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April 11, 1977

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

The opinion of the court was delivered by: LASKER

LASKER, District Judge.

In 1970 pre-trial detainees then held at the Manhattan House of Detention (MHD) *fn1" brought this civil rights class action challenging the constitutionality of conditions at the jail. On August 2, 1973 the court approved a consent decree which disposed of a number of significant issues and left others open for litigation. On January 7, 1974 after trial a decision was filed holding that various conditions and practices at the institution violated the due process and equal protection clauses. Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y.1974). In March 1974, the City defendants were ordered to submit a plan to cure the unconstitutional conditions. *fn2" On July 11, 1974, the City having refused to submit such a plan, the defendants were enjoined from confining any person at MHD after August 10, 1974. 377 F. Supp. 995 (S.D.N.Y.1974). The order was made subject to reconsideration whenever the City submitted the required plan. On the City's appeal of the order of July 11, 1974, the Court of Appeals affirmed as to the finding of unconstitutionality and remanded for reconsideration of equitable relief. Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974).In December 1974, the City discontinued the use of MHD in preference to remedying the unconstitutional conditions noted by this court and the Court of Appeals. No person has been incarcerated at MHD since then.

The City now moves for an order pursuant to Rule 60(b)(5) and (6) Fed.Rules of Civ.Proc., modifying the order of July 11, 1974 to allow use of MHD as a general detention facility after completion of extensive improvements which the City proposes as compliance with the decisions of this court and the Court of Appeals. Because of the public importance of the application evidentiary hearings were held on an expedited basis on November 13, 19, 20, 22, 23 and 24. The witnesses at the hearings were Edwin S. Bishop, Arthur J. Seckler, Jr., Frank J. Esposito, Ellis C. MacDougall, and Roberts J. Wright (testifying by deposition) for the City, and William G. Nagel, Elliot Paul Rothman, Frederic D. Moyer, and Dr. Raymond E. Gerson for the plaintiffs. *fn3" On November 13th, the court, accompanied by counsel for the City and for plaintiffs and by William Nagel, an expert witness testifying in opposition to the City's motion, visited MHD to observe the areas in which the City proposed architectural changes.

 The elaborate and impressive plan submitted by the City and prepared by the architectural firm of Brown, Guenther, Battaglia and Seckler, familiarly known as "C94", is intended to provide for contact visits between inmates and visitors, adequate inmate exercise and recreation, appropriate medical facilities, adequate heating and ventilation of MHD, elimination of excessive noise and window alterations which - in contrast to the opaque glass brick now in use - will "enable inmates to see the world outside" (City Memorandum of Law in Support of Motion at p. 10).

 Judgment as to the adequacy of the City's proposals must start from the principles and findings established by the earlier trial and appellate decisions in this case. Affirming the views expressed by the trial court at 371 F. Supp. at 623, The Court of Appeals held that:

 "... [plaintiffs] are not convicted felons but are pretrial detainees, presumed innocent of the charges against them but imprisoned only for failure to make bail.... 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 detainees under worse conditions than convicted prisoners." Rhem v. Malcolm, supra, 507 F.2d at 336.

 Moreover, since its affirmance of the decision of this court, the Court of Appeals has more recently held that:

 "... any deprivation or restriction of the detainees' rights beyond those which are necessary for confinement alone, must be justified by a compelling necessity." Detainees of Brooklyn House of Detention for Men, et al. v. Malcolm, 520 F.2d 392, 397 (2d Cir. 1975).

 Finally, in a later appeal in the instant case, the Court of Appeals ruled that the constitutional rights of detainees may not be tempered to meet the City's present fiscal crisis:

 "We are not unaware of the financial difficulties presently confronting the city defendants.... an individual's constitutional rights may not be sacrificed on the ground that the city has other and more pressing priorities. See Rhem v. Malcolm, 507 F.2d at 341-42; Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 399 (2d Cir. 1975). To do so would be to discriminate grievously against poor persons who cannot afford bail. Presumed innocent in the eyes of the law, they are incarcerated solely to insure their appearance at subsequent proceedings. This limited deprivation of their liberty cannot be extended to justify the denial of other unrelated rights for budgetary reasons. See Shapiro v. Thompson, 394 U.S. 618, 633, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). Denial of the presumptively innocent detainee's constitutional rights represents an impermissible price to pay for his retention in custody." Rhem v. Malcolm, 527 F.2d 1041, 1043-44 (2d Cir. 1975).

 These appellate observations were premised on the following affirmed findings of fact:

 "1. Detainees at MHD are subject to maximum security conditions at all times.

