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January 17, 1995

STEVEN AUSTIN, et al., Plaintiffs

The opinion of the court was delivered by: JAN E. DUBOIS


 January 17, 1995

 Table of Contents


A. The Parties
B. The Pennsylvania Correctional System
C. Plaintiffs' Claims
D. Procedural History/Motions for Preliminary Injunction and Summary Judgment

 II. The Settlement Agreement

A. Summary of Negotiations
B. Enforceability/Monitoring
C. Medical Care
1. Staffing
2. Policies and Procedures
3. Equipment and Facilities
4. Quality Assurance
5. Monitoring
D. Mental Health Care
E. Corrections
1. Access to the Courts
2. Excessive Force Claims
3. Jobs and Educational Opportunities
4. Sex Offender Programs
5. Monitoring
G. Environmental/Fire Safety
H. Attorneys' Fees


A. Notice to Class Members
B. Court Approval
1. Complexity, Expense and Likely Duration
2. Reaction of the Class
a. Medical Care
(1) Peer Review Committee
(2) Adequacy of Care
(3) Emergency Procedures
(4) Staffing
b. Mental Health Care
(1) Confidentiality
(2) Special Needs Units ("SNUs") and
Mental Health Units ("MHUs")
c. Corrections
(1) Access to the Courts
(2) Excessive Force Claims
(3) Jobs and Educational Opportunities
(4) Sex Offender Programs
(1) Discrimination
(2) Privacy
(3) Miscellaneous Objections
e. Environmental/Fire Safety
f. Overcrowding
g. Enforceability
h. Attorneys' Fees
3. Stage of the Proceedings
4. Risks of Establishing Liability
5. Defendants' Ability to Endure Greater Judgment
6. Range of Reasonableness of the Settlement Fund
7. Recommendation of Class Counsel


 This is a class action brought pursuant to 42 U.S.C. § 1983 and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as amended, seeking declaratory and injunctive relief. Presently before the Court is the parties' joint request for approval of a Settlement Agreement pursuant to Federal Rule of Civil Procedure 23(e). For the following reasons, the Settlement Agreement will be approved.


 A. The Parties

 The named plaintiffs are inmates who, at the time the initial Complaint was filed, November 27, 1990, were incarcerated at thirteen state correctional institutions throughout the Commonwealth of Pennsylvania. *fn1" On March 5, 1992, the Court certified a class pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure consisting of all persons who are now or who will in the future be confined by the Pennsylvania Department of Corrections ("DOC") in a facility other than State Correctional Institution ("SCI")-Muncy or SCI-Pittsburgh. *fn2"

 The named defendants are Joseph Lehman, Commissioner of the DOC, the thirteen superintendents of the correctional institutions named in the initial Complaint, and Robert Casey, Governor of the Commonwealth of Pennsylvania.

 B. The Pennsylvania Correctional System

 The DOC is responsible for management and day to day operation of all correctional institutions in the Commonwealth of Pennsylvania. During the four years this case has been ongoing, the number of inmates committed to correctional institutions in Pennsylvania has increased from approximately 18,000 in November, 1990, to more than 27,000 in November, 1994. The number of correctional institutions at which these inmates are housed has increased from fifteen to twenty-two. *fn3"

 Twenty institutions house male inmates only. Two institutions, SCI-Cambridge Springs and SCI-Muncy, house only female inmates. Two of the correctional institutions are designated as diagnostic and classifications centers. SCI-Camp Hill is the central diagnostic and classification center for male inmates; SCI-Muncy is the diagnostic and classification center for female inmates. At the diagnostic and classification centers, recently convicted inmates and parole violators are processed and then transferred to other correctional institutions.

