        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2    Hadix, et al. v. Johnson, et al.            No. 03-1334
     ELECTRONIC CITATION: 2004 FED App. 0130P (6th Cir.)
                 File Name: 04a0130p.06                      CORRECTIONS DIVISION, Lansing, Michigan, for
                                                             Appellants. Elizabeth R. Alexander, NATIONAL PRISON
                                                             PROJECT, Washington, D.C., Michael J. Barnhart, Detroit,
UNITED STATES COURT OF APPEALS                               Michigan, Patricia A. Streeter, Ann Arbor, Michigan, for
                                                             Appellees.
               FOR THE SIXTH CIRCUIT
                 _________________                                               _________________

 EVERETT HADIX , et al.          X                                                   OPINION
           Plaintiffs-Appellees, -                                               _________________
                                  -
                                  -   No. 03-1334              KENNEDY, Circuit Judge. Defendants appeal district
            v.                    -                          court’s issuance of an injunction in this long-pending case
                                   >                         dealing with conditions within the State Prison of Southern
                                  ,                          Michigan, Central Complex (SPSM-CC). Defendants argue
 PERRY M. JOHNSON, et al.,        -
        Defendants-Appellants. -                             that the district court erred when it found that the failure to
                                                             modify the long-existing structures and to take other steps to
                                 N                           protect prisoners from injury or death by fire resulted in a
       Appeal from the United States District Court          constitutional violation. Defendants also argue that the
   for the Western District of Michigan at Kalamazoo.        district court improperly exercised its jurisdiction over
    No. 92-00110—Richard A. Enslen, District Judge.          facilities not subject to a Consent Decree. We reverse and
                                                             remand on the issue of constitutional violation and affirm on
                Argued: February 5, 2004                     the issue of jurisdiction.

            Decided and Filed: May 6, 2004                                        BACKGROUND

 Before: KENNEDY, DAUGHTREY, and COLE, Circuit                  In 1980, Everett Hadix and other prisoners incarcerated at
                    Judges.                                  the SPSM-CC brought a class action pursuant to 42 U.S.C.
                                                             § 1983 in the United States District Court for the Eastern
                   _________________                         District of Michigan against various state officials charged
                                                             with operation of SPSM-CC. In the complaint, the inmates
                        COUNSEL                              alleged that the conditions of their confinement violated their
                                                             rights under the First, Eighth, Ninth, and Fourteenth
ARGUED: A. Peter Govorchin, OFFICE OF THE                    Amendments. On April 4, 1985, the parties entered into a
ATTORNEY GENERAL, CORRECTIONS DIVISION,                      Consent Decree covering most aspects of health care, fire
Lansing, Michigan, for Appellants. Elizabeth R. Alexander,   safety, sanitation, safety and hygiene, overcrowding and
NATIONAL PRISON PROJECT, Washington, D.C., for               protection from harm, volunteers, food service, management,
Appellees. ON BRIEF: A. Peter Govorchin, Leo H.              operations, access to courts, and mail. Although the state
Friedman, OFFICE OF THE ATTORNEY GENERAL,                    officials admitted no liability on the claims, the Consent

                             1
No. 03-1334               Hadix, et al. v. Johnson, et al.    3    4       Hadix, et al. v. Johnson, et al.                   No. 03-1334

Decree explicitly stated that it was intended by the parties to    Access Plan; II.A.5.a. Professional Staff; II.A.7. Chronic
assure the constitutionality of the conditions under which         Disease Plan; and II.A.11. Problem Oriented Medical Record-
prisoners are incarcerated at SPSM-CC. Under the terms of          Health Related Disabilities of the Consent Decree. Finally,
the Consent Decree, the state officials retained the ability to    the court also ruled that Plaintiffs failed to sustain their
apply for termination of the decree once they achieved full        burden proving the existence of current constitutional
compliance with all decree provisions. The district court          violations as to the remaining health care provisions of the
retained jurisdiction to enforce the terms of the Consent          Consent Decree. Defendants appealed the November 18,
Decree until compliance was achieved. In 1992, the Eastern         1996 order and this Court, in a January 22, 1998 Opinion,
District of Michigan transferred the medical and mental            dismissed the appeal for want of jurisdiction.
health components of the Consent Decree to the Western
District of Michigan.                                                 On March 18, 1999, the Eastern District transferred
                                                                   sections I.P., I.Q., and I.S. of the Consent Decree (regarding
   In April 1996, Congress enacted the Prison Litigation           water temperatures, housing temperatures, and ventilation,
Reform Act of 1995 (“PLRA”), Pub. L. No. 104-134, 110              respectively) pertaining to facility B (Southern Michigan
Stat. 1321-66 (1996), amending 18 U.S.C. § 3626. Section           Correctional Facility or JMF) to the Western District. The
802(a)(1) of the PLRA directs that prospective relief in prison    Eastern District also transferred to the Western District
conditions cases “shall extend no further than necessary to        Defendants’ proposed alternatives to Facility A (Egeler
correct the violation of the Federal right of a particular         Correctional Facility1 or SMN). On December 2-3, 1999, the
plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Section          Western District conducted hearings on the medical health
802(b)(2) of the PLRA entitles the defendant “to the               care provision of the Consent Decree and other issues
immediate termination of any prospective relief if the relief      transferred by the Eastern District.
was approved or granted in the absence of a finding by the
court that the relief is narrowly drawn, extends no further than      On February 18, 2000, the district court issued its Order
necessary to correct the violation of the Federal right, and is    and Findings of Fact and Conclusions of Law. The district
the least intrusive means necessary to correct the violation of    court reaffirmed its findings from November 18, 1996, that
the Federal right.” 18 U.S.C. § 3626(b)(2). The prospective        (1) Plaintiffs sustained their burdens by proving the existence
relief, however, “shall not terminate if the court makes written   of constitutional violations with regard to sections II.A.3.b.,
findings based on the record that prospective relief remains       II.A.4.a., II.A.5.a., II.A.7., and II.A.11 and (2) Plaintiffs failed
necessary[, narrowly drawn, and the least intrusive means] to      to sustain their burden of proving the existence of
correct a current and ongoing violation of the Federal right.”     constitutional violations as to the remaining health care
18 U.S.C. § 3626(b)(3). Following the enactment of PLRA,           provisions of the Consent Decree and terminated its
Defendants moved to terminate the Consent Decree pursuant          jurisdiction over those provisions. Additionally, the district
to 18 U.S.C. § 3626(b)(2)-(3). On November 18, 1996, the           court found that the temperature, ventilation and fire safety
district court ruled that the immediate termination provision
of the PLRA was unconstitutional. In the same ruling, the
court denied Defendants’ motion for immediate termination              1
and ruled that the Plaintiffs sustained their burden by proving          There are 993 cells in the three blocks that make up Eleger (Block
the existence of constitutional violations as to sections          1 has 334, Block 2 has 3 08, and B lock 3 has 35 1). There are currently no
                                                                   prisoners housed in Block 1. Block 2 houses parole violators and Block
II.A.3.b. Transfer Medical Evaluation; II.A.4.a. Sick Call         3 house parole violators and 10 -12 general popu lation inmates.
No. 03-1334                  Hadix, et al. v. Johnson, et al.         5    6       Hadix, et al. v. Johnson, et al.                     No. 03-1334

