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October 1, 1991


The opinion of the court was delivered by: Larimer, District Judge.


This is a class action brought by black and hispanic inmates at the Elmira Correctional Facility ("Elmira") in Elmira, New York claiming widespread discrimination at the facility on the basis of race in violation of the Fourteenth Amendment of the Constitution and 42 U.S.C. § 1981 and 1983.

In general, plaintiffs claim that officials in charge of Elmira have, for the most part, ignored blatant racism that pervades Elmira and that such conduct violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs claim, specifically, that blacks and hispanics are routinely discriminated against by the mostly white guards and administration with respect to housing, employment and discipline. Plaintiffs claim that white inmates are given better jobs, preferable housing and disciplined less frequently than is the case with black and hispanic inmates.

Plaintiffs request that the Court declare that these policies violate the Equal Protection clause of the Fourteenth Amendment and enjoin the policies and procedures at Elmira that result in discrimination on the basis of race. Plaintiffs request that the court fashion appropriate prospective relief to ensure that decisions concerning housing, job assignments and discipline are based only on race-neutral factors.

This action was commenced in 1986. The defendants are the top administrators of the prison at that time.

Defendant Ronald Miles was the Superintendent of the prison from April 1985 to August 1988, and defendants Howard Novak and Donald McLaughlin previously served respectively as Deputy Superintendents of Security and Programs under Superintendent Miles. These defendants deny any personal responsibility or involvement in any alleged acts of racism.

Defendants deny the existence of race discrimination at Elmira at the present time, although they concede that prior to commencement of the lawsuit there may have been some practices and procedures in effect that caused whites to receive preferential treatment in certain matters. Defendants claim that whatever discriminatory practices existed previously have now been corrected, in part, because of this lawsuit, and at this time race is no factor in making job assignments, allocating housing or imposing discipline on inmates.

The case was tried to the Court and the Court took several weeks of testimony and received substantial documentary evidence as well. In support of their case, plaintiffs called twenty-three witnesses,*fn1 including four former staff members and administrators at the facility, an expert witness who did a statistical analysis concerning housing, jobs and discipline as well as eighteen former and present black and hispanic inmates. Thirteen former and present prison employees testified for the defense. In addition, the parties have submitted extensive posttrial briefs.

This decision constitutes my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52.

I find that plaintiffs have proven the existence of a pattern of racism at the Elmira Correctional Facility. This racism goes beyond verbal taunts and racial slurs uttered by guards to minority inmates. The racism affects job placement, housing assignments and discipline at Elmira to a degree that is unacceptable under the principles of equality that form the basis of our government. Therefore, court intervention is warranted and an injunction must be entered to guarantee that such practices cease.

Prisons are ugly places. The inmates are often society's worst failures. The job of maintaining prisons and supervising its inmates is a very difficult, dangerous and often unappreciated task. But no matter how difficult the task facing prison administrators, racism must play no part in the operation of a prison. Racism is never justified; it is no less inexcusable and indefensible merely because it occurs inside the prison gates. As a society we have made a commitment to equality under the law. This goal has not yet been achieved and perhaps never will be unless those who govern take firm steps to eradicate racism whenever they are able to do so. When racism is proven, federal courts must be especially vigilant to insure that all citizens — even the most unpopular — are guaranteed the equal protection guaranteed by the Constitution.


Plaintiffs' proof consisted of both direct and circumstantial evidence that race was a factor in making decisions at Elmira concerning housing, jobs and discipline. Plaintiffs presented substantial anecdotal evidence of racism relating to these areas. Most of plaintiffs' witnesses and some defense witnesses testified concerning instances of racial harassment and verbal abuse by white corrections officers.

Plaintiffs also presented extensive statistical evidence of discrimination in housing, jobs and discipline by Dr. Ronald Christensen. Dr. Christensen testified about the significant statistical disparities between white inmates and minority inmates as to placement in preferred housing, assignment of jobs or programs and as to the imposition of discipline.

