Petition — Hall v. DiMarzo

Tn the

Supreme Court of the United States

Ocroser Term, 1978

vo.Z 8-176

FRANK A. HALL,

PETITIONER,

Vv.

JAMES DiMARZO, et al.,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Lee Cart Bromperc

Special Assistant Attorney General

Rosert H. Ciarmoe

Counsel

Massachusetts Department of Correction

100 Cambridge Street

Bosten, Massachusetts

Tel. (617) 727-3324

Bianchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Opinion Below

Jurisdiction

Questions Presented

Statement of the Case

A. Prior Proceedings

B. Facts.

Reasons for Granting the Writ

Introduction

I. The Opinion of the First Circuit Court of

Appeals Is in Conflict With This Court’s

te én ae

Decision in Rizzo v. Goode 9

II. Additional Guidance Is Needed in the Wake

of Rizzo v. Goode 13

IIl. The Court of Appeals Decision Raises an

Important Constitutional Question as to

Whether Conditions of Pre-Trial Detention,

Which on Their Face Are Not Cruel and

Unusual, Punitive, or Even Unreasonable,

Are Nevertheless Subject to Judicial Re-

view and Correction Whenever They Are

Shown To Be Less Advantageous Than

Those for Sentenced Inmates at the Same

Institution 14

Conclusion 17

Appendix A A-l

Appendix B A-13

Appendix C A-25

Taste or Crrations

Cases

Adams v. Mathis, _. F. Supp. —— (M.D.Ala., 74-70-S,

2/28/78) 14

il Table of Contents

Page

DiMarzo v. Cahill, 575 F.2d 15 (1st Cir. 1978) . 1, 12, 13

Feeley v. Sampson, 570 F.2d 364 (1st Cir. 1978) ..... 7, 16

Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d

1196 (1st Cir. 1974), cert. dented, 419 U.S. 977 (1974)

4, 10

Inmates of Suffolk County Jail v. Eisenstadt, 360 F.

Supp. 676 (D. Mass. 1973), aff’d, 494 F.2d 1196 (1st

Cir. 1974), cert. denied, 419 U.S. 977 (1974) .. . 16

Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) . 18

Lewis v. Hyland, 554 F.2d 93 (8rd Cir. 1977), cert. de-

nied, 98 S.Ct. 419 (1977) . . 9, 13

Lucas v. Wasser, 425 F. Supp. 955 (8.D.N.Y. 1976) 13

Miller v. Carson, 563 F.2d 757 (Sth Cir. 1977) 13

Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974) 16

Rizzo v. Goode, 423 U.S. 362 (1976) | 4, 8, 9, 10, 11, 12,

13, 14, 15

Statutes

28 U.S.C. §1254(1) aor Fi: nae 1

42 U.S.C. $1983 ...... np .¢., 28,6, 11, 18, 14

Massachusetts General Laws:

ec. 34 §3 Res one ca es | Riese Se

$14. 7 rd ee fer iy, aaah oe

c.124 §1(a) | ee

§1(d) 4

§1(q) ot

e125 §1(d) . ED ) “- y

a tte aaa alt Oh cnc 3

§1(n) . te ees a Se 3, 10

¢.126 §1 reer Pete oh ena reat bg: Sones gt +

§2 RIA C8 Lt eee OR Re

§11 ay, Mas a eee ee ee 4

$16. | Canale a Lea 4

Table of Contents iii

Page

ela ¢14..../.. EPS OMe hh? ot, Rey aE a,

BET IR eC ORs as ERS LE de aoe ool rat 4

Miscellaneous

Standards for County Correctional Facilities, 103

CMR 900-999 Li Seat. CoN aan 15

In the

Supreme Court of the United States

Ocronen Team, 1978

No.

FRANK A. HALL,

PETITIONER,

Vv.

JAMES DiMARZO, et al,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Opinions Below

The opinion of the court of appeals (Appendix A),

DiMarzo v. Cahill, was issued on May 2, 1978, amended on

May 19, 1978, and is reported at 575 F.2d 15 (1st Cir. 1978).

The order and opinion of the district court (Appendix B),

issued July 8, 1977, are not reported.

Jurisdiction

Petitioner invokes the jurisdiction of this Court pursuant

to 28 U.S.C. § 1254(1).

2

Questions Presented

1. Whether when a state enacts a statute requiring the

state Commissioner of Correction to promulgate and en-

force minimum standards for county correctional facilities,

which the state Commissioner does not operate, administer,

or control, the state Commissioner thereby becomes liable

under 42 U.S.C. ¢ 1983 for any and all unconstitutional

conditions and practices that may exist in the county

facilities.

2. Whether merely because sentenced prisoners are

given a certain amount of out-of-cell time, detainees are

constitutionally required to receive the same.

Statement of the Case

A. Prior Proceedings

This action was commenced by two inmates at the Essex

County Jail and House of Correction in Salem, Massachiu-

setts. An amended complaint was filed on behalf of three

sentenced inmates and one pre-trial detainee seeking de-

claratory and injunctive relief pursuant to 42 U.S.C. § 1983

and also alleging violations of state law. Following a hear-

ing on May 11, 1977, and a personal view of the facility

two days later, the district court issued an injunction and

memorandum, Appendix B. Although the court’s order

was entitled a ‘‘Preliminary Injunction’’, the court indi-

cated that the prior hearing on the preliminary injunction

was being consolidated with the hearing on the merits.

The defendant Sheriff and Deputy Master as well as the

petitioner, the Massachusetts Commissioner of Correction,

appealed to the First Circuit, at the same time commencing

implementation of the district court’s order.

The court of appeals affirmed the district court’s order.

Judge Levin A. Campbell filed a separate concurring

opinion.

There is presently no stay of the injunction.

B. Facts

The subject of this litigation is the Essex County Jail

and House of Correction at Salem, Massachusetts (here-.

after ‘‘Essex’’) which was constructed in 1815 with an

addition in 1884, Exsex, which presently houses approxi-

mately one hundred and ten male inmates (including about

twenty-five pre-trial detainees), has no plumbing in the

cells,

Plaintiffs filed a lengthy complaint in April, 1977, princi-

pally challenging the lack of plumbing and consequent

* indignities, but also raising many other issues including

fire safety and the fact that pre-trial detainees were locked

in their cells for longer hours than the sentenced inmates.

They named as defendants the Sheriff of Essex County, the

Sheriff’s ‘‘Deputy Master’’ (the chief executive officer of

the facility), the three Essex County Commissioners, and

the petitioner, who is the state Commissioner of Correction.

The Massachusetts General Laws distinguish between

‘*state correctional facilities’’, which are ‘‘owned, operated,

administered or subject to the control of’’ the state Depart-

ment of Correction and ‘‘county correctional facilities’’,

which are ‘‘owned, operated, administered or subject to

the control of a county of the commonwealth’’. M.G.L.

ce. 125, § 1(f),(n). (A-25, 26)' Each county in Massachusetts

is required to provide ‘‘suitable’’ jails and houses of correc-

tion, both of which are ‘‘county correctional facilities’’.

M.G.L. e. 34, § 3; ¢. 125, § 1(d), (f). (A-25, 31) The county

' All cited state statutes have been included in Appendix C.

Pan ey preceded by the letter ‘‘A’’ refer to pages in the Appen-

4

commissioners have sole authority to construct and repair

county correctional facilities as well as broad powers and

responsibilities in governing their operations. M.G.L. c. 34,

‘14; ¢. 126, 66 1, 2, 11. (A-29-32) The sheriff of the county

has direct charge of the jails and houses of correction and

has custody and responsibility for (he inmates committed to

those facilities. M.G.L. ¢. 126, § 16. (A-30, 31)

In 1972, a statute was enacted requiring the state Com-

inissioner to promulgate minimum standards for county

correctional facilities and to enforce those standards, if

necessary, by petitioning state courts for appropriate

orders. M.G.L. e. 124, § 1(d), (q); M.G.L. e. 127, $§ 1A, 1B.

(A-27-29, 32-34) This did not alter the situation that fund-

ing and management of county institutions comes from the

county. Inmates of Suffolk County Jail v. Eisenstadt, 494

F.2d 1196, 1199 (1st Cir. 1974), cert. denied, 419 U.S. 977

(1974).

The complaint in the case at bar charged that the Coin-

missioner had failed to meet his statutory obligation to

promulgate minimum standards, to inspect Essex semi-

annually to determine compliance, and to take steps to

enforce his standards. Citing Rizzo v. Goode, 423 U.S. 362

(1976), the Commissioner moved to dismiss on the ground

that the complaint failed to state a federal claim against

him upon which relief could be granted. In response, plain-

tiffs argued that if the Commissioner had met his statutory

obligations, ‘‘the unconstitutional conditions alleged to exist

at Salem would have been corrected or at least amelio-

rated’’, Although the Commissioner thereafter lent his

expertise and staff time to the district court’s effort to

work out a settlement which would upgrade conditions at

Essex, he nevertheless maintained that his relatively re-

inote supervisory responsibilities and his inability to con-

trol funding, management or personnel at Essex exoner-

ated him from constitutional liability and its attendant

amen ee

5)

consequences under the principles established in the Rizzo

case,

The district court issued its injunction on July 8, 1977

without ruling on the Commissioner’s motion to dismiss.

In its opinion, also dated July 8, 1977, the court found that

the construction of Essex is such that extension of water

and sewer lines to each cell would not be feasible. (A-19)

The court ordered the installation of three flush toilets and -

sinks at the site of existing water and sewer connections.

