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May 19, 1983

JAMES BENJAMIN, MIGUEL GALINDEZ, BRUCE HAYES, JOSE SALDANA and ROBERT ESCHERT, detainees of the New York City House of Detention for Men, individually and on behalf of all other persons simiarly situated, Plaintiffs, against BENJAMIN J. MALCOLM, Commissioner of Correction of the City of New York; ARTHUR RUBIN, Warden, New York City House of Detention for Men; GERARD BROWN, Deputy Warden, New York City House of Detention for Men; and ABRAHAM D. BEAME, Mayor of the City of New York, individually and in their official capacities, Defendants.

The opinion of the court was delivered by: LASKER


Defendants move to modify two orders entered by this Court, the first of which, dated September 3, 1980, set a "cap" of 1200 inmates on the population of the House of Detention for Men ("HDM"), and the second of which, dated June 23, 1981, set a limit of 50 detainees per dormitory in the Anna M. Kross Correctional Facility ("AMKC"). *fn1" Defendants assert that the conditions in the facilities and the applicable constitutional principles have been significantly altered since the entry of the orders, and that, accordingly, the enforcement of the orders is no longer justified in fact or in law. Plaintiffs, a class of inmates residing at the facilities, argue that neither the facts nor the law have changed to any significant degree.

 A two-week hearing was held in March and April, 1983 to determine whether the conditions have changed sufficiently since the entry of the respective orders to justify modification under applicable law. Following a brief history of the action, our findings of fact and conclusions of law are set forth below.



 This action was filed in June, 1975, alleging that Plaintiffs, inmates ast the House of Detention for Men at Rikers Island, a New York City detention facility, were being subjected to conditions of confinement which violated their constitutional rights. The events preceding the establishment of the HDM population cap are set forth in detail in the decision of August 27, 1980, 495 F. Supp. 1356, familiarity with which is assumed.

 In brief, after a lengthy trial held in 1976-77, the parties attempted to resolve their differences by negotiation, leading up to the entry of a "Stipulation for Entry of an Order," the pertinent provisions of which provide that:

 "c. ... [T]he parties agree:

 (1) that the record in Benjamin v. Malcolm established plaintiffs' factual claim that, at the time of trial, *fn2"

 f. The housing blocks at HDM and the institution at large were overpopulated; such overpopulation resulted in an atmosphere of tension and hostility, a strain on all of the institution's facilities, and interference with supervision, protection and provision of services to members of the plaintiff class.

 (2) Plaintiffs are entitled, as a matter of law, to the entry of a judgment remedying the conditions described in paragraph (1) above;

 (3) That plaintiffs reserve the right to litigate the issue of the appropriate remedy for the conditions described in paragraph (1), prior to the entry of judgment, and to contest, on appeal, the specific terms of any final remedy ordered by the Court."

 On the basis of the Stipulation, the defendants' report of the 1975 riot at HDM, the record of the 1976-77 trial and the changes in conditions between the trial and the time of decision, we concluded that the conditions of confinement at HDM violated constitutional standards as those standards are articulated in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), and that the appropriate relief was a population cap of 1200 inmates. That decision was not appealed.

 Six months after the entry of the 1200 person population cap at HDM, plaintiffs moved for emergency relief from overcrowded conditions in all detainee dormitory housing, including the dormitories at AMKC, another pretrial detention facility located on Rikers Island.In response, defendants agreed to reduce the dormitory populations to 50 men per dorm. An order effecting the parties' consent to a 50 person per dorm limit was entered by the Court on June 23, 1981.

 It is with respect to these two orders that defendants seek relief.

 The case history subsequent to the entry of the orders is discussed below since it casts light on the pending application. In July, 1981, plaintiffs moved for an order holding defendants in contempt of consent decrees previously entered by the parties governing conditions in HDM and AMKC. Defendants cross-moved for relief from certain of the provisions of the consent decrees. On consent of both parties, the motions were adjourned sine die, subject to a referral to a neutral third party compliance consultant, to "advise and assist the defendants in achieving compliance with the Consent Judgments and to informally assist the parties in resolving disputes as to compliance with the Consent Judgments." (Order of June 18, 1982).

 In addition to seeking relief from the obligations imposed by the consent decrees, defendants have also sought the assistance of the Court in complying with the population caps. In July, 1981, defendants moved for an order compelling the State Department of Correctional Services to remove "forthwith" from the City's detention facilities, as the State is required to do under New York Criminal Procedure Law § 430.20, all inmates who had already been sentenced. The City's application was granted, and on August 20, 1981, the State was ordered to accept, within 48 hours of completion of transfer processing, persons housed at HDM who had been sentenced to terms of imprisonment in State facilities.

