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Jones v. Goord

May 26, 2006


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


In this class action, plaintiffs challenge New York State's administration of a program for double-celling in its maximum-security prisons. Double-celling is a practice in which two prisoners are housed in a cell originally designed for one person. Plaintiffs claim that defendants' practice of double-celling some New York inmates violates the First and Eighth Amendments. With respect to plaintiffs' Eighth Amendment claims, it is clearly established that double-celling, even in maximum security prisons, does not in itself constitute cruel and unusual punishment. Rhodes v. Chapman, 452 U.S. 337, 339, 349-50 (1981). Plaintiffs nevertheless contend that the manner in which double-celling is carried out in New York violates the Constitution, because the practice results in "depriv[ing] inmates of the minimal civilized measure of life's necessities," id. at 347, and demonstrates that the New York authorities have been deliberately indifferent to the health and safety of inmates in their charge. See Wilson v. Seiter, 501 U.S. 294, 303-05 (1991).

This litigation has a long history. The complaint was filed in 1995, making it one of the oldest active cases on this Court's individual docket, and the case has been assigned to several judges over the years. The case was effectively stayed for some time pending litigation of a companion case challenging the same practice in medium security prisons. After a full trial on the merits, Judge Stein denied the plaintiffs in that case any relief, in a lengthy and careful opinion. See Bolton v. Goord, 992 F. Supp. 604 (S.D.N.Y. 1998).

On September 27, 1999, Judge Pauley dismissed portions of plaintiffs' second consolidated amended complaint, and granted in part plaintiffs' motion for class certification as to the remaining claims. Jones v. Goord, 190 F.R.D. 103 (S.D.N.Y. 1999). With respect to plaintiffs' demands for injunctive relief, the Court certified a class of all prisoners who have been double-celled in the subject facilities, and divided the double-celling class into thirteen subclasses, one for each of New York's maximum security institutions. Id. at 111-13. The Court, however, declined to certify a class or classes with respect to claims for damages, holding that "it is neither feasible nor desirable to determine monetary damages on a class-wide basis." Id. at 113. A third consolidated and amended complaint was filed in November 1999, addressing some of the deficiencies noted in Judge Pauley's decision, and extensive discovery followed, punctuated by occasional disputes requiring judicial intervention. See, e.g., Jones v. Goord, No. 95 Civ. 8026, 2002 WL 1007614 (S.D.N.Y. May 16, 2002) (denying plaintiffs access to certain electronic databases). For the most part, discovery focused on four institutions -- Attica, Clinton, Great Meadow, and Green Haven --which have been treated as exemplary. Even with this limitation, the discovery process has been exhaustive and expensive, and has consumed the energies of numerous attorneys and support staff on both sides, over a period of years.

By the spring of 2003, the parties had finally completed discovery. On the elaborate record thus compiled, defendants now move for summary judgment both as to plaintiffs' class claims and individual plaintiffs' claims for damages.*fn1 Briefing of the motions took over a year, with frequent requests for extensions of time. The motion was fully briefed by August 2004, and is now ripe for decision. Defendants' motion will be granted with respect to plaintiffs' class claims and plaintiffs' claims for injunctive relief, and the Court will reserve decision with respect to individual plaintiffs' claims for damages.


New York State operates the fifth largest correctional system in the nation. (Def. R. 56.1 Stmt. ¶ 8.) At the time defendants' motion for summary judgment was filed, approximately 65,400 inmates were in the custody of the New York Department of Correctional Services ("DOCS"). (Id.) Like many prison systems across the country, New York began to see a large increase in its prison population in the late 1980s and early 1990s, and state prisons at that time were often unable to accept inmates from local jails in a timely manner. (Id. ¶¶ 15, 17, 18.) These delays led to numerous lawsuits by various counties and municipalities, and DOCS began to discuss double-celling as a solution to the problem. (Id. ¶¶ 18-20.) After researching double-celling policies in other jurisdictions, DOCS developed a double-celling policy for New York. (Id. ¶¶ 21-26.) In mid-1995 that plan was implemented in the thirteen maximum security prisons at issue in this litigation. (Id. ¶ 27.) Those thirteen prisons contain approximately 20,000 cells, 796 of which have been converted to double cells. (Id. ¶ 2, 29.) Those 796 cells are the focus of this litigation.

