SUR PETITION FOR REHEARING
Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham, Sloviter and Becker, Circuit Judges and Weber, District Judge. Judge Gibbons, Higginbotham and Sloviter would grant the petition for rehearing. Judge Weis votes for rehearing but does not join in Judge Gibbons' opinion. Judge Gibbons' statement sur denial of petition follows.
The petition for rehearing filed by appellees, Union County Jail Inmates, Timmie Lee Barlow, Elbert Evans, Jr., Raymond Skinner, James Wysocki, on behalf of themselves and all other persons similarly situated, in the above entitled case having been submitted to the judges who participated in the decision of this court, and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
GIBBONS, Circuit Judge, dissenting from the denial of a petition for rehearing, with whom, Higginbotham and Sloviter, Circuit Judges join:
The Office of Inmate Advocacy of the New Jersey Public Advocate-Defender,*fn1 petitions for rehearing of a decision of this court which substantially reversed all of the relief ordered by the district court in an action challenging the constitutionality of conditions of confinement in the Union County, New Jersey Jail.*fn2 The minimum standards announced in the panel opinion for conditions of pretrial detention and post conviction confinement in this circuit are more severe than any that have been tolerated in any other locality in the United States.*fn3 Indeed those standards, considering that we are dealing with the treatment of human beings, compare unfavorably with the standards mandated by federal law for the treatment of animals.*fn4 Common human decency demands that the panel opinion be reconsidered by the full court. Moreover in arriving at a grossly inhumane and indecent result, the panel chose to disregard both the strictures of Fed.R.Civ.P. 53(e)(2) with respect to findings of fact made by a master, and the appropriate deference which should be accorded to the trial court in fashioning injunctive relief for past and threatened violations of the basic human liberties protected by the fourteenth amendment. Thus I dissent from the denial of the petition for rehearing.
The Public Advocate's complaint seeks preliminary and permanent injunctive relief from all actions which confine inmates of the Union County Jail in such conditions of overcrowding as to deprive them of constitutionally protected rights. Hon. Harold A. Ackerman, the district court judge to whom the complaint was assigned, pursuant to Rule 53, on January 29, 1982 appointed Hon. Worrall F. Mountain as Special Master.*fn5
That rule provides that "in an action to be tried without a jury the court shall accept the master's findings of fact unless clearly erroneous." Fed. R. Civ. P. 53(e)(2). A court functioning in a reviewing capacity cannot make individualized findings which the master who heard the testimony did not make. Bennerson v. Joseph, 583 F.2d 633, 641 (3d Cir. 1978). A reviewing court commits reversible error in failing to accept findings of a master which are not clearly erroneous. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 689, 90 L. Ed. 1515, 66 S. Ct. 1187 (1946). "The findings of a master, to the extent that the court adopts them, shall be considered as the findings of the court." Fed. R. Civ. P. 52(a). As such, they are insulated, in the Court of Appeals, by the clearly erroneous standard of Rule 52. Thus there is no warrant in the law for factfinding in this court. The material facts found by the master with respect to the Union County Jail facility are as follows:
The UCJ is an aging eight story detention facility located in the heart of Elizabeth, New Jersey. It is designed to house for short periods of time, pretrial detainees and convicted individuals sentenced, in Union County, to prison terms of less than one year. N.J.S.A. 2C:43-10.
The prison contains 218 "general population" cells which are spread throughout 19 "tiers" or cellblocks on the third through fifth floors of the facility. Each cell is equipped with a single bed and a combination toilet/sink fixture and all but two of them measure approximately 39 square feet in area.*fn3a The general population cells on each tier open into a common area known as the "cell corridor" which is approximately 5 1/2 feet wide and varies in length from 40 feet to 70 feet depending upon the number of cells in a given tier.*fn4a It is in this area that the inmates spend the overwhelming majority of their waking hours.
