343 F.3d 35, *; 2003 U.S. App. LEXIS 18109, **

JAMES BENJAMIN, ET AL., Plaintiffs-Appellees-Cross-Appellants, v. WILLIAM J. FRASER, Commissioner of the Department of Correction of the City of New York, ET AL., Defendants-Appellants-Cross-Appellees.

Docket Nos. 01-7533 (L), 01-7876 (Con)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

343 F.3d 35; 2003 U.S. App. LEXIS 18109

March 26, 2003, Argued
September 2, 2003, Decided

OPINION


[*39] B. D. PARKER, JR., Circuit Judge:

This appeal concerns the effect of the Prison Litigation Reform Act of 1995 ("PLRA"), [**2] Pub. L. No. 104-134, 110 Stat. 1321 (1996), on consent decrees settling seven class actions brought by pretrial detainees challenging the conditions of confinement at fourteen jails in New York City. At issue now are environmental and related health conditions at these institutions. When defendants-appellants, the City of New York, the Department of Correction ("DOC"), and various of its officials (collectively, "the City"), moved under the PLRA to terminate previously ordered prospective relief, the district court was required to consider whether the environmental health provisions of the decrees remained necessary to correct ongoing violations of federal law and whether the provisions were narrowly drawn and the least intrusive means for correcting the violations. See 18 U.S.C. § 3626(b)(3) (1993). The court also addressed whether the Office of Compliance Consultants ("OCC"), which had been appointed to monitor compliance with the consent decrees, was subject to the PLRA's provisions governing special masters. See 18 U.S.C. § 3626(f). In a series of orders, the court terminated some elements of [*40] prospective relief and ordered [**3] the continuation, with modifications, of others. It also determined that since the OCC was not a special master, it was not subject to the PLRA's provisions governing special masters. The parties cross-appealed. We affirm in part and vacate and remand in part.

BACKGROUND

I. History of Litigation

In 1975, pretrial detainees in fourteen facilities in New York City 1 brought seven related class actions in the Southern and Eastern Districts of New York alleging that they were subject to unconstitutional conditions of confinement. 2 In 1978 and 1979, the parties entered into consent decrees purporting to resolve the detainees' complaints. Familiarity with the consent decrees and with the litigation concerning them during the ensuing twenty-five years is assumed. Enforcement of these decrees and related orders generated judicial involvement in "more than thirty discrete areas of prison administration." Benjamin v. Jacobson, 124 F.3d 162, 165 (2d Cir. 1997) ("Benjamin II"). Among other things, the decrees sought to

ensure that detainee mail and property are handled properly, and that procedures in concert with constitutional protections are followed [**4] during detainee cell and body searches. On an institutional level, the Consent Decrees seek to maintain the physical plant of the jails in a condition safe for human habitation. They mandate that attention be given to vermin and insect control, sanitation, maintenance and refuse removal. Other provisions govern food services to the detainees and ensure that the detainees are adequately fed while in custody, with food that is prepared and served in a sanitary environment.

Benjamin v. Jacobson, 935 F. Supp. 332, 337 (S.D.N.Y. 1996) ("Benjamin I").

FOOTNOTES

1 These 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"), the Manhattan Detention Center ("MDC"), the Queens House of Detention ("QHD"), the Brooklyn House of Detention ("BKHD"), the Bronx House of Detention ("BXHD"), and the Correctional Institute for Men ("CIFM"), which is not involved in this proceeding. [**5]

2 See Benjamin v. Malcolm, 75 Civ. 3073 (S.D.N.Y.); Forts v. Malcolm, 76 Civ. 101 (S.D.N.Y.); ; Maldonado v. Ciuros, 76 Civ. 2854 (S.D.N.Y.); Detainees of the Brooklyn House of Detention for Men v. Malcolm, 79 Civ. 4913 (E.D.N.Y.); Detainees of the Queens House of Detention for Men v. Malcolm, 79 Civ. 4914 (E.D.N.Y.); Rosenthal v. Malcolm, 74 Civ. 4854 (S.D.N.Y.).


In 1982, the consent decrees were consolidated before Judge Morris E. Lasker of the Southern District of New York. After the agreement of the parties, Judge Lasker ordered the creation of the OCC, a neutral third party, to monitor and assist with compliance efforts. Between 1982 and 1987 the OCC was continued by agreement of the parties. Thereafter, pursuant to biannual orders of the district court, the OCC continued to operate with its responsibilities and activities periodically adjusted. See Benjamin v. Fraser, 156 F. Supp. 2d 333, 336 (S.D.N.Y. 2001) ("Benjamin VIII").

Before enactment of the PLRA, the district court, because of [**6] changed conditions or changes in the law, was asked from time to time to modify or terminate various remedial provisions of the consent decrees. [*41] See, e.g., Benjamin v. Koehler, 710 F. Supp. 91 (S.D.N.Y. 1989) (denying defendants' motion for temporary modification of decree concerning population limits in order to accommodate increase in jail population); Benjamin v. Malcolm, 156 F.R.D. 561 (S.D.N.Y. 1994) (denying defendants' motion for modification of court order and decree provision concerning food preparation). When the PLRA came into effect in April 1996, however, and after the City swiftly moved for termination of the consent decrees, judicial scrutiny of the propriety of various categories of prospective relief in the decrees came to be required. The Act provides that any prospective relief (defined broadly by 18 U.S.C. § 3626(g)(7) as anything other than compensatory monetary damages) must be terminated if it was ordered in the absence of

a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive [**7] means necessary to correct the violation of the Federal right.

18 U.S.C. § 3626(b)(2). 3

FOOTNOTES

3 We refer to these findings as "need-narrowness-intrusiveness" findings. The termination provision is limited by a provision directing courts not to terminate prospective relief if it finds that such relief "remains necessary to correct a current and ongoing violation of the Federal right" and otherwise meets the need-narrowness-intrusiveness test. 18 U.S.C. § 3626(b)(3).


Responding to the City's motion, the detainees acknowledged that the relief in the consent decrees and related orders had been entered without the PLRA-mandated findings and that the record, as it stood, did not support such findings. They argued, however, that the PLRA was unconstitutional. See Benjamin v. Jacobson, 172 F.3d 144, 151-52 (2d Cir. 1999) (en banc) ("Benjamin III"). In Benjamin I, the district court rejected their constitutional challenge, granted [**8] the City's motion for immediate termination, and vacated the consent decrees. On appeal, in Benjamin II, a panel of this court affirmed the district court's determination that the PLRA was constitutional, albeit under different reasoning, but reversed the vacatur of the consent decrees. The panel reasoned that the PLRA did not require the termination of consent decrees without the mandated need-narrowness-intrusiveness findings but merely prohibited their enforcement in federal court, with the parties free to enforce them in state court.

We then reconsidered these conclusions en banc and vacated the panel decision, concluding "that the Act provides for the termination, though not the annulment, of consent decrees that do not meet the need-narrowness-intrusiveness criteria established by the Act; that plaintiffs' constitutional challenges to the termination provision were properly rejected," but also "that plaintiffs were entitled to an opportunity to show, in accordance with the Act, that any or all of the prospective relief ordered by the Decrees should be continued." Benjamin III, 172 F.3d at 154. 4 We remanded so that they could have this opportunity. [**9]

FOOTNOTES

4 On remand, the district court terminated various provisions of the consent decrees concerning such things as correspondence, law libraries, and contact visits. We affirmed the district court's decision not to terminate the consent decrees relating to attorney visitation and the use of restraints. Benjamin v. Fraser, 264 F.3d 175 (2d Cir. 2001) ("Benjamin V"), affirming Benjamin v. Kerik, 102 F. Supp. 2d 157 (S.D.N.Y. 2000) ("Benjamin IV").


II. Environmental Health Rulings

In May 2000, the district court considered various environmental health and hygiene issues at the jails, taking testimony [*42] from eighteen present and former detainees. 5 The detainees presented testimony from Robert W. Powitz, Ph.D., an expert in the field of environmental health. The DOC's Director of Environmental Health, Patricia Feeney, provided expert testimony for the City. See Benjamin v. Fraser, 161 F. Supp. 2d 151, 154 (S.D.N.Y. 2001) ("Benjamin VI [**10] ").

FOOTNOTES

5 The district court had previously heard testimony from eleven prisoners concerning environmental health and hygiene in a February 2000 hearing, which it also considered in entering the orders on appeal. See Benjamin v. Fraser, 161 F. Supp. 2d 151, 154 (S.D.N.Y. 2001) ("Benjamin VI").


In its first order on environmental health conditions, the district court addressed eleven categories: (1) ventilation; (2) air temperature; (3) plumbing; (4) vermin; (5) food service; (6) personal hygiene and laundry services; (7) sanitation in non-medical areas; (8) lighting in non-medical areas; (9) noise; (10) medical areas; and (11) modular units. It found no ongoing violations of federal law with respect to plumbing, vermin control, food service, or personal hygiene and laundry services, but it found constitutional violations in certain facilities with respect to ventilation, air temperature, sanitation in non-medical areas and some medical areas, lighting, noise, and modular units. The court [**11] then directed the parties to submit recommendations for prospective relief. See Benjamin VI, 161 F. Supp. 2d at 160-89.

Both parties moved for reconsideration. The detainees requested that the court reconsider its decisions concerning ventilation at two facilities and sanitation conditions at two other facilities. The City principally sought clarification of certain elements of the court's decision. The district court granted in part and denied in part both motions. See Benjamin v. Fraser, 2001 U.S. Dist LEXIS 3173 (S.D.N.Y. Mar. 22, 2001) ("Benjamin VII"). It then solicited agreement on appropriate relief. On April 26, 2001, the court issued its "remedial order," directing the City to take various actions and, over its objections, ordering the OCC to continue to monitor certain aspects of compliance. The court ordered prospective relief in the areas of general sanitation, air temperature, ventilation, heating, lighting, noise, and sanitation in clinics and medical areas. The City appeals this order (01-7533).

The parties again cross-moved for reconsideration. Although these motions mostly raised narrow, technical issues, both parties [**12] also asked the court to determine whether the continued existence of the OCC complied with the "special master" provisions of the PLRA, 18 U.S.C. § 3626(f), and met the Act's need-narrowness-intrusiveness test. In still another decision, discussed in greater detail below, the court held that the OCC was not precluded by the PLRA. It also granted in part and denied in part other narrower requests for relief. See Benjamin VIII, 156 F. Supp. 2d 333. Both parties appeal from this order (01-7876(L), 01-7934 (XAP)).

In October 2001, the City moved for reconsideration or, alternatively, for a partial stay pending appeal. See Fed. R. Civ. P. 60(b) and 62(c). The district court denied this motion. Benjamin v. Fraser, 2002 U.S. Dist LEXIS 1228 (S.D.N.Y. Jan. 25, 2002) ("Benjamin IX"). The City appeals from this decision (02-7115). 6 [*43]

FOOTNOTES

6 In March 2002, the City moved in this Court for a stay of limited aspects of the district court's orders. By order dated April 23, 2002, we granted a stay of three provisions of the district court's orders, mandating schedules for the completion of three projects: creating a six-foot separation between all inmate beds, completing the remaining shower renovations, and replacing lighting fixtures.


[**13] DISCUSSION

I. Standard of Review

Generally, we review "questions of law de novo, [] questions of fact for clear error, and [] matters of discretion for abuse of discretion." Benjamin V, 264 F.3d at 184. Accordingly, the district court's factual findings regarding the conditions at the facilities are reviewed for clear error, but its conclusions about their constitutionality are reviewed de novo. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); see also United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993) ("We review the district court's findings of historical fact in this case for clear error, but we review its ultimate resolution of the constitutional due process issue de novo.").

Yet, as the First Circuit has recognized, see Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 661 (1st Cir. 1997), this fact/law dichotomy may be somewhat too blunt a tool for the delicate task of reviewing the constitutional issues at hand, since some of the conclusions we must review do not involve questions exclusively of law or fact. Many rest squarely within the [**14] district court's duty as fact finder; yet some ostensibly factual findings implicate constitutional conclusions. An example is whether food-service sanitation implicates the safety of the detainees to a constitutional extent. In evaluating the district court's resolution of such an issue, the appropriate standard of review turns on the nature of the finding or conclusion being challenged, that is, whether the challenge concerns the conditions the court found to exist or the court's conclusion about whether those conditions implicated the Constitution. See id.

II. OCC and PLRA Special Master Provisions

We first consider whether the OCC's continued participation in this litigation on the terms ordered by the district court comports with the PLRA.

A. OCC's creation and continuation

As we have seen, the district court has long used the services of the OCC as a neutral third party to assist the litigants in the implementation of the consent decrees and in dispute resolution and to assist the court in monitoring the City's compliance with its obligations. 7 The OCC was created in 1982, when the parties agreed by stipulation to hold in abeyance a contempt motion [**15] filed by the detainees, whose agreement to postpone consideration of the motion was predicated on the OCC's creation. Between 1982 and 1987, the parties consented to renewals of its mandate. In 1987, however, when the parties were unable to agree on the terms of renewal, the district court renewed the OCC's mandate after finding that the OCC's existence was necessary to ensure compliance with the consent decrees. (See Jan. 6, 1997 Mem. and Order, Benjamin v. Jacobson, 1997 U.S. Dist. LEXIS 55, 75-Civ-3073, at 2). 8 [*44]

FOOTNOTES

7 The court's 1995 OCC order, which contains its fullest description of the OCC's responsibilities, is illustrative of the OCC's general mandate. This order describes the OCC as a "neutral third party [serving] to advise and assist the defendants in achieving compliance with the Consent Judgments and informally to assist the parties in resolving disputes as to compliance with the Consent Judgments." (1995 OCC Order, 95-Civ-3073, at 2). The order also gives its director a variety of information-gathering powers, directs him to make reports to the court concerning compliance status, problems and recommendations, and sets the OCC's staff and compensation. (Id.). [**16]

8 Also in 1987, the parties and the OCC agreed on a plan contemplating disengagement from the consent decrees pursuant to a two-step procedure. First, for each individual issue addressed by the decrees, the City would be entitled to certification of compliance by the OCC by meeting certain conditions. Then, after certification of compliance on an issue, that issue would undergo a "compliance verification process," subject to OCC monitoring for a pre-set period. Once a verification period was completed successfully, that issue would be withdrawn from active monitoring. (May 21, 1987 Disengagement Plan). Notwithstanding the parties' agreement to the disengagement plan, since 1987 the OCC has owed its continued existence, at least in part, to approximately biannual court orders. Benjamin VIII, 156 F. Supp. 2d at 336.


Following enactment of the PLRA, the City objected to the continued participation of the OCC, asserting that the terms of its continuation would now have to comply with the special master provisions of the Act, which would require, among other things, that the OCC [**17] be compensated by funds appropriated to the judiciary instead of by the City. 9 Tying the OCC to these provisions would likely render its continued involvement impracticable. The district court ordered the continuation of the OCC, based on its determination that it continued to play a necessary and beneficial role in monitoring and assisting the City's compliance efforts and the court's desire to maintain the status quo in light of our stay pending appeal of its order holding the PLRA to be constitutional. (See Jan. 6, 1997 Mem. and Order, aff'd, Benjamin v. Jacobson, 122 F.3d 1055, 1997 WL 560944 (2d Cir. Sept. 10, 1997) (unpublished table decision)).

