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Victory v. Berks County

United States District Court, E.D. Pennsylvania

January 15, 2020



          KEARNEY, J.

         In 2010, Berks County announced its incarcerated residents classified as "Trusty" low risk inmates would be moved from its Jail to a Community Reentry Center to meet touted goals of reducing recidivism and promoting reentry to society. The Community Reentry Center provided these Trusty inmates increased mobility with unlocked cells, access to privileges, visitation rights, and, access to home furloughs aiding work release. But contrary to its 2010 goals for its residents, Berks County chose to house only male Trusty inmate residents in the Reentry Center. It decided to leave the women Trusty inmates in the Jail with substantially different conditions of incarceration. Even after we repeatedly held over the past year its policy is unconstitutional, Berks County vigorously defended its decision citing safety/security reasons and a logistical inability to provide the same rights to women as men although it classified both as "Trusty" inmates. Berks County opposed every effort by female Trusty inmates to ensure equal protection. It sought stays of our injunctions and eventually never implemented court-ordered compliance. It denied the female inmates's internal grievances and then successfully moved to dismiss cases when female inmates did not exhaust administrative remedies before their shorter-term Trusty status sentences expired. As late as October 2019, the Berks County Commissioners approved a six-figure contract to renovate the Community Reentry Center housing the male Trusty inmates. Berks County offered no sign of relenting in its view.

         But on the business day before we started the jury trial on damages claims, Berks County told us it just moved all the male Trusty inmates out of the Reentry Center and into the Jail. It then immediately argued there is no more Equal Protection violation mooting a need for further prospective injunctive relief. The female inmates are not confident in the stability of this last-minute change by elected officials about to face a jury. In addition to damages awarded by the jury, a class of female Trusty inmates seek permanent injunctive relief believing Berks County's voluntary cessation of unconstitutional practices will not last without a permanent injunction Order.

         After evaluating the credibility of witnesses in several hearings including three preliminary injunction hearings, four days of trial, and dozens of briefs leading to extensive opinions on motions to dismiss and summary judgment, we agree with the female Trusty inmates as to the need for a narrowly tailored permanent injunction to ensure Berks County does not change its mind once outside of our scrutiny. Given the timing of Berks County's reversal in policy and potential change absent contrary evidence, we may enter this prospective relief although we are not aware of a presently challenged violation of the Equal Protection Clause. Most of the requested relief is narrowly tailored, comports with the needs-narrowness-intrusive requirements of the Prison Litigation Reform Act, and otherwise satisfies the long-established elements necessary for permanent injunctive relief. Given today's specific findings and Berks County's apparent change of mind, we decline to enter declaratory relief to address past violations. Our accompanying Order denies declaratory relief but enters permanent injunctive relief narrowly tailored to the specific harms challenged by the female Trusty inmates.

         I. Findings of Fact

         After evaluating the credibility of several witnesses in three preliminary injunction hearings, a trial on prospective permanent relief, and studying the adduced evidence, we find:

         1. In 2010, Berks County converted a juvenile detention center down the hill from its Jail into a "Community Reentry Center" managed by the same Berks County officials and correctional officers for the admitted "goal of reducing recidivism and assisting residents in reestablishing themselves as productive members of our community."[1]

         2. Berks County's goals for its Reentry Center did not distinguish between male and female residents.[2]

         3. After opening the Reentry Center, Berks County began housing its most trustworthy male and female inmates, termed "Trusty" inmates, in different facilities based on their sex: Trusty men lived in the Reentry Center and Trusty women lived in the F-Block of the Jail.[3]

         4. Male Trusty inmates living in the Reentry Center lived in unlocked cells with the freedom to access to a communal dayroom with microwaves, showers, and telephones for eighteen hours a day and received visitors in the Reentry Center's gymnasium without a glass partition.[4] Female Trusty inmates living on the Jail's F-Block lived in locked cells with six hours of recreation per day and visitation from guests from behind a glass partition.[5]

         5. On January 28, 2018, Theresa Victory entered the custody of the Berks County Jail System after being sentenced to one to five years' imprisonment. Three days later, the Jail classified her a Trusty inmate.[6] Unlike male Trusty inmates, it housed her in the Jail's F-Block.[7]

         Ms. Victory sues to challenge the housing policy.

