Cruel and unusual punishment?

566 F.Supp. 773, Soto v. Cady, (D.C.Wis. 1983)
*773 566 F.Supp. 773

Carlos S. SOTO and Robert Mallory, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
Elmer O. CADY, Thomas R. Israel and Gerald Heeringa, Defendants. Carlos S. SOTO, Plaintiff,
v.
Elmer O. CADY, Administrator, Division of Corrections of the State of Wisconsin, et al., Defendants.
Civ. A. Nos. 80-C-146, 80-C-321.
United States District Court,
H.D Wisconsin.
June 29, 1983.
Both class action and individual suit were brought against prison officials, challenging use of chemical agents upon inmates for disciplinary purposes. The District Court, Terence T. Evans, J., held that: (1) use of chemical agents by prison officials on recalcitrant inmates was use of "force" under either administrative regulation or Eighth Amendment, and (2) use of chemical agents against inmates locked in cells or strip cages who were thus incapable of using violence against others, and whose disobedient behavior was passive, was violative of both Eighth and Fourteenth Amendments.
Injunctive order issued.
1. CRIMINAL LAW 1213.8(1)
110 —-
110XXVI Punishment of Crime
110kl213 Cruel or Unusual Punishment
110kl213.8 Punishment Imposed
110ki213.8(l) In general.
D.C.Wis. 1983.
Eighth Amendment prohibits punishment which is incompatible with evolving standards of decency that mark progress of maturing society. U.S.C.A. Const.Amend. 8.
2. CONSTITUTIONAL LAW 92
92X11 Due Process of Law 92k254.1 Liberties and liberty interests
protected. D.C.Wis. 1983.
State can create liberty interest under Fourteenth Amendment by statute, by rule, or by regulation; if
state places limitations on official discretion, it in all likelihood has created liberty interest. U.S.C.A. Const. Amend. 14.
3. CONSTITUTIONAL LAW 272(2)
92
92X11 Due Process of Law
92k256 Criminal Prosecutions
92k272 Execution of Sentence
92k272(2) Imprisonment and incidents thereof. D.C.Wis. 1983.
Administrative regulation which limited discretion of prison officials in use of chemical agents against inmates created in inmates, for Fourteenth Amendment purposes, liberty interest in not being subjected to use of chemical agents except in specific situations authorized by regulation. U.S.C.A. Const. Amend. 14.
4. CRIMINAL LAW 1213 110
110XXVI Punishment of Crime 110kl213 Cruel or unusual punishment.
[See headnote text below]
4. PRISONS 13(4)
310
310k 13 Custody and Control of Prisoners
310kl3(4) Particular violations, punishments,
and deprivations; use of force. D.C.Wis. 1983.
Use of chemical agents by prison officials on recalcitrant inmates was use of actual "force" under either administrative regulation delineating situations in which such agents could be used or under Eighth Amendment. U.S.C.A. Const.Amend. 8.
See publication Words and Phrases for other judicial constructions and definitions.
5.CONSTITUTIONAL LAW 272(2)
92
92X11 Due Process of Law
92k256 Criminal Prosecutions
92k272 Execution of Sentence
92k272(2) Imprisonment and incidents thereof.
[See headnote text below]
5. CRIMINAL LAW 1213
110
110XXVI Punishment of Crime
.11CM213 Cruel or unusual punishment. D.C.Wis. 1983.
Use of chemical agents by prison officials against inmates locked in cells or strip cages who were thus incapable of using violence against others, and whose disobedient behavior was passive, was violative of both Eighth Amendment, as being cruel and unusual punishment, and Fourteenth Amendment, as being infringement of inmates' liberty interest in not being subjected to use of chemical agents except as set forth in administrative regulation. U.S.C.A. Const.Amends. 8, 14.
*774 Peter J. Stone and Peter L. Gardon, Whyte & Hirschboeck, S.C., Milwaukee, Wis., for plaintiffs.
John R. Sweeney, Asst. Atty. Gen., Madison, Wis., for defendants.
DECISION
TERENCE T. EVANS, District Judge.
Case number 80-C-146 is a class action suit brought on behalf of inmates confined in the Adjustment Center at the Wisconsin Correctional Institution at Waupun, Wisconsin. The inmates seek an injunction, or alternatively declaratory relief, prohibiting the current uses of chemical agents ("mace" hereinafter) at the prison.
Case number 80-C-321 is an individual macing suit brought by Carlos S. Soto, a former inmate at Waupun. Soto's individual claim for damages was consolidated and tried with the class action claims in 80-C-146.
Trial to the court was held in November, 1982. The first day of the trial took place at the prison. During the first day, I heard testimony from inmates and visited the Adjustment Center. The balance of the trial took place in Milwaukee. The following discussion precedes my formal findings of fact and conclusions of law.

I have been to the prison at Waupun on many occasions. I have also had a number of opportunities to visit the prison's Adjustment Center. While the prison, and particularly the Adjustment Center, has never been what one would call a pleasant place, I have never seen it as dangerously overcrowded as it was when I was there during this trial. The prison is, of course, holdin *775 over 300 inmates beyond its approved capacity. Inmates
in the Adjustment Center are dangerously doubled up in cells that are small even for one person. In short, the situation is an accident waiting to happen. I believe that the severe overcrowding at the prison, especially in the Adjustment Center, has contributed significantly to the tensions that precipitated many of the incidents about which I have heard testimony or reviewed reports.

The issues here have not changed from what they were on February 22, 1982, when I issued a decision denying a motion for summary judgment in the class action. In addition to the prison documents describing macing incidents and affidavits of inmates and guards considered in connection with the motion, I have now heard testimony from both sides regarding several macing incidents.

Robert Mallory testified that he was maced on February 4, 1981, while locked in his cell. Mallory refused to return his plastic meal tray. He placed the tray on his bed, went to the back of his cell and sat down. He was not violent, did not make threats, and had no weapons. He was ordered to return the tray. When he refused, he was maced. The next day, Mallory again refused to return a meal tray. This time, guards, dressed in riot gear, entered his cell and retrieved the tray without incident.
Laron McKinley was maced on November 24, 1980, for refusing to move a book which was preventing the closing of an outer wooden cell door. McKinley was locked behind metal doors at the time. McKinley was also maced on September 26, 1980, while he was locked, naked, in a small strip cage. He had refused to spread his buttocks for a search.

Soto, the individual plaintiff in 80-C-321 and a member of the class in 80-C-146, was maced on December 13, 1979, while he was locked in a cell and handcuffed. Soto had refused to be double-celled with another inmate whom Soto considered dangerous. William McAdoo was maced on October 11, 1980, for throwing milk on a correctional officer.

All in all, according to prison incident reports, about 130 macing incidents occurred between January 19, 1979 and November 16, 1982. The incidents differ, of course, in the degree of disruptive conduct exhibited by the inmates and in the amount of mace used by the officers. The defendants do not seriously dispute the facts; rather, they state that in each case direct orders were given the inmates-for instance, to return a tray, remove a book, submit to a strip search or come to the front of the cell to be cuffed. When the orders were disobeyed, according to the defendants, "mace was applied" to force compliance.

Plaintiffs argue that the use of mace under the circumstances described in this record are in violation of their Eighth Amendment right to be free from cruel and unusual punishment. They also claim that the macings are in violation of the regulations of the State of Wisconsin under which the prison operates and that, therefore, the use of mace violates the inmates' rights under the Fourteenth Amendment. Defendants argue that their use of mace is proper under the Eighth Amendment; that the plaintiffs have no liberty interest in the defendants' observation of their own administrative regulations, so that no due process claim exists; and that even if such a claim existed, defendants are acting within the regulations.

Cases involving the use of chemical agents in prisons reveal the reluctance of the federal judiciary to get involved with the administration of state prisons. They show a recognition on the part of judges that prison officials are in a difficult and dangerous business. See, for instance, Hendrix v. Faulkner, 525 F.Supp. 435 (E.D.Ind.1981), and cases cited therein.

The decision of February 22, 1982, reflects my reluctance to be involved with the administration of the prison at Waupun and a recognition of the difficulty of running a prison. At that time I stated that it was a short step from the case law regarding macing *776 to the "conclusion that the Incident Reports in the record may, in some instances, reveal that mace is employed in a manner not sanctioned by the Eighth Amendment to the Constitution." p. 10. 1 also stated that defendants' conduct was likely to be found in violation of their own regulations. A preliminary injunction was denied, however, on the basis that to grant it would disserve the public interest:
"Because of the serious and difficult tasks faced by defendants to this action, I am convinced that the public interest is served by allowing them time to reevaluate their interpretation of their regulations before being faced with a federal court order." p. 11.
So far as I can tell, the decision of February 22, 1982, has had no effect on defendants' views.

Consequently, I must set aside my reluctance to become involved in the administration of the prison and my hope that the defendants would recognize that regardless of their personal views, the law, while not entirely clear, requires curbs on the use of chemical agents. The point has come to be certain that the constitutional rights of the inmates are not being violated.

[1] The Eighth Amendment prohibits punishment which is incompatible with "evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1978). The use of chemical agents in prisons has required courts to consider whether its use is compatible with contemporary attitudes toward what constitutes cruel and unusual punishment. Some courts have sanctioned the use of tear gas and other chemicals. See Bethea v. Grouse, 417 F.2d 504 (10th Cir.1969); Washington v. Anderson, 387 F.Supp. 412 (E.D.Okl.1974). Other courts in later cases have taken a close look at the physical effects of chemical agents and have determined that under some conditions their use violates the Eighth Amendment. See Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979).

Two fairly recent decisions from the Court of Appeals for this Circuit have recognized the trend toward restricting the use of chemical agents. In Stringer v. Rowe, 616 F.2d 993, 999 (7th Cir. 1980), the court pointed out that while courts in the past have sanctioned the use of chemical agents when reasonably necessary, recent decisions have "emphasized that use of chemical agents such as tear gas and mace by prison officials to subdue individual prisoners, rather than to quell large disturbances, should be more restricted."

In Lock v. Jenkins, 641 F.2d 488 (7th Cir. 1981), the court considered the use of tear gas and other chemical disabling agents on pretrial detainees. The analysis proceeded under the Fourteenth, not the Eighth Amendment. However, the court implied that the issues posed were the same. Relying on Stringer, sup; ar Spain, supr, the court concluded that only in "rare occasions" would it be appropriate to use chemical agents to control inmates already confined in their cells. I Lock, supra, the record shows that the inmates were engaged in "inciting to riot at a time of tremendous tension in the prison following an attempted escape and the taking hostage of the prison Warden and several others." The court concluded:

"We believe that the facts shown regarding this institute constitute one of the rare occasions when the use of tear gas against persons locked in cells was not unjustified." At 496.

However, as to other incidents revealed in the record, the conclusion was contrary. The use of gas to retrieve a metal food tray was found to be constitutionally impermissible. Also impermissible was the use of a chemical agent to stop inmates from shouting and uttering threats:
"We have also found unconstitutional the use of a chemical agent to stop unpleasant but not threatening behavior by safekeepers locked in their cells." At 500.

