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ZOLNOWSKI v. COUNTY OF ERIE

October 3, 1996

BERNARD J. ZOLNOWSKI, JR., et al., Plaintiffs,
v.
COUNTY OF ERIE, et al., Defendants.



The opinion of the court was delivered by: FOSCHIO

 JURISDICTION

 This matter was referred to the undersigned by order of the Hon. Richard J. Arcara entered May 15, 1996. A consent to proceed before the undersigned was filed July 12, 1996.

 BACKGROUND

 This civil rights action was brought under 42 U.S.C. ยง 1983 initiated on September 9, 1995 when Plaintiff, Bernard J. Zolnowski, Jr., filed a pro se complaint on behalf of himself and all other persons similarly situated challenging conditions of confinement based on overcrowding at Defendants' local jail, the Erie County Holding Center, located at 10 Delaware Avenue, Buffalo, New York operated by Defendant Thomas Higgins, the Sheriff of Erie County and Defendant John Dray, Superintendent of the Holding Center and the Erie County Correctional Facility located in Alden, New York operated by the County of Erie and supervised by Defendant Frederick Netzel, superintendent of the facility. Plaintiff also sued the New York State Commission of Corrections, a state agency responsible for the establishment and enforcement of minimum standards regulating the conditions of confinement for incarcerated persons in correctional facilities in the state. Plaintiffs seek money damages and injunctive relief based upon alleged violations of their right to due process under the Fourteenth Amendment and the protection against cruel and unusual punishments as guaranteed by the Eighth Amendment.

 On October 4, 1995, Plaintiff Zolnowski, who had then been released from the jail, filed an amended complaint adding four other persons as plaintiffs, but signed only by himself, specifically alleging a class action for violation of these same constitutional rights. However, neither the complaint nor the amended complaint was served in accordance with Fed.R.Civ.P. 4(m). Later, on January 8, 1996, Zolnowski moved to certify the class as described in the amended complaint. The motion was opposed by Defendants by papers filed on June 17, 1996.

 Plaintiffs, represented by counsel, moved on July 16, 1996, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction and an expedited hearing. Defendants opposed the motion by papers filed July 19, 1996, and moved to dismiss for failure to state a claim and lack of personal jurisdiction based upon Plaintiffs' failure to complete service. Specifically, Defendants asserted that Plaintiffs had failed to plead a constitutional violation and were without standing to request injunctive relief in their individual capacities or as representatives of the alleged class. Defendants further moved, pursuant to Fed.R.Civ.P. 19, to add, as necessary party defendants, the New York State Division of Parole and the New York State Division of Correctional Services. The New York State Division of Parole and Division of Correctional Services opposed the County defendants' motion to add them as parties. By motion filed July 18, 1996, Defendant Commission of Corrections moved to dismiss as to itself on the ground that it was not a person subject to suit in this Section 1983 action.

 In response to Defendants' motion to dismiss under Rule 4, Plaintiffs' moved on July 15, 1996 for leave, for good cause shown, to serve the complaint and amended complaint outside the prescribed 120 day period pursuant to Fed.R.Civ.P. 4(m). Plaintiffs further moved, on July 23, 1996, for leave to file a Second Amended Complaint adding as new plaintiffs two persons then being held at the jail.

 At a hearing on Plaintiffs' motion for preliminary injunction on July 22, 1996, the court granted Plaintiffs' motion to serve the Complaint and First Amended Complaint beyond the 120 day period, granted the Defendant New York State Commission of Corrections' motion to dismiss, and denied the county Defendants' motion to add the New York State Division of Parole and Department of Correctional Services as parties. The court also denied the county Defendants' motion to dismiss in so far as it had contended that the Complaint and First Amended Complaint failed to state a claim, reserving decision on the questions of Plaintiffs' standing and Defendants' alternative contention that the First Amended Complaint had not been properly executed by all plaintiffs when filed and therefore was subject to dismissal for failure to comply with Fed.R.Civ.P. 11(a).

