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November 30, 1990


The opinion of the court was delivered by: Lasker, District Judge.

Approximately 120,000 inmates were admitted to New York City jails last year. The Department of Correction is faced with the difficult task of finding beds for approximately 250 new inmates each day.*fn1 After these inmates are initially processed in court, they are transported to one of the jails on Rikers Island or to one of the Borough facilities. At each of these facilities, Department personnel classify the inmates, medically screen them, and assign them to beds. While awaiting the completion of these processes, inmates are confined in "receiving rooms." In receiving rooms, inmates do not have beds and have only limited access to toilets, showers, medical care and other essential services.

In March 1981, the plaintiffs moved for relief as to the conditions in the receiving rooms alleging that, "Detainees are being required to sleep in dayrooms and receiving rooms, as well as in dormitories filled far beyond their capacity," with resulting chaotic conditions.*fn2 An order was entered (the "1981 Order") enjoining the Department from housing inmates in non-housing areas, such as dayrooms, receiving rooms, gymnasiums and program space.*fn3

In April 1989, inmates were again required to spend days of confinement in gymnasiums and unsanitary receiving rooms and court pens. As a result, plaintiffs moved to hold defendants in contempt for violating the 1981 Order. On May 3, 1989, having concluded that members of the plaintiff class had been subjected in receiving rooms to "degrading, dangerous, unhealthy and unconstitutional conditions" for as long as several days at a time, this court issued an order (the "1989 Order" or the "Order") prohibiting the Department of Correction from confining inmates in non-housing areas for more than twenty-four hours. The Order also required defendants to house "overload inmates" (inmates being transferred from a housing area in one facility to a housing area in another facility) without delay, setting a guideline of twelve hours. To ensure compliance with the Order, the Department was required to report weekly to the court on a detailed basis as to the extent of compliance as well as to carry out the actions promised by then-Commissioner Koehler in his affidavit of April 17, 1989. These included the establishment of an inmate tracking system and an admission control center, the acquisition of additional buses and the expansion of medical and correctional staff assigned to receiving rooms and court pens. The court declined at that time to hold defendants in contempt.

Some of the measures promised in the Koehler Affidavit were adopted and remain in place today. Others were adopted and subsequently abandoned. Some were never adopted.*fn4 In April of 1989, the department established a new admission control center which continues to operate today. An inmate tracking system was put in place, but intradepartmental memoranda indicate that it has not always produced accurate results. Although the Department agreed to add eleven rally wagons to its transportation fleet, the Department now maintains that the seven it has added are sufficient to perform the required tasks. Only some of the new staff positions allocated for admissions processing were in fact filled.*fn5

The Department remained in substantial compliance with the 1989 Order for approximately one year.*fn6 However, compliance began to unravel in May of 1990 and deteriorated dramatically during the summer and fall of 1990. Required weekly reports were submitted to the court regularly from May 1989 until June 18, 1990, but after June 18, 1990, the Department failed to send reports to the court.

No request was made for modification or temporary waiver of the terms of the Order. On November 5, 1990, the plaintiffs filed the present motion to hold the defendants in contempt for violation of the Order.

The defendants do not dispute the facts: that over the past six months, hundreds of inmates have been sleeping on the floors of receiving rooms and on cots in gymnasiums. As counsel for the plaintiffs declared in his affidavit, based on personal knowledge:

  The conditions to which plaintiffs are being
  subjected for days on end are reminiscent of the
  nightmarish conditions we observed in 1989. . . .
  Detainees have been forced to sleep on crowded,
  filthy floors in close proximity to seriously ill
  people, many of whom have not been medically
  screened; they must rely on inadequate numbers of
  grossly unsanitary toilets and sinks; access to
  telephones is de minimis or nonexistent, with the
  result that many inmates have been lost to their
  families and attorneys; access to showers is rare
  or nonexistent; access to medical care and critical
  medication is sporadic at best.*fn7

Inmates crowded together on the floor of a small holding pen have had to resort to a shared plastic container to urinate and inmates in need of essential prescription medications such as methadone, dilantin and psychotropic drugs have not received them.

