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BENJAMIN v. FRASER

January 9, 2001

JAMES BENJAMIN, ET AL., PLAINTIFFS,
v.
WILLIAM J. FRASER, ET AL., DEFENDANTS.



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

  Opinion and Order

I. BACKGROUND

A. Factual and Procedural Background

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 under the Prison Litigation Reform Act of 1995 ("PLRA" or "the Act"), Pub. L. No. 104-134, 110 Stat. 1321, §§ 801-810 (Apr. 26, 1996).

The procedural background of the decrees is set forth in this Court's Opinion and Order dated June 5, 2000 (June 5th Order) and will not be repeated here except as is necessary. To summarize, the June 5th Order terminated the Consent Decrees pertaining to detainee correspondence and law libraries.*fn2 Thereafter, upon the joint submission of the parties, this Court entered an Order Re: Partial Termination of Consent Decrees and Supplementary Orders, dated August 30, 2000, terminating numerous provisions of the Consent Decrees and certain additional orders.*fn3 By Order dated December 15, 2000 this Court terminated (pursuant to the PLRA) three additional orders related to the Consent Decrees.*fn4

This Court's order of December 9, 1999 prescribed separate hearings for several groups of issues addressed by the Consent Decrees. The hearing on environmental health and the provision of personal hygiene supplies was held on May 8-10 and May 15-17, 2000 (the "May Hearings"). The May Hearings are the subject of this Opinion and Order.

It is worth underscoring at the outset that the Decrees cover the conditions of confinement for pre-trial detainees held on Rikers Island and several county facilities. The conditions of confinement applicable to convicted or sentenced prisoners are not an issue here.

At the May Hearings, this Court heard testimony from 18 present and former detainees in the New York City jails.*fn5 In addition, 11 prisoners gave testimony concerning environmental health and personal hygiene issues at an earlier hearing, held in February 2000.*fn6 The plaintiffs also presented testimony from Robert W. Powitz, Ph.D., an expert in the field of environmental health,*fn7 and called as an adverse witness Tanya Rodriguez Barrows, unit chief for the Mental Health Center on Rikers Island and an employee of St. Barnabas Hospital. The defendants presented the testimony of the Department of Correction's Director of Environmental Health, Patricia Feeney, who also testified as an expert;*fn8 the Department of Correction's Assistant Commissioner for Assets Management and Support Services, Vincent Cara; and the Department of Design and Construction's Assistant Commissioner who serves the Department of Corrections and the Police Department, Kuo Tsu. In addition, both parties presented documentary evidence, which included additional deposition testimony from Commissioner Cara and Director Feeney (Pl. Ex. 369 & 370) and deposition testimony of Roger Slattery, defendants' Assistant Deputy Warden for Administration at AMKC, and responsible for environmental health in the Mental Health Center (Pl. Ex. 17).

The parties engaged in discovery in this case during the latter half of 1999 and through the first four months of 2000. A review of Director Feeney's notes reveals that she conducted joint inspectional tours with the plaintiffs' expert, Dr. Powitz on the following days: November 22, 23, 24, 29 and 30, December 1, 2, 3, 17, 20, and 21, 1999 and March 15, 16, 20, 21, 22, 24, 29, and 30, 2000. Pl. Ex. 365-66. (These notes are mis-dated March 23 at Pl. Ex. 366 E066715.) Common sense supports the proposition that these visits were not unannounced.

The hearing was conducted on an expedited schedule because of the statutory prescription of the PLRA that termination motions be ruled upon "promptly." 18 U.S.C. § 3626(e)(1). Pending this and other hearings on defendants' termination motion, the court by Memorandum and Order of December 17, 1999, suspended the effect of the PLRA's "automatic stay" provision, 18 U.S.C. § 3626 (e)(2). Following submissions by both sides (on a timetable agreed upon by both sides and the Court), this matter became subjudice on September 5, 2000.

