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July 17, 1997

ARNOLD JONES, MIGUEL VILLANUEVA, STANLEY D. DAVIS, EDDIE TATE, RICHARD CALANCHE, on behalf of themselves and all others similarly situated, Plaintiffs,
CITY AND COUNTY OF SAN FRANCISCO, WILLIE L. BROWN, 1 Mayor of the City and County of San Francisco, MICHAEL HENNESSEY, Sheriff of the City and County of San Francisco, and SAN FRANCISCO COUNTY BOARD OF SUPERVISORS, Defendants.

The opinion of the court was delivered by: ORRICK

 The plaintiff class, consisting of certain inmates of San Francisco Jail Number 3 ("Jail No. 3" or "the jail") in San Bruno, California, brought suit against the City and County of San Francisco ("City") and various city officials, challenging the constitutionality of the conditions of their confinement at Jail No. 3. After settlement, dismissal, reopening of the case, and the issuance of findings of fact by the Special Master, the parties filed cross-motions for summary judgment. The Court grants plaintiffs' motion for summary judgment in part, grants defendants' motion in part, and denies both motions in part. As to those issues decided in plaintiffs' favor, the Court enjoins defendants to draft a plan to remedy the described constitutional violations.


 Plaintiffs originally filed this action in May 1991, then entitled William Besk v. City & County of San Francisco, seeking damages for the class representatives and injunctive relief for the class. After early discovery and negotiations, the parties entered into a Stipulation of Dismissal ("Besk Stipulation") filed May 24, 1993, in which plaintiffs agreed to dismiss the action if defendants complied with thirty-three requirements contained therein. After a fairness hearing, the Court approved the Besk Stipulation and dismissed the case.

 Defendants' alleged violations of those requirements prompted plaintiffs to request that the Court reopen the case. Plaintiffs filed an amended complaint on March 18, 1994, bearing the names of a new group of class representatives, and charging defendants with noncompliance with the terms of the Besk Stipulation. On April 22, 1994, the Court appointed Allen F. Breed as Special Master to aid the Court in determining whether defendants complied with the terms of the Besk Stipulation. On August 30, 1994, the Special Master issued his report, finding that defendants had improved some of the living conditions at Jail No. 3, but in many cases they failed to completely or even substantially comply with the Besk Stipulation. The Court reopened the case on November 17, 1994.

 The parties stipulated and the Court ordered that it would appoint the Special Master to investigate a list of conditions at Jail No. 3 and issue findings and conclusions of fact. (Stip. & Order of Appointment, filed Mar. 17, 1995, at 8.) The Special Master submitted his Findings and Conclusions of Fact ("Findings") to the parties in December 1995. The Court, after considering the parties' objections, approved the Findings, and subsequently ordered the parties to file cross-motions for summary judgment.

 At the hearing on these motions, defendants argued that the existence of numerous changed conditions since the submission of the Findings left the Court with an outdated and incomplete factual record upon which to rule. The Court agreed. Nonetheless, the Court granted defendants' motion for summary judgment as to issues relating to passive recreation and the availability of exercise equipment; the Court found that even if inadequacies existed in these areas, they could not constitute Fourteenth Amendment violations. (See Order filed Oct. 28, 1996 at 15.) The Court denied defendants' motion as to the claims of each of the individual class representatives, finding that disputes of material fact precluded summary adjudication. As to all other factual issues, the Court submitted the motions pending the completion of a Supplemental Report to the Special Master's Findings and Conclusions of Fact ("Supplemental Report"). (Id.)

 Also at that hearing, defendants moved to decertify the class on the grounds that named plaintiffs did not fairly or adequately represent the class in accordance with Rule 23(a)(4) of the Federal Rules of Civil Procedure. The Court granted that motion in part, but ruled that it would permit the continued certification of the class if plaintiffs named a current inmate at Jail No. 3 who wished to serve as an additional class representative. (See id. at 14.) Plaintiffs subsequently moved to add Sedgwick McKneely ("McKneely") and Treal Malone ("Malone") as class representatives. The Court granted the motion to add McKneely as an additional class representative, but denied the motion as to Malone.

 The Special Master then submitted the Supplemental Report, deemed filed on February 21, 1997, on the conditions prevailing at the jail as of November 1, 1996. The Court then ordered the parties to file their written objections to the report, if any, within ten days. (See Order Feb. 21, 1997.) On March 7, 1997, defendants filed a motion to correct the Supplemental Report ("motion to correct"), again alleging that numerous "changed conditions" altered the facts of the action so as to make the Supplemental Report deficient in numerous respects. In response, the Court ordered that the factual record would close as of April 1, 1997, so as to account for recent changes without making summary adjudication impracticable. (Order filed Apr. 1, 1997 at 2.)

