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INMATES OF THE ALLEGHENY CTY. JAIL v. WECHT

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


May 25, 1983

INMATES OF the ALLEGHENY COUNTY JAIL, Thomas Price Bey, Arthur Goslee, Robert Maloney, and Calvin Milligan on their own behalf and on behalf of all others similarly situated, Plaintiffs,
v.
Cyril H. WECHT, President of the Allegheny County Board of Prison Inspectors and the other members of the Board: Thomas Foerster and William H. Hunt, Commissioners for Allegheny County, Frank J. Lucchino, Controller for Allegheny County, Eugene Coon, Sheriff for Allegheny County, The Honorable Patrick R. Tamilia, Michael J. O'Malley and Marion K. Finkelhor, Judges Court of Common Pleas of Allegheny County, Richard S. Caliguiri, Mayor of the City of Pittsburgh, Harriet McCray, Monsg. Charles Owen Rice and Charles Kozakiewicz, Warden of the Allegheny County Jail, and William B. Robinson, Executive Director of Prison Inspectors, and Cyril Wecht, Thomas Foerster and William H. Hunt, as Commissioners of Allegheny County, Defendants

The opinion of the court was delivered by: COHILL

COHILL, District Judge.

 I.

 Introduction and Background

 A. Legal History

 This civil rights class action is familiar to us. It began in 1976 when an action previously filed pro se by an inmate of the Allegheny County Jail (hereinafter referred to as "the jail" or "ACJ") was combined with a civil rights class action filed by Neighborhood Legal Services on behalf of other inmates under 42 U.S.C. § 1983, and various amendments to the United States Constitution, challenging the constitutionality of various conditions at ACJ. Following a six week non-jury trial in 1977, we filed Findings of Fact and Conclusions of Law, holding that many of the conditions within ACJ were indeed unconstitutional. See Owens-El v. Robinson, 442 F. Supp. 1368 (W.D.Pa.1978).

 After receiving reports and testimony from an appointed Court Advisor concerning jail conditions and possible remedies and a final hearing, we issued a second opinion on October 11, 1978, ordering various reforms, procedures and changes at the jail. See Owens-El v. Robinson, 457 F. Supp. 984 (W.D.Pa.1978). Several portions of the Order were appealed to the Third Circuit Court of Appeals which affirmed for the most part. However, the Court of Appeals did remand the case for our further consideration of mental health care for inmates. See Inmates v. Pierce, 612 F.2d 754 (3d Cir.1979). Following remand, hearings were held, and a third opinion and order were filed on April 17, 1980 wherein we established guidelines and procedures to be followed and various programs to be implemented regarding mental health care. See Inmates v. Peirce, 487 F. Supp. 638 (W.D.Pa.1980). *fn1"

 During this period, we made several visits to the jail and retained the Court Advisor for a while to be sure that our orders were being followed. Things seemed to be going pretty well.

 In April, 1983, however, some three years after the last order, the inmates filed a motion seeking a rule to show cause why the defendants should not be held in contempt for failure to comply with this Court's Orders of October 11, 1978 and April 17, 1980. The plaintiffs also filed a motion for "additional relief." In both motions, the inmates alleged that not all of the requirements of the court orders were being complied with and that many substandard, unconstitutional conditions which existed at ACJ in 1978 still were extant in 1983.

 B. Our Visit to the Jail

 As we did at the initial hearing in 1977, we heard opening statements from the lawyers and then went to visit the jail (May 5, 1983) without having first advised anyone that we would be doing this. We spent several hours touring the jail and had lunch there.

 Our first impression was that the jail appeared to be cleaner than before and that prisoner conduct and morale were better than they had been in 1977. Another problem has arisen, however, over which no county official has control -- overcrowding.

 Ironically enough, in the first opinion we had said: "Overcrowding of the institution is not a problem. In 1975 the average daily population was 429." 442 F. Supp. at 1376.

  The jail is now dangerously overcrowded. Fires and prisoner unrest are an ever-present danger in any penal setting. Here they could result in disaster. The Allegheny County Jail is a catastrophe waiting to happen.

 C. The Hearing

 We conducted a six-day hearing in connection with these petitions. At the close of the plaintiffs' case, we granted the defendants' motion to dismiss the petition for the contempt rule, holding that there was insufficient evidence to support a finding of contempt. We denied, however, defendants' motion to dismiss the plaintiffs' request for additional relief because we believed that the plaintiffs had made an adequate showing that the defendants were not in compliance with certain portions of our orders and that additional relief might be warranted.

