The opinion of the court was delivered by: SHERIDAN
This case is before the court on plaintiffs' motion for enforcement of the consent decree entered into by the parties and approved by the court on May 31, 1973.
Plaintiffs -- Henry Padgett, Eugene Washington, and William Johnson, inmates at the York County Prison -- on behalf of themselves and all other inmates incarcerated at the York County Prison brought this action under the Civil Rights Act, 42 U.S.C.A. §§ 1981, 1983 and the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, seeking declaratory and injunctive relief against the defendants -- the members of the York County Prison Board,
Richard J. Hahn, Warden of the York County Prison, William B. Robinson, Commissioner of the Pennsylvania Bureau of Correction,
Joseph A. Fecunda, Director of County Correctional Services, Robert P. Kane, Attorney General of Pennsylvania,
and the Pennsylvania Department of Justice.
Jurisdiction is properly predicated on 28 U.S.C.A. § 1343. The complaint seeks declaratory and injunctive relief to remedy alleged unconstitutional conditions of confinement at the York County Prison. The parties entered into a consent decree, which was approved by the court, in which the defendants agreed with respect to the York County Prison: (1) to comply with the state minimum requirements for county prisons embodied in 37 Pa.Code §§ 95.221-95.248 (adopted April 6, 1973); (2) not to discriminate on the basis of race, color, religion, creed or national origin with respect to work assignments and not to permit derogatory discriminatory remarks to be made to inmates by correctional personnel; and (3) to permit all inmates visitation of at least ninety minutes per week and visitation with children of at least thirty minutes on Sundays, to allow each inmate a visiting list of eight persons, to guarantee the inmates the right to have one visitor remain for as long as ninety minutes on visiting day, in satisfaction of his weekly visitation allowance, and to modify the visitation facilities to insure more dignity and privacy for visitation.
The court turns first to defendants' contention that plaintiffs' action for enforcement of the consent decree is barred by laches. Plaintiffs argue that the defendants have waived this defense under Rule 12 of the Federal Rules of Civil Procedure because laches was never asserted as a defense in a responsive pleading or motion by the defendants. Ordinarily, an affirmative defense such as laches is deemed waived if not asserted in a responsive pleading or motion, although the courts have freely granted leave to amend pleadings to include a defense omitted from the original pleading and have often granted relief from waiver under Rule 60(b) or Rule 15(b) of the Federal Rules of Civil Procedure. See 2A Moore, Federal Practice para. 12.23. In the instant case, the court holds that there has been no waiver of the defense of laches since one does not plead in response to a motion for enforcement of a consent decree, and where no pleading is required or permitted, there is no waiver.
Laches consists of two elements, unreasonable delay in asserting a claim and prejudice resulting to the defendant from such delay. Gruca v. United States Steel Corporation, 3 Cir. 1974, 495 F.2d 1252; see Gardner v. Panama Railroad Co., 1951, 342 U.S. 29, 72 S. Ct. 12, 96 L. Ed. 31; Czaplicki v. The Hoegh Silvercloud, 1956, 351 U.S. 525, 76 S. Ct. 946, 100 L. Ed. 1387; Gutierrez v. Waterman Steamship Corp., 1963, 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297. The consent decree was approved by the court on May 31, 1973. The motion for enforcement of the consent decree was filed on March 13, 1975. During this period of time defendants undertook to implement the consent decree, and plaintiffs monitored the defendants' activity and attempted to secure full compliance with the agreement. The consent decree provides that this court retains jurisdiction for the purpose of overseeing implementation of the consent decree and until such time as the court determines that the parties are in full compliance therewith. In a letter received by the court on March 12, 1975, the defendants for the first time requested the court to issue an order which declared them to be in compliance with the consent decree. One day later the plaintiffs filed their motion for enforcement of the consent decree. Thus, it is apparent that until March of 1975, defendants were still making changes in the prison in order to achieve full compliance with the agreement, and that plaintiffs were monitoring the actions of the defendants to determine whether any additional legal action on their part would be necessary. The one-year and ten month time period between the approval of the consent decree and the filing of plaintiffs' motion for enforcement thereof is not an unreasonable length of time given the nature of the consent decree and in view of the aforementioned circumstances. There has been no inexcusable delay in seeking enforcement of the agreement, and no real prejudice to the defendants has ensued from the passage of time. Plaintiffs' motion is timely, and the court holds that the motion is not barred by laches.