These cases do not offer clear guidance in all situations as to when the use of mace is justified and when it is not. They do, however, indicate that some of the incidents in the record before me describe conduct which violates the Eighth Amendment. The incidents involve macing of inmates *777 locked either in a cell or a strip cage. There appears to be no recognition on the part of the defendants that such macing is highly questionable. For the most part, there appears to be no indication that the capacity of an individual inmate for violence is considered in determining whether mace is used. A blanket statement that the individuals in the Adjustment Center are the most troublesome in the prison system is not an adequate substitute for looking at the individual case. Prisoners who one day may be walking free in the yard can commit an infraction of prison rules and the next day be locked in cells in the Adjustment Center. In addition, the fact that one day inmate Mallory was maced for not returning his food tray and the next day he was not maced for the same action shows the apparent arbitrary nature of the decisions.

In many cases the conduct on the part of the inmates is passive. Stopping the inmates' conduct could in no way be characterized as urgent. Also, some of the reports involved macing for yelling and shouting, macings prohibited by Lock. Thus, even though the requirements of the Eighth Amendment are not entirely clear under the case law, some of the macings revealed in this record are violations of the constitutional rights of the inmates involved.

The Wisconsin Administrative Code provides somewhat more specific guidelines for Wisconsin prison officials. H.S.S. Sec. 306.08 provides that chemical agents can be used only in two situations:
(1) to subdue an inmate who poses an immediate threat of injury or death to another, and (2) to regain control of an institution or part of an institution. The regulations also provide that the use of chemical agents "shall be authorized only by the Superintendent." Plaintiffs argue that defendants have violated these regulations and therefore have also violated the inmates' due process rights under the Fourteenth Amendment. Defendants argue that "there is no basis in the record that the plaintiffs had an expectation of a liberty interest in defendants' observation of their own administrative regulations...." Brief, p. 22. In support of this proposition, defendants cite Shango v. Jurich, 681 F.2d 1091 (7th Cir. 1982).
!
[2] Defendants' argument must be rejected. A state can create a liberty interest "by statute, by rule or regulation." Meachum v. Fano, 427 U.S. 215, 229, 96 S.Ct. 2532, 2540, 49 L.Ed.2d 451 (1976). The Court of Appeals for this Circuit has stated that "a prisoner may have due process rights as a result of entitlements created by prison regulations...." Arsberry v. Sielaff, 586 F.2d 37 (7th Cir. 1978); Stringer, supra. The court again recognized this principle in Shango, supra. There the court stated, however, that not every official pronouncement spawns a protectible right; specifically, state granted procedural rights may not in themselves create a liberty inter Shango involved interprison transfers. The state retained total discretion to transfer inmates between institutions for any reason whatsoever. The state-created right to have a hearing regarding a transfer did not alter the state's discretion. Therefore, there was no "parent substantive right" underlying the procedural right. The analysis is different if the state provides a substantive right.
In Olim v. Wakinekona — U.S. —-, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983), the court stated:
"... A state creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show 'that particularized standards of criteria guide the state's discretion' ..."
In Olim, the court cited with approval the distinctions drawn in Shaneo.

In Hewitt v. Helms — U.S. —-, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the court recognized the fact that a state may create a liberty interest through enactment of statutory or regulatory measures. Even though the court cautioned that not every regulation governing the administration of a prison must be treated as creating a liberty interest, the regulation at issue in that case was found to provide a protectible interest. Similarly, the Court of Appeal *778 for this Circuit in a decision post-datin Shango, supra, discussed an Illinois law requiring that persons receiving treatment under its Mental Health Code be treated "in the least restrictive environment." The court stated that "This is a state-created liberty interest ... Johnson by Johnson v. Brelje, 701 F.2d 1201, 1205 (7th Cir.1983)." Thus it is clear that if a state places limitations on official discretion, it in all likelihood has created a liberty interest.
[3] The nature of the interest involved rather than its weight is the determining factor in a decision as to whether a liberty interest is involved. In Meacham v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), the court determined that in the absence of a state law, interprison transfers did not implicate a liberty interest because a prisoner's expectancy of remaining at a particular institution is "too ephemeral and insubstantial." The same approach may be appropriate in determining which regulations or laws create liberty interest. See Hewitt, supra. In the present case the interest is substantial. The state has limited the discretion of prison officials in the use of agents, the abuse of which can constitute cruel and unusual punishment. These regulations create a liberty interest. The inmates in the Wisconsin prison system have a liberty interest in not being subjected to the use of chemical agents except as set forth in the Wisconsin Administrative Code.
The question then becomes whether defendants are in fact violating their regulations. They claim that they are not. They draw fine distinctions, stating that no inmate is maced because, for instance, he refuses to return a meal tray; rather he is maced because he disobeys a direct order to return a tray which could result in "his having to be physically restrained or which could result in a physical confrontation between the inmate and correctional officers to seek compliance with orders and to coerce cooperation prior to the necessity of using actual force." They argue that if officers must enter a cell to obtain compliance with an order to return a tray, for example, there is an immediate threat of bodily injury which, under the regulations, justifies the use of a chemical agent. The argument turns on the possibility that a seemingly passive inmate may attack officers who enter the cell and that someone may be hurt. Thus, in defendants view, the requirement is met that mace can be used only to "subdue an inmate or inmates who pose an immediate threat of bodily injury or death to another." Additionally defendants argue that because an inmate in a cell is refusing a lawful order, control over that cell is lost and mace is appropriately used "to regain control of an institution or part of an institution."

It is highly questionable whether the fact that something may happen that may result in injury equals an immediate threat. It is questionable whether when defendants act first, they can be said to be subduing an inmate. Furthermore, although the defendants state "chemical agents are a type of force," they seem, consciously or unconsciously, to consider the use of mace alternative to "actual force." Several times in their brief this contrast becomes explicit. At page 23, defendants argue that "chemical agents, which are a substitution for force, are permitted to subdue an inmate or inmates...." At page 24, reference is made to the use of mace "prior to the necessity of using actual force." This attitude, which is evident in the testimony of prison officials, is contrary to the Wisconsin prison regulations.

[4] It might seem that in some respects a factual question exists as to what sort of force mace is. The inmates see it as a very serious form of force. The defendants see it as a substitute for "actual force." Defendants state that "chemical agents are generally the most humane and least harmful method of dealing with obstinate and dangerous inmates...." However, the decision as to what chemical agents actually are is not an open one. Wisconsin Administrative Regulation HSS 306.06(a) defines force as follows:
"Force" is the exercise of strength or power to overcome resistance or to compel another to act or to refrain from acting in a particular way. It includes the use of chemical, mechanical, and physical power or strength. Only so much force may be used as is reasonably necessary to achieve the objective for which it is used. The use of excessive force is forbidden.

As it should be, the use of chemical agents is included in the definition of force. The appendix to the rules further states:
Because chemical agents pose a risk of injury to others, resort to their use is made in limited
situations. Later it is pointed out in the appendix that there is a limitation on the use of chemical agents similar to the limitation on the use of firearms:
As with firearms, only the Superintendent may authorize its use.
Defendants' apparent attitude that chemical agents are not "actual force" is simply incorrect under either the regulations or the Eighth Amendment. Despite this, defendants in fact use mace in many cases as the first type of force used. That is, when a prisoner refuses to return a tray or to be moved, even before he makes any physically threatening gesture or statement, he may be maced. In other words: mace is used as a "first strike" weapon.

The clear implication of the regulations is that mace is a serious use of force. For purposes of illustration, if the use of mace were analogized to hitting an inmate with a baton, the excesses in its use as revealed in this record would be apparent. No one would argue that the prison officials could tell an inmate to return a tray and then tell him that if he refused, they would hit him once with a baton; if he continued to refuse that they would continue to hit him. The flavor of corporal punishment in that scene is clear, and the regulations prohibit corporal punishment. HSS 306.06(2). Yet when mace is used, defendants seem to feel that they are not using force at all or at least that they are being humane.

[5] To say that they are incorrect is not to argue with them that the use of mace prevents danger to the correctional officers and is expedient. It is not to say that mace can never be used. It is not to disregard the interests of the officers in being unharmed on the job. But the regulations and the Eighth Amendment must be recognized as providing limits on the use of chemical agents. The almost routine use of chemical agents that I have observed in this case violates the inmates' rights under both the Eighth and the Fourteenth Amendments.
The order which will be issued in this case will follow in all respects the prison regulations. I will order that in a non-emergency situation (FN1) the regulations be strictly complied with. Prior to the use of mace, approval of the Superintendent must be obtained. The Superintendent may delegate that authority to Mr. Heeringa, the Assistant Superintendent of Security. However, the delegation of authority must go no lower into the ranks than Mr. Heeringa. I am personally impressed with Mr. Heeringa, and I am confident that he will properly exercise his authority and good judgment. I do not have that same confidence in lower ranking officers, especially those pulling long duty in the Adjustment Center.

Secondly, "to subdue an inmate who poses an immediate threat of injury" means that the inmate is at the minimum making physically threatening gestures. In some cases the throwing of items from the cells equals physically threatening gestures. Even if physically threatening gestures are made, however, if an inmate is locked in his cell, and certainly if he is locked in a strip cage, a careful judgment must be made as to whether less serious alternatives are available. Finally, "to regain control of a cell" does not mean to require an inmate to return a tray or to relinquish cigarettes or to spread his buttocks. Nor, under the case *780 law, does it mean to force an inmate to stop shouting. In addition, the prison officials are required to comply with the regulations to allow the medical staff to treat inmates following macing incidents.

Lastly, I come to the question of damages in Mr. Soto's individual case. While I find that his rights have been violated, I also find that the individual defendants, although acting improperly, did not do so recklessly but rather acted in good faith, believing that their actions did not run afoul of the Constitution. Accordingly, individual damages will not be awarded. The relief here will be limited to the injunction to be granted. It goes without saying, however, that a good faith immunity defense will no longer be available to state agents after this decision is issued.

