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June 4, 1976

Guy Zepth AMBROSE et al., Plaintiffs,
Benjamin J. MALCOLM, Commissioner 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.

New York City presently operates four detention facilities for men: The House of Detention for Men at Riker's Island (HDM), the Queens House of Detention (QHD), the Brooklyn House of Detention (BHD) and the Bronx House of Detention (BXHD). A fifth, the Manhattan House of Detention (MHD), commonly known as the Tombs, was closed in December, 1974, but an application to reopen it is pending in this court (Rhem v. Malcolm, 70 Civ. 3962). In recent years a spate of litigation has challenged the constitutionality of the conditions under which pre-trial detainees have been held at these institutions. This suit, the latest in the array, is brought by detainees at BXHD -- the only jail as to which such a test had not been made. As in the earlier suits, the plaintiffs here are inmates of the institution in question, and the defendants include the Commissioner of Correction, Warden of the jail and Mayor of the City of New York.

 On January 14, 1976, the plaintiffs moved for a preliminary injunction prohibiting defendants from housing more than one inmate in a cell at BXHD and more than 24 inmates in a dormitory. *fn1" Plaintiffs contended that the ruling of the Court of Appeals for this Circuit in Valvano v. Malcolm, 520 F.2d 392 (2d Cir. 1975) compelled granting of the requested relief as to both celled and dormitory inmates. The defendants agreed that Valvano was conclusive as to celled detainees, and accordingly committed themselves not to house more than one man to a cell at BXHD. However, they contested the applicability of Valvano -- which dealt only with celled inmates -- to BXHD's dormitories. Since analysis of Valvano supported defendants' position -- at least to the extent that its holding did not automatically prescribe the standards for determining when overcrowding in a jail dormitory became constitutionally impermissible -- and since questions of fact significantly affected a decision of that issue, an evidentiary hearing was held and the court visited the BXHD dormitories in the presence of counsel and the Warden of the jail.

 Plaintiffs' witnesses included two plaintiff detainees, Michael Benetti and Faruk Abdul Ghani; Dr. Donald Goff, Director of the Prisoners' Rights Project of the United States Commission, and Susan Saegert, Assistant Professor of Environmental Psychology at the Graduate Center of the City University of New York. Defense witnesses included John Buchholz, Director of Engineering of the Department of Corrections; Paul Silver, Adjunct Professor of Architecture at CUNY and a partner in the architectural firm of Gruzen & Partners; Gerald Mitchell, a dormitory Correction Officer at BXHD; Patrick Perry, Assistant Deputy Warden at BXHD and Jonathan Friedman, Professor of Psychology at Columbia University.

 The Issues

 Overcrowding of inmates in a penal institution is an unconstitutional deprivation of due process. This proposition, discussed at length below, has been definitively determined, particularly as to pre-trial detainees, in this Circuit in Valvano, supra, and in such cases, cited with approval in Valvano, as Taylor v. Sterrett, 344 F. Supp. 411 (N.D.Tex.1972) aff'd in part, rev'd in part, 499 F.2d 367 (5th Cir. 1974); Hamilton v. Love, 328 F. Supp. 1182 (E.D.Ark.1971); Jones v. Wittenberg, 323 F. Supp. 93 and 330 F. Supp. 707 (N.D.Ohio 1971) aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972) and Hamilton v. Schiro, 338 F. Supp. 1016 (E.D.La.1970). See also James v. Wallace, 406 F. Supp. 318 (M.D.Ala.1976); McCray v. Sullivan, 399 F. Supp. 271 (S.D.Ala.1976) and Miller v. Carson, 401 F. Supp. 835 (N.D.Fla.1975).

 There is, however, substantial disagreement between the parties as to the standard by which to determine whether inmate housing has become impermissibly overcrowded. Plaintiffs contend that the decision turns on the "rated capacity" of the institution; that is, that except in emergencies it is unconstitutional to house inmates in greater number than its rated capacity. Accordingly, they seek to limit detainee population to that level. The City argues that the matter is to be judged by whether the number of inmates housed in a dormitory is such as to cause tension or aggressiveness among them.

 The Facts

 Each single dormitory at BXHD has a rated capacity of 24 men and consists of a sleeping area of 1,650 square feet and a day room (for recreation and eating of meals) of 480 square feet. (Court Ex. 1) Although the defendants have stated that even if they prevail in this litigation, they will not house more than 60 inmates to any single dormitory, they have held population to a maximum of 40 since the hearing.

 A. Fact Witnesses

 Michael Benetti and Faruk Abdul Ghani are both dormitory inmates at BXHD. On the day of the hearing there were 41 men in Benetti's and 35 men in Ghani's dormitory. *fn2" Their testimony canvassed the problems which housing in excess of rated capacity has caused. The approved plans for the BXHD dormitories provide for single beds for each inmate (Court Ex. 1). Because the total now housed exceeds rated capacity, a significant number sleep in double bunk beds. *fn3" Double bunking provokes expectable difficulties -- stepping by the upper bunker onto the lower in coming or going; inability to read in the lower for lack of light. More significant are limits of space between bunk rows which might be adequate for a population of 24 but prove narrow for the traffic of a 40 man group. Locker space is inadequate for present population, resulting in increased property thefts which aggravate tensions among inmates. Day rooms are crowded when 40 men in a dormitory eat meals at the same time, so that many inmates eat standing, sitting on the floor, or with trays in laps. Noise naturally increases as population increases, and late night conversations of inmates prevent others from sleeping. While many of these inconveniences are the natural concomitant of dormitory life they are seriously heightened when population is, as it presently is, 66 2/3% above the rated capacity. Bizarre results ensue. For example, some men, including Benetti and Abdul Ghani, forego the single weekly gymnasium period allowed (although they desire the physical training it offers) so that they may enjoy the quiet of an emptied dormitory and write letters.