 On July 26, 1996, the court orally entered its decision on the record finding that Zolnowski had standing to seek both money damages and injunctive relief as to the proposed class and that the Plaintiffs, who had not executed the First Amended Complaint, should be given an opportunity to do so. The court also held that the amended complaint was not subject to dismissal as to Plaintiff Zolnowski as he had timely executed the pleading when it was filed, and that the Defendants' motion to dismiss was therefore denied in all respects. The court further found that Plaintiffs' motion for leave to file a Second Amended Complaint should be granted provided the amended complaint was served not later than July 29, 1996, the scheduled date for the commencement of the hearing on Plaintiffs' motion for a preliminary injunction.

 The hearing on the preliminary injunction was conducted over the next four days. Following the conclusion of testimony on August 2, 1996, with agreement of the parties, the court was given a tour of the Holding Center thereby enabling it to make observations of the conditions which had been described during the hearing.

 In their motion, Plaintiffs' requested that the Defendants be restrained from exceeding the maximum capacities of the Erie County Correctional Facility which is 525 prisoners, and 610 prisoners for the Holding Center. Plaintiffs contend that as a result of incarcerating persons in excess of these maxima, Defendants have created a serious risk to the health and safety of members of the Plaintiff class constituting punishment for those class members who are pre-trial detainees while housed at either facility in violation of their right to due process of law under the Fourteenth Amendment, and, for those class members who are convicted persons, cruel and unusual punishment in violation of the Eighth Amendment. Although Plaintiffs' motion for preliminary relief is directed to both the Holding Center and County Correctional Facility, the evidence at the hearing provided more of a comparison of the conditions between the two facilities than a showing of any alleged inadequate conditions at the Correctional Facility. As noted, Zolnowski lacks standing to seek injunctive relief as to the Correctional Facility and none of the Plaintiffs in the Second Amended Complaint were alleged to be confined in that facility. Moreover, in plaintiffs' post-hearing proposed findings of fact and conclusions of law filed August 9, 1996, Plaintiffs requested relief only as to the Holding Center. Plaintiffs' Findings of Fact, Conclusions of Law and Preliminary Injunction filed August 9, 1996 at 13. Accordingly, the motion must be viewed as only directed against conditions in the Holding Center. Supplemental oral argument was conducted September 26, 1996. For the reasons which follow, Plaintiffs' motion for a preliminary injunction is GRANTED in part, and DENIED in part.

 FACTS1

 At the hearing, the court received testimony from Steve Brown, a reporter and newscaster with a local television station, Channel 7, WKBW-TV, who testified about his observation of conditions at the Holding Center during a tour conducted on June 27, 1996. A video tape recording of the tour was made at that time and a copy of the tape was admitted into evidence as Plaintiffs' Exhibit A and played in court. In his testimony, and as confirmed by the video, Brown described the housing of prisoners in various areas within the Holding Center including several rooms located on the ground floor of the jail called "court hold rooms." The areas, explained in the later testimony of Superintendent Dray, were originally designed to hold prisoners while they awaited transfer to court, but the rooms are presently being used to house prisoners for various lengths of time until an individual cell became available elsewhere within the jail. The rooms are of varied dimensions ranging in size from approximately eight feet by sixteen feet for the smallest room to twenty-four feet by thirty feet for the largest, court hold room # 7. Brown testified that he saw fifteen male prisoners in court hold room # 7 lying on sleeping pads placed on the floor of the room leaving little space to move about the room a fact clearly observable on the video. The room has one toilet which is in a corner area with a bed sheet drawn across it to provide some privacy when in use. Another sequence in the video and as described by Brown shows an area, identified as the atrium, which is an area inside the jail in which both bunk beds and sleeping "mats" on the floor are used by female prisoners. In this area, about fifteen feet wide and forty-five feet long, approximately twelve bunk-beds were placed. The mats are made of course cotton stuffed inside of a vinyl-like material approximately two and one-half feet by four and one-half feet in size.

 Brown also described the use of the jail's gymnasium which is used as a living area to house about fifty prisoners by positioning one mat for each prisoner around one-half of the outer perimeter of the basketball court in the gymnasium. There was no recreational activity going on during Brown's observations in the gym. The other one-half of the basketball court was being used as a common living area for tables and chairs where the prisoners could eat their meals, play board or card games or watch television and generally use this space for every day living. Brown testified that a deputy sheriff, who escorted Brown on the tour, told him that the observed overcrowded conditions created a difficult and stressful situation for both prisoners and staff. The deputy also told Brown that although the Holding Center staff would like to do more for the prisoners in providing better living arrangements, they were unable to do so.