 D. Format of Findings of Fact and Conclusions of Law

 We now enter Findings of Fact and Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure on the motion for additional relief.

 As we did in our first opinion (442 F. Supp. 1368), we will depart from the traditional format used in organizing Findings of Fact and Conclusions of Law. Such a format would be confusing and burdensome in this instance since so many subject areas are under consideration. Therefore, we will divide this opinion into various sections, first considering possible violations of the Order of October 11, 1978 and, secondly, violations of the April 17, 1980 Order. *fn2" Last, we will discuss the recent problem of overcrowding.

 II.

 Powers of the Court

 Inherent in the powers of a United States District Court is the equitable power to mold previous orders and correct wrongs which continue to persist. Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. 1, 15, 91 S. Ct. 1267, 1275, 28 L. Ed. 2d 554 (1971); 457 F. Supp. at 985. "The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mold such decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it." Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S. Ct. 587, 591, 88 L. Ed. 754 (1944). As times change, remedies fashioned in a particular case may require alterations, modifications or additional reinforcement. Equitable remedies are not chiseled in stone. As a court with equitable powers, we must remain willing to amend orders where justice requires it.

 With this principle in mind, we will proceed to review our previous orders in light of the present facts.

 III.

 Violations of the Order of October 11, 1978

 In 1978, we ordered many changes at ACJ. Such changes ranged from requiring a specific number of guards to be stationed in cell blocks (Paragraph 1) to ordering the establishment of a building evacuation plan (Paragraph 29). Prior to ordering these changes, we issued Findings of Fact, describing, inter alia, the physical layout of ACJ, the number of employees, the medical facilities, and the various procedures employed in ACJ for the care and discipline of inmates.

 When we entered the Order of October 11, 1978, conditions were deplorable in almost every area of the jail; immediate action in correcting the situation was required. The current situation is quite different. Though the jail is still lacking in a number of areas, and though we consider the present overcrowding to be unconstitutional, the evidence convinces us that the defendants have generally made good-faith efforts to comply with our previous orders.

  These factors caused us to deny, at the close of plaintiffs' case, the plaintiffs' motion for issuance of a rule to show cause why the defendants should not be held in contempt. We found that the defendants' conduct did not rise to the level of contempt. The defendants have, however, fallen short of full compliance with the 1978 order. As a result, we will look to those portions of the order which have not been met and will only make Findings of Fact with respect to the defendants' deviations from the specific requirements. We see no need to reiterate the Findings of Fact made in 1978. In addition, we hereby incorporate by reference our Conclusions of Law as set forth in the opinions found at 442 F. Supp. 1368 and 457 F. Supp. 984. The law, at that time, supported our finding of unconstitutional conditions and our remedial orders. Therefore, the law will continue to support any changes we may deem necessary in order to enforce our order and maintain minimum constitutional standards.

 We note that our opinions and order of 1978 were decided prior to the United States Supreme Court decision in Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). We are mindful of this case and its holding concerning the standard to be applied in prison condition cases involving pretrial detainees. In Wolfish, the Supreme Court set forth the Fifth Amendment Due Process standard to be applied in cases dealing with conditions of jails housing pretrial detainees. The court held that a condition must be found to be imposed for the purpose of punishment rather than serving some other legitimate government purpose before a court may find that it is unconstitutional. Id. at 538, 99 S. Ct. at 1873.

 Given the conditions of the jail in 1976-1978, we conclude that the Wolfish standard would have been met and that the totality of the conditions were unconstitutional. We do not at this time see any need to begin a new legal analysis of ACJ conditions.

 A. Staffing

 1. Cell Block Guards

 Paragraph 1 of the 1978 Order states:

 

There shall be no fewer than two guards stationed on a full time basis in each occupied cell block of the Allegheny County Jail ("jail") during the hours between 8:00 A.M. and evening lock-up of inmates daily. A separate daily log shall be maintained reflecting the names of the guards stationed in the occupied cell blocks, the specific cell blocks to which they were assigned and the particular hours each of the guards worked in the cell blocks.

 We find that the guards have been consistently ordered from the cell blocks to patrol the dining hall, leaving only one guard to a block. This is partially due to overcrowding. Meals are being served almost continuously; therefore, it is rare that two guards are on a cell block at the same time. The logbooks do not reflect these moves. It is vital for security's sake that two guards be stationed on a block during the daylight hours. 442 F. Supp. at 1385.

