and placed in an empty cell while my cell was ransacked. No hats, jackets, or gloves were allowed, nor could we put a blanket over our cell bars to warm the cell. Many other days were also bitterly cold. Repeated requests to Unit Manager Deer, Associate Warden Keohane, and Warden Miller to close the windows and fix broken ones were futile.

Although we have never paused to explain the meaning of the term "deliberate indifference," the case law is instructive. The term first appeared in the United States Reports inEstelle v. Gamble,429 U.S., at 104[97 S.Ct. at 291], and its use there shows that deliberate indifference describes a state of mind more blameworthy than negligence. In considering the inmate's claim inEstellethat inadequate prison medical care violated the Cruel and Unusual Punishments Clause, we distinguished "deliberate indifference to serious medical needs of prisoners,"ibid.,from "negligence in diagnosing or treating a medical condition,"id.,at 106 [97 S.Ct. at 292], holding that only the former violates the Clause. We have since readEstellefor the proposition that Eighth Amendment liability requires "more than ordinary lack of due care for the prisoner's interests or safety."Whitley v. Albers,475 U.S. 312,319,89 L.Ed.2d 251,106 S.Ct. 1078,1084(1986).

WhileEstelleestablishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. That point underlies the ruling that "application of the deliberate indifference standard is inappropriate" in one class of prison cases: when "officials stand accused of using excessive physical force."Hudson v.McMillian,503 U.S., at [___-___] [112 S.Ct. at 998-999];see also Whitley, supra[475 U.S. at] 320 [106 S.Ct. at 1084]. In such situations, where the decisions of prison officials are typically made "`in haste, under pressure, and frequently without the luxury of a second chance,'"Hudson v. McMillian,supra,[503 U.S.] at [___,112 S.Ct. at 998] (quotingWhitley, supra,[475 U.S.] at 320 [106 S.Ct. at 1084]), an Eighth Amendment claimant must show more than "indifference," deliberate or otherwise. The claimant must show that officials applied force "maliciously and sadistically for the very purpose of causing harm," 503 U.S., at [___,112 S.Ct. at 998] (internal quotation marks and citations omitted), or, as the Court also put it, that officials used force with "a knowing willingness that [harm] occur," 503 U.S., at [___,112 S.Ct. at 999] (internal quotation marks and citation omitted). This standard of purposeful or knowing conduct is not, however, necessary to satisfy the mens rea requirement of deliberate indifference for claims challengingPage 1032conditions of confinement; "the very high state of mind prescribed byWhitleydoes not apply to prison conditions cases."Wilson, supra,[501 U.S.] at 302-303 [111 S.Ct. at 2326-2327].

With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.See, e.g., LaMarcav. Turner,995 F.2d 1526,1535(CA11 1993);Manarite v. Springfield,957 F.2d 953,957(CA1);Redman v. County of San Diego,942 F.2d 1435,1443(CA9 1991);McGill v. Duckworth,944 F.2d at 347;Miltier v. Beorn,896 F.2d 848,851-852(CA4 1990);Martin v. White,742 F.2d 469,474(CA8 1984);seealso Springfield v. Kibbe,480 U.S. 257,269,94 L.Ed.2d 293,107 S.Ct. 1114[1120] (1987) (O'CONNOR, J., dissenting). It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.

That does not, however, fully answer the pending question about the level of culpability deliberate indifference entails, for the term recklessness is not self-defining. The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.See Prosser and Keeton§ 34, pp. 213-214;Restatement (Second) of Torts§ 500 (1965). The criminal law, however, generally permits a finding of recklessness only when a person disregards a risk of harm of which he is aware.SeeR. Perkins R. Boyce, Criminal Law850-851 (3d ed. 1982);J. Hall, General Principles of Criminal Law115-116, 120, 128 (2d ed. 1960) (hereinafter Hall);American Law Institute, Model Penal Code§ 2.02(2) (c), and Comment 3 (1985);but see Commonwealth v.Pierce,138 Mass. 165,175-178(1884) (Holmes, J.) (adopting an objective approach to criminal recklessness). The standards proposed by the parties in this case track the two approaches (though the parties do not put it that way): petitioner asks us to define deliberate indifference as to what we have called civil-law recklessness, and respondents urge us to adopt an approach consistent with recklessness in the criminal law.