 2. MHD, like other pre-trial detention facilities, is capable of classifying inmates to determine those requiring maximum security custody.

 3. Most detainees at MHD, as at other detention centers, can be safely held in custody in less than maximum security conditions.

 * * *

 7. The levels of noise at MHD at all times except late night or early morning are unbearably high. Long term exposure to such noise can cause impairment of hearing, and even short exposure may increase tension and adversely affect mental health.

 8. As a result of inadequate ventilation, heat at MHD is a burden in summer and at times even in cold weather. There are occasions in winter when heat is inadequate. These factors have adverse effect on mental and physical health.

 9. Most detainees at MHD are unable to see out of the building. Such lack of contact with sun, sky, street or the outside world can result in psychological disorientation, especially in an institution in which a large number of detainees are held for a long period. Installation of transparent windows at MHD would not significantly increase security risks at MHD.

 10. Physical recreation at MHD is limited to a maximum of 50 minutes per week in a small rooftop area and these limitations generally have an adverse effect on mental and physical health.

 * * *

 16. The totality of circumstances at MHD have produced dismal conditions significantly inferior to those existing at New York State penal institutions and many other municipal or federal houses of detention." 371 F. Supp. at 620-22.

 As indicated above, although the findings after trial in this case were affirmed, the Court of Appeals remanded for the district court to frame an order "to close the prison to detainees or to limit its use for detainees to certain narrow functions by a fixed date, unless specified standards are met.... Once the appropriate standards or permissible limited uses are established, the court can then determine whether there has been compliance by the specified deadline." 507 F.2d at 340. The Court of Appeals specified that in framing its order, this court could invoke any of the following alternatives: 1) require that no pretrial detainee be housed at MHD after a fixed date unless it were upgraded to meet specified standards; 2) limit the use of MHD to particular purposes, such as temporary use for inmates actually on trial, or desiring to see an attorney, and "establish minimal standards as a prerequisite even for limited use," or 3) order that no detainees be housed at MHD if, after a reasonable period, the court determined that the City could not or would not remedy the constitutional violations. 507 F.2d at 341.

 Because the City decided to close MHD, this court has not had occasion before this to define objective standards as the Court of Appeals suggested. As a result, there is now presented the unusual task of measuring a detailed architectural proposal against the necessarily general findings after trial of the original decision, findings which while they determined in what respects conditions at MHD were unconstitutional did not purport to specify whether particular alternative conditions - such as those now proposed - would meet constitutional muster. *fn4" To aid the City in its future decisions concerning MHD, this memorandum reviews the C94 proposal not only to decide whether it remedies the constitutional violations previously found but also, where the plan is deficient, to set forth acceptable alternatives.

 MHD under C94

 The C94 proposal originated in negotiations between the City and the federal Law Enforcement Assistance Administration (LEAA) through which it developed that $2.6-2.9 million dollars might be made available from LEAA for renovation of MHD. While the City has quite properly attempted to take advantage of these funds, it is relevant to note that the architects and planners have been constrained in their assignment by a monetary limit several orders lower than the $12-15 million amount which the City itself had previously estimated it would cost to bring MHD up to acceptable standards. *fn5"

 There is no doubt that if implemented C94 would represent a signal improvement of the conditions found to exist in this facility three years ago. The firm of Brown, Guenther, Battaglia and Seckler as well as its acoustical consultant, Edwin Bishop and its engineering consultant, Frank J. Esposito, deserve high commendation for imaginative work within the confines of the specified budget of $2.6 million. The C94 plan makes significant attempts to provide recreational and exercise space, to eliminate crowding, and in general to meet with the court's earlier rulings. On the other hand, C94 does not purport to go much beyond the minimal necessary to achieve such compliance, though there is of course no legal requirement that it should; the architects even filed a supplement to the C94 Report with recommendations for additional improvements should added funds become available. See Tr. at 2291 (Commissioner MacDougall) and Defendants' Ex. M. at 70 (Deposition of Commissioner Wright).

 We proceed to discuss those parts of C94 which would achieve constitutional compliance.

