The opinion of the court was delivered by: COHILL
Jurisdiction and Background
Plaintiff, Kenneth Owens-El, is a former inmate of the Allegheny County Jail ("jail"), Pittsburgh, Pennsylvania. In 1975 he filed a pro se suit (one filed by himself without legal counsel), challenging the constitutionality of the conditions under which inmates of the jail are confined and seeking money damages and equitable relief. The complaint named as a defendant, William Robinson, the warden of the jail when the complaint was filed. James Jennings was added as a defendant when he succeeded Warden Robinson. The case was referred to the United States magistrate for a report and recommendation.
In 1976 Neighborhood Legal Services ("NLS") filed a class action suit in behalf of all jail inmates, past, present and future, petitioning for a declaratory judgment holding that the conditions of confinement at the jail violate the constitutional rights of the inmates. The complaint named as defendants the Allegheny County Commissioners, the members of the Allegheny County Board of Prison Inspectors, and James Jennings, the warden of the jail.
With the consent of all parties, these two cases were consolidated for trial and certified as a class action. Calvin Milligan, a member of the class, and plaintiff, Kenneth Owens-El, acted as their own legal counsel in cooperation with the NLS attorneys.
Specifically, the plaintiffs brought suit under 42 U.S.C. § 1983 (the Civil Rights Act of 1871) contending that the conditions within the jail constitute cruel and unusual punishment proscribed by the Eighth Amendment of the United States Constitution, violate their rights to due process and equal protection under the Fourteenth Amendment, and violate their rights under the First, Fourth and Sixth Amendments of the Constitution.
This court has jurisdiction under 28 U.S.C. § 1343, granting jurisdiction in civil rights cases to the United States district courts, 28 U.S.C. § 2201, providing for declaratory judgments and 28 U.S.C. § 2202, allowing further relief based on a declaratory judgment.
After extensive pretrial discovery by the parties, a six week non-jury trial ensued during which the testimony of some 50 witnesses was heard, including that of experts in the fields of mental health, medicine, penology and hygiene. Other witnesses included guards, nurses, prisoners, former prisoners, attorneys, a county commissioner, the Sheriff of Allegheny County, a representative of the Coroner's office, an exterminator, the present warden of the jail and the former jail warden, who is now Commissioner of Corrections for Pennsylvania.
We do not subscribe to the theory that a jail should be a country club, rest home or resort; nevertheless, prisoners are entitled to certain rights and the basic elements of human dignity. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). During the trial it became apparent that the relatively long-term prisoners in the two state penal institutions closest to Pittsburgh, the State Regional Correctional Facility at Greensburg and the State Correctional Institution at Pittsburgh (more commonly known as "Western Penitentiary") receive better care and treatment than the jail inmates, yet most of the persons confined in the jail are pretrial detainees; that is, they have not been convicted of anything; they are there simply because they can't obtain a bail bond to secure their release prior to their trials.
Besides pretrial detainees, there are also other classifications of inmates housed in the jail. These include inmates who have been convicted but are awaiting sentencing, inmates who have been committed to the jail for misdemeanors for relatively short sentences, those who are in, out and in again as part of a work-release program, federal prisoners awaiting trial or sentencing, and state and federal prisoners who have been brought from other institutions to reside in the jail while testifying in other cases in either the state or federal courts. Thus it is a "mixed bag" of residents and obviously a difficult situation for county officials to deal with. It is not and would not be practical to have separate facilities for each such class of inmate. We are nevertheless convinced that the inmates' constitutional rights have been violated and that remedial action is required.
We heard the opinions of expert witnesses as to what the optimum standards for confined persons should be as well as their criticisms of the existing accommodations and procedures at the jail. Nevertheless, a federal court may only invalidate those practices which constitute violations of federally guaranteed rights. The function of this court is not to determine what practices the court would implement if it were the jail administrator, but rather to establish minimal standards in those areas where the basic rights of inmates have been violated.