 In November, 1982, during the course of a strike by attorneys employed by the Legal Aid Society, defendants sought relief from the population caps on the ground that the strike had caused a backup in the disposition of criminal cases by the New York courts and a consequent acute increase in population. Solely on the representations of the defendants, and over the objections of the plaintiffs, the Court granted defendants temporary relief from the population caps, to the extent of allowing them to house an additional 245 inmates in HDM and an additional 8 inmates per dormitory in AMKC until the strike concluded and its alleged effects had subsided.

 Defendants now move to modify the orders which imposed population caps on HDM and AMKC. They seek to house 1872 inmates at HDM, an increase of 672 inmates over the population cap, and to make permanent the permission granted on a temporary basis during the Legal Aid strike to house 8 additional inmates in each of the 12 AMKC dormitories.




 Having visited the facilities and heard the testimony of expert witnesses, Department administrators and inmates, we make the following findings of fact.

 1. Safety

 Central to the question of the constitutionality of institutional conditions is whether the inmates are safe in their persons.

 Even to the untutored visitor, it is apparent that the structure of HDM frustrates the administration's attempt to provide inmates with security from one another. The length of the blocks and the three-tiered structure make it impossible for an officer to observe what is going on in parts of the block other than where the officer happens to be at the moment. An officer who is patrolling near the front of the block -- as is more often the case -- cannot adequately observe the back of the block -- 250 feet distant (Tr. 78), and an officer patrolling the flats cannot meaningfully observe what is going on the second or third tiers. The inmate witnesses testified unanimously and credibly that officers rarely patrol the blocks because they are afraid; that during periods when the inmates are not in their cells, the officers read the newspapers or simply "hide" (Tr. 834); and that most fights are not observed, much less broken up by guards (Tr. 958, 1137-38). Inmates do not feel safe at HDM: the threat of robbery and assault is constant (Tr. 1138, 1162-63). This testimony was not contested either by cross-examination or by defendants' witnesses.

 Defendants have informed the Court that if their application for relief from the population cap is granted, they will seek sufficient funds to add one additional officer to supervise each cellblock. At present, with a population of about 1400, there are three correction officers supervising cellblocks of approximately 180 inmates each. One officer is assigned to the "bridge," the area in the front of the blocks, and one officer to each side of the blocks. If the blocks were filled to capacity and one additional officer were added to each side, five officers would be supervising 240 inmates. Thus, under defendants' proposal, the current ratio of 60 inmates to each correction officer would be reduced to 48 inmates per officer, a definite improvement.

 However, numbers do not tell the whole story. In the first place, we credit the testimony of plaintiffs' witnesses that the addition of only one officer per side would not go very far towards remedying the current, serious personal safety problems (Tr. 756, 1037-41). Moreover, the experts agreed that if the cellblocks were filled to capacity, incidents of tension and violence would be expected to increase more than in proportion to the increase in population (Tr. 378, 569, 732-34, 1033).

 We conclude that the addition of one officer to each cellblock side would not adequately remedy the personal safety problems inherent in the architecture of the HDM cellblocks.

 2. Activities and Recreation

 The availability of programs is a component of the issue of personal safety: both defendants' and plaintiffs' witnesses testified to the fact that tensions caused by overcrowded living conditions are substantially affected by the extent to which activities outside the cellblocks are available.

 Inmates are not required to remain in their cells throughout the day. For 14 hours per day, inmates may choose to be locked out of their cells, an arrangement markedly more flexible than in 1976, when this action was tried. During most of the time that inmates are not in their cells, they remain on the cellblocks or in the dayrooms adjoining the cells. Activities outside of the cellblocks include lunch and dinner, which are served in the mess hall, gym, law library, visits and classes. Each inmate is theoretically allowed one hour of gym a day, two hours a day at the law library, and three one hour visits per week. There are nine educational programs and each classroom accommodates 25 inmates (Tr. 62, 64).

 In spite of the existence of this impressive array of activities, the fact is that inmates spend by far the bulk of their time on the cellblocks and the dayrooms with little or nothing to do. The dayrooms are theoretically equipped with "passive games" such as checkers and decks of cards; however, according to the testimony of the inmate witnesses, they supply of these games is entirely inadequate, and inmates are not permitted to receive games as gifts from visitors. Even activities such as reading or writing letters are hampered by the noise, the inadequate lighting, and the press of other inmates.