 Defendants' motion to correct consisted of sixty-one pages of objections, divided into categories of "general" and "specific" objections. The Court submitted the specific objections, but ruled on the general objections, sustaining defendants' objection to those few portions of the Supplemental Report that contain conclusions of law rather than of fact. Otherwise, the Court overruled defendants' general objections. *fn2"

 The Court also denied defendants' motion to compel the deposition of McKneely, finding that additional discovery would be unreasonably duplicative relative as to the claims of the class, and unduly burdensome in delaying resolution of the action. See Fed. R. Civ. P. 26(b)(2). The Court allowed for the taking of McKneely's deposition after the Court had resolved the parties' summary judgment motions.



 The Court may grant summary judgment where there appears "no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). Once the moving party has shown the absence of a genuine issue of material fact, the nonmoving party must "designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (citations omitted). The inferences to be drawn from the evidence must be viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).

 Before turning to the merits of plaintiffs' claims, the Court must ascertain the proper standard of review to apply to the Findings. Plaintiffs urge the Court to follow Rule 53(e)(2) of the Federal Rules of Civil Procedure and adopt all findings of fact unless "clearly erroneous," while defendants argue that the findings should not be subject to such deference by the Court.

 The "clearly erroneous" standard of Rule 53(e)(2) applies to nonjury actions. In actions tried before a jury, Rule 53(e)(3) allows only for the admission of the Findings as evidence, subject to no deference to the fact finder. The question of the applicable standard of review, therefore, depends on whether one characterizes this action as a jury action or nonjury action. The amended complaint in this action requests injunctive relief as to the class, but damages for the individual class representatives. (Am. Compl. at 19-20.) In their answer, defendants filed a jury demand "on all claims for relief triable thereby." (Answer at 14.) Accordingly, defendants' jury demand applies only to those individual claims, and not to the equitable class claims. The "clearly erroneous" standard must govern the Findings with regard to the equitable claims of the class.

 Citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 3 L. Ed. 2d 988, 79 S. Ct. 948 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962), defendants argue that where legal and equitable claims share common factual issues, the legal claims must be tried by a jury prior to adjudication of the equitable claims. See Beacon Theaters, 359 U.S. at 508. They assert that because the Supplemental Report is not entitled deference in a jury trial of the damages claims, the Court cannot now grant any deference to the Findings until a jury has heard all of the evidence and reached a verdict.

 These cases do not command such a result. Dairy Queen merely held that a district court cannot strike the jury demand of a defendant where legal issues remain in a case. 369 U.S. at 479. The Court is not striking any jury demand here; defendants will have a jury decide each of the damages claims.

 As for Beacon Theatres, the Supreme Court deemed impermissible the attempt of a district court to try equitable claims from the bench prior to permitting a jury trial on common issues in the legal claims. The Court reasoned that a court's ruling on common issues would eviscerate a party's right to have a jury try those same issues. 359 U.S. at 510-11. This Court, however, is not subjecting any claims to trial under Rule 52. Rather, it is resolving questions of law presented in motions for summary judgment under Rule 56. It is beyond cavil that the Court may properly resolve some legal claims by summary adjudication prior to a trial of the remaining claims; the summary adjudication of equitable claims, therefore, cannot work any injustice. *fn3"

 Moreover, even if the Court faced equitable and legal claims sharing the same temporal dimension, the Court's findings as to the class claims would not likely affect a jury's determination of the claims of the class representatives. For instance, the Court's acceptance of the Findings regarding rates of inmate violence will not affect whether a jury finds defendants liable to any particular named plaintiff, because that plaintiff's recovery depends on whether he has actually suffered compensable harm from physical attack. Despite defendants' current posture, defendants' counsel admitted the separateness of the legal and equitable claims during a status conference in which the Court and the parties planned procedures for managing this litigation. Counsel noted,

And finally, I want to alert the Court that we are really dealing with, in a sense, two separate lawsuits here under the rubric of the Jones case. One is a class action challenging in general the conditions at the jail. The second are individual damages claims on behalf of the six named plaintiffs.

 (Tr. Nov. 17, 1994 at 5.)