The defendants also argue that this court should refuse to decide any questions of local and state law -- e.g., whether the defendants have complied with the state minimum requirements for county prisons -- because this action was brought under the Civil Rights Act, 42 U.S.C.A. §§ 1981, 1983, and, therefore, the court has the power to adjudicate only federal questions. While this argument would be meritorious in the absence of the consent decree -- it being a well-established principle that wrongdoing must amount to a deprivation of a right, privilege or immunity protected by the Constitution or the laws of the United States in order to present a claim cognizable under the Civil Rights Act, Gittlemacker v. Prasse, 3 Cir. 1970, 428 F.2d 1; Howell v. Cataldi, 3 Cir. 1972, 464 F.2d 272; Johnson v. Glick, 2 Cir. 1973, 481 F.2d 1028; Isenberg v. Prasse, 3 Cir. 1970, 433 F.2d 449; Kent v. Prasse, 3 Cir. 1967, 385 F.2d 406; Kao v. Red Lion Municipal Authority, M.D.Pa.1974, 381 F. Supp. 1163; Conner v. Jeffes, M.D.Pa.1975, 67 F.R.D. 86; Sheffey v. Greer, E.D.Ill.1975, 391 F. Supp. 1044 -- this contention is frivolous in the instant case where the defendants entered into a consent decree which requires them to bring the York County Prison into compliance with the state minimum standards for county jails. This court has the power to adjudicate all issues necessary to a determination of whether the defendants are in compliance with the consent decree, even though this determination requires the resolution of state law questions.
The court will examine first plaintiffs' federal constitutional claims. Plaintiffs contend that the overall conditions of confinement at the York County Prison constitute cruel and unusual punishment for both sentenced prisoners and pretrial detainees.
The cruel and unusual punishment clause of the eighth amendment is applicable to the states through the due process clause of the fourteenth amendment. Robinson v. State of California, 1962, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758. The eighth amendment's proscription is not precisely definable. In Anderson v. Nosser, 5 Cir. 1971, 438 F.2d 183, 190-191, the Court of Appeals for the Fifth Circuit stated:
"The cruel and unusual punishment clause is a nonstatic, moral precept designed to curb treatment which offends contemporary standards of decency. Until the early part of this century, the ban on cruel and unusual punishment had been interpreted to apply only to outrageous and barbarous practices. See Generally Goldberg & Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv.L.Rev. 1773 (1970); Note, The Cruel and Unusual Punishment Clause and the Substantive Criminal Law, 79 Harv.L.Rev. 635 (1966). The concept has now expanded, but its precise boundaries are still unclear. Wilkerson v. Utah, 1878, 99 U.S. 130, 135-136, 25 L. Ed. 345 ('Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishment shall not be inflicted. * * *'); Trop v. Dulles, 1958, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630. Courts have relied upon such imprecise measures as the protection of 'the dignity of man,' Trop v. Dulles, supra, 356 U.S. at 100, 78 S. Ct. 590, or 'developing concepts of elemental decency,' Jordan v. Fitzharris, supra [D.C.], 257 F. Supp.  at 679. . . ."
In an attempt to elucidate the meaning of the concept, Justice (then Judge) Blackmun in Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571, 579 stated:
". . . The Eighth Amendment's basic concept 'is nothing less than the dignity of man' and assures that a state's punishment power 'be exercised within the limits of civilized standards.' Fines, imprisonment, and even execution may be imposed 'but any technique outside the bounds of these traditional penalties is constitutionally suspect.' 356 U.S. at 100, 78 S. Ct. at 598. The scope of the Amendment is not 'static.' It 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.' 356 U.S. at 102, 78 S. Ct. at 598. Virtually all the world's civilized nations refuse to impose statelessness as punishment for crime. 356 U.S. at 102, 78 S. Ct. at 598.
"From that opinion we glean a recognition of, and a reliance in part upon, attitudes of contemporary society and comparative law. And the emphasis is on man's basic dignity, on civilized precepts, and on flexibility and improvement in standards of decency as society progresses and matures. Finally, it is 'any technique' outside the traditional bounds which 'is constitutionally suspect.'"
While difficulty necessarily attends any effort to precisely define the term "cruel and unusual punishment," the following basic tests, each of which constitutes a different constitutional prohibition, have been utilized to determine whether particular conduct or conditions constitute a violation of the eighth amendment: (1) whether the conduct is of such a character as to violate fundamental fairness or as to shock the conscience as measured by the evolving standards of contemporary society, Trop v. Dulles, 1958, 356 U.S. 86, 78 S. Ct. 590, 2 L. Ed. 2d 630; Howell v. Cataldi, 3 Cir. 1972, 464 F.2d 272; (2) whether the punishment is greatly disproportionate to the offense for which it is imposed, Weems v. United States, 1910, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793; Robinson v. California, 1962, 370 U.S. 660, 668-678, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (Douglas, J. concurring); Rinehart v. Brewer, S.D.Iowa 1973, 360 F. Supp. 105, aff'd 8 Cir. 1974, 491 F.2d 705; (3) whether the punishment goes beyond legitimate penal objectives -- i.e., whether the punishment bears a rational relationship to the accomplishment of legitimate penal goals which are of sufficient importance to justify its severity, Furman v. Georgia, 1972, 408 U.S. 238, 257-306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (Brennan, J. concurring); Rudolph v. Alabama, 1963, 375 U.S. 889, 891, 84 S. Ct. 155, 11 L. Ed. 2d 119 (Goldberg, J., dissenting from denial of certiorari); contra: Furman v. Georgia, supra, at 375-405, 92 S. Ct. 2726 (Burger, C.J., dissenting); (4) whether a "unique" punishment is applied "wantonly" and "freakishly" so that it is inflicted arbitrarily on some individuals but not on others similarly situated, Furman v. Georgia, 1972, 408 U.S. 238, 306-310, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (Stewart, J., concurring).