 Benetti and Abdul Ghani also testified that because of excess population visiting procedures are slowed, and actual visiting time lessened.

 Gerald Mitchell and Patrick Perry testified for the defendants. Both serve on the BXHD staff; Mitchell as a dormitory Correction Officer, Perry as second in command to the Warden.

 Mitchell has worked the dormitories for a number of years. His testimony focused on the period 1972-73 when population averaged 45-60 men per dormitory. According to Mitchell even that level of population caused no significant problems as to such matters as shower or toilet use, air quality -- which he said was no different whether there were 30 or 60 men in a dormitory -- eating space in the day room, etc. As to the last item, on visual inspection of the day rooms by the court there were not nearly enough chairs to allow seated eating; nor did it appear that the room could actually accommodate chairs for 40 men. It is therefore difficult to understand how the room could have afforded "ample" space (see Defendants' Post-Hearing Memorandum, p. 6) for "well in excess of 40 inmates per dormitory." Mitchell admitted that during earlier years of large population, the noise level had been high, but observed that it subsided "around 1:00 A.M."

 Contradicting Abdul Ghani, Mitchell testified that he had observed inmates reading in lower bunks, although he did not specify how often this had occurred.

 The impression left by Mitchell's testimony was of a sincere, well adjusted and loyal workman whose personal nervous system was not adversely affected by variations in the number of men in his charge; but doubts remained whether his own reactions were probative of the feelings of detainees who lived in a 24 man dormitory at a population level of up to 60 at a time. These doubts were heightened by Mitchell's admission on cross-examination that he spends 4 hours a day on the so-called "Bridge" area from which he cannot always see into corners of the sleeping area of the dormitory, and that few inmates make complaints or put questions to him. In fact, Mitchell and all correctional officers assigned to dormitories are forbidden by the institution's rules from entering the sleeping area of the dormitory without a "backup" officer present except in special circumstances. More objective and to the point was the testimony of Patrick Perry. Perry presented a statistical study of all dormitory inmate infractions at BXHD in the years 1972 through 1975. According to Perry the study indicates that during the years in question, there was no demonstrable relation between dormitory population levels and the number of infractions. The figures presented were: Average Dorm Population Number of Year (both sides of a floor) Infractions 1972 83 106 1973 67 163 1974 45 77 1975 68 74

 Although there is no reason to doubt the authenticity of these figures it is quite uncertain what they establish. Even if it be assumed that the definition of behavior constituting an infraction remained constant throughout this period, it is by no means clear that the figures demonstrate a lack of relationship between population and infraction (or tension or aggression) or that the sample of only four years is representative.

 In any event, whatever conclusion may properly be drawn from the study its lesson is beside the point since, as discussed below, we conclude that the correct standard for determining constitutionally acceptable levels of prison population is the rated capacity of the institution, and not the number of infractions per man at varying population levels.

 B. Expert Witnesses

 Donald Goff is presently Director of the Prisoners' Rights Project of the United States Commission on Civil Rights. His entire professional career has been spent in the field of Corrections, and he has served as Chief of the Bureau of Corrections of the State of New Jersey with responsibilities for the administration of the correctional institutions of the State, as well as jail lockup inspection for the State. Goff, a witness for the plaintiffs, supported inmate testimony that the use of double bunk beds caused inmate friction. In his view dormitory crowding at BXHD was aggravated because detainees are confined to the dormitories 24 hours a day except for rare recreation periods. BXHD does contain a gymnasium which would be quite adequate for limited numbers, but Goff noted that it is too small for its use by an entire dormitory floor at one time as is presently the case. Only one correction officer is assigned to each dormitory. Goff found his ability to keep the peace significantly limited when the dormitory was overcrowded, particularly if excess population did cause increased inmate tension.

 Goff is well acquainted with professionally recognized standards of minimal "living space" per inmate -- that is space for sleeping and other private purposes -- supplemented by day room or recreation space. In Goff's view a reasonable minimum was 75 square feet total per man: the standard prescribed by the American Correctional Association. *fn4" Measured by the ACA standard, the BXHD's 2,130 square feet dormitories would accommodate a maximum of 28.4 inmates.

 Goff is no stranger to BXHD. He has been acquainted with the institution at least since a time in the 1960's when he and others were consulted by the office of the Mayor to advise on a proposal to increase the rated capacity of City prisons. The proposal was rejected and the City still rates the capacity of the dormitories at 24, *fn5" as has been the case since they were built.

 Goff testified that establishment of a rated capacity for a correctional institution was, as might be expected, an act of serious deliberation since it involved not merely a determination of space per man but a decision that feeding, recreation, visiting, sanitary and ventilation facilities could support the rated population.

 Paul Silver, an architect, has participated in the design of many correctional institutions including the newly completed Federal Metropolitan Correctional Center (MCC) in New York City. He testified for the defendants. In his opinion the actual arrangement of inmate living areas was of greater importance than the amount of space per man. He ...

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