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July 11, 1974

James RHEM et al., Plaintiffs,
Benjamin J. MALCOLM, Commissioner of Correction for the City of New York, et al., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


LASKER, District Judge.

 On January 7, 1974, we filed an opinion holding that certain conditions existing at the Manhattan House of Detention (MHD) deprived its inmates, 80% of whom were untried detainees, of their constitutional rights. D.C., 371 F. Supp. 594. The matters in question included excessive imposition of maximum security conditions, limitations on visiting rights, the right to exercise and recreation; the lack of a "tolerable living environment" caused by excessive heat and noise, insufficient ventilation and inability to see out of the building; the refusal to give an inmate the option to be locked in his cell rather than in a common area; inadequate disciplinary procedures; and interference with correspondence rights and the right to receive publications. Our detailed opinion followed a trial of several weeks, as well as thorough pre- and post-trial briefing by both sides and the disposition, by a stipulation of settlement and a consent decree (entered August 2, 1973), of issues essentially relating to overcrowding, unsanitary conditions and inadequate medical care. Great progress has been made in reducing overcrowding. The population of MHD is now only 522, which is substantially below capacity. However, none of the other provisions of the consent decree has been fully executed although the due dates for their performance are long past.

 We concluded the opinion of January 7, 1974, by stating:

"To remedy the violations at MHD will cost money and will require deliberate and careful thought and planning. The framing of a decree will demand the considered guidance of all concerned."

 We instructed the parties to prepare for a conference to determine the contents of an order to implement the opinion. 371 F. Supp. at 637.

 The history of the case since then has been one of frustration largely caused by the City defendants' delay and the absence or incompleteness of reports or plans of performance which they were ordered to submit, as we detail below.

 Solely as a result of such noncompliance on the part of the City defendants, we are today entering an order that the City defendants close MHD within thirty days. The order is subject to reconsideration at such time as the City defendants submit a "comprehensive, detailed and specific plan for the prompt elimination" of all conditions at MHD which we found in our earlier opinion to deprive the inmates of their constitutional rights and which still exist.

 In view of the seriousness of the order which we are entering, it is appropriate to review in some detail the history of the case since the filing of our opinion six months ago.

 On January 18, 1974, the parties conferred with the court as instructed in the January 7 opinion. At that time, plaintiffs submitted a proposed judgment, noticed for February 5, 1974, intended to implement the decision. Plaintiffs' proposed judgment provided that within thirty days the defendants submit a comprehensive and detailed plan for elimination of the conditions which the court found to be unconstitutional, as well as for immediate entry of final judgment on the questions of correspondence, receipt of publications, disciplinary procedures, visiting schedules and "optional lockout." The latter group of issues, on the whole, required little or no physical rearrangements at MHD or expenditure of funds, while it was understood that the former group, those that are still unperformed, such as the institution of a classification plan to avoid excessive imposition of maximum security conditions, provision for contact visits, and increased exercise and recreation facilities, as well as the remedying of intolerable environmental conditions, would demand planning, time and money.

 In response to a request of the Corporation Counsel, dated February 11, 1974, the court granted the City an extension to February 14th to submit a counter-order. Defendants subsequently submitted a counter-order, which disappointingly, failed to deal with the critical issues which required money and planning.

 On February 22, 1974, the court convened the parties for a further conference and thereafter, on February 25, 1974, directed the City defendants to submit by March 4, 1974:

"comments as to the proposed order earlier submitted by plaintiffs' counsel, including any reasons why the terms of the proposed order do not conform to the court's opinion of January 7, 1974, or why any of the terms of the proposed order are impracticable of accomplishment at this time, together with suggestions for alternatives replacing any terms objected to."

 In response, the City submitted a "Memorandum of Law," which, however, failed to include a comprehensive plan as to the issues which could not be immediately implemented. Instead, the Memorandum remarked that "the thirty day request for a submission of a comprehensive and detailed plan is not feasible" and recommended a further conference "to discuss the setting up of some reasonable and meaningful target date for such a plan."

