Davis v. Balson

OPINION and ORDER

PRELIMINARY STATEMENT

This civil rights action is brought as a class action on behalf of all inmates of Lima State Hospital who were committed and incarcerated in said institution on or after May 23, 1973. 1 Plaintiffs bring this action under 42 U.S.C. § 1983 to redress certain alleged deprivations of rights secured to them by the laws of the State of Ohio, and by the First, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments of the Constitution of the United States. Jurisdiction is predicated upon 28 U.S.C. §§ 1343(3) and (4), 2201, 2202, 2281 and 2284. Pendent jurisdiction is also alleged. Plaintiffs seek injunctive and declaratory relief, and an award of reasonable attorneys’ fees.

Because plaintiffs seek to enjoin the defendants, who are officials of the State of Ohio responsible for the operation of Lima State Hospital [hereinafter cited as LSH], from the enforcement, operation and application of certain statutes of the State of Ohio, a three-judge court has been empaneled pursuant to 28 U.S.C. §§ 2281, repealed Pub.L. 94-381 §§ 1, 2, Aug. 12, 1976, 90 Stat. 1119, and 2284, amended Pub.L. 94-381 § 3, Aug. 12, 1976, 90 Stat. 1119. On June 25, 1974, the Court sua sponte bifurcated trial of those issues raised which may be decided by a single judge from those which must be decided by the three-judge court.

On May 21, 1974, the United States was granted leave to participate in the case as amicus curiae, with the right to conduct discovery, call witnesses, file motions and briefs, and present evidence and arguments, as if a party hereto. Order, No. C 73-205 (filed May 21, 1974).

At final pretrial, joint oral motions for summary judgment were submitted to the *848 Court, based upon one hundred and thirty-five (135) pages of stipulations previously entered into by the parties, and numerous depositions and other materials before the Court. By pretrial order, twenty-three (23) factual disputes amenable to litigation were identified. See Supplemental Pretrial Order, No. C 73-205 (filed August 20, 1974) [hereinafter cited as Pretrial Order]. Hearing on the merits of those issues was commenced to a single judge on August 26, 1974, and concluded on August 30, 1974.

An interim Order was entered by the Court on September 9, 1974, wherein the Court adopted the parties’ mutual contention that “the State, upon committing an individual ‘until he regains his sanity’, incurs a responsibility to provide such care as is reasonably calculated to achieve that goal.” Davis v. Watkins, 384 F.Supp. 1196, 1197 (N.D.Ohio 1974) [hereinafter cited as Interim Order]. Based upon the authority of Wyatt v. Stickney, 344 F.Supp. 373, 334 F.Supp. 1341 (M.D.Ala.1972), 325 F.Supp. 781 (M.D.Ala.1971), subsequently aff’d sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), the Court ordered implementation of a program designed to provide minimum constitutional conditions of confinement, and to guarantee a constitutionally acceptable minimum treatment program for all inmates. Said Interim Order is expressly incorporated herein by reference. The Court took the twenty-three issues outlined in the Pretrial Order, supra, under advisement for study and opinion.

On April 2, 1975, upon plaintiffs’ motion to clarify the Court’s Pretrial Order, supra, the Court ruled that Issue Three, presenting the question whether the automatic administrative assignment to LSH of persons committed pursuant to Ohio Revised Code § 2945.38, when such persons are not so committed by the Court, is a violation of the Fourteenth Amendment, would not be reached in this case, based upon the Court’s finding that plaintiffs had presented no evidence that such automatic assignments were taking place. The Court further determined that Issue Twenty, presenting the question whether denying patients at LSH the right to parole, shock parole and work release is a violation of the Fourteenth Amendment, is properly reserved for determination by the three-judge court.

On September 1, 1976, the Court issued a Second Interim Order directed to Issue Fourteen, presenting the question: “Whether the Fourteenth Amendment requires the establishment of a patient advocacy program at Lima State Hospital.” The Court’s Second Interim Order, as subsequently modified, Order Lifting Stay and Modifying Order Previously Filed, No. C 73-205 (filed January 21,1977), provides for the establishment of a patient advocacy program, and said Order, as modified, is expressly incorporated herein by reference.