A. Housing

The Elmira Correctional Facility is a maximum security prison with approximately 1,352 inmates. Inmates are housed in nine separate buildings called blocks. These blocks vary in size, cleanliness, and safety. Certain blocks are definitely considered to be preferred by inmates. The evidence established that the preferred housing units were well known by both inmates and staff.

The two largest blocks, G Block and I Block are considered the least desirable. I Block, in particular, is often referred to as a "slum" and a "jungle." These two blocks are much larger than the others and are considered much nosier, dirtier and in many cases much more dangerous. There was testimony that in these larger blocks, many inmates prefer to be placed in the front area of the block so that they would be more observable and closer to the guards if trouble should occur. Other, smaller blocks are much more pleasant and much more desirable. These blocks include E and F which had approximately 100 inmates per unit and H and D Block which were the smallest blocks with approximately 54 beds.

Plaintiffs' claim, in a nutshell, is that there is, and has always been, a disproportionate number of whites assigned to the preferred housing blocks than is the case with black and hispanic inmates. Plaintiffs claim, and I believe the statistical evidence supports the claim, that whites are more often placed in the smaller blocks and in D Block, the Honor Block, than should be the case based on their percentage of population.

Blocks A and B are connected with the Elmira Reception Center for Juveniles and are not at issue in this lawsuit. As now constituted Block C is primarily used for inmates going through orientation and for inmates employed in food services and in the hospital. D Block is the Honor Block. E Block primarily houses those working in the prison industries, the employee staff restaurant and the Reception Center. F Block is for college students and those working outside the prison. H Block, since June of 1988, houses those in the Intermediate Care Program which is run in conjunction with the Office of Mental Health and is a facility designed to give mental health counseling to inmates in order to get them back into the general population. G Block and I Block are described as general program blocks housing a large number of inmates involved in various job programs.

The size of the blocks vary. D Block, the Honor Block, and H Block are the smallest, housing 54 inmates. E and F Block had about 100 inmates each. C Block had 250 inmates. G and I Block were the largest with about 300 inmates each.

The evidence was quite clear that the smaller Blocks, E, F and H and the Honor Block, were the preferable housing blocks and that the larger Blocks, G and I, were much less desirable. Many of the inmate witnesses described this as did several prison administrators.

Former Superintendent Bert Ross and a former guard, Roland Coleman, corroborated witness testimony concerning the preferred housing blocks. Inmate counselors Thomas Rupp and Jerome Kaplan both corroborated inmate testimony that G and I Blocks were often referred to as "ghetto" or "slum" blocks.

Both prior to and subsequent to the filing of this lawsuit, the general perception of the inmates was that there was a disproportionate number of whites in the preferred housing units and also a greater proportion of minorities in the less desirable housing blocks. That the inmates understood and perceived this disparity is not really in dispute. What is remarkable is that many prison administrators noticed the same discrepancies but did little to correct the situation.

Bert Ross became Superintendent at Elmira in September 1988. At trial, he admitted that there was a long "tradition" at Elmira that white inmates would get preference for housing in the Honor Block. When he became Superintendent, he recognized that this Block had a disproportionately high number of white inmates which he believed to be about 40% at that time. He also admitted that when he first met with the Inmate Liaison Committee, they complained about discrimination in housing. Ross also testified that when he was assigned to Elmira in 1985 as the First Deputy Superintendent, he observed a disproportionate number of whites in D Block and in other blocks. This tradition of placing whites in certain cell blocks also applied to certain jobs which consistently were given to whites.

Mel Hollins, who served as a corrections officer at Elmira, testified at his deposition that the white inmate population in Blocks D, E, F and H was disproportionate to their numbers in the general population. In his judgment, this was caused by the racial bias of the prison administrators who made decisions concerning housing. Hollins particularly noted the disparity in H Block, one of the smallest blocks. Moreover, Hollins testified that following an escape by three white inmates from the Honor Block in 1983, a "shock wave" ran through the facility, causing staff to question why white inmates who had been imprisoned for only a short time had been housed in the Honor Block to begin with. See generally Ex. 71 at 8-16.

