The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
This decision involves several of numerous orders by this Court stemming from the consent decree that since 1978 has regulated conditions in the New York City jails. The defendants-the City of New York and the Department of Correction ("DOC"), et al.-move, pursuant to the Prison Litigation Reform Act, to terminate this Court's orders dated May 31, 2006 and May 31, 2007 (the "Heat Orders"). The Heat Orders govern the treatment of inmates designated by the DOC medical staff as "heat sensitive" and in need of air conditioning during the hottest days of summer, when the temperature rises to 85°F and above. The DOC claims that it has achieved substantial compliance with the Heat Orders and that further monitoring by the Office of Compliance Consultants ("OCC") with respect to those Orders is unnecessary.
The DOC's motion to terminate the Heat Orders is opposed both by the OCC, the independent and neutral monitor that since 1982 has reported to the Court on the DOC's compliance with the consent decree, and by the plaintiffs, a class of pre-trial detainees at the New York City jails. For the reasons set forth below, the DOC's motion to terminate the Heat Orders is denied and the Heat Orders are modified as provided herein. Plaintiffs' and the OCC's request that Dr. Susi Vassallo review various revocations of heat-sensitive status is denied.
A short history of the Benjamin consent decree and the Heat Orders' place in its penumbra may assist the reader in understanding this Court's decision.*fn1 The consent decree was the culmination of a class action lawsuit initiated in June 1975 by the Legal Aid Society of New York (the "LAS") against the City of New York (the "City") on behalf of all pre-trial detainees at the House of Detention for Men on Riker's Island, and was later consolidated with several actions involving other New York City detention facilities.*fn2 The complaint alleged that the conditions under which the detainees were held were "constitutionally impermissible." Benjamin v. Malcolm, 495 F. Supp. 1357, 1359 (S.D.N.Y. 1980). Following a trial that began in 1976, a detailed fifty-page consent decree was signed by the participants, which covered all of the City's jails. See Benjamin v. Malcom, 803 F.2d 46, 48 (2d Cir. 1986). In the spring of 1979, Judge Morris Lasker approved and entered the Partial Final Judgment by Consent that initiated an association between the federal judiciary and the DOC that would span four decades, six mayors, sixteen commissioners of corrections, two federal district court judges and frequently the Second Circuit Court of Appeals.
Judge Lasker's June 1982 Order created the OCC, which was designed to be neither a creature of the Court, the City, nor the DOC. The OCC's budget is paid by the City. The OCC drafts periodic reports to the Court that concern various areas of prospective relief that this Court has upheld pursuant to the consent decree, including environmental health, which encompasses extreme heat and cold, as well as sanitary conditions, ventilation and lighting.*fn3 Over the years, the OCC has been instrumental in assisting the parties to work out many disputes informally without depending on the Court for resolution.
Defendants move to terminate this Court's orders dated May 31, 2006 and May 31, 2007, relating to heat-sensitive inmates. As these were part of a series of heat orders, some background is presented. In July 2003, Dr. Susi Vassallo was retained to provide expertise on issues associated with heat-related illness. As a result of her report and other information supplied by the parties and the OCC, this Court, on July 26, 2004, entered its first order that addressed the potential risk to certain inmates from extreme temperature conditions and obliged the DOC to take certain precautions, triggered when the temperature reached 85°F.*fn4 Benjamin, No. 75 Civ. 3073, 2006 U.S. Dist. LEXIS 30211, at *2 (S.D.N.Y. May 18, 2006). The order provided for automatic termination on October 15, 2005 if the "OCC does not find any evidence of current and ongoing constitutional violations . . . ." Id. at *3. At the DOC's behest, this order was subsequently amended by a December 22, 2004 order, which, inter alia, listed those specific medical conditions that would render the detainee "heat-sensitive." Benjamin v. Fraser, No. 75 Civ. 3703, Order (S.D.N.Y. Dec. 22, 2004).
Due to the DOC's failure to provide contemporaneous records during the summer of 2005, the automatic termination provision was extended by Order of October 14, 2005 to December 1, 2005, further extended by Order of November 29, 2005 to December 31, 2005 and, finally, by Order of December 22, 2005, extended until such time as this Court decides that termination is proper. Benjamin,2006 U.S. Dist. LEXIS 30211, at *3.
The May 31, 2006 Heat Order, one of the Heat Orders that the DOC now moves to terminate, stemmed from an opinion earlier that month which found Defendants to be non-compliant with the December 2004 order. The May 2006 Heat Order directs the DOC to place any inmate who is designated heat-sensitive during his or her intake medical examination "immediately" in air-conditioned housing if the temperature exceeds 85°F at the time of the intake exam or is forecast to occur within forty-eight hours thereafter. Otherwise, the DOC must provide air-conditioned housing to the heat-sensitive inmate "as soon as possible" after the temperature reaches 85°F in the area occupied by him or her. Benjamin, No. 75 Civ. 3073, Order (S.D.N.Y. May 31, 2006) ("May 2006 Heat Order") ¶ 2(a)-(b). The transfer to air-conditioned housing must not exceed two hours when the transfer is within the same jail and must not exceed eight hours when the transfer is to another facility. Id. ¶ 2. An inmate may refuse to be placed in air-conditioned housing by signing a refusal form, but only so long as he or she is mentally competent, receives counseling from DOC medical staff about the risks associated with non-air-conditioned housing and the refusal form sets forth those risks. Id. ¶ 3.