I Findings of Fact
1. Plaintiffs are now, or at the commencement of this action were, inmates in the Adjustment Center of the Waupun Correctional Institution, Waupun, Wisconsin.
2. Defendant Elmer O. Cady was, at all times material, the Administrator of the Division of Corrections, Department of Health and Social Services, State of Wisconsin. Defendant Cady had the ultimate responsibility within the Division of Corrections for all policies, procedures, and correctional staff employed within the correctional institutions in Wisconsin, including the Waupun Correctional Institution. In May of 1983, Mr. Walter Dickey, Professor of Law of the University of Wisconsin Law School and a witness in this case, assumed the position held by Mr. Cady.
3. Defendant Thomas R. Israel is the Superintendent of the Waupun Correctional Institution. He is responsible for all policies, procedures, and correctional staff within the institution.
4. Defendant Gerald Heeringa is Assistant Superintendent of Security of the Waupun Correctional Institution. He is responsible for all security policies and procedures within the institution.
5. The Waupun Correctional Institution is a maximum security prison in the State of Wisconsin, and at the time of trial had a population of approximately 1,154 inmates. The approved designated capacity for the Waupun Correctional Institution is 810 inmates.
6. The Adjustment Center, the major segregation center within the institution, is a concrete and steel building containing 67 cells. 59 cells are arranged in 2 tiers on the main floor. The remaining 8 cells are in the basement. Each of the cells is approximately 7 feet wide by 10 feet long by 8 feet high. Three of the sides of each cell are solid concrete. The fourth side consists of a metal barred door. The ceiling and floor are concrete. 15 of the cells have a wooden outer door in addition to the metal barred doors and are commonly referred to as double door or wooden door cells.
7. The strip cage is a thick wire mesh cage in the Adjustment Center, which is approximately 4 feet wide by 4 feet long by 8 feet high. Strip searches of inmates are conducted in this cage.
8. The cells in the Adjustment Center do not have windows.
11. The average daily population in the 59 cells of the Adjustment Center since approximately the summer of 1982, is 80 inmates. Inmates are frequently double-celled in the Adjustment Center and, in fact, more than two inmates have beer *781 placed in an Adjustment Center cell on a frequent basis during the last three years. At times, over 100 inmates have been held in the Adjustment Center.
12. The chemical agents presently used in the Adjustment Center are Chloroacetenophenone (CN) and Chlorobenzylmalononitrite (CS).
13. The CN used in the Adjustment Center is in a liquid form, and is a by-product of a kerosene-type substance which makes the CN stick to surfaces and persist. CN is sprayed from a canister. The canisters used in the Adjustment Center are approximately 2 inches in diameter, and about 51/2 inches high. They contain approximately 4 1/2 ounces of CN, which is equivalent to approximately 35 1-second bursts of CN. CN vaporizes upon contact with the human body and other surfaces.
14. Mace is a brand name used by one of the manufacturers of the CN which is available in the Adjustment Center.
15. CS is a stronger chemical agent than CN. CS is used in a powder or dust form and is often referred to as Federal Duster. CS dust is also disbursed from a canister.
16. A liquid form of CS was also used in the Adjustment Center during the period relevant to the lawsuit. The liquid form of CS, often called Federal Streamer, is no longer used in the Adjustment Center.
9. Inmates are sent to the Adjustment Center from the general population for disciplinary purposes and punishment resulting from violations of prison rules. The reasons an inmate may be sent to the Adjustment Center range from possession of contraband, theft, refusing to go to work, up to fighting with prisoners or staff.
10. Inmates are normally allowed to have cigarettes and matches in the Adjustment Center. Inmates are fed in the Adjustment Center 3 times a day. The meals are delivered by correctional officers on plastic trays and are served to the inmates while they are locked in their cells. Plastic eating utensils and paper cups are provided.
17. CN and CS are intended to have the immediate effect of disabling and incapacitating persons on whom they are discharged by causing pain and an intense and pervasive burning and tearing action.
18. The application and use of CN and CS may result in serious and permanent physical injury, especially to the eyes and skin, in the absence of immediate and competent medical attention.
19. The effects of CN and CS may be moderated by thoroughly cleansing and bathing the body, changing clothing and bedding, and ventilating the affected area.
I
Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works.

566 F.Supp. 773, Soto v. Cady, (D.C.Wis. 1983)
3. Defendant Thomas R. Israel is the Superintendent of the Waupun Correctional Institution. He is responsible for all policies, procedures, and correctional staff within the institution.
4. Defendant Gerald Heeringa is Assistant Superintendent of Security of the Waupun Correctional Institution. He is responsible for all security policies and procedures within the institution.
5. The Waupun Correctional Institution is a maximum security prison in the State of Wisconsin, and at the time of trial had a population of approximately !,!54 inmates. The approved designated capacity for the Waupun Correctional Institution is 810 inmates.
6. The Adjustment Center, the major segregation center within the institution, is a concrete and steel building containing 67 cells. 59 cells are arranged in 2 tiers on the main floor. The remaining 8 cells are in the basement. Each of the cells is approximately 7 feet wide by 10 feet long by 8 feet high. Three of the sides of each cell are solid concrete. The fourth side consists of a metal barred door. The ceiling and floor are concrete. 15 of the cells have a wooden outer door in addition to the metal barred doors and are commonly referred to as double door or wooden door cells.
7. The strip cage is a thick wire mesh cage in the Adjustment Center, which is approximately 4 feet wide by 4 feet long by 8 feet high. Strip searches of inmates are conducted in this cage.
8. The cells in the Adjustment Center do not have windows.
9. Inmates are sent to the Adjustment Center from the general population for disciplinary purposes and punishment resulting from violations of prison rules. The reasons an inmate may be sent to the Adjustment Center range from possession of contraband, theft, refusing to go to work, up to fighting with prisoners or staff.
10. Inmates are normally allowed to have cigarettes and matches in the Adjustment Center. Inmates are fed in the Adjustment Center 3 times a day. The meals are delivered by correctional officers on plastic trays and are served to the inmates while they are locked in their cells. Plastic eating utensils and paper cups are provided
11. The average daily population in the 59 cells of the Adjustment Center since approximately the summer of 1982, is 80 inmates. Inmates are frequently double-celled in the Adjustment Center and, in fact, more than two inmates have been *781 placed in an Adjustment Center cell on a frequent basis during the last three years. At times, over 100 inmates have been held in the Adjustment Center.
12. The chemical agents presently used in the Adjustment Center are Chloroacetenophenone (CN) and Chlorobenzylmalononitrite (CS).
13. The CN used in the Adjustment Center is in a liquid form, and is a by-product of a kerosene-type substance which makes the CN stick to surfaces and persist. CN is sprayed from a canister. The canisters used in the Adjustment Center are approximately 2 inches in diameter, and about 51/2 inches high. They contain approximately 4 1/2 ounces of CN, which is equivalent to approximately 35 1-second bursts of CN. CN vaporizes upon contact with the human body and other surfaces.
14. Mace is a brand name used by one of the manufacturers of the CN which is available in the Adjustment Center.
15. CS is a stronger chemical agent than CN. CS is used in a powder or dust form and is often referred to as Federal Duster. CS dust is also disbursed from a canister.
16. A liquid form of CS was also used in the Adjustment Center during the period relevant to the lawsuit. The liquid form of CS, often called Federal Streamer, is no longer used in the Adjustment Center.
17. CN and CS are intended to have the immediate effect of disabling and incapacitating persons on whom they are discharged by causing pain and an intense and pervasive burning and tearing action.
18. The application and use of CN and CS may result in serious and permanent physical injury, especially to the eyes and skin, in the absence of immediate and competent medical attention.
19. The effects of CN and CS may be moderated by thoroughly cleansing and bathing the body, changing clothing and bedding, and ventilating the affected area.
20. The use of chemical agents in the Adjustment Center has increased dramatically in the past 41/2 years.
21. From January 1, 1979 to November 4, 1982, approximately 130 macing incidents occurred in the Adjustment Center.
22. Most of the macing incidents involve situations where inmates were maced while locked in their cells or in the strip cage. Some incidents involved inmates who suffered the effects of mace used on another inmate.
23. "Macing Incident Reports" are written by correctional officers and are intended to contain most of the relevant information regarding the use of chemical agents on a particular occasion.
24. The defendants' policy concerning the use of mace in the Adjustment Center hasn't changed since the filing of the lawsuit or the rendering of the summary judgment decision in February of 1982.
25. Many states operate their prisons without the use of mace or chemical agents, except in extreme riotous situations.
26. The policy concerning the use of mace in the Adjustment Center was set by defendant Heeringa, and approved by defendants Israel and Cady.
27. The possibility of serious injury as a result of the use of chemical agents is greater when chemical agents are used in enclosed, poorly-ventilated areas such as a prison cell.
28. The first document issued by the Division of Corrections, Department of Health and Social Services, en the use of chemical agents was placed into effect on January 15, 1978, and stated that,
"Chemical agents for purposes of security and control shall be used o: extra-ordinary circumstances when a situation arises in which physical force would be otherwise necessary and unavoidable to protect residents or staff from great bodily harm." (Emphasis added.) Ex. 136.
29. Most of the inmates who are placed in the Adjustment Center are respectful to officers, do their adjustment time and are returned to the general population.
30. Correctional offeicers have the descretion to ignore some of the conduct of inmates in the Adjustment Center without taking disciplinary action.
31. Some methods of dealing with inmate misconduct are to take a portion of the inmate's property away or to increase his adjustment time.
32. The most frequent kind of major conduct violations in the Adjustment Center are disrespect and disobeying orders. |
33. The authority to approve the use of chemical agents in the Adjustment Center has been delegated by defendants to the lowest supervisory level.
34. Defendants' procedures for the use of chemical agents in the Adjustment Center do not require that the officer in charge create a show of force by gathering other correctional officers and suiting them up in Emergency Response Unit (E.R.U.) gear before chemical agents are used.
35. The E.R.U. gear includes a helmet with faceguard, a 4 1/2 foot high, 2-man plastic shield, leg guards, supporter, jump suit and a wooden baton. This equipment is available for several of the guards in the Adjustment Center.
36. Defendants' policy in the Adjustment Center requires that chemical agents be used first against an inmate for refusing to obey an order. After the use of chemical agents, officers enter the cell dressed in E.R.U. gear. j
37. The cells in the Adjustment Center are not cleaned after mace is used against the inmate while he was in that cell, except in the discretion of the supervisor present. In the Adjustment Center, decisions whether to allow inmates to shower or to change clothing and bedding after the use of chemical agents are also left to the discretion of the supervisor.
38. Chemical agents have been used to create and preserve an atmosphere of discipline in the Adjustment Center.
39. Chemical agents have been used in the Adjustment Center to gain compliance with non-emergency orders when the inmates against whom the agents are used are locked in their cells, handcuffed, or otherwise restrained.
39. Chemical agents have been used in the Adjustment Center to gain compliance with non-emergency orders when the inmates against whom the agents are used are locked in their cells, handcuffed, or otherwise restrained.
40. Chemical agents have been used to seek compliance with an order to stop yelling obscenities.
41. Chemical agents have been used in the Adjustment Center against inmates who refuse orders to take medication.
42. Chemical agents have been used in the Adjustment Center against inmates who refuse an order to stop throwing liquids from their cells.
43. Chemical agents have been used in the Adjustment Center against an inmate for refusing to remove a book from the outer wooden door of an adjustment cell.
44. Inmate Robert Mallory was directly maced in the eyes, on February 4, 1981, while he was passive and locked in his cell, for refusing to return his plastic meal tray. Instead of returning the tray, he placed it on his bed, went to the back of the cell and sat on the toilet or sink. He was not violent, made no threats against any of the guards, had no weapons and was not barricaded in his cell.
45. On February 5, 1981, Mallory followed the same pattern of conduct as on February 4, 1981. However, instead of macing Mallory on that date, several of the guards entered his cell dressed in E.R.U. equipment and retrieved the tray from the cell.
46. Inmate Mallory suffered the effects of mace as a result of the use of chemical agents against other inmates in the Adjustment Center, including April 16, 1980, when another inmate was sprayed with 4 cans of mace.
47. Inmate William McAdoo was directly maced on October 11, 1980, while he was passive and locked in his cell, for throwing some milk from a paper cup on a correctional officer. Inmate McAdoo was not violent, did not issue any threats against any correctional officers, had no weapons and was not barricaded in his cell.
48. Inmate McAdoo was not given a shower and the water in his cell was turned off for a period of time after the macing incident, preventing him from ridding himself of the effects of mace.
49. On other occasions while inmate McAdoo was in the Adjustment Center, he suffered the effects of mace and chemical agents when they were used against other inmates.
50. Inmate Gregory Johnson is an asthmatic. He was never directly maced while in the Adjustment Center. However, on several occasions he suffered the effects of mace when it was sprayed against other inmates, including inmate Warren Washington on March 8, 1981.
51. Inmate Laron McKinley was maced on November 24, 1980, while he was passive and locked in one of the double-doored adjustment cells. On that date, he was maced for refusing to remove a book from the outer wooden door of the cell. The inner metal barred door was locked at all times. Inmate McKinley did not issue any threats against any correctional officers, did not possess any weapons in his cell, and was not barricaded in his cell.
52. Inmate McKinley was also maced on September 26, 1980, while locked in the strip cage. On that date, he was maced for refusing to spread his buttocks to complete a strip search procedure. At the time he was maced, McKinley was naked and had no weapons.
53. On other occasions, inmate McKinley suffered the effects of mace while he was in the Adjustment Center when mace was sprayed on other inmates.
54. Inmate Carlos Soto was maced on December 13, 1979, while locked in his cell and handcuffed. Inmate Soto was maced for refusing to double-cell with another inmate.
55. On other occasions while in the Adjustment Center, Soto suffered the effects of mace when it was sprayed against other inmates.
56. On various occasions, members of the plaintiffs' class suffered the effect of chemical agents but were denied medical treatment, an opportunity to shower or bathe, an opportunity to have the cell cleaned and ventilated, and to have their clothes, bedding, and mattress changed.
57. As a direct result of the conduct, policies and procedures of defendants and their agents and subordinates, inmates have suffered and will continue to suffer irreparable harm. Plaintiffs have been without and will continue to be without an adequate remedy al law. The balance of harms favors plaintiffs, and public policy requires that relief be granted to them.
Conclusions of Law
1. This action arises under the United States Constitution, particularly under the provisions of the Eighth and Fourteenth Amendments to the United States Constitution, and under federal law, particularly the Civil Rights Act, Title 42 of the United States Code, Sec. 1983.
2. This court has jurisdiction pursuant to Title 28 of the United States Code, Sec. 1343(3).
3. This action is certified as a class action on behalf of all past, present and future residents of the Adjustment Center at the Waupun Correctional Institution.
4. The Waupun Correctional Institution, including the Adjustment Center, is being operated and maintained by defendants pursuant to state law.
5. At all times relevant to this action, the defendants were acting under the color and pretense of the statutes, ordinances, regulations, customs and usages of the State of Wisconsin, and under the authority of their offices.
6. All of the defendants and their subordinates and agents are bound by the Wisconsin Administrative regulations, including HSS Sec. 306.08.
7. During the times relevant to this action, defendants and their subordinates and agents have used chemical agents in the Adjustment Center, against the plaintiffs in *784 violation of plaintiffs' constitutional rights under the Eighth Amendment.
8. During the times relevant to this action, defendants and their subordinates and agents have used chemical agents in the Adjustment Center against plaintiffs in violation of plaintiffs' constitutional rights under the Fourteenth Amendment to the Constitution by using chemical agents in violation of the Wisconsin Administrative regulations-HSS Sec. 306.08.

