# Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia

> District Court, District of Columbia · December 13, 1994 · 877 F. Supp. 634

URL: https://www.frixlaw.com/law-library/cases/1396771

## Case

- **Full name:** WOMEN PRISONERS OF the DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, Et Al., Plaintiffs, v. DISTRICT OF COLUMBIA, Et Al., Defendants
- **Court:** District Court, District of Columbia
- **Decided:** December 13, 1994
- **Citations:** 877 F. Supp. 634; 1994 U.S. Dist. LEXIS 21779; 1994 WL 762151
- **Precedential status:** Published
- **Opinion:** Opinion by Green
- **Judges:** June L. Green
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia, 93 F.3d 910 (1996).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1396771

## How later opinions describe it (automated extraction)

- finding that the following living conditions, working in concert, presented a risk of fire so serious that it violated contemporary standards of decency where (1) the dormitories were overcrowded and carried a heavy combustible load; (2) the walls could not contain a fire with…
- finding that prison employees regularly sexually abused female prisoners, that the District of Columbia’s responses to the complaints of female inmates were inadequate and that the District of Columbia did not adequately investigate complaints of sexual misconduct
- finding that although the industrial programs at the Annex and Minimum differed in content, plaintiffs "have failed to prove that women prisoners ... do not receive industrial opportunities equivalent to male prisoners ...."
- finding women at the Annex similarly situated to men at Minimum with respect to the purposes of programming because "[b]oth of these populations are preparing for release into the community and therefore[ ] have the same need to fully prepare themselves for this stage of their…
- observing that "when officers make sexual remarks in an environment where sexual assaults of women prisoners by officers are well known and inadequately addressed" such conduct "mutually heighten[s]" the injury to women prisoners

## Opinion text

OPINION
JUNE L. GREEN, District Judge.
I. INTRODUCTION
This matter is before the Court after a three-week trial, including the submission of approximately 900 exhibits and hundreds of pages of deposition and transcript testimony. On December 1, 1993, the Court granted the Plaintiffs’ Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(1) and 23(b)(2). The class is defined as
all women prisoners who are incarcerated in the District of Columbia correctional system as of October 1, 199S, and
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all women prisoners who will hereafter be incarcerated in the D.C. correctional system.
Women prisoners in the District of Columbia are incarcerated in three facilities: the Lorton Minimum Security Annex (Annex), the Correctional Treatment Facility (CTF) and the Central Detention Facility (Jail). The Annex is a collection of minimum security dormitories in Lorton, Virginia, which presently house approximately 174 women prisoners who are either held for trial, awaiting sentence or within 24 months of release. (R. 8-99; Pls.Exs. 621 at WP00034; 520 at DC0030902.) CTF is an 800 bed co-correctional facility in the District of Columbia consisting of a series of buildings which house approximately 271 medium custody, general population women prisoners. (Pls.Exs. 638 at 5; 520 at DC0030902.) The Jail is a medium to maximum security co-correctional facility in the District of Columbia housing approximately 168 women prisoners who are either serving sentences of less than one year or who are awaiting trial or sentencing. (Pls.Exs. 621 at WP00031, 520 at DC0030902.)
The Plaintiffs premise their claim for declaratory and injunctive relief on the following grounds: 1) women prisoners at the Annex, CTF, and the Jail are subject to sexual harassment in violation of the Fifth Amendment and the Eighth Amendment; 2) women prisoners at the Annex and CTF receive unequal opportunities to participate in prison programs in comparison to similarly situated men at other correctional facilities in violation of Title IX and the Fifth Amendment; 3) the provision of inadequate obstetrical and gynecological care offered to women prisoners at CTF violates the Eighth Amendment; and 4) the general conditions of confinement and fire hazards at the Annex and CTF violate the Eighth Amendment. Plaintiffs allege that the Defendants are liable for these constitutional violations under 42 U.S.C. § 1983 . In the alternative, the Plaintiffs argue that virtually all of the Defendants’ actions violate the Plaintiffs’ rights under the D.C.Code §§ 24-442 and 24-125.
II. FINDINGS OF FACT
A. Sexual Harassment at the Jail, CTF and the Annex
The evidence demonstrates that there have been many incidents of sexual misconduct between prison employees and female prisoners in all three of the womens’ facilities in this case. The level of harassment involves forceful sexual activity, unsolicited sexual touching, exposure of body parts or genitals and sexual comments. (R. 2-3.)
Within the D.C. Department of Corrections (DCDC) there is a general acceptance of sexual relationships between staff and inmates which creates a “sexualized environment” where “boundaries and expectations of behavior are not clear.” (R. 5-78.) Based on conversations with DCDC employees, Mr. Howard Ray Jr., former administrator of CTF, stated, “[Y]ou just get this sense that [sexual misconduct] has always happened and it is always going to happen.” (Ray Dep. I at 112.)
The most disturbing evidence of sexual harassment involves sexual assaults on women prisoners and the inadequacy of the Defendants’ response to these attacks.
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On October 31, 1993, at about 2:30 a.m., a correctional officer at the Jail, sexually assaulted Jane Doe Q while she was a patient in the infirmary. (R. 1-75 to 1-80.) The officer fondled her breasts and vagina, tried to force her to perform oral sex and then raped her. On December 9, 1993, at approximately 5:30 a.m., a correctional officer at CTF forced Jane Doe RR to perform oral sex on him while Jane Doe RR attempted to empty trash as part of a work detail. (R. 6-123 to 24.) The individual officers who assaulted Jane Doe Q and Jane Doe RR warned the women not to report the attacks. (R. 1-80; 6-126.)
Jane Doe Q and Jane Doe RR were placed in protective custody after they filed complaints. (R. 1-86; Pls.Ex. 502 at 11.) Jane Doe RR explained the problems with this arrangement: “[Protective Custody] is just
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like being punished. [I]t’s the same place where you go if you do something____ You stay on lock 23 hours every day____ I didn’t [feel safe] ... because the person that is supposed to be watching us, [is] never at the desk hardly ... I don’t consider that as being protected.” (R. 6-132 to 6-133.)
In addition to rape and forced sodomy, women prisoners endure other varieties of sexual assault. In September 1993, a correctional officer at CTF grabbed Jane Doe W’s buttocks and vagina while he escorted her from the medical unit where she had received prenatal care. (R. 1-36 to 1-38.) A CTF foreman tried to rub up against Jane Doe Z, and steward hands and different officers fondled women prisoners’ breasts, legs, arms and buttocks. (R. 7-64.) Another CTF officer attempted on several occasions to fondle Jane Doe K’s breasts, vagina and buttocks in the television room. (R. 6-110.) A teacher in the print shop would frequently try to pull Jane Doe OOO to him and kiss her. (R. 1-112 to 113.) An officer in the garment shop attempted to paw and kiss women prisoners. (R. 6-113.)
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Another problem at CTF and the Annex is a lack of privacy. Some male officers fail to announce themselves before appearing in areas where women undress. (R. 3-16; 1-56 to 1-58; Y. Jackson Dep. at 32-33, 43.) In addition, the structural design of CTF permits male inmates a view of women’s rooms while the men are in the recreation yard or in their own cells. (R. 9-131.) Defendants claim that they allow women to cover the window while they are dressing, but the Court did not see evidence of a written policy to this effect. (R. 9-53; 9-131.)
Women prisoners at all three facilities are the targets of sexual comments. Steward hands and officers at CTF feel free to direct sexual comments at women prisoners. (R. 7-64, 66.) One officer in particular discovered that Jane Doe V was going to take a, shower and said, ‘Well, you go ahead and do that and I’ll be in there to stick my rod up in you.” (R. 4-68.) Male prisoners and correctional officers at the Annex also direct sexually explicit comments toward women prisoners. (R. 1-117; 6-115.) Officers at the Jail verbally harass women by making derogatory references about women prisoners’ breasts and buttocks. (R. 1-88.)
The DCDC has policies and procedures designed to address sexual misconduct. In the Defendants’ Basic Regulations for all Employees, employees are cautioned not to become intimate with prisoners. (Defs.Ex. 26 at 5-6.) The Defendants also have created the Inmate Grievance Procedure (IGP) under Department Order No. 4030.1D (Pls.Ex. 117.), the D.C. Personnel Policy on the Employee and Inmate Relationships under Department Order No. 3350.1, (Defs.Ex. 53.), the Sexual Harassment in the Workplace policy under Department Order No. 3310.4B (Pls.Ex. 107.) and the Procedure for Handling Institutional Persons Suspected of Committing Crimes in the Institutions under Department Order No. 5410.1. (Defs.Ex. 27.) These regulations are supposed to be taught during a seven-week, pre-service training program and each year during a 40-hour in-service training program. (R. 8-125 to 26.)
Though the DCDC has established an Inmate Grievance Procedure, (R. 8-127 to 28), procedures for filing an IGP form are not posted on each one of the units as required, and requests for written reports present an obstacle for illiterate women who wish to file a complaint. (R. 2-44 to 2-45.)
These various policies and procedures are of little value because the Defendants address the problem of sexual harassment of women prisoners with no specific staff training (Stempson Dep. at 182-83.), inconsistent reporting practices, cursory investigations and timid sanctions. Since training is confined to sexual harassment in the workplace (Riddick Dep. at 92; Pls.Exs. Ill, 115.)
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,
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employees confront the harassment of women prisoners in different ways. Ms. Toni Perry, the former Director of the Women’s Program at CTF, would present an inmate’s allegations to the Director of the DCDC instead of reporting to the administrator of the facility. (Perry Dep. at 162.) Mr. James Derr, a staff assistant at the Annex, said that because there are corrupt people in the system “you almost have to be careful as to who you give your information to, ... whether they be higher-ups or superior to you or not____ Pm reluctant to give much information to anyone of our system.” (Derr Dep. II at 88, 97-98.) Ms. Christine Welch, a substance abuse counselor at CTF, believes that an inmate would have to tell her something two or three times before Ms. Welch would report it. (Welch Dep. at 62-63.) When a woman prisoner complained to Ms. Welch about an instance of sexual harassment, she told the woman prisoner to “just quit her job and program, because she really didn’t need to work.” (Welch Dep. at 63-64.)
Reports of sexual misconduct also do not remain confidential. (Perry Dep. at 164; R. 4-50.) After Jane Does Q and RR reported their assaults, the incidents quickly became a matter of public knowledge among prisoners and staff. (R. 1-86; 6-137.) Officers spoke with Jane Doe RR about her attack and gave her the impression that they regarded it as a “joke” or “gossip.” (R. 6-137.)
The Defendants do not adequately investigate the incidents of sexual misconduct because there is no policy and because the investigations are not taken seriously. (Krull Dep. at 227; Derr.Dep. II at 105-06; Y. Jackson Dep. at 161.) If the DCDC does not have first-hand knowledge of an incident, Mr. William Plaut, the Deputy Director of Operations and Acting Deputy Director for Programs,
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believes that they must wait for the conclusion of a police investigation or the conviction of the accused employee before they can take any action. (R. 8-132.) On many occasions while Mr. John Henderson worked as the Administrator of the Jail, police would not respond to his initial call to investigate and he would not make any further attempts to contact them or conduct an independent investigation. (Henderson Dep. at 146.) In a case involving an allegation that an officer had impregnated an inmate through coerced sexual intercourse, Mr. Henderson referred the case to the police and did not learn of the results until four months after the police concluded their investigation. (Henderson Dep. at 94-95, 108-110.) Mr. Henderson did not conduct his own investigation or discuss the case with the accused officer who was eventually reassigned to the Occoquan Facility. (Henderson Dep. at 108-10, 113-15.)
Ms. G.H. McCathorine
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, Associate Director of Programs for the DCDC, responds to complaints by assigning Deputy Warden L.C. Jones
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to a case and then she waits for the results of his investigation. (McCathorine Dep. at 242.) When Jane Doe RR discussed incidents of sexual misconduct with Deputy Warden Jones he discouraged her from talking to him too often because people would view her as an informer. (R. 6-144 to 145.) He also assured Jane Doe RR that if she did not provide any names to one of the Plaintiffs’ lawyers, he would work toward getting her released from jail. (R. 6-144.) Though Mr. Jones himself had an allegation of sexual misconduct pending against him, his superior Ms. McCathorine claimed that she was not aware of this. (Jones Dep. at 169-70; McCathorine Dep. at 230.) Mr. Jones claims to have certain difficulties determining whether harassment has occurred. Concerning an allegation against one officer,
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he expressed disbelief that a man the officer’s age would be attracted to an openly homosexual inmate.
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With respect to harassment in the culinary section of CTF, he believes that he cannot adequately conduct an investigation without a camera. (Jones Dep. at 31.)
Though Ms. Jennie Lancaster, a jail administrator and the Plaintiffs’ expert penologist, has been able to reach a conclusion in approximately 90 percent of all sexual harassment cases she has confronted, the record demonstrates that the Defendants often fail to reach any conclusions in their investigations. (R. 5-74, 76.) Jane Doe Q reported her attack to the administration and the police, but at the time of trial, she did not know the results of the investigation or whether any action was taken against the officer who assaulted her. (R. 1-85 to 86.) Jane Doe RR filed an IGP, (Pls.Ex. 502), and later filed criminal charges yet neither the CTF administration nor the police has informed Jane Doe RR about the status of the investigation into the incident; and to her knowledge, no disciplinary action has been taken against the officer who assaulted her. (R. 6-136.) Jane Doe OOO, along with five other women, complained to the Administration about sexual harassment by a teacher in the Print Shop yet there is no evidence that the administration took corrective action. (R. 1-114.) Jane Doe K complained to CTF staff about the incidents of CTF officers pawing women prisoners but the administration took no action against the officers. (R. 6-111.)