 C. Plaintiffs' Claims

 In their Second Amended Complaint plaintiffs allege the following: (1) all of the state correctional institutions are severely overcrowded, causing such physical and psychological harm and deprivation as to render incarceration unconstitutional; (2) as a direct result of the overcrowding, violence between inmates and between inmates and staff is at a greater frequency than at any other time in the past; (3) there is a pattern and practice of excessive, malicious and unjustified use of force by correctional officers against inmates, which the defendants have failed to discipline or otherwise control; (4) the DOC's classification scheme, which insures that less aggressive inmates will not be housed with more violent inmates, is in complete disarray; (5) there are not enough staff members to conduct sufficient chemical abuse, sex offender and educational programs; (6) access to programs and job openings is granted in a racially biased manner; (7) access to the sex offender programs, upon which the Pennsylvania Board of Probation and Parole generally conditions release, requires an admission of guilt; (8) the general lack of educational, recreational or employment opportunities results in pervasive idleness and contributes to the level of violence; (9) the DOC systematically fails to provide necessary routine and emergency medical care to its population because of a lack of medical staff, equipment and adequate training; (10) inmates with disabilities are often not provided proper physical therapy and/or assistance needed to participate in correctional institution activities; (11) the manner in which the DOC administers health care, by contracting with outside providers at a fixed rate, leads to financial incentives for the providers to deny necessary care or provide necessary care only after lengthy delays; (12) the facilities, staff and procedures in the DOC's mental health care units are all seriously deficient; (13) inmates are not provided with information they need to protect themselves and others from HIV transmission; (14) HIV-infected inmates are not informed of the benefits of early identification of their condition or provided with adequate medical treatment; (15) the DOC does not maintain the anonymity of HIV-infected inmates; (16) HIV-infected inmates are segregated from other inmates; (17) HIV-infected inmates are denied the opportunity to take certain jobs such as food worker or barber solely because of their handicap; (18) environmental, health and fire safety standards are not met; and (19) inmates' access to the courts is restricted by inadequate training, assistance and facilities.

 Plaintiffs allege that these policies, practices, acts and omissions, taken as a whole, constitute deliberate indifference to plaintiffs' rights under the United States Constitution and 42 U.S.C. § 1983, thereby depriving plaintiffs of their rights: (1) to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments; (2) to be free from excessive and malicious physical force and violence under the Fourth, Eighth and Fourteenth Amendments; (3) to proper and necessary medical and psychiatric services under the Eighth and Fourteenth Amendments; (4) to be free from deprivations of liberty and property without due process of law under the Fourteenth Amendment; (5) to equal protection of the laws under the Fourteenth Amendment; (6) to access to counsel and the courts under the First, Sixth and Fourteenth Amendments; and (7) to privacy and autonomy under the First, Fourth, Ninth and Fourteenth Amendments.

 Plaintiffs allege that defendants' actions also violate Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., as amended by the Civil Rights Restoration Act of 1987, by (1) denying otherwise qualified HIV-infected plaintiffs the benefits of participation in programs and activities available to other inmates; (2) exposing HIV-infected plaintiffs to harassment and discrimination, solely on the basis of their handicap; (3) failing to make DOC facilities and programs accessible to otherwise qualified handicapped individuals; and (4) failing to make reasonable accommodation to the special needs of such persons. Plaintiffs seek declaratory and injunctive relief.

 D. Procedural History/Motions for Preliminary Injunction and Summary Judgment

 On November 27, 1990, plaintiffs filed their initial Complaint. Before defendants filed a response, plaintiffs amended their complaint as a matter of course. Plaintiffs, with leave of court, filed a Second Amended Complaint on September 16, 1991, adding eight inmates as plaintiffs. *fn4" On August 6, 1992, while discovery was ongoing, plaintiffs filed a Motion for a Preliminary Injunction by which they sought to enjoin the defendants to establish an appropriate program for diagnosis, treatment and control of tuberculosis ("TB") in the thirteen institutions named in the Second Amended Complaint and SCI-Muncy.

 In May of 1991, prior to plaintiffs' Preliminary Injunction Motion, the DOC initiated a review of the previous TB Policy in response to concerns raised by the Department of Health with respect to TB control in the Pennsylvania correctional system. That review led to the adoption of a new TB policy entitled Clinical and Administrative Guidelines for the Prevention and Management of Tuberculosis, effective on September 4, 1992 ("1992 TB Policy").

 The 1992 TB Policy provided for: (1) TB testing of all inmates upon entry into a correctional institution and annual testing thereafter based on the inmates' date of entry; (2) preemployment and annual testing for employees; (3) segregation of new inmates pending completion of TB screening; (4) preventive therapy for inmates with inactive TB infection and monitoring for adverse reaction to therapy; (5) isolation and treatment for inmates with active TB; (6) computerized medical record keeping for purified protein derivative ("PPD") test dates, results and follow-up treatment; (7) automated status reports generated on a daily and monthly basis and reporting procedures for active cases of TB; (8) annual education and training in TB prevention and control for inmates and employees and documentation of such training upon completion; (9) measures to prevent the transfer of inmates without medical clearance; (10) segregation of inmates who refuse to comply with screening and testing procedures; (11) semi-annual screening of inmates known to be HIV-infected; and (12) procedures for investigating incidents of conversion from negative to positive PPD status.