INJUNCTIVE ORDER
The court finds that defendants, their agents, employees and subordinates have used or permitted the use of and are continuing to use or permit the use of chemical agents, including CN and CS, in the Adjustment Center of the Waupun Correctional Institution under circumstances which constitute cruel and unusual punishment to the plaintiffs in violation of the Eighth Amendment to the United States Constitution; that such use also have been and continues to be in violation of the administrative regulations of the State of Wisconsin, Department of Health and Social Services, specifically HSS 306.08, and that such use has been and continues to be in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; that plaintiffs have been and are continuing to be harmed, and the public interest and the equities of the situation require that the court now take action to permanently enjoin the defendants' wrongful conduct;

NOW, THEREFORE, IT IS ORDERED WITH RESPECT TO THE USE OF CHEMICAL AGENTS IN THE ADJUSTMENT CENTER OF THE WAUPUN CORRECTIONAL INSTITUTION:
1. Unless actual physical control of all or a portion of the institution has been lost, chemical agents, including CN and CS, may not be used except to subdue an inmate or inmates who pose a clear, immediate, actual and direct threat of bodily injury or death to another. Chemical agents may not be used:
(a) as an ordinary procedure or other than in extreme and exceptional cases;
(b) to control an inmate who is not violent unless the threat of violence is clear, immediate, actual and direct; |
(c) to control an inmate who is locked in his cell, unless there is a clear, immediate, direct and actual threat of bodily injury or death to another;
(d) to control an inmate who is handcuffed or otherwise restrained unless there is a clear, immediate, direct and actual threat of great bodily injury or death to another.
2. The use of chemical agents is not appropriate to force an inmate's compliance with a non-emergency order where the inmate's refusal to obey the order is passive and non-violent. The mere possibility of a physical confrontation and the potential of a resulting bodily injury, absent a clear, immediate, direct and actual threat of bodily injury is insufficient to justify the use of chemical agents. It will ordinarily not be proper to use chemical agents in the following circumstances:
(a) when an inmate refuses to return a meal tray, cup, dishes or other eating articles; a refusal to
return such an item, however, justifies the withholding of future food services to the inmate;
(b) when an inmate refuses to return contraband, such as cigarettes, unless it is contraband which may reasonably be considered, in its present form, to be a weapon;
(c) when an inmate throws an object, such as food, water, urine or feces, out of his cell;
(d) to quiet a prisoner;
(e) when an inmate refuses non-emergency medical treatment;
(f) when an inmate refuses to leave his cell to have it cleaned; and
(g) when an inmate refuses to spread his buttocks for a search in the strip cage where such refusal is passive and non-violent.
*785. 3. Chemical agents may never be used against an inmate if he is passive and non-violent.
4. Chemical agents may never be used to punish an inmate.
5. Whenever circumstances are such that the use of chemical agents is proper, the person authorizing their use shall give full consideration to the alternative use of other means of non-deadly force.
6. The use of chemical agents in non-emergency circumstances shall be authorized only by Mr. Israel or Mr. Heeringa.
7. Chemical agents shall not be used in amounts greater than necessary.
8. Chemical agents are to be used in accordance with the manufacturer's instructions.
9. Following each use of a chemical agent, all exposed inmates shall be examined by a competently trained member of the medical staff.
10. This ORDER regarding the use of chemical agents in the Adjustment Center of the Waupun Correctional Institution is to be in addition to those restrictions already set forth in HSS 306.08. Nothing herein should be construed to relieve any person of an obligation to fully, completely and in good faith comply with and implement all administrative procedures promulgated by the Division of Corrections, Department of Health and Social Services, State of Wisconsin, regarding the use of chemical agents to the extent they are not inconsistent with this ORDER.

FN1. Nothing in this record reveals anything about what would be done in an emergency, for no true
emergencies are involved here. My order is not intended to apply to a situation in which, for instance, inmates are out of their cells, rioting, destroying property, or physically threatening correctional officers.
Copyright (c) West Publishing Co. 1996 No claim to original U.S. Govt. works.

prisoners' access to courts

855 F.2d 442, DeMallory v. Cullen, (C.A.7 (Wis.) 1988)

Robert DeMALLORY, et al., Plaintiffs-Appellants,
v,
Timothy CULLEN, et al., (FN*) Defendants-Appellees.
Nos. 87-1492, 87-1493. United States Court of Appeals,
Seventh Circuit. Argued June 10, 1988. Decided Aug. 23, 1988.

Inmate brought action against government and prison officials for cruel and unusual punishment and unconstitutional restriction of access to courts. The United States District Court for the Eastern District of Wisconsin, Thomas J. Curran, J., granted summary judgment against inmate. Inmate appealed. The Court of Appeals, Bauer, Chief Judge, held that: (1) inmate's conditions-of-confinement complaint was sufficient to withstand motion to dismiss for failure to state claim upon which relief could be granted; (2) genuine issues of material fact, relating to less restrictive measures, precluded summary judgment for defendants on access-to-courts claim; and (3) prison officials waived immunity defense by failing to raise it before the District Court.
Reversed in part and remanded for further proceedings.
Easterbrook, Circuit Judge, dissented and filed opinion.

1. CRIMINAL LAW 1213.10(3)
110 —-
110XXVI Punishment of Crime
110kl213 Cruel or unusual punishment
110kl213.10 Conditions of confinement
110k 1213.10(3) Medical and health care; diet.
C.A.7 (Wis.) 1988.

Inmate failed to establish Eighth Amendment violation based on inhalation of smoke from fire set by other inmates; inmate presented no competent evidence that prison officials evidenced deliberate indifference to inmate's medical needs. U.S.C.A. Const.Amend. 8.