When the evidence is reduced to a dispute between an inmate’s allegation and an employee’s version of events, the Defendants generally side with the employee. (R. 8-133 to 34;
See, e.g.,
Pls.Exs. 74, 76, 77, 79, 86.) A typical example is the administration’s response to Jane Doe W’s IGP in which the administration summarily concludes that her allegations “could not be validated.” (Pls.Ex. 69 at 2-4; R. 1410, 43.)
When the Defendants do suspect that an employee is guilty of sexual misconduct they possess a range of sanctions to use against an employee, (Defs.Ex. 25), but they often simply reassign the employee to a different facility. (R. 5-74 to 5-76.) Mr. Plaut stated,
There are ... cases where we believe the inmate. In fact, the inmate’s story in some cases is more credible than the employee’s story, but you cannot take adverse or corrective action against the employee because you believe the inmate over the employee. In cases like that we relocate the employee and make sure the employee does not come in contact with that inmate, does not work in that institution.
(R. 8-134.) Mr. Plaut stated that he has personally reassigned “many, many” officers who he believed may have been engaged in sexual misconduct. (R. 8-135.) The officer who assaulted Jane Doe W continued to work on Jane Doe Ws unit after the incident (R. 1417) and was transferred to the Maximum Security Facility on May 8, 1994. (Pls.Ex. 675.) Jane Doe K complained to staff about the harassment by the officer in the garment shop (R. 6-113; Pls.Ex. 66 at 5.) and that officer was transferred to another post. (R. 8-153, 6-114.) When Yvette Jackson, a correctional officer at the Annex, reported the problem of an officer entering women’s areas without announcing his presence, Captain Larry Corbett assured Jackson that he would try to keep the officer from coming up to the Annex as much as possible. (Y. Jackson Dep. at 38.)
Reassignment does not always occur. When Jane Doe RR returned to CTF in May 1994 the officer who assaulted her still worked at the facility. (R. 6-135.)
The effect of sexual harassment on women prisoners is profound. The abuse has a significant impact on a woman’s concentration, and it lowers confidence and self-esteem. (R. 2-57 to 2-58.) It leads to irritability, anxiety and nervousness. Women may be angry that the incident is happening and fearful that they will be continually exposed to it. (R. 2-58.) Women prisoners who experience sexual harassment report significant depression, nausea, frequent headaches, in
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somnia and feelings of fatigue. (R. 2-58.) Those who report the harassment often experience increased stress and may end up becoming isolated from other women in the institution. (R. 2-58.) Women can feel self-doubt, and disillusionment at the failure of the organization to protect them. Women prisoners lose confidence in the system and may decide not to complain about additional incidents. (R. 1-118; 6-115.)
For women who have a history of sexual abuse the harassment often brings back memories of the prior abuse.
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(R. 2-61 to 62.) This can lead to severe depression, reinforcement of a “victim” self-image and a belief that, as in childhood, they have no control over their lives. (R. 2-61.)
B. Obstetrical and Gynecological Care at CTF
Women prisoners at CTF, like most female inmates, experience a higher rate of illnesses than the general population. (R. 3-52 to 3-53.) Specifically, women inmates have a greater risk of contracting sexually transmitted diseases such as syphilis, AIDS,
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or gonorrhea, and other illnesses such as cervical cancer and sterility due to infection. (R. 3-53.) The reason for the high rate of disease stems from the fact that the lifestyle of a typical woman prisoner does not include good health habits. (R. 3-52.)
Doctors should examine people in a “high risk” health category much more frequently and they should also anticipate complications, particularly in the case of prenatal patients. (R. 3-57 to 3-58.) Failure to monitor these women closely results in an unnecessary degeneration of their health and the health of a fetus if they are pregnant. (R. 3-58, 3-60.)
Adequate gynecological care begins with a thorough examination. This includes a pelvic examination, a thorough gynecological-obstetric history, a PAP smear, cultures for gonorrhea and chlamydia, a test for syphilis, a thyroid examination, breast examination and an examination of the rectum, abdominal contents and pelvic organs. (R. 3-59.) In certain instances a test for Hepatitis B should be done. (R. 3-59-60.) Failure to give timely examinations can shorten a patient’s life in the case of AIDS, or it can result in infertility in the case of chlamydia and gonorrhea. (R. 3-63 to 64.) It is best if an institution establishes a list of necessary exams as part of a protocol for health care providers to follow. When an organization faithfully follows a protocol, people “develop a habit of doing things properly.” (R. 3-72.)
The DCDC policy states: “[A]ll new arrivals ... will be seen within 24 hours to determine the health status of the resident and to take any steps necessary to protect the health and safety of the resident and general population.” (Pls.Ex. 563.) Also, “[i]t is the policy of Health Services to provide clinically appropriate periodic health examinations and follow-up care to inmates under the [DCDC].” (Pls.Ex. 483.)
These policies are not followed at CTF.
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(R. 3-76 to 3-77.) Women prisoners during intake are not given pelvic exams or breast
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exams. (R. 14-12.) Women must also request PAP smears through sick call. (R. 14-12.) Out of a sample of 70 women prisoners, 9 did not have any documented PAP smears. (R. 3-67.) In addition, there was no documentation as to the last PAP smear these women had. (R. 3-67.) Approximately 12 women out of the sample of 70 were HIV positive and none of these women had PAP smears done at six-month intervals. (R. 3-73.) PAP smears should be taken every one or two years for non-risk patients. (R. 3-67, 14-117.) But high risk patients, such as women with advanced stage HIV or previous abnormal PAP smears, should be checked at least every six months. (R. 14-117.) A woman who is compromised with AIDS can go from a negative PAP smear to invasive cancer within a year. (R. 3-70.)
Defendants do not routinely test women prisoners at CTF for sexually transmitted diseases. (R. 3-74; 14-12.) In 7 out of 47 reviewed cases, either a gonorrhea culture or chlamydia culture was missing. (R. 3-74.) In some cases women were not tested for syphilis. (R. 3-74.) Failure to screen for chlamydia may result in sterility for a woman or eye infections and pneumonia for a newborn baby. (R. 3-74 to 3-75.) Advanced gonorrhea may result in sterility, abscessed ruptures and peritonitis. (R. 3-75.) Syphilis may lead to an aortic aneurysm, dementia or psychoses.
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(R. 3-76.)
Even when women prisoners receive medical tests, the follow-up care of inmates at CTF is inadequate. In one instance a woman with an abnormal PAP smear declined further testing because she believed that she would be released soon and would get better care from a private doctor. (R. 3-78.) She was not released, however, and received the tests three months after the time prescribed. (R. 3-78.) In another case, doctors performed a biopsy on a woman after a very abnormal PAP smear. The woman was subsequently released from custody without the record indicating that any medical advice was given to her. (R. 3-78.)
The Plaintiffs presented women prisoners who provided further evidence of the Defendants’ failure to render adequate follow-up care. Jane Doe II is a CTF prisoner who is HIV positive and suffers from the human papilloma virus (HPV).
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(R. 2-158, 172.) While at CTF in September 1992, Jane Doe II experienced abnormal vaginal discharges and painful discharges of fluid from her left nipple. (R. 2-158, 166.) At her initial screening, she complained to a CTF physician’s assistant about her breast problem. (R. 2-164.) On September 16, 1992, she saw Dr. Charles Hall at the CTF infirmary. (R. 2-165.) Dr. Hall prescribed medicine for the vaginal discharge and scheduled an appointment for her at the Howard University surgery clinic at the Jail approximately three weeks later. (R. 2-166.) She missed the next two appointments because the Defendants were late in transporting her. (R. 2-166 to 167.)
Despite her continued complaints to CTF medical staff
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and a worsening condition, Jane Doe II did not receive an examination until November 1993, more than one year after complaining about her condition. (R. 2-167 to 169.) Doctors performed a biopsy on March 23, 1994 at D.C. General. (R. 2-170.) The five month wait for the biopsy occurred because CTF staff on approximately four occasions scheduled her for the wrong medical facility. (R. 2-170.)
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The Defendants’ medical expert and Dr. Charles Hall believe that the Defendants’ response to Jane Doe II’s breast problem did not meet minimal medical standards. (R. 14-26 to 27; 14-119 to 120.) According to Dr. Major, Jane Doe II’s breast discharges warranted only a simple cytology smear of the drainage which could easily have been performed at the CTF clinic instead of the clinic at the Jail. (R. 3-80 to 3-81.)
In May 1993, she requested a PAP smear from the CTF medical staff because she discovered lesions on her buttocks and experienced irregularities in her menstrual cycle. (R. 2-171.) She did not receive a test until November 1993 and the results of the test were abnormal. (R. 2-171 to 172.) In January 1994, Jane Doe II received a culdoscopy which revealed no abnormalities.
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(R. 2-172 to 173.) By June 1994, she still had not seen a gynecologist at CTF since the PAP smear and culdoscopy. (R. 2-173.)
The ease of Jane Doe V provides another example of a breakdown in medical treatment. In June 1993, Jane Doe V requested a PAP smear and a mammogram because a physician’s assistant at the Jail informed her that she had polycystic breasts. (Pls.Ex. 254 at 4.) Three separate physician’s assistants at CTF told her that she could not receive a mammogram because she was not thirty-five years old. (R. 4-94.) She finally saw a gynecologist about her breast in September 1993 but still did not receive a mammogram. (R. 4-95.) Only after Jane Doe V threatened to file a complaint did she receive a mammogram. (R. 4-95.)
Defendants’ policy on health promotion and disease prevention states: “Health Services will provide health education and training in self-care skills to all inmates____” (Pls.Ex. 570.) The health education at CTF, however, is “grossly inadequate.” (R. 3-86.) Dr. William Hall, Assistant Director for Health Services, stated that the DCDC does not have any pamphlets or videos that deal specifically with obstetrical and gynecological care. (William Hall Dep. 181-82.) The only evidence of health education that Plaintiffs’ medical expert found, was a breast self-examination chart located on the back of one of the rooms in the infirmary. (R. 3-86 to 3-87. )
According to Dr. Major, records at CTF demonstrate “too many records of refusal of treatment.” (R. 3-84.) The number of women refusing treatment could be reduced by proper counseling as to the importance of treatment. (R. 3-84.) In one case, a pregnant woman with syphilis refused treatment for two months simply because she did not like injections. (R. 3-84 to 3-85.) Education is particularly important in the area of breast self-examinations where over the past ten years more breast lumps have been discovered by women than by their doctors. (R. 3-88. )
The DCDC has a written policy which requires the Defendants to provide comprehensive medical care and counseling to all pregnant women prisoners. (Pls.Ex. 2.) But even in 1994 they recognized a “lack of gender specific care in the areas of prenatal and postnatal education and care.” (Pls.Ex. 434 at 5.)
In the area of abortion counseling, the written policy of the DCDC provides: “The Institution Administrators shall provide each inmate with medical and social counseling to aid her in making the decision to have an elective abortion. Religious counseling will be made available should the inmate desire it.” (Pls.Ex. 5.) Women prisoners receive abortion counseling from Ms. Marydot Thomas, a licensed nurse, as well as from the clinic performing the abortion. (R. 13-89.)
In rendering prenatal care, the Defendants have not followed any written protocol.
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(R. 13-99.) A protocol or use of a Problem Oriented Prenatal Risk Assessment (POPRAS) form is a crucial element of prenatal medical treatment. (R. 3-94, 14-129.) This
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form takes health care providers through a step-by-step approach to treating a prenatal patient. Dr. Charles Hall, who is responsible for prenatal care at CTF, told Dr. Major during an interview that there was no written protocol at CTF and that the “protocol” was “in his head”. (R. 3-95-96.)
After Dr. Major’s interview with Dr. Hall, Dr. Eliza Taylor asked Dr. Hall to prepare a prenatal protocol for CTF. (Pls.Ex. 457; Charles Hall Dep. at 122-23.) The protocol, however, is not nearly sufficient. (R. 3-97.) For example, it requires an Alpha Feto Protein test “at appropriate time,” which might mean one thing to a doctor and another thing to a nurse practitioner or physician’s assistant. (R. 3-98.) It does not indicate when or how an ultrasound test should be performed. (R. 3-98.) The protocol vaguely prescribes “tests, management and referral as needed based on the judgment of the health care provider.” (Pls.Ex. 457.)
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Dr. Major found eleven instances where women did not receive prenatal care until after two or more months from the start of pregnancy. (R. 3-99 to 3-100.) General standards require prenatal care to commence no later than two months after pregnancy begins. (R. 3-99.) Care within the first two months enables doctors to ameliorate gestational problems such as anemia, hypertension, diabetes and poor weight gain or infant growth. (R. 3-101.) The standard of care for prenatal appointments is monthly visits for the first six months, bimonthly visits for the seventh and eighth months and weekly visits for the last month. (R. 14-126.)
The experiences of Jane Doe QQQ and Jane Doe L offer examples of inadequate prenatal treatment. On a Saturday in January 1994, Jane Doe QQQ experienced vaginal bleeding and was sent to D.C. General where a nurse informed her that she had to wait in the lock-up. (R. 4-23 to 24.) Jane Doe QQQ refused to go because as she explained: “I believed I was threatening a miscarriage, and [in] lock-up, I would have been on a metal bed without a mattress and I would have been in a cell ... for five or six hours.” (R. 4-24 to 4-25.) She finally returned to CTF that night and did not see a doctor until the following Monday. (R. 4-26.)
