Since the issuance of the Supplemental Report, however, defendants have taken steps toward resolving these problems. They assert that they have encapsulated asbestos "in the ventilation system on the first floor, basement and penthouse fan room." (LaVigne Decl. P 4.) From this statement, it does not appear clear whether defendants have remediated asbestos located elsewhere in the building, such as on the steam pipes. Nor do defendants appear to have had an asbestos expert inspect the building or approve it; had they done so, they might have discovered exposed asbestos in the kitchen, as the Special Master recently reported to the Court. (Conversation with Special Master May 22, 1997, regarding Asbestos Tem Laboratories, Inc.'s May 9, 1997 evaluation of material found by inmate.)
Defendants also allege that they have begun to test the use of plexiglas window covers on broken windows, that "funding is available" for repairs in the heating system, and that parts "are on order" to improve the ventilation in the safety and observation cells. (See LaVigne Decl. PP 8-10.) Defendants argue that these efforts reveal the lack of deliberate indifference on their part, but the fact that none of the improvements has been implemented or verified raises significant questions of fact that the Court cannot resolve by summary adjudication.
8. Medical and Psychiatric Treatment and Supervision.
Courts typically find deliberate indifference to inmates' health needs where plaintiffs have shown "repeated examples of negligent acts which disclose a pattern of conduct by the prison medical staff, or by proving there are such systemic and gross deficiencies in staffing, facilities, equipment, or procedures that the inmate population is effectively denied access to adequate medical care." Ramos, 639 F.2d at 575 (citations omitted). Since defendants' report of changed conditions, the Special Master has not found such a situation in Jail No. 3. The existing medical staff, which the Special Master characterized as "well-trained" and "dedicated," (Supp. Report at 130), appears "sufficient to meet the health care needs of the current prisoner population." (Id. at 117.) Defendants filled vacant pharmacy staff positions, and increased the amount of psychiatric clinical services to 96 hours per week, thereby matching the level deemed adequate by the Special Master in an earlier report. (Id. at 129, Findings at 129.) Defendants solved problems relating to the jail's inadequate treatment of inmates with serious psychological problems by opening Jail No. 8, which has absorbed all such inmates, as well as those with more intractable physical ailments. (Supp. Report at 123.) Although medical staff continue to take x-rays without lead shields, defendants defend this practice as acceptable under state regulations, (see Goldenson Decl., filed June 14, 1996, P 5), and the x-ray technician now brings a lead shield to use at the patient's request. (Supp. Report at 129.)
Despite the shortcomings of the physical plant, which remains seriously deteriorated and inadequate for the provision of medical services, (id. at 128), plaintiffs cannot show a pattern of negligent conduct or of systemic and gross deficiencies. See Ramos, 639 F.2d at 575. Accordingly, the Court grants summary judgment for defendants.
9. Personal and Legal Visitation.
The Special Master has found adequate the hours of personal and legal visitation, with infrequent interruptions in schedule. (Supp. Report at 190-91.) As to personal visitation generally and as to the hours and accessibility of legal visitation, the Court must grant summary adjudication for defendants.
Serious deficiencies remain, however, with regard to privacy in attorney-client consultations, due to the lack of space and the absence of sound barriers. (1995 Report at 190.) Inmates and counsel must whisper to communicate without unintended disclosure, yet due to the high noise levels, the intended listeners endure considerable difficulty in understanding the communication. (Id.) This raises Fourteenth and Sixth Amendment concerns insofar as it compromises counsel's ability to adequately prepare plaintiffs' defense. See Johnson-El v. Schoemehl, 878 F.2d 1043, 1052 (8th Cir. 1989).
In their motion to correct, defendants counter that the Special Master's finding of a lack of confidentiality is undermined by his earlier findings that they installed a video conferencing system for attorney-client communications in late 1995, and that the system appeared to operate smoothly
(Mot. to Correct at 40, 53; see also Findings at 191.) The Supplemental Report does not disclose whether the video conferencing system permits confidential discussions, or whether a substantial number of inmates can easily utilize the system. Due to these factual questions, the Court cannot decide, as a matter of law, whether these conditions give rise to a constitutional violation.
10. Legal Materials.
The Special Master has found a sufficient number of books available for legal research, an accessible library staff, and adequate assistance from the staff attorney and student volunteers. (Supp. Report at 133.) The materials and assistance remain inadequate for non-English speakers, however, and some inmates appear dissatisfied with their access to the law library. ( Id. at 132-33.) Yet plaintiffs do not point to any inmate who has alleged that these inadequacies have actually "hindered his efforts to pursue a legal claim," as required by the Supreme Court's recent decision in Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174, 2180 (1996). Accordingly, the Court grants summary judgment for defendants.