Corrections Officer Roland Coleman stated that, toward the beginning of his tenure at Elmira, he observed very few minority inmates in F and E Blocks. Although this changed somewhat during his employment at the prison, he did not describe the changes as very substantial. See Tr. Vol. IA at 944-45.

George Bartlett, the present Superintendent at Elmira testified that when he became Superintendent he noticed that the Honor Block was not balanced by race although he claimed that he took steps to correct that. He testified that ethnic balancing is now being attempted in the Honor Block by attrition, that is, when vacancies occur preference is given to minority inmates. He has taken no steps to balance the other blocks since he believes that all of the other housing is arranged according to job or program assignment.

Plaintiffs' anecdotal evidence of the disparity between whites and minorities was amply corroborated by plaintiffs' expert witness, Dr. Ronald Christensen. Dr. Christensen's educational and employment background was most impressive. Dr. Christensen's resume (Ex. 30) shows that his experience in statistics and data analysis is extensive and varied. In sum, I credited Dr. Christensen's testimony and accept the conclusions that he reached based on his analysis. Although defendants challenged Christensen's findings in their posttrial briefs, his testimony stands unrebutted at trial. There was no evidence introduced to contradict Dr. Christensen's statistical analysis.

Dr. Christensen computed the statistical significance of the disparities between white and minority inmates using a standard statistical methodology.*fn2 Statistical significance measures the likelihood that the relationship or difference between two quantities could have occurred by random chance. He used a significance level of .05 (one in 20) as the level where the disparity between measured items had some statistical significance. (Tr. Vol. I, 39-39). In Christensen's opinion, statisticians recognize the .05 level as representing approximately two standard deviations from the norm or average disparity that would be expected. (Tr. Vol. I, 59-60). He determined that any disparity between measured groups at a level of .05 or less was statistically significant. He determined that based on the statistics, chance could not have caused the disparities and that these disparities were related to the race of the inmates. (Tr. Vol. I, 42-44).

Christensen performed a statistical analysis of the housing at Elmira, comparing whites with blacks and hispanics. He performed this analysis by analyzing "cell books" maintained by the facility. The cell book identifies each inmate by name, race, program assignment and cell block on each day of the year. Christensen selected 11 separate days from January 1985 to February 1990 (Ex. 32).

Christensen's conclusion was that white inmates were housed more frequently in the preferable housing blocks (E, F, and H) than should have been expected when compared with their relationship to the prison population as a whole. In his opinion, this deviation was so significant that the disparity could not have occurred by chance. In his view, there was no plausible explanation for the dramatic deviation except for race.

Exhibit 32 is a compilation of the data studied by Dr. Christensen, showing the proportion of whites in certain "preferred" housing areas in comparison with the proportion of whites in the general prison population. Exhibit 33 is the expert's analysis of the statistical significance of this data.

For each date for which a cell book was produced, Exhibit 32 makes two separate comparisons. First, the percentages of white, black and hispanic inmates occupying cells in the smaller and larger blocks are compared with percentages of such inmates in the general population of the prison. For example, the January 25, 1985 cell book reveals that on that date, white inmates comprised 19 percent of the total prison population, but whites made up 30 percent of the inmates housed in E, F and H Blocks, and only 14 percent of those housed in the larger less desirable Blocks, C, G and I. Exhibit 33 then sets forth the statistical significance of this result, and with reference to January 25, 1985 denotes a *.001 probability that the result would occur by chance.*fn3 In other words, the chance is less than one in a thousand that the disparity would occur by chance. In Christensen's opinion, such a deviation virtually eliminated the possibility that the assignment occurred by chance.

An analysis of these cell books shows clearly that whites consistently were housed in the more preferable blocks, to an extent that was way out of proportion to their percentage of population.

