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June 6, 2000


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

  Opinion and Order

I. Introduction

Defendants in this action, the City of New York and the Department of Corrections, et. al. (collectively the "Department") brought a motion to terminate the Consent Decrees and all supplemental orders entered in this action and the six related cases that are encompassed herein*fn1 based on the recently enacted Prison Litigation Reform Act of 1995 ("PLRA" or "the Act"), Pub.L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996).

By opinion and order date July 23, 1996, this Court held that the PLRA was constitutional and vacated the Consent Decrees. See Benjamin v. Jacobson, 935 F. Supp. 332 (1996) ("Benjamin /"). A unanimous panel of the Court of Appeals for the Second Circuit affirmed in part and reversed in part. See Benjamin v. Jacobson, 124 F.3d 162 (1997) ("Benjamin II"). Rehearing en banc was granted. On rehearing, the Court of Appeals, held that the plaintiffs were entitled to the opportunity to present evidence of current and ongoing violations of federal rights and of the need for continuation of the prospective relief provided in the Decrees. See Benjamin v. Jacobson, 172 F.3d 144 (1999) ("Benjamin III"). The PLRA provides that

Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation.

18 U.S.C. § 3626(b)(3).

By Memorandum and Order dated December 21, 1999, this Court decided that the "automatic termination" provisions of the PLRA can itself be "stayed" by court order. Benjamin v. Kerik, 1999 WL 1225264 (S.D.N.Y. Dec. 21, 1999). 18 U.S.C. § 3626(e). The PLRA requires a district court to "rule promptly" on any motion to modify or terminate prospective relief in a prison litigation lawsuit. As I observed in my December 21 Memorandum and Order,

The Act's automatic stay provision operates to automatically suspend any prospective relief — beginning, for our purposes, thirty days after the motion's filing date, 18 U.S.C. § 3626(e)(2)(A)(i) — until the date the court enters a final order ruling on the motion. 18 U.S.C. § 3626(e)(2)(B). To be sure, Section 3626(e)(3) allows a court to postpone for a maximum of sixty days the effective date of an automatic stay for good cause. 18 U.S.C. § 3626(e)(3). On November 2, 1999, the parties to this litigation stipulated to — and this Court so ordered — an agreement which recognizes that good cause exists to extend by sixty days the automatic stay provision.

Benjamin, 1999 WL 1225264 at *1.

Citing the need for additional time to engage in a meaningful review of the defendants' motion, and this Court's "inherent power to stay judicial orders in order to achieve equity" I concluded that the automatic stay provision of the PLRA must be suspended until such time as this Court ruled on the defendant's motion. Id., 1999 WL 1225264 at *2 (citing Hadix v. Johnson, 144 F.3d 925, 938 (6th Cir. 1998)). Now having had the benefit of hindsight, I am only beginning to appreciate the complexities which the defendants' motion poses for both the litigants and the Court. Indeed, the parties expended much time and effort to marshal the facts necessary to document the conditions in the Department's many prisons, prepare witnesses, and brief the issues in an expedited fashion. The hearing itself spanned five days; at times, testimony stretched well into the evening hours. Post-trial briefing consumed an additional five weeks. This Court has made every effort to decide this motion as expeditiously as the circumstances allow, but in the interests of thoroughness and fairness, and in light of the massive record and the complexity of the issues, it is not until today that this decision is rendered.

On February 7, 8, and 9, and again on February 14 and 15 of this year, hearings (the "February 7th Hearings") were held on the defendants' motion to terminate judicial supervision of the City's correctional facilities. The hearings were bifurcated, with the February 7th Hearings devoted to conditions affecting restrictive housing due process, attorney visitation, inmate correspondence, and law libraries in the defendants' prisons. Beginning on May 8, 2000, this Court held hearings with respect to environmental health conditions in the Department's prisons. This decision addresses the original Consent Decrees entered into between the plaintiffs and defendants in November 1978 with respect to the following provisions: (G) Correspondence; (O) Attorney Visiting; (R) Due Process and Programs for Detainees in High Security Categories; and (AA) Law Library. (See Stipulation for Entry of Partial Final Judgment dated November 21, 1978).

In addition to the testimony, evidence, and pleadings presented by the parties, this Court considered the written findings of OCC, the Court's independent monitor in this case. OCC was created in 1982 to act as a neutral third party to assist the defendants in achieving compliance with the Consent Decrees and related orders and to assist the parties in resolving disputes as to compliance problems. OCC was at the outset and continues to be headed by Kenneth Schoen, an expert in the field of correction and formerly the President of the Edna McConnell Clark Foundation. OCC has provided valuable services in documenting the defendants' compliance and provided the Court and the parties with regular reports assessing compliance and compliance issues. OCC has also assisted the parties in developing work plans to help bring the defendants into compliance.