(A-19)

Having personally viewed the Essex facility, the district

court found a serious fire hazard requiring the following

improvements which the court ordered: regularly held fire

drills; an increase in staff for fire prevention, detection

and evacuation; the installation of an electronic cell-locking

system, electronic smoke detectors, an additional standpipe

with hoses, fire retardant and non-toxic mattresses, and

emergency air packs; the application of flame retardant

paint to the floors; the cutting of an additional exit door;

and the replacement of wooden stairs with non-combustible

material. (A-13-15, 21-22)

Finding that pre-trial detainees are allowed out of their

cells ten and one-half hours three days a week, seven and

one-half hours for the alternating three days, and fifteen

hours on Sunday, the court stated that, in its view, even

the greatest amount of daily lock-in for Essex detainees

(approximately sixteen hours) was ‘‘not unreasonable’’?

and was ‘‘considerably more generous’’ than the lock-in

held to be excessive in other cases. (A-21) Nevertheless,

the court ordered a staff increase ‘‘to permit out-of-cell

time for detainees, who are not special security risks, which

is substantially equivalent to the out-of-cell time permitted

inmates of the House of Correction’’, whom the court found

2The court stated, ‘‘. . . if they are in 16, they are out eight

hours. It seems to me that is not unreasonable’’. Transcript of

‘*Continued Hearing’’, June 20. 1977, p. 2-10.

6

to be receiving fifteen hours of daily out-of-cell time. (A-

13, 20) The court’s basis for this order was that a detainee

has a fourteenth amendment right to be ‘‘treated at least

no worse than convicts who are housed in the same institu-

tion’’. (A-23)

The court’s order stipulated that the facility would have

to be closed if the mandated changes were not accomplished.

(A-13) The order also provided, however, that the more sub-

stantial renovations would be deemed waived if the county

commissioners determined to build a new jail and house of

correction and if a construction contract were actually

executed. (A-15, 16) The Essex County Commissioners

have since decided not to build a new facility. (A-9)

The Commissioner of Correction continued to lend exper-

tise and substantial staff time to help the Essex defendants

to come into compliance with the district court’s order, but

he also pressed an appeal to exonerate himself from the

charge that he was responsible for subjecting Essex in-

mates to constitutional deprivations, and to avoid the

anomalous proposition that he was liable for any uncon-

stitutional conditions and practices that may exist at Essex

and the other county facilities in Massachusetts even

though he has no control over their personnel or their

fiscal affairs. However, the court of appeals rejected the

Commissioner’s reliance upon the Rizzo case and held that

because he is required to promulgate and enforce minimum

standards in the county correctional facilities, he can be

held liable for any unconstitutional conditions and practices

that may continue to exist in those institutions. (A-3-6)

In affirming the order to equalize out-of-cell time, the

court of appeals held that officials had not ‘‘articulated any

constitutionally sufficient reason for withholding out-of-cell

pri ileges to pretrial detainees substantially equivalent to

those provided the convicts at Essex.’’ (A-11) Judge Camp-

bell indicated his disagreement with the majority’s invoca-

tion of this standard:

7

... I wish to make it clear that 1 would not agree that

merely because sentenced prisoners are given a certain

amount of out-of-cell time, detainees are constitution-

ally required to receive the same. A mechanistic ap-

proach to constitutional analysis seems to me in-

appropriate. See generally Feeley v. Sampson, 570

F.2d 364 (1st Cir. 1978). There are plausible reasons

why a short-term detainee might reasonably be sub-.

jected to greater limitations than those imposed upon

a regular inmate. Some regular inmates, like those

serving short sentences for misdemeancrs, are not

security risks. Detainees, on the other hand, are likely

to be recidivists or persons charged with serious

crimes. Furthermore, long term sentenced prisoners

are more obviously entitled to opportunities for exer-

cise and recreation than persons being held for a few

days or weeks. (A-12)

Considerations similar to those cited by Judge Campbell

had been articulated by the county defendants as reasons

for the differential in out-of-cell time. Deputy Master

Warren Bethune had testified that pre-trial men, who are

incarcerated in lieu of making bail, generally face more

serious charges than those of which House of Correction

men have been convicted, and that the sentenced men stay

longer at Essex and can be involved in programs. Counsel

for the sheriff and deputy master had stated that ‘‘if

3In Feeley v. Sampson, the First Circuit rejected the ‘‘strict

secrutiny’’ approach to reviewing conditions of pre-trial detention,

under which officials carry a burden of justifying every restriction

imposed upon a detainee on the basis of ‘‘compelling interest’’

and must further demonstrate that each measure taken is the ‘‘least

restrictive alternative’’. Supra, 570 F.2d at 370-1. The Feeley

Court also rejected any presumptive rule that it is unconstitutional

to treat a detainee less well in any particular than a sentenced

inmate. Id. at 371.

‘<

\

§

there was more staffing, if there was more room, if there

was more facilities’’, the sheriff would be willing to pro-

vide some more out-of-cell time. Counsel had cautioned,

however, that the pre-trial population presented a much

more serious security problem than the House of Correction

inmates.

Reasons for Granting the Writ

INTRODUCTION

The decision of the court of appeals should be reviewed

by this Court because it directly conflicts with Rizzo v.

Goode, 423 U.S. 362 (1976), and because of the great need

for clarity on the important question of supervisory lia-

bility under 42 U.S.C. § 1983.

Moreover, both of the issues presented by this petition

raise significant questions concerning the proper role of

the federal courts in state and local affairs. The court of

appeals ruling with respect to the Commissioner’s consti-

tutional liability leaves him in the untenable position of

being liable for all conditions in the county facilities while

having direct control over none of them. As a practical

matter, if allowed to stand, this holding will force a re-

structuring of existing relationships between state and

county correctional authorities, either by outright state

take-over of local facilities or by eliminating any amelio-

rative role for the state commissioner. Similarly, the

court’s decision with respect to detainees will have an

intrusive and unwarranted impact on local correctional

administration by requiring federal court intercession

whenever pre-trial detainees are not receiving the same

privileges as sentenced inmates.

9

I. Tue Opinion or tHe First Crrcuir Court or APPEALS

Is 1n Conritict Witrx Tuts Covurr’s Decision 1n Rizzo

v. Goode.

The court of appeals held the Massachusetts Commis-

sioner of Correction liable on the same theory rejected by

this Court in Rizzo v. Goode. This theory has it that an

official with supervisory responsibilities violates the Civil.

Rights Act of 1871 (42 U.S.C. § 1983) when he fails to

prevent or eliminate constitutional violations by subordi-

nates. Indeed, in this case, the court of appeals stretched

this theory of supervisory responsibility to an extreme by

holding the Commissioner liable for conditions in a facility

operated by elected officials who are not even his subordi-

nates, but merely subject to remote guidance under his

regulatory authority.

Rather than subject plaintiffs’ complaint to the rigorous

liability analysis which Rizzo v. Goode demands, the court

of appeals essentially limited the applicability of Rizzo to

the facts of that case. The court’s characterization of

Rizzo as involving ‘‘sporadic incidents’’ over which the

supervisory defendants ‘‘might properly claim to have no

knowledge or control’’ (A-5) fails to distinguish Rizzo.

Neither lack of knowledge nor lack of control was the

basis for exonerating the supervisory defendants in Rizzo:

rather, it was the absence of any plan or policy by the

defendants showing their authorization or approval of the

constitutional violations. Supra at 371, 375. Accord, Lewis

v. Hyland, 554 F.2d 93, 98-101 (3rd Cir. 1977), cert. denied,

98 S. Ct. 419 (1977).

The court’s principal basis for holding the Commissioner

liable notwithstanding Rizzo v. Goode is the fact that the

Commissioner has statutory duties with respect to the

10

county facilities. Echoing its pre-Rizzo v. Goode opinion in

Inmates of Suffolk County Jail v. Eisenstadt, supra, the

court observed that the Commissicner ‘‘has statutory re-

sponsibility over precisely -he conditions giving rise to the

[constitutional] violations.’’ (A-5) While this rationale

might have sufficed for finding liability prior to Rizzo (See

Eisenstadt, supra, 494 F.2d at 1199), it does not serve to

distinguish this case from Rizzo where the defendant police

commissioner also had major state law responsibilities

with respect to police misconduct, the issue in that case.

Likewise, the court of appeals’ specific reference to the

Commissioner’s duty to promulgate and enforce minimum

standards fails to distinguish Rizzo inasmuch as the

majority opinion in Rizzo gives no indication that a state

*The court of appeals, at 575 F.2d 17 (A-4), erroneously cited

M.G.L. e. 124, § 1(a) for the proposition that ‘‘the Commissioner

of Correction has supervisory responsibility for all state correc-

tional facilities. . . .’’ The court, as indicated by the very next

clause in the opinion [i.e., ‘‘. . . and is charged with promulgating

minimum standards for the care and custody of persons committed

to those facilities. Mass. Gen. Laws ch. 127 § 1A.’’ (which statute

(A-32) refers only to county facilities) |], included county facilities

such as Essex within the term ‘‘state correctional facilities.’’ The

current § 1(a), as opposed to the pre-1972 version which gave the

Commissioner ‘‘general supervision of jails and houses of correc-

tion’’, provides only that the Commissioner shall :

(a) designate, establish, maintain and administer such state

correctional facilities as he deems necessary, and may

discontinue the use of such state correctional facilities

as he deems appropriate for such action; provided that

no state or county correctional facility named in para-

graph (n) of section one of chapter 125 shall be dis-

continued without specific authorization and approval of

the General Court. (A-26)

Since, as noted above, the Massachusetts General Laws distinguish

between ‘‘state correctional facilities’’ and ‘‘county correctional

facilities,’’ the court’s citation of the current Chapter 124, § 1(a)

for the proposition that the Commissioner has supervisory respon-

sibility for the latter as well as the former, was plainly in error.

Parenthetically, the one reference to county facilities in chap-

ter 124, § l(a), supra, is a dead letter, as there are no county

correctional facilities named in paragraph (n) of section one of

chapter 125.

ll

statute requiring the Philadelphia Mayor and Police Chief

to prevent police misconduct would have produced a dif-

ferent result. Indeed, Justice Blackmun’s dissenting

opinion states that the Philadelphia supervisory defend-

ants in Rizzo were under a statutory duty to supervise

their subordinates. Supra at 386.

In circumventing this Court’s holding in Rizzo v. Goode,

the court of appeals arrived at a limitless notion of the.