 2. Sanitation Officer

 The Order of 1978 went into great detail as to the lack of cleanliness at ACJ and the procedures which were to be followed to correct that condition. Paragraph 4 states:

 

A position of sanitation officer shall be established in the jail. The sanitation officer shall be adequately trained in sanitation procedures. His duties will include supervision of the jail's cleaning and sanitation program and enforcement of sanitation standards throughout the jail. The position shall be established immediately.

 Testimony revealed that Officer Richard Pfeifer has been given that position at ACJ, though he is referred to as the detail officer. Though Officer Pfeifer has the necessary title, we find that he has been unable to perform fully the duties which we prescribed in our order.

 Through his deposition, the plaintiffs established that Officer Pfeifer had no training in sanitation procedures, that he is not responsible for the cleanliness of the individual cells and ranges (the areas which comprise most of ACJ), and that his only responsibility as a detail officer is to see that the lower circle (rotunda of the jail), the alleyways and the ranges (aisles) in front of the cell blocks are clean. He seems to have no power to enforce the cleaning programs. When he is not acting in the capacity of detail officer, he relieves officers on their breaks, patrols various areas and supervises taking out garbage. Though called a detail officer, it would appear that Officer Pfeifer more realistically is a corrections officer with additional cleaning duties.

 3. Supply Officer

 Paragraph 14 of the 1978 Order states:

 

The position of one supply officer for each shift shall be established in the jail. The supply officer shall be responsible for supervising the distribution of the various articles detailed in paragraphs 10, 11 and 12 hereof.

 In March, 1981, almost two and one half years after this order was signed, Officer John Harris was appointed as supply officer at ACJ. Officer Harris had experience as a supply officer in the Army. Although he appears to be doing a good job of ordering supplies on time, he is unable to keep close watch over the distribution of supplies because he spends so much of his time away from ACJ. Officer Jones testified that one of his duties is to pick up supplies from businesses which won't deliver and to transport blood samples to local hospitals. As a result, he is not always available at ACJ when supplies are needed. Several inmates and corrections officers testified that they were unable to find Officer Jones when clothes, towels and other supplies were needed. Officer Jones works from 9 A.M. to 5 P.M. Contrary to our order, a supply officer has not been appointed to cover each of the other shifts.

 B. Cleanliness

 1. Extermination Program

 At the time of our first hearing, roaches and rodents were commonplace at ACJ. So that this condition could be remedied, we ordered that "a vigorous and ongoing insect and vermin extermination program shall be maintained." Paragraph 6. The plaintiffs agree that an extermination program has been implemented at ACJ and that the exterminator comes at least once a week. However, roaches and rodents, though not as prevalent, still live in ACJ.

 The testimony revealed two basic reasons for this continuing problem. First, inmates remove food from the dining area and take it to their cells, despite regulations against this. This attracts vermin to various living areas throughout the jail.

 A more serious problem, however, is the "BY" (Back Yard) area. The BY area of the jail is located in the center of the structure near the kitchen and the bakeshop. It is a large, open yard where deliveries are made and garbage is left. The manner in which the garbage is stored has created the problem.

 Garbage is placed in plastic bags, and the bags are stacked outside the kitchen door. Garbage is not picked up on weekends. There are not enough metal containers for all the garbage. As a result, the bags are easily torn (or eaten into by rats), and garbage is strewn throughout the BY area. Vermin and rodents are thereby attracted. This condition has worsened in the past year or two, as subway excavation commenced near and under the jail. The blasting has caused rodents and vermin to come into the jail. Though the defendants recently contracted with a refuse company to pick up the garbage on weekends, this service had not yet begun at the time of our latest hearing. So long as the garbage is handled in this way, the extermination program will be inefficient.

 2. Kitchen and Bake Shop

 Mr. Joseph Witzel, an environmental health expert from the Allegheny County Health Department, testified to various inspections he made of certain areas within ACJ, including the main kitchen, the bakeshop, the BY area and the storage room. We note that the defendants themselves requested such inspections by the Health Department although they are not required by state or local law. Mr. Witzel testified that general cleanliness is lacking within these areas, increasing the chances of attracting vermin and rodents. He also stated that, given the current condition of these areas, if this kitchen served the public, it might be shut down if improvements were not made. We find that the general level of sanitation throughout ACJ, and especially within the food preparation areas, needs improvement.