For example, although whites comprised 20% of the total prison population on June 21, 1985, they represented 34% of inmates housed in the more preferable E, F, and H Blocks. Whites, on the other hand, represented only 15% of the population in the less desirable blocks.

On March 7, 1986, whites comprised only 19%, of the total prison population, yet they represented 33% of the inmates housed in the more preferable blocks. On June 4, 1986, the percentage was the same. In sum, on all dates analyzed, the percentage of whites as compared to their percentage of the total prison population was much greater in the preferable housing blocks.

Dr. Christensen also analyzed the percentages of each ethnic group that had been housed in the various housing blocks. In every case, the percentage of whites living in the preferable blocks far exceeded the percentage of whites in the prison population. For example, on January 25, 1985, 30% of the white population was housed in the preferable blocks. Although blacks comprised 61% of the total prison population, only 21% of the blacks were housed in the preferable blocks. Seventy-six percent of the blacks in the institution were housed in the larger, less desirable blocks.

Although Dr. Christensen did not analyze the significance of disparities in the racial makeup of the population in D Block, the Honor Block, plaintiffs' Exhibit 34 lists the percentages of white inmates in each housing block. In January 1985, whites comprised 35 percent of the D Block population, and, although that percentage declined steadily until March 1987, it then rose dramatically to reach 43 percent in January 1989 and 39 percent in September of that year. Similarly, Exhibit 34 shows gross disparities in the ethnic makeup of H Block.

These gross numbers are significant in themselves. Dr. Christensen's statistical analysis of these figures (Ex. 33) is even more compelling.

Dr. Christensen determined that the disparities between white inmates and minority inmates was so great that chance could not have produced the result. Based on his analysis, race must have been a factor in producing the measured deviations. Using the significance level of .05 (two standard deviations) as a gauge, he found that on virtually all of the dates analyzed, the deviation was at least .001 which placed it well beyond two standard deviations.

Dr. Christensen described the statistical disparities as very significant and the data virtually eliminated any possibility that these disparities could have occurred by chance. Because these deviations occurred over a lengthy period of time and because they were consistent and significant, he concluded that the race of the inmate was the factor that caused the deviation.

The defense did not introduce expert testimony to counter Dr. Christensen's findings. In essence, the defense was that although there had been past instances of housing discrimination, changes were made by successive superintendents to eliminate race as a factor in making housing assignments. Defendants offered proof to show that housing is now allocated, for the most part, according to program assignments. Inmates with the same "program", whether educational or occupational, were housed in the same block. In addition, there was testimony that efforts were made to admit more minorities to the Honor Block.

David Post testified that he was a Senior Corrections Counselor at Elmira and was the Chairman of the Honor Block Committee from October 1988 to August of 1990. He believed that because of the instant lawsuit, he was directed in approximately mid-1989 to monitor the racial makeup of D Block to see that it more closely resembled the population mix of the prison. This process is continuing but is slow since most inmates do not voluntarily leave D Block. By attrition he is attempting to place more minorities in the block.

Post also testified that the Honor Block Committee retains great discretion in deciding whether inmates should be assigned there. For example, he asserted that the committee may decide to keep an inmate on the block even though he may have committed disciplinary infractions which would otherwise result in his automatic removal. See Tr. Vol IIA at 526-29. Some indication that this practice can result in discrimination came from the deposition testimony of Curtis Coley, Supervisor of the Inmate Grievance Program. Based on his conversations with and observations of inmates and counselors, Coley testified that, when the committee decides whether to admit a given inmate, "[u]sually the smallest details on the [black] inmate's record is brought in as a factor, okay. Sometimes it isn't always that way with white inmates." Ex. 70 at 74.

Richard Cerio testified that in 1985 he was directed by defendant McLaughlin to begin implementing a housing realignment plan. The goal appears to have been to house inmates according to job assignment, in large part to facilitate the movement of inmates between the cells and program assignments.

