The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs in this case are individuals who have been
(since December of 1987, when a class was certified), are, or
will be housed in the Protective Custody ("PC") unit of
Clinton Correctional Facility ("Clinton"). This case was
filed in 1983 and is brought pursuant to 42 U.S.C. § 1983 and
28 U.S.C. § 1331. The plaintiffs seek injunctive relief to
remedy allegedly unconstitutional conditions at the Clinton PC.
The second cause of action alleges an equal protection
violation. Plaintiffs allege that the inmates at PC units in
Green Haven, Great Meadow, Auburn and Attica are generally
afforded greater recreational and programming opportunities
than inmates in the Clinton PC. The third cause of action
alleges that the defendants place an undue burden on the
plaintiffs' assertion of their right to be free from harm and
accordingly violate plaintiffs' eighth amendment rights. In
essence plaintiffs allege that the conditions are so
restrictive at Clinton PC that inmates will be discouraged
from seeking protective custody.
In their fourth cause of action, plaintiffs allege that the
defendants have failed to provide the PC inmates adequate
protection from harm. This, too, plaintiffs contend
constitutes a violation of their eighth amendment rights.
Finally, the fifth cause of action alleges that the
defendants violate plaintiffs' rights under the free exercise
clause. As a basis for this claim, plaintiffs contend that
they are denied access to regular and confidential religious
counseling, sacraments, and services.
I. THE PARTIES' STIPULATIONS.
A non-jury trial on plaintiffs claims was held from
September 19, 1988 through September 23, 1988 in Auburn, New
York.*fn1 Prior to trial, the parties presented the court
with 14 itemized stipulations of fact. These are reproduced
below. (The footnotes to these stipulations are the court's
additional explanations and are not part of the parties'
1. Protective custody at Clinton Correctional
Facility is housed in that institution's E Block.
2. E Block is composed of seven companies*fn2,
each containing 21 cells. Companies one through
five are on the south side of the block, with one
at the bottom and five at the top. Companies six
and seven are on the north side of the block,
directly across (respectively from four and five
3. One and six companies have "flat" galleries,
which run from the cell bars to the block walls.
All other companies have "open" galleries,
running only part of the way [to the block walls]
(roughly four feet) from the cell bars.*fn4
4. All cell blocks in Clinton contain open
galleries on other than the lowest company
5. There are no meeting rooms or offices in E
block. Aside from the company cells and
galleries, the only other available space is the
area known as the "landing," in front of each
tier of cells.
6. PC is currently located on companies one
through four of E block.*fn5 Company four is
involuntary PC, and the other three companies are
7. Non-keeplocked PC inmates receive 2 hours
daily recreation in the E block yard. Until
September 5, 1988 they were receiving 1 1/2 hours
daily recreation. Voluntary PC and involuntary PC
inmates are recreated separately.
8. PC inmates eat their meals in their cells.
9. PC inmates may obtain two legal books a day.
This is done by filling out request slips to the
facility law library.
10. PC inmates do not go to the law library, or
meet with inmate law clerks. Photocopying is
available, and inmates can make written requests
to the law clerks for assistance.
11. PC has no congregate religious services.
Inmates can make requests to meet with religious
advisors; such meetings usually occur at the
12. PC inmates are taken to the facility
commissary every two weeks. They receive the same
commissary privileges as general population
13. PC inmates are allowed daily visitation and
participation in the family reunion program.
14. Employment for PC inmates consists of
roughly half a dozen porter positions, one art
instructor, one barber, one inmate tutor, and an
From this point on, the court will address the facts which
relate to each particular claim in the discussion which
relates to that claim. In general, the court observes — and as
the stipulation recited above illustrates — there was little
dispute at trial regarding the conditions under which
plaintiffs reside in Clinton PC. At the core of many of the
disputes in the present action is a debate regarding the manner
in which the resources available to the Clinton Correctional
Facility should be allocated. Plaintiffs implicitly contend
that they suffer to benefit other inmates at Clinton.
II. CONDITIONS AT CLINTON PC; EQUAL PROTECTION.
A facially appealing argument raised by plaintiffs at trial
relates to denial of equal protection under the law. U.S.