B. The Facilities

The fourteen jails under review in this proceeding currently house over 10,000 prisoners. The facilities are the Anna M. Kross Center (AMKC), the Adolescent Reception and Detention Center (ARDC), the George Motchan Detention Center (GMDC), the James A. Thomas Center (JATC), the Rose M. Singer Center (RMSC), the George R. Vierno Center (GRVC), the North Infirmary Command (NIC), and the West Facility (West) on Rikers Island; the Vernon C. Bain Center (VCBC), a "maritime facility" anchored off the Bronx; the Manhattan Detention Center, (MDC), the Queens Detention Center (QHD), the Brooklyn Detention Center (BKHD), and the Bronx Detention Center (BXHD). (The latter three have also been known as the Queens, Brooklyn and Bronx Houses of Detention.) The Correctional Institution for Men (CIFM), referred to occasionally in testimony and documents, holds sentenced misdemeanants and is not at issue in this proceeding.

C. Standard of Review

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).

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 v. Kerik, 172 F.3 d 144, 151-52 (2d Cir. 1999) (quoting Benjamin v. Jacobson, 935F. Supp. 332, 351 (S.D.N.Y. 1996).

In Rhodes v. Chapman, 452 U.S. 337, 347 (1981), the Supreme Court held that

[prison] conditions . . . alone or in combination, may deprive inmates of the minimal civilized measure of life s necessities. Such conditions could be cruel and unusual under the contemporary standard of decency that we recognized in Gamble [Estelle v. Gamble, 429 U.S. 97, 103-104 (1976)]. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.

In this case, however, because the plaintiff class is compromised of pre-trial detainees who have not been found guilty of any crime, they are not subject to punishment. See Bell v. Wolfish, 441 U.S. 520, 53 5-36 (1979). The Bell Court concluded that the conditions of a pre-trial detention facility are properly reviewed under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment. 441 U.S. at 537, n. 16.

In Kost v. Kozakiewicz, the Third Circuit had occasion to consider claims of pretrial detainees alleging inadequate medical treatment and observed that:

Pretrial detainees . . . are entitled to at least as much protection as convicted prisoners, so the protections of the Eighth Amendment would seem to establish a floor of sorts. It appears that no determination has as yet been made regarding how much more protection unconvicted prisoners should receive.

1 F.3d 176, 188, n. 10 (3d Cir. 1993); City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (the Due Process rights of a pretrial detainee are "at least as great as the Eighth Amendment protections available to a convicted prisoner.")

To make out an Eighth Amendment conditions of confinement claim, "extreme deprivations are required." Hudson v. McMillian, 503 U.S. 1, 9 (1992). To prevail in this litigation, plaintiffs' claims need not rise to such a threshold. The Department of Corrections

may subject [the plaintiffs] to the restrictions and conditions of the detention facility so long as those conditions and restrictions do not amount to punishment, or otherwise violate the Constitution.
Due process requires that a pretrial detainee not be punished. A sentenced inmate, on the other hand, may be punished, although that punishment may not be "cruel and unusual" under the Eighth Amendment.
Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Courts must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility.

In Bell the Supreme Court explained that

Restraints that are reasonably related to the institution's interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. We need not here attempt to detail the precise extent of the legitimate governmental interests that may justify conditions or restrictions of pretrial detention. It is enough simply to recognize that in addition to ensuring the detainees' presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.

Bell 441 U.S. at 540 (footnote omitted).

In a footnote the Bell Court cautioned the judiciary to be wary of second-guessing the reasoned decisions of prison administrators:

In determining whether restrictions or conditions are reasonably related to the Governments interest in maintaining security and order and operating the institution in a manageable fashion, courts must heed our warning that "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."

Bell 441 U.S. at 540, n. 23 (citing Pell v. Procunier, 417 U.S. 817, 827 (1974)).

The PLRA, which guides the review of the Consent Decrees in this litigation serves to reinforce the notion that prison administrators, not federal judges, are best suited to manage the conditions of confinement.