 C. Inmate Services and Treatment

 1. Non-Collect Telephone Calls

 Paragraph 16 of the 1978 Order directed that telephones were to be placed throughout ACJ from which collect calls could be made. A "reasonable alternative" was to be provided for inmates to make non-collect calls to such entities as governmental agencies and the Public Defender's Office where collect calls won't be accepted.

 In accordance with this order, a substantial number of phones for collect calls have been installed throughout the cell blocks and other areas of ACJ. The collect call system appears to be functioning smoothly.

 The "reasonable alternative" for non-collect calls, however, has not fared as well.

 In order to make a non-collect call at ACJ, an inmate must make a verbal request to a counselor, corrections officer or staff member (Corporal, Sergeant or Lieutenant) or fill out a written request form stating whom the inmate wishes to call and for what reason. Most of these requests are then given to Ronald C. Markowski, the director of counseling at ACJ. Mr. Markowski reviews the requests and then makes a determination as to whether or not the non-collect call should be permitted. The criterion seems to be whether or not an emergency exists. If he decides that it is an emergency, he allows the call to be made on either the one phone in the counseling office, or from one of the phones in the attorney conference room. Mr. Markowski, however, is not the only one who approves or disapproves non-collect calls. Testimony established that staff members and sometimes even the warden will rule on such calls.

 Under Mr. Markowski's approval system, calls to governmental agencies and lawyers are rarely considered to be emergency calls, though these parties do not usually accept collect calls. The system is too subjective. Mr. Markowski testified that his criteria as to what constitutes an emergency call are neither written nor set forth in such a manner as to aid those who are reviewing the requests to make an objective decision. Karen Miller, a counselor at ACJ, testified at her deposition that Mr. Markowski's system has resulted in fewer requests for noncollect calls, presumably because the inmates believe that it is almost impossible to get a call approved. As for the requests that are made, Ms. Miller stated that few are granted. Ms. Miller further testified that sometimes counselors themselves will call an inmate's lawyer or witness and will relay the inmate's message.

 The 1978 Order (Paragraph 16) specifically states: "Telephone conversations may not be monitored by jail personnel." We consider relaying messages by jail personnel to be a form of "monitoring" and therefore, a violation of our order.

 As stated in our first opinion, an inmate's right to phone calls is to be protected, especially if the call is to a lawyer, bail bondsman or other party who will aid the inmate for preparing for his trial. 442 F. Supp. at 1386. Such a subjective system as to who may or may not make calls and who will or will not approve such calls cannot be said to be a "reasonable alternative."

 2. Restraints

 The use of physical restraints at ACJ is something at which we looked closely in 1978. Understanding that restraints may be necessary in certain situations, we nevertheless urged caution and care in placing any inmate in restraints. 442 F. Supp. at 1380-1381. Paragraph 19 of the Order, dealing with the use of restraints was explicit and detailed with the intent that this practice would be closely monitored.

 One of the requirements of the restraint procedure (Paragraph 19(iv)) is that a separate log must be kept reflecting the use of restraints, the time of approval and the reasons for the restraints. A log exists, but it has not been properly maintained and does not comply with the court order.

 Patricia Lewandowski, R.N., a nurse at ACJ, testified at her deposition that there was no restraint log until the early part of March, 1983, after this case was reopened. Prior to March, 1983, Ms. Lewandowski stated that the doctor's restraint orders were recorded on any piece of paper that could be attached to the inmate's chart or file.

 Donald P. Breneman, M.D., a psychiatrist and the administrator of the mental health program at ACJ also testified that restraint orders, which included the reasons for the restraints, were written on the inmate's chart. Dr. Breneman testified that a separate log had been maintained, however, he was aware of the difficulty in finding it when it was requested by the plaintiffs in preparation for this hearing.

 We are of the opinion that a separate and exact log has not been properly kept since our order. It is true that the restraint orders and reasons therefore are kept in the inmate's chart, and we have no quarrel with that procedure. However, we believe it is of vital importance that a separate, independent, accurate log be preserved to which anyone can refer, such as corrections officers, staff members or anyone else at ACJ who might not have access to the medical charts but would have a legitimate interest in the use of restraints. The log should afford individuals information concerning the use of restraints.

 Paragraph 19(i) of the Order provides that "inmates requiring restraints will be housed only in a hospital setting and only on regular beds with a mattress, clean sheet or mattress and blanket."