FOOTNOTES

9 The City has funded the OCC since its inception.


In its remedial order, the district court renewed and adjusted the OCC's mandate, giving it substantial responsibilities for monitoring environmental conditions in the various facilities. (See Apr. 26, 2001 Order at 3-7). In a separate order, the court considered whether the existence [**18] of the OCC was consistent with the special master provisions of the PLRA, 18 U.S.C. § 3626(f). Although noting that the OCC was not, in its view, a special master as defined by the Act, the district court concluded that the OCC was, in any event, not subject to § 3626(f) because that section expressly "does not apply to pre-enactment court authorizations." Benjamin VIII, 156 F. Supp. 2d at 338. Moreover, the court found that even if the temporal reach of the Act were not clear, "applying the special master provision to extant institutions like OCC would have an impermissible retroactive effect." Id. at 339.

The City argues that (1) the OCC is a "special master" under § 3626(f); (2) its monitoring activities exceed the PLRA's limitations on the powers of special masters; (3) after enactment, the OCC is subject on an ongoing basis to the PLRA's limitations on the appointment, compensation, and powers of special masters; and (4) even if it is not a special master, the OCC is still prospective relief, subject to the Act's need-narrowness-intrusiveness test.

B. OCC is not a special master

Although concluding that the "OCC [**19] is not now, and never has been, a special master as defined by the PLRA," the district court did not rest on that ground, apparently because it viewed that conclusion as leaving open the question whether "the PLRA's special master provisions leave intact the power of courts to appoint entities of a different stripe, like OCC." Benjamin VIII, 156 F. Supp. 2d at 335. We see the matter somewhat differently. If the OCC is not a special master, then the provisions in the Act applicable to special masters do not apply to the OCC [*45] and would not bar its participation. 10 Because we agree with the district court that the OCC is not a special master under the PLRA, we also agree that continuing to use it does not violate the Act.

FOOTNOTES

10 The City has not argued that anything other than the PLRA bars the district court's use of the OCC.


The term "special master" is defined by the PLRA as "any person appointed by a Federal court pursuant to Rule 53 of the Federal Rules of Civil Procedure or pursuant to any [**20] inherent power of the court to exercise the powers of a master, regardless of the title or description given by the court." 18 U.S.C. § 3626(g)(8). But this circular definition provides little assistance in determining whether an entity created to engage in informal advisory and monitoring functions is exercising the powers of a master. Consequently, we must look beyond the text of the Act for guidance.

The powers of special masters, who are quasi-judicial officers, are set forth generally in Federal Rule of Civil Procedure 53. See generally Collins v. Foreman, 729 F.2d 108, 118 (2d Cir. 1984) (analogizing masters to magistrates); Reed v. Rhodes, 691 F.2d 266, 269 (6th Cir. 1982) (noting that special master acts "in a quasi-judicial capacity"). They include the ability to convene and to regulate hearings, to rule on the admissibility of evidence, to subpoena and swear witnesses, and to hold non-cooperating witnesses in contempt. Fed. R. Civ. P. 53(c)-(d). See Texas v. New Mexico, 423 U.S. 942, 942-43, 46 L. Ed. 2d 274, 96 S. Ct. 351 (1975) (mem.) (appointing special master "with authority to fix the [**21] time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem it necessary to call for," and directing him to submit appropriate reports). The master's responsibilities typically culminate in a report. If the report includes findings of fact, they are binding in non-jury actions unless clearly erroneous. Fed. R. Civ. P. 53(e)(2).

The OCC's functions are quite different from those of a Rule 53 special master. The OCC was not appointed to hold hearings, subpoena witnesses, take testimony, or rule upon evidence. It does not prepare reports to assist in the court's determination of discrete issues of law or fact, and its factual findings are not legally entitled to deference. The OCC's reports, which are neither formally filed in the court's docket nor adopted, modified, or rejected by the court, serve a different function from the typical report of a special master. Besides informing the court of ongoing compliance efforts, these reports facilitate the City's awareness of its compliance with remedial directives. In other words, [**22] the OCC serves a monitoring function; it does not exercise quasi-judicial power. 11

FOOTNOTES

11 That the powers of a monitor may sharply diverge from those of a master was observed by the authors of Special Project: The Remedial Process in Institutional Reform Litigation, 78 Colum. L. Rev. 784, 829 (1978) (footnotes omitted) (emphasis added):

If the monitor is a court officer designated a "master," the court may treat its reports with the deference due master's reports, accepting the findings of fact "unless clearly erroneous." But a monitor's activities are so unlike those of a rule 53 master that the court should not do so. Monitoring rarely, if ever, proceeds by the quasi-judicial hearings envisaged by rule 53.




Nothing in the text of § 3626(f) expressly reveals Congress's intent either to treat all court-appointed agents as special masters or to prohibit a court from appointing agents to perform functions that differ from the quasi-judicial activities of special [*46] masters. Indeed, [**23] to the extent the PLRA's definition of "special master" is not entirely circular, by limiting its reference to court-appointed agents to those performing the duties of a master, the Act, we believe, implicitly incorporates the long-recognized principle that Article III courts may appoint agents to engage in a variety of activities essential to the performance of judicial responsibilities. See Ex Parte Peterson, 253 U.S. 300, 312-13, 64 L. Ed. 919, 40 S. Ct. 543 (1920) ("Courts have . . . inherent power . . . to appoint persons unconnected with the court to aid judges in the performance of specific judicial duties," including "special masters, auditors, examiners, and commissioners."); Newman v. Alabama, 559 F.2d 283, 290 (5th Cir. 1977) (recognizing distinction between monitor and master in context of prison litigation). 12

FOOTNOTES

12 Courts have used their inherent power and their express authority under the federal rules to appoint agents to perform a variety of functions. Particularly in cases raising significant technical or scientific issues, for example, courts have employed court-appointed experts and specially trained law clerks. See generally, GE v. Joiner, 522 U.S. 136, 149, 139 L. Ed. 2d 508, 118 S. Ct. 512 (1997) (Breyer, J., concurring) (citing J. Cecil & T. Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 (1993); J. Weinstein, Individual Justice in Mass Tort Litigation 107-110 (1995); Kaysen, In Memoriam: Charles E. Wyzanski, Jr., 100 Harv. L. Rev. 713, 713-15 (1987) (discussing a judge's use of an economist as a law clerk)).


[**24] The conclusion that Congress did not intend "special master" to refer to all court agents draws some support from the legislative history of the PLRA. This history is somewhat scant, in part because the PLRA was enacted as part of an omnibus appropriations bill. See 142 Cong. Rec. S 2292, 2296 (1996) (Sen. Kennedy) (lamenting fact that PLRA was subject to a single Judiciary Committee hearing, not resulting in a report). Congress's contemplation of a predecessor bill to the PLRA, introduced but not passed in the House of Representatives, is instructive. This bill, entitled Stop Turning Out Prisoners ("STOP"), expressly provided that in prison conditions litigation, "any special master or monitor shall be a United States magistrate and shall make proposed findings on the record on complicated factual issues submitted to that special master or monitor by the court, but shall have no other function." H.R. 667 § 301, proposed new section 18 U.S.C. § 3626(e) (quoted in H.R. Rep. No. 104-21 at 6 (1995)) (emphasis added). The committee report on STOP noted that this provision would apply "to anyone relied on by the court to make factual findings or [**25] to monitor or review compliance with, enforcement of, or implementation of a consent decree or of court-ordered relief in a prisons conditions suit." H.R. Rep. No. 104-21 at 28 (emphasis added).

If enacted, STOP would have done precisely what the City argues the PLRA does: bar the use of monitors in prison conditions litigation. But, in light of STOP's express prohibition of the use of monitors, to draw the conclusion that the PLRA meant silently to prohibit their use would show infidelity to what we know of Congress's intentions. Well-settled principles of statutory construction dictate that "where Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitation was not intended." Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983) (citing Arizona v. California, 373 U.S. 546, 580-81, 10 L. Ed. 2d 542, 83 S. Ct. 1468 (1963)). The Supreme Court has instructed that "few principles of statutory construction are more compelling than the proposition that Congress does not intend [*47] sub silentio to enact statutory language that it has earlier discarded in favor of other language. [**26] " INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987) (citations and internal quotation omitted). Congress's contemplation of STOP indicates its awareness of the distinction between quasi-judicial court agents appointed to undertake the activities of a master, as generally outlined in Rule 53, and monitors employed by courts to assist in compliance with remedial orders.

The City observes that on occasion courts have referred to monitors as "special masters," see, e.g., United States v. Yonkers Bd. of Educ., 29 F.3d 40, 44 (2d Cir. 1994) (per curiam) ("The power of the federal courts to appoint special masters to monitor compliance with their remedial orders is well established."); Juan F. v. Weicker, 37 F.3d 874, 880 (2d Cir. 1994), and have on other occasions cited Rule 53 as authority for a court's appointment of an agent to monitor compliance with remedial orders, see, e.g., Local 28, Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 482, 92 L. Ed. 2d 344, 106 S. Ct. 3019 (1986). But in most cases the City cites, the distinction between a master and a monitor was [**27] irrelevant to the dispute at hand. And the one case in which the distinction was salient is not helpful to the City. In Juan F., a case involving a challenge to Connecticut's child-welfare system, we were asked to determine whether the district court had properly adopted the findings of fact and legal recommendations of a "monitor" created by a consent decree. Determining that the findings and recommendations were adopted at the conclusion of a three-day hearing, involving opening statements, the placing of documents into evidence, formal stipulations of fact, a court reporter, the swearing in of witnesses-in short, effectively a trial-we concluded that the monitor's findings were entitled to deference because it was evident that the monitor was actually "a special master, albeit by another name." Juan F., 37 F.3d at 880. Juan F. stands for the sound proposition that, in evaluating the legal status of court-appointed agents, we are guided more by their function than by their title. Applying this functional test, we conclude that the OCC does not perform the duties of a special master and, accordingly, is not subject to the requirements of § 3626(f).

To be [**28] sure, one gathers from certain statements of the PLRA's sponsors that they were motivated in part by a perceived over-involvement of federal courts in the remedial aspects of prison conditions litigation. See, e.g., 146 Cong. Rec. S 14611, 14626 (1995) (Sen. Dole) (bemoaning the activities of "liberal Federal judges who see violations of constitutional rights in every prison complaint and who have used these complaints to micromanage State and local prison systems"). One could extrapolate from this concern a desire to limit, perhaps entirely to prohibit, the use of court-appointed monitors. But we must ultimately look to Congress's text, not to concerns it did not address in the relevant statutory language. This task leads us to conclude that § 3626(f) does not bar courts from using monitors to assist compliance efforts with remedial orders.

C. Temporal reach

We also agree with the district court that, even if the OCC were a special master under the PLRA, it still would not be subject to § 3626(f), because that section applies only to court agents appointed post-enactment. By its terms, § 3626(f) is entirely prospective; it provides that a court "may appoint" or "shall [**29] appoint" a special master, § 3626(f)(1)(A) and (B), and otherwise consistently refers to appointments "under" the Act. See, e.g., 18 U.S.C. § 3626(f)(3), (4), (5), (6). Assuming, [*48] as seems appropriate, that an appointment "under" the Act can only take place "after" the law's enactment, we conclude that the OCC was plainly not appointed "under" § 3626(f), as it was appointed well before that section existed. Nor do we read this section to govern the renewal of the OCC's mandate post-enactment. There is a difference between a renewal, modification, or continuation of a pre-existing appointment and an appointment. The appointment provisions of the section clearly concern post-enactment appointments. See 18 U.S.C. § 3626(f)(2). The continued existence of the OCC has been authorized after the PLRA's enactment; its appointment occurred well before. 13

FOOTNOTES

13 We are concerned, of course, only with the situation before us. There may be situations in which court agents created pre-enactment have passed out of existence in a manner making a post-enactment authorization an appointment, governed by § 3626(f). But as the district court observed, this is not such a case. The OCC has been a "continuous entity." Benjamin VIII, 156 F. Supp. 2d at 336. To term any of the court's post-enactment authorizations an "appointment" would not comport with the plain meaning of that term.


[**30] To the extent the text of the Act is ambiguous about its temporal reach, that ambiguity is resolved by comparing its treatment of pre-existing prospective relief with its treatment of pre-existing court agents. See Lindh v. Murphy, 521 U.S. 320, 330-336, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997) (drawing the negative implication that chapter 153 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") did not apply to pending cases from the fact that chapter 154, addressing a similar issue, expressly provided its applicability to pending cases). Although the PLRA expressly requires courts to reevaluate past awards of prospective relief, see 18 U.S.C. § 3626(b), it does not expressly require the reevaluation of past appointments of special masters. 14

FOOTNOTES

14 Citing a colloquy between Senators Abraham and Gregg occurring several weeks after the measure was passed, the City argues that the legislative history demonstrates Congress's intent to apply the special master provisions to pre-enactment appointments. See 142 Cong. Rec. S. 12463 (1996). But statements not made during the legislative process, but after the statute becomes law, are unreliable aids to statutory construction. See Heintz v. Jenkins, 514 U.S. 296, 297-98, 131 L. Ed. 2d 395, 115 S. Ct. 1489 (1995); Regional Rail Reorganization Act Cases, 419 U.S. 102, 132, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974) ("Postpassage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act's passage.").


[**31] Finally, even if the temporal reach of § 3626(f) were unclear, we agree with the district court that applying this section to the OCC would have an impermissible retroactive effect, as it would attach "new legal consequences to events completed before its enactment." INS v. St. Cyr, 533 U.S. 289, 321, 150 L. Ed. 2d 347, 121 S. Ct. 2271 (2001) (internal quotation and citation omitted). In particular, applying § 3626(f) to the OCC, which would effectively bar its use, would disrupt the detainees' settled expectations in deciding to forego enforcement litigation for the City's purportedly extensive violations of the consent decree in favor of the informal processes, including the disengagement plan, supervised by the OCC. 15 See id.

FOOTNOTES

15 The City relies on Martin v. Hadix, 527 U.S. 343, 144 L. Ed. 2d 347, 119 S. Ct. 1998 (1999), which held that provisions of the PLRA governing attorney's fees applied to work done post-enactment. But here, unlike in Martin, application of the provisions at issue would disrupt settled expectations.


[**32] For these reasons, we conclude that the OCC is not subject to § 3626(f).

D. Is OCC "prospective relief"?

A final question concerning the OCC remains: whether it is "prospective [*49] relief" subject to the need-narrowness-intrusiveness test of § 3626(b). The district court found that it was not because the "OCC is exclusively a monitoring body, and monitoring itself, independent of the conditions to be monitored, cannot be relief." Benjamin VIII, 156 F. Supp. 2d. at 342. We find this conclusion somewhat problematic. First, by finding both that the OCC was neither a special master nor an element of prospective relief, the district court placed it entirely beyond the reach of the PLRA, frustrating one of the Act's broad goals of limiting the "micromanaging [of] State and local prison systems." 141 Cong. Rec. S 14611, 14626 (Sen. Dole) (1995). Second, although functioning generally as a monitoring body, the OCC's substantial responsibilities permit no easy distinction between relief itself and the monitoring of relief.

Fortunately, we need not resolve this question because the district court made the appropriate need-narrowness-intrusiveness findings. It found [**33] that

the nearly twenty year history of incomplete compliance with the consent decrees amply attests to the need for external monitoring, and that the April 26 Order (1) directs OCC to monitor only those conditions which this Court found to constitute "current and ongoing" violations in the environmental conditions opinions, (2) reduces the scope of OCC's monitoring from previous orders in recognition of the remedial work defendants have completed, and (3) provides OCC with limited resources that are sufficient only to carry out its narrow range of activities.