 Plaintiffs agree that the City's elaborate proposal to renovate the ventilation system of the building will eliminate problems in that area by assuring adequate air circulation to all floors. Plaintiffs also agree as to the sufficiency of the electrical rewiring and new lighting which has already been installed in MHD pursuant to [*] 2(f) of the Consent Decree. (See Tr. at 1557) The plan also includes provisions for laundry facilities for inmates' clotheswashing on each floor, the adequacy of which is not contested, and the affidavit of Benjamin Malcolm, Commissioner of the New York City Department of Corrections in support of the City's motion states that MHD will be freshly painted before occupancy, an improvement which will contribute to overcoming the naturally dreary atmosphere of the building. Moreover, plaintiffs agree that the proposed medical facilities represent an adequate physical plant for the institution in accordance with the Consent Decree. *fn6" Finally, we find that the City's proposed contact visiting facility is adequate to meet minimal constitutional standards, as are the proposals to renovate the remaining booth visiting facilities. The parties agree that issues pertaining to the exact visiting schedule and the lock-out schedule are not to be decided in this proceeding.

 Areas of Dispute

 Several aspects of the C94 proposal are vigorously contested. Objections to the plan fall into three areas: (1) proposals to reduce noise and permit views outside the building; (2) proposals for recreation, program activity and exercise; and (3) absence of proposals for a classification system to eliminate holding all detainees in maximum security conditions.

 I. Physical Environment - Noise and Fenestration

 The earlier finding that the physical environment of MHD was unconstitutional was based on the cumulative effect of the "dangerously high noise levels, excessive heat and inadequate ventilation and absence of transparent windows" which were found to exist. 371 F. Supp. at 607, 627. Although the City's plan provides for an adequate ventilation system, MHD will nonetheless remain quite hot during the summer, as would any steel and concrete building in the middle of Manhattan which is not air-conditioned. (Esposito, Tr. 2231) While this fact is of course not dispositive of the motion (nor do plaintiffs suggest that it is) it is an item to be considered in determining whether the C94 plan will create an acceptable living environment. See Dillard v. Pitchess, 399 F. Supp. 1225, 1229 (C.D.Cal.1975); Johnson v. Lark, 365 F. Supp. 289, 293 (E.D.Mo.1973); Miller v. Carson, 401 F. Supp. 835, 893 (M.D.Fla.1975).

 A. Noise. MHD was found at trial to have noise levels constituting a "threat to hearing and mental health." 371 F. Supp. at 628. Plaintiffs' experts established that noise levels at 80 dba or more pose a real danger of hearing loss for those exposed to it over long periods of time, and that to eliminate risk, average noise levels should remain below 65-70 dba. Id. at 608. *fn7" At MHD, which experts testified was one of the noisiest correctional institutions in their experience, noise levels were found to average 83 dba in some parts of the residential floors. Id. at 608. Noise levels in certain areas were found to approximate those in the New York City subways. Id. at 607.

 Plaintiffs agree that the C94 plan could achieve an 11 dba reduction in average noise levels, through acoustical treatment of ceiling and wall areas and through installation of low volume speakers for the television set. They disagree, however, with defendants' claim that an additional 3 dba reduction will result from reduced population levels, and argue that the City should take additional steps to further reduce noise.

 Plaintiffs' noise expert testified at these hearings that an increase or decrease in 10 dba is perceived as a doubling, or halving, of noise levels. (Gerson, Tr. at 1664) Thus, even if plaintiffs are correct that C94 will only result in an 11 dba reduction, it would be a substantial improvement. The highest average noise level recorded at MHD in pretrial tests was the 83 dba average found in November, 1972 adjacent to the television set on the 8th floor; at the same time, readings for the A and B block on the 10th floor showed average sound levels of 73 dba. (Tr. at 1706) An 11 dba reduction would lower the highest average sound levels to 72 dba and would result in significantly lower noise levels in many parts of the institution.

 Moreover, the conclusion of plaintiffs' noise expert that reduction in population will cause no reduction in noise levels is open to doubt. *fn8" Under the C94 plan, the maximum capacity of floors 4-9 will be reduced from 722 to 530, through removal of cells (which, incidentally, will decrease the number of highly reverberant steel bars per floor). Plaintiffs emphasize the fact that in July, 1974 when the institution's population had been lowered to 430, noise readings were lower than those taken in November, 1972 by a statistically insignificant amount. Plaintiffs' expert concluded that past reductions in population did not result in lower noise levels because the background noise level from other sources such as television was so high that diminution in "people created" noise had no impact. (Gerson, Tr. at 1672-80) Even if this analysis is correct, it does not follow that a reduced floor population would have no effect on noise levels in MHD if the acoustical treatment and low volume speakers proposed by C94 are installed. (Tr. at 1672) At the least, these changes will create a quieter level of background noise above which people would have to raise their voices to be heard. When there are fewer people on the floor, the perceived noisiness of the floor may well be less since there will be fewer people to create noise, whether of conversation, movement, or impact on the hard steel and concrete surfaces of the building.