Inmates are locked in their cells between 10 p.m. and 6 a.m.; at all other times of the day they are permitted access to the cell corridor. Each cell corridor is equipped with one television set and one telephone. There are no lights in the cells or the cell corridors -- the only illumination in these areas comes from the lights in the "officer's corridor" which runs parallel to the cell corridor and is separated from it by iron bars. The County concedes that lighting on the tiers could be improved and I have been informed that steps are being taken to that end.
In addition to the general population cells, there are currently three dormitories, two of them temporary, that are being used to house inmates. The " trustees/work release" dormitory on the first floor of the jail consists of two rooms separated by a wire mesh fence. The trustee side measures approximately 595 square feet and the work release side is approximately 513 square feet in area. The two rooms, combined, currently are capable of housing approximately 26 inmates on single and double bunk beds.
A portion of the men's exercise area has been converted into temporary dormitory use. This area, which is separated from the recreation area by a wire mesh partition, measures approximately 1,038 square feet and is capable of housing approximately 26 to 28 inmates. A second temporary dormitory has been constructed in what was formerly the women's recreation area adjacent to the women's tier on the fifth floor. This area measures approximately 374 square feet and is capable of housing approximately eight women. Inmates housed in the two male dormitories (except "trustees") spend the vast majority of each day confined to the dormitory area. The women housed in the temporary women's dormitory, for security reasons, spend their waking hours locked in the cell corridor on the women's tier with all other women prisoners.
In addition to the general population cells, there are ten detention/isolation cells at the UCJ ranging in size from 83 square feet to 113 square feet. These cells are used to house inmates guilty of disciplinary infractions or inmates in need of isolation, e.g., for medical reasons. Each cell contains a single bed and some are equipped with toilet fixtures.
The quoted findings describe a facility designed to hold 218 general population inmates, on a short term basis; so short that no provision was made in the cellblocks for illumination which would permit the inmates to read. In addition to the designed capacity of 218 general population inmates, the "trustees/work release" dormitory houses 26 inmates. Thus arguably the facility's designed capacity is as high as 244 inmates. By converting the men's exercise area and the women's recreation area to dormitory space, the County has increased the capacity to 278 inmates.
The material facts found by the master with respect to inmate population, as contrasted with capacity, are as follows:
In recent months, the daily population of the UCJ has averaged well over 300 inmates. The population on the day I toured the facility, February 8, 1982, was 350 inmates, 92 of whom were awaiting transfer to state prisons. On February 15, 1982, the population had risen to 359, 81 of whom have been sentenced to and are awaiting transfer to state facilities.*fn5a Of the 359 inmates housed at the UCJ on February 15, 1982, 196 had been there for 45 days or more and 131 had been there for at least 75 days. Of the 131 inmates housed for 75 days or more, 57 were state sentenced prisoners. As of February 15, 1982, 206 pretrial detainees were being held at the UCJ.
Despite extensive efforts by the defendant, County, to create sufficient bed space to handle the overflow of prisoners, jail administrators simply have been unable to create suitable housing for all inmates. For the past several months, the County has been forced to "double cell" inmates on the general population tiers. Since there is only one bed in each of the individual cells, double celling requires that one inmate sleep on a mattress placed on the floor at night. This second mattress, measuring approximately 16 square feet, must be placed adjacent to the toilet in the cell. It occupies virtually all of the otherwise free floor space in the cell. The parties agree that some inmates have been double celled for extended periods of time (several weeks). Further, it is agreed that the overwhelming majority of inmates subjected to the double celling practice have been pretrial detainees.*fn6
Double celling of large numbers of inmates in the UCJ has resulted in a serious reduction in the amount of square footage available per inmate, both in the cells themselves and in the cell corridors. With respect to the individual cell conditions double celling, of course, requires that two inmates share a total of 39 square feet of space for approximately eight hours per night. During the day, the average square footage per inmate is somewhat higher because during daytime hours inmates have access to their cells and the cell corridor. Depending upon the extent of double celling on any given tier at a particular point in time, however, the average square footage per inmate during daytime hours is still very low.