Benjamin VIII, 156 F. Supp. at 343.

The court also expressed its "view [] that a more robust OCC would substantially compress the time it takes to correct the constitutional violations, release this Court from its role and provide minimal standards for thousands of detainees," but "with an eye to the PLRA and in the interest of minimizing the burden on defendants," the court preserved the OCC's limited role. Id.

To the extent they are required, the district court's findings are sufficient. In attempting to demonstrate that they are erroneous, the City argues that it could handle [**34] the OCC's responsibilities itself. (See Def. Br. at 13). But, particularly in light of the district court's finding that the City's compliance with its remedial responsibilities has been consistently incomplete and inadequate, we do not disturb the district court's findings.

III. Continuing Prospective Relief

The district court found constitutional violations in the areas of ventilation, sanitation, lighting, and heating. It ordered a variety of relief, which, in accordance with the PLRA's requirements, it found necessary, narrowly drawn, and the least intrusive means of correcting the violations. In this section, we consider the City's challenges to these findings and to the corresponding relief. In certain instances, findings and relief sought by the detainees in other areas were denied. In the following section, we consider their challenges to those findings.

A. Legal standard

As the district court correctly concluded, the detainees' challenges to the environmental conditions of their confinement are properly reviewed under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth. See Benjamin VI, 161 F. Supp. 2d at 156 [**35] (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). This is because "[a] person lawfully committed [*50] to pretrial detention has not been adjudged guilty of any crime," Bell, 441 U.S. at 536, and thus, under the Due Process Clause, may not be punished in any manner-neither cruelly and unusually nor otherwise. See id. at 535. Accordingly, courts considering challenges by pretrial detainees must initially consider whether the challenged conditions are punitive. Id. Because restraint is always necessary in effectuating confinement, not every uncomfortable or disabling condition and restriction can be considered punitive. See id. at 537. 16

FOOTNOTES

16 In Bell, the Court identified the following factors, from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963), as useful guideposts in determining whether a challenged condition or restriction is punitive in nature:

"Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions."

Bell, 441 U.S. at 537-38 (quoting Mendoza-Martinez, 372 U.S. at 168-69).


[**36] But because this punitiveness inquiry focuses principally on the purpose of an imposed disability, it is of limited utility when evaluating the environmental challenges to prison conditions at issue in this case, which, for the most part, were not affirmatively imposed. Consequently:



When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g., food, clothing, shelter, medical care, and reasonable safety - it transgresses the substantive limits on state action set by the . . . Due Process Clause.





DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989) (citation omitted). See also County of Sacramento v. Lewis, 523 U.S. 833, 851-852, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998); [**37] Youngberg v. Romeo, 457 U.S. 307, 319-325, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982).

The Due Process Clause obliges states to consider the welfare of pretrial inmates since, "in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory." County of Sacramento, 523 U.S. at 851. For this reason, although a pretrial inmate mounting a constitutional challenge to environmental conditions must show deliberate indifference, it may generally be presumed from an absence of reasonable care.



Liability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking. [*51]

Id. at 853. 17

FOOTNOTES

17 To establish the deprivation of a basic human need such as reasonable safety, an inmate must show "actual or imminent harm." Lewis v. Casey, 518 U.S. 343, 350, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). The identification of a purely theoretical deficiency in an institution will not suffice; a healthy inmate cannot sustain a claim of "constitutional violation because of the inadequacy of the prison infirmary." Id. at 351. See also Rhodes v. Chapman, 452 U.S. 337, 367, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (Brennan, J., concurring) ("A court is under the obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners.").


[**38] B. The City's claims of error

1. Deliberate indifference The City asserts that, assuming arguendo that the detainees have been deprived of constitutional rights, the district court erred in finding deliberate indifference. This finding was primarily based on the City's failure to remedy serious violations to which it had long been alerted:

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 [OCC] and plaintiffs' counsel for years, . . . and that have been the subject of further court orders between the entry of the Consent decrees and the present proceedings.

Benjamin VI, 161 F. Supp. 2d at 159.

The City, citing its good-faith compliance efforts, asserts that the detainees failed to demonstrate a "wanton disregard of their rights." (Def. Br. at 26). By this argument, the City attempts to impose [**39] upon the detainees the burden of making a showing of deliberate indifference under the Eighth Amendment, a showing that does require demonstrating wantonness or, more specifically, that officials knew of and disregarded an excessive risk to inmate health or safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). But this requirement is unique to Eighth Amendment claims, stemming from that amendment's prohibition of cruel and unusual punishments-as opposed to cruel and unusual conditions. See id. at 837-38. The analysis of a claim brought by an individual who may not be punished at all is different, beginning instead from the premise of a state's obligation to take some responsibility for the safety of those involuntarily committed to its custody. As discussed above, in a challenge by pretrial detainees asserting a protracted failure to provide safe prison conditions, the deliberate indifference standard does not require the detainees to show anything more than actual or imminent substantial harm. 18

FOOTNOTES

18 In other types of challenges-for example, when pretrial detainees challenge discrete judgments of state officials-meeting the deliberate indifference standard may require a further showing. See, e.g., Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990 (challenge to medical care of pretrial detainee); Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir. 1986) (allegation of failure to protect from inmate-inmate assault).


[**40] Nor do the City's compliance efforts, some more effective than others, prevent its liability. The district court found that the ongoing constitutional violations were, for the most part, "continuations of deficiencies that have been known, obvious, and commented upon . . . for years" and that the City's remedial efforts were largely [*52] ineffective. Benjamin VI, 161 F. Supp. 2d at 159. Giving appropriate deference to the district court, which has overseen these efforts for over twenty years, we see no reason to disturb either conclusion.

2. Unconstitutionality findings

Under the PLRA, prospective relief must be terminated unless there are current and ongoing violations of federal rights. See 18 U.S.C. § 3626(b)(3). The City contends that "the violations that the District Court found with respect to the areas of ventilation, lighting, and air temperature, simply do not rise to the level of unconstitutionality." (Def. Br. at 31). In support, the City looks to largely inapposite Eighth Amendment authority, e.g., Estelle v. Gamble, 429 U.S. 97, 103, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), and fails to address, except [**41] in a conclusory fashion, the district court's detailed findings of unconstitutionality with respect to these conditions.

In finding constitutionally inadequate ventilation at eleven facilities, 19 the district court noted, among other things, the presence of large numbers of inoperable windows, clogged or dirty ventilation registers and exhaust vents in showers and cells, and poor air quality. It then made specific findings concerning the threatened and actual health hazards resulting from these conditions. Benjamin VI, 161 F. Supp. 2d at 162-65. In finding constitutionally inadequate lighting at nine facilities, 20 the district court found, among other things, that inmates on occasion were left with inoperable lights in their cells for days on end, see id. at 183, and that in some cells where the lighting fixtures did work, the light emitted was barely discernible, see id. at 184. 21 In finding inadequate heat and extreme temperatures at ten facilities, 22 the court noted that the evidence of extreme temperatures, including no heat at all at times during the winter, was essentially uncontroverted. Id. at 170. [**42] In view of these factual findings, we affirm the district court's legal conclusion that inadequate ventilation, lighting, and exposure to extremes of temperature violated the detainees' constitutional rights.

FOOTNOTES

19 Specifically, the court found inadequate ventilation at ARDC, GMDC, GRVC, JATC, MDC, NIC, OBCC, the mental observation units at AMKC, and the intake areas at RMSC, QHD, and BKHD. (Apr. 26, 2001 Order at 11).

20 The court found inadequate lighting at GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD, and QHD. (Apr. 26, 2001 Order at 14).

21 Although we affirm the district court's finding of unconstitutional lighting conditions, in our discussion of the remedy it imposed, we address a troubling ambiguity in its discussion. See infra § III.B.3.d.

22 The court found violations at AMKC, ARDC, BKHD, GMDC, GRVC, JATC, NIC, OBCC, QHD, and RMSC. (Apr. 26, 2001 Order at 9, 13).


3. Remedies

The City more strenuously, and somewhat more persuasively, contests several elements of the [**43] prospective relief ordered by the court. As discussed, under the PLRA prospective relief may continue only if the court makes need-narrowness-intrusiveness findings. See 18 U.S.C. § 3626(b)(3). After finding current and ongoing violations, the district court prudently solicited agreement from the parties on appropriate remedies and deadlines for compliance. Although the deference due prison administrators by courts is implicated primarily by questions relating to institutional security of a type not raised on this appeal, the court recognized that, [*53] due to its superior institutional knowledge, the City's participation in the development of all aspects of the remedial orders was invaluable. Compare Bell, 441 U.S. at 547-548.

a. Bed-spacing requirement

Of the numerous remedies ordered by the court to correct inadequate ventilation, the City primarily challenges the requirement that all inmate beds be spaced so that heads are at least six feet apart while the inmates are sleeping. (See Apr. 26, 2001 Order at 12). It contends that this requirement "is not supported by law or fact, nor justified by any empirical scientific data, [**44] " and that, moreover, implementing it "will entail a significant loss of bed capacity," which could threaten inmate safety. (Def. Rep. Br. at 36-37). Because most of the beds in the facilities are placed less than three feet apart and are bolted to the floor, complying with the order would, the City asserts, require significant and costly changes in the facilities' dormitory housing that are neither warranted nor practical. (See id. at 37-39).

In imposing this remedy, the district court relied exclusively on brief testimony by Dr. Robert W. Powitz, the detainees' expert, who stated, in the court's words, "that beds should be placed such that prisoners' heads are 6 feet apart because droplets emanating from one person's mouth remain airborne for at least three feet but generally not as far as 6 feet." Benjamin VIII, 156 F. Supp. 2d at 349. The court reasoned that the City's failure to space beds sufficiently far apart was necessarily a violation of a constitutional right and the six-foot requirement was thus, "by definition[,] necessary to correct the violation." Id.

We agree with the City that this remedy fails the PLRA's need-narrowness-intrusiveness test. [**45] There is no constitutional requirement that pretrial detainees have six feet of breathing room. Assuming it could be demonstrated that forcing a detainee to sleep too close to another violated due process, this demonstration would require a showing of actual or imminent substantial harm. See Lewis, 518 U.S. at 350. Since our review of the record generates no evidence of actual harm and insufficient evidence on which to conclude that harm, of some substantial extent, was imminent, we vacate this aspect of the district court's order of prospective relief.

b. Operational windows

The City also contests as overly broad and burdensome the court's requirement that all windows designed to be opened must be operational. Contending that under the PLRA the district court was obliged to consider the utility of each window individually, the City observes:

The effect of a window defect depends upon the nature and degree of the defect, and the nature of the housing area, as well as the outside temperature. For example, a single window in a dayroom or modular unit that is stuck open a crack in mild weather, or one window that will not open among many windows [**46] that are operational in a particular area, will not cause unconstitutional conditions in that area. (Def. Br. at 48).



But it is ironic that the City, which strenuously opposes the OCC's continued participation, invokes the PLRA, which was intended in part to prevent judicial micro-management, in support of the proposition that the district court was required to examine every window. We agree with the district court that a comprehensive repair program would be more effective and less intrusive than an individual review of each window at the various facilities. See Benjamin VIII, 156 [*54] F. Supp. 2d at 350. Although the PLRA's requirement that relief be "narrowly drawn" and "necessary" to correct the violation might at first glance seem to equate permissible remedies with constitutional minimums, a remedy may require more than the bare minimum the Constitution would permit and yet still be necessary and narrowly drawn to correct the violation. Given the impracticability of the court examining each window, ordering comprehensive repairs was a necessary and narrowly drawn means of effectuating relief-even though the Constitution would certainly permit a broken [**47] window or two. 23

FOOTNOTES

23 With respect to the court's ventilation remedies, the City also objects to the requirement that all ventilation systems be balanced annually. (See Apr. 26, 2001 Order at 11). The City has proposed a less intrusive alternative, with which the detainees have agreed. (Pl. Br. at 64-65). In short, the City's proposal would require "Public Health Sanitarians [to] spot check the air flow readings at the ventilation registers in 15 of the housing areas and the intake areas monthly, during normal inspection." (Def. Br. at 51). The district court shall consider amending its remedial orders to replace the annual balancing requirement with this proposal on remand.


c. Heating-system certification

Of the remedies imposed dealing directly with air temperature, the City challenges only the requirement that it certify by October 15 of each year that heating systems have been inspected, tested, and repaired to working order or replaced. (See Apr. 26, 2001 Order at 13). It repeats the [**48] argument, rejected twice below, that, although it will be able to complete any necessary repairs before the onset of cold weather, the October 15 date is too inflexible. The district court seems to have borrowed this date from the DOC's own policy directive, which provides that "every effort will be made to repair any inoperable heating equipment by October 15th of each year." As the court explained, October 15 is a sensible cut-off date because it generally marks the start of the cold-weather season. Since the City has offered no cogent explanation why this date is unreasonable, we see no reason to disturb the district court's determination that it is appropriate. We are confident that if compelling circumstances do arise preventing compliance by this deadline, the district court will consider any appropriate application for relief.

d. Lighting requirement

To remedy unconstitutional lighting conditions, the court ordered, among other things, that at least twenty foot-candles of light be provided in all cells and dormitory housing areas. (See Apr. 26, 2001 Order at 14). The City objects that this remedy is (1) overbroad, because ten foot-candles of light is sufficient; [**49] (2) unnecessary, because some inmates prefer dimmer lights; and (3) overly intrusive, because the deadline for compliance is unreasonable.

There is a troubling ambiguity in the district court's award of this remedy. Although noting that it considered the DOC's ten foot-candle standard "inadequate," the court's ultimate finding of unconstitutionality seems to have rested not simply on this standard, but on the inadequacy of the lighting actually provided. Benjamin VI, 161 F. Supp. 2d at 182. The district court found this inadequacy, and we affirm, based on its findings of: (1) non-working light fixtures; (2) inadequate light-bulb wattage; and (3) obstructed luminary covers. See id. In a subsequent order, however, the court again stated that it had found the ten foot-candle lighting standard itself "constitutionally inadequate." Benjamin VIII, 156 F. Supp. 2d at 352. The parties focus on this finding on [*55] appeal and dispute whether the standard is constitutional.

From our review of the record, we cannot be sure whether the need-narrowness-intrusiveness findings concerning the twenty foot-candle remedy were made because of the actual lighting conditions [**50] in the facilities, or because of the court's belief that the ten foot-candle standard violates the Constitution. The latter course would have been impermissible, as the Constitution does not mandate any particular foot-candle standard; it only places outside limits on actual lighting conditions.

We, therefore, vacate the court's twenty foot-candle requirement. On remand, the court should consider whether this requirement meets the PLRA's need-narrowness-intrusiveness findings in view of the actual conditions at the facilities. In making this determination, the court should consider the apparently significant lighting improvements the City has made since its most recent order. (See Def. Br. at 44-46 (discussing improvements)).

e. Power washing

The district court found, and the City does not contest, unconstitutionally unsanitary conditions in various areas of the facilities. As one remedy, the court ordered that all showers be power washed with bleach quarterly. The City contends that this requirement will damage its newly renovated grouted-tile showers. It also contends that other remedial directives, such as the requirement that showers be "thoroughly cleaned and sanitized [**51] at least once daily," are sufficient to keep the showers in sanitary condition. (Apr. 26, 2001 Order at 8).