Defendants argue that the plaintiffs must show deliberate indifference to prevail. The parties agree that deliberate indifference means that a prison official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1994). The parties also agree that the Second Circuit has applied a standard of deliberate indifference to pretrial detainees' constitutional challenges to jail conditions in at least two cases: Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990) and Bass v. Jackson, 790 F.2d 260 (2d Cir. 1986). In Liscio, the complaint alleged that a doctor and others "were deliberately indifferent to [plaintiffs] serious medical needs while [he] was undergoing drug and alcohol withdrawal as a pretrial detainee . . . resulting in serious physical injury." 901 F.2d at 277. In Bass, the Circuit was presented with a claim of "failure to protect [] from physical harm in violation of [plaintiffs] constitutional rights under the Eighth and Fourteenth Amendments" arising out of an instance of inmate-on-inmate violence in a county correctional facility. The Bass court observed that

901 F.2d at 278.

It is worth noting that in adhering to Ayers, the Bass decision relied on a case that set forth standards applicable to convicted and sentenced state prisoners, who are subject to punishment and protected under the more stringent Eighth Amendment standards. The Bass court rejected the appellant's second claim as well, i.e., that he was not afforded prompt medical attention after an incident of violence. The Circuit there applied the deliberate indifference standard set forth in Estelle v. Gamble, 429 U.S. 97, 105 (1976) ("deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.").

Both the Liscio and Bass decisions appear to have overlooked the standard applicable to pretrial detainees set forth in Bell v. Wolfish, i.e. those decisions did not even cite Bell nor examine whether the condition challenged was "reasonably related to a legitimate goal." Bell, 441 U.S. at 539. Neither party here mentions this oversight, nor does either party take notice of a more recent decision by the Second Circuit wherein the Circuit acknowledged that

It remains unsettled . . . whether a pretrial detainee must meet the "deliberate indifference" standard of Estelle or show "gross negligence" or "recklessness" or prove conduct not amounting to intentional acts, but that is more than simple negligence to state a claim of a constitutional deprivation under the Due Process Clause. See Daniels, 474 U.S. at 334 n. 3, 106 S.Ct. at 666 n. 3 (refusing to consider whether "something less than intentional conduct, such as recklessness or `gross negligence,' is enough to trigger the protections of the Due Process Clause"); cf. City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1204 n. 8, 103 L.Ed.2d 412 (1989) (noting that question remains unresolved).

Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.), cert. denied, 112 S.Ct. 152 (1991).

Mindful that the requisite standard under the Due Process Clause remains unsettled, I find that the plaintiffs here have met the "deliberate indifference" standard with respect to certain environmental conditions in the Department's prisons. Under that standard, a plaintiff to prevail must satisfy two requirements, consisting of an objective and subjective component in order to find a prison official liable for violating an inmate's right to humane conditions of confinement. The objective component requires that the alleged deprivation be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). This test is met, for instance, when, as in this case, a claim involves a number of inhumane confinement conditions, and the court finds that, when taken together, these conditions satisfy even the stricter Eighth Amendment standards and that this occurs

when each would not do so alone, but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise — for example, a low cell temperature at night combined with a failure to issue blankets. . . . Nothing so amorphous as "overall conditions" can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.

Wilson 501 U.S. at 304-05 (citations omitted).

The subjective component requires the jail official to have a "sufficiently culpable state of mind." Wilson 501 U.S. at 297. In the context of prison-condition claims, the required state of mind is one of "`deliberate indifference' to inmate health and safety." 501 U.S. at 302-03. In other words, a prison official is liable only if he or she "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).

The Farmer Court noted that "even prison officials who had a subjectively culpable state of mind when the lawsuit was filed could prevent issuance of an injunction by proving, during the litigation, that they were no longer unreasonably disregarding an objectively intolerable risk of harm and that they would not revert to their obduracy upon cessation of the litigation." 511 U.S. 847, n. 9. And of course, under the Eighth Amendment standard, a district court must take into account "prison officials" `current attitudes and conduct.'" Id. (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).