 When we made that order, we were speaking only of the use of restraints on male inmates since the conditions related to female inmates were not at issue. However, we have now been asked to view the conditions of restraints as they apply to the female population.

 The female inmates with mental health or disciplinary problems are housed on A Range within the female section of ACJ. The A Range holds eight cells. One of the cells is known as the "glass" or "plastic" cell. It is a cell in which there is only a perforated metal cot and a toilet enclosed in a metal closet. In front of the bars is a plexiglass shield. The only light within the glass cell is the light from the outside hallway. This cell is used for women who are possible suicide victims, violent or those whom the medical staff believes need close attention.

 The cot within the cell is attached to the wall. It is a large sheet of metal with holes the size of a fifty cent piece scattered throughout. On both sides of the metal cot are handles to which arm and leg restraints can be attached. A mattress may be placed on the metal sheet.

 The plaintiffs raised questions in this case about the use of this cell and cot. Through testimony of a female inmate who voluntarily helped care for other women in this cell and from a female corrections officer, we find that some women inmates have been partially or totally stripped of their clothing and placed in restraints on this metal cot without a mattress. Their only covering was a blanket which would frequently fall to the floor. Bed pans were sometimes used because some of these women were not released from the restraints to use the toilet facilities. Some women occasionally lay in their own waste. Such uses are not consistent with the 1978 Order. We see no reason why an inmate, male or female, should be restrained without clothes or a mattress. If they are in restraints they obviously cannot tear at their clothes or use them for suicide purposes.

 We realize that there are occasions when restraints are a life-saving necessity, but such occasions must be kept at a minimum, closely monitored and utilized as humanely as possible.

 3. Supplies

 Paragraph 10 of the 1978 Order provides that "upon admission to the jail each inmate shall be provided with a clean towel, clean sheet and clean blanket . . . There shall be a sufficient number of towels available . . . in the jail's bathhouse." Paragraph 11 provides that inmates without adequate clothes shall be furnished such clothes within 24 hours of admission. Upon admission, an inmate is also to be given soap, a toothbrush and toothpaste. Throughout the past two to three years, these supplies have not been distributed as ordered. Distribution has been uneven at best and non-existent at worst.

 Shortages of supplies, especially towels, the occasional unavailability of the supply officer and the dramatic increase in jail population have resulted in violations of our order. While this portion of our order has not been totally observed by the defendants, we believe that at the moment it is not a drastic problem. The defendants must keep a closer watch on their system of obtaining, maintaining and distributing supplies.

 4. Male Isolation Cell

 The use of the male isolation cell, like the use of restraints, was something which caused us to draft in 1978 a detailed order regarding the procedure to be followed. Paragraph 24(ii) states:

 

Inmates who are placed in the isolation cell shall not be stripped of their clothing; however, their shoes and belts may be removed in the interest of their personal safety.

 The plaintiffs contend that the defendants have not complied with our order. Specifically, they alleged that, in violation of the order, inmates are stripped to their underwear when being placed in the cell.

 We find that inmates are being stripped to their underwear when placed in the isolation cell. In 1978, we were appraised of the risks of suicide, and this is why we permitted belts and shoes to be removed. Current testimony reiterated the possibility of suicide among those placed in the isolation cell. However, we were aware of that fact in 1978, and we still believe that the removal of belts and shoes is all that is necessary unless the log reflects that the doctor is of the opinion that the inmate should be stripped to his underwear.

 5. Law Library

 Courts have long held that inmates have a constitutionally protected right to have access to a law library. Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). As a result, in 1978 we ordered that a law library be maintained at ACJ. Paragraph 27 of the order stated that this library "shall be available for daily inmate use." As previously mentioned the order was directed only to conditions affecting the male population. In the case at hand, the plaintiffs have called our attention to certain aspects of the women's quarters.

 On our recent tour of the jail, and through testimony of a female inmate, we learned that the female inmates at ACJ do not have their own law library, nor do they have access to the law library located in the male section of the jail.

 This constitutional right must apply equally to both sexes and, therefore, the women at ACJ may not be deprived of access to a law library.

 6. Laundry Services

 In 1978, one of the more significant problems at ACJ was the laundry service. Inmate laundry workers were charging a fee (usually in the form of cigarettes) to do other inmates' laundry. With that in mind, Paragraph 15 of the 1978 Order states:

 

Free personal laundry service shall be provided to all inmates at least once a week. The defendants shall devise a system to prevent inmate laundry workers from charging a fee for laundry services. Said plan shall also describe in detail the operation of the laundry service and shall be prepared by January 1, 1979.