Jane Doe L was five months pregnant when she arrived at CTF on March 22, 1993. (R. 2-134.) She received two examinations and a sonogram before delivery even though she made requests for a prenatal examination through sick call. (R. 2-136 to 2-138; 14-20 to 14-24; Pls.Exs. 681, 682, 683.)
On the night before delivery, Jane Doe L experienced labor pains and was taken to the hospital. (R. 2-139.) But D.C. General sent her back because her water had not broken and she was not dilating. (R. 2-139 and 140.) Despite the fact that her contractions were five minutes apart, the staff at CTF placed her in handcuffs and leg shackles and sent her to a prescheduled court appearance. (R. 2-141 to 142.) The Marshals at the courthouse sent her back to CTF because she could not walk due to labor pain. (R. 2-143.) At CTF, she spoke to a nurse who knew about her trip to D.C. General but only offered her some aspirins and told her to prop her feet up and rub her stomach. (R. 2-143 to 2-144.) Jane Doe L went to her cell and delivered her baby shortly thereafter. (R. 2-146. ) Jane Doe L had not yet purged the afterbirth from her body when guards placed her in handcuffs and leg shackles and sent her by ambulance to D.C. General. (R. 2-147. )
Jane Doe L’s experience with shackling is not unusual. When Defendants transport pregnant women prisoners on medical visits they customarily place women in leg shackles, handcuffs and a belly chain with a box that connects the handcuffs and belly chain. (R. 4-14; 6-98 to 6-99; 2-141 to 2-142; 2-147; 1-61 to 1-62.) A physician’s assistant stated that even when a woman is in labor “their ankles and their hands are cuffed.” (Ah Dep. at 162-63.) Leg shackles are the least inconvenient method of shackling and chest boxes, arm shackles and wrist shackles
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increase the chance for injury. (R. 4-7.) Deputy Warden Jones stated that he does not use leg shackles on a woman in her third trimester of pregnancy “because there’s a possibility she might trip.” (Jones Dep. at 16-17.) Dr. Major stated that unless a pregnant prisoner is assaultive or an escape threat the need for shackling is unnecessary. (R. 4-6 to 7.)
In the area of prenatal nutrition, the Defendants’ written policy states: “Pregnant females shall be placed on a nutritionally balanced diet that includes milk and a late evening snack____ Any dietary recommendations made by D.C. General Hospital shall be followed.” (Pls.Ex. 2 at 2.) Records of some women reveal abnormally low weight gain which could possibly mean that the nutritional needs of women have not been met. (R. 3-112;
See
R. 1-59 to 1-60.) On one occasion, Defendants refused to give a dietary supplement even though D.C. General prescribed it. (R. 4-27 to 4-30, 14-28.) There were also incidents where the CTF pharmacy ran out of vitamins due to storage problems. (R. 3-113.)
In other areas of prenatal care, the Defendants offer parenting classes once a week, prenatal exercise classes two days a week for an hour (as of May 1994) and a “therapeutic community” (as of April 1994) in which counselors and Ms. Linda Studevent, the unit manager for pregnant women, hold group discussions with women prisoners on issues related to pregnancy. (R. 9-121 to 23, R. 4-11 to 4-13.)
Defendants, however, provide post-partum women prisoners with almost no time to visit their babies while the babies board at D.C. General. (R. 4-18; 6-100.) The record shows that mothers are transported to D.C General for visits only when the baby is critically ill. (R. 9-141 to 42; Pls.Ex. 48 at 6, 7, 9,11, 13.) The Defendants have no policy statement on visitation between inmates and their babies. The evidence indicates that women need to hold their children at each feeding time. (R. 3-121 to 122.)
In cases where the infant is critically ill, the infant has died or when the mother is depressed because of child placement, postpartum counseling is crucial in alleviating stress or depression. (R. 3-128 to 129.) Defendants offer post-partum counseling through Ms. Loretta Brantley, a supervisory social worker. (R. 10A-4 to 5 (Morning Session).) Ms. Brantley has worked on the pregnancy unit since May 1994 and supervised the previous pregnancy counselor Ms. Pearl Jackson. (R. 10A-6 (Morning Session).)
Perhaps the most important post-partum concern is child placement while a mother is incarcerated. The Defendants recognize that the separation of women prisoners from their children often creates a trauma more severe than that experienced by male prisoners. (R. 8-115, 9-10, 11-51.) The Defendants’ policy on child placement is as follows: “Arrangements for placement of any child bom while the mother is in custody should begin as soon as the pregnancy is known, but prior to delivery.” (Pls.Ex. 8 at DC0000090.) The evidence shows that child placement counseling needs to occur by at least the second trimester. (R. 3-116.) At trial, the Defendants claimed that as of January 1994 child placement counseling is available for pregnant women prisoners once a week. (R. 9-125, 127; R. 10A-4 (Morning Session).)
By 1994, however, Defendants recognized that they did not offer enough programming in the area of boarder babies, child custody and foster care. (Pls.Ex. 434 at DC0027809.) Jane Doe L testified that at no point during her pregnancy did anyone at CTF counsel her on child placement. (R. 2-151.) Jane Doe QQQ tried to make arrangements for the placement of her child but the counselor responsible for child placement “seemed unconcerned and unwilling to assist [her].” (R. 4-32.) Jane Doe QQQ testified that a woman she briefly met once will care for the baby. (R. 4-32.)
Plaintiffs’ Exhibit 458 lists seven inmates’ babies who boarded at D.C. General in 1993. The previous year, 16 babies of women prisoners boarded at the hospital. (R. 10A-33 (Morning Session).) Dr. Major stated that in his experience with correctional institutions he had never seen that many boarder babies. (R. 3-119 to 120.) He “refused to believe that this many mothers did not want their
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children placed properly.” (R. 3-120.) Dr. Charles Hall has not spoken to anyone within the DCDC about the issue of boarder babies. (R. 14-10.)
Overall, many of the problems with obstetrical and gynecological care can be traced to inadequate staffing, problems with transportation and a lack of consultation between CTF and D.C. General. As of November 1993, Dr. Eliza Taylor stated that the physician shortage is “quite apparent.” (Pls.Ex. 394 at DC0025016.) Even when staff is available, the Defendants too often fail to transport women prisoners to medical appointments. (Pls.Ex. 389 at DC0024258-63; Ali Dep. at 103-04.) A lack of transportation caused Jane Doe QQQ to miss two prenatal appointments (R. 4-20.), kept Jane Doe K from approximately four appointments (R. 6-96.) and prevented Jane Doe II from being examined on two occasions. (R. 2-166 to 167.)
The Defendants’ Monthly Medical Reports offer further proof that the lack of transportation is a longstanding problem. (Pls.Ex. 394.) In September 1992, 151 women were scheduled for OB/GYN appointments, 91 are listed as not receiving transportation and 9 refused to go. (Pls.Ex. 394 at DC0025220.) The Chief Medical Officer of CTF at that time, Dr. Lynette E. Mundey, expressed concern about the “significant number of no shows” and stated that the escort system had “not worked effectively.” (Pls.Ex. 394 at DC0025218.) In November 1992, 148 women were scheduled for OB/GYN appointments and 39 were listed under “no transportation.” (Pls.Ex. 394 at DC0025201.) In October 1993, 100 women were scheduled for OB/ GYN appointments but only 76 were seen and in August 1993, 118 women prisoners had OB/GYN appointments and 71 were seen. (Pls.Ex. 394 at DC0025033 & DC0025062.) Defendants’ records fail to explain the reasons for these women not being examined.
Defendants hoped to improve the provision of medical care by creating a Memorandum of Understanding between D.C. General Hospital and the DCDC. (Pls.Ex. 455) It requires administrative and clinical principals of each facility to attend meetings at intervals of no more than four months. (Pls.Ex. 455 at DC0030944.) The Memorandum also provides for continuity of care and states that all inmate-patients “referred to [D.C. General] for ambulatory clinics will be seen with dispatch and given priority status to other patients.” (Pls.Ex. 455 at DC0030946.) Defendants do not follow this Memorandum of Understanding. (R. 3-138, 14-158.) Dr. John Clark, Defendants’ medical expert, found that there was a “lack of adequate communication and coordination at three levels____ Medical to Medical (i.e., Doctor to Doctor), Nurse to Nurse (DCGH to CTF) and DCGH Medical to DOC-CTF Custody Staff.” (Pls.Ex. 667 at 12.) Dr. Charles Hall of CTF has had no discussions with D.C. General concerning the general quality of care that is provided to all women prisoners who are treated at D.C. General. (Charles Hall Dep. at 151.)
C. Physical Conditions of Confinement at CTF and the Annex
1. Housing Conditions
a. CTF
The DCDC created CTF in response to a need for an 800-bed facility that would offer intensive treatment and transitional services for special needs offenders. (Pls.Ex. 338 at DC0018947.) The Defendants intended to divide the facility into three areas: Reception and Diagnostic (288 beds); Substance Abuse (256 beds), and Mental Health (256 beds). (Pls.Ex. 338 at DC0018947.) This plan changed in 1992 when the Defendants increased the number of female offenders to be placed at CTF and delayed the implementation of the Mental Health Program. (Pls.Ex. 338 at DC0018947-48.) This decision was made for primarily financial reasons. (R. 8-9.) In a February 27, 1992 letter to Deputy Mayor Robert Mallett, Mr. Ridley explained his request to change the mission of CTF:
Unfortunately, recent developments associated with the budget and the growing population has forced the department to reconsider full implementation of the Mental Health Program at the CTF. The Federal Bureau of Prisons informed the department that it can no longer house approxi
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mately 700 inmates from the District. The anticipated increase in population by 700-800, as a result of the Bail Reform Act, and assurance that existing court orders are complied with are a few of the problems forcing the department to consider increasing the number of females at the CTF.
More importantly, the department must consider all cost saving efforts as a means of meeting its budget mark.
(Pls.Ex. 338 at DC0018948) (emphasis added). In assessing the “Pros” and “Cons” of this move, the first “Pro” listed was: “Assist the department in reducing its budget by eliminating 71 positions with a savings of $3,267,748.” (Pls.Ex. 338 at DC0018949.) One of the “Cons” was “[a] small number of individuals in the community may respond in a negative manner concerning the movement of women from a campus-like setting to a closed-in setting. This can be justified in that the availability of more comprehensive services and privacy outweigh the continued placement at Lorton.” (Pls.Ex. at 338 at DC0018950.)
CTF is constructed as a series of multilevel buildings all connected by inside walkways. (Pls.Ex. 638 at 5.) Administration, medical and visiting facilities are located in Building B; food service is located in the basements of Buildings A and B; central services and a gymnasium are located in Building B; reception and diagnostic services are located in Building C (which houses some females); housing and treatment facilities for substance abuse are located in Building D. (Pls.Ex. 638 at 5.)
Women prisoners are housed in Building E. (Pls.Ex. 638 at 5.) Building E contains 4 housing units and there are 64 cells in each housing unit. A single unit takes up an entire floor and is symmetrically divided into an “A” side and a “B” side. Each side has a day room and then an L shape to the building of two wings of cells opening off the day room and each of the legs of the L has two levels of cells in it. There are eight cells on each level.
Each cell has a single bed with a toilet, a slot type window on an outside wall and registers for air circulation. (R. 6-53.) The bed is fastened to a masonry outside wall. (R. 6-53.) The cells are not insulated and those at the far end have two outside walls which make them the coldest rooms. (R. 6-53.)
As Mr. Paul Quander, the Executive Deputy Director for the DCDC said of the facility, “CTF is designed for controlled movement____ Elevator control, door control, electronics, computer generated. Things of that nature. It’s different from what we have in our other facilities.” (R. 8-67.) Ms. Lancaster added, “This is not the type of facility that would be designed for a general population female institution and is not designed in my opinion to house a general prison population____” (R. 5-45.)
Despite the fact that it is a new facility, CTF has problems. The facility is unable to generate a sufficient amount of heat in winter. (Pls.Ex. 145 at DC0003388; Pls.Ex. 159 at DC0003820.) The failure of steam coils in the air handling mechanism and lack of insulation in the cells cause low cell temperatures. (Pls.Ex. 638 at 7-8; R. 6-55 to 56, 72.) The steam coil malfunction forced the administration to shut down the outdoor air intake and thus prevent the entry of fresh air and the removal of contaminants. (Pls.Ex. 638 at 7; R. 6-56.) Jane Doe V testified:
Last winter, my first winter in CTF, I experienced icicles on [the inside of] my windows, extremely cold weather, blowing puffs out of my mouth and nostrils. There were mornings when we would have to get extra blankets if they would bring them up to us. We would have to put on layers and layers of clothes just to stay warm.
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(R. 4-89.) Low temperatures greatly increase the incidence of illness from cold or flu. (R. 6-54; Pls.Ex. 159 at DC0003820.)
Jane Doe K notified the Defendants about the heating problem in a letter to Ms. Parrott-Fonseca asking for the Administration
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to fix the problem. (Pls.Ex. 160 at DC0003826-27.) She wrote:
I come to you expressing the dire need for heat in the Correctional Treatment Facility____ The institution has provided some of the residents with extra clothing and blankets, but even so, there is a large percentage of the population who did not receive such.