Dr. Christensen's statistical evidence, however, revealed that the proportion of whites in the small housing blocks did not decrease substantially and uniformly after the housing realignment proposal was implemented. In part, this may have been due to the discretion that remained with corrections officers to fill extra cells not filled according to job assignment. For example, these so-called "out of category" cells in desirable blocks were filled by whites at a rate of 46 and 44 percent in March and November 1987, respectively.

Not only are these statistics particularly disturbing, but, when asked whether disparities existed despite the realignment plan, staff who were purportedly in charge of implementing the plan simply responded "I don't know." See, e.g., Tr. Vol. II at 196 (Cerio); Vol. IIA at 497 (Barnes). It is thus evident that these officials had not bothered to inform themselves of the effectiveness of their own so-called remedial measures.

Defendant Miles exhibited a similar attitude at his deposition. When asked whether he monitored ethnic balancing in housing following implementation of the realignment proposal, Miles answered in the negative. When queried whether anyone monitored the situation, he replied "I have no idea." See Ex. 63 at 70-71.

B. Jobs

Plaintiffs complain that there is racial discrimination in the assignment of jobs and programs at Elmira. Plaintiffs claim that certain jobs — preferred jobs — are held principally by white inmates and that blacks and hispanics are underrepresented in these preferable jobs.

The evidence established that certain jobs were viewed as better than others by the inmates. Both prisoners and prison administrators had little trouble identifying those preferable jobs. They included maintenance, housing block clerks, porters, cage floor workers, officers' mess hall, print shop, bakery and various clerical positions. [Exs. 24, 34A]. Plaintiffs claim that some of these jobs have been and continue to be assigned on the basis of race.

It is clear that prior to 1984, job assignments were made in several ways. Corrections counselors and staff could make requests concerning the placing of inmates. This led to the tradition of placing whites in preferable jobs. The Inmate Program Committee at that time handled mostly cases where inmates worked outside the prison. From 1984 the Inmate Program Committee should have been responsible for all job assignments and transfers. In 1986 an Inmate Program Placement Coordinator (IPPC) was hired who became chairman of the Program Committee.

I find from the evidence that prior to the mid-1980's there was a well-established tradition at Elmira that certain jobs were routinely given to white inmates. Testimony concerning that fact came from several sources. Bert Ross, the Superintendent at Elmira from 1988 to 1990 testified that there was such a tradition in existence, although he insisted that he took steps to change it during his tenure.

Otu Obot testified that he was employed at Elmira from June of 1988 until November of 1989 as the Inmate Program Placement Coordinator. When he arrived at Elmira, he was told by his superiors and by others that it was "tradition" that certain premium jobs had been assigned to white inmates.

Regarding the "tradition" of discriminatory job assignments, retired Officer Roland Coleman testified that when he began his employment at Elmira, in the early 1960's, he observed that most of the jobs he considered "good" were staffed by white inmates. By the end of his tenure, in 1982, Coleman testified there were some changes in this pattern, but he termed those changes "slight." See Tr. 1, Volume 1A at 935-43.

Mel Hollins testified at his deposition that in 1979 there existed a "tradition" of assigning white inmates to desirable jobs. See Ex. 71 at 33. He also stated, however, that since that time, changes had been made, occasioned in large part by turnover of the top administrators. See Id. 33-34.

Deputy Superintendent McLaughlin testified that, prior to 1985, he had become aware of racial disparities in both the commissary and employee restaurant. See Tr. Volume 2 at 343, 355. His awareness concerning the restaurant could have dated as far back as 1979. Id. at 355.

Various staff members, including Counselors Kaplan and Cerio, as well as Deputy Superintendent Novak, testified either at trial or deposition that they had, on several specific occasions, observed disparities in preferred jobs. According to Kaplan, he attributed this to the fact that "some employees were asking for certain people." See Ex. 72 at 23.

Several inmates who testified provided direct evidence that certain jobs were traditionally held by white employees. For example, inmate George Lombardo testified that he had been incarcerated in Elmira since 1983. He described the preferred jobs and as to some of them, especially the housing block clerks, he testified that almost all of them were filled by whites during the first years after his arrival in 1983.