While the record does not contain evidence regarding each and every one of the 796 double cells at issue, plaintiffs' expert Vincent Nathan toured the four exemplary institutions and describes the double cells he observed. (See Zilberberg Decl. Ex. B [hereinafter Nathan Rep.].)

For purposes of this motion, Nathan's descriptions of the cells will be accepted as accurate, and the following descriptions are taken from his report.*fn2

Generally, Nathan describes the double cells as "well-maintained," but also "claustrophobic, relatively dark, and cluttered with furnishings and personal property." (Id. 11.) Most of the cells have between 48 and 60 square feet of floor space, a "significant" portion of which is consumed by "bulky" metal bed frames. Nathan reports that in several cells he examined, he and his partner had a difficult time moving within the cell at the same time. (Id. 19-20.) Because most of the cells are in the interior and toward the front of the cellblock, natural light is available for the most part only from windows on the outer walls of the cellblocks.

Green Haven has 102 double cells, located toward the front of the cellblocks closest to the guards' station. Each double cell has 55 square feet of floor space and the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 12 inches wide, 18 inches deep, and 7 feet high; a sink and a toilet; a fan on a shelf in the corner; a single fluorescent overhead light; an electrical outlet; and one or two radios. No double cell at Green Haven has a window, but all double cells face a walkway which has a bank of windows.

Nathan reports that there are 32 total double cells in Clinton -- 26 in Clinton Main and 6 in Clinton Annex. Just as in Green Haven, the double cells are located toward the front of the cellblocks nearest the guards' station. All double cells in Clinton Main have 51 square feet of floor space and the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 18 inches wide, 16 inches deep, and 4 feet high; a sink and a toilet; two personal fans; a single fluorescent light on the back wall; one electrical outlet; one television provided by DOCS; one or two radios; and a fold-down writing surface (with the exception of cells in Lower F cellblock). The double cells in Clinton Annex are similar, but have 80 square feet of floor space, a window, a fluorescent ceiling light, a small shelf on the wall opposite the bed, and no television.

There are 81 double cells in Great Meadow, and, as in the other prisons, all are located at the end of the cellblocks toward the guards' station. Double cells in C block and D block have 55 square feet of floor space, while the double cells in E block have approximately 50 square feet. All double cells in Great Meadow have the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 15 inches wide, 16 inches deep, and 2 feet high; a sink and a toilet; one or two personal fans; a single fluorescent light; two clip-on lights; one electrical outlet; two televisions provided by DOCS; and one or two radios. All double cells face a walkway and a bank of windows, which provide natural light, although Nathan reports that the windows were dirty at the time of his visit to Great Meadow.

Attica has 107 double cells. Again, all double cells are located toward the front of the cellblocks near the guards' stations. Double cells in A block, B block, and D block have 48 square feet of floor space. Double cells in C block and the honor block have 60 square feet of floor space. Double cells in E block have approximately 65 square feet of floor space. All cells are generally rectangular in shape, with the exception of the honor block cells, which are L-shaped, creating "some additional degree of physical separation" for the cellmates. (Id. 18.) The double cells in C block, while rectangular, have a small alcove in which a bunk bed can fit. All double cells in Attica have the following furnishings: a bunk bed 32 inches wide, 6 feet 8 inches long, and 6 feet high; two lockers, each 15 inches wide, 16 inches deep, and 2 feet high; four plastic storage bins; a sink and a toilet; two clip-on fans; two clip-on lights; one fluorescent light; one electrical outlet; a television provided by DOCS; and one or two radios. The honor block has additional amenities, including a recreational room with a color television, a ping pong table, cooking equipment, an iron, and additional seating.

Before being placed in any cell, single or double, an inmate must first go through a screening process. Plaintiffs dispute the extent to which the DOCS screening policies are followed, both as a general matter and in specific instances, but the policies themselves are not in dispute.*fn3 Plaintiffs' claims that the below-described procedures are not followed in DOCS facilities will be addressed later in this opinion.