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This out of kindness is still not enough to protect us from such frigid temperatures____ In this facility, the Department of Corrections houses residents of all [kinds]. There are pregnant females, diabetics, HIV patients, high and low blood pressure patients, etc. Therefore, these people, as well as those who are not categorized above, need to protect themselves from the cold. Some nights it gets so cold until I can’t sleep____ I have heard many different stories regarding the heat situation ... but the main thing is that we need heat in this building.
(Pls.Ex. 160 at DC0003826-27.) Jane Doe K received no response from the DCDC. (R. 6-119.)
Mr. Ward Duel, the Plaintiffs’ expert in the field of environmental health, visited CTF in February 1994 on a mild February day and took temperature readings in the living areas. (R. 6-54.) Within the same unit some cells were 64 degrees and other cells were 75 degrees. (Pls.Ex. 638 at 7.) Mr. Duel found that the temperature of the air blowing out of a register was 65 degrees. (Pls.Ex. 638 at 8.) Residents use paper products, such as toilet paper and sanitary napkins, to cover air vents which are blowing cold air. (Pls.Ex. 147 DC0003401, DC0003412, DC0003444, DC0003440.)
The malfunction of the ventilating system creates noise. (Pls.Ex. 638 at 9-10.) From the ventilation noise alone, Mr. Duel received a decibel reading of 74 decibels and in an empty cell during the morning with the door shut he got a reading of 44 decibels. (Pls.Ex. 638 at 9.) He stated that the maximum allowable decibel level for nighttime conditions is 45. (R. 6-57.)
Mr. David White, Chief of Facilities Maintenance at CTF, is uncertain that the recent efforts to repair the system will solve the problems with heat at CTF. (R. 6-68; 12-75.)
Beyond the heating problem, there are many other unsanitary conditions at CTF. There are defective toilets which result in the exposure of sewage and possible environmental transmission of sewage-born illnesses. (Pls.Ex. 638 at 6.) Water leaks out of some showers damaging ceilings below and injuring prisoners. (R. 6-62; Pls.Ex. 638 at 6-7; Pls.Ex. 159 at DC0003820.) CTF staff do not use cart liners to transport the laundry thus promoting the spread of germs. (Pls.Ex. 638 at 12; R. 6-58; 12-5.) Women inmates are responsible for cleaning their cells, yet the institution does not provide them with adequate supplies because of an internal distribution problem and an uneven delivery by the supplier. (R. 4-91; 6-62 to 63. ) CTF has a problem with rodents. In a September 20, 1993 letter to Captain L.C. Jones, then Assistant Administrator for Operations, Ms. G.H. Washington, Associate Director of Programs, stated that “[t]here is excessive mice dropping, mice nesting debris and trash on the floor, on the shelves, and behind the shelves.” (Pls.Ex. 146 at DC0003390.) Mr. Duel found that CTF had a significant problem with mice in the corridors, hallways, stairways and kitchen. (Pls.Ex. 638 at 15.)
Inadequate food preparation threatens residents at CTF. (R. 6-63 to 65.) Mr. Duel found special diet meals
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which were 30 to 40 degrees below an acceptable level. (R. 6-64. ) The sanitarian’s Food Establishment Self-Evaluation Reports, (Pls.Ex. 183), are similar to the evaluations used by the D.C. Department of Consumer and Regulatory Affairs (DCRA) when they examine commercial food establishments. Out of 41 Food Establishment Self-Evaluation Reports for the CTF main and satellite kitchens, 34 fell below the “acceptable” level. (Pls.Ex. 183.)
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The Defendants recently hired a nutritionist who has improved the quality of the special diets but it is not clear whether she has been hired for long-term employment. (R. 6-71, 75.)
The water temperature in the lavatory hot water faucets ranged from the high 80’s to the low 90’s. (Pls.Ex. 638 at 6.) When the Administration uses disposable utensils, trays and plates during breakfast, the mid-morning water is borderline acceptable. (R. 6-69.) The use of disposable goods, however, creates a waste removal burden. (R. 12-8.)
b. The Annex
Though the Defendants intended to send all female prisoners to CTF in 1992, “population pressures” forced the Defendants to use the Annex to house short-term female prisoners. (Pls.Ex. 334 at DC0018932.) One factor in this decision is contained in a June 1, 1992 Memorandum to Director Ridley, in which Administrator Krull observes that by “[c]onfining the population to short-term offenders, the risk of a law suit is diminished.” (Pls.Ex. 334 at DC0018935.) Despite this type of strategic thinking, the Defendants’ official policy states: “It is the policy of the DCDC to provide a safe environment for all staff and inmates in its institutions and facilities through compliance with American Correctional Association (ACA) standards and other applicable regulations and statutes.” (Pls.Ex. 143.)
The Annex was constructed in 1955 and served as the Department’s Training Academy until August 1988 when it was converted to a minimum security facility for male prisoners. In September 1989, it was converted again for use by women prisoners. The Annex is composed of dormitories which are converted military barracks. (Pls.Ex. 637 at 4.) Dormitory 6 is a large open room with a rest room and small day room combination opening off one end. (Pls.Ex. 637 at 4; R. 6-10.) Dormitory 7 is a larger dormitory with smaller sleeping areas on either side that open up into a small, central day room. (Pls.Ex. 637 at 4; R. 6-10..) Attached to the day room is a rest room and showers shared by both wings. (Pls.Ex. 637 at 4.) In Dormitory 6, as of June 1994, there were 80 beds. (R. 6-8, 6-43.) In Dormitory 7A there were 62 beds and in Dormitory 7B there were 32 beds. (R. 6-8, 6-43.) The beds in the dormitories are double bunks the heads of which are placed against the outside wall. (R. 6-8.) Most of the beds in the row are approximately 30 inches apart which means that an inadequate amount of light reaches the lower bunks.
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(R. 6-8; 11-142; Pls.Ex. 637 at 14.) The lack of light is an obstacle to floor cleaning. (Pls.Ex. 637 at 14; R. 6-19 to 20.)
On July 26, 1993, Ms. Regina Gilmore,
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Acting Chief of Female Offender Programs, sent a letter to Ms. G.H. Washington. In the letter, Ms. Gilmore provided a summary of conditions at the Annex:
These buildings were not initially designed for continued residency and in 1989 emergency renovations were made to accommodate housing of female residents. In July 1992, the population dramatically decreased when CTF opened and upkeep suffered. In late 1992, the population quickly swelled as female offenders were returned from federal facilities and the Detention Facility transferred more women to manage crowding. There is an average of one hundred and seventy (170) females housed in these two dorms. Renovations and preventive maintenance have not kept pace and repair needs have reached crisis proportions.
(Pls.Ex. 170 at DC0003870.)
The environmental health experts of the Plaintiffs and the Defendants believe that the population in the dormitories is “excessive.”
22
(R. 6-10, 11-140.) The overcrowding at the Annex creates a shortage of sani
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tary facilities,
23
(Pls.Ex. 637 at 9-10.), increases the spread of infectious disease, (R. 6-11.), produces a heightened noise level,
24
(Pls.Ex. 637 at 8.) and creates filthy living conditions, such as dirty floors and moldy bathrooms. (R. 4-119; 4-150.) Jane Doe XI stated, “I was housed ... for a long period of time [at] Alderson, West Virginia [which] is the oldest federal women’s facility there is and ... you can’t even compare it to [the Annex]....” (R. 4-150.)
There is no mechanical ventilation in the dormitories except for the window air conditioners. (Pls.Ex. 637 at 12-13.) This results in a level of carbon dioxide which far exceeds military standards. (R. 6-11 to 6-15.) The poor quality of air promotes eye and throat irritation and the transmission of respiratory illnesses. (R. 6-15.)
The Annex also has a “very significant level of roaches.” (Pls.Ex. 637 at 11-12; R. 6-22.) As Jane Doe VII testified: “They’re in the room, in your bunk____ If you look behind your bunk right in the crease, ... you’ll see roaches hibernating back there____ Sometimes if you look over next to you you’ll see roaches crawling on the person while they sleep.” (R. 4-120.) Plaintiffs’ environmental health expert witnessed roaches in footloekers and vertical lockers at the Annex. (R. 6-22 to 6-23.) Roaches use the many cracks in Annex walls to hide or drop an egg and are capable of carrying dysentery, salmonella and infectious hepatitis. (R. 6-22 to 6-24.)
Mr. Duel found torn mattresses and pillows which provide a haven for bedbugs, lice and ectoparasites. (Pls.Ex. 637 R 10-11; R. 6-24 to 6-25.) Torn mattresses cannot be cleaned effectively, thereby increasing the likelihood that previous users will transmit skin diseases to the next person who sleeps on the mattress. (R. 6-25.) Defendants also place clean and dirty laundry in the same cart without any liner. (Pls.Ex. 637 at 16; R. 6-49 to 6-50, 11-139.) Germs from the dirty laundry stay in the cart to contaminate the clean laundry that reenters the cart. (R. 6 — 49 to 50.)
The kitchen facilities are unsanitary. (Pls.Ex. 637 at 18-20.) Despite Defendants’ efforts to clean prior to inspection, Mr. Duel found dirt in less obvious places. (R. 6-32.) A review of maintenance records revealed that the kitchen drains were frequently clogged. (R. 6-33.) All of the these unsanitary conditions in the kitchen provide a source of food borne illnesses. (R. 6-33.) In addition, the dumpsters attract vermin because they are left open and contain unbagged material from the cafeteria. (R. 6-28 to 29, 11-142.)
Monthly inspection reports performed by the Defendants’ Environmental Safety and Sanitation Office indicate that there is very little preventive maintenance at the Annex. (Pls.Ex. 144.) The heating unit which is designed to provide heat and hot water to the Annex frequently malfunctions, resulting in lukewarm water all year around. (R. 4-120; 6-26; Pls.Ex. 170 DC0003871.) The grounds of the Annex drain poorly which results in dangerous accumulations of ice in the winter, mud in the day rooms and breeding grounds for mosquitos in summer. (R. 6-27 to 6-28; Pls.Ex. 486; Smith Dep. at 87-88; Gilmore Dep. at 108, 127.) In fact, mosquitos and flies are in the dining room, the food preparation area and the dish washing area of the kitchen. (R. 6-46, 11-144.) These mosquitos transmit illness-causing organisms. (R. 6-46.)
The record indicates a willingness on the part of women prisoners to improve the living conditions at the Annex. In a letter to Ms. G.H. Washington, dated June 26, 1993 Jane Doe XI stated:
In all of these years of doing my sentence I have never seen such run-down nor de
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plorable conditions for living quarters---I do not believe that you are truly aware of this____ There are much needed repairs that need to be done here. Also the upkeep is not truly being maintained for the Women’s Dorms. A lot of us Federal Women are applicable and trained in all areas. We can paint, do carpentry and other jobs. Several of us have offered to do the painting of the Dorm Pm living in, if only the paint and materials would be purchased. Repeatedly nothing is done.
(Pls.Ex. 177.)
Outside of the Annex grounds, in the area of prison industries, women prisoners have a history of enduring unhealthy working environment. The Defendants have given potentially hazardous food to women who must eat in unsanitary conditions. (Pls.Ex. 687 at 18; R. 6-35.) The Defendants now provide women with thermal trays, a special delivery truck which keeps the food warmer, and two microwave ovens in the garment shop. (R. 6-46 to 6-47, 11-145-46, Gibbons Dep. at 117.)
Though approximately 25 women used to share one small bathroom at the garment shop, the Defendants now provide the male prisoners with a single bathroom and give the women prisoners four bathrooms. (R.
4-
140 to 141; 11-136; Pls.Ex. 362.)
The printing and garment shops do not have an adequate ventilation system which is capable of diluting and eliminating airborne contaminants. (R. 6-34; Pls.Ex. 637 at 13;) Instead there are fans near the ceiling on one side which blow air into the building while on the other side there are fans to blow air out of the building. (R. 6-33 to 6-34.)
Though the evidence undoubtedly demonstrates some attempts to improve conditions at the Annex and the industries, numerous Daily Work Sheets of Facilities Management and Facilities Engineering Service Orders show accelerated activity in the month before the site visit of the Plaintiffs’ environmental health expert, Mr. Duel. (Pls.Ex. 480 DC0033257-DC0033300.) Since the February 1994 inspection by Mr. Duel, the Defendants have repaired the roof where it leaked onto the electrical box. (R. 6-44.) A dirty ceiling in the kitchen had been replaced and lighting for the walk-in coolers had been added. (R. 6-45.)
2. Fire Safety
The three crucial elements of fire safety are the building, the systems within the building, and the building’s operations. (R. 7-7.) The operational aspect of a correctional facility is distinct from an ordinary building because inmates need the assistance of third parties (correctional staff) to exit a building. (R. 7-23.) It is, therefore, crucially important to educate and drill staff in the removal of people from the building in an emergency.
a. CTF
The buildings of CTF are made of noncombustible materials, with fairly low combustible loading inside. (R. 7-39.) The facility has a full sprinkler system and a full fire alarm system. (R. 7-39.) It has a detection system in the corridors and common areas. (R. 7-39 to 7-40.) Though the fire alarm system is tested quarterly, (R. 13-23.), the sprinkler system is not being adequately maintained and tested. (R. 7-40 to 41; 13-24 and 63.) The sprinkler system, however, should be tested quarterly. (R. 13-63.) There is maintenance of the fire pump
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but no testing. (R. 7-41.) All nationally recognized standards require annual testing of a fire pump. (R. 7-41.)