We reject petitioner's invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis.See Prosser and Keeton§§ 2, 34, pp. 6, 213-214;see also Federal Tort ClaimsAct,28 U.S.C. § 2671-2680;United States v. Muniz,374 U.S. 150,10 L.Ed.2d 805,83 S.Ct. 1850(1963). But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

I do not read the remand of that portion of the Court's opinion to intimate that the courts below reached the wrong result, especially because the Seventh Circuit has long followed the rule of law the court lays down today.See McGill v. Duckworth,Page 1033944 F.2d 344(CA7 1991);Duckworth v. Franzen,780 F.2d 645(CA7 1985).

An allegation of inadequate heating may state an eighth amendment violation.See, e.g., Ramos v. Lamm,639 F.2d 559,568(10th Cir. 1980) ("a state must provide . . . reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat, plumbing)"). . . .

We conclude from this body of caselaw that plaintiff is entitled to have the trier of fact determine whether the conditions of his administrative confinement, principally with regard to the cell temperature and the provision of hygiene items, violated the minimal standards required by the Eighth Amendment. We also conclude, although the district court did not reach the issue, that the right of a prisoner not to be confined in a cell at so low a temperature as to cause severe discomfort and in conditions lacking basic sanitation was well established in 1986. The defendants therefore were not entitled to summary judgment on the basis of qualified immunity.

In its judgment, the district court said it could not "find the right plaintiffs asserted under the facts of this case to have been clearly established in 1982 to remove defendants' qualified immunity." Nevertheless, the district court, in its ruling, noted pre-1982 cases where appellate courts held that the constitution required prisoners to be provided with adequate heat and shelter. For example, the district court citedLareau v. Manson,651 F.2d 96(2d Cir. 1981) (prisoners are entitled to adequate shelter);Wright v. Rushen,642 F.2d 1129,1132-33(9th Cir. 1981) (an institution has eighth amendment obligation to provide prisoners with adequate shelter or quarters);Ramos v. Lamm,639 F.2d 559,568(10th Cir. 1980) (the state must provide reasonably adequate heat to inmates),cert. denied,450 U.S. 1041,101 S.Ct. 1759,68 L.Ed.2d 239(1981);Wolfish v. Levi,573 F.2d 118,125(2d Cir. 1978) (the court said that "an institution's obligation under the eighth amendment is at an end if it furnishes sentenced prisoners with adequate food, clothing, shelter, sanitation, medical care, and personal safety"),rev'd sub nom. Bell v. Wolfish,441 U.S. 520,99 S.Ct. 1861,60 L.Ed.2d 447(1979);Kirby v.Blackledge,530 F.2d 583,587(4th Cir. 1976) (allegation of inadequate heating reaches the level of cruel and unusual punishment); andBell v.Wolfish,441 U.S. at 529n. 11,99 S.Ct. at 1869n. 11. Plaintiffs cite additional cases in support of the same proposition.See Bono v. Saxbe,620 F.2d 609(7th Cir. 1980) (the court said that insufficient heat is a factor frequently crucial to finding cruel and unusual punishment);Gates v. Collier,501 F.2d 1291,1300-01(5th Cir. 1974) (the court found that the "bathroom, kitchen, heating and housing facilities [were constitutionally] inadequate."). These pre-1982 cases describe a clearly established constitutional right of prison inmates to adequate heat. Thus, there was no question that in 1982 a reasonable prison official would have known of a prisoner's constitutional right to adequate protection from extreme cold.

We recently stated, citingRamos,that a claim of inadequate heating, or a guard's practice of banging on the bars, may state an eighth amendment violation.Lewis v. Lane,816 F.2d 1165,1171(7th Cir. 1987). InLewiswe held, as Harris points out, that summary judgment was inappropriate. One reason for that holding was that appointed counsel had grossly neglected the case. More importantly for the purposes of this case, however,Lewisinvolved prison policies and practices affecting all prisoners and not just an isolated instancePage 1037of negligence temporarily inconveniencing only one inmate.