Const., amend. XIV. Plaintiffs contrasted their situation
with those of inmates in other PC units in the state and with
inmates in special programs at Clinton itself. Plaintiffs
pointed to discrepancies and claimed that the corrections
officials have no rational basis for continuing the
discrepancies. At trial, the court received the distinct
impression that PC inmates feel as though they are second
class citizens. Certainly, plaintiffs' griping is
well-founded in fact; the question is whether the disparity
of treatment is unjustified, or rises to a level for which
the court should order remedial action.
The protective custody unit at Clinton functions to protect
inmates who cannot remain in the general prison
population.*fn6 Inmates housed in PC run the gamut from
victims to the victimizers. Consequently, it is not
surprising that some of the inmates at Clinton PC are placed
in protective custody even though they do not request the
placement. These inmates reside in, what is referred to as,
Involuntary Protective Custody ("IPC"). Inmates are only
transferred to IPC following a due process hearing.
As the stipulation recited above indicates, plaintiffs
spend much time in their cells. They are accorded two hours
of recreational time in the E Block yard, a yard which is
only accessible through E Block. Meals are served to
plaintiffs in their cells. They have no out-of-cell formal
programming. For instance, plaintiffs have an in-cell study
program, but not an out-of-cell study program. Plaintiffs may
not leave E Block to participate in congregate religious
services. PC inmates do not have access to a law library.
They may order books from the facility's law library, but may
only order two books a day. PC inmates may not order
PC inmates are given certain privileges. They may visit the
prison commissary twice a month. They can shower two or three
times a week; naturally, that is outside the cell block.
Furthermore, they may use prison telephones daily and have
unlimited contact visits. PC inmates may view a TV in their
yard when they are exercising in the yard. The yard also
houses what might best be described as a book and game shack.
Books are rotated in and out of the shack every two months.
Games such as chess and checkers are kept there,
as well as two baseball mitts, a football, a softball, and a
By way of contrast to the conditions of confinement in
Clinton PC, plaintiffs (and defendants) introduced evidence
regarding other specialized programs at Clinton. Clinton
houses a program, state-wide in scope, known as the
Assessment Program Preparedness Unit ("APPU"). APPU in many
ways is similar in its goals to PC. In fact, one purpose of
the APPU program is to provide an alternative to PC. In
essence, APPU takes victim-prone inmates and attempts to
prepare them for return to general prison population. APPU
inmates may attend congregate religious services. APPU
facilities and programs include a vocational handicraft shop,
a general drafting shop, therapy sessions, counseling
sessions, a small law library, and a number of educational
services ranging from basic adult education to high school
equivalency. Inmates who are enrolled in APPU may use the
mess hall and the gym.
The testimony of William Burke, Supervisor of APPU,
revealed that there is a waiting list of inmates who wish to
participate in the APPU program. Furthermore, Burke testified
that the screening process for each APPU applicant lasts
approximately three to four months. By comparison, the length
of time for a screening prior to entering Clinton PC ranges
from minutes to a day or two. Transcript ("Tr.") 496. Ideally
Clinton PC is a place of transience. In accordance with this
philosophy, a majority of the inmates in Clinton PC transfer
out of that unit in 75 days or less.*fn7 However, a smaller
percentage of inmates remain in Clinton PC for more than six
months. Supra note 7.
Plaintiffs and, as a result, defendants also compared
Clinton PC to the Merle Cooper program at Clinton. The Merle
Cooper program is primarily geared towards inmates who have
committed sexual offenses. It evolved from a program which
targeted repeat offenders and inmates with lengthy prison
sentences. The Merle Cooper program is housed in the Clinton
Annex which is the old Dannemora State Hospital. Inmates in
the Merle Cooper program are granted the following amenities:
wood shop; gym; movies; cooking facilities; refrigerators;
color television; communication meetings and group therapy.
Additionally, plaintiffs compared living conditions at
Clinton PC with the conditions of the inmates in the
intermediate care program ("ICP"). ICP is a mental hygiene
program with two stated purposes: to ease mental patients
back into general population or to house such inmates for a
long period of time. ICP inmates are quartered in the same
cell block as PC inmates, E Block. ICP inmates reside,
however, on the north side of the block which is composed of
only two companies, 6 and 7. IPC inmates are afforded gallery
recreation on the flat in front of Company 6; furthermore
they have a TV on the flat as well. As indicated above, PC
inmates are not permitted gallery recreation and their TV is
in the E Block yard.