For example, in each tier with twelve individual cells, the combined square footage of the cells and the cell corridor is approximately 798 square feet.*fn7 Thus, when those tiers are operating at normal maximum levels (one inmate per cell) there exists approximately 67 square feet of "daytime" space per inmate which includes the beds and toilet/sink fixtures. In each tier with eight cells, the daytime figure is approximately 66 square feet per inmate and in the two tiers with seventeen cells that figure is approximately 62 square feet per inmate. When double celling is practiced in one-half of the cells in any 12-cell tier, the square footage available per inmate during daytime hours is reduced by one-third, to approximately 45 square feet (44 square feet in the tiers with 8 cells; 41 square feet in the tiers with 17 cells). When double celling is present throughout all cells in a 12-cell tier, the square footage per inmate during daytime hours is reduced to 33.5 square feet (33 square feet in 8 cell tiers; 31 square feet in 17 cell tiers).*fn8 For purposes of comparison, it is noted that the New Jersey administrative regulations governing new prison construction provide that all future single occupancy cells shall be not less than 70 square feet in area and further provide that separate day rooms containing 35 square feet per inmate shall be constructed in each new jail. N.J.A.C. 10A:31-2.8(a)(4)(12). Thus, current New Jersey regulations suggest that the "ideal" square footage per inmate housed in a county jail should be approximately 105 square feet.*fn9
In addition to the extensive use of double celling provoked by the overcrowding problem, when the UCJ population reaches the 365-370 figure, jail officials are forced to require some inmates to sleep on mattresses placed on the floor in places such as the laundry area and the law library area. These inmates must continue to sleep on mattresses until there is a drop in the population count or until released or sent to another facility. It is undisputed that some inmates might be required to sleep on mattresses laid on the floor in various parts of the jail for extended periods of time.
The overcrowding conditions in the detention/isolation cells at the UCJ are the most serious in the jail. As of February 8, 1982, there were a total of 32 inmates being housed in ten detention/isolation cells for a variety of disciplinary reasons.*fn10 Some of these cells currently are being used to house as many as four inmates for extended periods of time. Since each detention cell is designed to hold only one inmate and is equipped with but a single bed, as many as three inmates have been forced to sleep on mattresses laid on the floor of the cells. In cells with three or four prisoners, these mattresses take up a very large percentage of the floor space. There are no cell corridors in the detention cell area and, thus, detention inmates are forced to spend all but a few hours a week confined to the cell itself.*fn11 Some of the detention cells are equipped with a toilet/sink fixture and group showers are provided to detention/isolation inmates daily.
These findings establish that the inmate population has at times reached the point where female inmates have been allotted 25 square feet of living space (less space for toilet, washstands and bunks), and male inmates have been allotted 33.5 square feet (less space for toilets, washstands and bunks). Since a mattress measures 16 square feet, a bunk must occupy at least that much space. A toilet and washstand large enough to be functional for adults must occupy at least another two square feet. Thus the master's findings establish that women inmates have at times been allocated as little as 7 square feet of space in which to function over protracted periods, and men inmates as little as 15.5 square feet.*fn6a The absence of illumination in the cells suggests that even staying in bed all day to read is not a viable alternative.
The material facts found by the master with respect to the effects of the overcrowding which he found are as follows:
The severe overcrowding conditions outlined above have had an adverse impact on numerous aspects of the inmates lives. The overcrowding has severely taxed the County's available resources and make it impossible for it to continue to comply with certain state regulations governing the operations of county jails. One of the most serious cutbacks has occurred in the area of inmate recreational privileges. N.J.A.C. 10A:31-3.16 (b)(10) provides that inmates housed in county jails are to be "permitted at least one hour of physical exercise and recreation each day outside the housing unit." Due to the large inmate population and the reduction in the size of the men's recreation area, prison officials have been forced to limit male recreation privileges to no more than one hour periods, twice per week. I note that the recreational equipment available to male prisoners is extremely limited consisting primarily of a ping-pong table and a weight machine. Under existing conditions, I find that there is almost no realistic opportunity for male inmates to enjoy recreation while confined at the UCJ. Further, the total elimination of what was formerly the women's recreation area has ...