In this case, the Consent Decrees have been in place for more than a generation, and accordingly, the Department, qua Department cannot demonstrate that it did not have actual knowledge of any conditions which are unconstitutional from an objective standpoint. The deficiencies shown at trial are largely the continuations of deficiencies that have been known, obvious, and commented upon by the Office of Compliance Consultants ("OCC")*fn9 and plaintiffs' counsel for years, (See App. 1, Section T), and that have been the subject of further court orders between the entry of the Consent Decrees and the present proceedings. While past actions that have failed to cure or avert the harm at issue may have appeared reasonable at the time, "patently ineffective gestures purportedly directed towards remedying objectively unconstitutional conditions do not prove a lack of deliberate indifference, they demonstrate it." Coleman v. Wilson, 912 F. Supp. 1282, 1319 (E.D.Cal. 1995), appeal dismissed, 101 F.3d 705 (9th Cir. 1996). In this case, the Court must focus on any continuing and ongoing violations of plaintiffs' constitutional right to adequate shelter and environmental health conditions, and the defendants' good intentions, without more, cannot constitute grounds to terminate the Consent Decrees.

II. REVIEW OF CONDITIONS

A. Ventilation

A lack of adequate ventilation in a detention facility can contribute to the transmission of air-borne diseases, a problem which, is magnified for detainees who have compromised immune systems as a result of HIV infection or suffer from asthma or other respiratory ailments. Dr. Powitz, relying on information from New York City Health and Hospitals Corporation, testified that approximately 9,000 asthmatics passed through the New York City jails in 1999. (Tr. 432-33.) inadequate ventilation also undermines efforts to maintain minimum levels of sanitation within the Department's facilities, providing an environment where mildew, mold, rust, and bacteria can flourish.

In Hoptowit v. Spellman, the Ninth Circuit affirmed the finding of the district court which concluded that the lack of adequate ventilation violated the Eighth Amendment. 753 F.2d 779, 783 (9th Cir. 1985). The Tenth Circuit has held that prison officials must provide "reasonably adequate ventilation" to inmates. Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981). In Ramos, the record indicated that the prison failed to meet the "minimal health and safety needs of the prisoners", in part, because, "[i]nadequate ventilation, especially in the cells and shower areas, results in excessive odors, heat, and humidity with the effect of creating stagnant air as well as excessive mold and fungus growth, thereby facilitating personal discomfort along with health and sanitation problems." Id. at 569. This court found that such conditions were "`grossly inadequate and constitutionally impermissible.'" 639 F.2d at 570.

Ventilation involves two facets: supply of fresh air and exhaust of impure air. Ventilation may be achieved through either active or passive means. Active ventilation is commonly used in sealed buildings with few apertures, and involves the use of mechanical air delivery and exhaust systems. Passive ventilation relies on the exchange of air through open windows.

The parties disputed how to measure whether a particular area within a jail receives adequate ventilation. Director Feeney testified that the Environmental Protection Agency ("EPA") "would actually recommend that you use carbon dioxide as an indicator to check for ventilation problems and air-quality problems." (Tr. 795.) Director Feeney further testified that according to the EPA and the American Society for Heating, Refrigeration and Air Conditioning Engineers (ASHRAE), carbon dioxide levels between 600 and 1000 parts per million are considered acceptable and a level below 600 parts per million is considered excellent. (Tr. 797.)

