IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO REQUIRE CONSTITUTIONAL INCARCERATION

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16, 17, 19, 20, 22, and 24 of the Louisiana Constitution, and 42 U.S.C. Section 1983 to require his constitutional incarceration prior to and during the trial of this case. In support of his motion, Mr. CLIENT states as follows:
1. The conditions under which Mr. CLIENT is being housed at the Parish Jail are unconstitutional and uncivilized in the extreme. These conditions are not only illegal, but they are interfering with his right to prepare for trial in this case. This Court has the jurisdiction and the obligation to redress the situation.
2. The Eighth Amendment requires that prisons provide adequate housing, medical care and access to courts. See Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). It is clear that "acts of omission, as well as commission, may constitute the predicate for a finding of" deliberate indifference to the rights of the individual. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1461 (9th Cir. 1988); accord Dace v. Solem, 858 F.2d 385, 387 (8th Cir. 1988) ("acts or omissions sufficiently harmful to show deliberate indifference").
3. There is totally inadequate attorney-client confidentiality in the Parish Jail, which is obviously one facet of any constitutional institution. See Bounds v. Smith, 430 U.S. 817,97 S. Ct. 1491 52 L. Ed. 2d 72 (1977). When counsel have sent Mr. CLIENT confidential, attorney-client communications, the packages have arrived at Mr. CLIENT's cell already opened. Clearly, no outgoing mail can be opened, and incoming mail can only be opened (and not reviewed) in the presence of the inmate. See Jones v. Diamond, 594 F.2d 997, 1014 (5th Cir. 1979).
4. Because of the rules, it is impossible for Mr. CLIENT to call his attorneys. He is allowed to call only for ten minutes after three days' notice in advance for approval. This is clearly unconstitutional, since the important matters that arise in a capital case do not allow for three days' notice. Just as important, while Mr. CLIENT's call to his attorney would be collect, he--an indigent--would be charged eighty-eight cents for the call. To the contrary, the right of legal access in a jail "carries with it the right to seek, obtain and communicate privately with counsel." Dawson v. Kendrick, 527 F. Supp. 1252, 1314 (S.D.W.Va. 1981). When the individual is indigent, no cost may be assessed against the inmate on telephone calls.
5. Mr. CLIENT is being held in a cell with other prisoners, all intent on listening to the television at maximum volume. This, along with the other elevated noise on the tier, makes it entirely impossible for him to concentrate on the important matters that counsel demand of him.
6. Mr. CLIENT has no access to legal materials in the jail. Cf. Bounds v. Smith, 430 U.S. at 828-29. Should he wish to seek redress for his legal rights, he has no means to do this. He is not able, under these circumstances, to assist undersigned counsel in the preparation of his case.
7. Medical treatment is essentially non-existent. Sick-call is entirely unresponsive to the needs of the inmates, and even when medication is available it is charged to the individual's account to the extent that he or she has any funds in that account. On this basis alone (providing a disincentive to anyone who is on the cusp of insolvency to secure medical treatment) the Parish Jail procedures are inadequate. Even had Mr. CLIENT done something wrong (as opposed to merely asserted his right to medical care) the prison may not impose fines and demand costs so as to "require an applicant to give up every amenity of life." Moon v. Newsome, 863 F.2d 835, 838 (11th Cir. 1989) (citing Jones v. Zimmerman, 752 F.2d 76 (3d Cir. 1985)). Indeed, this Court is bound to hold that this action is intentional interference with Mr. CLIENT's constitutional rights:
The [deliberate] indifference can be manifested by prison doctors taking the easier and less efficacious route in treating an inmate. If prison guards delay or intentionally deny access to medical care or intentionally interfere with treatment once prescribed, the Eighth Amendment is violated.

Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988) (emphasis supplied) (quoting Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986) (citations omitted)); Aldridge v. Montgomery, 753 F.2d 970, 972 (11th Cir. 1985) ("[d]eliberate indifference is shown . . . by 'intentionally interfering with the treatment once prescribed'") (quoting Estelle v. Gamble, 429 U.S. at 105)); Martin v. Board of County Commissioners, 909 F.2d 402, 406 (10th Cir. 1990); Johnson v. Hardin County, 908 F.2d 1280, 1284 (6th Cir. 1990). To the contrary, the law provides that the parish shall provide medical care and a physician to those who need it:
The governing authority of each parish shall appoint annually a physician who shall attend the prisoners whenever they are sick. His salary shall be fixed by the governing authority.

La. Code Crim. Pro. art. 703. In point of fact, as to medical care, the duty to redress these conditions probably rests with the District Attorney in this case:
Whenever the governing authority of any parish or municipality or the authority in charge of any state prison, lockup, or camp shall fail to comply with the provisions of this part, the state health officer shall institute through the attorney general of the state, or through the district attorney of the district wherein the prison, lockup or camp is situated, proper legal proceedings to enjoin, restrain and prohibit the parish or municipal governing authority, or the authorities in charge of the state prison or camp from using the prison, lockup or camp for the purpose of confining prisoners until the provisions of this part have been complied with.

La. Code Crim. Pro. art. 763. However, if the D.A. fails in his obligation to fulfill Mr. CLIENT's rights, then Mr. CLIENT must seek enforcement of them himself. See, e.g., Rogers v. Evans, 792 F.2d at 1058; see also Estelle v. Gamble, 429 U.S. at 104 n. 10 (citing with approval, Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973) (condemning refusal of paramedic to provide treatment); and, Martinez v. Mancusi, 443 F.2d 921 (2d Cir. 1970), cert. denied, 401 U.S. 983, 91 S. Ct. 1202, 28 L. Ed. 2d 335 (1971) (prison physician refuses to administer prescribed pain killer)).
8. The condition of the cells is unhygienic in the extreme. The roaches have taken over the place, and on some occasions there have been rats. Even for those who have been forced to eat rats in the service of their country, the food is inedible. To the contrary, as the law provides:
All jails, prisons, lockups and camps and all facilities, units and rooms of such jails, prisons, lockups and camps where prisoners are detained or confined must meet standards of health and decency which shall be established by the state division of health.

La. Code Crim. Pro. art. 751.
For the reasons stated herein, as well as such others as may appear at an evidentiary hearing on this motion and complaint, Mr. CLIENT respectfully moves that this Court enter an order requiring adequate and constitutional treatment of Mr. CLIENT in the jail.
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