While the defendants have not moved to dismiss any of the remaining twenty issues on the grounds of mootness, they have obliquely suggested that events and actions taken by them subsequent to trial of this cause have obviated any preexisting need for the Court to grant remedial relief on several of plaintiffs’ claims. See Letter to Special Master John Czarnecki from David G. Latanick, Assistant Attorney General, September 28, 1977. However, as the Supreme Court has stated, “Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant * * * free to return to his old ways.’ United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).” United States v. Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). Only “if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur”, id., is a case such as this rendered moot. The burden of persuasion in this regard rests upon the defendants. United States v. W. T. Grant Co., supra, 345 U.S. at 633, 73 S.Ct. 894. Based upon the Court’s finding of multiple constitutional violations in this case, and based further upon the defendants’ intransigence to date in implementing even Court ordered remedial relief, see Order Regarding Plaintiffs’ Motion to Show *849 Cause, No. C 73-205 (filed January 21,1977) (finding defendants in Civil Contempt for failure over a two-year period to achieve compliance with the Court’s Interim Order of September 9, 1974), the Court finds that defendants have not met their heavy burden of establishing that their allegedly wrongful behavior could not reasonably be expected to recur. Therefore, the Court finds that this case is not moot as to any of the remaining issues. Of course, it remains for the plaintiffs to demonstrate that injunctive relief is warranted with respect to each specific claim. Morales v. Turman, 562 F.2d 993 (5th Cir. 1977).

This is the first in a series of Orders which will address the twenty remaining single-judge issues. Said Orders shall serve as the Court’s findings of fact and conclusions of law, pursuant to Rule 52, F.R.CiviP.

FACTUAL BACKGROUND

Because the facts regarding the conditions and practices at LSH during the relevant time period have been largely stipulated to by the parties, the Court does not deem it necessary to make an extensive statement of facts. A brief factual statement will suffice to provide a background for the legal issues presented.

LSH is a maximum security institution for the criminally insane, operated and funded through the Ohio Department of Mental Health and Mental Retardation. LSH began receiving patients in 1915, and at the time this action was instituted housed patients in two buildings — a main (old) building with twenty-four (24) wards, dining and kitchen facilities, the “male hospital”, and other facilities, and the Ascherman (new) Unit, completed in 1952, with four wards, separate dining facilities, and visiting areas. Men’s wards at LSH are generally classified as strong, dormitory, or open, with descending levels of restrictions on movement. Other types of wards include observation, women’s, behavior modification, and chronic medical.

The patient population at LSH was 1,295 in March, 1971; 783 on August 31,1973, and 761 in November, 1973. Although LSH is an institution for the criminally insane, patients are committed pursuant to both criminal and civil proceedings. The patient population at LSH consists of the following classes of committees:

Observation Patients

1) Persons accused of a crime who set up insanity as a defense, or who are under investigation by the court to determine if they are presently insane. Pursuant to Ohio Revised Code § 2945.40, such persons may be committed for thirty (30) days, during which time LSH is directed by statute to determine the mental condition of the committee.

2) Persons convicted of a crime, but not sentenced,

a. when a person has been convicted of any felony except murder in the first degree where mercy has not been recommended, or any misdemeanor, when it has been suggested or appears to the court that such person is mentally ill, or a mentally retarded offender, or a psychopathic offender, or

b. when the person has been convicted of certain sex related offenses (Ohio Revised Code §§ 2907.02, 2907.03, a felony under §§ 2907.04 or 2919.22, 2907.07, and 2907.08), or

c. when the person has been convicted of abusing, beating, torturing, starving or otherwise causing physical injury to a child.

Pursuant to Ohio Revised Code § 2947.25, such persons may be committed for ah observation period not exceeding sixty (60) days, during which time the person must be examined, and a report concerning his/her mental condition prepared.

3) Parolees who appear to be suffering from a mental illness, referred by the Parole Authority to the Director of the Department of Mental Health and Mental Retardation. Such persons may be confined upon the order of the Superintendent of Parole Supervision for a period not to exceed fifteen (15) days, during which time the parolee’s condition must be diagnosed, *850 and a recommendation of treatment made. Ohio Revised Code § 2967.22.

