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March 17, 1971

James RHEM, Robert Freely, Leo Robinson and Eugene Nixon, individually and on behalf of all other persons similarly situated, Plaintiffs,
George F. McGRATH, Commissioner of Correction for the City of New York, Arthur Singerman, Warden, Manhattan House of Detention for Men, John V. Lindsay, Mayor, City of New York, Paul McGinnis, Commissioner of Correction of the State of New York, and Nelson A. Rockefeller, Governor, State of New York, Harold A. Stevens, Presiding Justice, New York State Supreme Court, Appellate Division, First Department, individually and in their official capacities, Defendants

Mansfield, District Judge.

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

In this suit brought under the federal Civil Rights Law, 42 U.S.C. § 1983, plaintiffs seek relief for a class consisting of all the inmates now confined in the Manhattan House of Detention for Men, commonly known as "the Tombs." Plaintiffs allege that the conditions under which they are presently confined constitute cruel and unusual punishment in violation of the Eighth Amendment, that the practice of opening and inspecting inmates' incoming mail is an infringement on their constitutional right to communicate freely with their attorneys, and that the absence of readily-accessible rules and regulations governing the conduct of inmates and correction officers in the Tombs deprives them of due process of law under the Fourteenth Amendment.

 Plaintiffs moved earlier for a determination that the action was maintainable as a class action. Defendants did not oppose that motion, and on October 26, 1970, Judge. McLean found that the action was maintainable as a class action for all the inmates of the Tombs. Plaintiffs now seek preliminary injunctive relief under Rule 65, F.R. Civ. P., pending final hearing and determination of the action. *fn1" Defendants, those represented by the New York Corporation Counsel, have moved to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, Rule 12(b)(1) and (6), F.R.C.P.

 Our jurisdiction over § 1983 claims asserted by state prisoners is clear, Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Carothers v. Follette, 314 F. Supp. 1014 (S.D.N.Y. 1970). We deferred decision upon the motion for a preliminary injunction in light of defendants' representations that the conditions complained of were temporary, due to events beyond defendants' immediate control, and would be remedied with all due speed. Having examined the facts of the case as they appear from the affidavits, including supplemental affidavits submitted since plaintiffs' motion was initially made, and submitted upon defendants' more recent motion to dismiss, plaintiffs' motion for a preliminary injunction is granted in part and denied in part, for reasons discussed in more detail below.

 The Tombs is a house of detention, or jail, located at 140 Centre Street, New York City. It is employed as a shortterm facility for housing men awaiting trial in New York Supreme Court who have not been admitted to bail (the largest class of inmates), men who have been convicted and who are awaiting sentencing, men serving sentences elsewhere whose presence in New York City is required for coram nobis and habeas corpus hearings or for trials at which they are to be witnesses, and some men serving sentences who have been assigned to provide institutional help. The Tombs is under the jurisdiction of the Commissioner of Correction ("the Commissioner"), defendant McGrath, a New York City official.

 In recent years, over-crowding and trial delays have led to severe discontent and stress among the inmates of the Tombs. *fn2" On August 10 and 11, and August 20, 1970, these factors boiled over into inmate disturbances. The inmates protested against the privations of their incarceration, created a general state of disorder and inflicted substantial property damage. After the Commissioner had restored control, the inmates instituted this action challenging the allegedly worsened conditions at the Tombs. Then, on October 2, 3, and 4, 1970, new disturbances broke out on a scale much larger than those of August. Rioting in the Tombs was part of a citywide outbreak which saw disruption at a total of five institutions *fn3" and the taking of 32 hostages. The October disruption caused a considerable amount of further property damage to the Tombs, *fn4" but no loss of life or serious injury to inmates or correction personnel.

 After the termination of these disorders, the conditions under which inmates of the Tombs are incarcerated worsened. There is little dispute between the parties as to the general outlines of these conditions. At first, inmates were confined in a 24-hour "lockin," not being permitted to leave their cells at any time. The inmates claim that they were denied such basic elements of cleanliness as showers and shaves. They were also denied religious counselling, the chapel having been extensively damaged, and notarial services, due to lack of the usual number of correction officers assigned to function as notaries, following the disorders. Sick calls and medical services were allegedly either non-existent or inadequate; meals were occasionally cold when served, and sandwiches sometimes were substituted for the normal dinner menu. As no tables or chairs were available (because they had been destroyed or damaged beyond repair in the uprising), inmates were required to eat in their cells, on beds or on the floor. Initially no library facilities, including law books and other legal materials, were available (the library and books having suffered severe damage and its correction officer, who had been held as a hostage, not having returned after the disorders). Family visiting privileges were suspended or curtailed and some inmates were not taken to court appearances on time. Moreover, with the imposition of a 24-hour lock-in there was an absence of any physical exercise beyond what could be obtained within the confines of the ordinary cell.