conditions at JMF, Egeler, and Administrative Segregation2                 (ventilation) of the Consent Decree as to Blocks 1 and 3 of
support a finding of constitutional violations.         The                the Egeler Facility, Block 7 (the Reception and Guidance
February 18, 2000 order was not final, as the district court               Center), Block 8 of the Parnall Facility, and SMI
reserved judgment on termination of other portions of the                  administrative segregation. On May 6-8, 2002, the district
Consent Decree and the entry of any remedial order.                        court conducted hearings on the remaining medical health
                                                                           care provisions of the Consent Decree and other issues
  On July 12, 2000 the Eastern District transferred to the                 transferred by the Eastern District. On October 29, 2002, the
Western District Plaintiffs’ claims that conditions in Facility            district court issued its Order and Injunction and Findings of
C (State Prison of Southern Michigan–Central Complex or                    Fact and Conclusions of Law. The court determined that the
SMI) with regard to water, temperature and ventilation                     existing system of health care continues to violate sections
(Sections I.P., I.Q., and I.S., respectively), endanger the                II.A.3.b, II.A.4.a., II.A.5.a., II.A.7., II.A.11. of the Consent
health of prisoners. On November 15, 2000, the Eastern                     Decree and the Eighth Amendment. The court further found
District transferred to the Western District Plaintiffs’ claims            that Defendants’ failure to protect prisoners from heat-related
that the conditions in Facility D (Parnall Correctional Facility           illnesses and the risk of injury from smoke and fire for
or SMT) with regard to temperature and ventilation (Sections               prisoners with disabilities and chronic diseases resulted in
I.Q and I.S., respectively). On November 8, 2001,                          current and ongoing violations of the Consent Decree and the
Defendants notified the district court that as a result of a               U.S. Constitution.
reduction in the MDOC’s general fund budget, Facility C (or
SMI), including the administrative segregation unit, would be                 On the basis of those findings, the district court concluded
vacated. On January 4, 2002, SMI was emptied of all                        that termination of the remaining portions of the Consent
prisoners. There are no current plans to reopen SMI, and any               Decree was inappropriate, that remedies are appropriate, and
reopening of SMI would be contingent upon future bed space                 that further briefing and hearing were necessary to determine
needs and finances.                                                        the scope of remedies. Accordingly, the district court ordered
                                                                           the parties to further brief the question of whether there is any
   On April 8, 2002, pursuant to a stipulation of the parties,             alternative to compartmentalization,4 consistent with Section
the Western District terminated its jurisdiction over Section              VIII of the Consent Decree, as a remedy for the fire safety
I.P. (water temperature) of the Consent Decree as to all Hadix             problems and risks. After the briefing, the district court
facilities.3 On May 3, 2002, pursuant to a stipulation of the              issued its Injunction on February 25, 2003, in which it
parties, it also terminated its jurisdiction over Section I.S.             ordered compartmentalization of the facilities as the fire
                                                                           safety remedy. The injunction applied to Facilities A (Egeler)
                                                                           and D (Parnall). The court further ordered Defendants to
    2
     There are between 200 and 220 inmates in Administrative
Segregation.
                                                                               4
    3
                                                                                 “Compartmentalization” means subdividing the building into
      The Ha dix facilities were originally defined as “all areas within   smaller units to limit the area that is affected by a fire or smoke, including
walls of the State Prison o f Southern M ichigan at the time this cause    the number of people that might be in that area. T his allows peo ple to
commenced and all areas which will supply support services under the       evacuate horizontally, as well as down the stairs. It also allows them to
provisions of the Consent Judgment.” Order Accep ting Consent              evacuate quicker by shortening the traveled distance to a p lace of safety.
Judgment, May 13, 198 5. The “within walls of the State Prison of          The last dollar cost estimate for compartmentalization of Egeler was $25
Southern M ichigan” meant the C entral C omp lex.                          million in the early 1990 s.
No. 03-1334                   Hadix, et al. v. Johnson, et al.            7    8       Hadix, et al. v. Johnson, et al.                   No. 03-1334

submit by December 31, 2003, a synopsis of their intended                      Consent Decree. At the time of the entry of the Consent
facilities and process modifications, detailed architectural site              Decree, April 1985, SPSM-CC consisted of Blocks 3-6, 8, 11,
plans and construction schedule for approval by the court.                     12, and Administrative Segregation. Blocks 1 and 2, on the
                                                                               other hand, were part of the North Complex. Nevertheless, as
                             ANALYSIS                                          stated above, at that time, the Hadix facilities were defined as
                                                                               “all areas within walls of the State Prison of Southern
  Defendants on this appeal argue that the district court                      Michigan at the time this cause commenced and all areas
abused its discretion and erred (1) by exercising its                          which will supply support services under the provisions of the
jurisdiction over facilities not subject to the Consent Decree5                Consent Judgment.” Order Accepting Consent Judgment,
and (2) in its conclusion that the MDOC’s failure to protect                   May 13, 1985. The “within walls of the State Prison of
prisoners from injury or death by fire constituted a                           Southern Michigan” meant the Central Complex.
constitutional violation. We address these contentions in turn.                Accordingly, the question is whether Blocks 1 and 2 are
                                                                               “areas which will supply support services.” The district court
I. Subject matter jurisdiction                                                 concluded that “those facilities have been long considered by
                                                                               this Court and Judge Feikens6 as Hadix facilities given the
  Defendants argue that the district court lacked subject                      delivery of support services. While, of course, the delivery of
matter jurisdiction over Blocks 1 and 2 of the Egeler                          support services may change over time, there is no need on
Correctional Facility, Blocks 9 and 10 of the Parnall                          the present record to declare those facilities as non-Hadix
Correctional Facility, and Building C. Plaintiffs argue, and                   facilities.” Hadix v. Johnson, No. 4:92-CV-110, slip op. at 4
we agree, that the injunction clearly states that it applies only              (W.D. Mich. Apr. 18, 2002) (ruling on the motions).
to Blocks 1, 2, and 3 of Egeler, Block 7 of the Reception                      Defendants have presented us with no arguments on this
Complex and Block 8 of Parnall. See Injunction, Feb. 25,                       appeal as to why it was an abuse of discretion to conclude that
2003 at 2. Accordingly, the only question is whether the                       Blocks 1 and 2 are “areas which will supply support
district court properly exercised jurisdiction over Blocks 1                   services.”7 Accordingly, we find that the district court judge
and 2 of Egeler.
  The Consent Decree stated the following:                                         6
                                                                                     Judge Feikens of the Eastern District of Michigan was invo lved with
  This was an action brought pursuant to 42 U.S.C. § 1983                      portions of this case prior to their transfer to the Western District of
                                                                               Michigan.
  and other applicable statutes seeking declaratory and
  equitable relief with respect to the conditions of                               7
                                                                                     W e also no te that in order for a district court to have jurisdiction
  confinement at the Central Complex of the State Prison                       over Blocks 1 and 2 , there must be a finding of on-going constitutional
  of Southern Michigan, including the Reception and                            violations taking place there. Therefore, Defendants’ concerns would
  Guidance Center (hereinafter referred to as SPSM-CC).                        have had more substance prior to the enactment of PLRA in 1996, when
                                                                               the jurisdiction was based solely on the Consent Decree. Since the PLRA
                                                                               requires a continuing constitutional violation for the retention of
    5
                                                                               jurisdiction, even were we to find that the district court ab used its
      Defendants also argue that the district court abused its discretion by   discretion in exercising jurisdiction over those facilities by misconstruing
relying upon certain exhibits in violation of the Federal Rules of             the Consent Decree, Plaintiffs could immediately file a new lawsuit
Evidence. W e disagree and find that any conceivable error in connection       challenging the constitutionality of prison conditions in Blocks 1 and 2.
with those exhibits is harmless.                                               W e would like to avoid that result in the interest of judicial efficiency.
No. 03-1334               Hadix, et al. v. Johnson, et al.       9   10   Hadix, et al. v. Johnson, et al.            No. 03-1334