President Clinton signed the PLRA into law on April 26, 1996. The Act was intended to curtail what Congress perceived to be the over involvement of federal courts in managing state prison systems pursuant to remedial orders and consent decrees. It is interesting to note that for the most part, the federal courts have served as a last resort for prison inmates, the mentally disabled, and other powerless elements in our society after conditions at institutions festered for years without remedy from the legislative or executive branches of government. Be that as it may, the Act established, inter alia, new standards for the entry and termination of "prospective relief" in civil actions concerning conditions in prisons, jails, and juvenile detention facilities. Specifically, the PLRA provides that a district court may not grant prospective relief in a prison litigation case "unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." 18 U.S.C. § 3626(a)(1)(A). "Prospective Relief" is defined as "all relief other than compensatory money damages." 18 U.S.C. § 3626(g)(7), and in the case at bar, pertains to certain provisions of the consent decrees entered into in the late 1970's between the City of New York and plaintiff class of pretrial detainees. Section 3626(b)(2) of the Act also provides that any prospective relief that was ordered before the enactment of the PLRA will be immediately terminated "if the relief was approved or granted in the absence of a finding by the court that the relief" satisfies the tripartite requirements of § 3626(a)(1)(A), unless the court makes new "written findings based on the record that prospective relief remains necessary" and meets the Act's requirements. 18 U.S.C. § 3626(b)(3).

As this Court has observed previously, the PLRA authorizes courts to "continue to define the scope of prisoners' constitutional rights, review the factual record, apply the judicially determined constitutional standards to the facts as they are found in the record and determine what relief is necessary to remedy the constitutional violations." Benjamin III, 172 F.3d at 151-52, quoting Benjamin I, 935 F. Supp. at 351. The February 7th Hearings were held to determine the need for prospective relief in this case.

II. The Lewis v. Casey "Actual Injury" Requirement

The Supreme Court's decision in Lewis v. Casey redefined the scope of the constitutional right of access to courts. 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The Lewis Court repudiated the expansive understanding of its prior decision in Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), and held that prisoners do not have a freestanding right to law libraries or legal assistance. See Lewis at 353, n. 4, 116 S.Ct. 2174. The Court found that to establish a violation of their fundamental right of access to courts, inmates, whether individuals or members of a class, must show actual injury. Id. Moreover, inmates must show "that a nonfrivolous legal claim has been frustrated or was being impeded" due to the action or inaction of prison officials. Id. at 353, 116 S.Ct. 2174.

The PLRA was enacted in order to facilitate the reduction of the federal judiciary's longstanding involvement in prison management. The requirement of showing actual injury to prove an access-to-court violation, the Lewis Court emphasized, "derives ultimately from the doctrine of standing, a constitutional principle that prevents courts of law from undertaking tasks assigned to the political branches." Lewis at 349, 116 S.Ct. 2174. The Lewis Court admitted that, of course, in some circumstances, the separate roles of the judiciary and the political branches must necessarily "briefly and partially coincide" when a court must order relief which alters an "institutional organization or procedure that causes [] harm." Id.

Plaintiffs argue that Lewis is inapplicable to this case insofar as Lewis addressed issues of proof and standing relevant to an initial determination of liability. Plaintiffs reason that the instant litigation is not a new lawsuit, and thus to prevail, plaintiffs need not "identify individual plaintiffs who are currently suffering injuries as a result of the existence of challenged conditions." (Pl. Pre-Hear. Mem. at 2.) Plaintiffs make much of the fact that final judgment was entered in this case twenty years ago, and argue that issues of standing are long settled. (See id.) However, the Benjamin III Court held that "the provisions of a consent decree that order prospective relief remain subject to modification or alteration for changes in law or circumstances. Such right as a litigant may have to prospective relief is thus neither final nor `vested' in the constitutional sense." 172 F.3d at 164.

Few courts have yet considered the intersection of a motion to terminate under the PLRA with the injury-in-fact requirement of Lewis v. Casey. This is not surprising, as few district courts have issued decisions on the merits of a motion to terminate provisions of a consent decree pursuant to the PLRA. However, the courts which have addressed the PLRA's statutory requirements in light of the Lewis decision have concluded that when plaintiffs allege a violation of their right of access to courts, they must show actual injury. See e.g., Hadix v. Johnson, 182 F.3d 400 (6th Cir. 1999); Thompson v. Gomez, 993 F. Supp. 749 (N.D.Cal. 1997).

In order to avoid termination of prospective relief regarding the Department's provision of law libraries and legal assistance, the plaintiffs must demonstrate an actual injury to the plaintiff class on a systemwide basis. See Lewis v. Casey, 518 U.S. at 351, 116 S.Ct. 2174 (1996). However, the continuation of prospective relief with respect to restrictive housing and restraint status due process does not implicate the constitutional right of access to courts, and as such, does not turn upon a finding of system-wide actual injury. Likewise, the continuation of prospective relief with respect to the Department's inmate correspondence and attorney visitation practices and procedures implicates constitutional rights other than the right of access to courts, and as such, does not turn entirely upon a finding of system-wide actual injury. Specifically, the inmate correspondence issue implicates plaintiffs' First Amendment rights; attorney visitation procedures implicate the Sixth Amendment right to counsel.