The circumstances of this case demonstrate some neglect and indifference on Menard's part, but the conditions were temporary and affected only one inmate. Although Harris experienced considerable unpleasantness, he suffered no physical harm. Menard's policies in these areas of responsibility, as reflected by the affidavits, are constitutionally acceptable if prison officials observe them. Harris does not dispute the truth of the affidavits. The defendants' temporary neglect of Harris's needs was not intentional, nor did it reach unconstitutional proportions. The defendants did not act in a deliberate and reckless manner, in the criminal law sense.Duckworth v. Franzen,780 F.2d 645,653(7th Cir. 1985),cert. denied,479 U.S. 816,107 S.Ct. 71,93 L.Ed.2d 28(1986). Although Menard may merit some management criticism, at this stage the defendants' conduct is not unconstitutional, as indifferent and inconsiderate as it was in regard to this one inmate. The fact that other inmates have not joined this suit suggests its singularity. This observation, of course, should not be taken to mean that conduct affecting only one inmate may never be unconstitutional.

The prisoner's affidavit states that he was forced to live with "filth, leaking and inadequate plumbing, roaches, rodents, the constant smell of human waste, poor lighting, inadequate heating, unfit water to drink, dirty and unclean bedding, without toilet paper, rusted out toilets, broken windows, [and] . . . drinking water containing small black worms which would eventually turn into small black flies." The defendants have presented sworn denials of these conditions, but summary judgment is not a procedure for resolving a swearing contest.Chandler v.Baird,926 F.2d 1057(11th Cir. 1991);Lewis v.Lane,816 F.2d 1165,1171(7th Cir. 1987).

But, we emphasize, there is more to a subhuman-conditions case than subhuman conditions. "Punishment," for purposes of determining tort liability under42 U.S.C. § 1983for violation of the Eighth Amendment's prohibition against the infliction of cruel and unusual punishments, has both an objective and a subjective component. The objective component is the nature of the acts or practices alleged to constitute cruel and unusual punishment. Are they such acts or practices as would be deemed cruel and unusual if prescribed in a state or federal statute as the lawful punishment for a particular offense? The answer is "yes" if Jackson's affidavit is truthful, because in our contemporary society it would be considered barbarous to imprison a criminal in conditions so strikingly reminiscentPage 1038of the Black Hole of Calcutta.Ramos v. Lamm,639 F.2d 559,567-72(10th Cir. 1980).

The subjective component of unconstitutional "punishment" is the intent with which the acts or practices constituting the alleged punishment are inflicted. The minimum intent required is "actual knowledge of impending harm easily preventable."Duckworth v. Franzen,780 F.2d 645,653(7th Cir. 1985) (emphasis added);see Wilson v. Seiter,[501 U.S. 294],115 L.Ed.2d 271,111 S.Ct. 2321(1991);McGill v. Duckworth,944 F.2d 344(7th Cir. 1991). A failure of prison officials to act in such circumstances suggests that the officials actually want the prisoner to suffer the harm. If the harm is remote rather than immediate, or the officials don't know about it or can't do anything about it, the subjective component is not established and the suit fails.See, e.g., Wilson v. Seiter, supra,[501 U.S. at 301],111 S.Ct. at 2326. Jackson's affidavit states, and the defendants do not deny, that the defendants visited his unit routinely, observed the conditions described in it, but failed to take adequate corrective measures. The defendants deny that the conditions were as Jackson described them and claim to have corrected the minor problems (such as infestation by roaches) that they acknowledge existed, but they do not suggest that any condition beyond their control would have prevented them from correcting the conditions that Jackson claims existed. There thus are triable issues concerning both the ghastliness of the conditions and the state of mind of the defendants.

[A]fter the guards cuffed me behind my back and grabbed my arms, they rushed me on down to the hospital. They opened the door. I went in. They took me in. People were standing around on the bottom floor of the hospital, not the second floor, not in an examination room; an open foyer, adjacent to the toilets and the sink . . . That's where that rectal probe occurred . . . this was a probe. It was not just an examination. A gloved finger, lubrication, hard, around and around, and I'm trying to raise up on my toes and I didn't say anything. That's true. I'd better not say anything. The guards are holding me, and they're there. The claim it was for contraband. I did not have any contraband.