Commissioner’s liability. Under the court of appeals’ theory

of § 1983 liability by reason of state statutory supervisory

responsibility, there is no reason why a state commissioner

of correction would not be liable the day a ‘‘minimum stand-

ards’’ statute is passed, a time when no one can even argue

that he has ‘‘subjected or caused to be subjected’’ county

prisoners to violations of their constitutional rights. More-

over, the court of appeals decision makes the Commissioner

liable for all unconstitutional conditions and practices in

the county facilities. Judge Bownes’ majority opinion

reasoned that minimum standards ‘‘means, at the very

least, constitutional’ standards and that if the Commis-

sioner had fulfilled his obligation to promulgate and en-

force minimum standards, ‘‘there would exist no constitu-

tional grievances’’. (A-5) By this reasoning, any constitu-

tional condition or practice in a county correctional facility

is automatically attributable to the state Commissioner,

even without proof of any fault on his part. If a constitu-

tional grievance exists, plainly, the Commissioner has not

succeeded in eliminating it. And if he has not eliminated it,

on the court’s theory, he is liable for it. Similarly, the

majority’s speculative assertion that a ‘‘natural conse-

quence’’ of the Commissioner’s failure ‘‘to promulgate

and enforce minimum standards is that conditions would

fall below a constitutionally allowable limit’’ (A-6) sug-

gests no limits to the Commissioner’s liability.

12

The Commissioner submits that it would not be incon-

sistent with Rizzo v. Goode to hold county officials liable

for constitutional violations at Essex. As the governors

of the county, the county commissioners make the countless

day-to-day funding and management decisions resulting in

the continued use of the antiquated Salem facility. Assum-

ing arguendo that there are unconstitutional conditions at

Essex, the county commissioners may be held accountable

on the theory that they had a policy of subjecting inmates

to those conditions. Likewise, the defendant sheriff and

deputy master may properly be sued for any of their

administrative practices. However, it conflicts with Rizzo

v. Goode to hold, as did the court of appeals, that the state

Commissioner is liable because he has not eliminated the

unconstitutional conditions that others have caused.

The holding of the First Cireuit in DiMar-o forces state

and local officials to adopt the fallacy of the excluded middle

in the structuring of their correctional system. They must

either have a centralized, state-run and state-financed sys-

tem which foregoes the potential benefits of local control

and local financing of local detention and short-term faciii-

ties, or they must have two independent systems, one for

state convicts, the other for short-term convicts and de-

tainees, with the latter unable to rely upon the former for

guidance on minimum standards. Any middle ground solu-

tion, such as the present Massachusetts arrangement which

seeks to retain the benefits of local autonomy while provid-

ing state expertise, technical assistance, and oversight, will

place the state commissioner in the untenable posture of

veing held liable for constitutional defects in county facili-

ties without sufficient power, short of a complete take-over,

to remedy them. This is precisely the type of unwarranted

intrusion by the federal judiciary in the way a state ailo-

cates responsibility among its political units that the ruling

13

in_ Rizzo v. Goode was designed to prevent. Liability must

be predicated upon causation, not upon a vague supervisory

role unrelated to the specific injury in question.

II. ApprtionaL Guipance Is NEEDED IN THE WAKE oF Rizzo

v. Goode.

As Justice Marshall has recently stated, ‘‘[c]ertainly the.

lower courts have not found in Rizzo any unambiguous

signal; to the contrary, they have given the opinion vary-

ing interpretations that suggest the need for guidance from

this Court.’’ Justices Marshall and Brennan, dissenting

from denial of certiorari in Lewis v. Hyland, 98 S. Ct. 419

(1977). See also cases cited at footnote 1 of Justice Mar-

shall’s opinion, and compare the court of appeals liability

holding in the case at bar with Kostka v. Hogg, 560 F.2d 37,

40 n.2 (1st Cir. 1977). The great need for certainty on the

frequently litigated issue of supervisory liability under

§ 1983 and the lack of consensus as to the meaning of

Rizzo v. Goode are additional compelling reasons for grant-

ing certiorari in this case.

Post-Rizzo v. Goode cases raising the specific issue of

state correctional officials’ liability for constitutional vio-

lations in county facilities are symptomatic of the current

confusion. Each of the four cases (counting the present

one) of which petitioner is aware articulates a different

theory for holding the state officials liable. DiMarzo v.

Cahill, (‘‘{T]here would exist no constitutional grievances

if the Commissioner were in conformity with his statutory

duties’’) (A-5); Miller v. Carson, 563 F.2d 757, 760 n.7

(5th Cir. 1977), (‘‘ {W]hen a state official’s violation of state

law causes the imposition of cruel and unusual punishment,

a federal cause of action arises under § 1983.’’); Lucas v.

Wasser, 425 F. Supp. 955, 962 (S.D.N.Y. 1976) (a case

where the state officials’ powers and duties with respect to

14

the county facilities were much greater than petitioner’s),

(‘‘{T here is a direct causal link between the injury plain-

tiffs allege and the State defendants whose duties directly

affect the conditions to which plaintiffs are subjected.’’) ;

Adams v. Mathis, — F. Supp. ——~ (M.D.Ala., 74-70-S,

2/28/78), (The State, through its responsible agencies, has

a duty under the fourteenth amendment to ensure that

‘*nersons incarcerated by virtue of its laws’’ are not de-

prived of their rights.)

Petitioner submits that no purpose would be served by

denying certiorari to allow continued percolation in the

lower federal courts, inasmuch as the passage of two years

since Rizzo has already produced considerable disarray ov

the important question of supervisory liability under the

Civil Rights Act of 1871.

IIT. Tue Covert or Apprats Decision Raises aN IMPORTANT

ConsTITUTIONAL QUESTION as TO WHETHER CoNnDITIONS

oF Pre-TriaL Detention, WHicH on THEIR Face ARE

Nor Crvet ann Unvusvat, Punitive, or Even Un-

REASONABLE, ARE NEVERTHELESS SUBJECT TO JUDICIAL

Review anp CorrecTION WHENEVER THEY ArE Snown

To Bre Less ApvantTacEous THAN THOSE FOR SENTENCED

INMATES AT THE SAME INSTITUTION.

The point which divided the judges of the court of appeals

in this case is one which urgently needs resolution by this

Court.5 The majority held that officials had not articulated

5 The Commissioner would retain a strong personal interest in

this Court’s review of this question of detainees’ rights even assum-

ing the Court granted certiorari and ultimately ordered dismissal

of the § 1983 claim as against the Commissioner. Plaintiffs had

alleged that the Commissioner violated state law (by failing to

promulgate and enforce minimum standards) and the court of

appeals opinion holds, among other- things, that state law requires

the Commissioner to promulgate standards which not only do not

violate the Constitution, but which expound whatever the Consti-

15

‘fany constitutionally sufficient reason for withholding out-

of-cell privileges to pretrial detainees substantially equiva-

lent to those provided the convicts at Essex’’. (A-11) Judge

Campbell disagreed with this approach, considering it to

be inappropriately ‘‘mechanistic’’. In Judge Campbell’s

view, detainees might legitimately be subjected to greater

limitations than sentenced inmates because:

Some regular inmates, like those serving short sen-

tences for misdemeanors, are not security risks. De-

tainees, on the other hand, are likely to be recidivists

or persons charged with serious crimes. Furthermore,

long-term sentenced prisoners are more obviously en-

titled to opportunities for exercise and recreation than

persons being held for a few days or weeks. (A-12)

Reasons very similar to these were articulated by the county

officials and found by the majority to be constitutionally

insufficient.

tution requires. [| ‘‘[T]here would exist no constitutional griev-

ances if the Commissioner were in conformity with his statutory

duties, viz., to promulgate and enforce minimum (which, of neces-

sity means, at the very least, constitutional) standards.’’ 575 F.2d

at 17. (A-5) |

On May 11, 1978, after a lengthy and difficult process of

research, consultation, drafting, redrafting, public hearings, and

revision, the Commissioner promulgated minimum ‘‘Standards for

County Correctional Facilities’, 103 CMR 900-999. These stand-

ards do not require that detainees be given as much out-of-cell

time as sentenced inmates or require the counties to articulate

‘*eonstitutionally sufficient’’ reasons for any differential in the time

allowed out. Given the First Cireuit’s pronouncement on Massa-

chusetts law, supra, a dismissal of the federal claim against the

Commissioner would surely be followed by plaintiffs’ arguing in

the distriet court that the Commissioner’s minimum standards

violate state law because they do not include the equalization of

out-of-cell time required by the lower courts as a matter of con-

stitutional law. Therefore, the Commissioner would remain inter-

ested in this Court’s consideration of the detainees’ rights issue

regardless of the outeome with respect to the Rizzo v. Goode lia-

bility point.

16

The conflicting approaches followed by the judges of the

court of appeals would have very different consequences in

terms of the extent of judicial review, on the one hand, and

the ability of correctional officials to innovate, on the other.

The majority’s holding means that a pre-trial detainee may

challenge any of the conditions of his confinement, even

those which are obviously humane and enlightened, on the

sole ground that sentenced inmates are having it somewhat

better. Since it may be assumed that the situation at

Essex, where county jail detainees are incarcerated along-

side lightly sentenced inmates who pose less serious

security problems, is present in county facilities across the

country, widespread application of the standard adopted

by the majority would tend to generate a flood of litigation

by detainees living under reasonable conditions. Such liti-

gation would fritter away judicial resources on innumerable

trivial issues and would excessively involve the courts in

local correctional administration. Another unfortunate con-

sequence of this standard is that it may well discourage

® Neither Rhem v. Malcolm [507 F.2d 333 (2d Cir, 1974)! nor

Inmates of Suffolk County Jail v. Eisenstadt [360 F. Supp. 676

(D. Mass. 1973), aff’d 494 F.2d 1196 (1st Cir. 1974), cert. denied,

419 U.S. 977 (1974) ], two eases frequently cited for the proposition

that detainees cannot be treated worse than convicts [See, e.g.,

Coffin, C.J., dissenting in Feeley v. Sampson, supra, 570 F.2d

at 379] actually went as far as the court of appeals did here.