But, as the City acknowledges, since 1995 the DOC's own internal policies have required that showers be washed daily with sanitizing solution, and, as the district court observed, there is no evidence that this cleaning regimen "is equal to the task." Benjamin IX, 2002 U.S. Dist. LEXIS 1228 at *8. We, therefore, find no error in the court's conclusion that stronger remedial measures were necessary and affirm the power-washing requirement. In its reply brief, the City discusses a pilot program involving the use of a stronger cleaning agent for its grouted-tile installations. It is certainly free to propose this program to the district court.

IV. Termination of Prospective Relief

The district court concluded that certain conditions, even if not ideal, did not amount to current and ongoing constitutional violations and terminated prospective relief. The detainees appeal from three of these conclusions.

a. Scalding hot water

The detainees contend that the district court erroneously concluded that plumbing conditions at the facilities were within [**52] constitutional limits. In particular, they assert that they are exposed to scalding hot water in showers and sinks, which presents an unconstitutional threat to their safety. The district court rejected this contention, finding that although some showers did provide water that was either too hot or too cold, this problem was insufficiently pervasive to amount to a constitutional violation. Since our review of the record supports the conclusion that such problems were isolated, we affirm the district court's finding that the plumbing conditions are not unconstitutional.

b. Sanitation in food areas

The district court found that sanitary practices regarding food storage and preparation were adequate. The detainees contend that the court's analysis was insufficiently [*56] specific and that, had it engaged in a facility-by-facility analysis, it would have found the practices constitutionally inadequate at three facilities: AMKC, ARDC, and GMDC. Conditions there allegedly exposed prisoners to "food contaminated by vermin, food contaminated by leaking refrigerator and freezer condensers, food contaminated by fecal contaminants due to inadequate hand washing practices, and food contaminated [**53] by dirty equipment and pooled water." (Pl. Br. at 73).

Because the PLRA requires the court to make particular findings only when it identifies constitutional violations, it is to be expected that a court's discussion of conditions it finds not to violate the Constitution may be somewhat more cursory. But with respect to food-service sanitation, the court departed from its typical practice of considering individual institutions and, instead, considered them in the aggregate. After observing that both experts had noted numerous deficiencies at the institutions, the court stated that

only a few deficiencies could be classified as "critical" and they were confined to the kitchens and food storage areas of ARDC, AMKC, GMDC, GRVC, JATC, and QHD. The remainder of the Department's prisons did not register a single "critical" violation.

Benjamin VI, 161 F. Supp. 2d at 174.

The record does not support the conclusion that the parties' experts found only a "few" critical violations, unless the court thought such violations "few" relative to all the food service areas at all the facilities. 24 But considering facilities in the aggregate was problematic: [**54] that some inmates are subjected to sub-constitutional conditions is not erased by the fact that others are not. In its discussion of vermin infestation, the court noted "a significant vermin problem" at several of the same facilities with numerous critical violations, including AMKC, ARDC, and GRVC. Id. at 173. At the conclusion of its discussion of vermin infestation, the court stated that it would "discuss[] below" the "concern of vermin infestation in food storage and preparation areas." Id. at 174. In fact, after discussing various other points in detail, the court did not return to the issue of vermin.

FOOTNOTES

24 At a single inspection of ARDC, the City's own expert found ten critical violations, including that the food storage area was "roach and mouse infested."


The record is replete with evidence of high levels of vermin activity in the food storage and service areas in the three facilities with which the detainees are primarily concerned, a problem which the City's own [**55] expert acknowledges. The record is also replete with evidence of other unsanitary conditions at other facilities. The district court appears to have placed great weight on Director Feeney's testimony that, in her eight years with the department, "not one pre-trial detainee has suffered a reportable incident of a food-borne illness." Id. But this testimony was an insufficient basis on which to discount the uncontroverted evidence of serious sanitary problems in the food service areas at AMKC, ARDC, and GMDC. "[A] remedy for unsafe conditions need not await a tragic event." Helling v. McKinney, 509 U.S. 25, 33, 125 L. Ed. 2d 22, 113 S. Ct. 2475 (1993). The court should have considered whether the conditions at these three facilities posed an imminent threat. 25 Accordingly, we vacate its finding of no constitutional violation and remand for [*57] particularized findings concerning the food-service areas in AMKC, ARDC, and GMDC.

FOOTNOTES

25 The court also cited an OCC report finding near total compliance with Directive 3902, concerning food-service sanitation. Benjamin VI, 161 F. Supp. 2d at 174. But this report concerned only six institutions and did not include AMKC, ARDC, and GMDC.


[**56] c. Vermin infestation in residential areas

Despite acknowledging significant vermin problems at AMKC, ARDC, BKHD, and GRVC, the court found "vermin infestation in the residential portion of the facility" only at AMKC. Benjamin VI, 161 F. Supp. 2d at 173-74. But it found that the problem at AMKC was assuaged by the recent introduction of an Integrated Pest Management ("IPM") Program. The detainees contend that the court's findings of no vermin infestation are unsupported by the record and that the court should not have considered the IPM Program, since it was unclear whether it would be properly implemented.

Although the detainees are correct that, when considering whether to terminate relief, courts should generally assess "a record reflecting conditions as of the time termination is sought," Benjamin III, 172 F.3d at 166, this record may include "bona fide steps that prison officials are taking to alleviate poor prison conditions," Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir. 1982). See also Helling, 509 U.S. at 36-37 (noting that voluntary remedial steps may bear on deliberate indifference inquiry). [**57] The district court was convinced that the implementation of the IPM Program obviated a finding that a constitutional violation was present at AMKC, and we see no reason to disturb this conclusion. Moreover, we believe the record supports the court's conclusion that vermin activity was not present to an unconstitutional extent at any of the facilities.

CONCLUSION

We therefore affirm the district court's orders in full, except we vacate its (a) bed-spacing remedy; (b) twenty foot-candle lighting requirement; and (c) finding that the food-service areas at AMKC, ARDC, and GMDC are constitutionally adequate. We also direct the court to consider amending its remedial orders to substitute the requirement that ventilation systems be annually balanced in favor of the alternative agreed upon by the parties, and we remand for further proceedings consistent with this opinion.

156 F. Supp. 2d 333, *; 2001 U.S. Dist. LEXIS 9543, **

JAMES BENJAMIN, et al., Plaintiffs, - against - WILLIAM J. FRASER, et al., Defendants.

75 Civ. 3073 (HB)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

156 F. Supp. 2d 333; 2001 U.S. Dist. LEXIS 9543


July 11, 2001, Decided
July 11, 2001, Filed

[*334] SUPPLEMENTAL OPINION & ORDER

Hon. HAROLD BAER, JR., District Judge:

On April 26, 2001, this Court issued an order (the "April 26 Order") that directed: (1) the City of New York ("City") and the Department of Corrections ("Department") (collectively, "defendants") to take specific actions to remedy "current and ongoing" violations of federal law that this Court identified in 14 New York City jails 1 ("prospective relief") and (2) the Office of Compliance Consultants ("OCC") to monitor certain aspects of the prospective relief. Subsequent to the docketing of the April 26 Order, the parties separately submitted [*335] motions for reconsideration of the April 26 Order which sought, inter alia, that the Court make: (1) an explicit ruling on whether the Prison Litigation Reform Act ("PLRA") forecloses the continuation of OCC; 2 (2) provision-by-provision determinations that the relief imposed was necessary, narrowly drawn and no more intrusive than necessary to correct [**2] the violation of the federal right in accordance with the language of the PLRA; (3) the modification or elimination of certain provisions of the April 26 Order; and (4) certain technical changes. For the reasons discussed below, plaintiffs' motion for reconsideration is granted in part and denied in part; defendants' motion for reconsideration is granted in part and denied in part. Further, the Court appoints John H. Doyle III as the new OCC Director.

FOOTNOTES

1 The 14 facilities are: the Adolescent Reception and Detention Center ("ARDC"); the Anna M. Kross Center ("AMKC"), the George Motchan Detention Center ("GMDC"); the Rose M. Singer Center ("RMSC"); the James A. Thomas Center ("JATC"); the George R. Vierno Center ("GRVC"); the North Infirmary Command ("NIC"); Otis Bantum Correctional Center ("OBCC"); the Manhattan Detention Center ("MDC"); the Brooklyn House of Detention ("BKHD"); the Queens Detention Center ("QHD"); West Facility ("West"); the Vernon C. Bain Center ("VCBC"); and the Bronx Detention Center ("BXHD"). [The April 26 Order inadvertently omitted the last three facilities from the list of facilities in which this Court found constitutional violations. The April 26 Order is amended as provided infra by this decision.] [**3]

2 At the invitation of the Court, the parties briefed the issue of the applicability of the PLRA to OCC in March 2001. Those submissions form the basis of the Court's review of the status of OCC in this decision.


I. THE CONTINUATION OF OCC DOES NOT VIOLATE THE PLRA

Both parties request that the Court expressly decide whether OCC can coexist with the PLRA. Defendants argue that it cannot because the PLRA limits court-authorized agents to special masterships, whose appointment and responsibilities are specifically governed by the statute; plaintiffs disagree. 3 See 18 U.S.C. § 3626(f). Under the PLRA, a special master is appointed through a collaborative procedure between plaintiffs and defendants, and is confined to a limited set of activities, which does not include monitoring, the essential activity of OCC. See 18 U.S.C. § 3626(f).

"Limitations on powers and duties.--A special master appointed under this subsection--

(A) may be authorized by a court to conduct hearings and prepare proposed findings of fact, which shall [**4] be made on the record;

(B) shall not make any findings or communications ex parte;

(C) may be authorized by a court to assist in the development of remedial plans; and

(D) may be removed at any time, but shall be relieved of the appointment upon the termination of relief."

Id. Because OCC is a monitoring body, whose director is selected in a manner other than that which is statutorily prescribed, defendants argue that OCC is precluded by the PLRA.

FOOTNOTES

3 Defendants make a second argument -- that OCC is subject to the PLRA requirements as an element of the prospective relief -- which the Court discusses infra with regard to the needs-narrowness-intrusiveness test of the PLRA.


Had the April 26 Order created rather than merely continued OCC, defendants' argument might be persuasive. OCC is not now, and never has been, a special master as defined by the PLRA. However, OCC is lawful in my view-- not because, as plaintiffs initially argue, the PLRA's special master provisions leave intact the power of [**5] courts to appoint entities of a different stripe, like OCC 4 -- but for the reason that OCC as a long extant organization is not subject to the subsequently enacted PLRA.

FOOTNOTES

4 Since the Court concludes that OCC is not subject to the special master provisions of the PLRA, I do not decide whether the special master provision might preclude courts from authorizing monitoring agents.


A. The History of OCC

The instant opinion is the latest installment in a long line of decisions/orders [*336] concerning OCC by this and other courts. In 1975, pretrial detainees in certain New York City jails brought seven related class actions alleging that the conditions of their confinement violated their constitutional rights. In 1978-79, the City and plaintiffs' counsel entered into consent decrees to address and remedy those conditions of confinement. In 1982, the consent decrees were consolidated for enforcement before the Honorable Morris E. Lasker who ordered, pursuant to the agreement between the parties, the creation of [**6] an agency called the Office of Compliance Consultants ("OCC") to monitor defendants' compliance with the consent decrees. Between 1982 and 1987, the parties consented to several renewals of OCC's mandate. Thereafter, it was continued by orders dated October 1987, September 1989, July 1991, January 1993, January 1995, January 1997 and September 2000. During the period 1982 -- 2000, the Court periodically adjusted the scope of OCC's responsibilities, the intensity of its activities, and the nature of its operations. 5

FOOTNOTES

5 For example, the September 2000 order, inter alia, relocated OCC to Rikers Island to reduce costs and in recognition that OCC's activities had been temporarily reduced while the Court 1) prepared for and held the May 2000 hearings, as required under the PLRA where continuing constitutional violations are alleged, and 2) identified "continuing and ongoing" violations, which would define the scope of OCC's remaining mandate. Also by way of example, a December 1999 order directed OCC to conduct a thorough review of the jails in anticipation of the January 2000 hearings on fire safety, one of the discrete areas of prison administration addressed by the consent decrees. Lastly, the 1995 Order, which provided the most thorough description of OCC's responsibilities, reset the compensation of the OCC director to reflect then prevailing wage rates.


[**7] Contrary to the argument of defendants, OCC did not pass out of and come back into existence with each such order. Since 1982, OCC has performed essentially the same monitoring role over the same jail system in the same litigation. Moreover, the test of whether an entity is old or newly created is not whether the entity as it exists today perfectly resembles the entity of before. All entities change over time. Although OCC's authorization was for some years renewed by a series of orders with specified end dates, it was never the expectation of this Court that OCC would cease to exist on those dates, nor do I believe that is was the expectation of the parties. The sunset provisions built into the earlier OCC renewals did not anticipate the end of OCC without regard to the status of the litigation; rather, they (1) reflected the Court's expectations (repeatedly frustrated) that defendants would promptly comply with the consent decrees, and (2) provided a mechanism for the Court to actively supervise OCC, target its operations and provide its personnel some sense of the job's duration. Defendants' suggestion that such provisions bear out their claim that OCC has not been a continuous [**8] entity is plainly unjustified. Further, defendants' statements that "it is the sheerest artificiality to consider OCC to be a continuing monitor," (Def.s' memo re OCC, March 21, 2001 at 11), and that the OCC is "little more than a shell," id., is at best, inaccurate and disingenuous. Defendants correctly point out that OCC's activities have been curtailed in recent years; 6 however, defendants fail to acknowledge that the reduction of OCC's activities ensued from defendants' legal challenge to the consent decrees and the Court's subsequent [*337] hearings, during the pendency of which OCC's activities had to be put largely on hold. Defendants' argument suggests the following: OCC ceased to exist because of defendants' unsuccessful litigation to escape the consent decrees and OCC's supervision thereof. I am not persuaded.

FOOTNOTES

6 The Court's order of September 18, 2000 directed that OCC relocate from its unnecessarily large offices in lower Manhattan to Rikers island, partly in recognition that OCC's activities "have been greatly reduced," but also to create economic efficiencies and to make OCC more effective.


[**9] B. Retroactivity: Application of the PLRA to OCC

To determine whether to apply a statute enacted after the events in suit, this court must determine whether Congress intended that the statute be retroactive. See Landgraf v. U.S.I. Film Prod., 511 U.S. 244, 280, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). If Congress did not clearly express its intent, I must conclude that the statute is not retroactive and therefore decline to apply the statute where so doing would have a "retroactive effect." Id. at 260, 268 (noting the strong presumption against the retroactive application of statutes); INS v. St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271, 2001 U.S. LEXIS 4670, *50 (2001) ("retroactive statutes raise special concerns").

Few courts have analyzed whether and how the special master provisions of the PLRA apply to pre-existing court-authorized institutions. 7 See Coleman v. Wilson, 933 F. Supp. 954 (E.D. Cal. 1996) (refusing to apply the PLRA's provision concerning the compensation of special masters to a previously appointed master); Madrid v. Gomez, 940 F. Supp. 247 (N.D. Cal. 1996) (same). With respect to § 803(d)(3), a different [**10] provision of the PLRA that imposes caps on attorneys' fees, the Supreme Court held in Martin v. Hadix, 527 U.S. 343, 144 L. Ed. 2d 347, 119 S. Ct. 1998 (1999), that § 803(d)(3) applies to cases that were pending when the PLRA was enacted. In so holding, the Martin Court distinguished between fees earned for work performed prior to the PLRA's enactment and work performed thereafter. With respect to the latter, the Court found that "there is no retroactivity problem" since attorneys were on notice of the statutory fee structures. With respect to fees for pre-PLRA work, however, the Court concluded that § 803(d)(3) did not apply, since the section "does not clearly express congressional intent that it apply retroactively," id. at 354, and because its application would have the retroactive effect of upsetting the reasonable expectations of the parties. See id. at 360.