Indefinite Committees

4) Persons who, after commitment for observation pursuant to Ohio Revised Code § 2947.25, supra, have been found to be either mentally retarded, mentally ill, or psychopathic offenders, and have had their sentences suspended, and have been indefinitely committed to the Department of Mental Health, and then assigned to LSH. Ohio Revised Code § 2947.25(E)(2). This class of committees may include juveniles, pursuant to Ohio Revised Code § 2151.-355(H).

5) Persons accused of a crime who have been found to be insane before trial, or after trial but before sentencing, and who have been indefinitely committed to LSH, pursuant to Ohio Revised Code §§ 2945.37 and 2945.38.

6) Persons acquitted in criminal proceedings on the sole ground of insanity, who have been indefinitely committed to LSH, until it is determined that their sanity has been restored, and that their release will not be dangerous. Ohio Revised Code § 2945.39.

7) Parolees who, after commitment for observation, pursuant to Ohio Revised Code § 2967.22, supra, have been found to be mentally ill, and consequently have been transferred by the Director of Rehabilitation and Correction to the Director of Mental Health and Mental Retardation for confinement and treatment. Ohio Revised Code § 2967.22.

8) Civilly committed transferees from other state institutions for the mentally ill or the mentally retarded who have exhibited dangerous or homicidal tendencies, rendering their presence a source of danger to others. Ohio Revised Code § 5125.03.

9) Transferees from the state’s correctional, penal and reformatory institutions who have appeared to be insane, psychopathic, or mentally retarded, and who upon examination have been determined to require hospital or other special care, and consequently have been transferred. Ohio Revised Code § 5125.05.

Patients who have been convicted of crimes and those who have not are assigned to the same wards at LSH (Larimore Depo. at 102-03).

This factual statement will be supplemented as each issue is addressed. Facts stated in the present tense reflect conditions as they existed at trial. Subsequent modifications are noted when relevant. The definitions set forth in Appendix A of the Court’s Interim Order, supra, 384 F.Supp. at 1198-1200, are expressly incorporated herein by reference.

For clarity, the issues have been numbered as they were delineated in the Pretrial Order, supra. However, the attention of the parties is directed to the fact that the issues are not addressed in numerical order.

ISSUES PRESENTED

Issue One: Whether patients who perform work at LSH are within the protective features of the Fair Labor Standards Act. 29 U.S.C. § 201 et seq.

Issue Two: Whether failure to pay the federal minimum wage to all patients who perform work at LSH is a violation of the Fourteenth Amendment.

Facts:

Patients at LSH work at various jobs which range from housekeeping tasks to those which are necessary for the maintenance of the institution (Stip. 294-300). Each patient is responsible for his/her own personal housekeeping, and patients are not reimbursed for this work. A number of patients voluntarily work without pay cleaning the day hall areas. Other patients work at the request of the attendants, without pay, caring for secluded or restrained patients. These tasks include bathing, feeding, changing linen, and mopping cells (Stip. 299).

As of September 3, 1973, three hundred and five (305) patients were employed at LSH, primarily in jobs necessary for proper *851 administration of the hospital (Stip. 294). 2 These patients worked an average of four (4) to eight (8) hours per day, and were paid an average of ten (10) to fifteen (15) dollars per month (Stip. 298).

Generally, job assignments are made by the Industrial Work Staff Committee, which is comprised of staff from the security, nursing, activity and medical departments. It is stipulated, however, that the staff physician assigned to the Committee does not attend the meetings (Stip. 295). Work assignments are not necessarily based upon therapeutic considerations. Indeed, entire wards are assigned to a specific work detail, apparently to serve administrative convenience (Stip. 295, 296). Assignments of jobs to be performed on a particular ward are made by the attendant staff (Stip. 296).

Conclusions of Law:

At the time the instant case was submitted, the controlling authority on the issue of adequate compensation for work performed by patients at state mental hospitals was Souder v. Brennan, 367 F.Supp. 808 (D.D.C.1973), wherein the district court held that patient workers in state mental hospitals performing work of economic benefit to the institution were workers with an employment relationship to the institution and were, therefore, protected by the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. [hereinafter cited as FLSA]. Accordingly, the disputed issues presented herein were: 1) whether the benefits of the FLSA extended to patient workers who were criminal committees; and 2) whether payment of the federal minimum wage to civil committees, but not to criminal committees, constituted a violation of the Equal Protection Clause of the Fourteenth Amendment.