We have attempted here to strike a balance between the legitimate demands of pretrial detainees for unfettered enjoyment of those rights to which they are entitled as persons unconvicted of any crime and the compelling custodial necessities of a jail administration.
We are reluctant to interfere with such administration, and we do so now in certain areas only because paramount rights of the plaintiff inmates have supervened.
In recent years the County has tried to enhance and make more tolerable the conditions of the jail, mainly through capital improvements. Almost four million dollars have been spent in these improvements. Despite this, more changes are necessary to meet minimum constitutional standards in some areas.
It is well established that an individual or a class may not be deprived of constitutional rights simply because of economic considerations. See Rozecki v. Gaughan, 459 F.2d 6 (1st Cir. 1972); Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); and Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Ca. 1972). "Lack of funds is not an acceptable excuse for unconstitutional conditions of incarceration." Finney v. Arkansas Board of Correction, 505 F.2d 194, 201 (8th Cir. 1974).
On the first day of the trial of this case, after hearing the opening statements of counsel and the participating inmates, but before taking any testimony, we announced, without advance notice to anyone, that we wished to tour the jail. Within half an hour we had commenced a thorough inspection, including having lunch in the guards' dining room and eating the same food as that served to the prisoners. The inspection and tour lasted approximately three hours.
We believe that a case like this should be decided on the basis of the facts as they existed when suit was filed, not when the court's inspection occurred; otherwise, continually changing conditions would make it virtually impossible ever to terminate the case. The tour was helpful, however, in enabling the court to understand what areas of the jail witnesses were talking about as their testimony developed, and the conditions that they were describing.
As required by Fed. R. Civ. P. 52, we have made Findings of Fact specially and have stated separately our Conclusions of Law based thereon. We have departed from the usual method of organizing such an Opinion, however; the common practice is for the court to state all the Findings of Fact pertaining to the case and then to set forth the court's Conclusions of Law. Because of the many subject areas considered during the trial of this case, that method would be cumbersome and perhaps confusing. Instead, we will first consider the law as it generally pertains to "inmates' cases" and then discuss each subject area of this case separately, making the Findings of Fact, stating our Conclusions of Law pertaining thereto, and then moving on to the next area where the process will be repeated.
The Law Pertaining to "Inmates' Cases"
At one time, it was the policy of the federal courts to avoid interference with the administration of state penal facilities. This "hands-off" attitude has been reevaluated by the courts in the last decade in response to mushrooming litigation filed by prisoners challenging the constitutionality of conditions under which they are confined and has now evolved to the point that the federal courts will intervene where the situation warrants.
The Supreme Court, in Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S. Ct. 1800, 1808, 40 L. Ed. 2d 224, 236 (1974) stated:
"[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights."
The extent to which constitutional guarantees can be limited by incarceration is determined by the legal status of the inmate. Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Ca. 1972); Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd 494 F.2d 1196 (1st Cir. 1974). In the instant case a majority of the plaintiffs are pretrial detainees, incarcerated only because they are unable to post the necessary bail bond which would entitle them to release. The only legitimate state interest in the detention of an accused who cannot raise bail is in guaranteeing his presence at trial. U.S. ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3d Cir. 1976).
"The demands of equal protection of the law and of due process prohibit depriving pre-trial detainees of rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; and the same constitutional provisions prevent unjustifiable confinement of detainees under worse conditions than convicted prisoners . . . a detainee is entitled to protection from cruel and unusual punishment as a matter of due process, and where relevant, equal protection."
In its entirety the Eighth Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (Emphasis supplied.) We are here, of course, concerned only with the clause prohibiting cruel and unusual punishments.
During congressional consideration of this Amendment in 1789, one member said:
"No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in the future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it would be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind."
1 Annals of Congress 754 (1789)
In Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 (1910) the court concluded that the framers of the Amendment did not merely intend to prohibit punishments, procedures and techniques felt to be cruel and unusual in 1789, but that they intended to prevent coercive cruelty being exercised through other forms of punishment. Trop v. Dulles, 356 U.S. 86, 100-101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) held that the amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."