FOOTNOTES

7 Most cases that discuss the retroactivity of PLRA provisions concern attorneys' fees sections which are separate and apart from those under consideration here.


[**11] Regrettably, Martin is of limited application here. Martin concerned a different statutory provision and doesn't speak to the question of whether the continuation of a court-authorized monitor is precluded by the PLRA. See generally Landgraf, 511 U.S. at 280 ("there is no special reason to think that all the diverse provisions of the [Civil Rights Act of 1991] must be treated uniformly for such purposes"). However, Martin does indicate that the PLRA special master provisions do not have retroactive effect, because, like § 803(d)(2) at issue in that case, § 3626(f) contains no statement that Congress intended retroactive application and does not otherwise clearly express congressional intent to that effect. See Martin, 527 U.S. at 354; see also St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271, 2001 U.S. LEXIS 4670, at *52-52 ("[a] statute may not be applied retroactively, however, absent a clear indication from Congress that it intended such a result"). Indeed, the consistently prospective language of § 3626(f) (court "may appoint" a master; "shall appoint" a master; "shall request" [*338] lists from the parties) suggests a contrary intent. Thus, it is clear that [**12] § 3626(f) does not apply retroactively; what is less clear, however, is whether applying § 3626(f) to OCC would impermissibly cause a retroactive effect. Put another way, is it retroactive to limit OCC to a PLRA special mastership?

Defendants take the position that retroactivity is not an issue since the remedial order implicates only future conduct, and that whatever OCC has been to date, going forward it must hew to the PLRA line. See Landgraf, 511 U.S. at 273 ("application of new statutes passed after the events in suit is unquestionably proper in many situations"). Plaintiffs, on the other hand, argue that (1) the prospective language of § 3626(f) clearly expresses Congress' intent that the provision not apply to ongoing entities like OCC, and (2) application of the special mastership would create a retroactive effect, because so doing would attach new legal consequences to past acts -- i.e., the parties' agreement to settle the case, plaintiffs' agreement to forego enforcement litigation in favor of the informal process that OCC has monitored for many years, and this Court's decision to rely upon OCC. See Martin, 527 at 343 ("the inquiry into whether a [**13] statute operates retroactively demands a common sense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment") (quotations omitted). 8

FOOTNOTES

8

"When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result."



Landsgraf, 511 U.S. at 280.


[**14] Plaintiffs' arguments are persuasive. By its terms, § 3626(f) refers to future events and does not apply to pre-enactment court authorizations. See § 3626(f) (court "may appoint" a master, "shall appoint" a master, "shall request" lists from the parties.) The prospective language of § 3626(f) stands in marked contrast to § 3626(a)(1) which explicitly provides for retroactive application. See § 3626, Note, Effective and Applicability Provisions (provision governing "prospective relief" shall apply with respect to all prospective relief whether such relief was originally granted or approved before"). Congress' use of exclusively prospective language in defining masterships to assist in the remedial phase, juxtaposed with its explicit direction that a neighboring provision governing "prospective relief" be applied retroactively, indicates Congress' intent that the special masters provisions apply only to newly-created court authorizations. See Lindh v. Murphy 521 U.S. 320, 330-338, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997) (where Congress expressly provided for retroactive application in one provision of the AEDPA, silence in another provision created a "negative implication" that Congress intended [**15] prospective application when it had not expressly provided for retroactive application); Ghana v. Holland, 226 F.3d 175 (3rd Cir. 2000) (holding that the "express language of § 1997e(a), which provides that 'no action shall be brought' until the prisoner exhausts administrative remedies, demonstrates Congress' intent that [*339] the exhaustion requirement apply only to new actions").

Moreover, even had § 3626(f) not indicated Congress' intent to the contrary, applying the special master provision to extant institutions like OCC would have an impermissible retroactive effect. OCC has been an integral part of the remedy here since soon after the commencement of this litigation, and to change its role at this late stage conflicts with settled expectations of both the parties and the Court. For this reason alone, precedent dictates that OCC continue without limitation by the PLRA. See Landgraf, 511 U.S. at 265 ("Elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted"). In St. Cyr, the most recent Supreme [**16] Court decision on the subject, the INS argued that amendments to the immigration laws, which eliminated the right of immigrants convicted of certain crimes to seek waivers of deportation, did not have retroactive effect because the power to grant relief from deportation is "inherently prospective." See St Cyr., 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271, 2001 U.S. LEXIS 4670, at *64. The Court conceded that it had characterized deportation as "looking prospectively to the respondent's right to remain in this country in the future," id. (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984)), but rejected the INS' argument, reasoning that many immigrants had pleaded guilty and waived their constitutional right to a trial with the understanding that so doing would increase their chances of obtaining waivers of deportation in future INS proceedings. Here, plaintiffs entered into consent decrees with defendants, foregoing their right to proceed to trial, with the understanding that a court-authorized agent would monitor the jails until their deficiencies had been remedied. The application of § 3626(f) to OCC would disrupt the settled expectations of plaintiffs [**17] and deprive them of the benefits they forewent by entering into the consent decrees.

My decision not to apply § 3626(f) to OCC is reinforced by the profound consequences that would follow were I to conclude otherwise. In Martin, the case upon which defendants principally rely, the issue was how much plaintiffs' attorneys should be paid for post-judgment monitoring work that they had already performed in a prison litigation. Although that issue implicated concerns of fairness to counsel, the Court's decision to award attorneys' fees calculated upon PLRA rates for work performed after the statute's enactment did not foreclose counsel's continued representation of his/her clients, alter the defining qualities of the legal relationships between the parties, or adversely impact the post-judgment monitoring being performed by plaintiffs' counsel. Martin was fundamentally a backward-looking decision which queried how much money was owing for work already performed and had little effect on future conduct, either in that case or in others. Here, as in St. Cyr, the issue is quite different than Martin. Because OCC is a monitoring body, and because monitoring is not permitted [**18] under § 3626(f), to label OCC a special master is to render unlawful an institution upon which this Court has relied in fashioning its approach to the litigation for many years. Nor is § 3626(f) akin to the jurisdictional statutes discussed in Landgraf which oust federal courts of jurisdiction, since, as the Landgraf Court itself observed, "application of a new jurisdictional rule usually takes away no substantive right but simply changes the tribunal that is to hear the case." 511 U.S. at 274. If OCC is ousted, nothing may replace it. The touchstone in Landgraf, Martin and St. Cyr of the retroactivity [*340] analysis is whether applying the provision would attach legal consequences to prior events or relationships. 9 In my view, there is little that could alter the parties' and the court's relationship vis a vis one another and with OCC more than the termination of OCC's legal existence.

FOOTNOTES

9 "The inquiry into whether a statute operates retroactively demands a commonsense, functional judgment about 'whether the new provision attaches new legal consequences to events completed before its enactment.'" St. Cyr, 121 S. Ct. 2271, 2001 U.S. LEXIS 4670, *58 (quoting Martin, 527 U.S. at 357-358 which was in turn quoting Landgraf, 511 U.S. at 270).


[**19]

"The conclusion that a particular rule operates 'retroactively' comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 270. And, "any test of retroactivity will leave room for disagreement in hard cases, and is unlikely to classify the enormous variety of legal changes with perfect philosophical clarity. However, retroactivity is a matter on which judges tend to have sound ? instinct[s]." (quotation marks omitted). Id. In accord with the approach suggested by the foregoing statements, a California district court held that fee limitations for special masters do not apply to special masters appointed before the PLRA.

"The transfer of the cost of the Special Mastership at this juncture not only imposes a substantial new burden on the judiciary for its previous decisions, but it also injects uncertainty into an on-going remedial process and alters its existing balance?.There is clearly no guarantee that [federal] funds will continue to be forthcoming or will not be subject to restrictions that may significantly [**20] impair the Court's ability to effectuate full and effective relief. Of course any such impairment would also interfere with the plaintiffs' rights to such relief. Completely relieving defendants of any obligation to bear the cost of the Special Mastership may also undermine incentives to proceed efficiently and may even provide contrary incentives to delay."

Madrid, 940 F. Supp. at 253-254. The court's concern in Madrid, that application of the PLRA would damage the on-going remedial process, is exactly the concern here. 10 There is no doubt that defendants will remedy the "current and ongoing" violations faster when monitored by OCC than if left to their own devices and that the departure of the OCC would have a immediate disruptive effect. Ironically, applying the statute to OCC would mean that defendants, who fought to vacate the consent decrees and failed because of continuing violations of constitutional minimums, lost the battle but won the war. They will have destroyed a long-standing monitoring institution that helped bring the light of day to those constitutional failures. It stretches credulity to believe that Congress intended such a perverse [**21] result.

FOOTNOTES

10 Indeed, in their opposition to the continued operation of the OCC, defendants similarly characterized the court's concern in Madrid. "[Plaintiff's reliance] is further misplaced because those cases involved ongoing monitoring work where the application of new limitations and compensation standards would assertedly have had an immediate disruptive effect." Def.s' Br. Regarding Monitoring and the OCC, March 21, 2001, at 14.


In Martin the Supreme Court held that applying the PLRA fee provisions to work performed prior to the effective date of the statute would impermissibly alter the previously agreed upon fee arrangements. Informing the Court's holding, however, was the very real concern that application of a statute not cause "manifest injustice." [*341] Martin, 527 U.S. at 360; see also INS v. St. Cyr, 533 U.S. 289, 150 L. Ed. 2d 347, 121 S. Ct. 2271, 2001 U.S. LEXIS 4670, *62 (focusing on "the potential for unfairness in the retroactive application of IIRIRA § 304(b)). To eliminate OCC, it seems to me, would do precisely [**22] that.

II. THE APRIL 26 ORDER COMPLIES WITH § 3626(a)(1)

The April 26 Order marked what I thought was the end to a lengthy process, throughout which the parties enjoyed extensive opportunities to make arguments to the Court and participate in the tailoring of the remedial order. On May 8-10 and May 15-17, 2000 ("May 2000 hearings"), I heard extensive testimony from present and former detainees, executives from the Department and experts about environmental conditions at the facilities. The Court issued an opinion on January 9, 2001 ("January 2001 opinion"), and a second on March 23, 2001 ("March 2001 opinion") (collectively, "environmental health opinions") that together partially granted the motion of defendants to terminate the environmental health provisions of the consent decrees. Sadly, in both opinions the Court found that many of the City's jails continued to have numerous "current and ongoing" environmental violations. In connection with the January 2001 opinion, the Court requested recommendations from the parties on how to remedy the "current and ongoing" violations identified in the opinion. The Court made a similar request in the March 22, 2001 opinion. In an [**23] effort to close the gaps between the parties' recommendations, the Court held a conference in Chambers, and later solicited jointly agreed upon text for the remedial order, as well as argument with respect to disputed language. On April 26, 2001, the Court issued the "Order On: Environmental Conditions," which incorporated much of the parties' agreed-upon provisions and took into consideration various concerns raised by one or both of the parties.

A. PLRA: Needs-Narrowness-Intrusiveness

(1) Prospective relief.--(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief 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. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

18 U.S.C. § 3626 [**24] (a)(1).

On its face, the PLRA requires that before imposing prospective relief a court must find 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." Id. Those courts that have construed this obligation have found that it is not sufficient to simply state in conclusory fashion that the requirements of the remedial order satisfy the statute; rather, district courts must make "particularized findings, on a provision-by-provision basis, that each requirement imposed by the [Order] satisfies the needs-narrowness-intrusiveness criteria, given the nature of the current and ongoing violation." See Cason v. Seckinger, 231 F.3d 777, 785 (11th Cir. 2000); Ruiz v. United States, 243 F.3d 941, 950-951 (5th Cir. 2001); Castillo v. [*342] Cameron County, 238 F.3d 339, 354 (5th Cir. 2001). Plaintiffs urge this Court to depart from the holdings of these courts and adhere to the general rule that findings need only be "adequate to allow a clear understanding of its ruling." Fasolino Foods Co., Inc. v. Banca Nazionale Del Lavoro, 961 F.2d 1052, 1058 (2nd Cir. 1992). [**25] Certainly, this Court's lengthy opinions and the April 26 Order more than suffice to "allow a clear understanding" of this Court's remedial order. Only an overdose of denial could suggest a lack of clarity as to what this Court determined was required to correct constitutional violations and why. Moreover, the prospective relief provided for in my April 26 Order 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," id, all of which was either noted in my opinions or in the conferences with counsel.

I have grave doubts that the PLRA requires findings on a "provision-by-provision" basis. Notably, § 3626(a)(1) neither explains what it means for a court to "find" that relief is appropriate nor makes clear what portions of a remedial order "any prospective relief" refers to. It cannot be said that § 3626(a)(1) is unambiguous, or clearly expresses Congress' intent to depart from the traditional standard -- findings sufficient to allow a "clear understanding" of the ruling -- in favor of a painfully exacting standard under which courts make such [**26] findings on a paragraph by paragraph, or even sentence by sentence, basis. To interpret the PLRA to require more than a general finding that the prospective 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," in my view, elevates formalism over substance and construes the PLRA as devising pitfalls for conscientious courts who have convened hearings, weighed extensive quantities of evidence, rendered detailed opinions, and drafted narrow and specific remedial orders. Requiring courts, in effect, to reproduce and expand upon all of their factual findings in a remedial order is duplicative, wasteful of judicial resources, and highly inefficient. Further, the asserted "factual findings" requirement is not an opportunity to relitigate "current and ongoing" violations, and should not be allowed to operate as such. Not surprisingly, and probably unavoidably, much of what the parties ostensibly submitted in connection with the "particularized findings" represents little more than an effort to regain what they lost at the hearing. However, in light [**27] of some, in my view, unfortunate appellate rulings, and to avoid yet more delay in the remediation of truly depressing environmental conditions, I will so proceed.

B. OCC: Needs-Narrowness-Intrusiveness

The April 26 Order consists of two discrete parts. The first sets forth the structure, resources and mandate of OCC; the second directs defendants to take specific remedial actions to correct current and ongoing violations. This latter section alone constitutes "prospective relief" within the meaning of § 3626(a)(1). OCC is exclusively a monitoring body, and monitoring itself, independent of the conditions to be monitored, cannot be relief. Monitoring merely informs the court and the parties where the defendants are in the process of providing the ordered relief. To find otherwise would conflate relief with the means to guarantee its provision. [*343] Because the needs-narrowness-intrusiveness test of § 3626(a)(1) applies only with respect to "prospective relief," the Court need not make specific findings about OCC. 11 Thus, the Court shall not make specific findings with respect to OCC (PP 1-10 of the April 26 Order), other than to observe that the nearly twenty year history [**28] of incomplete compliance with the consent decrees amply attests to the need for external monitoring, and that the April 26 Order (1) directs OCC to monitor only those conditions which this Court found to constitute "current and ongoing" violations in the environmental conditions opinions, (2) reduces the scope of OCC's monitoring from previous orders in recognition of the remedial work defendants have completed, and (3) provides OCC with limited resources that are sufficient only to carry out its narrow range of activities. My personal view is that a more robust OCC would substantially compress the time it takes to correct the constitutional violations, release this Court from its role and provide minimal standards for thousands of detainees. However, with an eye to the PLRA and in the interest of minimizing the burden on defendants, the April 26 Order preserved OCC's limited role.