Since that time, however, the United States Supreme Court has decided the cases of National League of Cities v. Usery, and State of California v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), which presented constitutional challenges to the 1974 amendments to the FLSA by which the wage provisions of the Act were extended to almost all public employees employed by the states and their various political subdivisions. In Usery, the Supreme Court held invalid both the 1966 and 1974 amendments, stating that:

insofar as the challenged amendments operate to directly displace the States’ freedom to structure integral operations in areas of traditional governmental functions, they are not within the authority granted Congress by Art. 1, § 8, Cl. 3 [commerce clause].

426 U.S. at 852, 96 S.Ct. at 2474. Thus, the underlying assumption of the parties regarding the applicability of the provisions of the FLSA to employees of state institutions is no longer valid.

Nonetheless, plaintiffs and Amicus contend that while the patient workers at LSH may not have a statutory right to adequate compensation for work performed which benefits the institution, they do have a constitutional right to receive just compensation for their labor. While the basis of this alleged constitutional right is not well articulated in the briefs, it presumably is grounded in the constitutional right to treatment.

Plaintiffs contend that the work program described above is objectionable on two grounds. First, plaintiffs argue that the nature of the work assigned is not such as will enhance the patient’s self-image, or contribute to his/her recovery, and is therefore eountertherapeutic. In support of this contention plaintiffs rely upon the testimony of expert witness Dr. Walter Fox, M.D., who stated thau forcing people into the performance of menial tasks can be damaging to their self-image (Tr. at 237). In addition, Dr. Fox testified that requiring persons to perform certain job assignments *852 in order to get on to a better ward is countertherapeutic, as is forcing people to work generally, and stated that this would be equally true with respect to both civil and criminal committees (Tr. at 238). Dr. Rudolph Buki, a staff physician at LSH, also has expressed the belief that ward-wide work assignments interfere with the therapy a patient receives (Stip. 382).

Plaintiffs’ second objection to the work program at LSH goes directly to the issue of compensation. Plaintiffs assert that payment of a fair wage for all patient labor which benefits the institution is therapeutically required. Plaintiffs again direct the Court’s attention to the testimony of Dr. Fox, who stated that an “extremely important component in developing a positive attitude toward one’s job” is “paying people for the value of the work they do” (Tr. at 236-37). According to Dr. Fox, the value ,of the patient’s work should be measured by whatever a person in the community would receive, adjusted downward only if the patient’s disability hinders his or her performance of the job (Fox Depo. at 120-21). At trial, Dr. Fox testified that “adequate compensation would be desirable”, but added, “anything is better than nothing.”

Defendants presented no contrary testimony, but emphasize that portion of Dr. Fox’s testimony wherein he stated that there “can be” therapeutic value in the performance of institution maintaining tasks in that “they can help relieve boredom if there aren’t other activities”, and they can broaden the patient’s human contacts. Dr. Fox further indicated that work programs can be helpful in imparting concrete job skills and in instilling proper attitudes.

It is the Court’s belief generally that forced participation in work programs or work assignments which are considered by professionals in the field to be countertherapeutic is violative of a patient’s constitutional right to treatment. Accordingly, the Court has previously ordered that:

Repetitive, nonfunctional, degrading and unnecessary tasks (so-called “make work”) such as buffing a waxed floor that has already been sufficiently buffed, polishing brass, or shining employees’ shoes shall not be required under any circumstances.

Davis v. Watkins, supra, 384 F.Supp. at 1208-09. It is clear from the testimony of Dr. Fox, however, that not all work assignments are countertherapeutic. Thus, the issue before the Court is what standards must be incorporated into a work program to insure that a denial of a patient’s right to treatment does not result. Based upon the record, the Court finds the following standards to be required:

1) Patients may be required to perform tasks of a personal housekeeping nature, such as the making of one’s own bed and cleaning one’s own room. No compensation need be provided for these tasks. Wyatt v. Stickney, supra, 344 F.Supp. at 381. See generally Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966); King v. Carey, 405 F.Supp. 41 (W.D.N.Y.1975); Downs v. Dept. of Public Welfare, 368 F.Supp. 454 (E.D.Pa. 1973) (recognizing a distinction between personal housekeeping chores and other maintenance tasks).