Thus, what might have been common and not thought to be at all cruel or unusual in 1789 might be completely obnoxious to society in the United States today.
The part of Section 1 of the Fourteenth Amendment pertinent to this case states:
". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The attitude of the federal courts in such cases has evolved in the last few years from one of "hands-off" to one of scrutiny and, at times, active involvement where the situation required it.
After listening closely to the many witnesses, carefully studying the briefs filed and hearing post trial arguments, we are convinced that the situation at the Allegheny County Jail requires the intervention of this court.
Physical Plant and Physical Care Findings of Fact
The Allegheny County Jail is an eighty-three year old structure in the heart of downtown Pittsburgh. It is primarily a pretrial detention facility, housing unconvicted persons awaiting trial. The jail also serves as a detention unit for convicted state and federal prisoners awaiting sentencing, assignment or transfer to other institutions and for the confinement of miscellaneous county prisoners convicted of misdemeanors and serving short sentences. It also houses prisoners brought from other institutions to testify in federal or state trials.
The majority of male inmates are housed in the so-called Large Block (240 cells), Small Block (200 cells), and the Juvenile Block. Each block consists of ten ranges or rows of cells and is five tiers high. The remainder of the inmates are housed in the recently remodeled Selective Housing Unit ("SHU") and the Summary Block. There is also a female unit which was not the subject of either of the petitions considered here.
An average cell is approximately seven feet wide and eight feet long. It contains a sink with push button cold water, a seatless toilet, and a piece of canvas stretched over a frame for sleeping. The frame is suspended from the wall of the cell by a chain at one end and located in such a way that part of it is directly over the toilet. The other end fits into the cell door when it is in use. The cell is lighted by a 25 or 40 watt bulb located either inside or just outside the cell. If the light is outside the cell the prisoner cannot control it; this results in many being broken by prisoners frustrated by being unable to turn it off. None of the cells have hot water.
Many of the canvas cots are discolored by blood, vomit, feces and urine; some are torn. A number of sinks and toilets do not work; nearly all are stained to a dark brown color and filth-encrusted. Leaks and overflows often occur. The officers' written daily reports (admitted as exhibits) recite the presence of filth and dirt in the cells and common areas with monotonous regularity.
An environmental health expert, Mr. Theodore Gordon, testified that there was a build up of filth in many areas. Crusts of bread and other food lie decaying in hard-to-reach places on windowsills. There are mice, rats and roaches attracted by the filth and food remnants.
On March 23, 1977, more than seventy of the 240 cells in the Large Block had electrical problems, according to the reports. Some of the lights are ingeniously, but dangerously wired into the cells by prisoners who have acted as their own electricians. The exposed wires are a fire hazard and expose inmates to the possibility of electrical shock. Adequate lighting in the cells does not exist. This contributes to prisoner stress and makes much more difficult the maintenance of security and sanitation within the institution. Inmates cause most of the broken lights and damage to fixtures. Months often go by before a county electrician can come to the jail to make repairs.
There are about 600 cells in the jail; as many as 200 cells at a time are unuseable ("down") for one reason or another. Overcrowding of the institution is not a problem. In 1975 the average daily population was 429. On an average day five or six inmates are housed in cells without water or lighting. The administration attempts to transfer inmates out of the down cells to cells with adequate plumbing as they become available, but the prisoners actually make their own cell choices and arrangements. The best cells go to the toughest inmates.
Each inmate is responsible for cleaning his own cell. Disciplinary action is supposed to be taken against inmates who refuse to clean their cells. It never is. Cleaning materials such as cleanser, mops, and brushes are supposed to be available for inmates' use on each range, but rarely are adequate.
Over $30,000 a year are spent on janitorial supplies for the jail. Often these supplies are not available to the inmates. Why they are not never became clear during the trial. Jail personnel testified that such supplies were available; inmates said they normally were not. There was some speculation but no proof of what happened to the supplies. We are convinced, and find as a matter of fact, that sufficient cleaning supplies and implements did not find their way to the prisoners, for whatever reason.
