Appeal from an order of the District Court for the Eastern District of New York (Jacob Mishler, Judge) concerning the propriety of an amendment to a consent judgment sought by jail officials in a suit challenging overcrowding and other conditions of confinement. Docket No. 87-2277. Reversed and remanded.
Newman, Cardamone, and Pierce, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Once again we encounter the continuing efforts of prisoners in the Nassau County Correctional Center (NCCC) to secure compliance with a consent judgment, originally entered October 7, 1981, and amended by agreement on October 9, 1984, to relieve jail overcrowding and remedy other challenged conditions. See Badgley v. Varelas, 729 F.2d 894 (2d Cir. 1984) ("Badgley I"); Badgley v. Santacroce, 800 F.2d 33 (2d Cir. 1986), cert. denied, 479 U.S. 1067, 107 S. Ct. 955, 93 L. Ed. 2d 1003 (1987) ("Badgley II"); Badgley v. Santacroce, 815 F.2d 888 (2d Cir. 1987) ("Badgley III"). The current appeal from an order of the District Court for the Eastern District of New York (Jacob Mishler, Judge) primarily concerns the propriety of an amendment of the consent judgment, sought by the jail officials and granted by the District Court over the objection of the prisoners. The amendment increases the maximum allowable population of the jail dormitory from 157 to 197. We conclude that the population limits at the NCCC may be increased only on condition that the 40 beds added to the dormitory are used to secure compliance with the provisions of the consent judgment before being used for additional prisoners. Since the amendment was not so conditioned, we reverse and remand.
The 1984 judgment (hereafter the "consent decree") established two population limits for the NCCC. Paragraph 4 sets 710 as the limit on the population in the cells, and paragraph 3 sets 157 as the limit on the population in dormitories. The combined population limit at the core facility of the NCCC is therefore 867. Badgley II, 800 F.2d at 35. In 1984, the New York State Commission of Correction approved the defendants' proposal to convert an unused mess hall into a dormitory and authorized the use of 40 beds in this space. After renovations were made, inmates were housed in this dormitory, starting in August 1986. In November 1986, the defendants moved in the District Court for an amendment to the consent decree to increase the 710 figure to 750. Though the 710 figure limits the population housed in cells and the added 40 beds are in the dormitory, the defendants' papers in support of their motion made clear that they wanted to place 40 more prisoners in the cells and in some unexplained fashion were using the additional 40 spaces in the dormitory as justification for the increase in the cell population. The prisoners moved to establish a deadline for compliance with various provisions of the decree.
In February 1987, the District Court issued an order temporarily allowing an increase of the 710 limit to 740, pending decision on the request for permanent modification of the consent decree. In Badgley III we vacated that order for lack of adequate findings and remanded for further proceedings. The District Court held a hearing in April 1987. The Court entered further temporary orders, raising the 710 figure to 740 on May 1 and to 750 on June 1. Then on June 5, Judge Mishler entered the order challenged on this appeal. That order, accompanied by a detailed opinion, authorized the defendants to use the dormitory for 40 additional inmates. The District Judge explicitly stated that he was amending the consent decree to permit an increase in the limit on dormitory beds from 157 to 197 and was not permitting an increase in the 710 figure to 750. At the same time Judge Mishler denied the inmates' motion to establish deadlines for compliance with other provisions of the consent decree. On appeal, the prisoners challenge the amendment and the denial of relief concerning three additional matters.
A. The Amendment. In challenging the amendment to the consent decree the prisoners rely on the strict standards enunciated by the Supreme Court in United States v. Swift & Co., 286 U.S. 106, 76 L. Ed. 999, 52 S. Ct. 460, (1932), while the defendants urge upon us the more flexible standards we deemed appropriate to a decree effecting significant institutional changes in the Willowbrook litigation, New York State Ass'n for Retarded Children, Inc. v. Carey, 706 F.2d 956 (2d Cir.), cert. denied, 464 U.S. 915, 78 L. Ed. 2d 257, 104 S. Ct. 277, (1983); see Note, The Modification of Consent Decrees in Institutional Reform Litigation, 99 Harv. L. Rev. 1020 (1986). We believe that, as with many legal issues, the appropriate standard can better be distilled by examining what was decided in the cited cases than by characterizing the decisions in generalized terms such as "strict" and "flexible." In Swift, defendants, bound by a consent decree entered in an antitrust suit, sought modification to release them from a provision prohibiting them from holding interests in various lines of business, a prohibition they had observed for years. 286 U.S. at 113. Modification was disapproved, as the Court was later to comment, because "the purposes of the litigation . . . [had] not been fully achieved." United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 20 L. Ed. 2d 562, 88 S. Ct. 1496 (1968). In Willowbrook the defendants, bound by a decree requiring substantial reduction of the number of mentally retarded persons at Willowbrook and their placement at other institutions housing no more than specified numbers of residents, sought modification to permit placement at institutions somewhat larger than those permitted by the decree. The defendants contended that institutions of the small size contemplated by the decree could not be found. The modification was permitted as a means of carrying out the fundamental purpose of the decree, which was to reduce the population at Willowbrook. See New York State Ass'n for Retarded Children, Inc. v. Carey, supra, 706 F.2d at 969. Though some measure of flexibility is warranted in considering modification of consent decrees in the context of institutional reform, id., the guiding principle, as illustrated in both Willowbrook and Swift, is that modification is favored when necessary to carry out the purposes of the original decree.