In both cases, a broad range of conditions for detainees was

compared with conditions generally prevailing for convicted pris-

oners and found to be ‘‘significantly inferior’’ (Rhem at 336, 338)

or ‘‘grossly inferior’’ (Eisenstadt at 688). Based on these coni-

parisons, the Second Circuit concluded that the detainees at the

Tombs were being denied equal protection of the law while Judge

Garrity in the Eisenstadt case held that detainees were being pun-

ished. Rhem at 338; Eisenstadt at 686, 687.

Notwithstanding that both these cases embraced the ‘‘strict

serutiny”’ analysis subsequently rejected by the First Circuit in

Feeley v. Sampson, supra, neither went so far as the First Circuit

here in holding that detainees’ out-of-cell time had to be increased

because, although the current amount was reasonable in the eyes

of the district court, it was a few hours less than afforded inmates

serving short sentences.

17

county officials from providing rehabilitative opportunities

for sentenced prisoners for fear of rendering themselves

liable to Civil Rights Act suits by pre-trial inmates de-

manding the same privileges. The concurring judge’s

theory, in contrast, would limit judicial review of pre-trial

detention to those conditions and practices which on their

face appear to be punitive or unreasonable.

Given the lack of resolution on this important question,

as demonstrated by the split in the First Circuit, as well

as the serious negative consequences that would result

from general application of the majority’s s_anda.d, peti-

tioner submits that certiorari should be granted wa this

issue.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Lez CarLt BromBerc

Special Assistant Attorne

Rosert H. Ciarmce

Counsel

Massachusetts Department of Correction

100 Cambridge Street

Boston, Massachusetts

Tel. (617) 727-3324

July, 1978

A-1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 77-1416 and 77-1417. .

JAMES DiMARZO ET AL.,

PLAIN TIFFS-APPELLEES,

v.

FRANK A. HALL,

DEFENDANT-APPELLANT,

JAMES DiMARZO ET AL.,

PLAIN TIFFS-APPELLEES,

v.

ROBERT E. CAHILL,

DEFENDANT-APPELLANT.

Argued Jan. 5, 1978.

Decided May 2, 1978.

As Amended May 19, 1978.

Robert H. Claridge, Counsel, Dept. of Correction, Boston, Mass.,

and John N. Nestor, Lynn, Mass., with whom Lee Carl Bromberg,

Special Asst. Atty. Gen., Boston, Mass., was on brief, for defendant-

appellant.

Alvin J. Bronstein, Boston, Mass., with whom Susan E. T. Stud-

lien and Earnest Winsor, Boston, Mass., were on brief, for plaintiffs-

appellees.

Before

Corrin, Chief Judge,

CAMPBELL, Circuit Judge,

Bowness, Circuit Judge.

A-2

Bownes, Circuit Judge.

Commissioner of Correction Hall and Essex County Sher-

iff Cahill appeal from an order by the district court man-

dating certain changes in the Essex County Jail and House

of Correction (hereafter ‘‘Essex’’). Sheriff Cahill filed

no brief in support of his appeal; he was represented at

oral argument where his counsel stated that the sheriff’s

position was ministerial only and that he has tried to

comply with the court order to the extent within his power.

The Essex County Commissioners, who have not appealed

from the district court order, control the purse strings,

not the sheriff. The Commissioners, we were informed at

oral argument, have appropriated funds to effectuate the

changes for which they are responsible. Our opinion is

addressed primarily to points raised in defendant Hall’s

brief.

Kssex, constructed in 1815 with an addition in 1884,

houses approximately eighty-five prisoners in the Ilouse of

Correction and approximately twenty-five pretrial de-

tainees in the Jail. Plaintiffs-inmates brought suit under

42 U.S.C. § 1983 alleging numerous unconstitutional con-

ditions and practices.

The district court found conditions at Essex to fall below

constitutional minimum requirements. After viewing Es-

sex, he ordered specific improvements relating to fire pre-

vention and protection, health, recreation, and sanitation.

The court found the most pressing problem to be the fire

hazard: The structure is divided into four tiers; the only

exits from the cells are through the central stairwell at one

end of the building and from the floor level into the exercise

yard. The floors of the catwalks are tongue and groove

pine, covered with several layers of old paint and, in some

cases, flammable floor covering. The cells must be unlocked

individually. The two fire hoses on the stairwell would

be totally ineffectual if there were either fire or extensive

A-3

smoke in the stairwell. The cells are equipped with mat-

tresses which are composed either of flammable ticking

or of a foam which exudes highly toxic gas when ignited.

There is only one flush toilet for the approximately 130

inmates. No plumbing at all exists in the cells. Inmates

are provided a plastic pail for excrement, a water pitcher

and a plastic basin. Absence of privacy when one is engaged

in personal functions is only one of the results of this

system.

There are only two sets of shower stalls, each with three

shower heads. The court found that existing facilities would

permit the installation of at least three more enclosed flush

toilets and sinks. This would help alleviate the difficulties

presented by the present plumbing arrangements. The trial

judge found that inmates were not always issued the re-

quired pticher, basin, towel, sheets, and blankets upon

admission.

Kitchen screens were found to be filthy and storage of

food did not always comport with health requirements con-

cerning separation of food and cleaning materials. Many

of the windows in the cell area were without glass, being

covered instead with dirty screens or dirty plastic sheeting

which was frequently torn. Such conditions drastically re-

duce the amount of sunshine in the cells.

Prisoners are allotted fifteen hours per day out-of-cell

time; pretrial detainees are permitted ten and one-half

hours per day for three days a week, seven and one-half

hours for the alternating three days, and fifteen hours on

Sunday. :

The district court directed that certain changes be imple-

mented to bring Essex within constitutional bounds.

I.

Defendant Hall moves us to strike him as a party de-

fendant because, he claims, he cannot be held responsible

for denying plaintiffs their constitutional rights. The Com-

A-4

missioner construes too narrowly his statutory duties. See

Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196,

1199 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42

L.Ed.2d 189 (1974). Under Massachusetts law, the Com-

missioner of Correction has supervisory responsibility for

all state correctional facilities, Mass. Gen. Laws ch. 124

§ 1(a), and is charged with promulgating minimum stand-

ards for the care and custody of persons committed to those

facilities. Mass. Gen. Laws ch. 127 § 1A. Should he find

any facility in violation of those minimum standards, he is

instructed to seek compliance by resort to the specific statu-

tory enforcement procedures of Mass. Gen. Laws ch. 127

§ 1B (set out in the margin below’). Mass. Gen. Laws

ch. 124 § 1(d). As Commissioner, he has an express duty

to establish rules and regulations relating to sanitation,

safety, recreation, classification, care and custody of the

persons committed to the correctional facilities. Mass. Gen

Laws ch. 124 § 1(q). Plaintiffs have alleged that, by failing

* Mass. Gen. Laws ch. 127 § 1B. Inspection of county correctional

facilities; compliance with minimum standards; report; notice of

violations; enforcement procedure

At least once each six months the commissioner or his

delegate shall inspect each county correctional facility to deter-

mine compliance with minimum standards, . .

If, in the opinion of the commissioner, any county cor-

rectional facility does not comply with the standards established by

him for county correctional facilities, the commissioner shall give

notice of the alleged violation to the sheriff and the county com-

missioners of the county in which such facility is located .. . . Said

notice shall specify the particular standards that in the commis-

sioner’s opinion have not been met by such facility. The officials

so notified shall have the right to be heard by the commissioner

with regard to the alleged violation and shall have a reasonable

period of time to remedy any such violation. If, in the opinion of

the commissioner, the facility has not been brought into compliance

with the aforesaid standards within a reasonable period of time

from the date when notice of their violation is given, the commis-

sioner may petition the Superior Court in equity in the county in

which such facility is located for an order to close the facility

or for other appropriate relief. The Superior Court shal} have

jurisdiction to enter such an order.

to promulgate and enforce proper statutory standards, de-

fendant Hall caused them to suffer the unconstitutional

conditions of which they complain.

Defendant Hall argues, relying on Rizzo vy. Goode, 423

U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), that there

is an insufficient causal link between the constitutional vio-

lations and any action or inaction on his part. He argues

that his mandate is only to promulgate standards and in-

spect the facility and that his failure to do so does not

have constitutional implications. He cannot so easily elude

his mandate. Surely, if the Commissioner had promulgated

standards which fell below a constitutionally permissible

level, there can be no serious dispute but that this would

constitute the establishment of a policy or practice open to

attack by plaintiffs. Cf. Rizzo v. Goode, supra, 423 U.S. at

371, 96 S.Ct. 598. Conversely, there would exist no consti-

tutional grievances if the Commissioner were in conformity

with his statutory duties, viz., to promulgate and enforce

minimum (which of necessity means, at the very least,

constitutional) standards. We are faced with a situation

where the Commissioner of Correction has statutory re-

sponsibility over precisely the conditions giving rise to the

Violations. We are not confronted with sporadic incidents,

over which the Commissioner might properly claim to have

no knowledge or control.? Rather, we are dealing with the

pervasive failure of responsible authorities to maintain

Essex in conformity with constitutional requisites. The

? Other courts which have found supervisory personnel in posi-

tions such as defendant Hall’s proper party defendants, post Rizzo

v. Goode include: Miller v. Carson, 563 F.2d 757 (5th Cir. 1977) ;

Welsch v. Likins, 550 F.2d 1122, 1131 (8th Cir. 1977); [linois

Migrants Council v. Pilliod, 540 F.2d 1062, 1065 (7th Cir. 1976),

modified on other grounds, 548 F.2d 715 (7th Cir. 1977); Sims v.

Adams, 537 F.2d 829, 831-833 (5th Cir. 1976) ; Santiago v. City

of Philadelphia, 435 F.Supp. 136, 150-155 (D. Pa. 1977). Cf. United

States ex rel. Wolfish et al. v. Levi, Nos. 77-2035 and 77-2135, 573

F.2d 118 (2d Cir. Jan. 24, 1978).