There is water leakage occurring in the building, especially in the basement and the culinary area where electrical conduit and electrical equipment are exposed. (R. 7-39.) The staff stores more in culinary spaces than the sprinkler system can handle. (R. 7-44 to 7-45.)
In the area of fire drills, approximately ten staff members and four inmates told Mr. Thomas W. Jaeger, the Plaintiffs’ expert in the field of fire safety, that a year will pass without a fire drill. (R. 7-44.) Dr. Eliza J.
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Taylor, Acting Chief Medical Officer at CTF, informed Dr. William Hall on July 30, 1993: “Have requested a fire drill for levels 68 and 82. Staff really needs to go [through] a mock evacuation drill.” (Pls.Ex. 394 at DC0025075.) On September 1, 1993, she wrote that “Sgt. Bonapart, Safety and Fire, had been approached on several occasions regarding mock evacuation drill — especially egress from ... [the] Infirmary. There has to be a concerted effort on the part of the medical staff and security to coordinate the evacuation procedure because of the difficulty with movement in this facility.” (Pls.Ex. 394 at DC0025059.)
b. The Annex
The level of fire safety at the Lorton Annex is grossly inadequate and below any nationally recognized standard. (R. 7-5.) It is not even in compliance with the District of Columbia standards. (R. 7-27.) The two Annex dormitories are of ordinary construction, which means that the Annex has masonry floors, masonry walls and wood roofs, wood paneling and planking as interior finish within the building. (R. 7-7 to 7-8.)
The combustible load at the Annex is heavy because 174 people with personal items, such as beds and pillows, live in a relatively small area. (R. 7-8.) Some inmates have lockers, but there are a significant amount of personal items stored in cardboard boxes and plastic bags near bunks which contributes to a hazardous continuity of the combustible load.
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(R. 7-9; Pls.Ex. 398.) The use of metal storage lockers would significantly decrease the continuity of the load. (R. 7-9.)
Each dormitory possesses a storage room with a high load and one dormitory has a storage locker. (R. 7-9) Inside this area are cleaning materials, a large supply of paper towels, toilet paper and a large amount of combustible material. (R. 7-9.)
A fire would spread from one end of a dormitory to the other end in approximately five minutes. (R. 7-10.) There is also the danger of “flashover,” which means that all the combustibles could be heated to the point of ignition when exposed to enough oxygen. (R. 7-11.)
The only compartmentalization
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at the Annex is the separation of the boiler room from the dormitory. (R. 7-11 to 7-12.) Nothing exists to contain a fire within the T.V. room, the sleeping area, the bathroom, the storage area or offices. (R. 7-12.)
The two dormitories have several exits for use in an emergency. (R. 7-12 to 7-14.) Dormitory 6 has three exits which include the main door and doors at the far end and by the T.V. room. (R. 12-127.) Dormitory 7 has three exits in addition to its main door. (R. 12-128.) The main doors are unlocked 24 hours a day and the other doors are locked between 11:00 p.m. and 7:00 a.m.
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(R. 12-127.) Although the Annex has windows, there is not a nationally recognized standard that recognizes a window as an exit except in a single-family home. (R. 7-14.)
The amount of exits and their capacity are adequate for the number of people living in the Annex, but Mr. Jaeger testified that there must always be exits in two directions because a fire could block access to a single exit. (R. 7-13; 7-21.)
The fact that the dormitories are single-story structures does not eliminate the danger to residents. (R. 7-29 to 30.) Multiple death fires still occur in single-story buildings. (R. 7-30 to 7-31.) In 1982, 29 people died in a fire that occurred in a one-story, fire-resistant building in Biloxi, Mississippi. (R. 7-31.)
At this time, the Defendants do not have an adequate fire alarm system at the Annex. The fire alarm apparatus at the Annex is antiquated. (R. 7-15.) The dormitories
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have a pull station and a bell to notify residents in the event of a fire. (R. 7-15.) There is no control panel, no system supervision and no distribution of bells throughout the building. (R. 7-15.) The bell rings only within the dormitory itself. (R. 7-15.) The sleeping areas of the dormitories have smoke detectors which alert only those within the area of the detector. (R. 7-16.) There is no control panel to provide emergency power or to send a signal outside the buildings to a central control center or to send a warning that the system is not operational. (R. 7-16.)
The only “realistic” fire suppression system to use at the Annex would be a sprinkler system. (R. 7-18 to 7-19.) The dormitories only have 2/& gallon fire extinguishers. (R. 7-19.) These cannot serve as a large component of fire suppression since they are only designed for small fires and people usually do not know how to operate them. (R. 7-19.)
The Defendants’ policy at Minimum for fire protection outlines a plan for fire prevention, fire suppression, and evacuation. (Pls.Ex. 400.) It requires “fire inspections and testing of equipment by [a] Fire Safety Officer at least once each quarter ... [and a]n annual inspection by [the] Fire Prevention Section, Lorton Volunteer Fire Department or other qualified Fire Inspector^)____” (Pls.Ex. 400 at 1.) Though the plan calls for quarterly drills, there is no evidence of staff training or the actual occurrence or success of drills. (R. 7-22.) The plan also does not state whether “quarterly” intervals refers to four times per year per shift, or four times per year per site, or four times per year per building. (R. 7-23.) The national standard calls for four drills per shift per year so that every shift is prepared. (R. 7-23) Some of the Annex staff told Mr. Jaeger that they had not performed any drills, while others recalled that their last drill happened four or five months earlier. (R. 7-25.)
On the issue of planning, Mr. Jaeger’s testified: “I asked the correctional officer in Dorm 6 for their fire evacuation plan for the dormitory, and what I was handed was post orders, and the post orders don’t refer one word to fire safety. There’s a separate fire evacuation plan. That correctional officer did not understand the difference between their post orders and their fire evacuation plans.” (R. 7-25 to 7-26.)
The Defendants have known about the hazardous conditions at the Annex for a long time. On January 24, 1994, Corporal Pleasant of Minimum informed Ms. Barbara A. Hart, the Acting Assistant Administrator for Operations, about certain deficiencies at the facility relating to fire safety. (Pls.Ex. 403.) He concluded his letter by stating: “Based upon my direct observation, the severity of the deficiencies in most instances would indicate they should be made top priority, but, they’re merely ignored.” (Pls.Ex. 403 at DC0025594.)
Pursuant to a request by Mr. Douglas W. Stempson, the Administrator at Minimum, Systems Engineering, Inc.
29
conducted an inspection of Minimum and concluded that it “constitute[s] an immediate life threatening situation. The problem has been exacerbated by the over-crowding condition of the Minimum Security Facility. There are hundreds of inmates and staff at the Minimum Security Facility, and there is no means of fire detection or evacuation.”
30
(Pls.Ex. 532 at DC0035801.) The report also rated the fire alarm system in the Administration Building, the gymnasium and the cafeteria as “very poor” because the fire alarm panels are not operational, the voice evacuation systems have been removed, the smoke detectors are filthy or painted, and the manual stations are broken or inoperable. (Pls.Ex. 532 at DC0035801.) All of this is the result of Defendants’ neglect and improper operation. (Pls.Ex. 525 at DC0035587.) Mr. Stempson and Ronald Jenkins, the D.C.D.C. Fire Marshal selected the proposal of Systems Engineering, Inc. to install a new fire alarm system. (Pls.Ex. 525 at DC0035587.)
On April 8, 1994, Mr. Stempson requested funding for a fire alarm system and stated,
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“The lack of a working, compliant fire alarm system creates hazardous living and working conditions at the institution ... The investment in a new fire alarm system is likely to be much less than the liability resulting from a lawsuit.” (Pls.Ex. 525 at DC0035586.)
Mr. Quander, the Executive Deputy Director for the DCDC, responded to Mr. Stempson by speaking with the associate directors and requesting another survey to see if in fact the SEI report was accurate and to determine if funds were available to correct the problem if it existed. (R. 8-47.) Mr. Quander, however, testified that he had no knowledge as to who is responsible for the survey and when it will be complete. (R. 8-58.)
D. Programs
The term “programs” encompasses: 1) educational programs which include academic, college and vocational, 2) work programs which would include work details, industries and work training, 3) recreational programs and 4) religious programs. (R. 5-6.)
The issue of programs must be viewed with an eye toward the general characteristics of an inmate population. In 1992, the demography of women prisoners in D.C. was as follows: 97 percent were African-American; 82 percent were single-parent primary caretakers; 85 percent were unemployed; 42 percent had a twelfth-grade education, and 7 percent were serving sentences for a violent crime. (Pls.Ex. 289 at DC0018269.)
Though women prisoners have access to programming within the D.C. correctional system, women prisoners many times do not receive reception and diagnostic (R & D) studies to determine their programming needs and interests. (Pls.Ex. 281 at DC0018045-46.) This is not the case with male prisoners. (Gibbons Dep. at 62-63.)
A report from the Female Offender Programs Office detailed the Defendant’s overall failure to provide adequate programming for women prisoners. The report points to several reasons for the failure but concluded: “[0]f paramount influence is the Department’s sudden housing of 99.5 percent of all female D.C.Code offenders without having planned, developed and implemented either programs or resources to meet the long-term treatment needs of this unique population.” (Pls.Ex. 281 at DC0018044.) Mr. Plaut and Mr. Quander concede that when the women returned to CTF from the federal system not all programs were in place. (R. 8-19, 8-106.)
In addition to obvious intellectual and financial benefits, the completion of academic, vocational, apprenticeship and higher education programs qualifies women prisoners for good time credits (Pls.Ex. 272 at DC0017648-57.) and an increased industrial wage. (R. 10A-48 (Morning Session).)
On the subject of work opportunities, Ms. Jennie Lancaster, the Plaintiffs’ expert penologist, testified:
One of the questions that I also asked during my interviews was what, in the employees’ opinion ... caused women to come back to prison in the District.... And what I heard over and over is lack of money to take care of themselves, to take care of their children, inability to have a job....
(R. 5-41.)
1. The Annex
The Court will analyze the quality of programs offered to women prisoners by comparing the minimum custody women at the Annex to similarly situated males at the Minimum Facility (Minimum). The population at Minimum as of January 1994 was 1,103 prisoners; 167 of whom were women.
31
(Pls.Ex. 520 at DC0030884 & DC003092.)
(a) Academic and College Education
Whereas the men at Minimum receive full time Adult Basie Education (ABE) and General Education Development (GED) classes (R. 5-19.), the women at the Annex have one teacher, Ms. Gray, who provides the residents a three-hour ABE class and a three-hour GED class. (R. 5-18.)
Sometimes the classes do not meet. The Defendants closed the school when the D.C. Government planned to move all women prisoners from Minimum to CTF. (R. 5-19.) In
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the summer of 1993, the air conditioning system in the classroom broke, forcing the closure of the school. (R. 4-103.) On another occasion, Ms. Gray broke her leg and missed approximately three months of work. (R. 4-102.) Though Ms. Hazel Smith, then Acting Correctional Program Officer,
32
asked Mr. Stempson for a replacement, no substitute was sent. (Smith Dep. at 105.)
Dr. Ryan, the Defendants’ expert penologist, described the basic education offered at the Annex as “minimally adequate.” (R. 11-65.) In her tour of the Annex she found women prisoners who would pursue this course of study if another teacher was available. (R. 11-66.) For this reason, Dr. Ryan recommends that the Annex hire a new teacher. (R. 11-66.)
The college education at Minimum and the Annex is two pre-college classes and two electives each semester which meet at the main compound. (R. 5-20.) The women rely on escorts who routinely take them to class late. (R. 4 — 100 to 4-101.)
b) Vocational Education
Vocational programming usually has two components: on-the-job training and a related classroom curriculum. (R. 5-22.) The Annex offers one vocational program to women. This is the Graphic Arts program which is held at Central and lasts 15 weeks. (R. 5-27 to 28.) It would, however, take a year in that program to gain real skills in order to get a job in that industry. (R. 5-28.)
The men at Minimum, as well as women, receive the Employment Training and Awareness Technique Program (ETAP). (Pls.Ex. 674 at 1.)
The limited sentences served by minimum custody prisoners present difficulties for a prisoner since an adequate vocational program usually lasts one to two years. (R. 11-70.)
c) Work Details
The Annex provides residents with work details which are support duties needed for the running of the jail. (R. 5-29) They include maintenance, housekeeping, receptionist, library work, and office clerk. (R. 5-32; Pls.Ex. 379.) They do not perform the more skilled maintenance duties (eg. carpentry, plumbing.) at the Annex. (R. 5-33.)
The male inmates at Minimum have over 30 separate work details. Some of the details are carpentry, dairy, mechanics, painting, plumbing and welding. (R. 5-32 to 33; Pls.Ex. 379.) Some men leave the facility to work on a farm. (R. 5-33.) With the exception of Greensweep and a position at a halfway house, women are confined to the Annex. (R. 5-33.)
d) Industries
A prison industry is a business run out of a prison where goods are produced with inmate labor and then sold to government agencies. (R. 10A-46 (Morning Session).) Prison industries usually offer the highest wage and the most valuable job skills. (R. 5-34.) The pay scale ranges from approximately $80 a month to $300 a month. (Pls.Ex. 225 at DC0008487.) Those working under staff supervision can make up to $1.99 an hour and unsupervised prisoners can earn up to $2.63 an hour. (R. 10A-48 (Morning Session).)
