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November 24, 1975

Frank GIAMPETRUZZI et al., Plaintiffs,
Benjamin MALCOLM, Commissioner, Department of Correction of the City of New York, et al., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


LASKER, District Judge.

 This civil rights action is brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2201 by unconvicted detainees currently or formerly housed in tier 1B at the New York City House of Detention for Men (HDM), an area established by the New York City Department of Corrections (Department) as an administrative segregation unit for persons who pose security risks to the Department's institutions.

 Plaintiffs assert first that the defendants' failure to afford them the rights and privileges enjoyed by the general inmate population at HDM violates their constitutional rights in several respects, and second, that the procedure by which it is determined whether they are to be placed in 1B deprives them of due process. In particular, they seek declaratory relief and an injunction (1) requiring the defendants to provide them with all rights and privileges given persons in the general inmate population; (2) prohibiting their continued confinement in segregation without a procedurally adequate determination of their status; and (3) requiring the defendants to expunge all references in HDM'S records to their classification as security risks and their placement in 1B. They also seek monetary damages and an injunction prohibiting the defendants from denying visitation rights to all inmates placed in punitive segregation.

 A hearing was held on the plaintiffs' motion for a preliminary injunction which was consolidated with the trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. The Court also heard in camera testimony by the defendants concerning the Department's justification for segregating certain of the plaintiffs, and, on two occasions both before and after the hearing, conducted a personal inspection of HDM generally and of 1B in particular.

 For the reasons set forth below, we conclude that the conditions under which 1B inmates are detained in administrative segregation are substantially inferior in a significant number of ways to those enjoyed by the general population inmates and that, as a result, inmates may be housed in 1B only after they have been afforded an opportunity to contest their placement consistent with the requirements of due process. Defendants must expunge all references in its records to an inmate's placement in 1B unless his placement is determined, according to the hearing procedures set forth below, to be justified. Defendants must also extend visitation rights to detainees in punitive segregation. The claim for monetary damages is denied.

 I. Conditions of Confinement

 Administrative segregation units exist in several of the Department's detention facilities. General Order 33, which was promulgated by the Department on December 14, 1972, is the order governing such units and provides:

"Section 4.84A Administrative segregation is a classification within a facility of the Department, the purpose of which is to keep an individual segregated from and under closer observation than individuals in the general inmate population at large."

 Tier 1B is such a unit and was established in October, 1973 to provide flexibility in selecting housing for security risks. Its location was chosen in part because of its physical characteristics, some of which are subject to challenge here.

 Turning first to the allegation that conditions of confinement for plaintiffs are more onerous than for other inmates at HDM, General Order 33 itself sets the standard by which the validity of the limitations are to be judged. Section 4.48C states:

"An individual in an Administrative Segregation status shall not be deprived of any right guaranteed by law, nor shall he be deprived of any privilege enjoyed by the general inmate population at large, except that the head of the institution may, in his discretion, permit these privileges at a different time and at a different place than is permitted to the general inmate population."

 The alleged discrepancies between defendants' treatment of plaintiffs on the one hand and the general inmate population on the other are therefore measured in the first instance by whether they deprive plaintiffs of the privileges accorded to the general population. Failure by defendants to follow their own rules would, in itself, violate due process of law. Paul v. United States, 371 U.S. 245, 255, 83 S. Ct. 426, 9 L. Ed. 2d 292 (1963); Vitarelli v. Seaton, 359 U.S. 535, 539-540, 79 S. Ct. 968, 3 L. Ed. 2d 1012 (1959); United States ex rel. Checkman v. Laird, 469 F.2d 773, 780 (2d Cir. 1972); King v. Higgins, 370 F. Supp. 1023, 1028 (D.Mass.1974).

 The treatment of plaintiffs must, of course, also meet the requirements of the First, Fourth, Sixth and Eighth Amendments and the Equal Protection Clause. In considering the constitutionality of specific conditions of confinement, however, defendants' legitimate concern for the security of HDM must be given due weight.

 A. Physical Setting, Isolation and Lockout

 1. Physical Setting

 There are stark physical differences between tier 1B and the general population cell blocks. The general population cell blocks are several stories high with windows providing ample natural light. On the other hand, 1B is an area of HDM only one story high with screens and small windows which are so small or so dirty that it is difficult to see through them. As a result, there is a pronounced difference in the light in one area as compared with the other.