         6. On November 30, 2018, Ms. Victory sued to challenge Berks County's Trusty inmate housing policies, claiming male Trusty inmates' more favorable living conditions in the Reentry Center violated her Equal Protection rights under the Fourteenth Amendment.[8] She sued Berks County, its Commissioners, Warden Janine Quigley, Deputy Warden Stephanie Smith, and other County employees.[9]

         7. On December 11, 2018, Ms. Victory moved to preliminarily enjoin Berks County from denying female Trusty inmates housing in the Reentry Center on the basis of sex.[10] She argued "the Berks County policy of holding women with Trusty custody-level and/or Work Release designations in the Jail, even while otherwise similarly situated men reside in the [the Reentry Center] under substantially better conditions, violates the United States Constitution."[11]

         8. On December 28, 2018, Berks County argued Ms. Victory had no reasonable likelihood of success on the merits because its housing policy served the important government interest of ensuring female Trusty inmates' safety, and the housing policy reasonably related to the safety interest because housing women inmates in the Reentry Center would raise significant safety concerns.[12]

         9. On January 10, 2019, we held a full-day hearing on Ms. Victory's motion for a preliminary injunction where Ms. Victory, Warden Quigley, Deputy Warden Smith, Captain Miguel Castro, Lieutenant Robert Mugar, and Commissioner Kevin S. Barnhardt testified.[13] Berks County argued: (1) female Trusty inmates on work release enjoy a similar amount of time outside their cells as male Trusty inmates living in unlocked cells in the Reentry Center;[14] (2) male and female Trusty inmates are similarly confined to a limited space;[15] and, (3) the safety objective of ensuring male and female prison populations be housed separately justifies the housing policy.[16]

         We enjoined Berks County's unconstitutional treatment of female Trusty inmates.

         10. On January 15, 2019, we issued an Order and Memorandum with Findings of Fact granting Ms. Victory's motion for preliminary injunctive relief and ordered Berks County to implement a schedule providing Ms. Victory:

the same liberty and freedom of movement provided to male Trusty inmates housed at the Community Reentry Center as of January 10, 2019, including (by way of example only) thirteen hours of each day (not including work release) outside of her cell, no lock on her cell in the evening hours, and direct access to rehabilitative programs she wishes to attend in the Community Reentry Center.[17]

         11. On January 17, 2019, Ms. Victory, joined by two additional plaintiffs-Amara Sanders and Samantha Huntington-filed an Amended Complaint.[18]

         12. On January 28, 2019, Warden Quigley swore to approval of a plan for compliance with our January 15, 2019 Order enjoining differential treatment.[19] Warden Quigley swore Ms. Victory "shall be housed in a single cell on F-Unit and the cell door lock shall remain in the unlocked position at all times [Ms.] Victory is in a trusty status[.]"[20] Warden Quigley further swore "from 0430 HRS through 2300 HRS, [Ms.] Victory shall have access to dayroom privileges and services that are available during open dayroom periods such as television, microwave, telephone, shower, etc."[21]

         13. Ms. Victory's one-year custodial sentence ended on January 28, 2019.[22]

         14. The same day, Berks County moved under Rule 60(b) of the Federal Rules of Civil Procedure for relief from the preliminary injunction after releasing Ms. Victory from custody.[23]

         15. We then dissolved the January 15 preliminary injunction and denied Mses. Sanders and Huntington's request for a preliminary injunction upon finding:

a. Mses. Victory and Huntington had been released from the custody of the Berks County Jail System; and,
b. Ms. Sanders had not exhausted her administrative remedies.[24]

         16. On April 5, 2019, we granted Berks County's Motion to dismiss the claims of Mses. Sanders and Huntington but denied the Motion to dismiss as to Ms. Victory, as she plead a claim for sex discrimination by alleging Berks County provided differential treatment to male Trusty inmates in the Community Reentry Center compared to female Trusty inmates in the Jail.[25]

         17. On April 22, 2019, Ms. Victory, joined by another female Trusty inmate, Alice Velazquez-Diaz, filed a Second Amended Complaint.[26] Ms. Velazquez-Diaz, serving an eleven-and-a-half to twenty-three-month sentence, resided in the Jail's F-Block beginning in October 2018. Ms. Velazquez-Diaz joined Ms. Victory's Equal Protection challenge to Defendants' housing policy of Trusty inmates.[27] Mses. Victory and Velazquez-Diaz sought a permanent injunctive and declaratory relief and compensatory damages.[28]

         18. On April 24, 2019, Ms. Velazquez-Diaz moved for preliminary injunctive relief arguing she was "in all relevant respects similarly situated to Ms. Victory when the Court heard her motion for a preliminary injunction [in January 2019]."[29]

         19. On May 7, 2019, Berks County responded arguing substantially equivalent living conditions between male Trusty inmates housed in the Reentry Center and female Trusty inmates housed in the Jail. Berks County further argued even if not substantially similar, Berks County's government interests in "providing [female Trusty inmates] adequate segregated housing, ensuring [their] safety within [Berks County Jail System], and limiting overpopulation concerns are . . . served by the policy of housing all female inmates in F-Block."[30]

         20. On May 15, 2019, we evaluated the credibility of witnesses and accepted evidence in support of Ms. Velazquez-Diaz's motion for a preliminary injunction.[31] Berks County again argued safety concerns related to creating a female housing unit in the Reentry Center. But Berks County did not mention whether it considered closing the Reentry Center to address our detailed constitutional concerns.

         We again enjoined Berks County's unconstitutional treatment of female Trusty inmates.