Presently 65 out of the 604 prisoners who participate in industries are women. (R. 10A-48 to 9 (Morning Session).) Women at the Annex participate in the garment shop (50 women) and print shop (2 women) at Central. Men at Minimum may participate in the industries of agriculture and landscape. (Pls.Ex. 674 at 2.) Dr. Wilbert Brown Jr., Assistant Director for Industries, stated that women may not participate in any of the other industries at Central “primarily because of security availability. That is primarily a security accommodation kind of issue because we don’t have adequate restrooms____” (R. 10A-50 (Morning Session).) Mr. Brown also testified that the furniture repair shop, the metal fabrication shop and laundry facility do not provide room to adequately view the prisoners. (R. 10A-50 to 51 (Morning Session).) The agricultural program takes place over 460 acres and would be difficult to supervise. (R. 10A-51 to 52 (Morning Session).)
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e) Work Training
Work training is a program which allows inmates to work in the community at regular wages. (R. 5-37.) Mr. William Plaut, the Deputy Director of Operations and the Acting Deputy Director of Programs stated, “the primary mission of the Minimum Security Facility is a work institution, ... it’s the institution in the Department whereby inmates, both male and female, can participate in work training programs----” (R. 8-97.)
The policy at Minimum is that a woman prisoner must reside at the facility for 90 days and be one year short of release before she is eligible for work training. (R. 4-144, 5-38.) Then, the women undergo a psychological evaluation. (R. 5-38.) The next step is the four-week ETAP program which is pre-vocational. (R. 5-38 to 39.) Afterward, the case managers must complete paperwork which is usually accomplished in four to eight weeks. (R. 5-39.) Mr. Derr, the vocation development specialist, believes that there are eligible women who cannot participate simply because they do not have paperwork done. He said, “Normally, nine times out of ten the ones who come from CTF are almost eligible____” (Derr I Dep. at 116.)
The women’s participation in work training is “token.” (R. 5-37.) In 1992, 2 women participated and the following year 3 women took part. (R. 5-37.) Dr. Ryan found on her tour that 4 women participated in work training. (R. 11-71.) Jane Doe XI said that more women do not participate in work training because, “[Y]ou don’t ever hear [or read] anything about work training at Minimum Women’s Annex unless one of the ladies that had been on work training happens to discuss it with you.” (R. 4-148.)
Jane Doe XI had difficulty with this program because Mr. Derr was so busy with other duties that he did not have the time to take women prisoners on job interviews. (R. 4-146 to 147.) Mr. Derr does not have sufficient transportation either. (R. 4-146; Derr I Dep. at 131.)
The average number of men is usually 55 to 60. (R. 5-37 to 5-38.) They work in construction, as truck drivers, and as day laborers. (R. 5-38.) The Administration explains the disparity by citing the varying sentence structures of the men and women. (R. 5-38.)
f) Recreation
The Annex has a recreation trailer which contains a pool table, a ping pong table, exercise bikes and a weight machine. (R. 5-46; Pls.Ex. 27 at DC0000314.) The trailer is scheduled to be open approximately two hours on Sunday, Tuesday and Thursday; three hours on Saturday, and four hours on Monday, Wednesday and Friday. (Pls.Ex. 27 at DC0000313.) The trailer is closed on Sunday, Tuesday and Thursday during visitation hours. (Pls.Ex. 27 at DC0000313.) A staff member, usually Recreation Specialist Hargrove, must open it. (R. 5-46.)
There are no outdoor recreation facilities at the Annex. (R. 5-46.) Ms. Hargrove, therefore, escorts the women as a group to the recreation areas at the Minimum Facility main compound twice a week for three hours. (R. 5 — 46.) They can participate in volleyball, basketball, handball, ROTC and talent shows. (Pls.Ex. 27 at DC0000314.) Sometimes outside guests perform at events like Gospel shows, fashion shows, and variety shows. (Pls.Ex. 27 at DC0000314.) But Jane Doe VII said that “if the men are having a ... basketball game or volley ball game then they take away our rec time so they can have their games.” (R. 4-107.)
The men at Minimum have access to the gymnasium and the ball field for approximately 6 hours in the morning Monday through Friday, and approximately 3 hours on several nights each week, and to the weight trailer 7 days a week during their free time. (Pls.Ex. 498). They may participate in organized intramural team sports. (R. 5 — 47.) The men may also participate in the Renaissance Drama Class.
33
(R. 4-108.) The women prisoners may not participate in Renaissance and have no equivalent drama program. (R. 4-111, 115; Pls.Ex. 626.)
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g) Religious Programs
In the area of religious programs, Ms. Lancaster stated, “In my experience religious programming promptly draws the greatest number of female inmates than any other program that’s routinely offered.” (R. 5-51.) The women have Catholic and Protestant services on a weekly basis and a Bible Study Program. (R. 5-50.) A chaplain goes to Minimum three times a week, but the hours are not scheduled and he has no office there. (R. 5-50.) The Defendants have difficulty satisfying the demand for Islamic services because of an inability to acquire volunteers to conduct those services. (R. 9-98 to 99.)
There is no chapel at the Annex (R. 4-118.) so women hold religious services in the visiting hall. (R. 4-117.) Jane Doe VII stated: “During church service if the visitors have to use the bathroom then they’ll come ... through the service, and when it’s time for the visitors to leave, the females have to get [strip searched].” (R. 4-118.)
The men at Minimum have two Protestant services, Catholic services, Muslim services and four volunteer programs. (R. 5-51 to 52.) A chapel is also located on the grounds and a chaplain is assigned to Minimum. (R. 5-52.)
2. CTF
The Court will analyze the quality of programs offered to women prisoners by comparing medium custody general population women at CTF to the similarly situated men who reside at Occoquan Facility (Occoquan), Central Facility (Central), and the Medium Facility (Medium). As of January 1994 the population in each of those facilities was: 1,373 prisoners at Central, 1,016 at Medium and 1,767 at Occoquan, (Pls.Ex. 520 at DC0030883-85), and 271 women prisoners at CTF (Pls.Ex. 520 at DC0030902.)
a) Academic and College Education
Academic programs are available to women at CTF. The women have ABE class and GED class for approximately 3 hours a day. (R. 5-11 to 12.) These classes are scheduled at the same time as the vocational classes which means that if a woman wants to take both she can take only
Vk
hours of each. (R. 9-83 to 84.) The men at Central have an 8-hour ABE class and an 8-hour GED class. (Gibbons Dep. at 61.) At Medium and Occoquan, there are 5% hour ABE classes and 5jé hour GED classes. (R. 5-12.)
CTF offers college education to women, as well. Presently, Atlantic Union College (AUC) offers a computer-based AA degree program in general studies at the facility for
2'/¿
hours in the morning, 3 days a week. (R. 5-15 to 16.) Residents may apply for a Pell Grant to cover tuition. (R. 5-15.) The credits that they earn with Atlantic are transferable to the University of the District of Columbia. (R. 11-62.) The Defendants expert penologist, testified that the Defendants should offer women prisoners at CTF a four-year program through an accredited university that ensures transferable credits. (R. 11-64 to 11-65.)
Mr. Walter Woodard, the GED teacher, helps women complete their Pell Grant forms; he passes out new books and he tries to correct computer problems. (R. 3^L) The residents help each other with the classwork and then send it via computer to their AUC teacher in Lancaster, Massachusetts. (R. 3-5.) Women, however, have problems getting class materials (R. 3-5.) and problems delivering their homework in a timely manner long distance. (R. 3-6.) Currently women prisoners can only receive this class three days a week because male prisoners at CTF use the law library two days a week. (R. 3-6.)
Central, Medium and Occoquan offer more extensive college education. Central offers a UDC program which furnishes a B.A. degree, an A.A. degree and precollege courses. (R. 5-16.) Medium offers the Park College program which is offered 6 hours a day and provides a B.A. degree, a B.S. degree and an A.A. degree. (R. 5-16.) Occoquan gives residents a UDC program which offers an A.A. degree, a B.A. degree and the Park College program which offers a B.A. degree and an A.A. degree. (R. 5-16.) The District of Columbia funds the UDC programs while residents must receive a Pell Grant for the Park College program. (R. 5-16.)
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Though CTF runs a primarily decentralized unit-management system, education programs are centralized. (R. 11-32.) Since CTF is a controlled-movement facility, it is critical that the elevator and the escort service function effectively. (R. 11-101 to 11-102.) Women are taken to elevators which carry them to another floor where a staff member escorts them to the class area. Due to problems with the escort system at CTF, women often arrive late to class. In the male facilities, the men are simply let out of the dormitories or living areas and allowed to go to class independently.
34
The need for more staff at CTF is recognized even by Defendants’ expert penologist Dr. Ryan. (R. 11-102.) The Administration has dealt with the need for extra staff by using overtime. (McCathorine Dep. at 115-16.) Overtime, however, frequently causes “staff burnout” (R. 5-13.) and is recognized by Mr. Quander as not being a long term solution. (R. 8-29.)
Defendants have hired approximately 70 new officers and have the authority to hire an additional 130. (R. 8-27 to 28.) It is unclear how many of these guards will work with women prisoners at CTF. Defendants also claim that the problem with escorts has been corrected by using school passes and designating an elevator operator specifically for women prisoners who are students. (R. 9-119 to 120.) "
b) Vocational Education
Graphic Arts is the primary vocational program offered to women at CTF. (R. 5-22.) It is associated with the Docutech Program Lab and there are thirteen women participating in the program right now. (R. 9-33.) It meets five days a week for two and one-half hours in the morning and approximately two hours in the afternoon. Only minimum custody women can join. (Pls.Ex. 306 at DC0018562-63.) The Youth Act women who reside at CTF are required by a consent decree to be in vocational training and fill 2 of the spots. (Pls.Ex. 294 at DC0018420-21; R. 9-33.)
CTF also offers programs in computer literacy, sewing and typing. (Pls.Ex. 306 at DC0018564.) A prerequisite for the computer literacy program is an eighth-grade achievement level. (R. 5-23.) While these are listed as vocational programs, they do not have a classroom component. (R. 5-24.) Furthermore, there have been problems with teachers not appearing for class. (R. 5-23.) Dr. Ryan believes that the Defendants should offer at least one more program. (R. 11-96.)
The men’s facilities offer an abundance of vocational opportunities and apprenticeships. (Pls.Ex. 517.) Central offers 15 different programs: Auto Body, Auto Mechanics, Barber Science, Brickmasonry, Building Maintenance, Business Typing, Carpentry, Culinary Arts, Digital Electronics, Drywall, Electricity, Graphic Arts, Landscape, Photography, and Plumbing. (R. 5-24; Pls.Ex. 674.) Medium Facility offers Brickmasonry, Drywall/Painting, and Word Processing. (R. 5-24.) At the Occoquan Facility there is Digital Electronics, Graphic Arts and Photography. (R. 5-25.) All three of the male facilities offer ETAP which is a prevocational course. (R. 5-25.)
Mr. Vincent Gibbons, the Administrator of Central, stated that it would be “an absolute nightmare” if women were escorted to Central to participate in vocational training. (Gibbons Dep. at 92.) Mr. Gibbons claimed that his position rested on “a combination of factors” but only managed to say that “fraternization” would jeopardize prison security. (Gibbons Dep. 93-95.)
On the staff reaction to the presence of women, Mr. Gibbons stated the following:
[Ejarly on, there was a lot of suspicion and a lot of concern about the fact that this was going to pose a major security crisis____ However, that was short lived and everyone has been very, very impressed with how few problems there have been and
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with the fact that the women are generally pretty amicable. They are easy to get along with, friendly, produce good work, and ... again, I have spoken to the shop foreman on a regular basis.
(Gibbons Dep. at 120-21.)
No apprenticeships are available to women at CTF. (R. 5-25.) At Central there are programs in Carpentry, Culinary Arts, Dental Technology, Electricity, Plumbing and Upholstery. (R. 5-25.)
c) Work Details
CTF lists the following as work details: maintenance, culinary, clerical assignments, education aides, environmental, intake, landscape, offices, quick copy, rec clerk, religious, supply management, unit. (Pls.Ex. 363.)
Central offers 25 work details which include those found at CTF, but also give men the opportunity to practice trades like plumbing, carpentry, bricklaying, mechanics, painting, welding, air conditioning, and masonry. (R. 5-30; Pls.Ex. 674 at 3.) Medium offers the typical support jobs but again offers some trades in painting, plumbing, and electrical work. (R. 5-30.) Finally, Occoquan offers the standard support jobs but includes barbering, carpentry, electrical work, heating, painting and plumbing. (R. 5-30 to 31.)
The salary which residents command depends on the skill level of the job and demonstrated proficiency. The range is between $6 and $21 a month with the higher salaries reserved for jobs requiring a trade skill. (R. 5-31.)
d) Industries
At Central there are 10 industries such as Accounting, Furniture Repair, Garment Shop, Print Shop, Upholstery and Metal Shop. (R. 5-35.) Medium offers Furniture Repair and Metro Shop. (Pls.Ex. 674; R. 5-35.) At Occoquan there is a Garment industry. (R. 5-35.)
Though the Defendants referred to plans for an industrial program (R. 8-104.) the only program remotely like an industry is Docutech which as of April 1994 pays some women an industrial rate of pay.
35
(R. 10-A-4.) Defendants’ expert penologist Dr. Ryan and the Defendants’ Female Offenders Program Coordinator Ms. Regina Gilmore stated that there is no industry at CTF. (R. 11-74; R. 9-28.) Dr. Ryan believes that CTF should create an industry. (R. 11-74.) Single gender shifts are possible if the administration is able to fill the shift with enough workers and if two shifts can be run in a cost effective manner. (R. 11-107.)
e) Recreation
As in other areas of life at CTF, the physical structure and staffing adversely influence the recreational options for women. The women have to be taken to the recreation area and supervised while the men at the other medium security facilities are not supervised. (R. 5-44.)