 A hearing on plaintiffs' Motion for Preliminary Injunction was held on September 9, 10 and 11, 1992. At the hearing Dr. Armand Start, plaintiffs' expert, testified that the 1992 TB Policy was an "excellent document" that addressed all of the major elements of any TB control program. The DOC presented evidence that it had begun implementation of the 1992 policy and planned to institute a quality assurance program to ensure its effectiveness and complete implementation. Under those circumstances, the Court granted plaintiffs' Motion on September 29, 1992, enjoining defendants to implement the 1992 TB Policy and making no findings on the issue of deliberate indifference before the adoption of the new policy.

 The parties engaged in extensive discovery on all aspects of the case. Based on this discovery and supported by affidavits from correctional institution officials and expert witnesses, defendants filed a Motion for Summary Judgment on correctional and environmental issues on June 25, 1993. On July 1, 1993, plaintiffs filed a Cross-Motion for Summary Judgment on two HIV-related issues--whether defendants violated plaintiffs' constitutionally protected right of privacy in disseminating confidential medical information concerning inmates who are HIV-positive and whether the defendants violated the Rehabilitation Act of 1973, as amended, by routinely denying food service, personal care and other jobs to HIV-positive inmates without justification or individualized consideration. Both motions were denied by the Court.

 The Court ordered that the case be tried non-jury in four phases: corrections, environmental, medical care, and mental health. Between December 6, 1993 and January 3, 1994 the parties tried part of the corrections phase. On January 3, 1994, the Court continued the corrections phase at the joint request of the parties so as to give them additional time to conduct settlement discussions.

 A. Summary of Negotiations5

 Settlement discussions began in the first week of December, 1993. Plaintiffs' counsel, under the direction of David Rudovsky, drafted a proposed Settlement Agreement that was submitted to the defendants on December 7, 1993. Defendants responded with a written counterproposal on January 15, 1994. Plaintiffs, in turn, responded to that document on January 31, 1994.

 During February, 1994 the parties exchanged a series of letters regarding certain procedural matters that had to be resolved prior to any substantive agreement. Following resolution of these procedural matters, the parties decided that further negotiations should proceed separately on each substantive issue between the attorneys assigned to handle each such issue. Mr. Rudovsky took responsibility for overseeing the negotiations for the plaintiffs and for drafting and negotiating the substantive proposals in the corrections area. Mr. Rudovsky also handled plaintiffs' negotiations concerning the form of the settlement, fees, conditions for dismissal and related issues. Mr. Rudovsky spent in excess of 250 hours on these matters.

 In the corrections area, Mr. Rudovsky and Stefan Presser, another attorney representing plaintiffs, worked through numerous draft proposals with defense counsel, Francis Filipi. A substantial amount of time was expended on the issue of providing access to the courts, specifically on how many paralegals would be hired and what part of the DOC's inmate population they could assist. Additionally, there were numerous telephone conferences dealing with the responsibility of the Special Investigation Office, the branch of the DOC which investigates inmates' grievances relating to abuse by corrections officers. There were also extensive negotiations over the number of additional jobs which the DOC would provide. Plaintiffs sought the guidance of their expert witness, Patrick McManus, on the latter issue.

 With regard to the medical issues, on March 11, 1994, the defendants responded to the medical provisions of the plaintiffs' January 31, 1994, proposal. Subsequently, in March, 1994, the defendants provided a number of documents with information regarding medical budgets, staffing and equipment inventories at the various institutions. Following further correspondence and oral communications, plaintiffs' counsel, Elizabeth Alexander, sent defendants a revised proposal on: April 15, 1994. Defendants responded on April 19, 1994. Face-to-face negotiations were conducted in Harrisburg on May 4 and 5, 1994, between Ms. Alexander and defense counsel, Linda Barrett, after which the parties reached substantial agreement on most of the medical provisions of the Agreement. A few minor issues, such as the content of certain monitoring documents, were resolved in June 1994. During the negotiations, Ms. Alexander discussed the medical proposals with plaintiffs' medical experts on at least eleven occasions. She spent a total of 103.6 hours in connection with the negotiation of the medical issues.

 In the mental health area, counsel exchanged at least 20 drafts of the Settlement Agreement over the course of the negotiations. There were at least 30 telephone conferences between plaintiffs' counsel and defendants' counsel solely on mental health issues. Plaintiffs' counsel conferred with their ...

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