Finally, plaintiffs rest on the following contrast between
Clinton PC and the protective custody units in other New York
State correctional facilities. At Sing-Sing the PC inmates
enjoy 6 hours outside their cells; at Green Haven the amount
of out-of-cell time is 5 hours; at Great Meadow PC inmates
receive 2 1/2 hours recreation plus two communal meals; at
Auburn they receive 3 1/4 hours of gallery recreation, plus
outdoor recreation; at Sullivan the PC inmates receive 10
hours of gallery recreation.
The appropriate analysis for an equal protection claim is
whether the unequal treatment bears a reasonable relationship
to legitimate penalogical interests.*fn8
Benjamin v. Coughlin, 905 F.2d 571, 574-75 (2d Cir. 1990);
Langone v. Coughlin, 712 F. Supp. 1061, 1066 (N.D.N.Y. 1989)
(McCurn, C.J.); see Williams v. Lane, 851 F.2d 867, 881 (7th
Cir. 1988), cert. denied, 488 U.S. 1047, 109 S.Ct. 879, 102
L.Ed.2d 1001 (1989) (determining whether or not inmates'
guarantee of equal protection under the law was violated by
considering whether the "[u]nequal treatment . . . is justified
[by] a rational relation to legitimate penal interest[s]"). In
evaluating plaintiffs' equal protection claim, this court will
apply the four factors set forth in the Supreme Court's
decision in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987). See Benjamin, 905 F.2d at 574-75. First,
there must be a valid, rational connection between the prison
regulation and the legitimate governmental interest put forward
to justify it. The second inquiry is whether there are
alternative means of exercising the right that remain open to
prison inmates. Third, the court must assess the impact that
accommodation of the asserted constitutional right will have on
guards and other inmates, and on the allocation of prison
resources generally. Fourth, the absence of ready alternatives
is evidence of the reasonableness of a prison regulation. 482
U.S. at 89-90, 107 S.Ct. at 2261-62. Finally, a recent decision
by the Second Circuit has established that plaintiffs bear the
burden of showing irrationality in the justifications put
forward by defendants for disparate treatment. See Fromer v.
Scully, 874 F.2d 69, 74 (2d Cir. 1989).
During trial the defendants articulated fiscal concerns,
safety and security concerns, and concerns of institutional
order as those concerns which prompted them to limit the
number of activities available to inmates in Clinton PC.
See Tr. 391-95; 575. These are legitimate concerns for
defendants to act upon. Turner, 482 U.S. at 91, 107 S.Ct. at
2262; O'Lone v. Estate of Shabazz, 482 U.S. 342, 350, 107 S.Ct.
2400, 2405, 96 L.Ed.2d 282 (1987); Martinelli v. Dugger,
817 F.2d 1499, 1506-07 (11th Cir. 1987), cert. denied,
484 U.S. 1012, 108 S.Ct. 714, 98 L.Ed.2d 664 (1988); Hendrix v. Evans,
715 F. Supp. 897, 913 (N.D.Ind. 1989); Langone, 712
F. Supp. at 1066 n. 6. In specific, the Superintendent of
Clinton Correctional Facility, defendant Eugene S. LeFevre,
testified that he was concerned with the safety and the
security of PC inmates. Tr. 399. Because the plaintiffs are in
protective custody, he desired to minimize their exposure to
the outside general prison population. Tr. 391. In addition, he
was concerned that granting the plaintiffs more privileges
would impede the activities of the general prison population.
Tr. 393. Finally, LeFevre expressed a financial concern that
providing plaintiffs with more activities and greater
availability of prison resources would require him to
reallocate staff and funds in a manner which would not be
cost-effective. Tr. 394, 408.
As they must, plaintiffs contend that defendants'
justifications are irrational. They raise several
contentions. First, plaintiffs claim that the justifications
for minimal outdoor recreation are irrational because the PC
inmates received a 1/2 hour increase in recreation just
before trial commenced. They complain that "it took
[LeFevre's] administration six years to increase recreation
time, even though the increase did not necessitate any change
in security staffing." Plaintiffs' Post-Trial Memorandum, Doc.