Morton VanAllen also testified concerning the preferred jobs. He testified that work on maintenance and in the cage floor area was a preferred job and that virtually all the inmates in those positions were white. Several other witnesses also testified about their observances concerning the dominance of whites in the preferred jobs.

Perhaps the best evidence that there was a discriminatory tradition in the assignment of jobs was the fact that the prison administration conceded that there was a problem and made some attempt to rectify it. Obot's job as Inmate Program Placement Coordinator was to chair a three person committee that would place inmates in various work programs. He recalled that he attended a meeting with most of the top prison administrators during which Superintendent Ross advised them of this lawsuit and that because of it the jobs were to be monitored concerning their racial composition.

Obot was to monitor the ethnic balance of those jobs on the so-called premium list. This "premium list" contained those jobs traditionally preferred by inmates and was in existence prior to Obot's arrival. Obot determined that there was an ethnic imbalance as to the preferred jobs.

Obot testified that there was always tremendous opposition to his efforts to balance the ethnic makeup in the premium jobs by many of the corrections officers. This was especially the case with reference the clerk positions in the housing blocks. He testified that there were many attempts by guards to circumvent the directives of Obot as head of the IPPC. Obot's efforts were often thwarted by guards and other administrators who used tactics such as firing the inmate, not allowing the inmate to perform designated tasks or taking steps to transfer the inmate due to "security problems." Obot testified about three specific instances where guards refused to accept black inmates who were assigned to work in their area. At least two of these instances resulted in Obot, who is black, being subjected to racial harassment and intimidation by guards. One guard told Obot that "we don't like smart niggers" at Elmira. When Obot complained to a superior officer about one confrontation, the corrections guard in question later confronted Obot, cursed him, used racial epithets and brandished his night stick in a threatening manner. Although Obot complained to the Superintendent about this incident, nothing ever came of it as far as he knew.

In Obot's opinion, attempts by the administration to obtain some ethnic balance in the premium jobs would not have occurred except for the pendency of this lawsuit.

This resistance to Obot's efforts was exemplified by the actions of Officer Art Wichtowski, whom Obot testified opposed assignment of a minority to his area, the cage floor, "several times." See Tr. Volume 1A at 1001. Wichtowski would even pull white inmates from other assignments to work on the cage floor. See Id. at 1002. When Obot questioned Wichtowski, the latter responded with racial epithets. Id.

An example of Staff resistance to ethnic balancing is reflected in Obot's experience with Carol Griffith, Supervisor of the library. Griffith, whose library clerks were mostly white, even went so far as to tell an hispanic inmate, who was assigned by Obot and the Program Committee to be a clerk, to mop floors instead. Griffith told Obot flat out that she did not want hispanic workers in her area. See Tr. Volume 1A at 981-82. In her opinion, hispanic inmates steal books. See Id. at 1000.

Other officials at Elmira testified about Wichtowski's attitude and actions concerning blacks. Coleman testified about this and Richard Cerio, a Senior Corrections Counselor, admitted that he was aware that Wichtowski refused to accept blacks in his area, the cage floor, and that this area was consistently out of balance concerning racial makeup.

Cerio also testified at his deposition concerning staff influence over job assignments. At page 38 of his deposition, he described that, prior to greater involvement by the Program Committee, counselors would generally assign inmates in conformity with requests from staff. In Cerio's words, "people use [sic] to try to look for people that they wanted to hire." Id. at 36-37. In Captain Hollins' opinion, moreover, it was a "fact" that those in decision making positions were racially biased. See Ex. 71 at 23.

In addition to the anecdotal evidence and the admissions of prison officials that premium jobs were held more consistently by whites, there was substantial statistical evidence which was analyzed by Dr. Christensen that demonstrated the disparity between whites and minorities concerning assignment to the preferred jobs. These statistics, which were not rebutted by defendants, clearly demonstrate that whites did tend to receive the ...

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