The May 2006 Heat Order enumerates the conditions that make an inmate heat-sensitive: the patient receives lithium, has Parkinson's disease, requires infirmary care, is sixty-five years of age or older, has a documented history of hospitalization for heatstroke, receives one or more identified drugs that raise the risk of heat-related illness, has Type I or Type II diabetes and is sixty years of age or older, appears confused, has dementia, suicidal tendencies, depression or mental retardation or has a history of congestive heart failure or myocardial infarction. Id. ¶ 4. The Department of Health and Mental Hygiene may add or delete a medical condition from this list if medically warranted, upon prior notification to the OCC and the parties. Id. ¶ 5.
Punitive segregation inmates need not be placed in air-conditioned housing if the DOC determines that to do so would jeopardize security or safety. Id. ¶ 2(c). If the ambient temperature exceeds 85°F in punitive segregation housing, the DOC must provide extra water and ice to inmates at every meal and must monitor heat-sensitive inmates to determine if any experiences extreme weakness, headaches, lethargy, profuse sweating, vomiting or confusion. If so, the DOC must provide prompt medical attention. Id. ¶ 6.
To ensure adequate monitoring by the OCC, the May 2006 Heat Order requires the DOC to create lists of heat-sensitive inmates directly from the Notification of Patient Need for Housing forms ("designation forms") and to supply those forms daily to the OCC, which may be by fax with hard copies provided in bulk weekly. The DOC must transmit to the OCC any refusal form signed by a heat-sensitive inmate within twenty-four hours after signing. Id. ¶ 8(a)-(c).
Following the OCC's report that the DOC failed to provide documentation on a daily basis, this Court issued an order on May 31, 2007 noting that this was a "substantial . . . failure of compliance." Benjamin, No. 75 Civ. 3073, Order (May 31, 2007) ("May 2007 Heat Order"). The May 2007 Heat Order emphasizes that on any day when the temperature exceeds 85°F or is forecast to exceed 85°F within the following forty-eight hours, Defendants must "immediately remove any heat-sensitive inmate who is placed in an air-conditioned housing area where the air-conditioning units have failed and shall immediately relocate such heat-sensitive inmates to housing areas with working air-conditioning." Id. Most importantly, the May 2007 Heat Order imposes on Defendants fines for non-compliance based on documentation provided to the Court by the OCC. Id. Defendants must pay to any heat-sensitive inmate who is held in any area where the temperature reaches or exceeds 85°F $20 per hour (or fraction thereof), increasing to $50 per hour after twenty-four hours, and $100 per hour after forty-eight hours. Id.
On September 27, 2007, the OCC reported that Defendants' compliance with the Heat Orders during the summer of 2007 was 52% ("Sept. 2007 Report"). On October 22, 2007, Defendants opposed the OCC's analysis and moved to terminate the Heat Orders, claiming substantial compliance. On December 19, 2007, the OCC responded to Defendants' arguments, and on February 29, 2008, submitted a final report ("Feb. 2008 Report"), which includes a supplemental review of some inmates who were designated heat-sensitive in August 2007, for whom the OCC found a 32% compliance rate. Following the filing of additional briefs and declarations by both Plaintiffs and Defendants, this Court heard oral argument on April 16, 2008.
Pursuant to the Prison Litigation Reform Act (the "PLRA"), a federal court may not approve prospective relief unless the relief is (1) narrowly drawn, (2) reaches no further than needed to correct the infringement and (3) provides the least intrusive means to correct the violation. 18 U.S.C. § 3626(a)(1)(A) (1996). The court must give substantial weight to any adverse impact on public safety or on the operation of a criminal justice system. Id. Termination of an order granting prospective relief is not appropriate if a court finds that "prospective relief remains necessary to correct a current and ongoing violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation." § 3626(b)(3).
There exists sufficient evidence of noncompliance to warrant keeping the Heat Orders in place until this Court determines that termination is proper. As Defendants seem to have made strides toward substantial compliance, I am hopeful termination will be appropriate next year.
A. OCC Reports on the DOC's Compliance
The OCC's September 2007 Report found 52% compliance from May 15 to August 30, 2007, with respect to 253 heat-sensitive inmates. During this period, forty-four high heat days occurred. Sept. 2007 Report at 2. The OCC concluded that, although "inmates in general spent less time in non air-conditioned areas than those monitored in previous years," the transfer ...