         21. On May 20, 2019, we granted Ms. Velazquez-Diaz's motion for preliminary injunctive relief.[32] We found Ms. Velazquez-Diaz showed a likelihood of success on the merits of her Equal Protection claim complaining of differential treatment concerning freedom of movement and visitation conditions between male Trusty inmates in the Reentry Center and female Trusty inmates in the Jail.[33]

         22. In granting the preliminary injunction, we ordered "[o]n or before May 28, 2019, Berks County, through Warden Quigley, shall file a proposed plan to ensure compliance with the accompanying Memorandum allowing Ms. Velazquez-Diaz to have the freedom of movement provided to male Trusty inmates housed at the Community Reentry Center . . .; and, visitation without glass partition as afforded to male trusty inmates."[34] We allowed Ms. Velazquez-Diaz to promptly comment upon or object to Berks County's plan.[35]

         23. On May 23, 2019, Berks County appealed our May 20, 2019 Order and sought a stay of implementing the Order pending appeal.[36] On June 3, 2019, we denied the stay and again explained, in extensive detail, why Berks County's longstanding different housing and services provided to Ms. Velazquez-Diaz violated the Equal Protection Clause.[37]

         24. On June 3, 2019, Berks County moved for summary judgment again arguing substantially different treatment is justified by "[t]he important government interest of safety and security is served by housing female Trusty inmates on F-Unit [in the Jail]."[38] Berks County also argued security risks and concerns with building a female-only housing unit in the Reentry Center, including dangers of assaults on female inmates and overcrowding of the Reentry Center. Berks County did not adduce evidence showing it considered closing the Reentry Center as a housing unit.[39]

         25. On June 4, 2019, Berks County, through Warden Quigley, responded to our May 20, 2019 Memorandum and Order swearing "[b]ased upon my experience in corrections, management of the safety and security needs and the physical facilities at [Berks County Jail System], I believe ... we are providing equal housing and services to all inmates . . . within the operational parameters and using our best judgment to manage and operate the [Berks County Jail System]."[40] Warden Quigley swore, if we so ordered, she would move Ms. Velazquez-Diaz to the F-Block Overflow Unit, but she could not "make any other recommendations for the housing arrangements of [Ms.] Velazquez-Diaz" without sacrificing the Jail's safety and security.[41]

         26. On June 4, 2019, Berks County moved for an emergency stay of the May 20, 2019 Order in our Court of Appeals.[42]

         27. On June 6, 2019, Ms. Velazquez-Diaz timely responded to Warden Quigley's June 4, 2019 affidavit arguing Defendants failed to provide a plan and even if we considered the renewed idea of moving the female Trusty inmates into the overflow unit, this transfer would not meet the terms of our May 20, 2019 Order.[43]

         28. On June 12, 2019, Mses. Victory and Velazquez-Diaz moved to enforce our preliminary injunction order and for contempt arguing Warden Quigley's affidavit did not propose a plan to comply with the preliminary injunction.[44]

         29. On June 14, 2019, Berks County responded with Warden Quigley swearing to safety and security concerns concerning visitation conditions at the Jail and the Community Reentry Center but again failed to propose a method for providing similar visitation conditions for male and female Trusty inmates.[45]

         30. On June 20, 2019, our Court of Appeals denied Berks County's emergency motion for a stay. We scheduled a hearing on the pending motion for contempt for July 9, 2019.[46]

         31. On July 1, 2019, Warden Quigley responded "Senior Staff at [Berks County Jail System] has routinely reviewed options to develop a Plan that would comply with this Court's Orders and have been continually reviewing all options to develop a Plan that would be as safe and secure as possible."[47] She filed a plan proposal in which the Jail would repurpose the quarantine unit (in the Jail) to house female Trusty inmates with the same freedom of movement, no locked cells, a common area with tables for meals and recreation, barrier free visitation, and toilets with no lockouts.[48] But Warden Quigley expressed significant safety and security concerns with this proposal.[49] She did not mention anyone considering moving the male Trusty inmates to the Jail or closing the Reentry Center.

         32. On July 8, 2019, we granted Berks County's Motion for summary judgment on all claims other than the Equal Protection claim. As to the Equal Protection claim, we found Mses. Victory and Velazquez-Diaz raised a genuine issue of material fact as to whether (1) female Trusty inmates were similarly situated to male Trusty inmates; (2) Berks Defendants provided substantially equivalent treatment to female Trusty inmates; and, (3) Berks County's differential treatment served important government objectives and the policy substantially related to the governmental objectives.[50]

         33. In our June 8, 2019 Order and Memorandum, we granted Mses. Victory's and Velazquez-Diaz's Motion for class certification, certifying a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure of "[a]ll current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification but denied assignment to the Community Reentry Center and denied access to the privileges and services available to men assigned to the [Community Reentry Center]."[51] We certified Mses. Victory and Velazquez-Diaz as class representatives.[52] Mses. Victory and Velazquez-Diaz sought declaratory and permanent injunctive relief for the Class.