did not abuse its discretion in exercising jurisdiction over all     prove they have taken actions that have remedied
of the facilities in question.                                       constitutional violations previously determined and to discuss
                                                                     plans to remedy these violations in Egeler and Administrative
II. Constitutional violation                                         Segregation. Defendants submitted a Report of their
                                                                     Remedial Plans for Fire Safety, Temperature, Ventilation and
  A. District Court Proceedings                                      Facility A on June 8, 2001.
  On February 18, 2000, the district court issued its Findings          Section VIII of the original Consent Decree called for a
of Fact and Conclusions of Law in which it stated:                   management study. This study concluded that SPSM was
                                                                     unmanageable and should be broken into smaller facilities for
  Egeler cells cannot be remotely unlocked. Moreover, in             purposes of management. The parties negotiated two
  an emergency prisoners would be required to exit down              stipulations, each of which was approved by the Court. The
  five stories through narrow galleries with low railings.           Stipulation Regarding Implementation of Consent Decree
  In a fire, water flowing over the galleries from the               Provisions VIII, E, F, and G, April 7, 1989, established basic
  affected sprinklers would make some areas more                     procedures. The Stipulated Agreement Regarding Plan
  slippery, and in some areas smoke from the fire might              Element One and the Implementation of Paragraphs VIII, E,
  also increase the hazard.           This combination of            F, and G of the Consent Judgment, June 8, 1990, called for
  circumstances would pose an extremely great fire                   the unitization and compartmentalization of each of the SPSM
  hazard. . . The hazards of a fire evacuation would be even         cell blocks into four parts. The Agreement also stated that:
  greater for a prisoner with medical disabilities, a category
  that includes much of the population. . . Fire safety                The parties agree that unitization and decentralization are
  hazards are exacerbated for those persons with                       critical to the acceptance of Plan Element One.
  significant medical disabilities, if they are                        Unitization has been recommended by the Defendants in
  inappropriately housed on an upper tier. Defendants did              their binding proposals to include “dividing each
  not contest Plaintiffs’ contentions that fire safety in              cellblock into four smaller living units which will operate
  relation to prisoners with medical and mental health                 as a management unit.” Decentralization has been
  problems is deficient. Defendants’ failures to implement             recommended by Defendants in their binding proposals
  an appropriate break-up plan, or otherwise address the               to include “food service and passive recreational
  dangers at the Egeler facility, have resulted in current and         programming . . . decentralized to each of the unitized
  ongoing constitutional violations. The current record                housing units.”         Where Defendants condition
  also supports a conclusion that there is an ongoing                  implementation of these proposals with expressions such
  constitutional violation regarding Administrative                    as “if possible” or “where possible” this condition relates
  Segregation.                                                         to architectural feasibility.
Hadix v. Johnson, 2002 U.S. Dist. LEXIS 21283, at *376-77            June 8, 1990 Stipulated Agreement. Our reading of the
(W.D. Mich. Oct. 29, 2002) (citing its previous Findings of          record indicates that Defendants consented to
Fact and Conclusions of Law). Since this order was not final,        compartmentalization as a remedy not for the fire safety
it was not appealed. The court also set a May 2002 hearing           concerns, but for the concerns over violent attacks that were
regarding fire safety to provide Defendants an opportunity to        taking place in the prison complex. The concerns about
No. 03-1334                   Hadix, et al. v. Johnson, et al.        11     12       Hadix, et al. v. Johnson, et al.                 No. 03-1334