 In short, the Court will ensure that defendants' Seventh Amendment right to a jury will be preserved "inviolate," see Fed. R. Civ. P. 38, but it will press on to resolve the summary judgment motion on the equitable claims prior to a trial on the damages claims. *fn4" Cf. Granite State, 76 F.3d at 1027-28. For the purpose of deciding those equitable claims, the Court will adopt each of the Findings unless clearly erroneous. Fed. R. Civ. P. 53 (e)(2). For the sake of judicial economy, the Court will address defendants' objections to the Supplemental Report only insofar as a ruling on those objections would affect the outcome of the Court's judgment.


 To prevail under § 1983, plaintiffs must demonstrate that defendants acted under color of state law, and that they committed an act or omission depriving them of some right, privilege, or immunity protected by the Constitution or laws of the United States. See 42 U.S.C. § 1983 (Supp. 1997); Redman v. County of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991), cert. denied, 502 U.S. 1074, 117 L. Ed. 2d 137, 112 S. Ct. 972 (1992). In order to find the City liable for the acts or omissions of its officials, the Court must find that those acts "implement[] or execute[] a policy statement, ordinance, regulation, or decision, officially adopted and promulgated by that body's officers," or else that the deprivation was inflicted pursuant to a "governmental custom." Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).

 The parties do not dispute that defendants acted under color of state law, and that the conditions of Jail No. 3 reflect the policy or custom of the City. The focus accordingly moves to whether the conditions of plaintiffs' detention violated their constitutional rights. Although the Eighth Amendment protects convicted prisoners from cruel and unjust punishment, ninety percent of the plaintiff class typically remains in pretrial detention, not yet tried or convicted. Pretrial detainees enjoy the greater protections afforded by the Due Process Clause of the Fourteenth Amendment, which ensures that no state shall "deprive any person of life, liberty or property, without due process of law." *fn5" U.S. Const. amend. XIV; see Gary H. v. Hegstrom, 831 F.2d 1430, 1432 (9th Cir. 1987). Nonetheless, courts often borrow from less protective Eighth Amendment principles in shaping standards applicable to pretrial detainees. See Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996).

 The Court will find a condition of confinement unconstitutional where plaintiffs can satisfy both the objective and subjective prerequisites for a finding of liability. The objective analysis consists of determining whether the condition amounts to "punishment," because the Constitution prohibits punishment of criminal defendants without due process. *fn6" Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). A restriction or condition constitutes punishment where it does not appear "reasonably related to a legitimate governmental objective." Id. at 539.

 In addition to this objective standard, courts have required plaintiffs to establish that defendants acted with "deliberate indifference" to plaintiffs' needs. Anderson v. County of Kern, 45 F.3d 1310, 1313, amended by, 75 F.3d 448 (9th Cir.), cert. denied, 116 S. Ct. 306 (1995). In the Eighth Amendment context, the Supreme Court has interpreted this standard to require that an official subjectively "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. In the context of pretrial confinement, as here, it appears that "reckless indifference" will also suffice to give rise to liability. Redman, 942 F.2d at 1442-43. Nonetheless, some indifference must be shown; officials may escape liability "if they respond[] reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. In this case, the Special Master has found that defendants had actual and constructive knowledge of every significant deficiency in Jail No. 3 since 1990, as evinced by newspaper accounts, grand jury reports, defendants' own written correspondence, and the repeated proposal of bond measures to finance improvements. (Supp. Report at 186.) To make blatant what was previously merely obvious, the 215-page Findings afforded defendants detailed notice of every inadequacy. Accordingly, the Court proceeds under the assumption that any unreasonable failure of defendants to remedy an obvious deficiency in Jail No. 3 constitutes deliberate indifference for the purposes of satisfying the subjective prerequisite of liability.


 Some conditions of confinement may violate the Constitution in combination when they would not do so alone, "but only when they have a mutually enforcing effect that produces the deprivation of a single, identifiable human need such as food, warmth, or exercise . . . ." Wilson v. Seiter, 501 U.S. 294, 304, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). More typically, the Court must examine each condition in isolation to determine whether it, by itself, constitutes punishment. Id. The Court, therefore, analyzes whether each condition -- or, where "mutually enforcing," multiple conditions -- amounts to punishment under the standard of Bell.

 1. Overcrowding, Double-Celling, Time Spent Out of Cell.

 During the first nine months of 1995, Jail No. 3 housed an average of 718 inmates per month. (Findings at 14.) With an official capacity of 557, (id. at 8), the jail operated at about 124 percent of capacity, on average. (Id. at 14.) Although planners designed the 41-square-foot cells for single occupancy, overcrowding forced defendants to place two inmates in many cells, a ...

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