When an inmate is first committed to DOCS custody he is sent to a reception facility for a review of his social background, criminal history, and behavior during prior incarcerations. Inmates are then given a medical examination, including a medical history, a physical examination, various screenings, blood work, a chest x-ray, a PPD test for tuberculosis, a test for hepatitis B and C, an optional HIV test, various immunizations, and a mental health assessment.*fn4

After this initial screening, DOCS maintains a record of each inmate's health and behavior. This record includes unusual incidents ("UIs"),*fn5 disciplinary violations, medical treatment received, chronic medical problems, medications, and test results, such as the annual tuberculosis test.

Before an inmate is placed in a double cell, DOCS performs further screening. DOCS policy provides that inmates are not to be placed in a double cell if they have serious mental health problems, and inmates with less serious mental health problems can only be double-celled after close review. Inmates whose records indicate that they are victim prone, are assaultive, have a history of extreme violence, or have a history of homosexual behavior are not to be double-celled, unless more recent history shows that a particular inmate has improved or adjusted. Inmates taller than 6 feet, 5 inches or heavier than 299 pounds are not to be double-celled, and inmates older than 70 years old are not to be double-celled unless they volunteer. Prison medical staff screen inmates for communicable diseases or physical disabilities before an inmate can be placed in a double cell, and based on this screening the medical staff may conclude that an inmate should not be double-celled. DOCS policy allows HIV-positive inmates to be double-celled if they meet the general criteria. Inmates with a record of good behavior over the previous two years are exempt from mandatory double-celling, but may be double-celled on request if they otherwise meet the criteria.

Once an inmate is assigned to a double cell, he may not be double-celled for more than 60 days unless he consents to continued double-celling. However, because DOCS can move inmates to different prisons within the New York prison system, inmates often consent to remain in a double cell because refusing to do so could result in transfer to a less preferable prison farther away from New York City.*fn6


I. Representation of Subclasses

As an initial matter, defendants argue that two of the injunctive relief subclasses -- the Great Meadow subclass and the Clinton subclass -- have no named plaintiff representatives, and that therefore all claims on behalf of those subclasses should be dismissed. (Def. Inj. Mem. 20.) Additionally, defendants argue that the Attica subclass has only one named plaintiff, Anwar Abdul, and that Abdul does not raise an Eighth Amendment claim, thereby requiring the dismissal of the Attica subclass's Eighth Amendment claims. (Id.)

Plaintiffs respond by pointing out that discovery has revealed that two of the named plaintiffs -- Juan Perdomo and Herbert Junior -- were double-celled at Clinton, and arguing that they can therefore serve as class representatives for the Clinton subclass. (Pl. Inj. Mem. 31.) With respect to Attica, plaintiffs similarly point out that three named plaintiffs -- James White, Yahya Muhammad Abdullah Muntaqim, and Michael Walsh -- were double-celled at Attica, and that Abdul himself made statements in his deposition that give rise to an Eighth Amendment claim that should be read into the complaint. (Id. at 31-32.) Plaintiffs do not contend that there is a named plaintiff for the Great Meadow subclass, but represent that one could be added with little difficulty (Pl. Inj. Mem. 33 n.9.)*fn7 More generally, plaintiffs argue that all issues regarding the appropriateness of subclass representatives were decided by this Court's opinion in Jones v. Goord, 190 F.R.D. 103 (S.D.N.Y. 1999), and that therefore the approval of the subclasses and their representatives is now the "law of the case." (Pl. Inj. Mem. 32.)

Judge Pauley's opinion in Jones certified a "Double-Celling Class" defined as: "Every person who is or was incarcerated in the DOCS Facilities and who is or was double-celled in the Facilities by DOCS." 190 F.R.D. at 112. After the certification of the general class, thirteen injunctive relief subclasses were certified, one for each of the thirteen facilities at issue. Id. at 113. The Court stated that the definition of the injunctive relief subclasses would be "governed by the Court's definition of the Double-Celling Class." Therefore, for example, the Clinton subclass would be defined as: "Every person who is or was incarcerated in Clinton and who is or was double-celled in Clinton by DOCS."