A-6

causal nexus between Hall’s acts or failure to act and the

constitutional infirmities is clear.*

A natural consequence of Hall’s failure to comply

with his statutory duties to promulgate and enforce mini-

mum standards is that conditions would fall below a con-

stitutionally allowable limit. We emphasize what is implicit

in the foregoing analysis, i.e., that Hall is a proper defend-

ant because of his own statutory duty and subsequent fail-

ure to act (and the consequent constitutional injury) and

not on the basis of tie act of others. We thus do not face

the issue of whether it is proper to predicate liability under

section 1983 on the basis of respondeat superior. Cf. Kostka

v. Hogg, 560 F.2d 37, 40 n. 1 (1st Cir. 1977).

Il.

Defendant Hall next urges us to hold that there is no live

case or controversy because plaintiffs lack standing to sue.

The basis for this assertion lies in defendant’s view of the

nature of the injury which plaintiffs must sustain for their

allegations to rise to the status of an actual case or contro-

versy. The requisites for standing were capsulized in Baker

v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663

(1962). A party must allege ‘‘a personal stake in the out-

come of the controversy as to assure that concrete adverse-

ness which sharpens the presentation of issues ...’’ See

also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.

26, 37-39, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ; Buckley v.

Valeo, 424 U.S. 1, 11-12, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) ;

* As Mr. Justice Douglas pointed out after a thorough historical

exegesis, the Civil Rights Acts of 1871 were intended to safeguard

constitutional rights which state authorities might deny by neglect-

ing to enforce state statutes as well as by more affirmative action.

Monroe v. Pape, 365 U.S. 167, 180, 81 8.Ct. 473, 5 L.Ed.2d 492

(1961). See also Developments in the Law—Section 1983 and

Fedcralism, 90 Harv. L. Rev. 1133, 1153 (1977). Failure to act

where there is a duty to act can give rise to an actionable claim

under section 1983.

A-7

Rizzo v. Goode, supra; Warth v. Seldin, 422 U.S. 490, 498-

500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

It cannot be doubted that features relating to gen-

eral health and sanitation within Essex are of prime inter-

est to inmates incarcerated there. Nor can there be any

serious dispute that plaintiff inmates have a personal stake

in the fire-worthiness of the structure in which they are

housed. Defendant Hall inaptly construes the requirement:

of injury as requiring proof that the inmates inevitably will

suffer physical injury or death from fire before they have

standing to challenge the hazardous fire conditions which

the district court found existing at Essex. We find this

proposition to fall far below contemporary expectations of

constitutionally-mandated humane treatment. One need

not wait for the conflagration before concluding that a real

and present threat exists.‘

III.

We next examine whether the district court ex-

ceeded the scope of its discretion by ordering the closing

of Essex if certain mandated corrections are not imple-

mented. Federal courts have long exercised equity powers

and in the key case of Swann vy. Charlotte-Mecklenburg

Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28

I..Ed.2d 554 (1971), the Court highlighted the authority

federal courts have when confronted with constitutional

abridgements. ‘‘Once a right and a violation have been

* We note that evidence submitted to the district court showed

that there had been a serious fire at Essex in February, 1975, which

destroyed four cells, the floor, and electrical wiring. There was also

affidavit testimony that inmates set small fires in the cells and that,

at least upon one occasion, an inmate was so overcome by heat that

he could not get by the fire to reach the escape door. He was trapped

in the rear of the cell block until the fire was put out. As we noted.

supra at 16, the district judge personally inspected Essex and

concluded that it presented a serious fire hazard. Defendants have

given us no basis for finding the court’s conelusions to be clearly

erroneous.

“A-8

shown, the scope of a district court’s equitable powers to

remedy past wrongs is broad, for breadth and flexibility

are inherent in equitable remedies.’’ Jd. at 15, 91 S.Ct. at

1276. The district court properly recognized the delicate

balance which must be maintained on two levels: as between

the judiciary on the one hand and the legislative and execu-

tive on the other, and the special delicacy required in a

federal system such as ours. We do not think that the

court exceeded its equitable powers.

The changes ordered by the court were narrowly directed

to the prime areas of concern. The court ordered specific

fire safety measures ;5 glazing of windows with clear glass

in lieu of the previous (frequently torn) opaque plastic

covers; screens on windows in the kitchen; proper cleaning

of food storage areas; enclosed toilet and sink for use by

the inmates at the site of existing water and sewer lines.

The court also ordered an increase in the Jail staff for the

dual purpose of providing adequate fire prevention protec-

tion and of permitting pretrial detainees out-of-cell time

substantially equivalent to that permitted inmates in the

House of Correction (persons already convicted of a crime).

In reviewing the district court’s order, we note several

points. First, we understand from oral argument that

those portions of the order which called for implementation

° We take this occasion to expr.ss our concern at counsel’s in-

accurate characterization of a case relied on in the brief. Specifi-

ally, we refer to defendant-appellant Hall’s brief at 24, where

counsel states that, although Judge Garrity found a fire hazard at

the Charles Street Jail, Inmates of Suffolk County Jail v. Eisen-

stadt, 360 F.Supp. 676 (D. Mass. 1973), similar to that found by

Judge Skinner at Essex, Judge Garrity, ‘‘refrained from ordering

any changes.’’ Counsel then states that this judicial ‘‘restraint exer-

cised by Judge Garrity should properly have been exercised by

Judge Skinner in the instant ease. As counsel unmistakably knows,

‘Judge Garrity ordered the Charles Street Jai! closed because of the

unconstitutional conditions he found there. To assert, as counsel

does in his brief, that Judge Garrity found a fire hazard and did

nothing about it, substantially understates Judge Garrity’s re-

medial concerns.

AD

by October 31, 1977, and December 31, 1977, have been

effectuated. The only parts of the order outstanding require

a second egress to be built, wooden stairs in the cell area

to be replaced with noncombustible material, and installa-

tion of an electronic system for opening cell doors from a —

central location in case of fire. We leave undisturbed those

parts of the order already implemented. Those which vet

remain to be carried out are affirmed. This is not a case.

where the district court has substituted its own notions of

what might be desirable in a corrections setting for that

of the prison authorities. Cf. Nadeau v. Helgemoe, 561 F.2d

411, 417 (1st Cir. 1977). The court wisely did not unneces-

sarily intrude into provinces best left to administrative

expertise. See e.g., Jones v. N. C. Prisoners’ Labor Union.

433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977); Pro-

cunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 40

L..Ed.2d 224 (1974); United Siates ex rc! Wolfish et al. v.

Levi, Nos. 77-2035 and 77-2135, 573 F.2d 118 (2d Cir. Jan.

24, 1978); Newman y. State of $la., 559 F.2d 283, 287 (5th

Cir. 1977).

Faced with unconstitutional conditions, the court ordered

that the facility be brought within constitutional param-

eters. The remedy does not exceed the constitutional viola-

tion. See Milliken v. Bradley, 418 U.S. 717, 744-745, 94 S.Ct.

3112, 41 L.Ed.2d 1069 (1974) (Milliken I). The mandated

changes are modest in nature, fair to the inmates, and not

oppressive for the corrections authorities. We conclude

that, on the facts of this case, the order of the district court

is ‘‘reasonable, feasible and workable.’’ Swann v. Board

of Education, supra, 402 U.S. at 31, 91 S.Ct. 1267.

We do not understand defendant Hall’s complaint to lie

with the specifically mandated changes, but rather with the

trump card held by the district court, namely, the threat

of ordering Essex closed if the changes are not made.

We find neither error nor abuse of discretion in the court’s

A-10

action. A district court ean order changes which will force

the state to expend funds. Milliken v. Bradley, 433 U.S.

267, 288-291, 97 S.Ct. 2749 (1977) (Milliken 11); Edelman

v. Jordan, 415 U.S. 651, 667-668, 94 S.Ct. 1347, 39 L.Ed.2d

662 (1974); Martinez Rodriguez v. Jimenez, 537 F.2d 1

(1st Cir. 1976). If the legislature should balk at allocating

funds for court ordered changes, an appropriate remedy

for a court to choose, at least conflicting with principles

cf federalism and with the separation of powers, is to

order the facility closed. See Rhem vy. Malcolm, 507 F.2d

333,.339 (2d Cir. 1974); Inmates of the Suffolk County Jail

v. Kearney, 573 F.2d 98 (1st Cir., March 17, 1978). As

‘here has been admirable compliance with the district court

order thus far, we are not confronted by an actual contro-

versy concerning the closure order. Accordingly, we fore-

bear consideration of what specific conditions might give

rise to such an order. U.S. Const. art. ITI, § 2, el. 1.

We briefly consider defendant Hall’s assertion that the

court should not have kept the closure of Essex as a pos-

sible remedy since a number of the inmates had indicated

in a letter written to a local newspaper that they preferred

Essex to a more distant facility. The fact that some inmates

might prefer unconstitutional conditions in no manner les-

sens the district court’s responsibility when confronted with

a situation which offends the Constitution. Swann v. Board

of Education, supra, 402 U.S. at 16, 91 S.Ct. 1267.

IV.

Finally, defendant argues that the district court should

not have ordered that additional staff be hired. In issuing

its order, the court stated that the additional staff could be

used to increase fire protection and to afford more out-of-

cell time to the detainees.

As noted in Feeley v. Sampson, 570 F.2d 364 at p. 369

(1st Cir. 1978), many courts have held that pretrial de-

tainees are to be confined only to the degree necessary to

; A-11

guarantee their presence at trial. See Duran y. Elrod, 542

2d 998 (7th Cir. 1976); Rhem v. Malcolm, supra, 507 F.2d

at 336; Inmates of the Suffolk County Jail v. Eisenstadt,

360 F.Supp. 676, 685-688 (D. Mass. 1973). However, the

district court’s order in the present case may be affirmed

even under less rigorous standards. ‘‘Restrictions upon

detainees that serve no proper purpose, but merely reflect

the lack of imagination or energy of local officials, are

properly the subject of judicial correction.’’ Feeley vy.