Dr. Powitz did not measure the levels of carbon monoxide or carbon dioxide present in the air at the Department's facilities. (Tr. 794.) Instead, Dr. Powitz opined that air quality should be measured by whether the ventilation system removes particulates, aldehydes, and odors from the air. (Tr. 493.) The presence of environmental tobacco smoke, condensate from showers and odors from the prison cells themselves were also relevant to indoor air quality in Dr. Powitz's opinion. (Id.) When asked how carbon monoxide and carbon dioxide was relevant to air quality, Dr. Powitz stated

Carbon dioxide is [relevant] if under crowded conditions we look at the concentration of carbon dioxide in the absence of air movement and people. Carbon monoxide comes from internal combustion sources such as motors, some from environmental tobacco smoke.

(Tr. 494.)

Dr. Powitz testified that the consequences of inadequate ventilation in the Department's facilities are myriad. As noted, poor ventilation can exacerbate asthma and allergies, and allows molds, mildews and bacterial shines to accumulate fester in shower rooms and restrooms where moisture-laden air is not exchanged and refreshed. (Tr. 547-48.) Lack of ventilation in chronically wet areas can also lead to "profound" deterioration of surfaces including floors, walls, ceilings, and windows. (Tr. 547.)

Dr. Powitz testified that he found the ventilation systems at OBCC, VCBC, West Facility, and MDC to be operational, but explained that the MDC system was not functional. (Tr. 746.) Plaintiffs contend that but for BKHD,*fn10 QHD, VCBC, and West Facility, each of the ten remaining institutions fails to pass constitutional muster. Problems with respect to adequate ventilation in each of the ten remaining institutions follows:

AMKC

The ventilation situation in AMKC presents a mixed picture. Dr. Powitz testified that "maintenance people told us that frilly 10 percent of the windows were actually broken." (Tr. 549.) On November 22, 2000, there was no ventilation in C-71, the mental health unit within AMKC because the windows were "inoperable", and thus that area "was rather malodorous." (Tr. 549, 552.) Further, lack of ventilation was also observed in the dorm toilet areas, and in Upper 9 (a mental observation unit) and Lower 1, there was no ventilation at all. (Tr. 549.) Director Feeney noted the following deficiencies with respect to 6 of 16 AMKC housing areas:

Mod 9 A: "Ventilation inoperable" (Pl. Ex. 365 at E06547) Mod 6 B: "Exhaust registers were very dirty" (Id. at E06547) Upper 9: "Ventilation was poor" (shower area) (Id. at E06548) 5 Lower: "Ventilation was not operable" (Id. at E06548) Lower 1 and Lower 3: "Ventilation was inoperable throughout both houses."

(Id. at E06550.)

Director Feeney's report of April 10, 2000 reflects that "Four exhaust fans were installed in AMKC for Lower 1 and 3" and that "[t]he Supervisor of Mechanics estimates that the wiring will be completed by the middle of May [2000] for these units." (Defendants' Exhibit ("Def. Ex.") F-1 at 6.) Commissioner Cara testified that he was only aware of ventilation problems in Lower I and 3, part of the Mental Health Center. (Pl. Ex. 370 at 352)

This description of the ventilation system at AMKC does not support the plaintiffs' contention that the majority of detainees are subjected to conditions of inadequate ventilation. The evidence does not show inadequate ventilation in the residential areas of AMKC, however it is clear that the Department does not provide adequate ventilation in C-71 and Upper 9. For this reason, the Court will enter an order directing the Department to take immediate remedial measures with respect to ventilation in the mental observations units of AMKC.

ARDC

According to Director Feeney's notes taken during tours of ARDC in November of 1999:

Ventilation was inoperable throughout the entire building. The Supervisor of Mechanics stated that a ventilation project was underway in the facility and more than 20% of the areas were restored. However, ventilation was not provided in any area inspected and the Supervisor of Mechanics was not able to inform Dr. Powitz of the areas that were already restored.

(Pl. Ex. 365 at E06554.)

Moreover, the exhaust registers in the Intake/New Admission areas were noted as "dirty throughout." (Id. at E06557.) A minority of the ventilation registers in the cells inspected were observed to be "dirty" or "excessively dirty." ((Id. at E06556, E06561, E06566, E06567, E06571, E06572.) However, at her deposition on April 13, 2000, Director Feeney testified that 75% of the exhaust units at ARDC had been repaired since November 1999. (Def. Ex. X-7 at 377.)

