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July 21, 1981

Charles MERRIWEATHER, et al., Plaintiffs and Plaintiff-Intervenors,
Wilbur K. SHERWOOD, et al., Defendants

The opinion of the court was delivered by: WEINFELD

This class action centered about conditions of confinement at the Orange County Jail ("OCJ") in Goshen, New York. The complaint sought to secure better medical and mental health care at the facility, as well as improved living conditions in the form of recreational, educational and other out-of-cell and out-of-tier activities. After lengthy negotiations, during which the attorneys for both parties displayed a highly commendable flexibility and spirit of cooperation, a compromise was reached. A consent judgment was entered on October 27, 1978. A plan for implementing the consent judgment, which had been required by the judgment, was completed and agreed to by the parties on November 30, 1978. Defendants now move pursuant to Rule 60(b)(5) and (6) of the Federal Rules of Civil Procedure to relieve themselves of the requirements of portions of this judgment and plan addressed to a dining hall arrangement at the OCJ.

Although the broad-based complaint did not specifically refer to the lack of a dining or mess hall facility at the OCJ, provisions for such a facility were made in both the consent judgment and plan. As part of a provision to combat enforced idleness, *fn1" the consent judgment required defendants "to provide all OCJ prisoners with a reasonable amount of movement daily from place to place." *fn2" Pursuant to this provision, the consent judgment required drafting of a plan to include at minimum a "(provision) for a mess hall where all prisoners may take all their meals (except for ill prisoners confined to bed)." *fn3"

 The implementing plan described the proposed mess hall in greater detail. The plan included a floor plan designed by defendants' architect of a so-called "multi-purpose room," a corner of which housed nine retractable tables and accompanying benches to seat 126 inmates. A rolling partition divided the room, which doubled as a gymnasium.

 During the negotiations, concern had been raised over the legality of the proposed mess hall arrangement under § 500-c of the New York Correction Law. Section 500-c, entitled "Custody and control of prisoners," distinguishes twelve classes of prisoners, the commingling of which is prohibited except for "educational, vocational and divine worship programs conducted within the jail." *fn4" The prisoner classes distinguish between males and females, youths and adults, and those awaiting trial, those convicted, and those in custody on civil process, committed for contempt or detained as witnesses. *fn5" The parties requested the advice of the counsel to the State Commission of Correction on this issue, who opined that the proposed dining arrangement arguably adheres to the legislative intent behind § 500-c so long as specified conditions are maintained, namely, that prisoners are kept under constant and close supervision and that different classes of prisoners who are in the dining area at one time are appropriately separated so that they are not allowed to talk or be in close proximity to one another. This opinion was attached as an exhibit to the implementing plan. Based on this opinion, both parties were under the impression when signing the consent judgment and plan that the mess hall provision was legal.

 Following entry of the consent judgment and plan, defendants commenced construction of the contemplated multi-purpose room, which now has been completed and currently is used as a gymnasium but has yet to be employed as a mess hall. On March 10, 1980, a new Corrections Administrator was appointed at the OCJ. Upon familiarizing himself with the consent judgment and plan and the opinion of counsel to the Correction Commission, as well as personally examining the completed multi-purpose room, the Administrator expressed serious concern over the legality and safety of using the multi-purpose room as a mess hall. The Administrator was of the view that § 500-c was straightforward in requiring complete separation of inmate classes during dining. Given that the OCJ normally contains eight or nine of the twelve classes of prisoners at any one time, *fn6" and assuming that meal-time activity for each class would take approximately one-half hour, the Administrator estimated that feeding prisoners in the new mess hall would require up to four and one-half hours per meal or a total of thirteen and one-half hours per day, not including time required for movement of prisoners, clean up, and correctional staff meal activity. This "round-the-clock feeding operation," the Administrator contended, would overburden OCJ's available staff and render impossible the intended second use of the multi-purpose room as a gymnasium.

 The Administrator also voiced concern over the security of the proposed mess hall. He noted that the large volume of the multi-purpose room, over 25,000 cubic feet, would require huge quantities of "CN gas," the means commonly employed to quell inmate disturbances, to effectively arrest any such uprising that might occur. Large quantities of CN gas, he claimed, can be lethal. He also noted that the frequent movement of the inmate population that would be required by the necessary dining schedule would "severely jeopardize( )" the security of the entire jail.

 Based on these newly raised concerns over the legality and safety of the mess hall proposal, defendants brought the instant motion, initially returnable on January 6, 1981, to relieve themselves from the requirements of the consent decree directed toward maintenance of a mess hall facility. Since defendants considered these matters resolved until the new Administrator arrived on the scene, the motion was brought "within a reasonable time" as required by Rule 60(b)(5) and (6). In place of the mess hall arrangement, defendants propose continuing the existing system of feeding inmates on their tiers. These tiers, of which there are eight in the OCJ, consist of long, narrow exercise corridors, 7' X 100', connecting the seventeen cells on the tier, with small, two-seat tables and benches permanently attached to the corridor walls. Under this arrangement, inmates are free to dine with up to sixteen other inmates also on their tier, but cannot mingle with the jail population at large or leave their immediate cell areas.

 In an initial effort to determine the legality of the proposed mess hall arrangement under § 500-c, the Court directed the parties to obtain the opinion of the Attorney General of the State of New York. The Attorney General, in an informal opinion, interpreted the inmate classification requirements of § 500-c as serving the dual purpose of facilitating treatment of inmates and maintaining prison security:

Through the segregation of classes of prisoners, security in housing and programs can be tailored to meet the escape and violence threats posed by the members of each class. Segregation of classes can also be used as a treatment tool to insulate the potentially harmful influence of a hardened criminal from, for example, a minor or a person being detained for trial, or a person being held in relation to a civil matter. Treatment technique can then be tailored to the needs of each class. *fn7"

 In light of these purposes of § 500-c, the Attorney General concluded that the legality of the proposed mess hall arrangement was a "question of fact":

Depending on the physical characteristics of the mess hall, there may be options for separation of prisoner classes that will permit communal dining consistent with treatment and security goals, and, therefore, in compliance with the apparent legislative intent of section 500-c. *fn8"

 Several possibilities for complying with § 500-c were then suggested, including the use of movable partitions to separate classes, provision of separate avenues of ingress and egress, and prohibition of communication between classes, so long as sufficient guards were employed in each of these situations to meet the threats posed by each prisoner class.

 The inconclusiveness of the Attorney General's opinion left the issues underlying the instant motion essentially unresolved. The parties, despite their laudable record of cooperation, still were unable to agree on an appropriate mess hall plan. Accordingly, a hearing was held and testimony was heard.

 Defendants called as witnesses several prison officials from other jails as well as personnel from the OCJ. These witnesses reiterated the concerns already expressed by the new OCJ Administrator in addition to raising other dangers associated with the proposed mess hall facility. They noted that the large size of the multi-purpose room made it difficult to guard, that the flimsily constructed retractable tables and benches lent themselves too readily to use as weapons or battering rams, and that the extra movement required to transport prisoners between their tiers and the multi-purpose room invited violent incidents. It was also reaffirmed that the time required to transport and feed each prisoner class separately coupled with that needed for routine security precautions would significantly reduce the time and staff available for other inmate activities. Uniformly, ...

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