2. CRIMIN AL LAW 1213.10(1)
110 —-
110XXV1 Punishment of Crime 110kl213 Cruel or unusual punishment 110kl213.10 Conditions of confinement
ILLE CORRECTIONS FACILITY 1440 UNION SPSWflg *p WHITEVILLETN 38075 110kl213.10(1) In general. C.A.7 (Wis.) 19'88.
Correctional officer spitting upon prisoner did not rise to level of cruel and unusual punishment. U.S.C.A. Const.Amend. 8.
3. CRIMINAL LAW <§=» 1213.10(2)
110
110XXVI Punishment of Crime
110kl213 Cruel or unusual punishment 1
10kl213.10 Conditions of confinement
110kl213.10(2) Management of institution. C.A.7 (Wis.) 1988.
Eighth Amendment claim based upon failure to protect inmate from harm inflicted by other inmates may be sustained only by showing of deliberate indifference by prison officials; mere negligence is not enough. U.S.C.A. Const.Amend. 8.
4. CIVIL RIGHTS 235(7)
78 -—
7 811 Federal Remedies
78II(B) Civil Actions
78II(B)2 Proceedings
78k233 Pleading
78k235 Particular causes of action
78k235(5) Criminal law enforcement;police and prosecutors
78k235(7) Prisons and jails; probation and parole.
Formerly 78kl3.12(6) C.A.7 (Wis.) 1988.
Inmate's conditions-of-confinement complaint was sufficient to withstand motion to dismiss for failure to state claim upon which relief could be granted; complaint alleged that prison officials willfully allowed unsanitary and dangerous conditions to continue in maximum security facility. U.S.C.A. Const.Amend. 8; rea.Ruies Civ.Pioc.Rule 12(b)(6), 28 U.S.C.A.
5. CRIMINAL LAW 1213.10(1)
110 —-
110XXVI Punishment of Crime
110kl213 Cruel or unusual punishment
110kl213.10 Conditions of confinement
110kl213.10(1) In general.
C.A.7 (Wis.) 1988. Determination whether prison conditions constitute cruel and unusual punishment turns on totality of conditions of confinement. U.S.C.A.
Const.Amend. 8.
6. PRISONS 4(10.1)
310 — -
310k4 Regulation and supervision
310k4(10) Access to courts 310k4(10.1) In general.
Formerly 310k4(10) C.A.7 (Wis.) 1988.
Inmate's right of access to the courts is most fundamental right inmate holds.
7. PRISONS 4(11) 310 — -
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(ll) Access to counsel; paralegal counsel and inmate assistance.
I See headnote text below]
7. PRISONS 4(13) 310 — -
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(13) Law books and law libraries, legal materials, and opportunity for legal work. C.A.7 (Wis.) 1988.
Prison officials must provide inmates with adequate law libraries, adequate assistance from persons trained in the law, or comparable alternative.
8. PRISONS 4(10.1)
310 — -
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(10.1) In general.
Formerly 310k4(10) [See headnote text below]
8 PRISONS
310 — -
3 1 Ok4 Regulation and supervision
3 10k 4(10) Access to courts
310k4(ll) Access to counsel; paralegal counsel and inmate assistance. C.A.7 (Wis.) 1988.
Prison officials bear affirmative duty to provide inmates with reasonable access to courts and counsel and also bear burden of proving adequacy of means they provide.
9. PRISONS
310 —-
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(ll) Access to counsel; paralegal counsel and inmate assistance. C.A.7 (Wis.) 1988.
Dependence on untrained inmate paralegals as alternative to library access does not provide inmates with constitutionally sufficient access to the courts.
10.PRISONS
310 —-
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(ll) Access to counsel; paralegal
counsel and inmate assistance. C.A.7 (Wis.) 1988.
Generalized security concerns are insufficient to support ban limiting inmate's access to legal assistance; instead, prison officials must come forward with evidence that specific contact at issue threatens security and must show that less restrictive measures are not possible.
11. FEDERAL CIVIL PROCEDURE 2491.5
170A —- [
170AXVII Judgment
170AXVII(C) Summary Judgment
170AXVII(C)2 Particular Cases 170Ak2491.5 Civil rights cases in general C.A.7 (Wis.) 1988.
Genuine issues of material fact, relating to less restrictive measures, precluded summary judgment for prison officials, in access-to-courts action brought by inmate who was not allowed to go to the prison library, to confer personally with inmate paralegals, or to participate in legal training and services offered through prison paralegal program; inmate was allowed to check out books from legal library by written request, to consult paralegals by correspondence, and to seek legal assistance through public defenders, court-appointed counsel, private attorneys, or state legal assistance program.
12. CIVIL RIGHTS
78 —-
7811 Federal Remedies
78II(B) Civil Actions
78II(B)2 Proceedings
78k233 Pleading
78k235 Particular causes of action
78k235(5) Criminal law enforcement;
police and prosecutors 78k235(7) Prisons and jails; probation and parole.
Formerly 78kl 3. 12(6) C.A.7 (Wis.) 1988.
Access-to-courts complaint, which alleged that prison rules prevented adequate legal research and counseling, stated to sufficient prejudice to withstand motion to dismiss for failure to state claim upon which relief could be granted; when inmate complains of prison rules that substantially and continuously limit access to legal materials and counseling, complaint carries inherent allegation of prejudice, and prison officials had repeatedly admitted that rules created "problem of legal assistance" for inmates. Fed. Rules Civ. Proc. Rule 12(b)(6), 28U.S.C.A.
13. PRISONS 4(13)
310 — -
310k4 Regulation and supervision
310k4(10) Access to courts
310k4(13) Law books and law libraries, legal materials, and opportunity for legal work. C.A.7 (Wis.) 1988.
Where limitations on library use prevent filing of briefs in time for court's consider; *442 limitations are sufficiently prejudicial to sustain inmate's access-to-courts claim. Fed. Rules Civ. Proc. Rule 12(b)(6), 28 U.S.C.A.
14. FEDERAL COURTS 616
170B —
170BVIII Courts of Appeals 170BVIII(D) Presentation and Reservation in Lower Court of Grounds of Review
170BV1II(D)1 Issues and Questions in Lower Court
1 70Bk6 1 6 Grounds of defense . C.A.7 (Wis.) 1988.
Prison officials waived immunity defense, in inmate's action for cruel and unusual punishment and unconstitutional restriction of access to courts, by failing to raise defense before district court.
*444 Gary L. Starkman, Marc C. Smith, Arvey, Hodes, Costello & Burman, Chicago, 111., for plaintiffs-appellants .
John J. Glinski, Asst. Any. Gen., State of Wis., Dept. of Justice, Madison, Wis., for defendants-appellees.
Before BAUER, Chief Judge, and EASTERBROOK and RIPPLE, Circuit Judges.
BAUER, Chief Judge.
Plaintiff, Robert DeMallory, is an inmate at Wisconsin's Waupun Correctional Institute (WCI). On August 17, 1978, WCI authorities placed DeMallory in the WCI Adjustment Center, a maximum security facility within the prison that separates certain inmates from general population inmates, because of his alleged involvement in a disturbance at WCI. The Adjustment Center's surroundings are spartan, and its prisoners' activities are more restricted than those of general population inmates. On November 4, 1978, prison authorities released DeMallory from the Adjustment Center, but returned him on January 10, 1979, where .he remained until February, 1988.
DeMallory originally brought two suits. In the first, DeMallory alleged that conditions of confinement in the WCI Adjustment Center amounted to cruel and unusual punishment. In the second, he argued that limitations on the legal resources available to Adjustment Center prisoners unconstitutionally restrict their access to the courts, thus violating their Fourteenth Amendment rights. Defendants, various government and prison officials, moved for summary judgment on both the conditions-of-confmement claim and the access-to-courts claim. DeMallory moved for summary judgment on the access-to-courts claim. After submitting the matter to a magistrate, the district court granted summary judgment on both of DeMailory's claims in favor of defendants. DeMallory appeals.
I.
DeMallory first argues that conditions in the Adjustment Center constitute cruel and unusual punishment. His Eighth Amendment claim focuses primarily on the defendants' allegedly willful failure to protect him from the activities of other Adjustment Center inmates and the unsanitary conditions in the unit. He alleges that WCI officials knowingly housed mentally-ill inmates with the rest of the Adjustment Center population, that these inmates soil their cells and surrounding areas by throwing food, human waste, and other debris, and that these inmates have set "approximately 50 fires," that have resulted in the hospitalization of several inmates, including himself. He further alleges that the various defendants are personally responsible for the health and safety hazards, specifically, that WCI officials intentionally allowed the Adjustment Center to remain unsanitary and kept Adjustment Center windows locked despite repeated fires. Finally,DeMallory contends that a guard spit on him while he was housed in the Adjustment Center.
[1][2] The district court granted summary judgment in favor of the defendants, holding that "there has been no competent evidence presented that the prison officials evidenced a deliberate indifference to DeMallory's medical needs, due to the inhalation of smoke, for a finding that his Eighth Amendment rights were violated." As for the spitting incident, the court ruled that "a correctional officer spitting upon a prisoner does not rise to the level of a constitutional violation. IdL at 3. We agree with the district court's disposition of those portions of DeMallory's Eighth Amendment claim that address the medical care given DeMallory and the spitting incident.
*445 13] [4] Because the district court failed to address the primary thrust of DeMallory's complaint-that WCI officials have willfully allowed unsanitary and dangerous conditions to continue in the Adjustment Center, however, we reverse the order granting summary judgment and remand for further proceedings. "It has long been established that prisoners have rights under the Eighth Amendment to receive reasonable protection from harm inflicted by other inmates." Madyun v. Thompson, 657 F.2d 868, 875 (7th Cir.1981). Such a claim may be sustained only by a showing of deliberate indifference by prison officials; mere negligence is not enough. Duckworth v. Franzen, 780 F.2d 645, 652-55 (7th Cir. 1985 cert, denied, 479 U.S. 816, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Liability under the Eighth Amendment "requires, at a minimum, that the prison officials have realized there was imminent danger and have refused-consciously refused, knowingly refused-to do anything about it." Campbell v. Greer, 831 F.2d 700, 702 (7th Cir. 1987).
The district court, without expressly saying so, apparently treated the defendants' motion for summary judgment on DeMallory's Eighth Amendment claim as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Only the plaintiff's complaint and the defendants' answers were before the court; no discovery was taken. In their answer to the complaint, the defendants asserted that they had insufficient information from which they could form an opinion with respect to the allegations and denied any unconstitutional conduct. By awarding summary judgment in this situation, the district court actually dismissed the case on the pleadings. In so doing, the district court failed to follow the basic standard governing Rule 12(b)(6) dismissals.
"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Moreover, in "complex cases involving both fundamental rights and important questions of public policy, such peremptory treatment is rarely appropriate." Rutan v. Republican Party of Illinois, 848 F.2d 1396, 1414 (7th Cir., 1988) (Ripple, J., concurring in part, dissenting in part). In this case, the district court did not read DeMallory's Eighth Amendment claim in this light. Rather, by focusing on only two incidents alleged in the complaint, the court failed to consider the complaint as a whole and seemingly ignored the more pressing issues alleged by DeMallory.
I
[5] DeMallory's conditions-of-confinement complaint, taken as true, as it must for purposes of a motion to dismiss, states a claim on which relief can be granted. The Supreme Court has emphasized that "|n]o static 'test' can exist by which courts determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' " Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citation omitted). See also Smith v. Fairman, 690 F.2d 122, 125 (7th Cir. 198 cert, denied 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983). In all cases, the determination as to whether prison conditions constitute cruel and unusual punishment turns on the totality of the conditions of confinement. Madyun, 657 F.2d at 874; see also Smith, 690 F.2d at 125 (quoti Madyun ). Not surprisingly, suits challenging the sanitation and safety of prisons have received varying treatment by federal courts. This court has repeatedly stressed that the Eighth Amendment requires prison officials to maintain minimal sanitary and safe prison conditions and we have not hesitated to award damages to inmates when prison conditions have fallen below the threshold of decency ensured by the Eighth Amendment. See, e.g., Davenport v. DeRobertis, 844 F.2d 1310 (7th Cir. 1988) (Eighth Amendment requires at least five hours of exercise and one shower each week for inmates segregated more than ninety days); Wells v. Franzen, 777 F.2d 1258 (7th Cir. 1985) (Eighth Amendment requires minimal exercise, showers, clothing, *446 sanitary eating conditions). We therefore reverse the judgment of the district court and remand the case for further consideration.
II.
DeMallory next argues that restrictions on library access for prisoners in the Adjustment Center preclude their effective access to the courts. Prisoners in the Adjustment Center may not go to the prison library, may not confer personally with WCI's inmate paralegals, and may not participate in the legal training and services offered through the WCI paralegal program. The Adjustment Center prisoners may check out books from the legal library by written request and may consult paralegals by correspondence. They also may confer with each other during exercise periods and seek some legal assistance through public defenders, court-appointed counsel, private attorneys, or Wisconsin's Legal Assistance to Institutionalized Persons (LAIP) Program. A set of 1969 Wisconsin statutes is also available to the inmates housed in the Adjustment Center. The record includes several memoranda in which WCI officials acknowledge that they are "aware of the problem of legal assistance for those inmates in segregation status," but no solution appears forthcoming.
[6][7][8] A prison inmate's right of access to the courts is the most fundamental right he or she holds. "All other rights of an inmate are illusory without it, being entirely dependent for their existence on the whim or caprice of the prison warden." Adams v. Carlson, 488 F.2d 619, 630 (7th Cir.1973). In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court held that the constitutional right of access to the courts "requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id., at 828, 97 S.Ct. at 1498. Prison authorities need not provide both of these, but must provide one or the other, or a comparable alternative. Id. at 830-32, 97 S.Ct. at 1499-1500. Prison officials bear an affirmative duty to provide inmates with this reasonable access to courts and counsel and also bear the burden of proving the adequacy of die means they provide. Campbell v. Miller, 787 F.2d 217, 225-26 (7th Cir.),cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). The defendants, therefore, can prevail if they can demonstrate that DeMallory had access to an adequate library or to adequate personal legal assistance.
The magistrate found that although the legal assistance available to the Adjustment Center's prisoners might not be "optimal," it constituted "sufficient access to the courts according to Bounds. " The district court agreed. We disagree. The district court lacked the evidentiary basis necessary for granting the defendants' summary judgment. DeMallory contends that the procedures available to inmates at the Adjustment Center fail both elements of this test. He argues first that the law library available to Adjustment Center inmates is inadequate. As noted, prison authorities denied DeMallory all access to the library with the exception of 1969 Wisconsin Statutes housed in the Adjustment Center and specific volumes requested by inmates. In Corgain v. Miller, 708 F.2d 1241 (7th Cir.1983), this court held a system functionally similar to WCI's constitutionally inadequate. In Corgain, inmates challenged the adequacy of their access to state courts while they were incarcerated at the United States Penitentiary at Marion, Illinois. The Marion law library was deficient in state law materials, but the inmates could obtain copies of necessary materials by written request accompanied by precise citations. We agreed with a federal magistrate's conclusion that Marion's system was constitutionally insufficient.
The magistrate correctly concluded that the law library system at USP-Marion, without state law materials or supplemental legal aid, was inadequate. He aptly characterized the Shawnee Library System's requirement for precise citations for photocopying as a "Catch 22" because the inmate could obtain precise *447 citations only if he could refer to state law materials.
Id. at 1250. We then approved plans submitted by prison officials to remedy the inadequate access by providing inmates either with starter libraries, in which the inmates themselves could do preliminary research, or with lists of legal services offices with whom the state had contracted to provide assistance to inmates. See id. at 1248-51.
We again addressed the access-to-courts issue in Caldwell v. Miller, 790 F.2d 589 (7th Cir.1986). In Cadwell, prisoners at Marion challenged restrictions placed on library access following a "lockdown" imposed after the death of an inmate and two guards. During the lockdown, prisoners were denied access to the main library, but were allowed to initiate legal research in smaller "basic libraries" and to request copies of further materials by written requests including exact page citations. The district court
granted summary judgment in favor of the defendant warden. We reversed, holding that factual issues remained regarding the sufficiency of the materials available in the basic libraries. The court noted that if "the exact-cite system is supplemented by adequate reference materials in the basic library," then the exact-cite system may be permissible. Id. at 607. Thus, the mere existence of basic libraries did not preclude the inmates from raising a factual issue regarding the sufficiency of their access to the courts. Id. at 607. In the Campbell case, however, we upheld the sufficiency of the "exact-cite" system for inmates in a segregated control unit based upon the evidentiary record before the district court. We found this system adequate in that case because the control unit library "is designed to facilitate the initial step's of legal research viz., the formulation of tentative theories and the notation of materials needed to be consulted," Campbell, 787 F.2d at 227, and because the "exact-cite" system did not engender any delays. Id. at 229. (FN1)
[9] DeMallory, however, had no access to law libraries—even "starter" or "basic" libraries. Unlike the control unit ir Campbell, the Adjustment Center library lacked the primary resources to allow DeMallory or other inmates to adequately begin their initial legal research or to formulate tentative theories. (FN2) Moreover, because the district court was unable to appoint an attorney to represent him, DeMallory had to proceed without counsel. DeMallory's meaningful access to the courts, therefore, rested solely on written correspondence with inmate paralegals for assistance on his Eighth Amendment claim. Dependence on untrained inmate paralegals as an alternative to library access does not provide constitutionally sufficient access to the courts. 'Rather, when inmates have no access to a law library they must be provided with assistance by trained, skilled, and independent legal personnel." Walters v. Thompson, 615 F.Supp. 330, 340 (N.D.111. 1985). (FN3)
*448 [10][111 The defendants justify the restrictions on DeMallory's access to legal assistance on the grounds that he and other inmates in the Adjustment Center are security risks. Generalized security concerns, however, are insufficient to support such a ban. Instead, prison officials must come forward with evidence that the specific contact at issue threatens security and must show that less restrictive measures, such as precounseling searches, are not possible See, e.g., Turner v. Safl — U.S. --, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987); Kunzelman v. Thompson, 799 F.2d 1172,
1179 (7th Cir.1986); Campbell, 787 F.2d at 225-26 WCI officials have done neither. Moreover, several genuine issues of material fact remain relating to less-restrictive measures, which precludes awarding summary judgment for the defendants at this stage. The defendants argue that DeMallory has "meaningful" access to legal assistance through the aid of LAIP lawyers, the State Public Defender's Office, and the private bar. DeMallory, however, contests this position and contends that although LAIP provides a variety of legal assistance to inmates, it does not handle conditions-of-confinement or institutional-discipline cases like his. The record also is unclear as to the availability of the Public Defender and private attorneys in assisting plaintiffs like DeMallory. In addition, a dispute exists as to whether the inmate paralegals piovide an adequate substitute for counsel and whether the State can provide greater direct access to paralegals. The State argues that direct contact between inmates and paralegals would overtax prison resources because of the security risk involved in permitting paralegals into the segregated Adjustment Center. Yet the record reflects that, at least in some other limited circumstances, general population inmates were allowed into the Adjustment Center under the supervision of prison officials. A genuine dispute exists as to whether similar arrangements can be made to allow Adjustment Center inmates, like DeMallory, to confer with the prison paralegals without overburdening the prison authorities. The district court, then, erroneously concluded that the State provided DeMallory with meaningful access to the courts. Before entering judgment, it is necessary for the district court to hold a hearing to resolve these issues and to determine whether the State's legitimate security concerns justify the restrictions on DeMallory's access to legal assistance.