Applying these principles to the evidence adduced at the trial in the instant case, it is readily apparent that no single prison condition at York County Prison constitutes cruel and unusual punishment. Thus, the issue becomes whether cruel and unusual punishment attends the overall confinement of inmates within the prison.
Several courts have concluded that inmates have suffered cruel and unusual punishment as the result of exposure to the cumulative effect of prison conditions, even though the conditions, examined separately, would not violate the eighth amendment. Jones v. Wittenberg, N.D.Ohio 1971, 323 F. Supp. 93 and 330 F. Supp. 707, aff'd sub nom., Jones v. Metzger, 6 Cir. 1972, 456 F.2d 854; Holt v. Sarver, E.D.Ark.1970, 309 F. Supp. 362, aff'd 8 Cir. 1971, 442 F.2d 304; Hamilton v. Schiro, E.D.La.1970, 338 F. Supp. 1016; Brenneman v. Madigan, N.D.Calif.1972, 343 F. Supp. 128; Rhem v. Malcolm, S.D.N.Y.1974, 371 F. Supp. 594, aff'd in part, rev'd in part and remanded, 2 Cir. 1974, 507 F.2d 333, opinion on remand, S.D.N.Y.1975, 389 F. Supp. 964. The court holds that the conditions which exist at the York County Prison are not shocking to the conscience and do not violate basic standards of elemental decency. Unlike the conditions found to exist in the prisons involved in the foregoing cases in which the courts held that the cumulative effect of imprisonment therein constituted cruel and unusual punishment, the York County Prison is not filthy, is free from foul odors, has adequate ventilation, heating, plumbing, lighting, and sanitation, and is not infested with rats, roaches, insects, or other vermin. York County inmates are given nutritional meals which are prepared and served in a sanitary manner (the Warden and correctional personnel eat the same food as the inmates); they are provided with adequate clothing, bedding, shaving implements (three times a week and on special occasions, such as court appearances), and cleansing devices with which to keep their cells clean (upon request). The inmates can shower daily and are allowed adequate exercise, recreation, and visitation. The prison provides satisfactory medical and dental care for inmates. Corporal punishment is prohibited. Inmates are not subject to constant attack by other inmates, and prisoners who constitute a threat to the safety of others are segregated from the general population. The prison does not employ a trusty system. The aforementioned conditions have been found to exist in those cases, previously cited, in which the court found that the overall effect of confinement subjected the inmates to cruel and unusual punishment.
The York County Prison is overcrowded and understaffed (see section infra discussing state minimum requirements for county prisons) and the building itself is antiquated with no master locking system and no fire escapes. However, while the physical facility is inadequate, conditions at the prison clearly do not violate basic standards of human decency and are not shocking to the conscience. Inmates are not mistreated by the correctional staff. The court finds that the procedures set forth in the Procedures Manual (defendants' Exhibit No. 4) are in fact adhered to by the correctional staff and that the prison rules set forth in the Handbook For Inmates (defendants' Exhibit No. 3), copies of which are available to all prisoners, are in fact the rules which the inmates are subject to. The correctional personnel operate the prison in a professional manner. The court holds that conditions of confinement at the York County Prison are not shocking or barbarous and hence do not subject inmates to cruel and unusual punishment.
In addition, while the court agrees with the Court of Appeals for the Tenth Circuit in Poindexter v. Woodson, 10 Cir. 1975, 510 F.2d 464, that the use of "strip cells" as described therein is unconstitutional, it is clear that no such cells exist at the York County Prison.
Furthermore, it is apparent that the York County Prison does not inflict punishment on inmates, for misconduct or any other reason, that is disproportionate to the offense for which it is imposed, nor does the punishment go beyond legitimate penal goals. There is no corporal punishment within the prison. Indeed, the usual punishment for any misconduct is loss of recreation privileges for a short period of time -- i.e., a week or ten days. In addition, an inmate may be put on the "segregation tier,"
which because of crowded conditions at the prison does not truly constitute segregation since there are almost always many other inmates incarcerated there, including those in transit, with whom an inmate has daily contact. The physical facilities on the segregation tier and in the segregation cells are identical with those in any other part of the prison. There is ...