Viewed in plaintiff's favor, the evidence shows that the rectal search was performed in a lobby area on the first floor of USP-Marion's medical hospital, with guards and possibly other medical personnel present. Defendant Dillow did not participate in the decision to conduct the rectal search not to obtain x-rays and had no authority to direct the number of security guards who would witness the rectal examination. Plaintiff was brought to the medical unit handcuffed and wearing shorts and socks. Plaintiff was bent over a table, his shorts were "jerked" to his knees, and Dillow performed the rectal probe using a gloved finger and lubricant. The search caused plaintiff discomfort. After completing the search, Dillow neglected to remove excess lubricant. Plaintiff was then directed to an x-ray table,Page 1039and two x-rays were taken. Plaintiff's handcuffs were removed for the second x-ray. The second x-ray was taken before the first could be developed and evaluated. Plaintiff suffered no physical injury from the rectal search or x-rays but did feel humiliated and degraded by the experience. Plaintiff made no complaints of any kind during the search and never made complaints of physical injury resulting from the search.

On these facts, there is no basis on which a jury could find that Dillow inflicted cruel and unusual punishment. By its very nature, a rectal search is likely to an unpleasant, uncomfortable, and degrading experience. Digital rectal searches are not condemnedper se,however,see Bruscino v. Carlson,854 F.2d 162(7th Cir. 1988); and until a kinder, gentler method of satisfying the particular security concern is devised, they will be conducted. Absent evidence that a rectal search is performed in a cruel, unsanitary, unprofessional, or injurious manner, there is no basis for a reasonable inference the Dillow gratuitously inflicted pain for the purpose of causing harm.

The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. A detention facility is a unique place fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence. And inmate attempts to secrete these items into the facility by concealing them in the body cavities are documented in this record and in other cases.

With respect to plaintiff's claim that she is regularly forced to strip before guards and other inmates, it should be noted that while a prisoner's expectation of privacy is extremely limited in light of the overriding need to maintain institutional order and security,see Bell v. Wolfish,441 U.S. 520,537,558-60,99 S.Ct. 1861,18731884-85,60 L.Ed.2d 447, the Supreme Court has recognized that a prisoner retains a remedy for "calculated harassment unrelated to prison needs."Hudson v. Palmer,468 U.S. 517,530,104 S.Ct. 3194,3202,82 L.Ed.2d 393. The Eighth Amendment's prohibition against cruel and unusual punishment stands as a protection from bodily searches which are maliciously motivated, unrelated to institutional security, and hence "totally without penological justification."Rhodes v. Chapman,452 U.S. 337,346,101 S.Ct. 2392,2399,69 L.Ed.2d 59; seeHudson,468 U.S. at 530,104 S.Ct. at 3202,Smith v. Chrans,629 F. Supp. 606,610-11(C.D.Ill. 1986).

On November 24, 1983, I was taken to the gymnasium and guard P. Whitaker let me keep some of my property. Most of it was to be mailed out of the prison. I twice asked [Davis] Whitaker if I could tear the covers off my dictionaries and keep them.Page 1043He said no. I later received a letter from my sister listing the items of property she had received. I saw several of my items at that time which were not sent to my sister nor given to me. Since my address book had been taken, I couldn't list an address to which to send the property. A few days later I found my sister's address on a correspondence form and sent it to Whitaker.

A dictionary was taken from me in 1972. Two more dictionaries were taken form me in October, November, 1983 (Paul Whitaker and John Doe Number Three, to the best of my knowledge and belief were responsible for this).