The scheduled recreation for women at CTF is one hour a day, five days a week and access to the gymnasium for two hours, three times a week. (R. 5-41; Pls.Ex. 424 at DC0027044.) There is also low-impact aerobics two days a week for an hour each day. (R. 9-121.) Plaintiffs’ expert penologist Ms. Lancaster stated, “This recreation time is more like segregation. This is what I am more used to with segregated inmates, ... not for general population inmates.” (R. 5-41.) She added, “[T]o have one hour a day of outside time when you haven’t done anything wrong and you’re not in segregation I think is really unacceptable.” (R. 5-42.)
Defendants have recognized these limitations on women from the beginning. In an April 15, 1992 letter to Federal Correctional Programs Division, Mr. Arthur Graves, Associate Director for Operations of DCDC, asked that women who had parole eligibility dates “well beyond the year 2000” not be returned “[sjince these women will not have the opportunity for extensive outside activities while housed at the CTF____” (Pls.Ex. 320.)
Mr. Vince Gibbons, the Administrator at Central, said that the men at his facility may
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go outside between 7:00 a.m. and 10:00 p.m. (Gibbons Dep. at 129-30.) They can play cards, sports, or other outdoor activities. At Medium, according to Mr. Rrull, “Men can have recreation all day long.” (Krull Dep. at 66.) At Occoquan, men have five hours of open time during the winter and seven hours of recreation a day during daylight saving time. Mr. David Roach, the Administrator at Maximum, said that men at the Maximum Facility generally have l-to-2 hours of recreation in the morning and l-to-2 hours in the afternoon. (Roach Dep. at 17.) All of this can be spent outdoors, weather permitting. (Roach Dep. at 18.)
The outdoor recreation programs at CTF occur in a small area which allows for basketball and volleyball. (R. 5-43.) There is a gymnasium and a weight room. The three men’s facilities have group sports such as basketball, football, softball, soccer, and volleyball. (R. 5-43.) Central has a track, a handball court, an arts and crafts program and a drama program. (R. 5-43.) Medium also has a track and a handball court. (R. 5-43.) Occoquan has a track, a field, horse shoes, weights, and handball. (R. 5-43.)
f)
Smoking Privileges
Men at the three facilities may smoke outside in designated areas. Smoking is absolutely prohibited within CTF. (Pls.Ex. 249 at DC0009722.) CTF primarily houses prisoners who are receiving treatment for drug addiction and this ban is part of the facility’s substance abuse treatment concept. (R. 5-53.)
III. CONCLUSIONS OF LAW
A. Claims Under 42 U.S.C. § 1983
The elements of a claim under 42 U.S.C. § 1983 are generally satisfied if a plaintiff can demonstrate that a person acting “under color of state law” deprived the plaintiff of a federal right.
36
Municipalities and local government officials sued in their official capacities are considered “persons” under the statute,
Monell v. Department of Social Services,
436 U.S. 658 , 690 & n. 55, 98 S.Ct. 2018 , 2035 & n. 55, 56 L.Ed.2d 611 (1978), and action taken pursuant to power conferred by state law and made possible because a person “is clothed with the authority of state law, is action taken ‘under color of state law.”
Monroe v. Pape,
365 U.S. 167, 184 , 81 S.Ct. 473, 482 , 5 L.Ed.2d 492 (1961). The Defendants plainly are persons acting under color of state law within the meaning of § 1983. The dispute in this ease centers on whether a federal rights have been violated and whether the Defendants caused the violations to occur.
A municipality is liable where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”
Monell v. Department of Social Services,
436 U.S. 658, 690 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978). It is also liable for “deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.”
Id.
at 691 , 98 S.Ct. at 2036 .
The Supreme Court, though generally divided on what constitutes a municipal “policy,” has ruled that a municipality is liable for constitutional violations which result from the municipalities failure to train its employees.
Canton v. Harris,
489 U.S. 378 , 109 S.Ct. 1197 , 103 L.Ed.2d 412 (1989). This may arise when “in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”
Id.
at 390 , 109 S.Ct. at
*663
1205.
37
B. The Eighth Amendment
Today, there is no serious constitutional argument against the proposition that the conditions within a prison are subject to scrutiny under the Eighth Amendment. The United States Supreme Court has stated:
When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being____ The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment____
Helling v. McKinney,
— U.S. —, —, 113 S.Ct. 2475, 2480 , 125 L.Ed.2d 22 (1993) (quoting
DeShaney v. Winnebago County Dept. of Social Services,
489 U.S. 189, 199-200 , 109 S.Ct. 998, 1005-1006 , 103 L.Ed.2d 249 (1989)).
In
Wilson v. Seiter,
501 U.S. 294 , 111 S.Ct. 2321 , 115 L.Ed.2d 271 (1991), the Supreme Court provided the framework which courts must use when deciding whether certain conditions of confinement constitute cruel and unusual punishment. Plaintiffs in prison conditions cases must satisfy objective and subjective standards before a court can find that a correctional institution has violated the Eighth Amendment.
Under the objective standard, plaintiffs must demonstrate a deprivation which amounts to a wanton and unnecessary infliction of pain.
Rhodes v. Chapman,
452 U.S. 337, 347 , 101 S.Ct. 2392, 2399 , 69 L.Ed.2d 59 (1981). Though a condition may be harsh, it is a constitutional element of a prisoner’s penalty if it is not cruel and unusual relative to contemporary standards of decency.
Rhodes v. Chapman,
452 U.S. 337, 347 , 101 S.Ct. 2392, 2399 , 69 L.Ed.2d 59 (1981). Since the Constitution “does not mandate comfortable prisons, ... only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation.”
Wilson v. Seiter,
501 U.S. 294, 298 , 111 S.Ct. 2321, 2324 , 115 L.Ed.2d 271 (1991). The Eighth Amendment does not protect prisoners from inadvertent injury or errors in good faith.
Whitley v. Albers,
475 U.S. 312, 319 , 106 S.Ct. 1078, 1084 , 89 L.Ed.2d 251 (1986).
The combination of some conditions of confinement may constitute an Eighth Amendment violation though each 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 — for example, a low cell temperature at night combined with a failure to issue blankets.”
Wilson v. Seiter,
501 U.S. 294, 304 , 111 S.Ct. 2321, 2327 , 115 L.Ed.2d 271 (1991).
A condition which has not caused any present injury may still violate the Eighth Amendment if it “is sure or very likely to cause serious illness and needless suffering.”
Helling v. McKinney,
— U.S. —, —, 113 S.Ct. 2475, 2480 , 125 L.Ed.2d 22 (1993). In these situations a Court must then determine whether society considers this risk to
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be so serious that it violates contemporary standards of decency.
Id.
— U.S. at-, 113 S.Ct. at 2481 .
A court may assess contemporary standards with the help of expert opinion, but such information does not define the “constitutional minima” and “cannot weigh as heavily in determining contemporary standards of decency as the public attitude toward a given sanction.”
Rhodes v. Chapman,
452 U.S. 337 , 348 n. 13, 101 S.Ct. 2392 , 2400 n. 13, 69 L.Ed.2d 59 (1981) (quoting
Bell v. Wolfish,
441 U.S. 520 , 543-44 n. 27, 99 S.Ct. 1861 , 1876 n. 27, 60 L.Ed.2d 447 (1979) and
Gregg v. Georgia,
428 U.S. 153, 173 , 96 S.Ct. 2909, 2925 , 49 L.Ed.2d 859 (1976)).
The subjective standard requires plaintiffs to prove that prison officials acted with “deliberate indifference” to inmate health or safety.
Farmer v. Brennan,
— U.S. —, —, 114 S.Ct. 1970, 1977 , 128 L.Ed.2d 811 (1994). The Supreme Court has stated:
A prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Id.
— U.S. at-, 114 S.Ct. at 1979 .
A factfinder may make inferences about a prison official’s state of mind by examining circumstantial evidence and in some cases, “conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.”
Id.
— U.S. at -, 114 S.Ct. at 1981 . Plaintiffs could prove that prison officials had actual knowledge of a risk if the risk was “longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstanees suggest that the defendant-official being sued had been exposed to information concerning the risk and thus ‘must have known’ about it____”
Id.
While prison officials may prove that they were ignorant of an obvious risk or thought of the risk as insubstantial, an official may not refuse to investigate facts or inferences that he strongly suspects indicate the existence of a condition which violates the Eighth Amendment.
Id.
— U.S. at-n. 8, 114 S.Ct. at 1982 n. 8. Officials who know of the substantial risk to inmate safety, however, may escape liability if they respond reasonably to the risk, even if the harm still occurs.
Id.
— U.S. at ---, 114 S.Ct. at 1982-83 .
In a suit for injunctive relief to correct a substantial risk of serious injury, the subjective dimension of the Eighth Amendment analysis should be determined by examining the attitudes and conduct of prison officials at the time suit is brought and thereafter.
Id.
— U.S. at -, 114 S.Ct. at 1983 . If at trial a plaintiff adequately proves the existence of an objectively intolerable risk of serious injury, the prison authorities could not possibly claim that they are subjectively unaware of the risk since the trial itself puts them on notice.
Id.
— U.S. at-n. 9, 114 S.Ct. at 1983 n. 9. Despite the fact that officials might have been subjectively culpable at the beginning of the case, an injunction will not be issued if they prove during the litigation that “they [are] no longer deliberately indifferent to an objectively intolerable risk of harm and that they would not revert to their obduracy upon the cessation of litigation.”
Id.
C.
Sexual Harassment at the Annex, CTF and the Jail
1. The Eighth Amendment
38
Under the objective standard, Plaintiffs have demonstrated a deprivation which
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amounts to a wanton and unnecessary infliction of pain. The evidence revealed a level of sexual harassment which is so malicious that it violates contemporary standards of decency. The physical assaults endured by women prisoners at the Annex, CTF and the Jail unquestionably violate the Eighth Amendment. Rape, coerced sodomy, unsolicited touching of women prisoners’ vaginas, breasts and buttocks by prison employees are “simply not part of the penalty that criminal offenders pay for their offenses against society.”
See, Farmer v. Brennan,
— U.S. —, —, 114 S.Ct. 1970, 1977 , 128 L.Ed.2d 811 (1994).
In combination, vulgar sexual remarks of prison officers, the lack of privacy within CTF cells and the refusal of some male guards to announce their presence in the living areas of women prisoners constitute a violation of the Eighth Amendment since they mutually heighten the psychological injury of women prisoners.
There is a substantial risk of injury when officers make sexual remarks in an environment where sexual assaults of women prisoners by officers are well known and inadequately addressed. In free society, a woman who experiences harassment may seek the protection of police officers, friends, coworkers or relevant social service agencies. She may also have the option of moving to locations where the harassment would no longer occur. In sharp contrast, the safety of women prisoners is entrusted to prison officials, some of whom harass women prisoners and many of whom tolerate the harassment. Furthermore, the women are tightly confined, making their escape from harassment as unlikely as escape from the jail itself.
Routine invasions of bodily privacy, such as men peering into women’s cells at CTF or the unannounced presence of male guards in female living areas provide a reminder to women prisoners that their exposure to abuse is almost endless. Though the Court is aware that in some instances, security concerns will take priority over privacy interests, the evidence did not show security based reasons for an inability to furnish women some privacy or for the refusal of some guards to announce their presence. The exposure of prisoners’ bodies without any justification is unacceptable and increases the level of anxiety experienced by women prisoners.
39
The health problems created by sexual harassment furnish more than enough evidence to satisfy the objective component of the Eighth Amendment analysis. Dr. Susan Fiester, the Plaintiffs’ expert in the area of sexual harassment and sexual misconduct, demonstrated that the abuse caused significant depression, nausea, frequent headaches, insomnia, fatigue, anxiety, irritability, nervousness, and a loss of self-esteem.
40
Though some female prisoners have not suffered as much as the named Plaintiffs in this case, sexual harassment within the three facilities is so pervasive that other women prisoners are very likely to suffer serious harm in the future.
The Court finds also that the Defendants have violated the subjective standard of the Eighth Amendment by acting with “deliberate indifference” to the condition of sexual harassment which women prisoners at the three facilities must endure. The Court finds that Defendants knew of and disregarded an excessive risk of sexual assaults and harassment of women prisoners. The evidence demonstrated that the women prisoners filed complaints with the police and they sent IGP’s and letters of complaint to prison
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administrators. The circumstantial evidence allows at least the inference of deliberate indifference since the harassment was so obvious. Indeed, assaults are widely known by DCDC staff, vulgar comments are made openly and women are fondled publicly.
The Defendants demonstrate further disregard for women prisoners by failing to respond reasonably upon discovering instances of sexual harassment. There is no staff training on the subject of sexual harassment of women prisoners. There are no posted procedures for filing an IGP and no instructions or procedures for reporting harassment of women prisoners. Consequently, there is no clear understanding of what constitutes sexual harassment and how it should be reported. Some employees go to the Director, others do nothing but tell other employees who then pass the story along the grapevine. Some employees do not report an incident because the Defendants do not keep sensitive information confidential and do not conduct effective investigations.
The lack of confidentiality also causes women prisoners to suffer the additional trauma of having the small community in which they live know the details of a degrading assault. They may also be the targets of retaliation. By leaking private information prison officials coerce women prisoners and staff into silence and insulate themselves from scrutiny.
