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April 23, 1975

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.

Plaintiffs and the City defendants move under Rule 59(e) of the Federal Rules of Civil Procedure to alter our judgment of February 20, 1975. *fn1"

 I. Plaintiff's requests for relief.

 A. Number of Visitors.

 Plaintiffs propose that the judgment be amended by providing that members of the plaintiff class be permitted to receive at least three visitors per visit. In support of their proposal they refer us to our opinion after trial, 371 F. Supp. 594, 606, in which we found that members of the plaintiff class, then housed at the Tombs, had at one time been allowed three visitors, that New York State prisoners were accorded three visitors at a time and occasionally four, and that the "one visitor" rule then in effect at the Tombs was "unnecessarily restrictive." It is argued that our opinion at 371 F. Supp. at 607, "called for 'more acceptable standards of . . . number of visitors.'" The argument is not sound for several reasons. While we did find after trial that there had been a period before trial when members of the plaintiff class housed at the Tombs had been allowed three visitors at a time, and that State prisoners were then permitted three or four visitors, our ruling that detainees at the Tombs ought then to be allowed more than one visitor at a time was based primarily on our finding that conditions as they stood at the Tombs were "unnecessarily restrictive". The use of the word "unnecessarily" was deliberate. It represented a determination that the visiting facilities at the Tombs were sufficiently spacious to permit more than one visitor at a time to meet with an inmate. This being so, to deny such a privilege would have breached the rule that a pretrial detainee is entitled to the rights of other citizens except to the extent necessary to assure his appearance at trial and the security of the institution. However, while the trial record established that more than one visitor at a time could be accommodated at the Tombs, there is no evidence of record as to the capacity of visiting facilities at Rikers Island.

 Nor does the record contain any evidence upon which we would be justified in making a finding that, without reference to the physical conditions at a particular institution, a detainee has a constitutional right to receive a minimum number of visitors at a time.

 It should be added that the statement in plaintiffs' brief that our opinion at 371 F. Supp. at 607 "called for 'more acceptable standards'" etc., is misleading. The precise quotation is " we are presuaded that given adequate manpower, the Department could and willingly would meet more acceptable standards of visiting hours and days and number of visitors." This passage must be read in light of our holding not that plaintiffs had established a constitutional right to receive a minimum number of visitors, but a constitutional right to enjoy full reasonable use of the detention facilities.

 B. Visiting Schedules

 Plaintiffs propose that we amend our judgment by specifying a) that visiting facilities be open from 9:00 A.M. to 9:00 P.M. seven days a week; b) that every visit last a minimum of two hours and c) that detainees be permitted to receive visits daily. Our memorandum of February 20, 1975, accompanying the judgment of that date, stated (at page 14) that the constitutional norm as to the visiting rights of a detainee "ought to be a reasonable number of opportunities for visits of reasonable duration" and we pointed out that "it must be remembered that we are here dealing with constitutional rights which set minimal, not maximum or 'desirable' standards." Applying these criteria, we find nothing in the material submitted by plaintiffs on this motion which would justify amendment of the schedule in the judgment of February 20th. We fully recognize the desirability of an expanded visiting schedule, longer visiting periods per inmate and a greater number of visits and visitors per inmate, but there is no evidence of record before us to establish a constitutional right to minimums at the levels proposed by plaintiffs' memorandum. We are conscious of the phrases used in such trail blazing cases as Brenneman v. Madigan, D.C., 343 F. Supp. 128, 141 (N.D.Cal.1972) and Jones v. Wittenberg, D.C., 330 F. Supp. 707, 717, aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), but neither of these significant decisions grappled with the question of the precise number and length of visits or numbers of visitors to which a detainee is constitutionally entitled, and none of them sets a specific precedent for the schedule proposed by the plaintiffs.

 C. Recreation

 1. Number of recreational periods. The February 20th judgment ordered the City to "take all steps necessary to employ such additional correctional personnel as was necessary to afford every detainee a period of one hour outdoor exercise Mondays through Fridays inclusive, except in inclement weather." Plaintiffs ask that the City be required to provide exercise periods seven days a week. Two arguments are made in support of this request. They first point to the standards of such important agencies as the United Nations and the American Correctional Association as well as the testimony of Dr. Karl Menninger at trial which all specify a requirement that prisoners enjoy daily exercise. While we respect these standards and views highly, as our favorable references to them at 371 F. Supp. at 611 and 626-7 attest, nevertheless they do not automatically establish constitutional norms, nor have we held that they do.

 Second, plaintiffs express concern that our memorandum of February 20th "denied weekend recreation periods by balancing defendants' financial resources against plaintiffs' need for said exercise." This is a misconstruction of our memorandum of February 20th. In ordering an increase in recreational opportunities from one 50 minute period per week to five 50 minute periods per week, we explicitly recognized the additional financial expenditure imposed on the City but cited Justice (then Judge) Blackmun in Jackson v. Bishop, 404 F.2d 571, 580 (8th Cir. 1968) to the effect that "constitutional requirements are not, . . . to be measured or limited by dollar considerations . . ." We went on to state that the expansion to five periods per week will "bring [the recreational program] within the ambit of constitutional standards." Our reference to the balancing of benefits to the plaintiffs against even greater financial burdens to the City related only to the consideration of expanding the recreational period beyond the constitutional standard which we had already found was met by a five period per week program. We did not and we do not believe it sound doctrine that constitutional rights can be limited by money considerations.

 2. Implementation Deadline. Plaintiffs request that we set a deadline for the implementation of the expansion of recreational facilities. The question may now be moot in view of the fact that even by past practice the outdoor recreational facilities have been put into use in late May, and that, in any event, our judgment of February 20th ordered the defendants to take the necessary action to provide additional recreation "forthwith." However, in light of the history of the case, which has involved endless delay of implementation by the City, an amended judgment will provide that such action is to be completed no later than June 1, 1975.

 II. Defendants' Requests for Relief.

 A. Right to Leave Cells.

 The February 20th judgment provided that within 60 days defendants should permit plaintiffs to leave their cells at all times except for such reasonable periods as may be necessary for defendants to count the population and to clean the institution.

 Defendants request clarification from the court as to whether this provision of the judgment was intended to prevent lock-in for three other purposes:

 1. Post-breakfast lock-in to provide services for inmates scheduled to appear in court;

 2. Lock-in of one side of the cell block while the other side of the cell block is eating; and

 3. Night time lock-in.

 It was not our intention that the judgment of February 20th should prevent these periods of lock-in. The theory upon which all the holdings in this case, both by the District Court and the Court of Appeals, are based, is that a detainee has the right to be held in custody by the least restrictive method necessary for security or administration of the institution. The three periods in question meet that test. It is clearly necessary to make arrangements for inmates scheduled to appear in court. Secondly, given the particular structure of the cell blocks at HDM, it is justifiable that inmates on one side be locked in while their fellow inmates on the other side are eating. This is so because each cell block contains only one eating facility (located on Side B). Permitting inmates housed on both sides to move at large on the B side during the feeding period would lead to unmanageable crowding of the mess hall or unauthorized attempts by inmates to secure a second ration. Thirdly, the justifiability of lock-in during night time is to be measured by the reasonableness of the period involved and the reasonableness of the time at which it occurs. We cannot say that an eight hour sleeping or quiet period commencing at 9:30 in the evening is unreasonable in either respect.

 While the judgment will therefore be amended to clarify these points, we reiterate the observation made at page 8 of the February 20th memorandum that inmates may not be ". . . locked in their cells for periods longer than actually required or as ...

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