FOOTNOTES

11 In so holding, I find to be relevant the decisions of those courts that have considered the question of whether a special master is prospective relief under the PLRA and have concluded that it is not. See Casey v. Lewis, No. Civ. 90-0054 PHX CAM, Order at 2 (D. Ariz., May 15, 1996) ("The appointment order is not prospective relief. Rather, it is a procedural mechanism for the court to implement the permanent injunction."); Coleman v. Wilson, 933 F. Supp. 954, 957 (E.D. Cal. 1996) (noting the distinction between the "ultimate form of the remedy" and the "means"); Madrid v. Gomez, 940 F. Supp. 247 (N. D. Cal. 1996) ("[A] Special Master is simply a device utilized by the Court to assist in the formulation of appropriate relief or to monitor relief that is ordered. The appointment, however, is not itself relief."). Indeed, the statutory statements that "in no event shall the appointment of a special master extend beyond the termination of relief" and that a master "shall be relieved of the appointment upon the termination of the relief" would make little sense if the special master was him/herself part of the relief. See § 3626(a)(1).


[**29] C. General Principles For Performing The Needs-Narrowness-Intrusiveness Test

The decision to engage in a provision-by-provision, needs-narrowness-intrusiveness analysis leads the court into uncharted waters. Neither the PLRA itself nor the appellate courts that have construed it provide guidance as to how, specifically, a court should go about finding that "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." § 3626(a)(1). How many and what kinds of facts this Court needs to recite in support of its conclusion that a provision is PLRA compliant appears to be a question of first impression. 12 Thus, assuming that the PLRA requires a detailed needs-narrowness-intrusiveness analysis, a conclusion that I do not share, it seems essential to identify the principles implicit in the PLRA with respect to that analysis.

FOOTNOTES

12 For example, does the court need to recite the findings of its prior opinions and of, in this case, the April 26 Order? After it finds a constitutional violation, how much explanation need the court provide as to why the ordered relief is narrowly drawn and the least intrusive? Does the analysis require different facts from those upon which the Court relied in finding current and ongoing violations?


[**30] The court defines a "provision" for purposes of the "provision-by-provision" analysis as the paragraph or paragraphs of the April 26 Order that concern a specific environmental condition -- i.e., sanitation, temperature, [*344] ventilation, heating, lighting, noise, and clinical and medical areas. A particular requirement does not lack for sufficient findings if the provision of which it is a part is amply supported. The PLRA provides only that "prospective relief" requires factual findings. It does not dictate that for every action required by a court (no matter how minor) there be a concomitant factual finding, nor is there any reason to believe that Congress intended such an onerous burden. Requiring factual findings for each type of relief is consistent with the language of the PLRA and satisfies Congress' desire that courts account for the necessity of the relief they order. Further, to conclude otherwise would either condition the adequacy of a court's findings upon the paragraph structure of the remedial order, or, at its logical extreme, force the court into the absurd position of having to make a separate analysis for every word in the order.

Agreements between the parties -- as [**31] provided in the Proposed Order ("Prop. Order"), jointly drafted by the parties at the invitation of the Court -- are evidence that those provisions incorporated into the April 26 Order comply with the needs-narrowness-intrusiveness analysis, and constitute the kind of findings arguably required by the PLRA. Cf. Cason, 231 F.3d at 785 n.8 ("Of course, we do not mean to suggest that the district court must conduct an evidentiary hearing about or enter particularized findings concerning any facts or factors about which there is no dispute. The parties are free to make any concessions or enter into any stipulations they deem appropriate.") While the fact of agreement in the Proposed Order may not be sufficient to establish that a provision incorporated in the April 26 Order meets the needs-narrowness-intrusiveness test, it constitutes strong evidence to that effect. Similarly, the existence of a Department policy that either resembles a requirement in the April 26 Order or, if taken at face value, renders the requirement redundant, does not militate against the necessity of such requirement. Prospective relief is necessary where conditions fall below constitutional minimums, [**32] whether or not such conditions would exist if defendants observed their own rules. Indeed, rather than evidencing that a court-imposed requirement is not compliant with the PLRA, the fact of an applicable Department policy attests to narrowness and unobtrusiveness of that requirement. Requiring the Department to follow its own rules can hardly be either too broad or too intrusive.

With regard to objections to temporal deadlines -- as opposed to the relief itself -- to the extent that deadlines require "prospective relief" findings at all, the Court cannot determine that a deadline is other than narrowly drawn and unobtrusive unless defendants proffer clear counter-arguments and alternative dates. Defendants object that this approach as an impermissible shift of the needs-narrowness-intrusiveness burden to them, but such an objection misses the essential point that by providing defendants any time at all to implement the ordered relief the Court allows defendants to further trespass on detainees' constitutional rights. Contrary to what appears to be defendants' view, the Department's pre-existing, internally-generated renovation schedules are not the measure of whether a deadline complies [**33] with the PLRA. If defendants want to delay the remedy beyond the dates assigned by the Court -- after considerable input from defendants -- it is incumbent upon defendants to provide a good reason. That defendants had already intended to perform the ordered work but according to [*345] a different timeframe does not constitute a good reason.

D. Provision-By-Provision Findings

Sanitation (P 11, 13 of the April 26 Order)

In the environmental health opinions, 13 I found that the sanitation at AMKC (except for the medical areas), ARDC, GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD, QHD, West, VCBC, and BXHD fell far below constitutional minimums. The Court directed in PP 11 and 13 of the April 26 Order, as amended by this decision, that defendants take certain actions to achieve minimum constitutional standards at the 14 facilities. 14 Those actions, which are necessary to cure the constitutional violation, narrowly drawn, and as unobtrusive as possible, are to: 15 (a) clean and sanitize various hygiene and sanitation facilities at least once per day and power wash the showers with a bleach solution once per quarter; (b) complete shower replacement by August 1, 2002; (c) clean [**34] and sanitize living areas once per week; (d) clean cells upon vacancy; (e) clean and sanitize mattresses between uses by different detainees; (f) provide a ventilated janitor closet with supplies and store cleaning implements in places that are clean and ventilated and (g) provide detainees with food storage containers.

FOOTNOTES

13 The January 2001 Opinion found:

"The cumulative evidence of soiled light shields, dirty or clogged ventilation registers, vermin activity, mildewed and decrepit bathroom and shower areas, clogged toilets, dirty janitor's closets, shortages of laundry detergent, and dirty prison cells in combination constitutes a clear deprivation of adequate sanitation in the Department's jails. (See Pl. Ex. 106 & 107 passim); (Pl. Ex. 365 & 366 passim). In addition, Director Feeney's April Report highlights a number of sanitation problems: ARDC: smoke-stained walls in the majority of cells; AMKC: smoke-stained walls in housing areas; GMDC: 'modular units and showers present a sanitation problem' (Def Ex. F-1 at 16); QHD: with regard to housekeeping, 'the facility must pay more attention to detail in the housing areas' (Id. at 22); GRVC: 'The facility must focus more carefully on sanitation. Soap scum and mildew were observed in many showers ?. In Building 1A ? old food trays, paper, and rotted fruit were observed in many cells." (Id. at 24-25.)'

id. at *81-82. Similarly, the March 2001 opinion stated:

"Feeney's notes and testimony as well as other record evidence also clearly attest to the severe sanitation problems at NIC at the time of the two experts' visit to NIC in March, 2000. (See Pl. Exh. 366, at E06679-88; Tr. 959-968; Def. Exh. F-46 at E01758, 1813-4, 1822, 1853-54, 1906 (sanitarians' reports of NIC intake from August until November 1999))."

Id. at *4. [**35]

14 The April 26 Order inadvertently omitted West, VCBC, BXHD from the list of facilities at which the Court found unconstitutional sanitation. That omission is corrected infra in this opinion.

15 The following merely summarizes the requirements of PP 11 and 13. For the precise directions of the Court see the April 26 Order.


(a) personal hygiene and sanitation facilities; power washing of showers

Defendants object only to the power washing portion of this requirement. However, in light of this Court's finding that "soap scum and mildew were observed in many showers ?," January 2001 opinion at *82, and defendants' representation that power washing is "generally done once every couple of months (T840)," id., requiring quarterly power washings with bleach is, if anything, overly narrow and unobtrusive. Defendants' objection that power washing may damage tiling is not an excuse to forgo basic hygiene, but rather additional [*346] evidence that the bathrooms are falling apart.

(b) shower replacements

In many cases, the conditions of the bathrooms are so desperate as to make replacement [**36] the only viable means to achieve constitutional standards. See Pl. Post-Hearing Brief Re: Environmental Health and Related Issues, at 59-66 (which findings the Court adopts). As of the May 2000 hearings, defendants had begun a long term shower renovation project, involving: roof repair; replacement of showerheads, water and drainage lines; and installation of new walls, ceilings and mechanical ventilation. In connection with such projects, and in an effort to devise a remediation strategy consistent with defendants' ongoing efforts, the April 26 Order required defendants to "submit a complete list of the shower replacement schedules to OCC by July 2, 2001, with completion dates for the work, which dates shall not extend beyond August 1, 2002." April 26 Order, P 11b. Defendants, who agreed in the Proposed Order to the submission of "a complete list of shower replacement schedules," (Prop. Order at 8), characterize this deadline as not achievable, and request an extension of 1.5 years until January 30, 2004. This Court has no desire to impose unrealistic deadlines upon defendants, but defendants do not establish the necessity for a 1.5 year extension by claiming that August 1, 2002 is [**37] too soon and asserting that the Department's existing plans call for a longer schedule. Strangely, here and in other temporal aspects of the remedial order the defendants appear to believe that the Department's existing plans to be my guide. They are not! Given this Court's finding that the conditions of the showers are unconstitutional, I do not have the flexibility to accommodate defendants' preferences while detainees are subject to unconstitutional conditions. Nor, I might add, should the City be willing to countenance such a state of affairs in its prisons.

(c) cleaning living areas

Due to the evidence of widespread failure to observe basic sanitation practices, (January 2001 Opinion at *80-82); it is necessary for the Court to adopt a general rule that defendants must clean living areas once per week. Defendants have made no substantive objection to this requirement, which goes no further than to insist on basic sanitary practices. Moreover, since a Department policy already imposes a similar obligation, this requirement merely makes it a contempt of Court for defendants to fail to follow their own procedures. See id; Def.s' Post-Hearing Memorandum, at 67.

(d) cleaning [**38] cells upon vacancy

In the Proposed Order, defendants agreed that cells "shall be thoroughly cleaned upon becoming vacant," but objected to plaintiff's proposal, subsequently adopted by the Court in the April 26 Order, that the Court identify those activities that define a "thorough cleaning." Prop. Order at 10. Defendants' objection is misplaced. The mandated activities are not mere elaborations of the "thorough cleaning" requirement, but follow directly from the Court's findings, as set forth in the environmental conditions opinions, and reiterate requirements imposed elsewhere in the Order. For example, the activity of "repairing or replacing damaged or obscured light shields," (April 26 Order P 11d) derives from the "evidence of soiled light shields," id. at *81, and exists as a free-standing requirement under P 17e of the April 26 Order. Similarly, the requirements that mattresses be sanitized or replaced are the necessary corollaries of the obligation to provide detainees with sanitized mattresses in good repair. See April [*347] 26 Order P 11e. Given defendants' agreement that cells should be cleaned, and their agreements in other portions of the Proposed Order that mattresses [**39] should be sanitized, light shields and ventilation registers cleaned, and radiators repaired, it is self-evident that the ordered relief is not excessive or intrusive.

(e) mattresses

In holding that unsanitary conditions in the jails violated detainees' constitutional rights, the Court found "that detainees are routinely exposed to unsanitary mattresses, which poses a direct risk to health." January 2001 opinion, at *81. Sanitizing and/or replacing mattresses after use by one detainee and before use by another is the only means to stop the spread of germs and the growth of bacteria. During my April 2001 visit to Rikers Island, I noted that the overwhelming majority of mattresses were either uncovered, torn or soiled. My own admittedly unscientific findings are entirely consistent with the testimony of Dr. Powitz at the May hearings. See id.; May 2000 hearings, T646. This narrowly defined requirement is not intrusive; indeed the Department's own housekeeping manual and states that any mattresses with holes, rips, or tears should be replaced. See DX F-29 at 6510.

(f) janitor's closets; (g) food storage containers

Defendants have made no objections to these requirements, [**40] which go no further than to require defendants to engage in basic sanitary practices, which they claim to do already and profess an intent to continue. 16 In the Proposed Order, the parties agreed to both of the requirements. See Prop. Order at 12-13. Indeed, the Court adopted defendants' version of P 11g concerning janitor's closets because plaintiffs' proposal that the Court specify the kinds of supplies the closet must include was insufficiently narrow and unduly intrusiveness. Id.

FOOTNOTES

16 The Court stated in the January 2001 opinion:

Dr. Powitz testified that housing area janitor's closets, in which cleaning equipment is stored, are not kept clean. (Tr. 660, 662-663.) According to Dr. Powitz, mops and other equipment--basic items used to clean the rest of the detainee living areas--were "heavily soiled." (Tr. 660.) Dr. Powitz told the Court that 'Janitor closets probably were the dirtiest areas within any [jail housing] block. . . . Some were clean, but many were not. . . . The janitor's areas, or the closets, are the work areas for housekeeping, and generally should be the cleanest within a facility. . . . This is where you start, with clean equipment, clean chemical, clean water, and to go out to affect [sic:effect] housekeeping. . . . Start off clean, you are going to end up clean. And janitor's closets are critical to that.' (Tr. 662-663.)"

Id. at *82.


[**41] Temperature (P14 of the April 26 Order)

This Court found that class members are subject to unconstitutional extremes of temperature at AMKC, ARDC, BKHD, GMDC, GRVC, JATC, NIC, QHD, OBCC, and RMSC. See January 2001 Opinion, *38-54. Thereafter, the Court directed in P14 of the April 26 Order that defendants implement a monitoring program devised to be as narrowly drawn and unobtrusive as possible at the above-listed facilities. 17 The parties agreed on most aspects of such a program. 18 Where they disagreed, the Court [*348] generally acceded to defendants' requests and so conformed the relevant provisions of the April 26 Order. Thus, the Court (1) adopted defendants' view about when testing should occur (in the parlance of the April 26 Order, "testing days"); (2) required that 40%, as opposed to plaintiff's request of 100%, of the modular and sprung housing units be monitored on testing days; and (3) limited testing personnel to the OCC-EHOs, and did not permit OCC to use "designees" from the Department (as plaintiffs proposed) unless the OCC-EHOs prove unable to complete the monitoring and the Court approves a staff enhancement plan that includes "designees." See April 26 [**42] Order P14; Prop. Order at 16-19.

FOOTNOTES

17 The Court adopts as its own the findings included in plaintiffs' post hearing brief re: environmental health and related issues as set forth in pages 30-40.

18 Prior to the April 26 Order, there was no comprehensive system for identifying temperature problems.


In any event, since the temperature monitoring program is "monitoring" to be coordinated by OCC, as opposed to "prospective relief," P14 is not subject to the needs-narrowness-intrusiveness test. See supra section re "OCC: needs-narrowness-intrusiveness."