 The video also showed an area adjacent to one of the regular cell-blocks in which approximately thirteen persons were housed in a room measuring eighteen feet by twelve feet with about one-half of the occupants sleeping on mats; the others on bunk-beds. According to Brown, the deputy sheriff who escorted him also stated that as result of the overcrowding in the jail the prisoners' access to recreation was limited. The deputy also told Brown that it was not unusual for prisoners to be housed at the jail for two or three days and that 848 prisoners were housed in the facility that day.

 Bernard J. Zolnowski, the lead Plaintiff, also testified and described his experience at the Holding Center following his arrest on felony drunk driving charges on April 25, 1995. Zolnowski stated that after completing the standard booking procedure, he was held in one of the court hold rooms which he described as having dimensions of approximately ten feet by twenty-five feet along with fourteen other persons. Each prisoner was given one of the vinyl covered mats and a blanket for sleeping on the floor of the room. In the room there was one sink and toilet which lacked any modesty panels and was covered with a bed sheet held in place with plastic forks and spoons. According to Zolnowski, during his confinement which lasted two or three days until his subsequent transfer to the Erie County Correctional Facility, Defendant Erie County's penitentiary, the toilet in the court hold room was "filthy" and backed up at least once during his stay in the court hold room, the floor was dirty and covered with cigarette ashes, refuse from meals and dust from the blankets, and one of the other prisoners vomited in the toilet, which because of the confined area caused Zolnowski to become "physically ill." Zolnowski stated that because the benches in the room, which are attached to the walls, were themselves employed as make-shift beds by those prisoners who wished to use them in this way, the remaining prisoners had to eat their meals sitting on their sleeping mats on the floor.

 Zolnowski testified that because of the lack of space in the court hold room, some of the sleeping mats had to be located approximately one foot from the toilet. Food wastes were discarded into a large plastic trash bag kept in the room which was not removed until the end of the guard's shift, meanwhile attracting or generating numerous fruit flies. As Zolnowski also testified, the bugs, when added to the strong body odors caused by the sweaty prisoners in the room and the dirty toilet and residual effects of the vomiting, created an environment unfit for the day-to-day housing of human beings. Although Zolnowski did not say there were any other insects observed while he was in the court hold room, he did recall seeing a cockroach in a meal which was served to him when he was later assigned to a standard cell block area located elsewhere in the jail. Zolnowski stated that the court hold room (both the prisoners and jail staff commonly refer to the court hold rooms as "bull-pens") was inadequately ventilated and the prisoners were forced to sleep under bright security lights which were left on at all times. According to Zolnowski, the room lacked any outside windows, the only window being one in the hallway wall through which jail staff and other persons who may be passing through the hallway could observe the prisoners in the room.

 Zolnowski further testified that on July 7, 1995, he was sentenced on a bad check charge and transferred to the Erie County Correctional Facility, as a sentenced prisoner, for seven days, at which point he was transferred back to the Holding Center as a pre-trial detainee on his original drunk driving charges, from which he was subsequently released on September 21 1995 Zolnowski compared his experience at the Holding Center to the Correctional Facility by stating that he was treated "better as a sentenced prisoner" at the Correctional Facility than he was as pretrial detainee at the Holding Center. Zolnowski was not cross-examined.

 Frederick Netzel, superintendent of the Erie County Correctional Facility also testified. Netzel explained that the purpose of his facility was to incarcerate convicted persons for the service of their prescribed sentence involving less serious state felonies and local court misdemeanor convictions, and to provide temporary housing for pretrial detainees transferred from the Holding Center as well as convicted persons adjudicated as parole violators or parolees awaiting a hearing for an alleged parole violation.

 Additionally, the Correctional Facility is required to provide temporary housing for persons convicted of more serious state felonies and who are awaiting transfer to a more secure state operated penitentiary. Persons awaiting such transfer, including adjudicated parole violators and convicted state felons are, according to Netzel, considered as "state ready" prisoners whom, under state law, are supposed to be transferred by the state within ten days of their arrival at the Correctional Facility. However, as Netzel also explained, because of overcrowding at New York state correctional facilities, the required timely transfers of such "state ready" prisoners is often delayed thereby contributing to the overcrowded conditions at both the Correctional Facility and Holding Center. Netzel stated that as of the day of his testimony, July 30, 1996, his facility housed 133 state ready prisoners whom had been housed there for more than the maximum ten day period. According to Plaintiffs' Exhibit O, as of August 1, 1996, of the sixty-four sentenced prisoners ready for transfer to a state prison, fifty-one had been housed at the Holding Center over ten days. Further, of the thirty-eight state parole violators held in the Holding Center as of that date, seven were over ten days.