There is no systematic procedure for cleaning the jail. The last time the canvas cots were taken outside for cleaning and "airing" was three or four years ago. In the opinion of one penal expert, Mr. George Camp, the conditions he observed when visiting the jail in April, 1976, and on which he based his opinion as to the deficiencies in cleaning procedures, had persisted for a substantial period of time prior to his visit and would continue unless changes occurred. We adopt that opinion as a fact.
The physical deterioration of the jail can at least be retarded, if not reversed, by systematic good housekeeping practices. Soap, brushes, elbow grease and supervision are the necessary ingredients for cleanliness in the jail.
The plaintiffs' environmental expert, Mr. Gordon, testified, in answer to a question from the court, that a steam cleaning apparatus could be used effectively to clean the metal bars and some of the other areas of the jail which are coated with the greasy dirt.
The defendants offered testimony that the problems regarding sanitation, plumbing, and electrical wiring were directly attributable to the inmates themselves as they were responsible for cleaning their cells and had willfully vandalized the toilets, sinks, electrical switches and light bulbs.
The jail administration has a program for systematically replacing toilets. A county plumber is permanently assigned to the jail. The jail administration often requests the services of a county electrician, but he only comes to the jail when he has time. His visits may be months apart. Both the plumber and electrician must be accompanied on their rounds by a guard, who is usually taken off another assignment in order to do so. Cots are repaired and replaced at the jail, but there is no procedure for cleaning the canvas. The jail uses the services of a private exterminating company once a week for rodent and bug control and provides bug spray to inmates.
The temperature inside the jail fluctuates in the extreme. Whatever may be the inconvenience outside the jail for Allegheny County residents in summer heat and winter cold, the temperature extremes are worse in the jail and are of a longer duration. The top windows in the block areas are broken by inmates during the summer heat and remain unrepaired into the winter. Many witnesses testified that the jail temperatures were unbearable for inmates and guards alike. In order to keep cold air out of their cells in winter, inmates weave newspapers through their cell bars, and some inmates wear overcoats and hats. The woven newspapers present a serious fire hazard.
There is no written evacuation plan to be followed in case of fire.
There is considerable difference between jail policy and practice. According to jail policy a new inmate reports to a circle desk located in the rotunda in the open area of the jail in the middle of the cell blocks. He is supposed to be given a jail rule book, issued one blanket and one sheet and assigned to a cell. For several years sheets were not issued for security reasons, but shortly before the trial the administration had started to issue them again.
No clothing or toilet articles are issued to inmates, although prisoners assigned to certain work details, such as the bakery, get uniforms. Toilet articles may be purchased in the jail commissary. Towels are provided in the bathhouse (the common shower area) but may not be taken from the bathhouse to the cells.
Prisoners get free laundry service.
When a new inmate reports to the desk he is told what cell to go to, but often as not he may find someone else occupying it or that the sink, toilet or light doesn't work, that the cot is torn and unusable or that there is some other serious defect. In such cases he looks around, hoping to find a better one unoccupied and simply takes it.
As stated, the jail only recently began to issue sheets again, and there are chronic blanket and sheet shortages. Although the jail owns 700 blankets, often it is days before an inmate is issued a blanket or manages to steal or barter for one from another inmate.
Although toilet articles are available for sale in the jail commissary, an indigent prisoner is out of luck. The warden testified that if an indigent inmate asked him for toilet articles, he would see that he got them, but this was done strictly on an informal basis, and unfortunately is typical of the uneven management in many of the situations which occur at the jail.
The present warden, James Jennings, impressed us as a humane, caring individual, but all too often situations such as an inmate without toilet articles, were handled on an ad hoc basis. There was no established policy or route that all indigent prisoners would know to follow. A timid, fearful or new inmate would hardly be likely to approach the warden and ask him for a toothbrush. On the other hand, an "old timer" could survive pretty well.