 Thereafter, on March 11, 1974, plaintiffs submitted a revised proposed judgment which contained modifications of the earlier version, but preserved its substance.

 On March 19, 1974, the court signed the judgment now in effect, entered March 22, 1974. It made specific provisions as to inmate correspondence, receipt of publications and disciplinary provisions; set a date for a further evidentiary hearing as to arrangements for contact visits, and as to other issues ordered the City defendants, within thirty days (that is by April 21, 1974), to submit "a comprehensive and detailed plan for the elimination of all conditions and practices declared to be in violation of the Constitution of the United States by the Court's opinion of January 7, 1974 as to which final judgment has not been entered herein". On April 22nd, over the objection of plaintiffs, the court granted the City defendants a further extension, to April 29, 1974, to file the required plan.

 On April 29, 1974, the City defendants submitted a proposed plan which, however, was deficient with regard to exercise and recreation, contact visits, elimination of noise, provision of adequate ventilation or clear windows, and which, for the first time, advised the court that the defendants were "exploring the possibility of closing the MHD," although no target date was specified. The Corporation Counsel's letter transmitting the plan specified that "in submitting said response the defendant do not acknowledge liability nor adopt the submission as the appropriate solution to the controversy herein."

 On May 14th, the court again convened the parties and at the conference ordered the defendants to submit, within one week, a statement of the City's position as to the closing of MHD and to indicate a deadline by which a final decision would be reached. By letter of May 15th, the City defendants informed the court that a decision would be reached by June 15th.

 In the interim, at a conference on May 29th, the City defendants were ordered to submit specific plans for physical alterations of MHD necessary to carry out the improvements required by both the opinion and the consent decree. They responded June 10th by a letter containing a "shopping list" which had been submitted to the Bureau of the Budget and which indicated that funding had been approved for renovation of the fifth and eighth floors (as required by the consent decree), but not for 1) renovation of visiting facilities for contact visits, 2) covering concrete floors with vinyl asbestos tile, 3) installation of a low level sound system, 4) accoustical treatment of ceilings and walls, 5) upgrading of the heating and ventilation system and 6) renovation of the tenth and basement floors, all of which were required to implement the opinion. The letter also indicated that funding had not yet been approved for 1) installation of a laundry system for inmate use, and 2) development of additional recreation and program space on inmate housing floors required by the consent decree.

 At a conference on June 19th, the attorney for the City defendants stated that the City had reached a final determination to continue to operate MHD, but not to submit the comprehensive plan required by the court's order. By letter of June 20, 1974, the court ordered the City defendants to report in writing by June 24th the status of their compliance with the court's March judgment, including, in particular, the requirement that the defendants submit to the court the comprehensive plan referred to above. A copy of the court's letter is attached to our order filed today as Exhibit B. On June 24th, defendants informed the court by letter, a copy of which is attached to our order filed today as Exhibit C, that, with regard to such key issues as contact visiting, elimination of noise, inadequate ventilation, excessive heat, the defendants "cannot provide a time-table as to when this work will commence." It should be noted in this connection that the physical conditions in question constituted a significant factor leading to the conclusion stated in our opinion of January, 1974, that the inmates were being deprived of their constitutional rights. For example, as we stated in our earlier opinion, 371 F. Supp. at 607:

"Noise levels are intolerable. For example, on the eighth floor (a housing floor) a team of experts from the City's Environmental Protection Agency (EPA) which recently studied the situation with sophisticated noisemeasuring instruments, found the volume of noise to be at least that of the New York City subways system (Transcript 1018). It must be emphasized that such levels are fairly constant during all waking hours."

 Yet the City advises the court not only that it cannot provide a time-table as to when the required work will be completed but even when it will commence.