It is clear that high-level Department officials knew of these conditions and knew that they violated the 1989 Order. The defendants argue, nevertheless, that they should not be held in contempt because they have made good faith efforts to comply with the Order, but were prevented from doing so by events beyond their ability to predict or control.

A hearing on the motion was held on November 15, 1990. Commissioner Allyn Sielaff testified as to the Department's efforts to comply with the Order, the obstacles to compliance, and the reasons that he believes that the Department will be able to comply in the future.

The conclusion to be drawn from the record is that the violation of the Order constituted a contempt of court. There can be no doubt that by housing inmates in gymnasiums and receiving rooms without seeking a dispensation from the court, the Department willfully disregarded the Order. The Commissioner commendably acknowledged this fact when, during the hearing, he apologized for his failure to consult with the court prior to violating the terms of the Order.


"Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damage sustained by reason of noncompliance." McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949). A court may hold a party in civil contempt if (1) the order the party allegedly has failed to comply with is clear and unambiguous, (2) the proof of noncompliance is clear and convincing, and (3) the party has not diligently attempted in a reasonable manner to comply. N.Y. State Nat. Organization for Women v. Terry, 886 F.2d 1339 (2d Cir. 1989).

In the case at hand, there is no argument that the 1989 Order is unclear or ambiguous and the defendants do not dispute that they have failed to comply with it. Accordingly, the sole issue is whether the defendants have attempted diligently in a reasonable manner to comply.

The Commissioner testified that he was prevented from complying with the Order due to personnel changes, population growth, a delay in the opening of the new Nursery Beacon facility, a large number of unusable or "down" cells, and a number of unusual incidents at Rikers, including a strike by corrections officers and a demonstration by inmates, an interruption of water service, a measles epidemic, and the temporary loss of the use of two ferry boats. The Commissioner also outlined the steps which he and his staff have taken in attempting to achieve compliance.*fn8

Department figures indicate that until May of 1990, the percentage of new admissions not housed within twenty-four hours generally hovered around 1-5%, although on occasion it rose as high as 10%.*fn9 However, from May 14 through May 20, 1990, 12.5% of inmates newly admitted to city jail facilities were not housed within twenty-four hours.*fn10 In three out of four weeks in June 1990, more than 10% of new admissions were not housed within twenty-four hours.*fn11

By late June, the situation at the Anna M. Kross Center ("AMKC"), one of the facilities on Rikers Island, had attracted the attention of Richard Wolf, Executive Director of the New York City Board of Correction, who wrote to the warden of AMKC on June 29, 1990, stating:

  It is our perception that there has been a
  deterioration in the processing of inmates in and
  out of AMKC through the receiving room. . . .
  Staff explained that processing was slowed due to
  shift reductions, few available beds in the
  building, and large numbers of incoming inmates
  who refused housing, claiming they had enemies in
  the jail. . . . By copy of this letter, we are
  notifying the Office of Compliance Consultants of
  apparent violations of Judge Lasker's requirements
  that beds be found expeditiously for transferred
  inmates and those newly admitted to the
  Department's custody. Please let us know what
  steps you are taking to remedy the conditions
  described in this letter.*fn12

A copy of this letter was sent to Commissioner Sielaff.

The percentage of inmates not housed within twenty four hours rose to 18.9% in the week from July 9 through July 15, 1990.*fn13

On July 11, Theodore Katz of the Legal Aid Society wrote to Kenneth Schoen, Director of the Office of Compliance Consultants ("OCC"), citing evidence of "serious deterioration" in the new admissions processing system:

  DOC [Department of Correction] tracking reports
  reflect greater numbers of inmates exceeding the
  new admission 24-hour requirement and overload
  12-hour requirement. Reports by my staff, OCC
  staff and Board of Correction staff (see letter to
  Warden DeRosa from Richard Wolf, dated June 29),
  confirm the fact that larger numbers of inmates
  are remaining without housing beyond the Order's
  requirements and that physical conditions in the
  pens are beginning to resemble the shocking
  conditions that we brought to the Court's
  attention in last Spring's contempt