Additionally, Dr. Powitz testified that the beds in Modular 10 were placed head-to-head, rather than six feet apart which is required to minimize disease transmission. (Tr. 690.) Dr. Powitz explained that droplets emanating from one person's mouth remain airborne for at least three feet, but that most will not travel as many as six feet, which is why the beds should be placed that far apart. (Tr. 690-91.)

BXHD

Dr. Powitz testified that BXHD relies on an active ventilation system as well as air from windows, which are located across a catwalk from the prisoners and although barred, are inaccessible to the prisoners. (Tr. 557.) (Pl. Mem. at 17.) Further, Dr. Powitz explained that "many of the window controls were either missing or broken and that [a] request had been in for window replacement. (Tr. 557-58.) He found "very few windows in any cellblock . . . that could be open for cross ventilation." (Tr. 558.) Defendants smoke tests of certain areas of BXHD indicated that there was no exhaust in two of five cell areas tested on the fifth floor and that there was non-detectable exhaust in two areas of the third floor. (Def. Ex. F-b.) However, defendants point out that the carbon dioxide levels of all of the areas tested at BXHD were below 600 parts per million, and thus argue that air quality is excellent under prevailing EPA and ASHRAE standards. (Def. Mem. at 21.)

On these facts, I find no current and ongoing violation with respect to adequate ventilation at BXHD.

GMDC

The notes taken by Dr. Powitz regarding his fall 1999 visit to GMDC indicate that there were ventilation problems in almost every housing area inspected. (Pl. Ex. 106 at P84-P 128.) Director Feeney's report states that "numerous ventilation units were inoperable at the facility" but that as of April 10, 2000, "sixty percent of the exhaust units were repaired by service contracts." (Def. Ex. F-1 at 18.) Plaintiffs draw the inference that forty percent of the ventilation thus remains inoperable at GMDC. (Pl. Mem. at 17.) Commissioner Cara testified at his deposition that he was unaware of the status of any efforts at GMDC with respect to ventilation. (Pl. Ex. 370 at 356-357) ("I haven't been asked for assistance on it so I don't know.")

On this record, I cannot help but conclude that inadequate ventilation at GMDC constitutes a current and ongoing violation of federal law.

GRVC

The notes taken by Director Feeney during her fall 1999 inspection of GRVC indicate that ventilation registers were inoperable in a significant minority of cells surveyed. (See Pl. Ex. 365 at E06628 to E06644.) Additionally, a minority of cell exhaust registers were dirty and a minority were clogged with paper or otherwise rendered inoperable by detainees. (See id.) Air flow readings taken by Dr. Powitz with a velometer in a number of GRVC's buildings indicated that the ventilation system was operable. (Def. Ex. F-1 at 24.)

Detainee witness Keith Todd testified that during the fall of 1999 in GRVC's "5 Block", the heat was turned up in the cell housing area until his throat and nose dried up. He indicated that there was a window in the cell, but that "no air is circulating if you have the door closed. The door was locked whenever it was lock in time, which included every day from "quarter to eleven at night until about 8:30 the next morning." (Pl. Ex. 16 at 135-136.)

Detainee witness Ralph White reported that he was housed in a cell area in 6B, which was very hot and humid. He testified that "there is ventilation but the only ventilation is the windows which the screens are murky so there is no ventilation really coming in or going out. (Tr. 249.)

Detainee witness Blake Wingate was housed in GRVC in the summer of 1999. He described GRVC as "a new building and like this courtroom is air conditioned GRVC is supposed to be air conditioned. But the officers turn the air conditioner on in their bubble cube and they don't turn it on for us[.]" (Tr. 334.) He went on to explain that there was no ventilation, because "when the air is off, that is it. And GRVC — it was ...


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