Those women prisoners who do pursue their case have little cause for hope because investigations are not taken seriously. The record shows that the Defendants often respond slowly and superficially to allegations of sexual misconduct. Mr. Krull admitted that the DCDC has no policy for investigating sexual misconduct. Mr. Henderson, as the Administrator of the Jail would not initiate investigations into sexual misconduct and left it to the police. Mr. Plaut believed that he had to wait for a conviction before he could take action. The invariable result is that cases “cannot be resolved” and officers who commit the assaults are often reassigned to another facility or allowed to remain in the same facility. The Court does not believe that a reasonable attempt to investigate sexual misconduct within the three facilities would so consistently achieve inconclusive results. The Court also believes that the reassignment of assaultive guards communicates to employees that sexual misconduct is not a serious matter, thus permitting future assaults.
Defendants also respond to allegations of sexual misconduct by placing the alleged victim in protective custody. Protective custody is the same treatment given to inmates when they are being punished. There is no reason for a women prisoner to feel safe in isolation when an attacker can gain access to her cell.
The Court finds that the Defendants have not proven during the litigation that they are no longer deliberately indifferent to the sexual harassment which occurs at the three facilities. Assaults continued to occur after the filing of this suit and a month before trial, a Deputy Warden told a woman prisoner that she should not provide information to a lawyer representing the Plaintiffs in this case. There is also no evidence that the Defendants have changed their approach to staff training, reporting and investigations.
The Court concludes that the Plaintiffs have proven an Eighth Amendment violation by demonstrating a level of sexual harassment that is objectively cruel and to which the Defendants are deliberately indifferent.
2. 42 U.S.C. § 1983
The sexual harassment which the Plaintiffs suffer is the result of a governmental custom which has not received formal approval through the body’s official decision-making channels. In discussing sexual harassment, the former Administrator at CTF, Mr. Howard Ray Jr., suggested that sexual misconduct is a “custom” when he stated that it has always happened and will continue into the future.
The Court holds the Defendants liable under 42 U.S.C. § 1983 because guards at the three facilities inflict injury on the women while executing a government custom of sexual harassment, notwithstanding the Defendants’ official policies regarding sexual misconduct.
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The evidence also demonstrates that the Defendants fail to properly train their employees in the area of sexual harassment of women prisoners. The only substantive training in the area of sexual harassment focuses on harassment in the workplace. Considering the duties of officers at the three facilities, the need for training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, the Court finds that the Defendants are deliberately indifferent.
The Court, therefore, finds that the sexual harassment of women prisoners at the Annex, CTF and the Jail violates 42 U.S.C. § 1983 .
D. Obstetrical and Gynecological Care at CTF
41
1. D.C.Code § 24-442 (1989)
42
Plaintiffs claim that the lack of adequate obstetrical and gynecological care violates the law of the District of Columbia as embodied in D.C.Code § 24-442 (1989). This statute states in pertinent part:
[The] Department of Corrections ... shall ... be responsible for the safekeeping, care, protection, instruction, and discipline of all persons committed to [facilities under its jurisdiction],
D.C.Code § 24-442 (1989).
This statute encompasses the common law rule which imposes upon prison authorities and employees, a duty to exercise reasonable care in the protection and safekeeping of prisoners.
Hughes v. District of Columbia,
425 A.2d 1299, 1302 (D.C.App.1981). In order to prevail on a claim under this statute, a “plaintiff must establish by competent evidence a standard of care; that the defendant violated the standard; and that such violation proximately caused injury to the plaintiff.”
Id.
A plaintiff must establish a lack of proper correctional care by demonstrating with competent expert testimony, or other supporting proof, that what occurred in the case was “a negligent deviation from the demonstrated acceptable standard.”
Id.
at 1303 . A plaintiff is required to offer expert testimony where the subject matter at issue is “so distinctly related to some science, profession, or occupation as to be beyond the ken of the average layperson.”
Toy v. District of Columbia,
549 A.2d 1, 6 (D.C.App.1988). In the area of medical care, physicians owe the same standard of care to prisoners as physicians owe to private patients generally.
District of Columbia v. Mitchell,
533 A.2d 629, 648 (D.C.App.1987).
Once plaintiffs demonstrate a deviation from the accepted standard they must then present evidence from which a reasonable trier of fact could find that there was a direct and substantial causal relationship between the defendant’s breach of the standard of care and the plaintiff’s injuries and that the injuries were foreseeable.
Bell v. Jones,
523 A.2d 982, 995 (D.C.App.1986).
The Plaintiffs established the appropriate standard of care through Dr. Major who is a board-certified physician specializing in obstetrics and gynecology. (Pls.Ex. 639; R. at 3-41.) Dr. Major referred to community and national standards in the field of obstetrics and gynecology, specifically the American College of Obstetrics and Gynecology. (R. 3-45.) He also relied on his 35 years of experience as an obstetrician and gynecologist. Five of those years were spent directing obstetrical and gynecological services in a correctional institution. (Pls.Ex. 639 at 1; R. at 34:5.)
The evidence demonstrates that the Defendants have deviated from the standard of acceptable medical care for women prisoners. The Court holds that the record supports Dr. Major’s testimony as to the following devia
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tions from the general standard of adequate medical care: deficient gynecological examination and testing (R. 3-58.), inadequate testing for sexually transmitted diseases (R. 3-73 to 3-74.), inadequate follow-up care (R. 3-79 to 3-80, 3-83.), grossly inadequate health education (R. 3-86.), inadequate prenatal care (R. 3-94.), inadequate prenatal protocol (R. 3-95.) and ineffective prenatal education (R. 3-115.). These problems are compounded by the Defendants’ inability to provide a reliable system of transportation or a confidential sick call process. Consequently, women prisoners miss appointments for lack of a vehicle or refuse help for fear of revealing the details of their medical history.
The Defendants even deviate from their own standards. The Defendants do not follow the Memorandum of Understanding which requires multilevel consultation between D.C. General and CTF, the Defendants do not follow their policy of thorough intake examinations and health education and they do not follow the policy of comprehensive prenatal care.
43
These deviations are the proximate cause of foreseeable injury to the Plaintiffs. The Defendants’ failure to thoroughly educate women prisoners results in refusals of medical help. Inadequate examinations and follow-up treatment permit cervical and breast cancer, opportunistic infections in AIDS patients, sterility as a result of chlamydia and gonorrhea, peritonitis from gonorrhea, and aortic aneurysms, dementia, psychosis or death from syphilis. Even conditions that are ultimately benign may cause great discomfort.
A penologically unnecessary arrangement which contributes to the diminution of life expectancy, an increase in pain, the delivery of a baby in a jail cell, and the anxiety of a prolonged wait for potentially life-saving medical procedures is intolerable. This is particularly true in the many cases where a lack of transportation or confidentiality impedes treatment.
Defendants have made some efforts to correct deficiencies in prenatal care by holding parenting classes, prenatal exercise classes and a “therapeutic community”. Though these are positive measures, the creation of the exercise classes and the “therapeutic community” so close to trial calls into question the permanence of these measures. Nonetheless, the necessary reforms in obstetrical and gynecological care must be more comprehensive to bring the Defendants into compliance with D.C.Code § 24-442.
2. The Eighth Amendment
Plaintiffs raise several additional claims which are on the periphery of obstetrical and gynecological care: shackling of pregnant women prisoners, child visitation and child placement counseling.
44
The Court believes that these matters are best resolved by
Wilson v. Seiter
analysis rather than the approach of
Estelle v. Gamble,
429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976) which addresses the provision of medical services to prisoners.
Plaintiffs have demonstrated that the manner in which the Defendants shackle pregnant women prisoners in the third trimester of pregnancy and immediately after delivery poses a risk so serious that it violates contemporary standards of decency. The Court understands that the Defendants may need to shackle a woman prisoner who has a history of assaultive behavior or escapes. In general, however, the physical limitations of a woman in the third trimester of pregnancy and the pain involved in delivery make complete shackling redundant and unacceptable in light of the risk of injury to a woman and baby. The Court believes that leg shackles adequately secure women prisoners without creating an inhumane condition of confinement during the third trimester. While a woman is in labor and shortly thereafter, however, the Court holds that shackling is inhumane.
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The combination of a lack of child visitation and inadequate child placement counseling at CTF constitute an Eighth Amendment violation because they have a mutually enforcing effect which results in an unacceptable risk of trauma for women prisoners who have recently delivered babies. New events could be more stressful than the forced separation of a parent from his or her child. Though the injuries which flow from the Defendants’ actions in this area are primarily psychological, there is nothing to suggest that the Eighth Amendment is limited to physical injury.
See Hudson v. McMillian,
503 U.S. 1, 15 , 112 S.Ct. 995, 1004 , 117 L.Ed.2d 156 (1992) (concurring opinion, Blackmun, J.)
The Court finds that the Defendants have acted with deliberate indifference in these areas since the risk of injury to women prisoners is obvious. Deputy Warden Jones stated that he would not shackle a third trimester woman which suggests that he recognizes the risk.
The Defendants recognize that such a separation for women prisoners, in most cases, is extremely painful. It is, however, unfortunately necessary in order for a mother to serve her sentence. But to forbid child visitation while a baby is at D.C. General serves no penological purpose. Similarly, denial of adequate child placement counseling furthers no legitimate correctional policy. Both deprivations plainly heighten a mother’s anxiety to an unreasonable level.
The evidence which emerged through litigation failed to demonstrate that the Defendants were no longer deliberately indifferent to the need for greater child visitation and child placement counseling. The evidence did not show that the Defendants no longer continue to fully shackle third trimester women prisoners.
3. 42 U.S.C. § 1983
The Defendants shackle third trimester pregnant women prisoners pursuant to official policy. Though the Defendants have a policy which calls for child placement eounseling, the Defendants are liable because the custom of the Defendants is to provide inadequate counseling in these areas. The Defendants deny adequate child visitation as a result of an unwritten but closely followed policy. The Court, therefore, finds that the shackling of third trimester women prisoners, inadequate child placement counseling and the lack of child visitation at CTF violate 42 U.S.C. § 1983 .
E. Fire Safety at the Annex
1. The Eighth Amendment
The Plaintiffs have shown that the living conditions of women prisoners at the Annex present a risk of injury by fire so serious that it violates contemporary standards of decency. The Court finds the testimony of Mr. Jaeger, the Plaintiffs’ expert in the field of fire safety, to be helpful with, respect to the fire safety of the Annex.
45
His expert testimony demonstrated that several conditions working in concert create an objectively intolerable situation. The Annex dormitories are overcrowded, they carry a heavy combustible load, the walls cannot contain a fire within any room, only one fire exit consistently remains unlocked, there is no fire alarm system, there is no sprinkler system and fire drills are not regularly conducted. The Administration Building, the gymnasium and cafeteria have a poor fire alarm system.
The Court finds that each of these conditions has a mutually enforcing effect of exposing residents to an unconstitutionally intolerable risk of injury by fire. These conditions are at least very likely to cause serious illness and needless suffering. The Court does not have to wait for the Plaintiffs to be incinerated before it can order the Defendants to raise the level of fire safety at the Annex.
Application of the subjective standard of the Eighth Amendment shows that the Defendants have acted with deliberate indifference to the risk of fire at the Annex. The
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Court finds that the Defendants knew that a substantial risk of serious harm to inmate health or safety existed and they disregarded the risk.
The Annex fire hazards are longstanding, pervasive, well-documented, and expressly noted by prison officials. The Warden at Minimum has acknowledged that the absence of an adequate fire alarm system creates a hazard to residents. Even without Mr. Stempsoris statements, Mr. Jaeger demonstrated the existence of fire hazards at the Annex, thus defeating any claim that the Defendants are not aware of fire hazards at the Annex.
The Defendants, however, have not proven during the litigation that they are no longer deliberately indifferent to the lack of fire safety at the Annex. Mr. Quander requested another survey to verify the findings in the a report that was accepted by the DCDC Fire Marshal. He had no knowledge as to who is responsible for the survey and when it will be finished. Even Mr. Stempson justified his request for a fire alarm system by referring to the cost of a lawsuit. Many conditions which preclude litigation, however, have nothing to do with living conditions in a facility. The Court can easily imagine several factors which might have prevented a suit in this case: prisoner ignorance of legal claims, inability to obtain counsel or the desire of short-term residents not to antagonize the administration so close to their release date. The fire hazards at the Annex should have been corrected regardless of any legal action. References to litigation costs suggest that the Defendants in this instance will respond only to court orders.
The Court holds that the Defendants’ failure to move promptly to ameliorate the fire hazards at the Annex amounts to deliberate indifference.
2. 42 U.S.C. § 1983
Clearly, the Defendants do not have an official policy which requires the Defendants to create a firetrap at the Annex. But the Court does find that the deplorable level of fire safety at the Annex is the consequence of a decision by the Defendants not to correct the conditions which they acknowledge are hazardous.
In addition, the evidence demonstrates that written policies notwithstanding, the Defendants fail to train their employees in the area of fire safety and the Defendants do not follow their plan which calls for quarterly drills. Since the Defendants’ inadequate training is so likely to cause injury to the approximately 170 women prisoners who must be evacuated during a fire, the Court concludes that the Defendants have been deliberately indifferent. Consequently, the Court finds that the lack of fire safety at the Annex violates 42 U.S.C. § 1983 .
F. General Conditions at the Annex
1. The Eighth Amendment
The Plaint

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1396771. Public record. Not legal advice.