         34. Hours after we certified the Class, Mses. Victory and Velazquez-Diaz moved for a preliminary injunction on behalf of the Class.[53]

         35. Also on July 8, 2019, Warden Quigley amended her affidavit and attached a memorandum titled "Housing and Schedule Changes for Female Inmates Classified as 'Trusty.'"[54]Warden Quigley swore "[i]t was further my understanding from this Court's Order of May 20 that my obligation was to provide the Court with safe and secure alternatives."[55] Warden Quigley again outlined a proposed plan where the Jail would convert the quarantine unit to a female Trusty inmate housing unit.

         We raised the possible move of male Trusty inmates to the Jail.

         36. On July 9, 2019, we held a hearing to determine whether Berks County failed to comply with our May 20, 2019 Order. At the beginning of the hearing, we questioned counsel for Berks County about whether the way to address the Class claims for injunctive relief would be to move all male Trusty inmates to the Jail. Our inquiry appeared to be the first time Berks County considered this option:

The Court: How about if I order all the men out of the CRC and back to jail?
Mr. Connell: If Your Honor orders -
The Court:Does that work for you guys? If the [Community Reentry Center] is that incompetent to be able to put women in there unless they put a monitor there and have them do the construction, why not order all the men back to jail? You okay with that?
Mr. Connell: I would have to discuss. I can't discuss -
The Court: Maybe we can shortcut all of this. The substantial[] equivalen[ce] would be to move all the trusty back to the jail.
Mr. Connell: And put them under all the same current conditions.
The Court: Same conditions as the women.
Mr. Connell: We could have done that, Your Honor. We would have contemplated that, but Your Honor precluded that, prohibited that, in your original order.
The Court: Because I said they have to be treated substantially the same. I ordered them to go to [the Community Reentry Center] or ordered them to go to the equivalent status. But the question struck me as why don't they make them equivalent status and move the men over?
Mr. Connell: Or they can just lock the doors at the [Community Reentry Center].
The Court: No, that's not the same.
Mr. Connell: No?
The Court: No. Shut down the [Community Reentry Center], move the men over. Why not?
Mr. Connell: I have to discuss that with my client. I don't know if they have the facilities to hold all of them. Can I - because I would need to speak to more than just the warden.
The Court: Are the commissioners here today?
Mr. Connell: I have a commissioner.
The Court: While you're putting on your witnesses, they can think about it. Because that would be [a] way to make the[] [living conditions] substantially equivalent. I'm not saying that Mr. Feldman agrees with me. I'm not saying he does. But I've got to find a way to get them on the same parity, at least until I have a final order.[56]

         37. We then heard testimony from Captain Miguel Castro who swore:

a. Before submitting the June 4, 2019 Affidavit, he and other Berks County Jail System officials, along with Warden Quigley and Berks County's counsel, discussed how to comply with our May 20, 2019 Order while still maintaining safety and security in the Jail System;
b. He talked to officers and lieutenants in the Jail System to determine a course of action;
c. Berks County officials believed they already provided similar conditions for female and male Trusty inmates before June 4, 2019, despite our May 20, 2019 Order and Findings detailing unequal treatment;
d. Berks County officials did not consider providing similar visitation conditions to female Trusty inmates in meetings leading up to Warden Quigley's June 4, 2019 Affidavit; and,
e. Although Warden Quigley swore she would be "prepared to move [Ms.] Velazquez-Diaz to the F-Unit Overflow Unit should it be so ordered," he admitted Berks County would need to make further adjustments to the overflow unit to comply with our May 20, 2019 Order, including adjustments to ensure the same freedom of movement offered to male Trusty inmates in the Community Reentry Center.[57]

         38. On July 11, 2019, we granted Ms. Velazquez-Diaz's Motion for contempt against Berks County and Warden Quigley imposing compensatory sanctions of $500.00 to Ms. Velazquez-Diaz and $6, 571.20 to Ms. Velazquez-Diaz's counsel.[58] We also ordered: (1) Warden Quigley to "e-mail Plaintiffs' counsel with a specific implementation schedule for moving only female Trusty inmates to the former quarantine unit of the Jail;"[59] and, (2) Mses. Victory and Velazquez-Diaz to "either withdraw or file a status memorandum as to remaining issues on its pending Motion for preliminary injunction."[60]

         39. On July 16, 2019, Berks County appealed the contempt and implementation order to our Court of Appeals.[61] Berks County moved for an emergency stay of our implementation order. Our Court of Appeals granted the emergency Motion for stay.