(12) As an alternative basis for its decision, however, the district court held that DeMallory had failed to show prejudice and therefore failed to state a claim on which relief could be granted. Because the district court apparently misperceived the nature of the prejudice requirement, we decline to accept its conclusion. We recently emphasized that the necessary showing of prejudice is a minimal one. Hossman v. Spradlin, 812 F.2d 1019, 1022 (7th Cir.1987). We require only that the plaintiff "articulate, to some degree, the basis for his claim that his access to the courts was significantly ... impaired." Id. at 1022. DeMallory's complaint clearly alleges that the WCI rules prevent adequate legal research and counseling. Such a complaint amounts to a sufficient allegation of prejudice to state a claim on which relief can be granted. Cf. Walters v. Thompson, 615 F.Supp, at 338 (similar complaint sufficient to support preliminary injunction).
Generally, we have required a showing of prejudice only where minor or indirect limitations on access to courts are alleged. Where, as here, the plaintiff alleges a direct and continuous limitation on access to legal materials or counsel, we have required no such showing. Compare Hossman, 812 F.2d at 1021-22 (occasional interference with library access and destruction *44 of unspecified court papers—showing of prejudice required); Jones v. Franzen, 697 F.2d 801 (7th Cir.1983) (limits on number of free photocopies—showing of prejudice required); Bach v. Coughlin, 508 F.2d 303 (7th Cir.1974) (postage regulations-showing of prejudice required); and Isaac v. Jones, 529 F.Supp. 175 (N.D.111. 1981) (denial of library access on one occasion—showing of prejudice required); with Caldwell, 790 F.2d 589 (continuous limitation on library access-no discussion of prejudice); Campbell, 787 F.2d at 217 (continuous limitation on library access—no discussion of prejudice); and Corgain, 708 F.2d at 1241 (continuous limitation on library access—no discussion of prejudice); see also Walters, 615 F.Supp. at 338 (criticizing requirement of showing prejudice). In our adversary legal system, few things can be as prejudicial as the denial of basic legal resources. In essence, when an inmate complains of prison rules that substantially and continuously limit his or her access to legal materials and counseling, the complaint carries an inherent allegation of prejudice.
[13] Furthermore, the record before us shows evidence of prejudice. Even WCI officials have repeatedly admitted that current rules create a "problem of legal assistance" for Adjustment Center inmates. In addition, DeMallory's reply brief in the conditions-of-confinement action was filed too late for the magistrate's consideration. Where limitations on library use prevent filing of briefs in time for the court's consideration, those limitations are sufficiently prejudicial to sustain an access-to-courts claim. See Isaac, 529 F.Supp. at 178-79 (by implication). We therefore find that DeMallory has shown sufficient prejudice to support his access-to-courts claim.
[14] For the reasons stated, we reverse in part and remand for further proceedings consistent with this opinion. (FN4)