personal safety of the prisoners stemming from the potential                 Safety Code (“LSC”)9 does not specify the maximum amount
of outbreak of violence have been remedied and are not                       of time to complete an evacuation. It does, however, require
subject of the current appeal. Accordingly, the district court               that where a large atrium area (e.g. cell block) is being used
erred when it proceeded on the assumption that Defendants                    to dilute smoke as Defendants argue,10 the evacuation time
had agreed on an earlier occasion to compartmentalization of                 must be considered in designing a smoke management
the facilities to remedy fire safety violations.                             system. Depending on the cell block, between 22 and 27
                                                                             locks must be opened at Egeler. By contrast, the LSC permits
   The question of architectural feasibility thus became crucial             a maximum of 10 locks. Further delaying the evacuation is
to the proper resolution of this long-standing conflict.                     the operating procedure, which mandates that a staff member
Defendants retained the architectural and engineering firms of               must travel to the arsenal to get the key to activate smoke
Rosser Fabrap and Silver Ziskind to assess the physical and                  evacuation vents. Nevertheless, Mr. Carson opined at the
functional conditions of the Hadix facilities and design the                 2002 hearing that MDOC’s evacuation procedures and fire
necessary corrective actions in accordance with the Stipulated               drills are adequate to meet the requirements of the LSC. His
Order to unitize and compartmentalize the facilities. Robert                 opinion rested in large part on the ability of the open cell
Fabrap found, inter alia, that (1) all of the cell blocks at                 blocks to provide a large volume for the dilution of heat and
Egeler violate the “means of egress” requirements of the code                smoke. Undermining that conclusion was Mr. Carson’s
of the Building Officials and Code Administrators,                           inability to tell the court how quickly smoke would actually
International (“BOCA Code”);8 (2) the stairs that would be
used for evacuating the cell blocks in Egeler are inadequate in
size, enclosure, location, and discharge; and (3) the five-story
mezzanine design in the Egeler cell blocks violates the atrium                    9
                                                                                   The Life Safety Code is promulgated by the National Fire Protection
requirements of the BOCA Code. These findings were                           Association and is adopted by various jurisdictions, including Michigan.
accepted by Defendants’ mechanical engineering expert,                       The purp ose o f the Life Safety Code is to establish minimum
David Sproul.                                                                requirements that will provide a reasonable degree of safety from fire in
                                                                             existing buildings and structures.
   Additionally, Defendants retained Mr. Wayne Carson as                          10
their fire safety expert. Mr. Carson visited the Hadix facilities                   Mr. Carson presented the follow ing example during his testimo ny:
on a number of occasions, both before and after issuing his                      If I bring a phone booth into this courtroom and w alk in and
                                                                                 close the door and set the phone boo k on fire, I’m not going to
report. During those visits, Mr. Carson walked through the                       be ab le to stay in the phone booth very long because of the heat
facilities and interviewed the staff. Mr. Carson opined that                     and smoke buildup in the booth. But if I light the same phone
MDOC was conducting fire drills quarterly on each shift. The                     book in the mid dle of the courtroom, we could stay in here and
examination of the drill reports showed that evacuation times                    watch it burn because we have a large volume to absorb the heat
in Block 3 and Block 8 approached twenty minutes. The Life                       and smo ke. The cell blocks, because they are so large, some of
                                                                                 them longer than a fo otball field pro vide a huge volume to
                                                                                 absorb heat and smoke and is also limited fuel source in the cell
    8
                                                                                 block and the fuel is what drives the fire, that’s what produces
      The BOCA Code is issued by the International C ode Council and is          the heat and smoke is the things that burn, and there is limited
adopted by various jurisdictions. As of the date of this opinion, the Code       fuel in the cells and in the block to burn, so we have a limited
has been adopted by 44 states, includ ing M ichigan. It provides safety          size fire and this huge volume, it’s a tremendous safety factor.
requirements for newly-constructed or remodeled buildings, but not for       Ha dix, 200 2 U .S. Dist. Lexis 2128 3, at *38 2-83 (W .D. M ich. Oct. 29,
existing structures.                                                         2002).
No. 03-1334                   Hadix, et al. v. Johnson, et al.         13     14     Hadix, et al. v. Johnson, et al.                     No. 03-1334

disperse to fill the whole cellblock.11 Mr. Carson also did not               most recent correctional facility to have a fire resulting in loss
know in what directions the smoke would travel from a fire.                   of life was not multi-tiered.
On the other hand, Mr. DiMascio opined that the most likely
path that smoke would travel would be upward, spreading out                      With respect to a likelihood of a fire, Mr. Carson opined
as it rose and then traveling across the ceilings.                            that (1) the combustible materials in the cell blocks are
Mr. DiMascio’s theory was confirmed by the actual path of                     limited,13 (2) there are no combustibles stored in the
the smoke from a fire in Block 8 that Mr. Kovaleski                           basement of the cell blocks; (3) there are metal fans in the
witnessed on an earlier occasion. However, the district court                 corners of the units and sprinklers over the metal fans; (4) the
acknowledged that fire and smoke from a fire do not travel in                 structure is noncombustible14 and there is nothing in the
the same direction or have the same characteristics on every                  basement that is combustible; (5) there are no combustible
occasion. Mr. Carson attempted to bolster his smoke dilution                  materials in the attic space; (6) the laundry levels at the
theory by testifying that his research has only disclosed one                 bulkheads referred to as the ends of the cell blocks at the
multi-tiered open cell block fire in Ohio in the 1930s, which                 Egeler Facility are protected with sprinklers; and (7) all
resulted in death or injury to prisoners when the wooden roof                 buildings are protected by automatic sprinklers in each cell.
collapsed. Plaintiffs countered that aspect of his testimony                  On cross-examination, Mr. Carson conceded that the dry
with Curtiss Pulitzer’s testimony that a number of fires had                  transformers and circuit breaker panels in Block 7 and 8 could
taken place in multi-tier cell blocks.12 Despite Mr. Pulitzer’s               catch fire and that smoke from the fire could enter the cell
statement regarding the loss of life due to fires in multi-tiered             block. Mr. DiMascio confirmed that the dry transformers and
correctional facilities 20-25 years ago, the court noted that the             circuit breaker panels in Blocks 1-3, 7, 8 are “live” and pose
                                                                              a serious hazard if they were to catch on fire. Mr. DiMascio
                                                                              testified that “sprinkler systems fail too often.” However, he
                                                                              was unable to provide the court with the failure rate, if any, of
                                                                              the sprinkler system in the subject facilities.
    11
       The LSC doe s provide examples of doing calculations for smoke
removal rates based on assumed fuel loads. The type and amo unt of fuel         Plaintiffs produced evidence, credited by the district court,
load drives both how fast a fire will develop and how long the fire will      that there are no automatic sprinklers in the basements of
last. The LSC uses an example of a severe fuel loading of 6 pounds per
square foo t. Mr. Carson testified that the approximate weight o f the cell
                                                                              Blocks 1, 2, 3, 7, and 8 (except at either end over the fans)
furnishings is 1.7 po unds per square foot. M r. DiM ascio, Plaintiffs’       and that there are no sprinklers in the pipe chases behind the
expert, did not contradict that testimony through his own calculations.       cells in Blocks 7 and 8. As a result, if smoke gets into the
Mr. DiM ascio did indicate that Mr. Carson may have underestimated the        pipe chases in Blocks 7 and 8, it would travel vertically
fuel load by only taking into consideration cell furnishings, typically-      through the tiers, get to the return air vents at the top of the
issued clothing, and b edd ing. The imp ortance of o ther co mbu stible
property, such as personal and legal ma terials, was provid ed by Plaintiff
Ronald Kovaleski, who estimated the weight of his property at about 500            13
pounds and the property of a typical prisoner at about 250 pounds.                   Mr. Carson ind icated that (1) the bed , desk and chair are metal
Mr. Kovaleski’s experience therefore illustrates the failure o f MD OC to     except for the chair’s plastic molded back; (2) the furnishings are metal;
enforce its policy limiting the amount of personal property an inmate may     and (3) the mattress is cotton, treated with boric acid–it is combustible but
possess within their cell.                                                    has been treated to reduce its flamm ability.