Because a subclass is itself a class, each subclass must separately and independently satisfy the requirements of Rule 23 for class certification. Fed. R. Civ. P. 23(c)(4)(B) ("a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly"); see also Marisol A. v. Giuliani, 126 F.3d. 372, 378-79 (2d Cir. 1997) (stating subclasses must satisfy requirements of Rule 23(b)). The Court noted that "[b]ased on the allegations in the second amended complaint, each Injunctive Relief Sub-Class appears to meet the requirements of Rule 23(b)(2)." Jones, 190 F.R.D. at 113. No further inquiry was undertaken at that time with respect to Rule 23(b)(2), nor was any inquiry made as to whether the subclasses satisfied Rule 23(a)'s requirements. The Court did, however, explicitly note its power under Rule 23(c)(1)(C) to decertify a class "if later events reveal that the reasons for granting class certification no longer exist or never existed." Id. at 111.

In light of this Court's prior statements in Jones, plaintiffs' argument based on "the law of the case" is without merit. The Court did not claim to examine the adequacy of subclass representation, and even if there were an implicit approval of the adequacy or typicality of the subclass representatives, that approval is (as was expressly noted in the Court's opinion) subject to the Court's power under Rule 23(c)(1)(C) to revisit a certification decision. Irrespective of the prior opinion, this Court has the obligation to ensure that the requirements of Rule 23, including adequate representation, are met for each of the subclasses.

Turning then to the merits of defendants' objections to the Attica, Clinton, and Great Meadow subclasses, defendants are correct that the third consolidated and amended complaint, filed after the certification of the subclasses, identifies no named plaintiffs for the Great Meadow and Clinton subclasses, and names Abdul as the sole representative of the Attica subclass. (Compl. ¶ 16-24.)*fn8 Plaintiffs do not deny these claims, but simply seek leave to amend their complaint to include named plaintiffs for the unrepresented subclasses and claims.*fn9

Fed. R. Civ. P. 15(a) states that leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Our Court of Appeals has explained this provision of the Rule as follows:

In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.-the leave sought should, as the rules require, be "freely given."

United States ex rel. Mar. Admin. v. Cont'l Ill. Nat'l Bank & Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989). Defendants assert that the plaintiffs' requested amendments would be prejudicial because "a claim that [a named plaintiff's] rights were violated at one facility does not put defendants on notice that an inmate claims his rights were violated at a different facility." (Def. Inj. Reply 58-59.) However, the prejudice claimed by defendants falls short of that which existed in the cases they cite for support. For example, in Milligan v. Citibank, N.A., the plaintiff sought to amend her complaint to bring new claims against the defendant after a summary judgment motion had already been fully briefed. No. 00 Civ. 2793, 2001 WL 1135943, at *9 (S.D.N.Y. Sept. 26, 2001). Here, where plaintiffs simply seek to add named plaintiffs for several subclasses, the claims themselves are not "new" in any sense of the word. Defendants surely cannot claim that before plaintiffs' request to amend the complaint they were not on notice that the double-celling policies in Attica, Clinton, and Great Meadow were the subject of this litigation and were being challenged under the Eighth Amendment.

While defendants would not be prejudiced by allowing plaintiffs to amend the complaint, any such amendment would be futile for the reasons discussed in the remainder of this opinion. Accordingly, the claims involving Great Meadow and Clinton, and the Eighth Amendment claim involving Attica, will be dismissed, and plaintiffs will not be granted leave to amend the complaint to add representatives for each of those subclasses.

Notwithstanding the dismissal of these claims for lack of named plaintiffs, the merits of the claims must nevertheless be addressed. First, because defendants would not be prejudiced by permission to amend the complaint, the Court's refusal to permit an amendment is based on the futility of such amendment, a conclusion that can only be reached after considering whether an amended complaint could succeed on the merits. Second, discovery in this case has focused on four facilities -- Attica, Clinton, Great Meadow, and Green Haven. The parties have focused discovery on these exemplary facilities not because claims with respect to the facilities are the only claims at issue on this motion, but because the parties have agreed that the exemplary facilities are just that -- exemplary. Therefore, even though the claims of the Clinton subclass and the Great Meadow subclass are not now properly before the Court, the Court will consider the evidence from Clinton and Great Meadow, and evidence relating to Eighth Amendment claims from Attica, because the parties have agreed that the evidence from the four exemplary facilities in the record is representative of the evidence supporting the class's claims as a whole.