In the pending case, the manifest purpose of the decree is to relieve the overcrowding at the NCCC and thereby to permit the remedying of other grievances of the prisoners, all of which are attributable to overcrowding. For example, the decree places limits on the number of days that pretrial detainees and sentenced prisoners may be confined two to a cell and prohibits use of cots, except on the medical tier. The latter prohibition was adopted to end the practice of requiring prisoners to sleep in hallways and various other unobserved locations where they are subject to assault and their property to theft. Throughout the course of this protracted litigation we have recognized the close relationship between an end to overcrowding and the remedying of other grievances, such as extended use of double-bunking and use of cots. In Badgley I we withheld specific sanctions to enforce the provisions of the decree dealing with matters other than the population limit in the expectation that once the population was brought within the limits of the decree, . . . the County defendants should have little difficulty ending other violations of the consent judgment." 729 F.2d at 902-03. We reiterated this view in Badgley III. 815 F.2d at 889. Indeed, our concern for the absence of findings--a concern that prompted the remand in Badgley III --was directed not just generally at the lack of detailed justification for modification of the decree but specifically at the lack of a finding that the modification "would not impede" achievement of the goal of securing complete compliance with the entire decree. Id. at 889. Thus, in reviewing the findings now made in support of the modification, we must examine not only the adequacy of the District Court's justification for adding 40 more inmates to the dormitory, but also the Court's assessment of the effect of this increase in population upon the goal of securing compliance with all provisions of the decree. In making this inquiry, we bear in mind that noncompliance with the decree, especially the provisions apart from the population limits, has continued ever since the original decree was entered seven years ago and that adding prisoners to an overcrowded jail is an unlikely way to remedy violations that stem from overcrowding.
Judge Mishler recognized that his power to modify the decree "may be used only to help attain the goal intended by the decree." Decision of June 5, 1987, at 17 (citing New York Ass'n of Retarded Children, Inc. v. Carey, supra, 706 F.2d at 969). The Judge then endeavored to examine the effect of 40 additional prisoners in the dormitory upon the various requirements of the decree. With respect to food service, visits, indoor recreation, and use of the law library, he concluded that the additional 40 inmates would have either no adverse effect or at most a minimal adverse effect. These findings are adequately supported by the record. However, with respect to the durational limits on double-celling and the prohibition of use of mattresses on the floor and use of cots (except on the medical tier), the District Court made no finding as to the effect of adding 40 inmates. Instead, the District Judge initially noted that some double-bunking in excess of the limits in the decree "is evident from computer data offered at the hearing," Decision at 14, and that tabulations from this data showed cots in use outside the medical tier, id. at 15. Then, the Court discounted the significance of the data "due to the method of gathering and recording the computer data," id. at 14. Because of this deficiency in the data, the Court concluded that "Plaintiffs have failed to establish that double bunking continues beyond the durational limits set forth in the Decree," id. at 23, and that "it is not clear that cots are routinely being used in non-medical areas," id. at 15.
This assessment of the provisions concerning double-bunking and use of cots was legally flawed in two related respects. First, any deficiency in the quality of the statistical data is the responsibility of the defendants, not the plaintiffs. The decree expressly imposes on the defendants the obligation to gather statistical data and furnish it to the plaintiffs. Second, and more fundamentally, the Court's analysis misapplied the burden of proof. Though the plaintiffs have the burden when seeking contempt sanctions for violations of the decree, the defendants have the burden when they are seeking to modify the decree. Thus, it was up to the defendants to show that adding 40 more prisoners to the dormitory would not impede their ability to comply with the essential provisions of the decree. Particularly as to the provisions of the decree limiting double-celling and use of cots-provisions directly related to the number of prisoners in the jail--the defendants had the burden of establishing that they were in compliance. Without proof of compliance with these provisions, the use of the 40 new dormitory beds to house additional prisoners prevents compliance with the decree to whatever extent these beds could be assigned to prisoners now housed in violation of the double-celling and cot provisions. Even if the record were silent on the issue of compliance with these provisions, the defendants, having failed to meet their burden, would not be entitled to an amendment adding 40 additional prisoners. In fact, the record contains explicit admissions of violations by the defendants. The Warden testified that inmates "have been in double-celling longer than permitted by the judgment," and an affidavit of defendants' counsel acknowledged that on "infrequent occasions" female prisoners may be placed on cots, presumably not within a cell or other restricted area, "because of a lack of space within the women's section."
We recognize, as the defendants contend, that total compliance with a consent decree is not an absolute precondition of any modification. See Newman v. Graddick, 740 F.2d 1513, 1519-20(11th Cir. 1984). At the same time, tolerance of partial non-compliance is generally more appropriate in a case like Newman, which involved a broad-ranging decree affecting the entire prison system of a state. Where, as here, a consent decree aims to achieve precise objectives at a single location, modification of essential provisions ought to be disfavored until those seeking change demonstrate that they are in substantial compliance with the decree and that the proposed change will have no adverse effect on future compliance. In this case, the defendants have shown that they are endeavoring to comply with much of the decree and are striving to resolve the basic problem of overcrowding by building a new facility. That is all to the good. But until the new facility is operating, no relaxation of the present decree can be accepted unless it promotes the purposes of the decree. The provision of 40 additional beds in the dormitory afforded the defendants an opportunity to secure an increased degree of compliance with provisions that have been ignored for years. In such circumstances, a modification to permit 40 additional prisoners to use those beds requires a heavy justification that has not been shown. The modification approved by the District Court will impede, rather than advance, compliance with the decree.
Now that the defendants have provided 40 new beds in the dormitory, the decree may properly be amended to increase the population limit of the dormitory only if these additional beds are first used to eliminate all violations of the double-celling and cot provisions and only then used to accommodate new prisoners. The current amendment is invalid because it permits the intake of 40 extra prisoners without regard to defendants' compliance with the other provisions. Upon remand, the District Court will revise its order to permit the defendants to use the 40 new beds to accommodate new prisoners (up to the limit of 40) only to the extent that a new bed is not thereby rendered unavailable to a ...