    12                                                                             14
       Mr. Pulitzer is a planner and a licensed architect with over twenty           Mr. Carson indicated that all Blocks were “heavy concrete and
years experience in the planning o f correctional facilities.                 maso nry construction.”
No. 03-1334                   Hadix, et al. v. Johnson, et al.         15     16     Hadix, et al. v. Johnson, et al.                     No. 03-1334

building and be exhausted. The smoke detectors in the air                     constructed in 1926. Blocks 7-8 were constructed in 1928.
handling units would shut down the unit in the event of large                 Blocks 11-12 were constructed in 1944. Administrative
volumes of smoke. At that point, the smoke would not be                       Segregation was constructed in 1930. The court concluded
recirculated in the building; nor would it be exhausted.                      that as a renovated facility, Egeler was subject to BOCA.
Mr. Carson discounted the dangers presented by the lack of
sprinklers in the pipe chases of Blocks 7 and 8 because there                   Mr. Carson also acknowledged that he did not take into
is no fuel in the pipe chases. He concluded that Blocks 1, 2,                 consideration the number of prisoners with medical problems.
3, 7, and 8 are fully sprinkled within the intent of the LSC.15               However, he indicated that a problem of occupants with
He also opined that the Blocks provide an equivalent level of                 medical problems exists in all facilities, including the private
protection intended by the Code.16                                            sector and that the LSC takes this problem into consideration.
                                                                              The court disagreed because it found that Hadix facilities
   A major point of contention during the trial was whether or                house a very substantial numbers of inmates who, “because
not Blocks 1-3 and 7-8 are single-story or multi-storied for                  of age, physical impairment, medical or mental condition, or
the purposes of the LSC. Those Blocks are each five stories                   medication are more at risk from smoke than a general
tall and the length of a football field. Mr. Carson opined that               population and evacuate more slowly.” Hadix, 2002 U.S.
the Blocks are single-story for purposes of the LSC.                          Dist. LEXIS 21283, at *411-12 (W.D. Mich. Oct. 29, 2002).
Mr. DiMascio, and the district court, disagreed. The district
court further found that even if the claim that these Blocks are                B. District Court Conclusions
one-story buildings is accepted, Defendants would then be
violating a separate code provision–the requirement that                        After considering all evidence the district court found the
ceiling height not exceed twenty-three feet.17                                following specific fire safety deficiencies with respect to
                                                                              various areas of concern. With regard to building evacuation
   Another point of contention was the applicability of BOCA                  the court found that:
to these facilities. BOCA requires more safety precautions
than does the LSC. Mr. Carson, who is involved with BOCA                        If inmates cannot quickly evacuate a housing block in the
and is a member of BOCA, stated that BOCA is not                                event of the a serious fire, they would likely die. The
applicable to the subject facilities because BOCA only applies                  current population is at risk in a fire emergency. . .
to new construction and remodeling, and not to existing                         According to Defendants’ records, a substantial number
structures. The district court noted that Blocks 1-5 were                       of cell locking mechanisms do not work properly at any
                                                                                given time. . . In order to exit a block, an inmate must
                                                                                travel half the length of his tier to the nearest stairs,
    15
       Mr. Carson was on the committee that drafted Section 15-3.1.3 of         which are at either end of each block; travel down as
the LSC . The purpose and intent of that Section was to address fire safety     many as five flights of open stairs;18 and cross the open
in existing large multi-tiered open cell blocks.                                area on base to the exit. The distance an inmate must
    16
       The LSC has an equivalency provision to allow the authority
enforcing the Code to make judgments concerning its application.
                                                                                   18
    17
                                                                                     The blocks in question have five tiers. It therefo re appears to this
       The ceiling height in the cellblock s varies b etween 42 feet in       court that there are only four flights of stairs that an inmate must travel
Egeler and 51 feet in 7 and 8 Block.                                          unless the exit is below the first floor.
No. 03-1334              Hadix, et al. v. Johnson, et al.    17   18   Hadix, et al. v. Johnson, et al.            No. 03-1334

  travel in 1-3 Blocks and 7-8 Blocks to exit the block             from the cell on fire and, as it rose from gallery to
  exceeds the maximum travel distance of 150 feet                   gallery, it would gather air and expand, affecting more
  permitted by the Life Safety Code. Blocks 1, 2, 3, 7, and         cells. When the smoke reached the top of the block, it
  8 cannot be classified as one-story buildings under the           would move horizontally through the block and then
  Life Safety Code because they are not fully sprinkled.            downward into the block. The air space in a housing
  “Fully sprinkled” is an absolute without exceptions for           block above the occupied cells will act as a reservoir for
  unsprinkled areas. The BOCA Code would not permit a               smoke but it would be of limited use before it began
  five-tiered cell blocks such as those at Egeler and Parnall.      affecting inmates trying to use upper galleries to exit.
  The primary concern associated with Blocks 1-3, 7 and             Smoke will also form eddies in areas that inmates on
  8 is that they are five-tiered open celled structures. In         other levels are trying to use as exits. Mr. DiMascio
  addition to applying to new or renovated structures, the          made calculations based on Life Safety Code, indicating
  BOCA code requires that unsafe structures be taken                that each block in Egeler would need to be able to
  down or made safe. Blocks 1-3, Administrative                     evacuate 150,000 cubic feet per minute (“CFM”) of
  Segregation, and Blocks 7-8 are unsafe and should be              smoke from a block. The ventilation fans are rated to
  corrected. Application of the BOCA Code to Blocks 1-3,            evacuate 20,000 CFM . . . Accordingly, under conditions
  7 and 8 is essential if the buildings are to be made safe.        in a fire as anticipated under the Code, the cell block
  The ceiling height in Blocks 1-3, 7 and 8 is 51 feet. The         could fill with smoke at the rate of ten feet per minute.
  BOCA Code permits a ceiling height that does not                  In light of the fact that the ceiling height in Blocks 1-3,
  exceed 23 feet long, only so long as one of the exits does        7 and 8 is 51 feet, these calculations imply that smoke
  not require inmates to traverse stairs from higher than the       from the bottom tier could reach the top tier in
  23 feet. The BOCA ceiling height requirement serves to            approximately five minutes. However, the chances of
  reduce the number of people at risk. The intent of the            such a fire are reduced by the presence of sprinklers. The
  ceiling height requirement is to assure                           ventilation system in 1-3, 7 and 8 Blocks is no more than
  compartmentalization, reducing the population at risk             an add-on. It is not a smoke controlled system as
  from a fire in a particular unit and assuring that prisoners      described in the codes. There are “live” dry transformers
  can move horizontally to the next unit in the event of            and electric breaker panels in the basements of 1-3, 7 and
  fire, rather than being required to negotiate distances in        8 Blocks. These can catch fire and the smoke generated
  excess of what is permitted by the code.                          can travel into the housing area. There are no sprinklers
                                                                    in the basements. Mr. Carson agreed with these
Hadix, 2002 U.S. Dist. LEXIS 21283, at *400-03 (W.D.                statements as to 7 and 8 Blocks. Fire drill reports from
Mich. Oct. 29, 2002).                                               Block 3 of Egeler show evacuation times ranging from
                                                                    eight minutes to eighteen minutes. The reports for Block
  With respect to smoke removal, the district court found           8 evacuation times range from three minutes to twenty
that:                                                               minutes. However, the codes do not specify maximum
                                                                    evacuation times. It takes four minutes just to unlock all
  Notwithstanding MDOC regulations, there is a sufficient           of the cells in Blocks 7 and 8, not counting the time from
  fuel load within a cell to burn for 15 minutes. Some cells        the base level through an exit door.
  have footlockers full of books and other papers. Smoke
  caused by a fire in a cell would be most likely to rise         Id. at *403-06.
No. 03-1334              Hadix, et al. v. Johnson, et al.    19   20   Hadix, et al. v. Johnson, et al.             No. 03-1334