II. Summary Judgment Standard

Summary judgment shall be granted if the Court determines that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A "genuine issue of material fact" exists if the evidence is such that a reasonable jury could find in favor of the non-moving party. Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). The party moving for summary judgment bears the initial responsibility of informing the District Court of the basis for its motion and identifying those portions of the record which it believes "demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the nonmoving party bears the burden of proof on a specific issue at trial, the moving party may satisfy its initial burden by merely pointing out the absence of evidence in the record necessary to support the nonmoving party's position on that issue. Id. If the moving party satisfies this initial burden, the nonmoving party must then produce evidence sufficient to create a genuine issue of material fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 323; Matsushita v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In deciding a summary judgment motion, the Court must "resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion." Cifarelli v. Babylon, 93 F.3d 47, 51 (2d Cir. 1996). In addition, the Court is not to make any credibility assessments or weigh the evidence at this stage. Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).

To determine which facts are material, the Court must look to the substantive law that supplies the basis for the claims at issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Defendants' motion for summary judgment focuses on plaintiffs' class claims for injunctive relief under the First and Eighth Amendments and plaintiffs' individual claims for damages under the First and Eighth Amendments. This opinion will first address plaintiffs' class claims for injunctive relief under the Eighth Amendment, then plaintiffs' claims for injunctive relief under the First Amendment, and finally plaintiffs' individual damages claims.

III. Plaintiffs' Eighth Amendment Injunction Claims

A. The Legal Framework

It is indisputable that conditions of prisoners' confinement must conform to the requirements of the Eighth Amendment. See Rhodes, 452 U.S. at 345. The Constitution does not, however, guarantee prisoners freedom from any and all sorts of unsavory environs. "To the extent that . . . conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Id. at 347. The Constitution draws a line between conditions that are harsh, and conditions that are "cruel and unusual" within the meaning of the Eighth Amendment. Prisoners live every aspect of their lives completely under the State's control, and the State must exercise that control in accordance with society's standards of decency. Those standards dictate that the conditions of confinement in American prisons "must not involve the wanton and unnecessary infliction of pain." Id.

To determine whether conditions of confinement are in accord with these constitutional requirements, courts apply a two-part test. First, under the objective prong of the inquiry, a deprivation violates the Constitution only if it is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994). "The Constitution . . . 'does not mandate comfortable prisons,' and only those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson, 501 U.S. at 298, quoting Rhodes, 452 U.S. at 347, 349. To violate the Eighth Amendment, a challenged condition of confinement must lead to the "specific deprivation of a single human need." Wilson, 501 U.S. at 305. Various conditions can be aggregated to state an Eighth Amendment violation, but only to the extent that the aggregation of those conditions affects a single need, such as a lack of blankets and a lack of heat combining to deprive an inmate of warmth. Id. at 304.

When a plaintiff claims that prison officials are violating (or have violated) the Eighth Amendment by failing to protect him from harm, a prisoner need not wait for inhumane suffering to occur before obtaining relief. "It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them." Helling v. McKiney, 509 U.S. 25, 33 (1993). Therefore, the first prong of the test is also satisfied if there exists a "substantial risk of serious harm" to the prisoner. Farmer, 511 U.S. at 834. If a condition of confinement is sure to cause, or very likely to cause, needless suffering, the Constitution does not allow prison officials to ignore the offending condition. Helling, 509 at 33.

Second, under the subjective prong of the inquiry, a constitutional violation exists only if the defendants have a "sufficiently culpable state of mind." Id. The specific mental state required to make out an Eighth Amendment claim differs depending on the conduct of the defendants against which the claim is alleged. For example, a prison official who causes injury in the course of subduing a prison disturbance violates the Eighth Amendment only if he acts "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986). In cases such as the instant matter, where plaintiffs allege injury resulting from conditions of confinement, the required state of mind is "deliberate indifference" on the part of the prison officials. Wilson, 501 U.S. at 303.