 Also alleged as part of the overall scene, but not attributed to the disturbances, were the censorship of mail and the absence of any publicly-posted set of rules and regulations governing the conduct of inmates. In addition to these grievances, the Tombs continued to be overcrowded, albeit to a lesser degree than that prevailing prior to the disturbances.

 The foregoing general picture, plaintiffs maintain, amounts to cruel and unusual punishment in violation of the Eighth Amendment. The conditions of which they complain can be mainly attributed either to tightened security measures adopted in efforts to prevent a third outbreak of inmate violence or to the lack of physical facilities that were destroyed during the disturbances. The central element in the policy of tightened security was the 24-hour "lock-in," which was initially imposed, and the limited period of "lock-out" time, i.e., time allowed outside of their cells, which the inmates are now granted. Prior to the disturbances inmates were locked out of their cells much of the day, with three to four correction officers supervising an entire floor of approximately 200 inmates. Inmates went from their own floor to other parts of the building, such as the commissary, the library, the chapel, and the clinic. It is not clear whether they went under an institutionwide schedule and whether they were accompanied by guards, but they did have a greater degree of freedom of movement than at present, and consequently a bit more of a chance to obtain physical exercise. Such a system could not function without either some minimal trust between inmates and guards, or a total fear of guards by the inmates, neither of which appears to exist at present. As a result of the disturbances, extensive periods of lock-in were imposed. The lock-in substantially affected the availability and ease of obtaining showers, commissary privileges, notarial, medical and religious services.

 The damage caused by the inmates and the absence of certain guards who were taken hostage during the disturbances account for a large part of plaintiffs' remaining grievances. For example, heavy damage was caused in the chapel, preventing its utilization until December 13, 1970. Notarial services have been reduced because, with the staff of seven prison guards who were authorized to function as commissioners of deeds reduced to six by illness, still another guard was taken hostage in October and had not returned to duty as of October 30, 1970. Meal services were affected because the tables, chairs, and benches which had been located adjacent to the cells and on which the inmates had formerly dined, were destroyed during the disturbances. Damages done to the library, including the destruction of law books, have made necessary a curtailment of library use. Moreover, the guard who was a trained librarian was held hostage and had not returned to duty at the end of October. (We have not been advised as to whether he has since returned.)

 The prison conditions complained of might raise federal constitutional issues if imposed, or if permitted to continue as standing policy, by an indifferent, neglectful, or vengeful prison administration. The record before us, however, reveals that in the present case the Department of Correction has been making good faith efforts to restore conditions in the Tombs to their state prior to the disturbance and in the meantime to continue providing services despite the destruction of physical facilities. It further appears that as a result of the uprisings efforts are being made to alleviate some of the conditions that may have contributed materially to the disorders, with the Board of Correction conducting investigations and publishing reports (e.g., December 3, 1970 release by W.J. vanden Heuvel, Chairman, regarding suicide of Raymond Lavon in the Tombs), the New York courts speeding up the processing of cases of Tombs' inmates, and the Department of Corrections transferring some inmates to other institutions in order to reduce the inmate population at the Tombs.

 The result of these efforts has been that as time has passed security measures have been relaxed. As of October 30, inmates were permitted to be locked out of their cells on a controlled basis, with different floors being locked out at different times. Predictions made then that lock-out time would expand, depending upon the mood and receptiveness of the inmates, have proved accurate. Each inmate is now released from his cell during each of six days a week, including evenings. Although release of all the inmates on a given floor at one time has not been attempted because of the absence of protective screening on the observation galleries, one-half of each floor is locked out during each lock-out period under current procedures. Lock-out hours are 9:00-11:00 A.M., 1:00-3:00 and 6:30-8:00 P.M., except Sundays. There is no lock-out on Wednesday evenings to facilitate attorney visits, which have been extended to Wednesdays between 4:00 and 7:00 P.M.

 As for showers, we are informed that each inmate may shower once every 48 hours, and the warden of the Tombs has been instructed to certify to the Commissioner the number of inmates who have been able to shower on each floor. (Some prisoners have refused to use shower facilities when they are available.) Two sentenced inmates serve as barbers for inmates who are awaiting trial; one is available for sentenced inmates. A program is in the planning, for which equipment has been purchased, to permit inmates awaiting trial to give each other haircuts with electric clippers. Shaves are available for inmates who desire them.

 Before the August riot inmates were allowed personally to visit the commissary and select their purchases. The commissary was almost completely destroyed in the August uprising, however. Commissary privileges are now permitted to each inmate twice a week, with $5 of purchases being permitted on each occasion, or $10 per week total (monies which the inmate must have in his commissary account). Due to the unsettled circumstances, inmates are not permitted to go to the commissary themselves, but are instead required to make out a commissary order blank, which is filled on the day after it is submitted. Inmates are given a toothbrush, toothpaste, and comb upon admission, and additional supplies of these items are provided on each housing floor for distribution to indigent inmates. All inmates are provided ...

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