2) All work assignments must be made on an individual basis, and must be dictated by the patient’s personal rehabilitation or training needs, and not solely by the institution’s maintenance needs.

3) All work assignments must be an integrated part of the patient’s treatment plan, and must be approved as a therapeutic activity by a Qualified Mental Health Professional [hereinafter cited as QMHP] responsible for the patient’s treatment. See Davis v. Watkins, supra, 384 F.Supp. at 1203.

4) All work assignments must be supervised by a qualified staff member who is aware of the way the specific work assignment relates to the patient’s individual treatment program.

5) All work performed for which the institution would otherwise have to pay an employee shall be compensated. The wage to be paid patients for performing work for which the institution would otherwise have to pay an employee shall be the amount a person in the community would receive for *853 performing the task, adjusted downward only if the patient’s disability hinders his/her performance of the job. See, e. g., 29 C.F.R. Pt. 529 (1977).

The above standards are grounded in the patient’s right to treatment, 3 and therefore are applicable to civil as well as criminal committees. The purpose of a patient’s confinement in LSH is the same irrespective of the nature of his commitment, to wit, the improvement of his mental condition and, when possible, reintegration into the community from which he came. The mental health profession recognizes no distinction between appropriate treatment modalities for the mentally ill based upon the nature of the commitment proceeding. See Report of Dr. Terry Brelje, Ph.D. Stip. Appendix G at 2. Indeed, Dr. Fox testified that certain work programs would be countertherapeutic for both civil and criminal committees. Moreover, expert witness Dr. Terry Brelje testified that it would generally be countertherapeutic to have a patient treated differently from those with whom he is living (Brelje Depo. at 190). This opinion was concurred in by expert witness Dr. Gerald Clark, M.D., who stated that “[i]t would be essential for maintaining therapeutic relationships with patients” that all patients feel that they are being treated on an equal basis (Clark Depo. at 32). Accordingly, the Court finds that the standards set forth above must be incorporated into any work program at LSH without regard to the patient’s status as a civil or criminal committee. 4

Finally, the Court must address an issue raised only obliquely by the plaintiffs, viz., whether the defendants are constitutionally required to provide patients at LSH an opportunity to participate in a therapeutic, compensated work program consistent with the above standards, as an essential component of the right to treatment.

Standard VI of the Environmental Section of the Joint Commission Accreditation Manual for Psychiatric Facilities (1972) [hereinafter cited as JCAM], provides: “Productive work shall be provided for patients whenever possible.” Based upon this standard, plaintiffs contend that defendants are constitutionally required to maintain a therapeutic, compensated work program, and cannot avoid meeting the standards set forth above by the expedient of eliminating all patient jobs at LSH. 5

The task before the Court is to articulate the minimum constitutional rights which inure in the right to treatment. While the standards set by the Joint Commission on Accreditation of Hospitals [hereinafter cited as JCAH] must be accorded great weight as professional standards, they will not, in every instance, be found to be constitutional minimums. 6 The Court fully appreciates the value of therapeutic, compensated work programs. However, there is nothing in the record to compel the conclusion that absent such programs a patient will be denied “such individual treatment as will give [him] a realistic opportunity to be cured or to improve his or her mental condition.” Wyatt v. Stickney, supra, 325 F.Supp. at 784. Various professionally recognized treatment modalities are reflected in the record, and the Court has no basis upon which to make a finding *854 that some or all of these are not suitable substitutes for the therapeutic value that might otherwise be gained through participation in a work program. Accordingly, the Court will not enjoin defendants to offer patients at LSH an opportunity to participate in a therapeutic, compensated work program, but rather will order only that to the extent a work program is operated, the standards set forth above must be adhered to.

Issue Eight: What is the proper role of security at LSH.

Facts:

LSH has been designated by the State of Ohio as a maximum security facility for the “criminally insane.” The institution is surrounded by a 13' high wire fence, and seven armed guard towers.