 Netzel also testified that the New York State Commission of Corrections ("the Commission") has the authority under state law to establish minimum standards for the conditions of confinement of persons in correctional facilities located within the state. According to Netzel, the Commission requires a minimum of between fifty to seventy square feet per prisoner depending upon the design of the confinement space. Plaintiffs' Exhibit D, which is a copy of the regulations as adopted by the Commission, states that the minimum living area required for an individual housing unit, i.e., a jail cell designed for one person, is sixty square feet and, in the case of multiple housing, i.e., areas in which individual cells are grouped around a common living area or "day room," the minimum area is to be fifty square feet of living space in the inmate's individual sleeping area or cell.

 In the case of that portion of the Holding Center constructed after 1977, the original effective date of the regulations in which the court hold rooms are located, such multiple housing areas are referred to podular units or "pods." The older areas of the Holding Center contain individual cells with toilets and sinks but without access to common areas like the pods. These areas are the linear cell blocks or "linears." The Commission's regulations, according to Exhibit D, also require that each inmate housed in an individual cell shall have one bed and mattress, one functioning toilet and a sink. For inmates housed in a multiple living unit like the pods, the regulation requires a minimum of one toilet, shower, and sink for every eight inmates. There was no evidence presented that the linear cells or podular areas of the Holding Center are not in compliance with the Commission's regulations.

 While Netzel confirmed that the regulations apply to his facility, he also explained that as a result of occasional intake of prisoners in excess of the maximum capacity established for his facility by the Commission, it is necessary to assign prisoners to areas within the facility that were not designed for housing, such as hallways. However, Netzel also testified that such extraordinary housing must be approved by the Commission by applying for and receiving a "variance" or permission from the Commission permitting the facility to deviate from an applicable regulation on a temporary basis. In such instances, Netzel assigns the affected prisoners a cot so that the prisoner is able to sleep off the floor and is more comfortable and able to "sleep better" than if required to sleep on a mat on the floor. Netzel stated that he found the practice of requiring prisoners sleep on mats placed on the floors of the court hold rooms at the Holding Center "troublesome." Netzel elaborated on this opinion by explaining that when a prisoner is given a cot for temporary sleeping he is able to place his personal belongings under it thereby avoiding the likelihood that other prisoners will trip over the items which, according to Netzel, is a cause for arguments that may escalate into fights between prisoners. However, even in such overcrowded conditions as exist at the Correctional Facility, Netzel takes steps to assure that the affected prisoners are all assigned bunk beds or cots and are able to eat their meals using a table and chair and that the security lights in the sleeping areas are dimmed at night to facilitate sleep. Netzel agreed that at times the Correctional Facility is overcrowded in that it has a population of both incarcerated persons serving sentences and persons detained awaiting trial who are temporarily housed at his facility because of overcrowding at the Holding Center.

 However, Netzel also stated that the Commission has granted "variances" permitting such additional housing arrangements in response to the need to house more prisoners than the facility was designed to accommodate and that the Commission regulates any additional housing of prisoners at the facility. For example, as of the day of his testimony, the facility had 634 prisoners with an approved maximum capacity of 660 including the variances granted by the Commission. In contrast, according to Netzel, the capacity of the Facility as originally designed, was 402 persons. As Netzel explained, penal institution administrators in New York state, like himself, "cannot arbitrarily move people around" to accommodate a particular need for additional housing at a facility, rather, they a have a "duty to limit housing to within what [capacity and areas within the facility] the Commission allows" including variances which may be granted by the Commission. Such variances according to Netzel, may be granted by the Commission on a monthly or even daily basis. Netzel believes that the Commission's decision to grant variances to facilities for housing of prisoners in areas of a facility which were not originally designed for such housing on a regular basis, depends upon whether the proposed space for each prisoner to be so housed is "proper and functional" for such housing. These criteria in turn are based upon the Commission's minimum standards governing conditions of confinement.