 2. Lockout

 Noticeable differences also exist in the type of facilities available to 1B inmates during lockout hours as distinct from those provided to the general population. Inmates in general population have access during lockout to two day rooms on each cell block, which each measure 57 by 38 feet. (Tr. p. 38) They may also use an area on the first floor of each cell block (the "flats") 318 feet long by 11 1/2 feet wide, equipped with tables and chairs. (Tr. p. 396) In contrast, the area available for men in 1B when they are allowed to leave their cells is restricted to an unfurnished, narrow corridor 5 feet by 6 feet. (Tr. p. 226) Although there is a day room physically located adjacent to one end of 1B, the plaintiffs are not allowed to use it because the possibility that correctional officers might have to intermingle with the inmates in order to guard them would create a security risk. (Tr. p. 287)

 3. Isolation

 Plaintiffs claim that they are held in such isolation during lockout and other hours as to deprive them of the privilege, enjoyed by general population, of associating with the company of a significant number of other inmates. The evidence establishes that an inmate in the general population is able to mingle with the population of one half of a cell block at a time, or approximately 150 inmates. (Tr. p. 292) On the other hand, 1B inmates are permitted to mingle only with the inmates of 1B, or an average of about fourteen. (Tr. p. 282) Because the inmates can share the company of other inmates on their side of the tier only, this generally limits their association to approximately seven people. (Tr. pp. 412-413) Moreover, the general population eats its meals in the day rooms adjacent to its cell blocks while the plaintiffs eat their meals in their own cells.

 The evidence compels the finding that inmates of 1B are clearly more isolated and enjoy substantially less freedom of movement than inmates in the general population, and that lockout facilities available to them are substantially inferior to those of the general population.

 The defendants argue that the differences in conditions are justified on the basis of the security requirements of General Order 33 which specifies that the purpose of administrative segregation is "to keep individuals segregated from individuals in the general inmate population at large." Legitimate though that goal may be, it cannot justify the restrictions of movement and limitations placed on the plaintiffs during lockout. The failure to house plaintiffs under the least restrictive means necessary to accomplishing the purpose of administrative segregation violates the rights guaranteed 1B inmates under the due process clause and, indeed, ignores the very standard of equality set by defendants' own General Order 33.

 We conclude that, like other inmates, the plaintiffs are entitled to the use of a day room (presumably the day room adjacent to the 1B area) for reasonable use during the period in which they are entitled to be outside of their cells. Use of the day room is feasible from a security standpoint. Warden Thomas himself testified that if a guard walk were built around the perimeter of the room, it would be possible to use the room on a secure basis. (Tr. p. 287) If the day room cannot presently be used under secure arrangements, the defendants are obligated to find a method by which it or some other space can be made secure. Such a room must also be equipped with reasonable furnishings. A witness for the defendants admitted that the presence of table and chairs would not necessarily create a security risk. (Tr. p. 379) We assume that chairs and tables can be secured to the floor or that some other arrangements can be made to eliminate the possibility of their use as weapons. Under such circumstances, we also believe that the plaintiffs are entitled to eat their meals at tables in the day room during meal time, although the defendants may of course impose a reasonable limitation on the number of people who may use the room at one time.

 B. Recreation and Programmatic Activities

 1. Availability of Recreational Equipment

 The general population is furnished quiet game material such as chess and checkers during lockout. The plaintiffs claim that they are not. Deputy Warden Caldwood testified that he authorized sending such games and equipment to 1B (Tr. p. 190) but there was no proof that this instruction had been executed.

 We find that the plaintiffs are entitled to the use of such equipment as long as it is made available to other inmates. The defendants are directed to determine whether the equipment is available in 1B and, if it is not, to make it available.

 2. Movies and Special Shows

 Movies are shown as often to inmates in 1B as to those in the general population. The privilege differs only in that detainees in 1B view the movies on a small screen in the narrow corridor outside their cells rather than on a large screen in the company of the general population. This difference is hardly of constitutional magnitude. Nevertheless, once a day room is made available to the inmates and unless there are security considerations demonstrated hereafter, the plaintiffs should be entitled to view the movies in that day room.

 Turning to the issue of special shows, the general rule is that 1B inmates may attend these shows but the authorities at HDM determine whether 1B may attend any particular show on the basis of their estimate of the degree of tension at HDM at the time. (Tr. p. 622) This is a justifiable security precaution, and the Court should not second guess the assessment of the state of ...

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