  In addition to these general findings, the district court         gallery of 8 Block. The inmate put a few papers and a
identified physical problems unique to each facility in             sheet in a trash can, ignited this material and placed his
question. With respect to Egeler, the court noted that:             mattress over the fire. Mr. Kovaleski was on the third
                                                                    gallery at the time. There was so much smoke produced
  A maximum of ten locks can be released to meet the Life           by this fire that he could not see the cell opposite his on
  Safety Code. Two of the Egeler blocks have 22 locks               the other side of the common area. The smoke came up
  that must be manually opened to evacuate the building.            the front of the tiers and into his cells. . . There are no
  One block has 27 locks that must be manually opened,              sprinklers in the 7 and 8 Block pipe chases. If an inmate
  because there are five top-lock cells. The smoke-purging          in 7 or 8 block were to ignite his possessions, the smoke
  system in each block of Egeler is the roof exhaust fans.          from the fire could travel into the pipe chase, which does
  To activate those fans, staff must go to the Arsenal to           not have sprinklers, and travel up in the chases and enter
  retrieve the key to the lock on the exhaust fans. In the          the cells at higher levels. If transformers in the 7 and 8
  event of a fire, staff would be expected to unlock cells          Block basements caught fire, the smoke from the fire
  and the exit doors, travel back and forth from the Arsenal        could travel into the housing units.
  to get the key to unlock the switch to the smoke purging
  system, and assist handicapped inmates. A Block 2 cell          Id. at 407-09. With respect to Administrative Segregation,
  (which was subject to double-bunked [sic] at the time of        the court concluded that “[i]f a fire started in a basement it
  hearing) has a distance of 18.5 inches between the bunk         could ignite the insulation at each floor” and that “Defendants
  bed and the side-by-side lockers opposite the bed, 22           inappropriately rely on this ventilation system to exhaust
  inches from the sink to the bunk bed and 9.5 inches from        smoke in Administrative Segregation.” Id. With respect to
  the sink to the desk, not including the space for the chair.    RGC, the court noted that “[i]nmates in RGS may never
  Defendants did not made any changes to the ventilation          participate in a fire drill, because of the short period of time
  system in 2 Block after it was double-bunked, nor have          they are in the facility [10 days to 4 weeks], placing them at
  Defendants made any changes in the ventilation since the        increased risk.” Id. It further concluded that “in the Egeler
  Court made its findings of unconstitutionality, with the        facility, Blocks 7 and 8, Administrative Segregation and
  exception of increasing the population by double-celling        RGC, the risk of injury from smoke and fire for prisoners
  for a time. This double-bunking placed Block 2                  with disabilities and chronic diseases continues to violate
  prisoners at risk in a fire emergency.                          Constitutional requirements . . .” Id. at 412-13.
Id. at *406-07. With respect to Blocks 7 and 8, the court           C. Current Appeal
noted that:
                                                                     In the context of prison conditions, the Cruel and Unusual
  The quartermaster area of 7 Block contains substantial          Punishment Clause forbids conditions that involve the
  flammable materials. Smoke could get into the housing           “wanton and unnecessary infliction of pain,” or are “grossly
  unit up the stairs or through the passageway used by            disproportionate to the severity of the crime. . .” Rhodes v.
  inmates to get into the cell block. [Plaintiff] Kovaleski       Chapman, 452 U.S. 337, 347 (1981). To succeed in an
  estimated that inmates have substantial weights of              Eighth Amendment challenge, Plaintiff must establish that (1)
  flammable materials in their cells. . . Mr. Kovaleski           a single, identifiable necessity of civilized human existence is
  described a fire that was set by an inmate on the first         being denied (objective prong) and (2) the defendant prison
No. 03-1334              Hadix, et al. v. Johnson, et al.   21    22    Hadix, et al. v. Johnson, et al.              No. 03-1334

official acted with a sufficiently culpable state of mind. See,   best be compared to criminal law’s “subjective recklessness.”
e.g., Wilson v. Seiter, 501 U.S. 294, 298 (1991); Brown v.        Id. at 839-40. In Farmer, the Court, concerned with the
Bargery, 207 F.3d 863, 867 (6th Cir. 2000).                       subjective component, explained that an “inmate seeking an
                                                                  injunction on the ground that there is a contemporary
   With respect to the objective prong,“[p]risoners have the      violation of a nature likely to continue must adequately plead
right not to be subjected to the unreasonable threat of injury    such a violation; to survive summary judgment, he must come
or death by fire . . ..” Hoptowit v. Spellman, 753 F.2d 779,      forward with evidence from which it can be inferred that the
783-84 (9th Cir. 1985). The contemporary standards of             defendant-officials were at the time suit was filed, and are at
civilized decency that currently prevail in society determine     the time of summary judgment, knowingly and unreasonably
whether conditions of confinement are cruel and unusual. See      disregarding an objectively intolerable risk of harm, and that
Rhodes v. Chapman, 452 U.S. at 346. It is those                   they will continue to do so . . .” Farmer, 511 U.S. at 845-46.
contemporary standards, and not courts’ own “notions of           In this case, we are concerned with future conduct to correct
enlighted policy” that are controlling. Tillery v. Owens, 907     prison conditions. If those conditions are found to be
F.2d 418, 426 (3rd Cir. 1990). To satisfy this prong,             objectively unconstitutional, then that finding would also
“extreme deprivations are required . . .,” Hudson v. McMillan,    satisfy the subjective prong because the same information that
503 U.S. 1, 9 (1992), and only deprivations denying “the          would lead to the court’s conclusion was available to the
minimal civilized measure of life’s necessities” are grave        prison officials.
enough to create a violation of the Cruel and Unusual
Punishment Clause. Rhodes, 452 U.S. at 347. Harsh and                The district court concluded that Plaintiffs established both
uncomfortable prison conditions do not automatically create       the objective and the subjective prongs. The review in this
such a violation. Dixon v. Godinez, 114 F.3d 640, 642 (7th        case is made difficult because the district court’s finding of a
Cir. 1997) (citing Farmer v. Brennan, 511 U.S. 825 (1994)).       constitutional violation with respect to fire safety was first
However, a “remedy for unsafe conditions need not await a         made in 2000, together with a number of issues which have
tragic event.” Helling v. McKinney, 509 U.S. 25, 33-34            since been resolved. However, since no injunction was issued
(1993). See also Hill v. Marshall, 962 F.2d 1209, 1211, 1215      at the time, no appeal was available. The present injunction
(6th Cir. 1992) (holding that failure to provide prophylactic     was issued after a further evidentiary hearing held in 2002,
medication to prevent the possible future development of          where expert testimony was offered by each party as to
active tuberculosis is “actual injury,” even though prisoner      compliance with fire safety codes and current conditions with
did not develop active tuberculosis).                             respect to fire safety. In making its findings supporting the
                                                                  injunction, the district court incorporated its principal findings
   With respect to the subjective prong, there is no violation    of its 2000 opinion finding fire safety conditions in the
of the Eighth Amendment unless the defendant is “aware of         affected buildings unconstitutional.
the facts from which the inference could be drawn that a
substantial risk of serious harm exists” and he draws “that         Defendants have not attacked any of those factual findings
inference.” Farmer, 511 U.S. at 837. Even if the defendant        as clearly erroneous. Indeed, the only fact that they appear to
draws such an inference, he is not liable if he took reasonable   be challenging is the district court’s finding that a large
steps to avert the harm. Id. at 844. Negligent exposure to a      percentage of the prisoners in the general prison population
risk is not sufficient to create an Eighth Amendment              have health problems that would affect their ability to deal
violation. Id. at 835-36. Rather, deliberate indifference can     with smoke from possible fires. However, Defendants fail to
No. 03-1334                    Hadix, et al. v. Johnson, et al.        23   24   Hadix, et al. v. Johnson, et al.             No. 03-1334