 With respect to activities off the cellblocks, inmates are technically free to spend four to five hours a day outside of the blocks. However, in reality, time off the blocks is considerably more limited. For example, with respect to recreation, on days in which the weather is deemed "inclement" (defined by Warden Bantum as temperatures of less than 32 degrees) four periods of indoor gym are available for 75 inmates per period (Tr. 118). On any day in which the temperature exceeds 32 degrees (regardless of rain or snow) (Tr. 111, 112) inmates may recreate only in the yard. Only one period of yard activity is called for the entire general population (Tr. 117). Many inmates are discouraged from participating in recreation because the gym and the yard are so crowded (Tr. 748). Inmates also testified that they refrain from participation in recreation because they perceive the crowded gym as dangerous. One inmate testified that after his first visit to the gym, at which he witnessed a near-riot, unseen by any guard, he decided that he was better off remaining on the cellblock during gym periods. Moreover, even for inmates that attend gym regularly, the one hour allotment includes the time involved in being escorted back and forth from the cellblocks to the gym. Having walked the length of the facility ourselves on a number of occasions, we found credible the inmates' testimony that, after accounting for escort time, actual recreation time in the gym may be reduced to as little as 15 minutes.

 The other activities available to inmates -- law library, classes and visits -- are also overcrowded. Inmates testified that only 15 men from each cellblock may use the law library each night, so that if an inmate is not able to push his way to the front of the line when the law library activity is announced, he will be unable to attend that day. Moreover, even for those inmates who are able to attend, the facilities are overcrowded: there is a serious shortage of notary service and legal research assistance because many inmates request these services and limited staff is available to provide them. Moreover, the copying machine is frequently out of ink and paper. Inmate witnesses also testified that they have often signed up for other kinds of classes that have been offered, and then learned that the class was closed out (Tr. 852-53, 1094-95, 1154). As for visits, although inmates are allowed three hours of visiting per week, many inmates have no visitors. Less than ten percent of the detainee population usually have visitors on any given day during the week, while on weekends between 15 and 20 percent have visitors (Tr. 68) (Testimony of Warden Bantum).

 In sum, time and activities off the cellblock are severely limited. The only time the inmates are certain of being off the blocks is at mealtime. *fn3"


 Plaintiffs' witness on sanitation, Samuel Hoover, testified at length concerning the facilities' sanitation problems. His testimony was largely unrebutted, and was entirely credible.

 Hoover, a public health sanitarian with extensive experience in the field, particularly in the area of prisons, *fn4" (see Plaintiffs' Ex. 29), visited HDM in 1980 and again shortly before this hearing. He described the institution as seriously out of conformity with minimum public health standards in a number of ways.

 For example, Hoover found that sanitary conditions in the kitchen facilities did not meet minimum public health standards (Tr. 618).The deep fat friers ranged from "very dirty to absolutely filthy;" foods such as flour were kept in containers without covers; block ice, used to cool beverages, was kept directly on "extremely dirty" floors in a freezer room; and cockroaches were found throughout the kitchen area. Dishes were washed at temperatures too low to sanitize them, while pots and pans were washed only with a hose: neither detergents nor chemical sanitizers were used.

 He found similar sanitation problems on the cellblocks. The cell vents and exhaust vents were so dirty that they were clogged. Many of the cells, some of which were occupied as well as some unoccupied, contained inoperative toilets. Broken glass was found throughout cellblocks, and birds flew in through broken windows (Tr. 640). Exposed electric wiring was commonplace, as were broken light fixtures. The gross accumulations of garbage in the slop sink rooms and the litter on the catwalks and in the cells supported a high degree of vermin infestation (Tr. 659).In summary, Hoover concluded, and we credit his conclusion, that "major efforts" would be necessary to bring the facility "up to minimal standards of cleanliness and maintenance." (Tr. 677). Moreover, he found no improvement of any significant degree since his visit in 1980.

 Even defendants' witnesses concurred with Hoover's findings that substantial efforts were necessary in the area of sanitation. George Camp, one of defendants' experts on prison conditions, testified that he did not consider the sanitary conditions on the tiers to be satisfactory; he stated that "a systematic program of preventive maintenance and sanitary work" was necessary (Tr. 351).Similarly, Samuel Nelkin, the supervisor of the City's Public Health Sanitarium, testified that while he believed it was possible to clean HDM, "it would require a far more extensive effort than [he had] seen over the last three years" (Tr. 1335).