         40. On July 30, 2019, Mses. Victory and Velazquez-Diaz filed a status memorandum seeking the same injunctive relief for the Class as previously ordered for the individual plaintiffs, arguing "[t]he record .... before the Court when it heard the prior preliminary injunction motions has amply demonstrated that Defendants are violating the rights of all female Trusty prisoners, not just those of Ms. Victory and Ms. Velazquez-Diaz."[62]

         41. On August 5, 2019, Berks County responded by arguing our implementation order (directing Berks County to move all female Trusty inmates to the quarantine unit consistent with the proposed plan) mooted the Class claim for injunctive relief. Even if ripe, Berks County argued the Class failed to meet four prerequisites of granting a preliminary injunction, incorporating arguments raised in earlier filings.[63]

         42. On August 7, 2019, we granted the Class Motion for a preliminary injunction but stayed implementation of the Order; we found "after three evidentiary hearings, the same likelihood of success and irreparable harm exist[ing] for female Trusty inmates as part of the Class as previously awarded to Plaintiff Alice Velazquez-Diaz under our May 20, 2019 Order."[64]

         43. On September 16, 2019, the parties cross-moved for summary judgment on the Equal Protection Clause claim, with both sides repeating the same arguments addressed earlier.[65] Berks County argued its housing policy served the important governmental interest of "operating a safe and secure facility" and then explained why creating a housing unit in the Reentry Center or Jail posed significant safety concerns for the Jail.[66]

         44. On October 11, 2019, our Court of Appeals dismissed Berks County's challenges to the January 15 and May 20 preliminary injunctions and July 15 implementation order as moot under the Prison Litigation Reform Act.[67] In dismissing the challenges, the Court of Appeals held the Plaintiffs did not meet required needs-narrowness-intrusiveness findings for entering preliminary prospective relief under the Prison Litigation Reform Act; without such evidence and subsequent findings, the Court of Appeals held the preliminary injunctions "w[ere] without legal effect."[68] The Court of Appeals vacated our contempt order after finding we based the order on the May 20, 2019 preliminary injunction.[69] In a later order, the Court of Appeals vacated the August 7, 2019 preliminary injunction (awarded to the Class) for reasons stated in its October 11, 2019 Opinion.[70]

         45. On October 17, 2019, we denied the summary judgment cross-motions finding genuine issues of material fact regarding access to furloughs, compensatory damages, and the scope of injunctive relief for the Class.[71] While denying the relief sought in the parties' cross-motions, we held as a matter of law: (a) female and male Trusty inmates in the Berks County Jail System were similarly situated; (b) Berks County failed to provide substantially equivalent treatment to female Trusty inmates regarding freedom of mobility, access to privileges, and visitation when comparing the totality of living conditions of female Trusty inmates housed in the Jail to male Trusty inmates residing in the Community Reentry Center; and, (c) Berks County's housing policy did not serve an important governmental objective and the housing policy did not substantially relate to an important governmental objective.[72] We concluded "Berks County violated Mses. Victory's and Velazquez-Diaz's rights when it discriminated against them in disparate treatment as to freedom of mobility, access to privileges, and visitation on the basis of sex in violation of the Equal Protection Clause."[73]

         46. We set trial on remaining liability and damages questions for November 12 through 15, 2019. We granted Berks County's Motion to bifurcate the trial and ordered the trial to proceed in three parts by first presenting the remaining liability question on the constitutionality of Berks County's furlough policy, then Ms. Victory's case for compensatory damages, and finally on the scope of requested prospective relief under 18 U.S.C. § 3626(a)(1).[74] Phases one and two involved jury questions and phase three would involve evidence presented to the Court.

         Berks County moves the Male Trusty inmates to the Jail the day before trial.

         47. On November 8, 2019, the last business day before the first day of trial, Defendants filed a "Notice to the Court" to "advise that the Berks County Board of Commissioners decided to move the inmates that have been housed at the Berks County Community Reentry Center to the Berks County Jail."[75] "As of November 8, 2019, the [Community Reentry Center] is no longer a housing unit holding any inmates of the Berks County Jail System. All inmates, male and female, that are incarcerated at the Berks County Jail System are being housed at the Berks County Jail."[76]

         Evidence adduced at trial resulting injury verdicts on the damages issues.

         48. On November 12 and 13, 2019, we held the first phase of the trial relating to unequal access to furloughs between male and female Trusty inmates. The adduced evidence established:

a. The Jail's policy made male Trusty inmates (housed in the Reentry Center) and female Trusty inmates (housed in the Jail) eligible for the Partial Confinement Reentry Program upon being classified as Trusty;[77]
b. The Partial Confinement Reentry Program (for both male and female Trusty inmates) had two main aspects: work release and furlough;[78]
c. Work release enabled Trusty inmates to gain employment in the community while incarcerated[79] and furlough provided a "temporary release of an inmate with court approval for a predetermined amount of time";[80]
d. Berks County offered different types of furloughs to Trusty inmates; one furlough, called a "home furlough," allowed a Trusty inmate to leave the Jail for up to ten hours to spend time with family;[81]
e. Berks County required certain conditions be met before a Trusty inmate could take a home furlough: (1) an Order from the inmate's sentencing judge (a Partial Confinement Reentry Order);[82] (2) a work release job or a job in the prison;[83] and, (3) be taken within four months of the minimum sentence date.[84]
f. Mses. Victory and Velazquez-Diaz, on behalf of the Class, argued Berks County assisted male Trusty inmates obtain the Partial Confinement Reentry Order-a prerequisite for furlough-but did not similarly assist female Trusty inmates:
i. The Partial Confinement Order is a one-page document with certain information fields at the top, including: the applicant name, inmate number, charge, minimum sentence date, maximum sentence date, sentencing judge, and date initially eligible for program.[85] The Order has a signature line for the inmate, Warden Quigley, and the sentencing judge;[86]
ii. When male inmates obtained Trusty status, the Jail would host an orientation in the Reentry Center;[87]
iii. Typically, there would be ten to twenty male Trusty inmates in a given orientation, [88]
iv. The orientation involved information about the Reentry Center's housing unit and about work release and obtaining furlough;[89]
v. During this orientation, Berks County staff provided each male Trusty inmate a Partial Confinement Reentry Order with the information fields at the top of the Order, such as inmate name and number, already filled out by Berks County to be signed by the male inmate;[90]
vi. After the orientation, the Reentry Center sent each Order to Warden Quigley and the sentencing judge for signatures;[91]
vii. After the sentencing judge signed and returned the Order to the Reentry Center, Berks County provided the male Trusty a copy of the completed Order and he could use the Order to take a home furlough when the inmate became eligible for furlough;[92]
viii. The Jail's "Work Release Coordinator," Joanna Brown, testified the Reentry Center provided completed forms to male Trusty inmates during orientation to be submitted to sentencing judges for "efficiency" explaining "I can review them all at once. I can get them all signed [all] at once. I can provide them to [Warden Quigley] at once. The Judges individually all at once;"[93]
ix. The Jail did not host an orientation for female Trusty inmates, did not issue already filled-out Partial Confinement Reentry Orders to female Trusty inmates, nor did they advise female Trusty inmates they would need a Partial Confinement Reentry Order to take furlough unless the female Trusty inmate requested the Order.[94]
g. Mses. Victory and Velazquez Diaz, on behalf of the Class, argued Berks County assisted male Trusty inmates obtain work release jobs-another prerequisite for furlough-but did not similarly assist female Trusty inmates:
i. Coordinator Brown "coordinate[d] the work that [was] brought to the table by an inmate or an employer directly" by ensuring all necessary paperwork was completed and the employer met program requirements;[95]
ii. Coordinator Brown did not affirmatively seek jobs for male or female Trusty inmates;[96]
iii. Instead, the work release job must have been "brought to [Coordinator Brown], the work either by an inmate directly because they had that job before they came in, or the inmate spen[t] their time while incarcerated . . . job searching, or an employer would come to [Coordinator Brown] directly seeking out people";[97]
iv. Coordinator Brown testified certain employers, such as Morgan Truck Body, contacted the Jail seeking work release employees;[98]
v. When an employer called seeking work release employees, Coordinator Brown asked the employer if they were "interested in hiring male or females;"[99]
vi. Once the employer indicated its hiring preference, Coordinator Brown would advertise job openings either to male Trusty inmates in the Reentry Center or female Trusty inmates in the Jail;[100]
vii. Coordinator Brown testified no employer expressed interest in hiring female Trusty inmates until last October (right before our November trial) in which case she posted a job memorandum for female Trusty inmates in the F-Block;[101]
viii. Male Trusty inmates regularly observed job memorandum and postings on the bulletin board in the Reentry Center.[102]

         49. The jury concluded Berks County violated the Equal Protection Clause by refusing to provide female Trusty inmates substantially equivalent access to furloughs as male Trusty inmates.[103] The jury concluded Berks County's furlough policy served an important government interest, but the policy did not substantially relate to the important government interest.[104]

         50. During the second phase of the trial, the jury evaluated the testimony of:

a. Ms. Victory who felt dehumanized and discriminated against after learning only male Trusty inmates lived in the Reentry Center;[105] attended her work release job many times without showering because she would leave the Jail before female Trusty inmates could use the showers;[106] and, became nauseous and had increased stress when Berks County Jail staff could not release her for work release because of a lockdown or crisis in the F-Unit.[107]
b. Ms. Jean Eckroth, a counselling volunteer at the Jail, who met with Ms. Victory during her incarceration and testified to Ms. Victory's "stressed out" condition and about Ms. Victory's "hopelessness and despair";[108]
c. Captain Castro, who testified to the day-to-day safety precautions and procedures as to the Jail permitting female Trusty inmates to leave the Jail for work release.[109]

         51. The jury found Berks County's Equal Protection Clause violation caused her to experience physical or emotional pain and awarded her $2, 800 in compensatory damages.[110]

         Evidence adduced for permanent prospective relief.