Ventilation (P 15 of the April 26 Order)

Inadequate ventilation constitutes a "current and ongoing" violation because the absence of ventilation -- the supply of fresh air and the exhaust of impure air -- carries significant, adverse health consequences. See January 2001 opinion, at *21-23; March 2001 Opinion, at *2. In the wake of this finding, the Court directed in the April 26 Order that defendants take certain narrowly drawn actions, constituting [**43] the least intrusive means to correct the violations, at ARDC, GMDC, GRVC, JATC, MDC, NIC, OBCC, the mental observations units at AMKC, RMSC, and the intake areas at QHD and BKHD. 19 Specifically, the Court required: 20 (a) annual inspection and balancing of ventilation systems; (b) completion of those repairs necessary to restore functional ventilation by dates certain, including repairing the roof fans at ARDC by July 31, 2001; (c) adequate ventilation in bathroom and shower areas; (d) spacing beds such that the heads of sleeping prisoners are at least 6 feet apart; (e) operational windows; and (f) information about ventilation problems in intake areas.

FOOTNOTES

19 The April 26 Order inadvertently referred to the intake areas of MRSC only. This Order, infra, corrects that omission.

20 The following merely summarizes the requirements of P15. For the precise directions of the Court see the April 26 Order.


(a) annual inspection and balancing of ventilation systems

With respect to the annual testing requirement, [**44] defendants objected that their inspection schedule for heating and cooling systems, which are included in Directive 3900, is sufficient. See Prop. Order at 23. In fact, Directive 3900 concerns only heating systems and does not address ventilation or cooling systems at all; and, in any event, the pre-existence of a directive that required defendants to test heating systems would only affirm the compliance of this Court's requirement with the PLRA. See Defendants' Exhibit F-20 at 14. Defendants do not otherwise object to the requirement that ventilation systems be inspected, tested and repaired before May 15 of every year, but they do object to the requirement that mechanical ventilation systems be balanced annually, alleging that this is not generally done in the industry and that ventilation systems are balanced only when they are installed. See Declaration of Vincent Clara in Support of Def.s' Motion For Reconsideration, P19. However, testimony to the contrary by Deputy Commissioner Tsu (May 2000 [*349] hearings, T1213) 21 and Dr. Powitz, plaintiffs' expert, (id., T485-86) is more persuasive than the affidavit of Vincent Cara. 22 Moreover, the April 26 Order expressly provides [**45] that rebalancing need not be done annually if the manufacturer's specifications dictate a different schedule. Defendants have not alleged that annual balancing is unduly burdensome.

FOOTNOTES

21 Mr. Tsu is a Deputy Commissioner in the New York City Department of Design and Construction, and has both a B.A. degree and an M.A in Architecture. At the May 2000 hearings, Mr. Tsu described his position with the City as "an urban designer," and as such supervises design and construction projects for city agencies, including the Department of Corrections. See May 2000 hearings, T1195.

22 Mr. Cara "is responsible for maintenance of the physical plant" at Rikers. See May 2000 hearings, T1084. Mr. Cara's affidavit appears to echo testimony that he gave in a deposition taken prior to the May 2000 hearings, but that was neither submitted as an exhibit nor elicited on direct examination at the May 2000 hearings.


(b) completion of repairs necessary to restore functional ventilation by dates certain

Defendants objected [**46] to the requirement that ventilation repairs be completed before July 1, 2001. However, they did not propose an alternative date, nor did they submit the inventory of such repairs that they promised on April 15, 2001, which they said was necessary to assess the time required for completion. See Prop. Order at 24.

(c) adequate ventilation in bathroom and shower areas

This requirement, agreed to by the parties in the Proposed Order (see Prop. Order at 24), is an expression of the general requirement that defendants provide adequate ventilation in all jail areas. It is included here as an independent item in the April 26 Order in recognition of the calamitous state of many of the bathrooms (to a large degree as a result of poor ventilation) and shower areas, some of which I have personally visited. See January 2001 Opinion at *82 (describing mildewed and decrepit bathroom and shower areas). In many jails, poor or no ventilation in shower rooms causes such unrelieved humid conditions that showers grow mold and deteriorate, tiles fall off the walls and dislodge from the floor, paint peels off of walls and ceilings and metal framing rusts away. See PX 123, 126, 132, [**47] 133, 134, 137-141, 145, 153, 164-67, 170-72, 176-185, 198-191.

(d) bed spacing -- heads 6 feet apart

Plaintiffs' environmental expert, Dr. Powitz, testified that beds should be placed such that prisoners' heads are 6 feet apart because droplets emanating from one person's mouth remain airborne for at least three feet but generally not as far as 6 feet. See Tr. 690-91. Upon this and other uncontradicted testimony, 23 the Court determined that defendants' failure to so space its beds was a "current and ongoing" violation. There is no need to make further findings about this requirement of the April 26 Order, because the requirement is by definition necessary to correct the violation. Defendants agreed to this requirement in the Proposed Order, and only later raised an objection to the 6 foot standard. See Prop. Order at 24. Defendants also object to the July 2, 2001 deadline [*350] for the implementation of the 6 foot standard because achieving the standard would require moving beds, and the beds are bolted to the floor. While it may be that this is labor-intensive, it is also true that moving beds, as opposed to detainees, for example, is but one means to achieve the 6 foot [**48] standard. 24 Defendants protest that there are limited available bed spaces to which detainees could be moved, but I note that the population at Rikers has contracted substantially in recent years, thereby freeing up bed spaces. Also, defendants' proposal (with regard to a different provision of the April 26 Order), that temperature violations be corrected by moving detainees from living areas that are too hot or too cold, further indicates that there are available living areas that could be used to spread out detainees.

FOOTNOTES

23 Government regulations addressing bed-spacing in other dormitory settings require that there be 3 feet between beds (or 6 feet between heads). See 24 RCNY Hlth. Code § 48.15(h)(2) (requiring 6 feet between heads of sleepers in summer camps); 29 C.F.R. § 1910.142 (requiring that beds in temporary labor camps not be spaced closer than 36 inches).

24 Clearly, defendants would comply with the 6 foot standard if detainees occupied only every other bed in living spaces in which beds are packed in tightly.


[**49] (e) operational windows

Operational windows are necessary for ventilation and temperature control. (See findings re P 16 infra regarding the importance of functioning windows in temperature regulation). There is ample evidence that non-functioning windows contribute to inadequate ventilation and excessive heat. See T129-30 (Thompson); T77 (Browne); T549, T553, T558 (Powitz); PX 106 at P00049 (Powitz notes); PX 365 at 15 (Feeney notes). This requirement is not overly intrusive, since it requires only that defendants repair non-functioning windows, a routine task in any building. Defendants object on the grounds that (1) defendants may have to replace rather than repair certain windows, (2) a complete repair/replacement program is not the least intrusive relief because a single broken window is not a constitutional violation, 25 and (3) the relief appropriate to the Court's finding of unconstitutional temperature is to direct defendants to move detainees out of housing areas where temperatures are either too hot or too cold. Defendants' first argument fails because operable windows are necessary to avoid temperature extremes, and the PLRA does not excuse defendants [**50] from necessary, if expensive, repairs. Defendants' second argument is equally unavailing because a comprehensive repair program is the only rational means to correct the system-wide violation, and is far less intrusive than the Court making window-by-window repair/replace determinations. Defendants' final argument is also unacceptable because the evidence convinces me that defendants would not be sufficiently responsive to changes in housing area temperatures and because, if fully implemented, such a program would be more intrusive and burdensome on defendants than the ordered relief.

FOOTNOTES

25 See Def.s' Br. in oppo. to Pl.'s motion for add'l findings, at 11 ("It is not necessarily the case that a single non-operative window creates constitutionally deficient conditions in a housing area. . . . For example, a single window in a dayroom or modular unit that is stuck open a crack in mild weather will not cause unconstitutional conditions in that area.")


(f) information about ventilation problems in intake areas.

[**51] Defendants make no objection to the requirement that they provide "information about the frequency and causes of malfunctioning or non-functioning mechanical ventilation in intake areas, as well as the amount of time it takes to restore fully functioning ventilation in various foreseeable circumstances." April 26 Order P15f. Intake areas often hold detainees who [*351] have just been admitted to jail and have not yet been medically screened for infectious diseases. They are extremely crowded at times of high traffic in and out of the jail. Functioning ventilation is therefore particularly important in intake areas "to reduce the infectious burden on those coming through the system . . . [where] you want dilution ventilation as much as humanly possible." T651 (testimony of Dr. Powitz).

Heating (P16 of the April 26 Order)

The Court found that class members are subject to unconstitutional extremes of temperature at AMKC, ARDC, BKHD, GMDC, GRVC, JATC, NIC, QHD, OBCC, and RMSC, See January 2001 opinion, at *38-54. To give effect to this finding, the Court directed defendants in P16 of the April 26 Order to take certain actions, which are narrowly drawn and the least intrusive [**52] means to remedy the identified heating violations. Specifically, P16 requires that defendants: 26 (a) annually test heating systems and certify that they are in full repair by October 15 of each year; (b) maintain radiators and radiator covers in good repair; and (c) prior to the end of winter ensure that windows are fully operational, repair broken windows promptly, and not house inmates in cells or dormitory areas during winter months where the windows are broken or cannot be closed or sealed. The factual findings applicable to the temperature monitoring provision (P14 of the April 26 Order, as discussed supra) are equally applicable to the heating provision as they derive from the same temperature regulation problem.

FOOTNOTES

26 The following merely summarizes the requirements of P16. For the precise directions of the Court see the April 26 Order.


(a) annually test heating systems and certify that they have done so

Defendants make no objection to annual testing of heating systems and state that such inspections [**53] already take place, but do object to the October 15, 2001 deadline to complete repairs of windows that do not close. Since the heating season is now well over, an October 15 deadline affords time enough to make repairs. Further, since the deprivation of warmth to detainees is a constitutional violation (January 2001 Opinion, at *38), and considering that after October 15 temperatures at Rikers island, which is a harsh, environmentally exposed environment, are likely to drop quickly, extending defendants' deadline would be a license to subject detainees to unconstitutional conditions for yet another winter.

(b) maintain radiators and radiator covers in good repair

The parties agreed to this requirement in the Proposed Order (see Prop. Order at 27) and is made necessary by the findings with respect to "a" above.

(c) windows must be unbroken and fully operational

Defendants object to the requirement that windows be operational during the winter, on the grounds that it is sufficient for them to be closed and sealed to maintain proper temperatures. However, because there was substantial evidence of excessive heat during the winter, keeping the windows operational is [**54] necessary to protect detainees from temperature extremes. Of this need, I can personally attest. Certain of the modular units that I visited in early April 2001 (during the Department's "heating season") were sweltering, despite the open windows all around. Had those windows been sealed, the detainees, [*352] many of whom were stripped to their waists, would have been at considerable medical risk. 27 Defendants also objected to the requirement that prisoners not be housed during the winter months in living areas where windows cannot be closed or sealed or windowpanes are broken. See Prop. Order at 28. This requirement necessarily follows from the holding that the Constitution protects detainees from exposure to extreme temperatures and the determination that detainees housed in cells with broken windows are often exposed to extreme cold.

FOOTNOTES

27 The Court adopts as its own the finding of Dr. Powitz, as summarized in "Appendix 5" of plaintiffs' "post-hearing brief re: environmental health and related issues," that living areas at facilities he visited during winter months were extremely hot.


[**55] Lighting (P17 of the April 26 Order)

The Court found that detainees are subject to constitutionally inadequate lighting at all of the defendants' jails, with the exceptions of ARDC and AMKC. See January 2001 opinion, at *83-97. In so holding, the Court found that "inadequate lighting in the Department's jails can be traced to several problems (1) non-working light fixtures (2) inadequate light bulb wattage and (3) obstructed light shields." Id. at *88. In light of that finding, the Court directed defendants in P17 of the April 26 Order to take certain actions which are narrowly drawn and the least intrusive means to correct the violations. Specifically, the Court directed defendants to: 28 (a) ensure that 20 foot-candles of light be provided at bed or desk level in all cells and dormitories at GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD and QHD; (b) ensure that in the medical areas of GMDC, NIC and RMSC there be no less than 30 foot-candles of general lighting and 100 foot-candles of task lighting in specific, functionally defined areas; (c) implement the foot-candle standards by a date certain; (d) identify and clean all light shields by a date certain; and (e) not [**56] house prisoners in cells with lights that do not work.

FOOTNOTES

28 The following merely summarizes the requirements of P17. For the precise directions of the Court see the April 26 Order.


(a) 20 foot-candle standard

In the January 2001 opinion, the Court held that 10 foot-candle lighting in cells and dormitories is constitutionally inadequate, but deferred the determination of whether a 20 or 30 foot-candle standard is necessary to remedy the violations. See January 2001 opinion, at *87 ("the inadequacy of the 10 foot candle standard is made plain by the fact that the Department endorsed an upgrade from 20 foot candles to 30 foot candles in 1993"). 29 It is the Court's view that the adoption of a foot-candle standard is necessary and the least intrusive means to give effect to the Court's holding. In the April 26 Order, over plaintiffs' objections the Court directed defendants to adopt the lesser 20 foot standard despite the Court's significant [*353] reservations about its sufficiency. See April 26 Order P17a. [**57] Further, rather than directing the Department to install bulbs of a particular wattage, the Court confined its ruling to the less intrusive requirement that prisoners must have 20 foot-candles of light at desk or bed level. It is within defendants' discretion how to achieve that standard. See Prop. Order at 30-31.

FOOTNOTES

29

"Plaintiffs argue that 'ten foot candles is, in fact, quite a dim light for purposes of activities such as reading, grooming, and letter-writing.' (Pl. Mem. at 94.) This Court agrees. The inadequacy of the 10 foot candle standard is made plain by the fact that the Department endorsed an upgrade from 20 foot candles to 30 foot candles in 1993. While this Court will not decide here which standard is appropriate, it is clear that all but a few Department facilities are dimly lit and thus provide constitutionally inadequate lighting.

Inadequate lighting in the Department's jails can be traced to several problems: (1) non-working light fixtures (2) inadequate light bulb wattage and (3) obstructed light shields (also referred to as luminary covers)."



January 2001 Opinion, at *87-88.


[**58] (b) lighting in medical areas

The April 26 Order requires 30 foot-candles of general lighting and 100 foot-candles of task lighting in areas where patients are examined or medication is stored, prepared, dispensed or otherwise handled. See April 26 Order P17b. In the Proposed Order, plaintiffs' sought 50 foot-candles of general lighting and 100 foot-candles of task lighting based upon Dr. Powitz's testimony and the Standards of the Illuminating Engineer Society of North America. See Prop. Order at 34; T611-615; PX 103. Defendants objected to the 50 foot-candle standard and instead recommended the OSHA standard of the 30 foot-candle standard. Although the Court has reservations about the adequacy of the 30 foot-candle standard in medical facilities, the April 26 Order adopted defendants' proposal so as to ensure that defendants' obligations did not exceed constitutional minimums. Defendants also favored a 90 foot-candle standard for task lighting, but the Court determined that the 100 foot-candle standard is constitutionally imperative given the safety risks posed by inadequate light in patient treatment areas. See Prop. Order at 34 ("Defendants . . . would accept [**59] a standard of 90 ft.cd. for task lighting"). Moreover, even if 90 foot-candles of task lighting meets minimum standards, which I do not believe is the case, the additional 10 foot-candles of lighting does not render the 100 foot-candle unduly broad or intrusive.