 4. Medical Care

 Dr. Robert Cohen, director of Rikers Island health services, testified that HDM and AMKC medical facilities are under strain at current population levels. Dr. Cohen testified that he believes it important to provide daily sick call for all inmates, but that the facility is currently unable to do so (Tr. 259). In addition, difficulty exists as to locating and escorting inmates for follow-up medical visits. This problem has been aggravated since the recent population increases. Furthermore, the rate of serious medical emergencies at HDM has also increased with the rise in population: 17 inmates were sent on emergency visits to Bellevue Hospital in January, 1983, and 19 were sent in February, compared with an average for the preceding six months of about nine or ten per month *fn5" (Tr. 253).

 Dr. Melvin Kaye, the director of mental health services for prison health, testified that there have also been shortages of mental health observation space from time to time (Tr. 312). Dr. Kaye observed that when such shortages occur, inmates with psychological problems have been housed "in areas other than those that are suitable," (id.) as, for example, being housed with general population inmates. Dr. Kaye stated that he has requested dormitory space for suicidal or depressed patients "on a virtually regular basis" but that his requests have not been met (Tr. 320).

 The serious lack of adequate space for mental health care has been noted on other occasions. See, e.g., the New York City Department of Health letter of January 4, 1983 to the Department of Correction, Health Services Management:

 "I do believe that DOC [the Department of Correction] has been remiss in one wignificant area. That is, the provision of more appropriate space for intensive levels of care... [which] has been a pervasive problem for more than ten years. Simply stated, the DOC has never provided a physical environment that any professional auditing group would approve as an adequate setting in which to provide psychiatric care."

 (Pls.' Ex. 16).

 The actual impact of overcrowding on inmate mental health is difficult to measure, but we note that since the defendants were permitted to increase the population temporarily in November during the Legal Aid strike, there have been three reported suicide sttempts at HDM. No suicide attempts had been reported during the five months preceding the increase (Tr. 84). Moreover, mental health referrals from HDM have increased about 50 percent in March over the average for previous months (Tr. 284).

 With respect to dental care, no testimony was offered, but plaintiffs introduced the New York City Department of Health's most recent report on health services at HDM, which states that "the staff indicated... their strong feelings that the current level of dental coverage at HDM was insufficient." After deducting the hours of available dental care which are used to service the Rikers Island infirmary inmates, the staff calculates that the clinic is available only nine hours a week to provide dental care for a regular population of 1200, temporarily expanded to 1450 (Pls.' Ex. 38, at 16). In an intradepartmental memorandum dated February 3, 1983, HDM Captain Dixon stated that, based on his observations, "Many more hours of Dental Clinic operation is necessary if we are to adequately accommodate this institution's need" (Pls.' Ex. 4).

 5. Fire Safety

 Fire prevention capabilities are critical to an institution's ability to house a given number of inmates.HDM has no smoke alarms, no heat sensing devices, and no sprinkler system. Moreover, the undisputed testimony of Samuel Hoover, plaintiffs' sanitarian, established that the distances between the fire exits and the cells are beyond safe levels (Tr. 653). In addition, inmates who had been in custody at HDM for several months testified that only one fire drill had been held during the time of their detention, and that, during that drill, it took the guard "literally ten minutes" to open the fire exit (Tr. 931). Nor is the possibility of fire merely speculative: Warden Bantum testified that a fire is set, accidentally or otherwise, in approximately one cell each month (Tr. 1298).

 6. Visiting

 The overtaxed visiting facilities are also subject to serious shortcomings. Visitors to the facility testified that the visiting process is extremely wearing -- consuming a large part of the day.

 When visitors reach the Bridge Control Building on Rikers Island, they are given numbers. They then wait for a bus which takes them to the particular facility they are visiting. At the facility, they must wait for their numbers to be called, after which they are searched. After the search, they again wait to be registered, and after registration they wait again to be given a locker in which to keep personal possessions such as purses and coats which may not be brought into the visiting room. The visitors then wait still again to be searched, and then endure a final wait in the visitor waiting room.

 Although the visitor waiting room and the visiting room itself are cheerful and in good condition, the other waiting facilities are crowded and dirty. Visitors testified to having had to wait outside in the rain and to there being an insufficient number of seats in the waiting areas. The entire process, from arrival at Rikers Island until the time of the visit, takes between two and a half hours on a good day to eight and a half hours on a particularly bad day. Total elapsed time of four hours on Rikers Island for a one hour visit appears to be average. We credit the testimony of visitor witnesses that the process is exhausting and degrading, and that a visit of one hour spent with an inmate may consume an entire day between the time the visitor ...

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