 Thus we are regrettably at a crossroads. As we have indicated above, we recognized at the conclusion of our January opinion that the changes at MHD necessary to assure constitutional standards would require time, money and planning. We have made every effort to afford the City defendants the time necessary to submit a plan and to find the money; yet six months later neither has been produced. While we sympathize with the problems faced by those who are administering City affairs in an economic climate described only yesterday by the City Comptroller as a "liquidity crisis," the law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty. The City's decision not to expend the necessary funds represents its determination of the priority to be given to the different items in its budget. However, expenditures not required by the Constitution may not be given priority over those needed to remedy a deprivation of constitutional rights. This is why the courts have reiterated that no governmental unit may be excused from according its citizens their constitutional rights because of a lack of funds. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 266, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). Justice, then Judge, Blackmun plainly put it in Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968):

"Humane considerations and constitutional requirements are not, in this day, to be measured by dollar considerations. . . ."

 And one of the earliest cases dealing with the state's obligation to maintain a constitutionally adequate penal system, eloquently and aptly stated:

"Let there be no mistake in the matter; the obligation of the Respondents to eliminate existing unconstitutionalities does not depend upon what the Legislature may do, or upon what the Governor may do, or, indeed, upon what Respondents may actually be able to accomplish. If Arkansas is going to operate a Penitentiary System it is going to have to be a system that is countenanced by the Constitution of the United States." Holt v. Sarver, 309 F. Supp. 362, 385 (E.D.Ark.1970), aff'd, 442 F.2d 304 (8th Cir. 1971).

 In our January opinion, we found that the conditions at MHD "manifestly violate the Constitution and would shock the conscience of any citizen who knew of them." 371 F. Supp. at 636. While some improvements have been made in the conditions which then existed, nevertheless, six months after the filing of our opinion, the bulk of those conditions remain as they were. The City has not challenged the court's authority to require it to submit a plan for the elimination of these ills. Nevertheless, however respectful the tone, its posture throughout, confirmed by its letter report of June 24, 1974, constitutes a clear refusal to submit such a plan. It is for this reason and solely for this reason that we are today entering an order that MHD be closed within thirty days unless such a plan is submitted by then. We emphasize that all the City needs to do to avoid whatever difficulties may be caused by closing MHD is to put before the court a program of adequate funding to carry out within a reasonable time the changes required to make MHD a constitutionally acceptable detention facility. Miraculous overnight transformations are not expected, but we cannot accept the City's blank refusal to comply with major portions of our March order.

 For purposes of reference, we attach to this memorandum a copy of the order we have signed today.


 This action came on to be tried before the Court, Honorable Morris E. Lasker, District Judge, presiding, and the issues having been duly tried, and the Court having made and filed findings of fact and conclusions of law, all dated January 7, 1974; and

 The Court having directed defendants Malcolm, Schaefer (now Rubin) and Beame, by order entered on March 22, 1974 (annexed hereto as Exhibit A), to submit to the Court and counsel for plaintiffs within thirty (30) days a comprehensive and detailed plan for the elimination of all conditions and practices at the Manhattan House of Detention for Men (the "Tombs") declared to be in violation of the Constitution of the United States by the Court's opinion of January 7, 1974 (except on the issues of correspondence and discipline, as to which final judgment was entered on March 22, 1974); and

 The Court having further directed defendants Malcolm, Rubin and Beame, by letter dated June 20, 1974 (annexed hereto as Exhibit B), to specify to the Court in writing, in detail, the status of their compliance with the Court's order of March 22, 1974; and

 Defendants Malcolm, Rubin and Beame having replied to the Court, in a letter by their counsel dated June 24, 1974 (annexed hereto as Exhibit C), that it is not within the present budgetary capability of the City of New York to remedy several of the most serious conditions at the Manhattan House of Detention for Men declared unconstitutional in the Court's opinion, and that no timetable can be provided for the future elimination of these conditions, it is hereby

 Ordered, Adjudged and Decreed that defendants Malcolm, Rubin and Beame be and hereby are enjoined from confining any persons in the Manhattan House of Detention for Men after August 10, 1974; and it is further

 Ordered, Adjudged and Decreed that this order shall be subject to reconsideration by the Court at such time as defendants Malcolm, Rubin and Beame shall submit to the Court a comprehensive, detailed and specific plan for the prompt elimination of all conditions and practices at the Manhattan House of Detention for Men declared unconstitutional by the Court in its opinion of January 7, 1974.




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