The same "deliberate indifference" standard applies to claims that prison officials failed to protect plaintiffs from harm. Farmer, 511 U.S. at 834. "[P]rison officials have a duty to protect prisoners from violence at the hands of other prisoners." Id. at 833. However, not every prison scuffle is a matter of constitutional import, and the mere existence of the chance that a prisoner might be injured by another prisoner does not violate the Eighth Amendment. Even under the best of conditions, prisoners will sometimes be harmed by other prisoners, and the Constitution is not blind to that unfortunate reality. Under the "deliberate indifference" requirement, prison officials violate the Eighth Amendment only if they are subjectively aware of an "excessive risk to inmate health and safety" and do not respond reasonably to that risk. Id. at 834-38, 844; see also Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) ("The Eighth Amendment requires prison officials to take reasonable measure to guarantee the safety of inmates in their custody."). "In sum, prison officials have a constitutional duty to act reasonably to ensure a safe environment for a prisoner when they are aware that there is a significant risk of serious injury to that prisoner." Heisler v. Kralik, 981 F. Supp. 830, 837 (S.D.N.Y. 1997).

Plaintiffs allege that four particular aspects of defendants' double-celling policy violate the Eighth Amendment: the general conditions of confinement in double cells, the risk of inmate against inmate violence, injury and disease, and secondhand smoke in double cells. Each of these alleged violations will be addressed in turn.

B. Conditions of Confinement

Plaintiffs claim that there are material issues of fact regarding whether the conditions of confinement in double cells amount to an Eighth Amendment violation. (Pl. Inj. Mem. 35-37.) In support of this claim, plaintiffs point to the fact that most double cells are approximately 50 square feet and the fact that these small cells are coupled with "unsanitary conditions." (Id. 35.) The unsanitary conditions of which plaintiffs complain are the lack of floor space (Nathan Rep. 19-20), the distance between the beds and the toilets in the cells (id. 20), the amount of personal property kept in cells (id. 19-20), the smell of "a cellmate's feces and flatulence" (id. 20), and the smell that can result from a cellmate's failure to bathe frequently (Pl. Inj. Mem. 36).

A reasonable finder of fact could not conclude that these conditions amounted to an Eighth Amendment violation. The Constitution does not recognize a general amorphous "conditions of confinement" claim. Wilson, 501 U.S. at 305. Rather, plaintiffs must show how the combined effects of the above-described conditions deprive inmates of a "single, identifiable human need such as food, warmth, or exercise." Id. at 304. Here, plaintiffs make no attempt, at least with respect to their general "conditions of confinement" claim, to point to any specific human need affected by the conditions of the double cells. Instead plaintiffs simply string together a list of undesirable conditions and assert in a conclusory fashion that whether "these facts are objectively serious enough to warrant an Eighth Amendment claim is an issue of fact not properly decided at the summary judgment stage." (Pl. Inj. Mem. 35.) Summary judgment is appropriate, however, if the facts alleged by plaintiffs, taken as true, fail to rise to a sufficient level of seriousness as a matter of law.

In support of their assertion, plaintiffs cite to Karacsonyi v. Radloff, 885 F. Supp. 368 (N.D.N.Y. 1995). In Karacsonyi, the district court stated that the conditions in plaintiff's cell, which measured 115 square feet and which he shared with three other inmates, could form the basis of an Eighth Amendment violation. Id. at 370-71. However, Karacsonyi involved a motion to dismiss, not a motion for summary judgment, and the district court correctly held that the conditions of the plaintiff's incarceration could violate the Eighth Amendment if the plaintiff were able to produce evidence that the conditions led to "deprivations of essential needs." (Id. at 371.) Plaintiffs in the instant matter have had ample opportunity to find and produce evidence that the conditions of their confinement deprived them of a human need, and reliance on mere possibility will not defeat a motion for summary judgment as it defeated the motion to dismiss in Karacsonyi.

