The opinion of the court was delivered by: Baer, District Judge.
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.
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
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
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
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).
However, courts have not required a showing of "actual injury"
in order to continue relief pursuant to the PLRA when
addressing the appropriateness of relief that involves rights
other than the right of access to courts. For example, courts
reviewing the continuing viability of consent decrees that
concern prisoner health or safety have not required a finding of
actual injury. See Ruiz v. Johnson, 37 F. Supp.2d 855 (S.D.Tex.
1999) (finding PLRA's termination provisions unconstitutional
and ruling that, even if they were constitutional, prisoners
nevertheless would be entitled to relief for a variety of
systemic constitutional violations involving administrative
segregation, inmate safety, and excessive force); Benjamin v.
Kerik, 1998 WL 799161 at *4-5 (S.D.N.Y., Nov. 13, 1998) ("fire
safety protections must be afforded at a level that does not
expose the plaintiffs to an unreasonable risk of serious damage
to their future health"). The district court in Ruiz relied in
part on the Fifth's Circuit's holding that it "need not
determine whether any of [the violent] incidents individually
constituted an Eighth Amendment violation, for the evidence
established that the totality of the circumstances in the jails
were condemnable." Alberti v. Klevenhagen, 790 F.2d 1220, 1225
(5th Cir. 1986).
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.
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))).
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 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. § 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 ...