provide any record to support their position while Plaintiffs               It is unclear whether the court simply (and erroneously)
direct us to various exhibits and disclosures.                              concluded that the violation of the LSC or the BOCA is
                                                                            equivalent to a constitutional violation. Having reviewed the
  Defendants do argue that their expert, Mr. Carson, is better              evidence before us, we conclude that the court abused its
qualified than plaintiff’s expert, Mr. DiMascio. Mr. Carson                 discretion when it found that the current prison conditions at
testified that the LSC properly applies to these existing                   the facilities in question are so unsafe as to violate the
buildings and not the BOCA Code, and that the buildings                     Constitution and when it issued an injunction requiring
substantially comply with the LSC even though the distance                  compartmentalization.
that must be traveled to stairs exceeds the distance permitted
under the Code and even though there is an insufficient                       The Fifth Circuit encountered a similar problem with fire
exhaust system. This deficiency, Mr. Carson stated, was                     safety concerns in various institutions operated by the Texas
compensated for by the large space of the building which                    Department of Corrections (“TDC”). Ruiz v. Estelle, 679
would dissipate smoke from a limited fire in a prisoner’s cell.             F.2d 1115 (5th Cir. 1982). In Ruiz, the district court found
Mr. Carson, however, gave no calculations as to what time                   that (1) the TDC prisons were woefully deficient in the
that would take or how much smoke could be handled. On                      number of fire exits, (2) the few available exits in the housing
the other hand, Plaintiffs’ expert calculated that the space was            areas were too small and inadequately constructed to serve
insufficient to dissipate the amount of smoke that could result             effectively during an actual fire, and (3) a similar problem in
from a fire in a cell, considering the amount of papers a                   work areas created a potential for serious injury in the face of
prisoner could accumulate in his cell. Plaintiffs’ expert also              a disaster. Concluding that these conditions violated the
called attention to areas of the buildings which were not fully             Eighth Amendment, the district court ordered TDC to comply
sprinkled. However, sprinklers were installed in certain areas,             with the current edition of the Life Safety Code of the
both after Plaintiffs’ expert’s inspection and since the hearing.           National Fire Protection Association. Id. at 1152-53. On the
Furthermore, some of the hazards (e.g. unused transformers)                 other hand, the record contained “no evidence either of a
have been or are in the process of being removed.19 If we                   single fatality or a serious injury at TDC caused by fire or
were satisfied that the district court applied a proper standard            smoke inhalation in the recent past. Although there is danger
in its analysis, we would defer to its judgment about the                   from inflammable materials used inside the buildings, the
credibility of the conflicting witnesses.                                   buildings themselves are built of materials that do not burn
                                                                            easily.” Id. at 1153. The Fifth Circuit acknowledged that
  We reserve our judgment on the battle of the experts,                     TDC had a duty to provide adequate fire safety for its
however, because the district court does not, in either its 2000            inmates. Nevertheless, it found that:
or 2002 order, state the standard it is applying to find that the
conditions relating to fire prevention and fire safety are                    The deficiencies in fire safety found at TDC, however,
inadequate. It does not state in what particular ways                         do not constitute cruel and unusual punishment, either
Defendants’ deficiencies were unconstitutional in 2002,                       alone or in combination with the other conditions in its
merely reciting that it had found those conditions                            prisons. Indeed, the fire safety problems have little
unconstitutional in 2000 and that they had not been remedied.                 connection with the other conditions found to violate the
                                                                              eighth amendment. Moreover, although the standards
                                                                              set by private organizations’ safety codes may be
    19
         The parties stipulated that these changes have taken place.
                                                                              instructive in certain cases, they simply do not establish
No. 03-1334              Hadix, et al. v. Johnson, et al.   25   26    Hadix, et al. v. Johnson, et al.                  No. 03-1334