 In the case at hand, the plaintiffs argue that the plan which was created by the defendants is not effective. According to the plaintiffs, inmates are still being charged for laundry services.

 The plan, to which the plaintiffs refer, is that the laundry officer and one of the inmate workers go to each range and pick up the laundry. The laundry is placed in a mesh bag and tagged with the owner's name. The inmates come down to the laundry room in the afternoon to pick up their clean clothes. The clean clothes are handed to the owner by one of the inmate laundry workers. The officer in charge is stationed nearby.

 We find that this system is generally working. However, there was some evidence that some inmates may still be charged for laundry service. In order to remedy this problem an officer should be required to be with any inmate worker who has contact with the other inmates, both when the laundry is picked up and when it is returned. At no time should an inmate worker be alone with other inmates while these transactions occur.

 D. Conclusion

  Although the plaintiffs introduced testimony and evidence relative to several other sections of the order they believed were violated, we have only discussed the portions of the order which we found to have been violated.

  We believe that the defendants have made efforts since this case was reopened, to remedy many of the problems mentioned by the plaintiffs. We have decided that these conditions must be monitored for the indefinite future and not merely improved when the pressure of a lawsuit occurs.

  IV.

  Mental Health Order of April 17, 1980

  When we wrote our first opinion in January, 1978, we felt compelled to comment on the lack of mental health facilities at ACJ. Although we believed that such facilities were desperately needed, we were of the opinion that ordering the creation of mental health facilities was beyond our power. 442 F. Supp. at 1381-1382.

  Upon appeal to the Third Circuit, the plaintiffs argued that it was within our power and that we should order psychiatric care at ACJ. The Third Circuit remanded, 612 F.2d at 763, and we used the opportunity to order the implementation of a mental health program at ACJ. 487 F. Supp. 638.

  The April 17, 1980 Order outlined the various procedures to be followed within the program. Though this order has withstood the test of time better than the order of 1978, we still find that the defendants have failed to comply with it in all respects.

  We will only mention those sections of the order which we hold were violated. In so doing, we adopt the Conclusions of Law found in our Opinion at 487 F. Supp. 638 and again, rely upon our equitable powers to mold, modify and enforce the original order.

  A. Staffing

  In considering the Mental Health Unit ("MHU") where mentally disturbed inmates are kept, we ordered that at least one guard and one nurse be assigned to the unit for each shift. Section II, Paragraph C.

  In the recent hearing, several nurses, a psychiatric aide and Dr. Breneman, the administrator of the Mental Health Program, testified that, due to a shortage in nurses, a nurse, though technically assigned to the MHU, is unable to spend more than 4 to 5 hours per shift within the MHU (which presently includes E and F Ranges of the Receiving Unit in order to house the mental health overflow). On the 7-3 shift, three nurses are to work in the jail. From 3-11, two nurses are on duty. The 11-7 shift has only one nurse covering the entire jail. Even though six nurses are scheduled to work per day, during ten months out of the year, less than six nurses actually work due to vacations, illness, and the like. As a result, each nurse has numerous duties to perform throughout the jail. The consequence is that the nurse assigned to the MHU is unable to be there on a full time basis.

  We are aware of the problems the defendants have had in recruiting and keeping nurses at ACJ. We are sympathetic but will not permit these problems to excuse the fact that a nurse is not stationed on a round-the-clock basis within the MHU. The inmates housed within the MHU and the E and F Ranges have been diagnosed as psychotic, withdrawing from alcohol or drugs, suicidal and suffering from other various mental illnesses. These inmates need constant care and attention. Though a guard who is stationed within the MHU on a full time basis can observe and prevent any disturbances, he cannot give the same professional care and supervision that a trained registered nurse can give.

  B. Commitment Proceedings

  Part I, Paragraph E of the 1980 Order provides: "If qualified medical personnel at the jail determine that an inmate should be transferred to a mental health institution . . . appropriate proceedings shall be instituted within 72 hours of the decision." The plaintiffs allege that this is not being done.