Sampson, supra, at 371. Here, the sheriff and jail officials

indicated that they would be willing to grant more out-of-

cell time to detainees presenting no special security prob-

lems if provided with additional supervisory staff. The

court left it to the discretion of the sheriff how he might

use these resources to arrange for additional out-of-cell

time. Given the flexibility of these arrangements, we can-

not say that the district court’s requirement was, under all

the cireumstances, unreasonable. Nor can we find in the

record that the state has articulated any constitutionally

suflicient reason for withholding out-of-cell privileges to

pretrial detainees substantially equivalent to those pro-

vided the convicts at Essex. Therefore, we find no error

in the court’s order to hire additional staff for the dual

purpose to help alleviate the fire hazard at Essex and to

maximize out-of-cell time for pretrial detainees.

The order of the district court is affirmed.

i a i

A-12

Levin H. Camppet, Circuit Judge (concurring).

The district court’s resolution recognizes that jail au-

thorities are constitutionally bound to maintain a safe and

humane environment, but at the same time reflects a proper

sensitivity to the narrow role which a court should play in

these matters. While I thus coneur with my brethren in

affirming the decision below, I wish to make it clear that

[ would not agree that merely because sentenced prisoners

are given a certain amount of out-of-cell time, detainees

are constitutionally required to receive the same. A mecha-

nistie approach to constitutional analysis seems to me in-

appropriate. See generally Feeley vy. Sampson, 570 F.2d

364 (1st Cir. 1978). There are plausible reasons why a

short-term detainee might reasonably be subjected to

greater limitations than those imposed upon a regular in-

mate. Some regular inmates, like those serving short sen-

tences for misdemeanors, are not security risks. Detainees,

on the other hand, are likely to be recidivists or persons

charged with serious crimes. Furthermore, long-term sen-

tenced prisoners are more obviously entitled to opportuni-

ties for exercise and recreation than persons being held

for a few days or weeks. Thus I think the kind of simple

comparison my brothers would make, while reasonable

enough on occasion, is no substitute for a more comprehen-

sive analysis.

In this case, however, the authorities principally con-

cerned—the county commissioners and sheriff—have not

seriously objected on security grounds, or even on grounds

of expense, to the district court’s order in regard to out-of-

cell time, and I think it can be fairly assumed that the

district court’s determination rests on a reasonable and

practical view of what can and should be done, in keeping

with principles set forth in Feeley, rather than upon a

mere mechanical comparison.

A-13

APPENDIX B

JAMES DiMARZO, ET AL.,

PLAINTIFFS,

v.

ROBERT E. CAHILL, ET AL.,

DEFENDANTS.

PRELIMINARY INJUNCTION

July 8, 1977

Sxuyner, D.J.

This matter came on to be heard on the plaintiffs’ mo-

tion for a preliminary injunction, which was consolidated

with a hearing on the merits with respect to the specific

matters described in the annexed Findings and Memoran-

dum, and after consideration thereof, and in accordance

with said Findings and Memorandun, it is OrDERED, Ap-

JUDGED AND DEcREED:

That the Essex County Jail and House of Correction at

Salem be closed, and all the inmates thereof either re-

moved or released unless:

1. By October 31, 1977, the following conditions

shall have been met.

a. The staff of the Jail shall have been sufficiently

increased in the opinion of the Sheriff and

Deputy Master to permit out-of-cell time for

detainees, who are not special security risks,

which is substantially equivalent to the out-of-

cell time permitted inmates of the House of

Correction; and

b. The staff of the institutions shall have been

sufficiently increased to provide, in the opin-

ion of the Sheriff and Deputy Master, ade-

quate fire prevention, detection and super-

A-14

vision of the release of inmates in the event

of fire; and

. The institutions shall be equipped with ade-

quate electronic smoke detectors and zone

monitors connected to a central panel in the

main office of the Jail, which shall be manned

24 hours a day; and

d. All of the cells in the institutions shall be furn-

ished with fire retardant non-toxic mattresses ;

and

e. Two Scott air packs shall be available at all

times in the institutions, and at least two mem-

bers of the institutions’ staff who have been

trained in their use shall be on duty at all times,

day and night; and

. The institutions shall regularly hold fire drills

at unannounced and random times, both day

and night, not less than once a month; and

g. The Sheriff and the Deputy Master shall have

instituted some control system to insure that

every inmate is promptly issued the proper

equipment for his cell, and that the sanitation

rules of the institutions are scrupulously car-

ried out, and

h. All windows shall have functioning frames and

be glazed with clear glass; and

i. The window screens in kitchen and food storage

areas shall have been cleaned.

By December 31, 1977,

a. An enclosed toilet and a sink shall have been

installed at each present location of waste

receptacles; i.e., at the site of existing sewer

and water lines; and

b. Flame retardant paint shall have been applied

to all wooden floors; and

fo

—

mae tae ne

a a ta ee hc

oe

A-15

e. An additional standpipe with hoses shall have

been installed on the Jail side of the facility.

3. By June 6, 1978, a second egress shall have been

constructed on the Jail side of the institution

opening into a fenced yard, and all wooden stairs

in the cell area replaced with stairs made of non-

combustible material.

4. By December 31, 1978, an electric or electronic.

system shal! have been installed whereby all of

the cell doors can be opened simultaneously from a

central location.

All plans for physical alterations to the institutions

shall be promptly submitted to the plaintiffs’ attorney

at every stage, from preliminary plan to final plan, and

upon motion, the court shall hold hearings on the sufficiency

thereof.

Compliance with the above conditions shall be evidenced

by sworn affidavits of the Sheriff and the Deputy Master

filed on or before the day set for compliance in each case.

Such affidavit shall be prima facie evidence of compliance,

but on motion of the plaintiffs, the court will hold a hearing

on the issue of compliance.

Conditions 2 through 4 above shall be deemed waived

if on the date established for compliance all of the follow-

ing events have occurred:

A. The County Commissioners have determined to

build a new Jail and House of Correction; and

B. Funds for the construction thereof have been

authorized and are actually available on hand; and

C. A site for the new Jail and House of Correction

has been acquired and all local and state approval

for such use thereof secured; and

D. Architectural and engineering plans have been

prepared; and

i a i i

A-16 ‘ ‘A-17

K. A contract for the construction of the new Jail Civil Action

and House of Correction has been executed, which No. 77-939-S

contract shall provide for a time within which Unrrep States District Court

the work is to be completed. District oF MassacHUSETTS

If the events described in paragraphs A through E JAMES DIMARZO, ET AL.,

shall have occurred, the order closing the Salem Jail and | Plaintiffs,

House of Correction shall be stayed a reasonable time to | v.

permit the completion of a new facility. ROBERT F. CAHILL, ET AL,

Watrer Jay SKINNER Defendants.

United States District Judge

| . FINDINGS OF FACT AND MEMORANDUM

ON MOTION FOR PRELIMINARY INJUNCTION

July 8, 1977

_ Sxryver, D.J.

This complaint by inmates of the Essex County Jail

and House of Correction at Salem seeks the amelioration

of conditions at those institutions which are alleged to be

in violation of the constitutional rights of the plaintiffs.

Some of the plaintiffs are inmates of the Jail, that is, ac-

cused persons awaiting trial, and some are inmates of the

Ifouse of Correction, that is, persons who are serving

sentences after conviction of crime. Most of their com-

plaints are common to the entire institution, but the Jail

inmates have additional allegations of deprivation which

will be dealt with separately, The matter is before me on

the plaintiffs’ motion for a preliminary injunction.

Testimony was offered on so much of the complaint as

deals with toilet and washing facilities, sanitation in the

preparation and storage of food, cell furnishings, food ser-

vice to disciplinary and protective custody prisoners, fire

hazard, lack of proper windows, and treatment afforded

detainees in the Jail which is less favorable than that

WOR ee etn waited

Kan sh i NS eee ine CEN athe See

A-18

afforded convicts in the House of Correction. I also took

a view with counsel, the Sheriff, the Deputy Master, and

the plaintiffs’ expert witness on matters of sanitation and

safety, who was an inspector of the Massachusetts De-

partment of Health. There is little dispute over the facts.

I find them to be as follows:

The building housing these two institutions was con-

structed in 1815, with an addition in 1884, The inmates

are housed in a single wing. Down the center of the struc-

ture there are two rows of cells, back to back, each four

tiers high. Access to each tier, except the ground floor

tier, is by a catwalk. The cells open oito the catwalk. Be-

tween the catwalks and the outside wall of the building there

is an open space which runs the full height of the struc-

ture. Light and air come in (in varying degrees) through

Windows in the outside walls. Many of these windows are

without glass, covered with dirty plastic sheeting and dirty

screens. My visit was in May, and the ventilation was not

objectionable, but it is likely to be otherwise in winter. The

Deputy Master testified that new windows and frames are

presently being fabricated on the House of Correction

side, and that the existing frames on the Jail side, which

are considered sound, will be reglazed this summer.

The House of Correction houses approximately eighty-

eight prisoners and the Jail approximately twenty-five

detainees, all males in both institutions. There is but one

flush toilet for all of these inmates. There is no plumbing

whatsoever in the cells. Each inmate is supposed to have in

his cell a two-quart plastic water pitcher, a plastic wash-

basin and a covered plastic bucket for excrement. Anyone

using the plastic bucket in his cell is visible to persons on

the catwalk. In the several double cells, there is no privacy

whatsoever. There are three receptacles on the House of

Correction side for the dumping of material from the

plastic bucket and washbasin. These are connected to a

A-19

sewer line, and there is hot water available at these loca-

tions to clean the receptacles and the buckets. Cleaning

agents and scrub brushes are provided. Jail inmates may

cross over to the House of Correction for the purpose of

using these facilities. Inmates of the two lower tiers of

the House of Correction have direct access to the single

flush toilet when they are not locked in their cells. Other

inmates must be released from their cell blocks and escorted -

to the toilet. Requests to be released for this purpose are

freely granted if a guard is available for the purpose.

There is no other plumbing in any of the cell blocks

except for two sets of shower stalls, each with three

shower heads. The Deputy Master testified, and I find,

that the construction of the building is such that extension

of water and sewer lines to each cell would not be feasible.