With respect to the law books, however, Sellers has a point. Although Fed.R.Civ.P.52(a) requires the court to "find the facts specially", the magistrate did not mention Sellers' argument that the guards lost his books. Perhaps he overlooked the subject in the welter of confusing documents filed in this case. No matter the reason, however, we must remand for findings. Sellers' objections to the rulings admitting evidence of the inventories of his property are without substance, as is his contention that the defendants are liable on account of their refusal to send his possessions to Judge Fairchild. Federal judges are not prisoners' warehousemen. The only question on remand under the Tort Claims Act is whether the government tortiously lost Sellers' books, and the magistrate is free to make whatever ruling the record requires on this subject. One may question whether substantial investment of judicial time in a case of this sort is appropriate. The Federal Courts Study Committee, picking up a suggestion inFree v. United States,879 F.2d 1535,1536(7th Cir. 1989), has recommended that claims of less than $10,000 under the FTCA be handled by a new small-claims court. Report of the Federal Courts Study Committee 81 (1990).See also Savage v. CIA,826 F.2d 561,563(7th Cir. 1987);Tinker-Bey v.Meyers,800 F.2d 710(7th Cir. 1986). Until Congress acts on that recommendation, however, even the smallest claims concerning lost property must proceed using rules designed for large-stake cases.

This reasoning parallelsParratt v. Taylor,451 U.S. 527,68 L.Ed.2d 420,101 S.Ct. 1908(1981) ..., andHudson v. Palmer,468 U.S. 517,530-36,82 L.Ed.2d 393,104 S.Ct. 3194[3202-3205] (1984). Although the United States Attorney acknowledges thatCarlson v.Green,446 U.S. 14,64 L.Ed.2d 15,100 S.Ct. 1468(1980), rejected an argument that the FTCA ousted allBivenssuits within the scope of its coverage, he urges us to hold that it does not apply when the FTCA provides effective and complete remedies for negligent loss of property. He submits thatCarlsonhas been overtaken by subsequent cases, not onlyParrattandHudson,but also others that have demonstrated greater willingness to infer from the provision of statutory remedies that direct constitutional actions are unnecessary or have been precluded.See Schweiker v. Chilicky,487 U.S. 412,101 L.Ed.2d 370,108 S.Ct. 2460(1988);Bush v.Lucas,462 U.S. 367,76 L.Ed.2d 648,103 S.Ct. 2404(1983);Chappell v. Wallace,462 U.S. 296,76 L.Ed.2d 586,103 S.Ct. 2362(1983). This is not the occasion to consider the question.

Shortly following the lockdown, prison officials at Marion confiscated all hardbound books in the possession of inmates. Apparently, the inmates were given notice only five minutes prior to the confiscations. Caldwell's personal law and religious books were taken. All inmates, including Caldwell, were told that, at the inmate's option, officials would either (1) send the confiscated books to an inmate's family, (2) donate the books to an outside organization, or (3) destroy them. Caldwell has no family to whom he could have had his books sent, nor did he wish that they be destroyed. He was not given the chance to have the books sent to friends outside Marion. Faced with the available options, Caldwell specified outside charitable organizations to which prison officials could donate the books. Approximately two months later, inmates were once again allowed to keep hardbound books in their cells.

[T]he confiscation of Caldwell's books was not effected in accord with federal prison regulations. Bureau regulations set forth the procedure to be followed by prison officials when confiscating contraband. 28 C.F.R. §§ 553.10-.15 (1985). Under these regulations, "contraband" is defined to include "any item . . . which previously has been authorized for possession by an inmate . . . [and] altered personal property . . . when it is determined to adversely affect institution security, safety, or good order."28 C.F.R. § 553.12. The regulations provide further that any items of personal property confiscated as contraband are to be inventoried and sorted pending identification by the owner. Thereafter, "staff shall mail such items . . . at the inmate's expense, to a destination of the inmate's choice."28 C.F.R. § 553.13(emphasis added).

[The] defendants' act, as described herein are part of a continuous pattern of discrimination, persecution, and harassment against me, in violation of law, custom, and Bureau of Prison rules and regulations. Supervisory defendants, Norman Carlson (who, upon information and belief, viewed beatings etc. at Marion in November, 1983), Wardens Miller, Williford, Associate Wardens D.W. Keohane ... are responsible for establishing policies and procedures authorizing the violations stated in this complaint, for ordering them, for supervision them, for not investigating complaints about them, and ultimately for not preventing them. . . .