III. Law Libraries

The plaintiffs claim that Department officials have not provided an adequate law library program, in violation of their right to adequate, effective, and meaningful assistance to pursue valid legal claims in the courts. The defendants argue that the members of the plaintiff class who make between 19,000 and 22,000 visits*fn2 to the Department's law libraries each month (Tr. 704) are afforded "far more than the constitutional minimum of `reasonable access to the courts.'" (Def. Post-Hear. Mem. at 3, quoting Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995) (quoting Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977))).

A. Applicable Law

The Lewis Court noted that "we have rejected [the view] . . . that lack of access to adequate library facilities qualifies as relevant injury in fact." Id. at 360, n. 7, 116 S.Ct. 2174. The Court explained that an inmate cannot demonstrate an actual injury "simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." Lewis at 351, 116 S.Ct. 2174. Thus, this Court must determine whether the plaintiffs have demonstrated that nonfrivolous legal claims have been frustrated or impeded. See Lewis at 353, 116 S.Ct. 2174.

Pre-trial detainees' right of access to courts does not equate with any absolute right to law libraries. The Second Circuit has held that the right of access to courts is not infringed where prisoners are not supplied with an adequate prison library, so long as they were provided with appointed counsel. In Spates v. Manson, the Circuit held that "the right to represent oneself in criminal proceedings, [though] protected by the Sixth Amendment, does not carry with it a right to state-financed library resources where state-financed legal assistance is available." 644 F.2d 80, 84-85 (2d Cir. 1981) (citing Hohman v. Hogan, 458 F. Supp. 669, 673 (Vt. 1978) ("The crux of the defendant's argument is that the Bounds decision requires the State to provide Either adequate libraries Or legal assistance, not both. We agree.")). Pre-trial detainees have the right to counsel, and if they decline and choose to represent themselves, the court may appoint stand-by counsel to assist. Inmates held in the Department's facilities are entitled to legal assistance in connection with their criminal cases. "The rule is that defendant[s] ha[ve] the right to legal help through appointed counsel, and when [they] decline[] that help, other alternative rights, like access to a law library, do not spring up." United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000). Thus, whether the defendants have provided adequate law library facilities is more germane to whether conditions in the law libraries have frustrated nonfrivolous civil claims of inmates challenging conditions of confinement.

In order for an inmate to show that the library or legal assistance program hindered his efforts to pursue a civil legal claim, he must show that he encountered more than mere delay or inconvenience. Indeed, "[a] delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation." See Herrera v. Scully, 815 F. Supp. 713, 725 (S.D.N.Y. 1993) (citing Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986)). The Supreme Court elaborated on the showing that an inmate must make to demonstrate that his efforts to pursue nonfrivolous civil claims have been "hindered":

He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.

Lewis, 518 U.S. at 351, 116 S.Ct. 2174. In other words, if an inmate experienced delays in pursuing a civil claim, but files acceptable legal pleadings within court deadlines, he cannot claim that he was prejudiced by shortcomings in a prison facility's law library, because he has sustained no relevant actual injury. See Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) ("[D]efendant also acknowledges that he was able to file the brief. Consequently, he suffered no prejudice as a result of the defendants' actions.").

B. Testimony and Evidence

This Court heard the testimony of eight inmate witnesses with regard to the Department's operation of its law libraries and provision of legal assistance. It is important to note at the outset that six of the eight inmate witnesses were represented by legal counsel in their criminal cases.

Inmate Jeffrey Powell testified that he worked in the Department's George Motchan Detention Center ("GMDC") as an inmate law clerk, a position for which he claims the Department did not offer him any training. (Tr. 26). As an inmate law clerk, Mr. Powell prepared numerous legal documents for fellow inmates, and though he encountered difficulty completing them, he eventually completed all of them. (Tr. 56). Mr. Powell testified that he was unable to make a motion to reduce sentence because he couldn't find the appropriate section of the New York Penal Code, but he admitted that his counsel made a successful motion to reduce sentence on his behalf. (Tr. 54). The only motion that Mr. Powell could not finish within the time allowed by the rules was a motion regarding a lab report in his drug case that was due on a Monday, but not notarized until the preceding Friday. However, it is significant that Mr. Powell did not ask his counsel to prepare such a motion, and in fact the Monday court hearing was adjourned. Thus, the testimony of Mr. Powell does not reveal that he suffered any injury-in-fact in presenting nonfrivolous legal claims to the court.

Inmate William Jones, a law library clerk at facility "C73", testified that he attempted to research and prepare a N.Y. C.P.L.R. § 30.30*fn3 motion but was unable to do so because the relevant Criminal Procedure Law book was not available. (Tr. 110). Mr. Jones testified that he acted as his own attorney in his criminal case, with the assistance of a lawyer who served as an advisor. (Tr. 109). Mr. Jones claimed that his advisor filed a "grossly insufficient" C.P.L.R. ยง 30.30 motion on his behalf. (Tr. 111). While housed at the Department's "HDM" facility, Mr. Jones also attempted to research a motion alleging defects in his felony complaint and the supporting chemical analysis in the case against him. (Tr. 108). Mr. Jones testified that he was hindered by broken typewriters and volumes with missing pages in the HDM law library. (Tr. 108-09). Mr. Jones testified that it was as a result of ...

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