None of the alleged conditions here deprive plaintiffs of "the minimal civilized measure of life's necessities." Farmer, 511 U.S. at 833. On numerous occasions throughout their briefing, plaintiffs point to the fact that inmates are forced to sleep "mere inches" away from a toilet. It is unclear how this allegation relates to double-celling. Every cell, whether a single or a double, has a toilet, and given that the toilet is on the floor, an inmate in the upper bunk in a double cell is farther away from the toilet than he would otherwise be in a single cell. If the inmate on the lower bunk is 18 inches away from the toilet, and the inmate on the upper bunk is directly above the lower bunk 6 feet in the air, then by the Pythagorean theorem the inmate in the upper bunk would be approximately 63 inches away from the toilet,*fn10 an increase in distance of 45 inches due to the double cell's upper bunk.*fn11

Similarly, plaintiffs' complaints regarding having to deal with a cellmate's odors do not rise to the level of a constitutional violation. Sharing a cell with an individual with body odor, or an individual who does not bathe frequently, is a far cry from the "wanton and unnecessary infliction of pain" against which the Eighth Amendment protects. Rhodes, 452 U.S. at 347. Furthermore, plaintiffs' claims that double-celling subjects them to "the stench of a cellmate's feces and flatulence" ignore the fact that even in a single cell, an inmate would be subjected to the "stench" of his own "feces and flatulence." (Nathan Rep. 20.) Plaintiffs are not so bold as to expressly claim that, to borrow a phrase, their "feces and flatulence" don't stink. Without question, shared quarters increase this problem, but plaintiffs offer no evidence that such conditions present a health risk, as opposed to a mere increased degree of unpleasantness.

Plaintiffs' reliance on Williams v. Adams, 935 F.2d 960 (8th Cir. 1991), in support of their argument is misplaced. The Williams Court held that the individual plaintiff had raised an issue of fact where he provided evidence that the toilet in his cell "did not work, and that it continually [ran] over [and] leak[ed] onto the cell floor and the floor stayed filthy with its wast[e]." Id. at 962 (internal quotation marks omitted) (alterations in original). The evidence relied upon by plaintiffs -- evidence that one inmate once tried to urinate into the toilet from the top bunk but instead urinated on his cellmate, or evidence that several inmates complained that a cellmate urinated on the toilet instead of in the toilet -- is not comparable to the evidence presented in Williams. Such isolated incidents of misbehavior, or simple inaccuracy, do not signify a structural lack of proper hygiene as a result of double-celling.

Finally, the fact that inmates ignore prison regulations and keep excess property in their double cells does not establish an Eighth Amendment violation. Plaintiffs fail to present any evidence that the voluntary accumulation of personal property, even when coupled with the size of the cells, has lead to the deprivation of any identifiable human need. In any event, even if plaintiffs did establish that inmates were storing so much personal property in their cells that the resulting clutter was sufficiently grave to be characterized as cruel and unusual, it is unclear how that clutter would violate the Eighth Amendment, as it would be the inmates' own desire for personal property and their refusal to use out-of-cell storage that led to the clutter, not any "punishment" imposed by defendants.

C. Violence in Double Cells

Plaintiffs claim that defendants' policy of double-celling violates the Eighth Amendment because "inmate assaults are frequent, and can lead to serious injuries." (Pl. Inj. Mem. 37.) Plaintiffs argue that defendants' double-celling policy subjects plaintiffs to a substantial risk of serious injury from an attack by a violent cellmate -- a cellmate who, but for double-celling and defendants' allegedly inadequate screening, would not have had the opportunity to harm them.

As discussed above, "prison officials have a duty to protect prisoners from violence at the hands of other prisoners." Farmer, 511 U.S. at 833. However, as the Court has explained in an earlier opinion in this case, while "no court approves of physical violence in the correctional system, the fact is that maximum security prisons house violent offenders, and confrontations between inmates are, to some extent, inevitable . . . . Such incidents, standing alone, do not necessarily rise to the level of cruel and unusual punishment." Jones, 190 F.R.D. at 108. Rather, to make out a constitutional violation, plaintiffs must provide evidence from which a finder of fact could infer that double-celling, as practiced by defendants, results in a "substantial risk of serious harm" and that defendants know of the risk and disregard it.

In support of this claim plaintiffs produce a variety of evidence. First, plaintiffs rely on specific incidents of cellmate-on-cellmate violence described by the named plaintiffs themselves. Plaintiff Aubery Thomas states that while in a double cell he was attacked and stabbed with a razor blade by his cellmate. (Thomas Dep. 172-73.) Plaintiff Gregory Rodriguez states that one cellmate burned his foot with a cigarette lighter while he was sleeping (Rodriguez Dep. 44-45), and that a different cellmate attacked him with a knife and stabbed him in ...

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