         52. We proceeded to the third and prospective relief phase of the trial. Warden Quigley and Deputy Warden Smith testified about the new housing policies at the Jail after closing the Community Reentry Center as of November 15, 2019:[111]

a. There were approximately seventy-seven male Trusty inmates and thirteen female Trusty inmates;[112]
b. Berks County no longer housed male Trusty inmates in the Reentry Center and had moved all male inmates housed in the Reentry Center to the A-Unit of the Jail;[113]
c. Berks County still housed female Trusty inmates in the F-Unit of the Jail;[114]
d. Berks County Commissioners decided to move male Trusty inmates to the Jail and Warden Quigley counselled the Commissioners on the "pros and cons and the feasibility" of the decision;[115]
e. The Jail no longer issued pre-completed Partial Confinement Reentry Orders to male Trusty inmates but instead staff assisted Trusty inmates (male and female) to obtain orders once eligible to take furlough;[116]
f. Warden Quigley was not aware of any steps taken by the Jail to dismiss a furlough Order held by a male Trusty prisoner;[117]
g. Warden Quigley swore she has the authority to change the Inmate Handbook but typically presents proposed changes to the Berks County solicitor before a final decision.[118]

         53. Following testimony, Mses. Victory and Velazquez-Diaz argued the Berks County voluntarily ceased the constitutional violation and therefore Mses. Victory and Velazquez-Diaz "should be entitled to discovery to the process by which [the changed housing policy] happened, because the Supreme Court and the [Court of Appeals for the Third Circuit] have said that is relevant to determining whether [the constitutional violation] will recur."[119] Berks County responded by arguing we should not enter an injunction because "[a]t this point, there is no irrevocable harm under the heightened standard for males and females because they are treated nearly identically now" and argued "it is not a matter of cessation" because "the change [is not] because of this litigation."[120]

         Post-trial status of Berks County's treatment of Trusty inmates.

         54. After the evidence and arguments from counsel, we ordered: (1) Berks County to file a status report describing the change in housing and treatment of male Trusty inmates by December 2, 2019; (2) Plaintiffs to "move to withdraw the request for prospective relief or submit Memoranda... describing how we may continue to entertain a request for prospective relief under the Prison Litigation Reform Act given the noticed changes in the treatment of male and female Trusty inmates in the Berks County Jail System with a responsive brief . . . due no later than December 19, 2019."[121]

         55. Defendants timely filed its status report December 2, 2019 and filed a supplemental status report on December 9, 2019.[122] According to the first status report:

a. Both female and male Trusty inmates: "are living in cells (A-Unit for males and F-Unit for females) with two beds, a toilet, a sink and a desk;" "receive 6 [h]ours of [d]aily [r]ecreation;" "have access to the dayroom which includes telephones, showers, microwaves, and television" during indoor recreation periods; "have three designated visitation days per week;" "may receive two visits per week from no more than three visitors at one time;" "use visitation areas that have a glass partition between them and their visitor;" "carry their tray to their cell and eat their meal in the cell;" and, "will be eligible for furlough."[123]
b. Concerning the Jail's furlough policy, Berks County attested:
i. "Between November 25 and November 27, 2019 [the Berks County Jail System's] Treatment Department Staff provided information regarding general rules for Trusty inmates and information regarding furloughs and work release. The information provided included the presentation of slides 5, 10, and 11 of the former Orientation given to male Trusty inmates" before November 8, 2018;[124]
ii. Berks County Jail System "submitted a Partial Confinement Reentry Order to the sentencing judge" for all agreeable female Trusty inmates;[125]
iii. After November 11, 2019, "a Partial Confinement Reentry Order will be submitted to the sentencing judge on a case by case basis after a given [T]rusty inmate meets the criteria for and requests a home furlough;"[126]
iv. Once "a male or female inmate is classified as a Trusty, they are advised of that classification by being provided a Review for Trusty Status Memorandum from Treatment Staff at [Berks County Jail System]."[127]
c. Defendants also modified the Inmate Handbook "to exclude all references to the former Community Reentry Center."[128]

         56. In its supplemental status report, Defendants stated they "modified its work release program to allow male and female inmates to work on the same shift with the same employer" and they "placed bulletin boards in [] the A-Unit and F-Unit [] where all job opportunities that come to the Jail from outside employers are placed."[129]

         57. On December 9, 2019, Plaintiffs filed a memorandum expressing they still seek a permanent injunction despite the reported changes claiming such changes are only a "voluntary cessation" of the adjudged unconstitutional conduct. The Plaintiffs' memorandum addresses the availability of the requested prospective relief under the Prison Litigation Reform Act (18 U.S.C. § 3626(a)(1)(A)).[130] Plaintiffs seek to permanently enjoin Berks County to:

