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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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.
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
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.
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.
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