  When an inmate comes into the jail, and it is determined that commitment proceedings are indicated, what next occurs depends upon the legal posture of the inmate. If the inmate is charged with a felony, the inmate is referred to the County Behavior Clinic which may see that that person is taken to one of the state penal institutions for the criminally insane. If, however, the inmate is charged with a summary offense, the Behavior Clinic is not notified. The County Mental Health/Mental Retardation Agency ("MH/MR") is contacted, and civil commitment proceedings may be instituted under the Pennsylvania Mental Health Procedures Act, 50 Pa.C.S.A. § 7101, et seq. Pursuant to this act, a hearing is held before a judge, and testimony is taken. The judge then decides if commitment is warranted. See 50 Pa.C.S.A. § 7304(c).

  The testimony in this case established that commitment proceedings are rarely instituted by ACJ personnel for two basic reasons: first, they allege that a witness must be able to testify to dangerous behavior outside of the jail of which the witness has first hand knowledge. This, the defendants argue, is difficult to do. Secondly, a lack of qualified people within the jail who would be able to initiate commitment proceedings has resulted in a policy that jail personnel will not assist in civil commitment proceedings. As a result, in the past twelve months, of the 100 inmates eligible for civil commitment who were referred to MH/MR, only one was committed.

  We accept the defendants' argument that the practical problems they face make civil commitments difficult. Nevertheless, we must find that the defendants have violated our order. In balancing the violation against the problems encountered, we are unable, at this time, to determine how the violation should be remedied. We will therefore direct the defendants to present a formal petition containing a plan to remedy the civil commitment problem.

  V.

  Overcrowding

  When we first considered the conditions and problems at ACJ in 1978, we noted, thankfully, that overcrowding was not one of them. See 442 F. Supp. at 1376. Times have changed.

  Society, in the past five years, has become crime-conscious; Allegheny County is no exception. Mandatory sentences, harsher sentences, sentencing guidelines, more probation violations and higher bail bonds are all examples of how society and the legal system are attempting to deal with increased crime rates. Citizens have become critical of the judiciary and law enforcement officials. As a result, state legislatures have promulgated laws controlling and increasing penalties to be imposed by the courts, and judges themselves are issuing harsher sentences.

  The Pennsylvania Legislature, joining a number of other states, recently enacted mandatory sentences for such offenses as drunk driving and committing a crime with a firearm. See 75 Pa.C.S.A. § 3731 (enacted January 14, 1983) and 18 Pa.C.S.A. § 6103. Because of this philosophy, many of our jails and other detention facilities are swollen far beyond their capacities. ACJ certainly has not escaped this recent phenomenon, and the end is not in sight.

  The jail was built in 1882, in the center of downtown Pittsburgh, Pennsylvania. Reflecting the architecture of that period, its massive stone walls, foundations and turrets consume a city block. The foundation stones are so huge they do not even have mortar in the joints. In its early years, the jail was used as a traditional "lock-them-up" detention center. One area, now occupied by the attorneys' visiting room, used to be where condemned prisoners were hanged.

  Over time, the jail's uses have multiplied. Today, it is used primarily for pretrial detainees; however, it also houses a small number of convicted federal and state prisoners awaiting sentence, assignment or transfer, state prisoners serving short sentences and federal and state prisoners scheduled to testify at other trials.

  In 1975, the average daily population at ACJ was 429. 442 F. Supp. at 1376. The average daily population for this year of 1983 has been 690. On the day of our tour, May 5, 1983, the morning count was 705. Before we begin an analysis of the problem of overcrowding, it should be helpful to set forth the areas within the jail which are presently being used to house inmates. The cells available for males fit into two categories -- those available for general population and those reserved for some specialized use. The male housing areas within the jail, their dimensions and the maximum number of inmates who can be placed within those areas are as follows: Male Quarters Area Cells Inmates North Block (8' X 5' each) 47 47 West Block (7'8-1/2" X 6' each) 198 198 East Block 238 cells less 45 cells used for administrative or punitive segregation) (7'8-1/2" X 6' each) 193 193 Sub-total 438 438 Cells and areas not available for General Population: East Block (cells for Administrative or punitive segregation) (7'8-1/2" X 6' each) 45 45 Summary I (Mental Health Unit-"MHU") (8'10-1/2" X 7'1-1/2" each) 20 20 Summary II (Double-bunked culinary workers) (8'10-1/2" X 7' 1-1/2" each) 20 40 Receiving Center (For new admittees and up to 14 cells for MHU overflow) (7'7-1/2" X 6'1-1/2") 63 63 Sub-total 148 168 Total 586 606 Make-Shift Areas: Gymnasium (45'10" X 63') 52 cots 52 A hospital room (19' X 31'6") 9 double 18 -- bunks -- 61 70

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