 Netzel also testified that in the Correctional Facility is free of pests. He agreed that a lack of adequate ventilation in a facility can contribute to the transmission of air-borne "diseases," a problem which, according to Netzel, does not exist at his facility. Netzel also described his facility as providing adequate recreation and religious privileges, shower facilities, medical and library services, self-improvement and job training programs for all prisoners.

 Scott Parker testified that he had been held in the Holding Center during the week preceeding the hearing on harassment charges. According to Parker, he was taken from the jail intake holding cell to one of the court hold rooms for detention awaiting court disposition of his charges or bail. Parker, who admitted having used "speed," a controlled substance the prior day nevertheless appeared credible as to the limited testimony he provided. Parker stated that the court hold room in which he was held was "overflowing" and "packed" with other male prisoners. The prisoners were given "mats" on which to sleep which, because of the large number of prisoners in the room, were placed on the floor one and one-half feet apart. The room, as described by Parker, was "filthy" with garbage on the floor of the room. The surfaces of the only toilet for the approximately eighteen persons who were then confined in the room was soiled with human waste. Although Parker's confinement lasted less than a day and one-half, he also testified that when he was given an opportunity to shower, no clean towel was provided forcing him to dry off using his own clothes. Because smoking was permitted in the room, the residual tobacco smoke combined with strong human body odor made the room "smell" and caused him "gagging" and "coughing" and to feel generally "sick." Also, as Parker testified, he was required to eat his meals on his mat which because of the crowded sleeping arrangements was located within about one foot of the toilet. Parker also complained about the temperature in the room as being as "cold as Alaska" and not being able to make a pay phone call because the phone was inoperable.

 On cross-examination, Parker stated while in the court hold room he fell asleep but was awakened a couple of times by the noise of someone using the toilet and when another prisoner stepped on him. Parker agreed that he could have moved away from the toilet when someone was using it, that there were no disturbances in the room during his stay there, and that he did not formally complain about the conditions while at the jail.

 John J. Dray, who has served as superintendent of the Holding Center since 1989, testified that overcrowding at the jail has been a problem since 1989. Dray explained that the maximum capacity of the jail was 541 in 1986 when the new addition to the jail originally constructed in the 1930's, was built. The jail had also been expanded in the 1950's to provide additional housing for prisoners. This addition provided traditional individual cells adjacent to corridors or galleries, and are referred to as the "linears." The 1986 addition provides individual cells for prisoners in a cluster or podular arrangement adjacent to common living areas or "day rooms" used by the prisoners for taking their meals seated at tables which may also be used for light recreational activity such as card or board games and watching television on permanently installed television monitors. The cells in the linear section measures approximately eight feet by nine feet or about seventy-two square feet per prisoner including a toilet and sink; in the podular areas, the cells measure roughly thirteen feet by seven feet or approximately ninety-one square feet, including space for a built in toilet and sink.

 Dray described the areas of the Holding Center which had been converted to use for housing prisoners as a result of the increased intake of pre-trial detainees and persons convicted of state crimes awaiting removal to state correctional facilities. Dray described the seven rooms located on the ground floor of the Holding Center called court hold rooms or, as Dray stated, "bullpens." These rooms range in size from eight feet by sixteen or eighteen feet to the largest room which measures approximately twenty-four by thirty feet. Each room has attached benches and a toilet. According to Dray, the court hold rooms were not designed for housing prisoners and, in total, now are used to house as many as fifty-six male prisoners. Prisoners are given individual mats to sleep and eat on during their stay in the court hold rooms while awaiting reassignment to less congested areas of the jail, or to an individual cell in either one of the newer podular units or an older cell in the linear areas. Dray estimated the time prisoners, who are all pretrial detainees, are housed in the court hold rooms to vary from as short a period as twenty-four hours to as long as one week with the typical stay of between seventy-two hours to five days. Although no statistics are compiled as to the number of prisoners and the lengths of time they are held in the court hold rooms or in any other area of the jail, Dray was confident that a period of one month of housing in a court hold room for any prisoner would be rare. Dray estimated that the space between the sleeping mats, which are either twenty-eight ...


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