The Security Department was organized as a separate entity at LSH in 1960, and at the time of trial the Security Staff consisted of eighty-four (84) persons. The Chief of Security, who is administratively responsible to the Superintendent of the Hospital, is charged with several responsibilities. His primary responsibility is to see that no one escapes (Stip. 140). In this regard, the guards armed with weapons in the towers are instructed to first shout a warning to patients attempting to escape, and then to fire at them if necessary to stop them (Tr. at 672-73). However, weapons have never actually been fired at LSH to halt an escapee (Tr. at 704). The Chief of Security also has responsibility for ensuring safe working conditions for employees, for investigating unusual incidents, for reporting health and safety violations, for transporting patients to and from other institutions, and for controlling local disturbances (Stip. 140; Larimore Depo. at 9-10).

The Security Staff operates the communication system at LSH, including the telephone switchboard, radio, and closed circuit television. Security also mans the gates which separate the dining area from lower security areas, and determines which patients may leave the higher security area to enter the lower security area.

In addition, the Security Staff performs other functions affecting patient treatment on a less regular basis. If a member of the nursing or professional staff has reason to believe a patient is in possession of contraband, the Security Staff will conduct a search. 7 Security also assists in the control, seclusion or restraint of patients when called upon to do so by an attendant or member of the professional staff. Mace is used to restrain a patient rather than physical contact, because it is believed to minimize the danger both to the patient and staff. Sodium bicarbonate, an antidote, is used when a patient must be maced. (Larimore Depo. at 80-84.) Security oversees the Executive Orders on seclusion and restraints, and other institution regulations. As discussed, supra, the Security Department participates on the Work Staff Committee, and also oversees the collection and distribution of incoming and outgoing mail. See p. 862, infra. The Security Department consults with physicians to recommend ward transfers for security reasons (Stip. 143), and on occasion has itself implemented emergency ward transfers, without prior authorization of a physician (Larimore Depo. at 34-35; Tr. at 708).

The Security Staff includes a “roving patrol” which was added to the original staff in 1972, subsequent to a criminal investigation by the State’s Attorney General’s office which resulted in the return of thirty-one (31) indictments, most of which involved incidents of patient abuse. The roving patrol visits each ward daily and investigates unusual incidents, including altercations between patients and between patients and an employee, theft, fire, and destruction of property (Stip. 144). The roving patrol reports violations of hospital rules to a QMHP (Tr. at 678), and refers the names of persons who have been accused of patient abuse to the Allen County Prosecutor (Larimore Depo. at 38).

*855 For a person to qualify for the position of Psychiatric Criminology Attendant I on the Security Staff no police training is required (Stip. 149). Training for Security Officers at LSH is primarily on the job (Stip. 150). Because many members of the Security Staff have been hired from the attendant staff, most, but not all, have at least Psychiatric Aide I training (Larimore Depo. at 12-13; Tr. at 716). This involves a trainee-ship to the nursing personnel which includes a three-week program to develop interpersonal skills and awareness of employees’ restraints, weaknesses and limitations, and a forensic aid course of eighty (80) hours which encompasses the medical terminology, recognition of common physical disorders, first aid, an introduction to normal personality development, common science of mental illness, and dealing with special behavior (See Deft.’s Exhibit 13). At the time of trial twenty-one (21) members of the Security Staff had participated in a two-week training seminar given by the Ohio Department of Corrections and Rehabilitation.

Conclusions of Law:

Plaintiffs assert that security considerations have become paramount to treatment considerations at LSH, and claim that the overwhelming and overriding presence of “security” in the institution is both antitherapeutic and dehumanizing, and therefore violates their constitutional rights to be held in the least restrictive confinement necessary for their continued treatment. Plaintiffs contend that the Security Department’s role should be limited to providing peripheral security to prevent escapes, and request the Court to order that all internal security be delegated to the attendant staff under the supervision of QMPHs. Plaintiffs also seek an order requiring the Chief of Security to answer to the Clinical Director instead of the Superintendent, and have asked the Court to enjoin any rule or policy which requires or permits guards to shoot to kill potential escapees.

Defendants take the position that no constitutional deprivations have been demonstrated by the plaintiffs, and argue that in light of the state legislature’s denomination of LSH as a maximum security institution, “its wisdom concerning security must control * * *.” Defendants’ Post-Trial Brief at 134.