EASTERBROOK, Circuit Judge, dissenting.
Robert DeMallory, a prisoner of Wisconsin, complains about the conditions of his confinement in the Adjustment Center of the state's maximum-security penitentiary at Waupun and about his access to law books. The Adjustment Center is the place for segregating the most incorrigible inmates in the state's charge. DeMallory was put there for instigating a riot, and in an earlier appeal we held that the state complied with the Due Process Clause in doing so. I doubt very much that there is a case or controversy about the subjects DeMallory now presents; if there is one, I doubt very much that further proceedings are necessary.
1. DeMallory was confined to the Adjustment Center between 1978 and February 12, 1988, when, his appellate counsel informs us with commendable candor, he was placed in the general population. He wants an injunction governing the operation of the Adjustment Center, but as he is not confined there he has no continuing controversy with Wisconsin about its operation. DeMallory filed the case in 1981 as a class action, but in 1983 the district court declined to certify the class, finding DeMallory a poor representative; he has not challenged this decision on appeal. (FN1) If he were likely to be returned to segregation the case might be "capable of repetition but evading review", see Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 16 L.Ed.2d 350 (1975); Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982); Honig v. Doe, — U.S. —-, 108 S.Ct. 592, 601-02, 98 L.Ed.2d 686 (1988), but DeMallory does not contend that he is planning to foment another riot. Even if he were, the "capable of repetition but evading review" doctrine comes into play only when courts are unable fully to adjudicate claims arising out of acts that in the *45( nature have a short duration. The doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.
Weinstein, 423 U.S. at 149, 96 S.Ct. at 349. DeMallory's skillful appellate lawyer does not even contend that there is a "reasonable expectation" that he will again be placed in the Adjustment Center, let alone that, if he is, the duration of his stay will be too short to permit adjudication. DeMallory was in the Adjustment Center for ten years, long enough to litigate. He will return to the Adjustment Center only if he shows unfitness for the general population, and given his history, a future stay is unlikely to be brief. In the absence of so much as an argument on the two foundations of the capable-of-repetition doctrine, the case is moot. Holmes v. Fisher, 854 F.2d 229, 232 (7th Cir. 1988).
Weinstein requires a "demonstrated probability", 423 U.S. at 149, 96 S.Ct. at 349, that the same party will again be subject to the challenged action, and nothing has been "demonstrated" (or even argued) here. The "probability" part was a subject of much debate in Honig: does it mean more-likely-than-not, or is some lesser likelihood enough? Whatever the minimum probability, the fact that someone is at some risk is not enough. DeMallory will be back in the Adjustment Center only if he violates the institution's rule Weinstein and Murphy were similar: in each, the claimed injury could recur only if the plaintiff violated a rule of law and was again caught up in the criminal justice system, raising questions about baiMurphy ) or parole (Weinstein ). In each case the Court thought that the chance of another cycle of violations and sanctions was too low to keep the case alive. DeMallory's situation is governed by the same rules.
DeMallory wants damages as well as an injunction, but this does not keep the case alive, for three reasons. First, many of the persons he has named as defendants have nothing to do with the conditions of which he complains—the Governor of Wisconsin, the Secretary of the Department of Health and Human Services, and so on. Section 1983 does not expose such persons to liability on account of their subordinates' acts. Second, he has not even offered to show injury from the events remaining in the case-the odoriferous living conditions and the lack of access to a law library. To keep the library claim alive, my colleagues find it necessary to hold that the prisoner need not establish injury from the lack of access. That pretty much eliminates the possibility of damages. The majority does not say that DeMallory is entitled to damages if he suffered no prejudice to the vindication of any legal claim. So too for the challenge to the conditions of confinement. We do not learn from DeMallory what the injury was, so there is no serious claim for damages.
Third, the five defendants who have something (tangentially) to do with the remaining claims-the Warden, Associate Warden for Security, and Major of Security of Waupun; the Administrator of the Division of Corrections; and the Chairman of the Wisconsin State Prison Paralegal Program—are entitled to qualified immunity as a matter of law under the standard Anderson v. Creightor — U.S. —-, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), and Rakovich v. Wade, 850 F.2d 1180, 1205-1210 (7th Cir. 1988) (en bane). No reasonably well-trained jailer would be expected to know that the Waupun library system is unconstitutional when we have sustained more restrictive systems for a federal prison (discussed below) and when we have said that prejudice is an essential ingredient of a claim of denial of access to legal texts. A majority of all the judicial officers who have examined this case-the magistrate, the district judge, and I—believe that the defendants did not violate DeMallory's rights. How then could we say, Anderson an< Rakovich require before there may be monetary sanctions, *451 that any reasonably well-trained official would have understood that the acts in question were unconstitutional?
It may be that questions concerning immunity and the probability that DeMallory will again find himself in the Adjustment Center should be resolved in the first instance by the district court. The defendants' motions for summary judgment omitted the immunity point, so it is not before us although it remains for decision in the district court. (FN2) If the defendants prevail, and the damages claims are cleared away, there is nothing left of the case. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). To the extent immunity has become a potentially-dispositive bone of contention, we should identify the problems and remand the case rather than deliver an advisory opinion on the off-chance that the district court might find a surviving issue.
2. There is a constitutional right of access to the courts, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), not of access to law books. Books are tools, not ends in themselves. While in the Adjustment Center, DeMallory had access to law books. The Adjustment Center uses the same system as the Library of Congress: the patron must request a book by title, using the information gleaned from finding aids and requests to the staff. It is a closed-stacks system. True, the access was on terms DeMallory found inconvenient, but inconvenience is not unconstitutional. We so held in Hossman v. Spradlin, 812 F.2d 1019, 1021-22 (7th Cir. 1987), adding that unless the prison's rules hamper the pursuit of a legal claim,
the need to jump through hoops to get law books is no constitutional defect. See also Bruscino v. Carlson, 854 F.2d 162, 167 (7th Cir.1988) ("a showing [of prejudice] is required in a case alleging a denial of access to the courts."); Rowland v. Kilquist, 833 F.2d 639, 642-43 (7th Cir.1987); Jones v. Franzen, 697 F.2d 801, 803 (7th Cir.1983); Bach v. Coughlin, 508 F.2d 303, 308 (7th Cir.1974). (FN3) DeMallory had to jump through hoops, no doubt, but he had leaping ability. An illiterate prisoner might find Wisconsin's system an insuperable obstacle-but then an illiterate prisoner would find a law library of no use either. Giving an illiterate the run of the stacks is like giving an anorexic a free meal at a three-star restaurant. DeMallory is literate, and the record is filled with his lucid prose, including many legal citations. The documents he filed are better than some we see from members of our bar. Neither his complaint nor his briefs on appeal (one pro se and another filed by counsel) identifies *45^ any legal claim that was hampered by the way prisoners in the Adjustment Center get access to law books. That dooms his contention that the restrictions on his access to law books were unconstitutional. See Howland, 833 F.2d at 642 ("This court has consistently found that some showing of detriment caused by the challenged conduct must be made in order to succeed on a claim alleging a deprivation of the right to meaningful access to the courts."); Hossman, 812 F.2d at 1021 & n. 2; Bruscino, at 167.
The majority says that "[ijn Corgain v. Miller, 708 F.2d 1241 (7th Cir.1983), this court held a system functionally similar to WCI's constitutionally inadequate." Slip op. 6. Although the systems have their similarities, the differences are more important. Corgain dealt with the system then employed by the federal prison at Marion, Illinois, to handle litigation by state prisoners, who Marion had accepted in its capacity as the most secure prison in the nation. No state prisoner could get any information on his state's law without providing volume and page citations; yet without any finding aids, no prisoner could provide them. The court held that Marion's system was unconstitutional but added that it would be constitutionally sufficient to provide finding aids (digests, treatises, and the like) from which pinpoint citations could be derived. 708 F.2d at 1248-51. Wisconsin does not require the prisoners in the Adjustment Center to cite specific pages without aid. It requires citations i volumes, but the prisoner's first volume may be a treatise, digest, or other finding aid; Wisconsin offers (as Marion did not) the assistance of law students, public defenders, and inmate paralegals to obtain those "starter" citations. This looks to me like what Corgain said would comply with the Constitution. The system allowed DeMallory to find and cite cases on point in this litigation.
To say, as my colleagues do, that a prisoner need not show "prejudice" from a violation of his entitlements not only goes against the law of the circuit but also misunderstands the nature of the right. It is not as if a right (to books) has been violated, and we have to determine whether a showing of prejudice is needed to get relief for the violation. Since the right is one of access to the courts, a prisoner who is able to place all legitimate grievances before a court has received his due. A demonstration of inability to present a legal claim is an essential ingredient of a suit such as this because the prisoner must be able to show that the rules interfered with his entitlement (access to the courts) rather than with a mere instrument for vindicating an entitlement (access to books). When a prisoner who has had full access nonetheless contends that the law library services are not adequate, he is making a contention that affects only third parties, and thus inviting us to overstep the bounds of judicial authority. It is as if a prisoner who always has received adequate medical care files a suit contending that the prison's physicians are not adequately trained, that the infirmary is poorly equipped, and so on. Such shortfalls might cause harm, but unless they have worked to the plaintiff's detriment he is not the right person to protest them. DeMallory's objection to the terms on which inmates secure law books is no different from this hypothetical objection to the medical facilities of the prison. So we lack power under Art. Ill for two reasons: the case is moot, and DeMallory's own rights were not at issue.

A word on procedure. The court remands the case for further evidentiary proceedings, on the assumption that if the complaints state claims for relief there must be procedures to test the allegations. There are two problems.
First, the district court gave DeMallory an opportunity to prove his claims. The complaint dealing with access to law books was filed in April 1981. Desultory discovery ensued. In January 1986 the defendants filed four sworn answers to DeMallory's interrogatories and, on the basis of these answers, a motion for summary judgment. The cover letter informed DeMallory that "any factual assertion in the ... documents submitted or
referred to in support of defendants' Motion will be accepted by the District Judge as true unless *453 you submit Affidavits or other documentary evidence contradicting the assertion." To the letter and motion, the defendants attached a copy of Fed.R.Civ.P. 56. DeMallory therefore did not need to do legal research; he knew that he could not stand on the averments of the complaint. Rule 56(e), and that if he needed more time to gather evidence, he had to file an affidavit to that effect, Rule 56(f). DeMallory neither submitted evidence nor filed a Rule 56(f) affidavit. He instead filed a brief addressing only points of law. Prisoners are not immune from the requirements of Rule 56, e.g., Hossman, 812 F.2d at 1022 & n. 6; cf. Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982), so there is nothing more to do. The shortfall in DeMallory's response is factual, unrelated to any burdens in obtaining access to law books. The record contains the evidence DeMallory wants to put in it, and that evidence is not enough to survive the motion for summary judgment.
Second, to the extent there are disputes about the need to treat inmates as Wisconsin does, these disputes are not resolved by taking evidence and deciding the issue de novo. Prison officials, not district judges, decide whether the inmates in segregation are so dangerous that written requests to inmate paralegals rather than face-to-face meetings are appropriate. "[When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safly, — U.S. —-, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). "Reasonable relation" in constitutional law is assessed by looking at the logical connection between means and ends, not by taking evidence and deciding where the "truth" lies. Vance v. Bradley, 440 U.S. 93, 110-12, 99 S.Ct. 939, 949-950, 59 L.Ed.2d 171 (1979); Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 537-38, 93 L.Ed.2d 499 (1986); Citizens for John W. Moore Party v. Board of Election Commissioners, 794 F.2d 1254, 1257-58 (7th Cir.1986). As the Court said in Rast v. Van Deman & Lewis Co., 240 U.S. 342, 357, 36 S.Ct. 370, 374, 60 L.Ed. 679 (1916), and reiterated in Vance:
It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety.