177, at 10 (emphasis in original). In the court's
interpretation of events, the increase may indicate that the
earlier allotment of time for outdoor recreation was
irrational. However, plaintiffs only seek injunctive relief
with respect to the present situation. The fact that the
outdoor recreation time was increased, if anything, lessens the
need for injunctive relief at the present.
Plaintiffs cite as a second ground for disbelieving
LeFevre's justification the fact that every other maximum
security unit in the state permits in-door recreation.
Plaintiffs' contention is unconvincing. As LeFevre testified,
Clinton presents a unique situation. It has open galleries
enclosed only with screening. Objects such as bits of glass
or urine and feces can be thrown through the screening from
an upper gallery onto the flat. Tr. 164, 185-86, 302, 422.
LeFevre testified that in Attica Correctional Facility the
galleries were not open as they are at Clinton. Thus, in-door
recreation in Attica could be safer. Tr. 418-20. Moreover,
the Supreme Court has cautioned that "the Constitution `does
not mandate a "lowest common denominator" security standard,
whereby a practice permitted at one penal institution must be
permitted by all.'" Turner, 482 at 95 n. *, 107 S.Ct. at 2265
n. * (citation omitted); Fromer, 874 F.2d at 74-75; see also
Moss v. Clark, 886 F.2d 686, 691 (4th Cir. 1989). In this
instance, the court declines to impose a lowest common
denominator to be imposed on maximum security protective
Plaintiffs next argue that LeFevre has a 45 million dollar
budget at his disposal each year and that from this budget he
should be able to increase the PC staffing and add activities
for PC inmates. They point to the fact that Clinton maintains
a resource pool of 50 corrections officers and that numerous
other staffing positions were added recently. This argument,
relating to the size of Clinton's budget, fails for at least
two reasons. Plaintiffs ask the court to make decisions
regarding how defendant LeFevre should allocate the Clinton
budget. They, in effect, encourage the court to become a
super-superintendent of Clinton Correctional Facility. The
court is immediately hesitant to accept this invitation
— and will not — because to do so would not accord proper
deference to the defendants "who are actually charged with and
trained in the running of the particular institution under
examination." O'Lone, 482 U.S. at 349, 107 S.Ct. at 2404;
Fromer, 874 F.2d at 73; Hendrix, 715 F. Supp. at 914. In any
event, the plaintiffs failed to demonstrate that the money
available to LeFevre is not rationally allocated at the
present. They merely rest their argument on the size of his
budget and the size of the staff which he supervises.
In addition, there was evidence that a staff change
favorable to Clinton PC occurred in 1986. Prior to that date,
one sergeant supervised cell blocks C, D, and E. From 1986 to
the present one sergeant as his sole responsibility was given
E Block, the cell block which houses Clinton PC. The E Block
sergeant, next to the sergeant who supervises the special
housing unit, has the smallest area to oversee of any
sergeant at Clinton. Tr. 369. In this particular, Clinton PC
inmates are treated more favorably than most other inmates at
Clinton.*fn9 All told, the court declines to adopt
plaintiffs' argument that the size of the budget, the number
of staff, and the allocation of both at Clinton demonstrate
an irrational animosity towards Clinton PC inmates.*fn10
Even so, another rationale given by LeFevre related to the
transience of the population at PC. He stated that "given the
short duration of inmates staying in that program, there's a
real question of whether that would be a cost-effective
program as far as the additional staff, both program and
security." Tr. 408. He believed additional programming would
not be cost-effective when the entire demands of the facility
were taken into consideration. Id.
Plaintiffs cannot, on the whole, deny that the PC
population is transient. Supra note 7 In fact, the percentage
of inmates staying for more than 180 days in 1988, 2%, is down
from the percentage staying for more than 180 days in 1987,
14%.*fn11 Id. Thus, the PC population in 1988 was more
transient than it was in 1987. No one can deny that moving PC
inmates out earlier is a positive step; indeed, it is LeFevre's
goal to minimize time in PC. Tr. 434. Yet, this is a trend not
expressly recognized by plaintiffs in their post-trial
submissions. The court finds that plaintiffs have not
demonstrated the irrationality of LeFevre's concerns regarding
the cost-effectiveness of additional programming for Clinton
PC. Cf. Bell v. Wolfish, 441 U.S. 520, 543, 99 S.Ct. 1861,
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