Experiments with portable toilets were conducted in the

past, but the results were unsatisfactory and the type used

was removed at the request of the inmates, The Deputy

Master has ordered several of a new type of portable

toilet, which will be furnished to inmates on request on

an experimental basis. The inmates should be informed

by public posting of the availability cf these devices.

Interior plumbing is certainly the norm of American

life, even in prisons, and privacy in personal hygiene is

generally equated with minimal human dignity. Although

the staff and inmates appear to deal with the existing con-

ditions remarkably well, every reasonable step should be

taken to ameliorate them. It would be reasonably practical

to install at least three more enclosed flush toilets and

sinks at the sites of the dumping receptacles, where there

_are already water and sewer connections.

It is alleged, and on inspection I find, that new inmates

in the Jail are not always issued the required pitcher and

basin, towel, sheets and blankets as soon as they are ad-

mitted. The conditions are bad enough at best, and their

A-20

tenuous constitutional sufficiency is dependent upon meti-

culous compliance with the institutions’ own rules, An

order will enter requiring the Sheriff and Deputy Master

to take steps to ensure that each inmate, particularly in

the Jail, be issued the necessary equipment promptly upon

admission.

There are various lapses from good practice and proper

maintenance in the kitchen and food storage areas. One

of the most notable was the lack of covering on the ‘*dump-

ster’’ type garbage and trash receptacle stored just out-

side the kitchen. The Deputy Master informed me that

this situation will be corrected by the contractor. There

is an accumulation of decades of dirt hanging in streamers

from the kitchen window screens. These must be cleaned,

and I would suppose that an inmate work crew could ac-

complish this in a short time. The other failures to meet

the standards of the Department of Health are relatively

minor, and while they should as a matter of policy be cor-

rected, they do not fall to the level of a constitutional vio-

lation warranting my intervention.

The plaintiffs make much of the fact that the House of

Correction inmates are allowed out of their cells for fifteen

hours a day, but that Jail inmates are allowed out of their

cells only ten and one-half hours three days a week, seven

and one-half hours for the alternating three days, and

fifteen hours on Sunday. The Sheriff replies that Jail in-

mates present special problems of supervision. Some of

them are awaiting trial on serious charges, such as armed

robbery and murder, and represent greater security risks

than do the sentenced prisoners. There is relatively rapid

turnover in the Jail, and the staff does not get as much of

a chance to evaluate the trustworthiness of the Jail inmates.

Notwithstanding these stated problems, the Sheriff agrees

that he would provide out-of-cell time for all the Jail in-

mates who were not demonstrable security risks equal to

LIN at te mae ON

corre tee

A-21

that in the House of Correction if he had additional super-

visory staff. Even seven and one-half hours time out of the

cell is considerably more generous than the time allotted

in the cases cited by plaintiffs. | am reluctant by rigid

fiat to interfere with the exercise of the Sheriff’s judg-

ment in this respect, at least as a preliminary matter, and in

view of the Sheriff’s expressed intention, I will enter an

order providing for additional staff in the expectation that

he will make proper use of it.

The principal issue in this case, in my opinion, is the

fire hazard at the Jail. The only exits from the cell blocks

are through the central stairwell at the inside end of the

wing of the building containing the cell tiers, and from the

floor level of the House of Correction to the exercise yard.

The floors of the catwalks are tongue-and-groove pine

boarding covered with layers of old paint and, in some

cases, flammable composition floor covering. In each cell

there is either a flammable ticking mattress or a foam

mattress which will give off highly toxic fumes if ignited.

The inmates, particularly in the House of Correction, have

equipped their cells with TV’s, radios and stereo phono-

graphs, and strung their cells with extension cords leading

from the single light socket in each cell. The inmates com-

monly smoke cigarettes in the cells.

In the event of a fire, when the inmates were in their cells,

each cell would have to be unlocked individually by members

of the staff. With the reduced staff available at night, a

considerable time would elapse before the inmates could

be evacuated. There are two fire hoses located on the

stairwell leading to the cell blocks. They are long enough

to reach any part of the cell area. They would be of no

assistance if there was fire or extensive smoke in the stair-

well itself.

The parties all agree that a serious fire hazard to the

inmates exists. I have not been cited to a case specifically

A-22

holding that subjecting jail inmates and convicts to ex-

cessive fire hazard is a violation of their constitutional

rights, although the fire hazard is mentioned by Judge Gar-

rity in the Charles Street Jail case, /nmates of Suffolk

County Jail v. Eisenstadt, 360 F. Supp. 676 (D. Mass. 1973),

aff'd, 494 F.2d 1196 (1st Cir.), cert. denied, 419 U.S, 977

(1974). I have no doubt that as a matter of both the

Kighth and the Fourteenth Amendments, the defendants

have a duty to persons incarcerated against their will not

to expose them to extraordinary risks of fire.

A question arises as to remedy, I called all the parties

to confer with me concerning various steps which might

be taken. There is general concurrence on interim proce-

dures. The Commissioner of Correction takes the position,

however, that no extensive investment, e.g., for electrically

controlled cell doors which could be simultaneously opened

from a control panel, should be made in what is basically

a hopeless structure, He believes that there will be a new

Jail and House of Correction in Essex County in the rela-

tively near future. The Chairman of the County Commis-

sioners is opposed to the construction of a new jail ‘‘at

this time’’ because of the burden on the taxpayers. There

have, in fact, been proposals made for a new Essex County

Jail and House of Correction for at least thirty years, but

they have all bogged down on the issues of location and

expense, A request for the required legislative approval

of electric doors was rejected.

it is this long continuing political stasis which brings

this issue before a federal court, an institution singularly

ill-suited to its resolution.

At issue in the case is effective definition and enforce-

ment of those rights so extensively reviewed in Inmates

of Suffolk County Jail, supra; Rhem vy. Malcolm, 371 F.

Supp. 594 (S.D. N.Y.), aff’d and modified, 507 F.2d 333

(2d Cir. 1974), and other cases cited by plaintiffs, partic-

SS ee a on

ee

A-28

ularly the rights of jail detainees who are still entitled

to the presumption of innocence. Notwithstanding the gen-

eral statements of principle in those cases, the restraint on

a criminal defendant necessary to insure his presence at

trial can not be practically freed from most of the manifes-

tations of the same ‘‘punishment”’ as is imposed on convicts

so long as such defendants are housed in jails. This limi-

tation has been recognized by the courts, which in practice.

have implicitly recognized that the enforceable component

of a detainee’s Fourteenth Amendment right is the re-

quirement that he be treated at least no worse than con-

viets who are housed in the same institution,* and further

that he in no cireumstances be subject to conditions which if

imposed on convicts would violate the Kighth Amendment’s

prohibition against cruel and unusual punishment,

Part of the problem is that the defendants in this case

have no independent power to raise money, but must go to

the General Court of the Commonwealth for approval of

the county budget, or in the Commissioner’s ease, for ap-

propriations, The members of the General Court, who

control the purse strings, are not before the court.

Milliken v. Bradley, 45 U.S.L.W. 4873, 4879-80 (U.S.

June 27, 1977), holds that the court may order remedies

which will require the state to spend money. The case says

nothing about the enforcement of the order particularly

when the raising of funds may be frustrated by persons

who are not parties to the suit. Cf. Rhem vy. Malcolm, 507

I".2d 338, 341 (2d Cir, 1974).

One thing that I can order and enforce is the closing of

the institutions, Rhem vy. Malcolm, supra. This would

result in considerable confusion and hardship, as indicated

by a letter in evidence from many inmates, and very

*And to an extent not entirely clear, no worse than convicts in

the same state correctional system. Inmates of Suffolk County

Jail, supra, 688.

A-24

probably result in serious overcrowding in other institu-

tions or the forced release of persons who should be in

custody. The other Essex County Jail and House of Cor-

rection in Lawrence is already overcrowded. It would not

be the end of the world, however, and if the defendants

provide no other constitutional solution, I am prepared to

do it.

It is of paramount importance that in the delicate task

of intervening in the administration of state institutions,

federal courts observe with rigorous precision the line

between what is clearly desirable as a matter of common

sense and policy, and what is constitutionally required.

While it appears to me that as a matter of common

sense Essex County should have a new Jail and House of

Correction rather than investing large sums in this ancient

facility at Salem, [ am also of the opinion that it is pos-

sible to bring the Salem facility up to constitutionally min-

imum standards, The establishment and maintenance of

those standards are the limit of my concern. The choice

of means is for the political governors of Essex County.

Since there appears little likelihood of additional evi-

dence being offered on the merits on the aspects of the

ease discussed above, the hearing on the preliminary in-

junction, ineluding the conference among the parties,

counsel and the court, is hereby consolidated with the

hearing on the merits, pursuant to Rule 65(a).