A copy of this letter was sent to Commissioner Sielaff; on July 16, 1990, Schoen himself wrote to the Commissioner urging him to pay attention to the issues raised in the letter.*fn15

On July 18, 1990, Christina Bertholf of OCC wrote a memorandum to Kenneth Schoen noting that inmates were still being housed in the AMKC receiving room and that those inmates were not receiving certain essential services such as phone calls, recreation, religious services, medical attention and daily showers. The memorandum declared that "The environmental conditions of the holding pens were unacceptable. The toilets were clogged-up and emitting a foul odor. The floors were dirty and needed to be swept and mopped." The memorandum also indicates that receiving room staff stated that there had been shift reductions at receiving room posts and that there was no medical clerk on duty to pull inmate medical records.*fn16 A copy of this memorandum was sent to Commissioner Sielaff.

On July 17, 1990, Michael Cleary, chief of the Department, issued a memorandum to Gerald Mitchell, executive director of the Department's Management Evaluation Division, in which he stated, "over the course of the past several weeks, my staff has seen a steady erosion taking place within th[e new admission tracking] process." The memorandum refers to unreliable data, computer breakdowns and discrepancies between the manual tracking system and the number of inmates actually in the receiving room.*fn17

August brought a precipitous increase in the percentage of inmates not housed within twenty-four hours: 24.2% in the first week, 67.1% in the second week, 50.7% in the third week and 37.8% in the fourth week.*fn18

The Office of Compliance Consultants' Progress Report to the court of August 17, 1990 revealed that "[s]pot checks by OCC confirm reports that adherence to the court order has deteriorated . . . [W]ords like `bedlam' and `chaos' would not be excessive in describing the conditions in the receiving room."*fn19 Upon receipt of this disturbing information, the court asked the Department for a full report of the facts. On September 10, 1990, Assistant Commissioner Toni Bair reported to the court that "A review indicates that in June 1990, the percentile for housing new admissions starts to decline." Bair reviewed the status of the measures which the Department promised to adopt in the Koehler Affidavit of April 1989. He reported that some admission posts were cut, but that all positions cut would be restored except for those in the transportation division.*fn20 A copy of the report was sent to Commissioner Sielaff.

Widespread non-compliance continued through September and October. From September 11 through September 19, 76% of new admissions to the Manhattan Detention Complex ("MDC") failed to receive housing until after they had been in receiving rooms for more than twenty-four hours. At the Bronx House of Detention, 42% of those admitted exceeded the twenty-four hour requirement. From September 18 through 24, 71.5% of admissions to the MDC, 82.8% of admissions to the Anna M. Kross Center ("AMKC") and 76.9% of admissions to the Rose M. Singer Center ("RMSC") exceeded the twenty-four hour requirement. From September 25 through October 1, 1990, virtually all AMKC admissions were in the receiving room for more than twenty-four hours. At the Brooklyn House of Detention, 31.6% of admissions were housed in violation of the Order; 31.4% of Bronx House of Detention admissions were housed in violation of the Order; 30.1% at the Otis Bantum Correctional and 38.9% at the Singer Center. Similar figures recurred throughout October.*fn21

On September 19, 1990, Gerald Mitchell, Chief of the Department of Correction, issued a memorandum to a number of wardens and assistant deputy wardens stating:

  It has come to my attention that we are falling
  out of compliance with Operations Order # 16/89
  which mandates that we house all new admission
  inmates within 24 hours of accepting them into our
  custody. It is imperative that we remain in
  compliance with this order, as it is a direct
  result of the court order from Judge Lasker. When
  we first implemented this operations order, many
  facilities were given additional posts to handle
  the volume and to man the personal computer
  tracking systems. It is my understanding that some
  of you gave up these posts as part of the post
  cuts of last winter. This is ...

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