Plaintiffs premise their claim that the security measures at LSH are so repressive as to be countertherapeutic and violative of their right to treatment in the least restrictive environment upon the testimony of three expert witnesses. This testimony may be briefly summarized as follows:

Drs. Walter Fox, M.D., and Gerald Clark, M.D., both expressed the view that LSH is operated primarily as a prison, and functions only secondarily as a hospital for treatment of the mentally ill (Fox Depo. at 91; Clark Depo. at 108). Dr. Terry Brelje, Ph.D., also expressed concern with the paramount concern for security evident among the nursing personnel (Brelje Depo. at 126). According to Dr. Brelje, who is Superintendent of a maximum security institution like LSH in Illinois, the maximum security environment at LSH, “by its very nature * * * reduces the normalization possible.” (Brelje Depo. at 92.) Similarly, Dr. Clark testified that:

In my observation the atmosphere and interrelations were negative and non-therapeutic rather than therapeutic at Lima State Hospital at the time of my visit in that the emphasis was placed on security, control, repression, restriction and overuse of tranquilizing medication.

(Clark Depo. at 75.)

In a similar vein, Dr. Fox testified that the great emphasis on security at LSH has an inhibiting effect on treatment. Dr. Fox testified that he was told many times by staff at LSH that they would have liked to have planned various activities for patients, but the Security Department had told them they could not. On this basis Dr. Fox concluded that therapy was interrupted by security considerations at LSH.

Defendants have presented no expert testimony to controvert the views of Drs. Brelje, Fox and Clark. Rather, defendants rest their position upon case authority which recognizes that:

*856 Traditionally, federal courts have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the s.cope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison, administrators are responsible for maintaining internal order and discipline, for securing their institution against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody.

Procunier v. Martinez, 416 U.S. 396, 404, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). See also Cruz v. Hauck, 475 F.2d 475 (5th Cir. 1973), appeal after remand, 515 F.2d 322, cert. denied sub nom., Andrade v. Hauck, 424 U.S. 917, 96 S.Ct. 1118, 47 L.Ed.2d 332 (1976); Vida v. Cage, 385 F.2d 408 (6th Cir. 1967). Defendants contend that the security measures at LSH are necessary to fulfill the state’s duty to prevent escape, and to ensure the safety and good health of patients confined therein. See Smith v. Sullivan, 553 F.2d 373 (5th Cir. 1977); see also Grames v. Metzger, Civ. No. 72-457 (N.D. Ohio W.D. filed January 7, 1977).

The Court fully recognizes that federal courts do not sit to supervise state institutions, the administration of which is of acute interest to the states. Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). This policy of judicial restraint does not, however, encompass any failure by the states to take cognizance of valid constitutional claims. Procunier v. Martinez, supra, 416 U.S. 405-06, 94 S.Ct. 1800; Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977). And as is noted elsewhere in this Opinion, the state’s mere invocation of the talisman “security” does not require the Court to stay its hand and thereby sanction the infringement of plaintiffs’ cognizable constitutional rights.

In the Court’s view, the testimony summarized above, considered against the background of the total record developed in this case, compels the conclusion that the security measures at LSH are so pervasive and oppressive as to infringe upon the plaintiffs’ constitutional right to treatment in the least restrictive confinement. To be sure, not all infringements upon the constitutional rights of persons confined in state institutions are impermissible. As the Supreme Court stated in Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974), “ * * * there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” Though fully aware of the “dangerousness” of the patient population at LSH, and of the resulting need to take certain security precautions, the Court, on the record before it, finds that defendants have not accommodated, to the extent required by the Constitution, the plaintiffs’ right to treatment in’ the least restrictive environment.

The Court does not, however, consider the full range of relief sought by plaintiffs to be either necessary or appropriate to reach a mutual accommodation of the security needs of the institution and the constitutional rights of the plaintiffs.

The Court finds no basis for absolutely enjoining the use of firearms to halt patients at LSH attempting to escape. Statutes and regulations permitting law enforcement officers to use force that might result in death in preventing the escape of persons they are attempting to arrest have consistently withstood constitutional challenge, provided the following constraints are imposed: 1) the officer must reasonably believe the person has committed a felony; 2) the officer must first notify the person that