The opinion of the court was delivered by: BRAMWELL
BRAMWELL, District Judge.
In this civil rights class action, plaintiffs move for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure on one of the issues which remains before the Court. The action in its entirety concerns the conditions of incarceration for pretrial detainees at the Brooklyn House of Detention (BHD).
Plaintiffs seek injunctive relief, enjoining defendants from depriving BHD pretrial detainees their claimed constitutional right to contact visits. A contact visit is one where physical contact is permitted between detainee and visitor. The frequency or duration of visitation schedules is not at issue. There being no material factual issues genuinely in dispute, this Court holds that as a matter of law the denial of contact visitation at BHD is unconstitutional and must be promptly rectified.
This action is concerned solely with BHD, a pretrial detention facility under the supervision of the New York City Department of Correction. An inmate at BHD may receive visitors twice a week during daytime or evening visiting hours.
During an average day, approximately 190 persons visit about one quarter of the detainee population. (Affidavit of Benjamin Malcolm, Commissioner of Corrections) A visitor enters the visitation area immediately adjacent to a street entrance, is identified, and proceeds to a waiting room on the visitors' side of the booths. A detainee is brought from his cellblock area to the visitation area but he remains separated from his visitor by a glass partition. No physical contact is permitted. Conversation is limited to speaking and listening on a private telephone in one of 54 booths. The telephones are maintained in good working order. (Affidavit of Benjamin Malcolm, Commissioner of Corrections)
According to the affidavit of the Director of Planning For the New York City Department of Correction, based upon the experience of Brooklyn detainees discharged between January 1, 1975 and March 31, 1975, the incarceration period is generally of short duration.
In prior litigation involving contact visitation, the legitimate security concerns of the city corrections officials have been at issue. Here, we have a facility located in an urban area. Of the 648 detainees housed in BHD early this year, 573 were Brooklyn residents at the time of arrest. (Affidavit of Benjamin Malcolm) The accessibility of the facility to family and friends accounts for the high daily visiting rate which is in sharp divergence from the low visiting rate at various upstate institutions housing sentenced prisoners. Further, statistics compiled by the office of the Commissioner of Corrections indicate that there has been an increase in the escape rate of detainees in New York City since 1973.
Contact visits are currently provided for pre-trial detainees in Suffolk County, see Mancicone v. Cleary, 74 C 575 (E.D.N.Y., June 30, 1975); in Nassau County, see Palma v. Treuchlinger, 72 C 1653 (E.D.N.Y., July 11, 1975, February 13, 1976); and at the House of Detention For Men on Rikers Island, see Rhem v. Malcolm, 527 F.2d 1041 (2d Cir. 1975); Such visits are scheduled to begin October 5, 1976 at the Bronx House of Detention, see Ambrose v. Malcolm, 76 C 190 (S.D.N.Y., May, 6, 1976) In addition, such visits are the practice at the Federal House of Detention in New York City as well as in upstate adult facilities for convicted and sentenced prisoners.
Nonetheless, defendants refer to the testimony of William Nagle, author of "The New Red Barn", before Judge Dooling in December 1975 in the case of the Detainees of the Queens House of Detention v. Malcolm, 73 C 1364, stating that only three of the twenty-six detention centers he had visited throughout the United States used contact visits as their principal method.
Each housing tier at BHD has four telephones available throughout the day, free of charge, for the use of the approximately 120 inmates housed on the tier. Inmates also have contact with outside personnel during recreation, counseling and various cultural programs.
Plaintiffs assert that no genuine issue of material fact exists with respect to the current method of visitation and absence of physical contact and thus no trial on these issues is necessary. However, defendants contend that the number of visitors, the location of the waiting room area, the escape rate for mainland pre-trial detainees, the short duration of incarceration, the lack of time for classification procedures, the opportunity for telephone contact and the lack of nationwide practice of non-contact visits are material facts raising genuine issues which should be tried. Plaintiffs reply that none of these facts distinguishes BHD from the Tombs, or Rikers Island, or the Bronx House of Detention and therefore are not material. They assert that contact visitation is required as a matter of law and is a proper subject for summary judgment.
A federal court should grant summary judgment when there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. 1972). Affirming a summary judgment for the plaintiff in a prisoners' rights case, the Second Circuit Court of Appeals has stated that "summary judgment as a useful procedural tool is not to be discarded on the flimsiest of excuses; the issues of fact must be genuine, not sham." United States ex rel. Larkins v. Oswald, 510 F.2d 583, 584-5 (2d Cir. 1975). Those issues, contended to be ones of material fact by defendants, are not issues which diminish the appropriateness of the remedy of summary judgment. Rather, these facts play a role in determining the "scope and implementation" of contact visitation procedures after judgment has been entered. Ambrose v. Malcolm, 76 C 190 (S.D.N.Y., May 6, 1976) at 4.
It is settled law in this Circuit that:
[The] demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; and the same constitutional provisions prevent unjustifiable confinement of ...