See also, e.g., McGinnis v. Royster, 410 U.S. 263, 274, 93 S.Ct. 1055, 1061, 35 L.Ed.2d 282 (1973) (sustaining a law because the legislature "could have concluded rationally that" certain facts are true); McGowan v. Maryland 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). "Adjudicatory" facts may be freely reviewed; "legislative" facts—those on which the validity of classifications or rules depend-are for law-givers, and courts may ask only whether the rulemaker rationally could have entertained the beliefs that support the rule. Ours is a case about legislative rather than adjudicatory facts; a court may ask no more than whether Wisconsin reasonably could have believed that greater access to books posed unacceptable risks to the safety of inmates and staff.
Cases such McGowan am Munro involved review of laws, while ours involves a rule established by administrative officials. What matters for these purposes, however, is the quality of the subject as rule. Wisconsin could have established the library-access rules by statute. That it chose a different way does not give a federal court greater freedom to say that the rule is unconstitutional. So far as the federal courts are concerned, a state is a state; how it chooses to make rules of general application is an internal concern. Whalen v. United States, 445 U.S. 684, 689 n. 4, 100 S.Ct. 1432, 1436 n. 4, 63 L.Ed.2d 715 (1980); Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 615 n. 13, 94 S.Ct. 1323, 1330 n. 13, 39 L.Ed.2d 630 (1974); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612, 57 S.Ct. 549, 551, 81 L.Ed. 835 (1937); Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 225, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908); Dreyer v. Illinois, 187 U.S. 71, 84, 23 S.Ct. 28, 32, 47 L.Ed. 79 (1902); United Beverage Co. v. Indiana Alcoholic Beverage Comm'n, 760 F.2d 155 (7th Cir.1985). The Fifth Circuit has applied to the decisions of a sir *45 state-operated hospital the same rational-relationship test employed to assess the validity of state laws. Stern v. Tarrant County Hospital District, 778 F.2d 1052, 1060-61 (5th Cir.1985) (en bane). This is an inevitable consequence of the principle that states need not allocate "legislative" powers to particular officials. When a "legislative" decision has been made, neither its constitutional status nor the means used to prove unconstitutionality depend on the identity of the decisionmaker.
It is rational (reasonable, too) for prison officials to conclude that inmates segregated in the maximum-security prison on account of violence should be required to communicate in writing rather than in person with other inmates; we sustained a more severe restriction on library access on that account in Caldwell v. Miller, 790 F.2d 589, 607 (7th Cir.1986), and Campbell v. Miller, 787 F.2d 217, 225-29 (7th Cir.1986). The decision whether this reasonable inference is sustained in fact is for the state rather than the courts-if for no other reason than that "how safe is safe enough" is inescapably a decision of state policy. Establishing the quantum of risk to tolerate, and the costs to be borne to reduce risks within prisons, are legislative decisions. If we were confident that at small cost a state might produce a large improvement in access to the courts, we might say that the state's choice was not rational in relation to its burden. But DeMallory has not shown how a policy designed at improving safety (and saving costs) has injured any interest he has in access to the courts-and the majority says he doesn't need to. There is therefore no basis for overturning a rational decision by the officials Wisconsin has charged with making such decisions. If there is a case or controversy, the judgment with respect to the law library should be affirmed.

3. DeMallory's objections to the conditions in the Adjustment Center have boiled down to three: that inmates set fires, causing smoke inhalation; that inmates' personal hygiene is not the best, so the odor of excrement is in the air; and that guards clean toilet and face bowls twice a week with the same brush. DeMallory does not contend that prison officials neglect to put out fires or clean up other inmates' filth when they can. Prison officials are not responsible for the low standards of hygiene and safety of their charges; they can't tell the courts to send a better class of prisoner! The challenge to the cleaning is picky at best, since twice a week is more often than most people clean their own bathroom appliances, and there is no indication that when the guards are done the face bowls are unsanitary. They apparently use strong caustic agents, which kill bacteria-so strong that the guards do not want the prisoners to have access to the agents, useful as weapons. (FN4)
I grant that the procedure in this case was deficient, but the deficiencies do not matter. The defendants' answer, filed in 1981, denied that they "have sufficient information as to form a belief as to the truth of the allegations" about the conditions of confinement—a shocking admission from the Warden of Waupun if true, and a violation of Rule 11 if the defendants' lawyer was simply too lazy to investigate before filing. In February 1986, when the defendants moved for summary judgment, they ignored claims concerning the conditions of confinement; so did the magistrate when recommending that the district court grant the motion. The omission did not leave an empty record, however; sworn answers to interrogatories supplied an evidentiary basis for decision. DeMallory's objection to the magistrate's recommendation mentioned only the fires and the difficulties the smoke caused to other prisoners in the Adjustment Center. (FN5) This waived any remaining claims, Lockert *455. v. Faulkner 843 F.2d 1015 (7th Cir.1988). My colleagues' observation that the "district court failed to address" (slip op. 445) claims concerning unsanitary conditions was a natural consequence of DeMallory's failure to raise these matters before that court. The district judge addressed every issue DeMallory presented to that court. Must a district judge address issues that, under the law of this circuit, have been waived?
The protest about smoke is simply too insubstantial to require more litigation. DeMallory does not deny that prison officials obtained medical aid for those who suffered from smoke inhalation. Although he (and everyone else) would prefer clean to smoky air, the Eighth Amendment does not require prison officials to do the impossible. Nothing even hints at "deliberate indifference" to serious medical needs of the prisoners in the Adjustment Center; DeMallory, in particular, does not allege that he suffered any adverse effect from smoke inhalation. "[T]he Constitution does not give inmates the right to be free from all discomfort. The issue with regards to ventilation is the same as with all alleged constitutional violations-does the condition amount to .. cruel and unusual punishment of convicted inmates." Shelby County Jail Inmates v. Westlake, 79S F.2d 1085, 1087 (7th Cir.1986) (emphasis in original). The prison carted many inmates, including DeMallory, off to hospitals after serious fires, but all the record shows—indeed, all DeMallory claims-is that this was precautionary. Nothing so much as hints at a policy of deliberately injuring prisoners or leaving them to suffer after being injured. A prison can put a stop to fires only by taking combustibles (mattresses, blankets, clothes) away from prisoners, and that step undoubtedly would violate the Eighth Amendment if applied to all prisoners for the duration of their confinement. So there is nothing to litigate here, unless we are to punish the defendants and the magistrate for their oversights by forcing them to trek through this record to its inevitable outcome a second time. Other litigants awaiting their first adjudication deserve the scarce judicial time. DeMallory has had his chance—this case is seven years old—and has produced nothing requiring a
court to throw good time after bad.
FN* Mr. Cullen is the current Secretary of Wisconsin's Department of Health and Social
Services. \Ve therefore substitute Mr. Cullen as the named defendant-appellee pursuant to Rule
25(d)(l) of the Federal Rules of Civil Procedure.
FN 1. Corgain, Campbell am Caldwell addressed challenges mounted by prisoners at the United States Penitentiary at Marion, Illinois, and Campbell addressed court access by prisoners in Marion's Control Unit. "Marion is the highest ievel maximum security prison in the federal penitentiary system. The Control Unit is designated for those inmates deemed unfit for the general population at Marion because they pose a threat to others or to the orderly operation of the institution." Campbell, 787 F.2d at 220. Thus, "Marion presents unique disciplinary and security considerations. This is true whether one is dealing with general population inmates or with those in the Control Unit." Caldwell, 790 F.2d at 606. By contrast, although WCI is a maximum security facility, its security concerns are generally less severe than those present at Marion. Therefore, WCI's legitimate security needs, without more, do not justify restrictions more severe than those tested in Corgain, Caldwell, and Campbell.
FN2. The record also is unclear as to whether the "volume-cite" system in place at the Adjustment Center caused unreasonable delays in filing court documents.
FN3. Other courts facing this issue also have taken the position that, at a minimum, inmates either must be given direct access to adequate libraries or must receive help from trained and competent legal personnel other than mere "writ writers" or inmate paralegals. See, e.g., Harrington v. Holshouser, 741 F.2d 66, 69-70 (4th Cir.1984) (limited library access with help from untrained inmate paralegals insufficient); Ramos v. Lamm, 639 F.2d 559, 584-85 (10th Cir. 1980) (access to untrained inmate paralegals insufficient) cert, denied 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981); Keiidrick v. Bland, 586 F.Supp. 1536, 1552 (W.D.Ky.1984) (telephonic communication with untrained inmate paralegals insufficient for prisoners without library access); Canterino v. Wilson, 562 F.Supp. 106, 110-12 (W.D.Ky.1983)
(inmates without library access must be given access to legally-trained personnel). Cf. Lovell v. Brennan, 566 F.Supp. 672, 696 (D.Me. 1983) (direct counseling by inmate advocate and hiring of full-time advocate for segregated prisoners sufficient), aff'd, 728 F.2d 560 (1st Cir.1984).
*455_ FN4. The defendants, for the first time on appeal, argue that they are entitled to immunity. Although we have doubts as to the applicability of qualified immunity to the defendants' conduct in this case, we do not decide the issue because the defendants waived this argument by failing to raise it before the district court. Textile Banking Co., Inc. v. Rentschler, 657 F.2d 844, (7th Cir. 1981).
FN1. The caption lists only the library access case, No. 81-C-348, but the district court evidently meant to cover the conditions-of-confinement case, No. 81-C-124, as well.
FN2. My colleagues say (maj. op. 449 n. 4) that the defendants have "waived this argument by failing to raise it before the district court." The answer to the library-access complaint sets out as an affirmative defense that "[t]he defendants, at all times relevant to this action, have acted in good faith, and have exercised professional judgment in accordance with established correction policies and the applicable law." The answer to the conditions-of-confinement complaint includes almost identical language. This does not employ the magic word "immunity", but it raises the point. DeMallory filed in 1981 a "motion for more definite statement" recognizing that this was a claim of official immunity. The defendants' motion for summary judgment was limited to the merits, but the omission of an issue from a motion does not "waive" it; no rule comparable to Fed.R.Civ.P. 12(h) requires a party to include all issues in every motion for summary judgment on pain of surrendering the point. Rule 56(b), which speaks of motions directed to "all or any part" of a claim looks in the opposite direction. If the defendants had filed a motion for summary judgment raising only their immunity defense and had prevailed, would we say (if reversing that judgment) that they had "waived" all defenses on the merits? If filing a motion based on immunity does not waive defenses based on the merits, how does filing a motion directed to the merits waive defenses based on immunity?
FN3. But see Williams v. Lane, 851 F.2d 867, 878-879 (7th Cir. 1988), holding that Illinois
Copyright (c) West Group 1998 No claim to original U.S. Govt. works
855 F.2d 442, DeMallory v. Cullen, (C.A.7 (Wis.) 1988)
violates the first and fifth amendment rights of inmates in "protective custody" by affording them "access ... severely inadequate in comparison to that afforded the general population." The panel did not discuss why the rights of the general population are the right benchmark-can otherwise-constitutional library privileges of one group of inmates suddenly become unconstitutional because the state expands some other group's privileges?— and did not cite Hossman or Howland or find that the system employed by the prison in question had hampered any inmate's presentation of a sound legal claim. Bruscino did not cite or distinguish Williams.
FN4. According to a letter to the Governor that DeMallory submitted as an exhibit, one inmate stockpiled the stuff for offensive use until the prison discovered the cache and stopped allowing the prisoners access to caustic agents.
FN5. His objection, styled a "reply brief", concentrated on his due process objection to placement in the Adjustment Center, which we addressed in an earlier appeal, and mentions the fires and the spitting incident in passing. It covers nothing else.
Copyright (c) West Group 1998 No claim to original U.S. Govt. works