During our visit to the jail on several occasions inmates approached the warden and said they wanted to talk to him about something. He invariably responded positively and made the arrangements. This revealed a good relationship between him and the inmate population, but also indicated a lack of channels to handle complaints or personal problems of inmates.
During shakedowns (searches of cells by guards) sometimes one prisoner would be found to have as many as twenty blankets. He would dole them out to friends or "sell" them to new inmates able to purchase them. Cigarettes are the most common form of currency among inmates.
Shakedowns invariably uncover large numbers of blankets and sheets in inmates' cells.
The bath towel situation is bad. Although the policy is that prisoners are issued towels in the bathhouse when they shower, they may not take them to their cells, in fact there are chronic shortages of towels, in which case the inmate must dry out "au naturel" or use his clothes as a towel and dry off with them. He is never given a towel to use in his cell.
Although jail policy calls for free personal laundry service for prisoners, the inmate laundry workers will not do the laundry unless "paid" by the prisoner desiring it. So much laundry is stolen that prisoners rarely avail themselves of the laundry and either wash clothes in the sink or toilet in their cells or rely on friends or relatives outside the jail to perform this service.
The hoarding, vandalism, and shortages would be greatly reduced through closer supervision and hiring more guards.
There is absolutely no relationship between the unhealthy and unsanitary conditions of this jail and the security necessary to guarantee an inmate's presence at trial or the internal security of the jail. The total effect of these conditions is to deprive the plaintiffs of their constitutional rights.
The Constitution does not require that prisoners be provided with any and every amenity, but inmates must be furnished with the basic necessities of life which include reasonably adequate food, clothing, shelter, sanitation, medical care and personal safety. Newman v. Alabama, 559 F.2d 283 (5th Cir. 1977). A pretrial detainee is entitled to protection from cruel and unusual punishment as a matter of due process. Rhem v. Malcolm, supra. The quality of incarceration at the jail amounts to punishment of such a nature and degree that it cannot be justified by the county's interest in holding accused persons for trial, and therefore it violates the due process clause of the Fourteenth Amendment.
The failure to provide adequate beds or other sleeping facilities, the failure to provide adequate clothing, and the failure to provide facilities and equipment for personal hygiene constitute cruel and unusual punishment for convicted inmates and violate the rights to due process and equal protection of unconvicted detainees. Martinez Rodriguez v. Jimenez, 409 F. Supp. 582 (D.P.R.), petition for stay denied, 537 F.2d 1 (1st Cir. 1976); Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973), aff'd 494 F.2d 1196 (1st Cir. 1974); Mitchell v. Untreiner, 421 F. Supp. 886 (N.D. Fla. 1976). In one case, to eliminate a persisting problem of inmate hoarding of blankets, sheets, cleaning supplies, etc., a Louisiana federal court simply ordered an increase in the number of shakedowns, also decreeing that they were not to be conducted in a harassing manner. Hamilton v. Landrieu, 351 F. Supp. 549 (E.D. La. 1972).
Pretrial detainees are entitled constitutionally to clean and sanitary living quarters. Mitchell v. Untreiner, supra; Jones v. Wittenberg, 330 F. Supp. 707 (N.D. Ohio 1971), aff'd 456 F.2d 854 (6th Cir. 1972). Some courts have found it necessary to order the implementation of sanitation and cleaning procedures whereby inmates must clean the tiers and all other areas of the prison. Hamilton v. Landrieu, 351 F. Supp. 549 (E.D. La. 1972). Inmates can be encouraged to clean by making available privileges to inmates who cooperate and denying privileges to inmates who refuse to cooperate. Hamilton v. Landrieu, supra.
Medical Treatment -- Use of Restraints Findings of Fact
When an individual first enters the jail, a blood sample is taken and tested to determine if the inmate has a venereal disease; a chest x-ray is taken and examined for tuberculosis, and a nurse asks the prisoner if he has any medical problems, such as diabetes, epilepsy, or drug addiction. The report of any medical condition is noted, and the individual either sees a doctor or is given medication under standing orders which the doctor has given for certain kinds of problems. Only prisoners who have been sentenced and assigned to the jail pending transportation to some other institution, and those working in the kitchen or bakery, are given complete physical examinations.