(c) implementation deadlines

The April 26 Order directed defendants to implement the foot-candle standards by August 1, 2001 except to the extent that capital renovations are required. See April 26 Order P17d. Defendants object on the ground that meeting the 20 foot-candle standard will require painting cell walls and taking other time intensive actions; however, defendants could meet the standard by installing higher wattage bulbs and, in any event, have provided no reason why three months is insufficient time to apply a coat of paint or hit upon some other means to enhance lighting. Defendants' further objection -- that the August 1, 2001 deadline poses particular problems at BKDC, QDC and JATC where capital renovations may be required -- is misplaced since the April 26 Order obliged defendants only to identify capital renovations by August 1, 2001 (for completion by January 3, 2002).

(d) identify and clean all [**60] light shields by a date certain

In the January 2001 opinion, the Court found that constitutionally inadequate lighting was, in part, traceable to obstructed light shields. See January 2001 opinion, at *88. Defendants object to the imposition of any completion date for identifying and cleaning or replacing light shields that are discolored, painted over, or obscured, on the sole ground that this responsibility is ongoing and any completion date is inappropriate. See Prop. Order at 32-33. The defendants have missed the point. The completion date of August 1, 2001 refers to an initial system wide cleaning and replacement effort. See April 26 Order P17d. The second sentence of the paragraph refers to their obligation to maintain the light shields in a clean and un-obscured state. [*354] These provisions are the least intrusive remedies first, to get the light shields cleaned up, and second, to keep them that way.

Noise (P18 of the April 26 Order)

Paragraph 18 directs 30 defendants to certify that the diesel generators are being used for backup purposes only at RMSC and ARDC. Defendants have already provided this certification.

FOOTNOTES

30 The following merely summarizes the requirements of P18. For the precise directions of the Court see the April 26 Order.


[**61] Clinical & Medical Areas (P19 of the April 26 Order)

In both the environmental health opinions, the Court found that the sanitary conditions at the clinical and medical areas of GMDC, NIC and RMSC are constitutionally inadequate. See January 2001 opinion, at *107; March 2001 opinion, at *6. 31 In furtherance of that holding, the Court directed in P19 of the April 26 Order that defendants take certain narrowly drawn actions which are as unobtrusive as possible. Specifically, the Court directed that defendants: 32 (a) maintain the clinic and infirmary areas at NIC, GMDC and RMSC in a clean and sanitary condition and (b) assign cleaning crews to NIC, GMDC and RMSC for twice daily cleanings. See April 26 Order P19.

FOOTNOTES

31 GMDC: (January 2001 Opinion, at *101-102.)

"Dr. Powitz's notes taken during an inspection tour of the GMDC Infirmary indicate that sanitation was 'poor.' (Pl. Ex. 106 at P00082.) In addition, storage containers were soiled and there was soil buildup in corners. (Id.) Dr. Powitz testified that expired medication was found in the medication room. (Tr. 626.)").

NIC: (March 2001 Opinion, at *4.)

"Although much of the relevant portion of the January opinion reviews Dr. Powitz's testimony, Ms. Feeney's notes and testimony as well as other record evidence also clearly attest to the severe sanitation problems at NIC at the time of the two experts' visit to NIC in March, 2000. (See Pl. Exh. 366, at E06679-88; Tr. 959-968; Def. Exh. F-46 at E01758, 1813-4, 1822, 1853-54, 1906 (sanitarians' reports of NIC intake from August until November 1099))."

RMSC: (January 2001 Opinion, at *107.)

"Director Feeney's notes taken during a tour of the RMSC clinic on March 21, 2000 can be summed up in the following notation: 'Clinics don't meet veternary [sic] standards.' (Pl. Ex. 366 at E06690.)"

[**62]

32 The following merely summarizes the requirements of P19. For the precise directions of the Court see the April 26 Order.


(a) maintaining clean and sanitary conditions

Defendants did not object substantively to any provisions of this requirement, but said that its subject matter is addressed in their internal directive, (Prop. Order at 41); however, Directive 3903, from which the requirements of this paragraph are taken has been in effect since 1995, and obviously did not cure the violation. See DX F-22 at 7-10. Therefore, the inclusion of the specific requirements enumerated as 1-10 in P19 of the April 26 Order are necessary to ensure that constitutional standards are achieved. Since defendants' regulations require compliance with the substance of the requirement, it is narrowly drawn and unobtrusive.

(b) cleaning crews

Defendants object only to the prohibition on using patients to clean the GMDC infirmary where the inmates are all ambulatory. See Prop. Order at 45. In fact, disabled inmates are housed there, and one detainee whose leg had been amputated testified that [**63] he was required to clean [*355] the mold out of the bathtub himself before he could use it. See T108-09 (testimony of Fischetti). As a matter of common sense, sick people should not be relied upon to maintain sanitary conditions. The fact that they can walk does not mean that they are capable of working with mops and scrub brushes. Defendants do not propose a less intrusive alternative for ensuring sanitation in this area that can sensibly be relied upon to work.

Defendants object to the provision that "correctional and mental health staff" will identify persons whose living areas must be cleaned by cleaning crews, arguing that correctional staff lack authority to make determinations about the capabilities of inmates in mental health housing areas. See Prop. Order at 45. Their objection rests on a misunderstanding. The requirement does not contemplate altering the authority of correctional staff or mental health staff. Rather, correctional staff who supervise mental health living areas should report their observations about the cleanliness of those areas to mental health staff. This requirement is both unobtrusive and narrowly tailored since it merely directs the parties to follow [**64] a policy that the Department has represented is already in effect. See PX 9 at 2.

III. PLAINTIFFS' MOTION TO AMEND THE APRIL 26 ORDER WITH RESPECT TO THE STATUS OF PRIOR ORDERS RELATING TO OCC

Plaintiffs moved to amend the April 26 Order to state that certain of the prior orders relating to OCC remain in effect until further order of this Court. Defendants oppose on the ground that all such orders have by their terms expired. The orders of February 24, 1995, December 9, 1999 and September 18, 2000 continue in effect as modified by this and other orders of this Court.

IV. PARTIES' MOTION TO AMEND P6 OF THE APRIL 26 ORDER

Paragraph 6 of the April 26 Order provides that the Department of Health "shall continue to thoroughly inspect each jail at least once every month and at more frequent intervals when required by the OCC Director." Plaintiffs argue, with uncharacteristic support from defendants, that conferring upon the OCC the power to "require" action by a City agency may be an unconstitutional delegation of judicial power. See e.g. United States v. Doe, 79 F.3d 1309, 1318-19 (2nd Cir. 1996) (holding that the court could not delegate to [**65] the Probation Department the decision whether a convicted accountant must notify clients of a conviction). In an abundance of caution, the Court grants plaintiffs' request and strikes from P6 of the April 26 Order the words, "and at more frequent intervals when required by the OCC Director."

V. PARTIES' MOTION TO CLARIFY P3 OF THE APRIL 26 ORDER

Paragraph 3 of the April 26 Order provides: "Under the direct supervision of the OCC Director, defendants shall continue to employ in each affected jail" environmental health officers, now to be known as "OCC-EHOs." The EHOs may be captains employed by the Department. Plaintiffs argue that placing the EHOs under the direct supervision of OCC would cause both legal and practical problems. Direct supervision has to do with the requisite reporting obligation of the OCC Director so that he may fulfill his obligations. The language in P3 of the April 26 Order, specifically the words, "Under the direct supervision of the OCC Director," are stricken. The April 26 Order in no way means or was meant to mean more than [*356] that the Department will delegate to OCC the staff who will serve as OCC-EHOs, in continuation of existing practices. 33 [**66]

FOOTNOTES

33 Captain Boyd, for example, was delegated to OCC.


VI. PLAINTIFFS' MOTION TO AMEND CERTAIN ERRORS IN THE APRIL 26 ORDER

A. Training Of The Public Health Sanitarians And Dept. of Health Inspectors

Plaintiffs accurately point out that the April 26 Order does not require the pre-submission of the training curriculum for public health sanitarians and Department of Health inspectors. Since defendants have no objection to presenting such criteria to the Court, the April 26 Order is amended to provide that defendants do so by July 16, 2001.

B. Access To The Institution By Plaintiffs' Counsel

Plaintiffs have not argued that the decision of the Court to limit the access of plaintiffs' counsel to the institutions was in any way legally wrong; thus the Court declines to make any changes to P7 of the April 26 Order. The fact that plaintiffs previously enjoyed such access under the consent decrees does not entitle them to such access now. It has been, and must remain, the objective of this [**67] Court to tailor the remedial order as narrowly as possible.

C. Private Consultation With Members Of The Plaintiff Class

There being no objection by defendants, the Court hereby strikes the reference to defendants' counsel from the provisions of the April 26 Order that provide for confidential communications with members of the plaintiff class.

D. Scope Of Relief Regarding Sanitation

Plaintiffs accurately point out that P11 of the April 26 Order incorrectly limited the scope of relief to 11 facilities, instead of 14. Paragraph 11 should read: AMKC (except for the medical areas), ARDC, GMDC, RMSC, JATC, GRVC, NIC, OBCC, MDC, BKHD, QHD, WEST, VCBC, and BXHD. In connection with this change, the last sentence of the third paragraph of the "INTRODUCTION" of the April 26 Order is amended to read:

Specifically, this Court found violations at: the Adolescent Reception and Detention Center ("ARDC"); the Anna M. Kross Center ("AMKC"), the George Motchan Detention Center ("GMDC") and the Rose M. Singer Center ("RMSC"); the James A. Thomas Center ("JATC"); the George R. Vierno Center ("GRVC"); the North Infirmary Command ("NIC"); Otis Bantum Correctional Center ("OBCC"); [**68] the Manhattan Detention Center ("MDC"); the Brooklyn House of Detention ("BKHD"); the Queens Detention Center ("QHD"); West Facility ("West"); the Vernon C. Bain Center ("VCBC"); and Bronx Detention Center ("BXHD").



E. Scope Of Relief Regarding Ventilation

Plaintiffs note that my March 2001 opinion extended the finding of unconstitutional ventilation to all areas of RMSC. Therefore, P15 of the April 26 Order is amended to read: "Defendants shall implement the following at ARDC, GMDC, GRVC, JATC, MDC, NIC, OBCC, the mental observations units at AMKC, RMSC, and the intake areas of QHD and BKHD."

F. Ventilation Register Cleaning

There being no objection, the Court will amend P15(f) of the April 26 2001 Order to [*357] include the following sentence: "Defendants shall ensure that ventilation registers in all cells and pens in intake areas are cleaned weekly."

G. Numbering Errors

Due to computer error, several Ps are numbered incorrectly in the April 26 Order. Since these errors are cosmetic and create no confusion, the Court declines plaintiffs' request to make such a change in this Supplemental Order.

VII. DEFENDANTS' MOTIONS FOR RECONSIDERATION

[**69] A. Motion To Amend Deadlines Imposed By The April 26 Order

Defendants argue that the April 26 Order sets unreasonable deadlines that are unsupported by the record. For the reasons provided in Section "II" of this opinion, which provides findings relevant to the needs-narrowness-intrusiveness test, the Court finds that its deadlines are reasonable and fully supported in the record. However, as my concern is with the expeditious remediation of the jails, not punishing the Department of Corrections, this Supplemental Opinion & Order need not be the final word on plaintiffs' deadlines. Plaintiffs may make additional specific requests for extensions of time which the Court will decide in consultation with the Director of the OCC. Further, each deadline imposed by the April 26 Order that expires in either July 2001 or August 2001 is hereby extended by 60 days so as to provide the OCC Director with time to acquaint himself with the April 26 Order and the status of work being done in conformity with this Order.

B. Motion To Amend The 6-Foot Bed Spacing Standard

For the reasons provided in Section "II" of this opinion the Court denies defendants' motion to amend the 6 foot spacing [**70] standard.

C. Ventilation Balancing

For the reasons provided in Section "II" of this opinion, the Court denies defendants' motion to amend the obligation to balance the ventilation system or alter the deadlines for so doing. At the May 2000 hearings, witnesses for both sides testified that balancing ventilation systems is required. See T 1213 (Deputy Commissioner Tsu testifying that air handling units should be rebalanced annually); PX 366 at EO6656 (Patricia Feeney notes from MDC indicate the need to balance the HVAC system); T485 (Dr. Powitz testifies that the HVAC systems need to be cleaned and rebalanced as they are cleaned).

D. Department of Health Inspection Of Medical Areas

The April 26 Order (P6) directs the Department of Health ("DOH") to participate in inspections of the medical facilities. Defendants object, as they did prior to the issuance of the April 26 Order, contending that DOH inspectors are not trained to perform such inspections. Defendants' objection failed then, as it fails now. Defendants can train DOH inspectors to inspect the sanitation and infection control aspects of clinic sanitation or enter into an arrangement whereby the New York [**71] City Health and Hospitals Corporation ("HHC") performs the inspections, or for that matter amend the contract with its new provider for medical services. 34 If defendants require additional time to devise [*358] a training curriculum for DOH inspections, they are free to raise that concern.

FOOTNOTES

34 HHC operates the City's municipal hospitals and many clinics.


E. Public Health Sanitarians

The Court grants defendants' unopposed motion to amend the description of public health sanitarians in the April 26 Order, and replaces the first sentence of footnote 1 with the following:

"Although the job description and qualification requirements vary to some degree among employers, a public health sanitarian for purposes of this Order is a college educated professional with 30 college credits in the biological and/or physical sciences who has undergone significant additional job-specific training."



F. Use Of Correctional Staff To Identify Inmates Whose Cells Are To Be Cleaned By Others

Defendants reiterate [**72] an argument made before the issuance of the April 26 Order that correctional staff lack the expertise to identify inmates in mental health housing areas whose housing areas are to be cleaned by inmate cleaning crews. Let me clarify the requirements of P19b of the April 26 Order: correctional staff who supervise mental health living areas are to fulfill a reporting role only, reporting their observations about whether an inmate is not, or has stopped, cleaning his cell to mental health staff. Paragraph 19b does not confer on correctional staff the power to make determinations about such inmates.

VIII. APPOINTMENT OF JOHN H. DOYLE III AS OCC DIRECTOR

The April 26 Order provided: "The Court must approve the selection of the new OCC Director, and will independently select the OCC Director if the parties fail to promptly agree upon a mutually acceptable candidate." April 26 Order P 2. Subsequently, the parties separately notified the Court of their proposed candidates, 8 in total. 35 On May 15, 2001, after interviewing the 8 candidates, the parties informed the Court that the list had been narrowed to 4 candidates, with each side supporting 2 different candidates. Because of [**73] the inability of the parties to reach consensus, I conducted interviews with candidates acceptable to one party or the other, and with additional candidates who I believed capable and appropriate. After a fairly searching inquiry, I have concluded to and hereby appoint John H. Doyle III as the Director of OCC.

FOOTNOTES

35 Defendants proposed 5 candidates and plaintiffs proposed 3.


Mr. Doyle is a graduate of Fordham College and The Harvard Law School. He served with the Lawyer's Committee for Civil Rights Under Law in Mississippi, as an Assistant United States Attorney in the Southern District of New York, and as Assistant Chief, and later Chief, of the Criminal Division in that office. He chairs the Committee on Drugs and the Law at the Association of the Bar of the City of New York, and served as co-chair of the Gender Subcommittee of the Second Circuit Task Force on Gender, Racial and Ethnic Fairness. He is a member of the firm in Anderson, Kill & Olick, P.C.

Mr. Doyle's appointment is effective immediately.

[**74] SO ORDERED

New York: NY

Dated: July 11, 2001

Harold Baer, Jr.

U.S.D.J.