  the constitutional minima; rather they establish goals           complains is not one that today’s society chooses to
  recommended by the organization in question.                     tolerate.
Id. (citations omitted) (emphasis added). In finding that        Helling, 509 U.S. at 36. A review of cases dealing with fire
private safety codes, such as the LSC, do not establish the      safety in the constitutional context illustrates a continuum of
constitutional minima, the Fifth Circuit relied on the           various violations of fire safety, generally, and fire safety
following footnote in a Supreme Court’s opinion:                 codes, specifically.       Some of these amounted to a
                                                                 constitutional violation while others did not.20 See generally
  Respondents and the District Court erred in assuming           Women Prisoners of the Dist. of Columbia Dep’t of Corr.,
  that opinions of experts as to desirable prison conditions     877 F. Supp. 634, 669 (D.D.C. 1994) (finding that the
  suffice to establish contemporary standards of decency.        following living conditions, working in concert, presented a
  As we noted in [an earlier case], such opinions may be         risk of fire so serious that it violated contemporary standards
  helpful and relevant with respect to some questions, but       of decency where (1) the dormitories were overcrowded and
  they simply do not establish the constitutional minima;        carried a heavy combustible load; (2) the walls could not
  rather, they establish goals recommended by the                contain a fire within any room; (3) only one fire exit
  organization in question. Indeed, generalized opinions of      consistently remained unlocked; (4) there was no fire alarm
  experts cannot weigh as heavily in determining                 system; (5) there was no sprinkler system; and (6) fire drills
  contemporary standards of decency as the public attitude       were not regularly conducted); Carty v. Farrelly, 957 F.
  toward a given sanction. We could agree that double            Supp. 727, 737 (D.V.I. 1997) (finding a constitutional
  celling is not desirable, especially in view of the size of    violation where (1) the cell locking devices, manual alarm
  these cells. But there is no evidence in this case that        systems, smoke dampers, and heat detectors were inoperable,
  double celling is viewed generally as violating decency.       thereby creating a security risk during a fire emergency, and
                                                                 (2) the building itself could not adequately protect the
Rhodes, 452 U.S. at 348 n. 13 (citations omitted). The           occupants during a fire because of an inadequate fire alarm
Supreme Court more recently reiterated its commitment to         system); Toussaint v. McCarthy, 597 F. Supp. 1388, 1410
“contemporary standards of decency” approach to claims of        (N.D. Cal. 1984) (finding an Eighth Amendment violation
alleged Eighth Amendment violations:                             where (1) lockup units at both prisons were replete with fire
                                                                 hazards; (2) evacuation procedures were nonexistent or, at
  [D]etermining whether McKinney’s conditions of                 best, untested; and (3) the record showed that multiple fire-
  confinement violate the Eighth Amendment requires              related fatalities occurred); Capps v. Atiyeh, 559 F. Supp. 894,
  more than a scientific and statistical inquiry into the        915 (D. Or. 1983) (finding an Eighth Amendment violation
  seriousness of the potential harm and the likelihood that      despite the absence of evidence of a death or serious injury
  such injury to health will actually be caused by exposure      cause by fire or smoke inhalation at the facility because (1)
  to ETS. It also requires a court to assess whether society
  considers the risk that the prisoner complains of to be so
  grave that it violates contemporary standards of decency
                                                                      20
  to expose anyone unwillingly to such a risk. In other                 The citations that follow represent this continuum. The cases are
  words, the prisoner must show that the risk of which he        listed in the order of the seriousness of the constitutional violations
                                                                 alleged, and/or proven, therein, from the more serious (and, hence,
                                                                 unconstitutional) cond itions to the less serious ones.
No. 03-1334                Hadix, et al. v. Johnson, et al.     27    28    Hadix, et al. v. Johnson, et al.                  No. 03-1334

the prison was a very old structure unlike solid concrete             1986) (observing that “[t]he eighth amendment does not
complexes approved by Ruiz; (2) the inmates, many of whom             constitutionalize the Indiana Fire Code. Nor does it require
are older, lived in crowded dormitories; (3) the facility needed      complete compliance with the numerous OSHA regulations”
either smoke detectors or a fire alarm system, and an                 and remanding to the district court to order only those
emergency exit on the north end of the building; (4) the south        remedies that are necessary to bring conditions above
emergency exit was locked and only one guard could unlock             constitutional minima); Miles v. Bell, 621 F. Supp. 51, 64-5
it; and (5) the ladder did not reach the ground); Leeds v.            (D. Conn. 1985) (no constitutional violation even though the
Watson, 630 F.2d 674, 675-76 (9th Cir. 1980) (remanding for           laundry room door in prison was not a one-hour fire resistant
further hearing on the adequacy of the plan to remedy                 door, as required by the LSC).
constitutional violations where (1) “there is room for the
belief that the second floor of the facility could still be a death      In this case, the district court failed to identify the point at
trap in the event of fire” because the only exit for inmates          which certain fire safety deficiencies ceased being mere
may be blocked by fire and the alternative means of regress           deficiencies and, instead, became constitutional violations.
would take too much time; and (2) “[t]here is still some              As noted above, this Court was informed at oral argument
possibility, moreover, that persons will be housed in ‘grave          that Defendants have taken steps to remedy some of the
emergencies’ in a locked cell area that has no fire exit.”);          problems noted by the district court, such as removing the dry
Santana v. Collazo, 714 F.2d 1172, 1182-83 (1st Cir. 1983)            transformers from the basement and installing additional
(remanding because the district court failed to adequately            sprinklers. It is unclear to us whether those remedies are
address “the evidence presented to it that conditions at              sufficient to cure the constitutional violations at the Hadix
Mayaquez are not as safe from the danger of fire as the               facilities.
constitution requires that they be” where (1) the polyurethane
mattresses were used throughout the institution and that                We understand that the judicial supervision over prison
polyurethane is highly inflammable, burns quickly at high             conditions is a daunting task. We cannot, however, accept the
temperatures and emits extremely toxic gasses; (2) two                approach taken by the district court in this case, namely,
juveniles actually died several years ago in a fire that they set     providing a laundry list of all the things that were wrong in
to their mattresses; (3) fire extinguishers may not have been         the Hadix facilities, declaring a constitutional violation, and
properly changed; and (4) there was a need for an evacuation          ordering a highly expensive, and potentially ineffective,21
plan in the event of fire); Masonoff v. DuBois, 899 F. Supp.          solution. This approach renders it impossible for this Court
782, 798-99 (D. Mass. 1995) (finding that there is a triable          to review on appeal the legal conclusions of the lower court.
issue concerning the plaintiffs’ fire hazard claim where (1) it       We owe deference to the district court’s decision to issue an
was undisputed that the prison lacked automatic locks on the          injunction to remedy the constitutional violations. However,
cell doors and a functioning sprinkler system and (2) that the        we must review de novo its legal conclusion that there were
state building code applicable to the prison required a               constitutional violations. Absence of a clear constitutional
sprinkler system and encouraged the use of automatic door
locks, but (3) where the prison may have mitigated any
danger to withstand constitutional scrutiny when it                        21
implemented rigorous fire safety procedures, including                       This Court has no evidence before it to explain the use of
                                                                      compartmentalization as a fire safety re med y. Nor was one provided to
evacuation drills, fire drills and inspections of fire safety         us by the counsel during the oral argument despite being asked by the
equipment); French v. Owens, 777 F.2d 1250, 1257 (7th Cir.            bench.
No. 03-1334               Hadix, et al. v. Johnson, et al.   29

analysis in the present case by the lower court renders this
task impossible. Accordingly, we remand this case for a more
detailed analysis of how the current conditions in the Hadix
facilities continue to be deprivations denying “the minimal
civilized measure of life’s necessities” rather than potentially
minor deviations that may satisfy the equivalency provisions
of the LSC. Also, we remand for a more detailed analysis of
why the steps taken by the prison officials, which the lower
court may disagree with, constitute “deliberate indifference,”
rather than a mere difference of opinion.
                      CONCLUSION
  For the foregoing reasons, we conclude that the district
court properly exercised jurisdiction over all facilities in
question. However, we remand for a more detailed
constitutional analysis on the question of fire safety
violations.