An inmate wanting to see the doctor makes such a request to the nurse at "Health Call" (sick call). The nurse then either gives the inmate standard medication, or puts the inmate on a list to be seen later by the doctor. The nurses keep log books regarding patients and medications administered, and these log books are reviewed by the doctor. The doctor also makes rounds in the jail hospital. The jail physician spends from two to two and one-half hours a day in the jail, six days a week, and is on call twenty-four hours a day seven days a week.
Kenneth Owens-El introduced testimony intended to prove that the death of an inmate, Dennis Phillips, on February 14, 1975, was caused by failure of the guards to respond to calls for help and by the negligence of the jail medical personnel. We find that the burden of proof was not met.
The jail hospital is made up of two rooms. One of the rooms is called the "restraint room." The restraint room is, as the name implies, for inmates who are having problems of a sort which, in the opinion of the person committing them to the room, are causing them to be a threat to themselves or others. These problems range from simple "acting-out" behavior to drug withdrawal, delirium tremens, epileptic seizures and mental instability.
In this bleak room the inmates are placed in a hospital gown or naked on a canvas cot with a hole cut in the middle. Their body wastes drop through the hole into a tub on the floor underneath the cot. The tub is emptied twice a day. These inmates are shackled by leather restraints to the canvas cots. Physical restraints may be either full, where the inmate's wrists and ankles are bound by the manacles to the cot, or partial, where only one or both ankles are manacled. The medical logs, introduced into evidence, revealed that inmates have been held in such restraints for as long as twenty-nine days. For seven months in 1976, there was an average of nearly five men in restraints per day.
While we heard testimony that similar restraints are used in hospitals and nursing homes, the present jail physician testified that he had never seen the hole-in-the-cot arrangement anywhere except in this jail. One expert witness, George Camp, characterized the restraint room as "horrendous and barbaric."
Dr. Frank Rundle, a psychiatrist, testified that the general opinion of the psychiatric community in the United States is that the use of restraints is undesirable; that their use should be avoided if possible, with the ultimate goal being their total elimination and replacement by other methods. If restraints are used, such use should be severely limited and under close medical supervision.
The jail administration (guard corporals and up), the nurses and doctor have the authority to order inmates into restraints. The doctor is in charge of releasing people from restraints. When an individual is placed in restraints, the person ordering it must notify the warden and the medical staff. Jail policy mandates the use of restraints only when necessary to prevent an inmate from harming himself or others -- i.e. for medical or protective reasons only.
After examining the hospital log (admitted into evidence), which documents every instance in which an inmate is put into restraints, we find that the restraint room is being used excessively, inappropriately and as a punishment in some instances. It is being used for disciplinary and security purposes and inappropriately when viewed as a treatment device. It is the method used to deal with inmates exhibiting antisocial behavior and those with possible severe mental disorders. Inmates with epilepsy are often put into restraints following seizures. This is life-threatening. It is an undisputed medical fact that there is a high fatality rate among persons suffering from delirium tremens. They, too, are put into restraints at the jail.
When a member of the prison staff feels an inmate is demonstrating suicidal tendencies, the inmate is put into restraints. A more appropriate way to protect a potential suicide case is to place him where he can be observed twenty-four hours a day without being physically restrained.
Under present jail policy inmates can be placed in restraints without a doctor's prior authorization and on the orders of a nurse or an officer of the guard. The jail physician has standing orders authorizing the use of restraints when an inmate is hyperactive, combative, hysterical, or threatening harm to himself. A doctor sees a recently restrained inmate on the next regularly scheduled hospital round. There is no written procedure for a doctor to evaluate a restrained inmate to see if continued use of restraints is necessary or needed to monitor his condition. The jail physician testified that on each restraint room round, he ...