11. Religious Materials and Opportunity to Engage in Religious Worship.
Defendants have provided a sufficient number of Korans and English and Spanish Bibles to inmates, but significant obstacles prevent the regular attendance of religious services at Jail No. 3. (Supp. Rep. at 193-94.) Plaintiffs can attend a religious service only every other week, and access appears completely barred for inmates in administrative segregation. (Id. at 194.) The Special Master also found administratively-imposed interruptions in services, and no provision of confidential areas for religious counseling. (Findings at 194-96.) The Special Master explains that "custody and space reasons" underlie these restrictions. (Supp. Rep. at 194.) Although religious volunteers at Jail No. 3 all agree that "the jail administration tries to accommodate religious meetings in the jail," the jail lacks space to hold a large congregate service, and interruptions are often created by the movement of prisoners necessary to secure the jail for visitors. (Findings at 192, 195.)
Whether these restrictions constitute "punishment" for the purposes of Fourteenth Amendment jurisprudence requires some analysis of the scope of plaintiffs' First Amendment rights, because the deprivation of a nonexistent right cannot amount to punishment. The Supreme Court recently overturned the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, et seq. in City of Boerne v. P.F. Flores, Archbishop of San Antonio, 117 S. Ct. 2157, 138 L. Ed. 2d 624, 1997 WL 345322 (U.S. 1997), compelling this Court to analyze the question through the lens of pre-RFRA constitutional jurisprudence. Under the pre-RFRA standard, prison regulations limiting inmates' free religious exercise did not violate the First Amendment so long as they appeared reasonably related to a legitimate peneological interest.
Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).
Under Turner, the Court must consider four factors in deciding whether the restrictions meet rational basis scrutiny: (1) whether the restrictions have a logical connection to the legitimate government interests, (2) whether alternative means of religious expression remain open to inmates, (3) the likely impact of accommodating the inmates' asserted right on guards, other inmates, and the general allocation of jail resources, and (4) the existence of ready alternatives to the existing policy. See Turner, 482 U.S. at 89-91. In this case, the jail simply lacks space for large religious services, so defendants regulate attendance by permitting participation of the north- and south-side inmates on alternate weeks. Interruptions in services, even if excessive, are caused by defendants' need to move prisoners in a timely manner. The inability of administratively-segregated inmates to attend services presumably stems from safety considerations. Thus, under the first prong of the Turner analysis, the limitations on plaintiffs' attendance at services appear logically related to defendants' legitimate concerns in safety and orderly administration of the jail.
As for the second factor, concerning the availability of alternative means of religious expression, the Supreme Court looks most closely at whether the policy denies inmates all forms of religious exercise. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 351-52, 96 L. Ed. 2d 282, 107 S. Ct. 2400 (1987) Here, defendants have not wholly barred plaintiffs from participating in religious services, but merely have restricted the frequency of attendance, so this factor also favors defendants.
Although the Special Master has made no findings with regard to the impact of any accommodation, such findings appear unnecessary in light of plaintiffs' failure to point to any "ready alternative" that could be implemented with de minimis cost to defendants. Cf. Turner, 482 U.S. at 90-91. In short, the Court finds no breach of plaintiffs' First Amendment rights sufficient to give rise to a finding of "punishment" under the Fourteenth Amendment.
Noise levels exceed acceptable levels in the jail, ranging between 73 and 96 decibels. (Supp. Report at 58.) Annoyance and more troubling psychological harm can result from living in an environment in which the average noise level remains constantly louder than a ringing alarm clock at a distance of two feet from the listener. (See Findings, Ex. 1 at 25.) More important, safety concerns arise as well; officers on some tiers cannot hear inmates' calls for help, and must rely on other inmates to inform them of emergencies. (Id.)
Defendants have made efforts to reduce the noise on the tiers. They have placed the level of volume on the television sets in the control of the deputies, equipped security radios with earphones, and increased the presence of deputies on the tiers. (Supp. Report at 57-58.) Nonetheless, the extent to which noise continues to exceed maximum standards -- typically 70 decibels -- suggests that these efforts are merely cosmetic, and that far more can be done. The Court grants summary judgment for plaintiffs.
Applicable code requirements and correctional standards mandate lighting of at least 20 foot-candles in living areas, and some health standards require 30 foot-candles. (See Pls.' Mem. P. & A. at 17.) Readings in Jail No. 3 ranged from .28 to 5 foot-candles, drastically below accepted standards. (Findings at 35.) Defendants allocated $ 140,000 to the improvement of light in the jail, but implementation has not yet occurred. (Supp. Report 60.)