a. "Provide the same amount of time each day during which cell doors are unlocked and prisoners are permitted to access the dayroom for all Trusty women and men, unless there is a unit-wide lockdown or individual disciplinary action."[131]
b. "Provide equal access to phones, microwaves, and showers to all Trusty women and men, allowing both Trusty women and men to access those amenities during all time periods when their cell doors are unlocked, unless there is a unit-wide lockdown or individual disciplinary action."[132]
c. "Provide substantially equivalent visitation conditions for Trusty women and men, including the length of visits, the frequency of visits, and the presence or absence of a physical barrier between prisoners and their visitors."[133]
d. "Update the [Berks County Jail System] Inmate Handbook to reflect the current internal furlough policy, including a list of the eligibility requirements for each type of furlough."[134]
e. "Provide a completed Partial Confinement Reentry Order (i.e. furlough order) (except for the prisoner's and judge's signatures) to all male and female Trusty prisoners upon their attaining the Trusty classification, and send the proposed furlough orders to the appropriate court or sentencing judge."[135]
f. "Provide a written notice to all potential employers that contact [Berks County Jail System] to seek work release employees that [Berks County Jail System] has both male and female Trusty prisoners on work release who are available for employment."[136]
g. "Provide written notice, either individually or through public postings, to all male and female Trusty prisoners about all work release job opportunities that [Berks County Jail System] becomes aware of and meet [Berks County Jail System's] requirements."[137]
h. "File written status reports with the Court once every six months for two years, updating the Court and Class Members on the treatment of Trusty men and Trusty women in [Berks County Jail System] with respect to freedom of mobility, access to privileges, visitation conditions, and access to furloughs (including the number of men and women who have been approved for furloughs)."[138]

         58. Mses. Victory and Velazquez-Diaz added evidence:

a. An October 3, 2019 Commissioners' Board Meeting Minutes "[a]dopting a resolution authorizing the award and the Director of Contracts & Procurement to execute as a result of Invitation to Bid #19-21-GR, two (2) contracts for the [Community Reentry Center] Elevator Modernization Project as identified herein"[139]:
Dolan Construction, Inc. 401 South 13th Street Reading, PA 19602 General Construction: Total Bid Not to Exceed Amount: $173, 500.00
H.B. Frazer Company - Pennsylvania 3 Morgan Drive Reading, PA 19608 Electrical Contractor: Total Bid Not to Exceed Amount: $30, 976.00[140]
b. A November 10, 2019 Reading Eagle article, entitled "Berks County officials close reentry center prior to federal trial," stating[141]:
i. "County solicitor Christine M. Sadler said Saturday that the county [Commissioners' decision to shut down the [Community Reentry Center] had been a topic of discussion long before the lawsuit was filed. She said the facility, which was opened in 2010, was a source of concern because it is considered inefficient and oversized;"[142]
ii. "She said the decision was made now largely due to financial factors;"[143]
iii. "[Solicitor] Sadler said the county received notification in late summer that the state was terminating its contract to use the Berks County Prison to house state prisoners with technical parole violations - a significant loss in revenue to the county. That change would also free up [fifty] beds and [fifty] spots in programs to help inmates reestablish themselves back into the community;"[144]
iv. "[Solicitor] Sadler said the county's action is based on an October court order;"[145]
v. "[Solicitor] Sadler said the county was precluded from making changes to the program while the lawsuit was working its way through the court system based on an order by U.S. District Judge Mark A. Kearney. But, she said, that order was overturned on [October 11, 2019];"[146] and,
vi. "When that happened, [Berks County's] Chief Financial Officer Robert J. Patrizio brought a proposal to the [Commissioners. Sadler said he found that closing the [Community Reentry Center] would save the county $1.4 million to $1.9 million in costs for maintenance, needed equipment upgrades and personnel costs over the next two years."[147]
c. A November 21, 2019 Reading Eagle article stating: The Berks County Commissioners "defended to [Berks County resident Jane Palmer] their decision to close the Community Reentry Center and move the reentry program to the Jail. Commissioner Christian Y. Leinbach said the facility needed work on its elevators, HVAC system, and cameras, and those costs would be avoided with the decision. He added the reentry program would remain the same."[148]

         59. On December 19, 2019, Defendants responded to Plaintiffs' memorandum contesting the Plaintiffs' ability to seek prospective relief under 18 U.S.C. § 3626(a)(1)(A) and traditional equitable principles given the changes to the housing policy and arguing the changes render the request moot. Even if the request is not moot, Defendants argue the terms of the proposed permanent injunction fail to meet the requirements of a permanent injunction under 18 U.S.C. § 3626(a)(1)(A).[149]

         II. Conclusions of law

         60. Congress, through the Prison Litigation Reform Act, does not bar prospective relief after Berks County moved the male Trusty inmates to the Jail and took steps to address Plaintiffs' specific challenges to its treatment of male and female Trusty inmates in substantially equivalent manner after our multiple Orders.

         61. Berks County's last-minute changes do not moot Plaintiffs' request for permanent injunctive relief.

         62. Plaintiffs meet their burden of establishing the four elements for permanent injunctive relief.

         63. Plaintiffs' proposed prospective relief, in large part, satisfies the needs-narrowness-intrusiveness requirements of the Prison Litigation Reform Act.

         64. After carefully evaluating the substantial weight we afford to an adverse impact on public safety and the operations of the criminal justice system by the entry of proposed prospective relief, we enter ...

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