 For the foregoing reasons, we think it appropriate to credit the C94 plan with some part of the asserted additional 2-3 dba reduction in noise levels flowing from the reduced floor capacity. It follows that even in the noisiest areas of MHD, daytime noises will average no more than about 70 dba. Such a level, though at the high end, is within the range which plaintiffs themselves had earlier established as acceptable. See 371 F. Supp. at 608.

 There is further reason why, even if no "credit" is granted for reduced population, the C94 plan goes far towards remedying the noise problem at MHD. Testimony at the original trial established that:

 "The structure, so largely built of steel and concrete, is a natural for noise, a perfect soundbox in itself... 'it is the kind of building that you could drop a penny in and be the only person in the place and it would make a racket.' [Test. of Dr. Kinzel]" 371 F. Supp. at 607-08.

 Defendants' noise expert and acoustical engineer testified that treatment of the walls and ceilings will not only reduce noise levels but will diminish reverberations thereby reducing the "confusing element of the noise, which is the most annoying part of it." (Bishop, Tr. at 2074).

 We find that if C94 were implemented, there is a high degree of probability that inmates would no longer be living amid noise levels dangerous to health and hearing. Plaintiffs argue nonetheless that since pretrial detainees are entitled to be held under conditions amounting to the "least restrictive means" of securing their appearance for trial, if noise levels can be reduced even further by means consistent with the security interests of the institution, such reductions are required. Specifically, they argue that the C94 plan for noise reduction must be rejected because it does not provide for individual earphones or for plastic dishware at mealtimes.

 Plaintiffs' Exhibit 9, a tape of mealtime noises recorded while MHD was in use and played for the court at decibel levels likely to result if C94 were implemented, makes it apparent that mealtime noises may still be obtrusive, unpleasant and jangling to the nerves. Although some of the unpleasantness may be mitigated by acoustical treatment which reduces reverberations and by keeping the serving carts at a distance from the dining tables, plaintiffs suggest that the din could be substantially alleviated by using vinyl-coated or plastic cutlery, trays and serving implements instead of metal ones. Defendants' noise expert agreed that this would reduce mealtime noise.

 It is difficult to understand why the defendants oppose use of nonmetallic utensils at mealtimes. Use of such material would not only reduce noise levels, but security interests seem to militate in favor of using plastic, rather than metal, utensils. In at least one jail whose conditions were recently found to be unconstitutional, inmates complained of being terrorized by other inmates wielding weapons fashioned from metal cutlery. Martinez Rodriguez v. Jimenez, 409 F. Supp. 582, 590 (D.P.R.1976). Yet it is not a court's function to require particular details of a scheme if the proposal as a whole will reduce noise to constitutionally acceptable levels. We have found that it will do so.

 Plaintiffs argue further that the dictates of equal protection, as well as the "least restrictive means" test, require the City to provide individual earphones to inmates at MHD, to hear radio and television programs, because earphones are provided to convicted New York state prisoners. The City's answer is that it would not be feasible to meet hygienic requirements for use of earphones in a facility with the rapid turnover rate of a New York City jail and that the low volume communal speakers proposed in C94 will adequately control noise.

 In the March, 1974 "Shopping List" submitted by the City Department of Corrections to the Bureau of the Budget for items deemed necessary to "make the MHD a satisfactory institution with respect to all concerned," funds were requested to provide a speaker with individual control for each cell. (Ex. B to Berger Affidavit) This plan would avoid the hygienic problems of use of earphones by different inmates and simultaneously assure the removal of noise from residential quarters to a greater extent than does C94. Nevertheless, the issue is not what course is wisest but whether the C94 plan meets constitutional standards.

 The Equal Protection Clause mandates that pre-trial detainees may not be treated less favorably than convicted persons, except where a difference in treatment is related to a legitimate governmental interest. See Brenneman v. Madigan, 343 F. Supp. 128 (N.D.Cal.1972); Inmates of Suffolk Co. Jail v. Eisenstadt, 360 F. Supp. 676 (D.Mass.1973). The need to maintain proper standards of hygiene is such a legitimate interest, justifying a difference in treatment. Although it is possible that the hygienic problems could be met by increased staff and expenditures, it is unnecessary to explore these questions in a detailed evidentiary hearing, because the equal protection standard, like the "least restrictive means" test, looks to the cumulative effect of conditions of confinement, and does not require exact equivalences in every detail of institutional life. Where overall conditions meet constitutional standards, and the particular condition or practice complained of is not health-threatening nor a direct restraint on liberty, a rational justification is all that is ...

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