Where lighting appears so poor as to be inadequate for reading and to cause eyestrain and fatigue, the conditions appear unconstitutional even under the Eighth Amendment. Hoptowit, 753 F.2d at 783. Poor lighting also impairs the vision of guards, critical to adequate surveillance and safety. Here, the threat to plaintiffs' health and safety appears sufficient to constitute punishment.
14. Outdoor Recreation.
Defendants have demonstrated substantial improvements in the provision of outdoor recreation to inmates, now offering approximately six hours of exercise out-of-doors per week. (Supp. Report at 96.) Defendants have even hired a recreation coach at the jail to ensure safe and healthy exercise habits. (Id. at 97.) Although clothing remains inadequate for cold weather exercise, the shortage typically does not prevent inmates from using the yard. (Id. at 96.) The Court finds no constitutional violation here.
Although the Court has broad equitable powers to fashion relief in this case, see Stone, 968 F.2d at 861, it remains mindful that it should craft the remedy narrowly, such that the injunction "'does no more and no less than correct [the] particular constitutional violation.'" Doty v. County of Lassen, 37 F.3d 540, 543 (9th Cir. 1994) (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)). To properly strike a balance between remedying the constitutional violation and minimizing judicial intrusion into jail management, courts typically require the development and implementation of a narrowly tailored remedial plan. See Madrid, 889 F. Supp. at 1280 (citing cases).
That remedy appears appropriate in this case. Defendants have a set of discrete issues to confront with their remedial plan, consisting of each of the conditions that the Court has found unconstitutional: fire safety, seismic safety, water, plumbing, sewage, noise, and lighting. To this list, the Court adds overcrowding. Although current population levels work no constitutional harm, the Court has found that the overcrowding that existed for many years until 1996 amounted to punishment. In his Supplemental Report, the Special Master concluded that defendants will likely increase the jail's population in the near future, and although defendants dispute that assertion, a "cognizable danger of recurrent violation" clearly exists in this case to warrant injunctive relief.
See United States v. W.T. Grant Co., 345 U.S. 629, 633, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). "The court's power to grant injunctive relief survives discontinuance of the illegal conduct." Id. (citations omitted); see also Quern v. Mandley, 436 U.S. 725, 733-34 n.7, 56 L. Ed. 2d 658, 98 S. Ct. 2068 (1978) (finding no procedural error in an appeals court's direction of an entry of judgment enjoining a state's operation of a program that the state had discontinued long before). Here, defendants must provide a remedial plan that ensures that they will not return to their practice of corralling two adults into the same 41-square-foot space.
As for those issues not resolved by summary judgment -- personal safety from violence, air quality, ventilation, heating, and confidentiality of legal visitation -- counsel shall meet and confer to determine the most economical manner of proceeding. The parties could save City taxpayers the additional burden of extending this litigation by simply settling those remaining issues within defendants' submission of a remedial plan.
IT IS HEREBY ORDERED that:
1. Pursuant to Rule 53(e)(2) of the Federal Rules of Civil Procedure, the Court adopts the Special Master's Supplemental Findings of Fact as submitted, with the exception of those objections that the Court has sustained, as described in this Opinion and Order.
2. The Court grants plaintiffs' motion for summary judgment, and denies defendants' motion, as to the following conditions of detention: (a) fire safety, (b) seismic safety, (c) water, plumbing, and sewage, (d) noise, and (e) lighting.
3. The Court grants defendants' motion for summary judgment, and denies plaintiffs' motion, as to the following conditions of detention: (a) overcrowding, (b) hygiene relating to food preparation and storage, (c) medical and psychiatric treatment and supervision, (d) personal and legal visitation, excluding questions of confidentiality, (e) legal materials, (f) religious materials and services, and (g) outdoor recreation.
4. The Court denies defendants' and plaintiffs' motions as to the following conditions of detention: (a) personal safety from violence, (b) air quality, ventilation, and heating, and (c) confidentiality of legal visitation.
5. On or before September 12, 1997, the City shall submit to the Court a detailed plan for resolving the constitutional defects described in this Opinion and Order, including those relating to (a) fire safety; (b) seismic safety, (c) water, plumbing, and sewage, (d) opportunity to engage in religious services, (e) noise, (f) lighting, and (g) potential recurrence of overcrowding.
6. The parties shall swiftly proceed to resolve the remaining issues, as well as the claims of the named plaintiffs, by settlement or trial. Plaintiffs shall make Sedgwick McNeely available to defendants for deposition.
Dated: July 17, 1997.
William H. Orrick
United States District Judge