Accordingly, based on the recommendations of the parties

with respect to fire protection, and upon the foregoing

facts, I order a preliminary injunction to issue in the terms

filed herewith.

s/Wa.ter Jay SKINNER

United States District Judge

A-25

APPENDIX C

Statutes

CHAPTER 125 — Correctional Institutions

of the Commonwealth

§1. Definitions

As used in this chapter and elsewhere in the general laws,

unless the context otherwise requires, the following words

‘hall have the following meanings:

(a) ‘‘administrator’’, chief administrative officer of

a county correctional facility ;

(6) ‘‘eommissioner’’, the commissioner of correction:

(c) ‘‘eommitted offender’’, a person convicted of a

crime and committed, under sentence, to a correctional

facility ; )

(7) ‘‘correctional fav “lity’’, any building, enclosure,

space or structure used for the custody, control and re-

habilitation of committed offenders and of such other per-

sons as may be placed in custody therein in accordance

with law;

(e) ‘correctional institution’’, correctional facility ;

(f) ‘‘eounty correctional facility’’, any correctional

facility owned, operated, administered or subject to the

control of a county of the commonwealth;

(9) ‘‘department’’, the department of correction ;

(h) ‘‘yainful employment’’, employment within or

without any correctional facility including but not limited

to labor for the operation and maintenance of any correc-

tional facility ;

(i) ‘‘inmate’’, a committed offender or such other

person as is placed in custody in a correctional facility in

accordance with law;

(j) ‘institution’, facility ;

(k) ‘‘penal institution’’, correctional facility ;

A-26

(1) ‘‘prison’’, correctional facility ;

(m) ‘‘prisoner’’, a committed offender and such other

person as is placed in custody in a correctional facility in

accordance with law;

(n) ‘‘state correctional facility’’, any correctional fa-

cility owned, operated, administered or subject to the con-

trol of the department of correction, including but not

limited to: Massachusetts Correctional Institution, Wal-

pole; Massachusetts Correctional Institution, Norfolk;

Massachusetts Correctional Institution, Coneord; Massa-

chusetts Correctional Institution, Framingham; Massachu-

setts Correctional Institution, Bridgewater; Massachusetts

Correctional Institution, Plymouth; Massachusetts Correc-

tional Institution, Warwick; Massachusetts Correctional

Institution, Monroe;

(0) ‘‘state prison’’, Massachusetts Correctional In-

stitution, Walpole;

(p) ‘‘superintendent’’, the chief administrative offi-

cer of a state correctional facility.

CHAPTER 124

Powers and Duties of the Department of Correction

$1. Powers and duties of commissioner

In addition to exercising the powers and performing the

duties which are otherwise given him by law, the commis-

sioner of correction, in this chapter called the commis-

sioner, shall:

(a) designate, establish, maintain, and administer

such state correctional facilities as he deems necessary,

and may discontinue the use of such state correctional

facilities as he deems appropriate for such action; provided

that no state or county correctional facility named in para-

A-27

graph (n) of section one of chapter 125 shall be discon-

tinued without specific authorization and approval of the

General Court ;

(b) maintain security, safety and order at all state

correctional facilities, utilize the resources of the depart-

ment to prevent escapes from any such facility, take all

necessary precautions to prevent the occurrence or spread

of any disorder, riot or insurrection at any such facility,

including but not limited to the development, planning, and

coordination of emergency riot procedures with the com-

missioner of public safety, and take suitable measures for

the restoration of order;

(c) establish and enforce standards for all state

correctional facilities;

(d) establish standards for all county correctional fa-

cilities and secure compliance with such standards, if neces-

sary, through the enforcement prov isions of section one B

of peat one hundred and twenty-seven;

(e) establish, maintain and administer programs of

rehabilitation, including but not limited to education, train-

ing and employment, of persons committed to the custody

of the department, designed as far as practicable to prepare

and assist each such person to assume the responsibilities

and exercise the rights of a citizen of the commonwealth:

(f) establish a system of classification of persons

committed to the custody of the department for the purpose

of developing a rehabilitation program for each such

person;

(g) determine at the time of commitment, and from

time to time thereafter, the custody requirements and

program needs of each person committed to the custody of

the department and assign or transfer such persons to

appropriate facilities and programs;

(h) establish training programs for employees of the

department and, by agreement, other corrections personnel ;

A-28

(‘) investigate grievances and inquire into alleged

misconduct within state correctional facilities ;

(j) maintain adequate records of persons committed

to the custody of the department;

(A) establish and maintain progranis of researci,

statistics and planning, and conduct studies relating to

correctional programs and responsibilities of the depart-

ment ;

(1) utilize, as far as practicable, the services and re-

sources of specialized community agencies and other local

community groups in the rehabilitation of offenders, de-

velopment of programs, recruitment of volunteers and dis-

semination of information regarding the work and needs of

the department ;

(m) make and enter any contracts and agreements

necessary or incidental to the performance of the duties

and execution of the powers of the department, including

but not limited to contracts to render services to committed

offenders, and to provide for training or education for

correctional officers and staff:

(n) seek to develop civic interest in the work of the

department and educate the public and advise the general

court as to the needs and goals of the corrections process ;

(0) expend annually in the exercise of his powers,

performance of his duties and for the necessary operations

of the department such sums as may be appropriated there-

for by the general court;

(p) report annually to the secretary of human ser.

vices, the governor and the general court ;

(q) make and promulgate necessary rules and regula-

tions incident to the exercise of his powers and the per-

formance of his duties including but not limited to rules

and regulations regarding nutrition, sanitation, safety,

discipline, recreation, religious services, communication

—— LUlUlltt—~—“‘—i~C

A-29

and visiting privileges, classification, education, training,

employment, care, and custody for all persons committed

to correctional facilities.

CHAPTER 126

Jails, Houses of Correction and Reformation,

and County Industrial Farms

INSPECTION OF PRISONS

$1. County commissioners; inspection of prisons; duties

The county commissioners shall be inspectors of the

prisons in their counties. They shall twice in each year,

at intervals of not exceeding cight months, themselves or

by a committee of two of their members, visit all the prisons

in their county, and fully examine into everything relative

to the government, discipline and police thereof; and as

soon as may be after each inspection, the committee shall

inake and subscribe a detailed report to the commissioners

of the condition of each prison as to health, cleanliness and

discipline at the time of inspection, the number of prisoners

confined there within the preceding six months or since

the last inspection, the causes of confinement, the number

of prisoners usually confined in one room, the distinction,

if any, usually observed in the treatment of the different

classes of prisoners, the punishments inflicted, any evils or

defects in the construction, discipline or management of

such prisons, the names of prisoners who have been dis-

charged or pardoned or who have died or escaped, and

any violation or neglect of law relative to such prisons,

with the causes, if known, of the violation or neglect.

A-30

$2. Exhibition of prison books, documents and accounts;

examination of prison officers

When the commissioners or any of them visit any of said

prisons, the sheriff, master, keeper or other officer in charge

thereof shall admit then, when required, into every apart-

ment of such prison, exhibit all books, precepts, documents,

accounts and papers relative to the affairs of the prison or

to the detention or confinement of any person therein,

which may be required, and give such aid as they request

in the performancé of their duties. The commissioners or

their committee may examine on oath, administered by one

of them, either by written interrogatories, to be answered

in writing and subscribed, or otherwise as they may direct,

any officer, keeper or other person relative to the affairs

or management of any prison, and they may also converse

with any prisoner apart, and without the presence of any

officer or keeper.

§11. Rules; examination of accounts; records

The county commissioners of the several counties and

the penal institutions commissioner of Boston shall cause

the rules established for the management of the house of

correction and for the government of the prisoners therein

to be strictly observed, shall examine all accounts of the

aster relative to the expenses of the institution, and keep

a record of their official proceedings relative thereto.

JAILS, HOUSES OF CORRECTION, AND PRISONERS

316. Custody and control of jails and houses of correction;

jailer; assistants; bond

The sheriff shall have custody and control of the jails in

his county, and except in Suffolk county, of the houses of

correction therein, and of all prisoners committed thereto,

and shall keep the same himself or by his deputy as jailer,

master or keeper, and shall be responsible for them. The

STR. WO eae: Oe LY

A-31

jailer, master or keeper shall appoint subordinate assist-

ants, employees and officers, and shall be responsible for

them. In Suffolk county the penal institutions commis-

sioner shall appoint a master of the house of correction,

who shall hold office during the pleasure of said commis-

sioner. A sheriff, who acts as jailer, master or keeper, or

a jailer, master or keeper appointed by the sheriff, before

entering upon the performance of his duties as such, and

thereafter, at intervals of not more than one year, so long

as he continues so to act or to hold such office, as the case

may be, shall give to the state treasurer a bond, with such

sureties as the superior court shall order and approve,

conditioned faithfully to perform his duties.

TITLE VI

COUNTIES AND COUNTY OFFICERS

Chapter 34. Counties and County Commissioners

§ 3. Public buildings

Each county shall provide suitable court houses, jails,

houses of correction, fire-proof offices and other public

buildings necessary for its use, and suitable accommodations

for district courts, except that the county of Dukes need not

provide a house of correction and that Boston shall provide

necessary public buildings for Suffolk county. No courtroom

of the superior court shall contain a cage for defendants.

314. Additional powers.

In addition to such powers and duties as may otherwise

be conferred or imposed by law, the commissionrs may pro-

vide for erecting and repairing court houses, jails and other

necessary public buildings within and for the use of their

county, but no money shall be paid or liability incurred

therefor in excess of the amount specifically authorized by

the general court, except for emergency repairs, and no

bills for construction or enlargement of a jail, house of

| |

A-32

correction or reformatory shall be incurred or paid until

the plans therefor have been approved by the commissioner

of correction, except as otherwise provided. They shall

have authority to represent their county, and to have the

care of its property and the management of its business

and affairs in cases where not otherwise expressly pro-

vided; to sell and convey any real estate of the county by

deed, sealed with the county seal, signed and acknowledged

by them, or to lease any real estate of the county; to adop*

a county seal, which shall be in the custody of their clerk

and affixed to all processes requiring it.

CHAPTER 127

DEFINITIONS

$1. Definitions

In this chapter ‘‘commissioner’’ shall mean the commis-

sioner of correction. ‘‘ Parole board’’ shall mean the parole

board of the department of correction.

§$1A. County correctional facilities; minimum standards;

establishment and revision; financial or other

assistance

In accordance with paragraphs (d) and (q) of section

one of chapter one hundred and twenty-four the commis-

sioner shall establish, and shall from time to time revise,

ininimum standards for the care and custody of all persons

committed to county correctional facilities. Prior to estab-

lishing or revising such minimum standards the commis-

sioner shall visit, consult with and receive the recommenda-

tions of the sheriffs of the several counties and the penal

institutions commissioner of the city of Boston. The com-

missioner shall require from the sheriffs of the several

counties and the penal institutions commissioner of the

A-33

city of Boston periodie reports on the population, opera-

tion and conditions of all county correctional facilities.

The commissioner may provide consultation services for

the design and construction of facilities, studies and sur-

veys of programs and administration and any other techni-

cal assistance he deems proper and necessary. In cooper-

ation with the county commissioners and administrators of

each county, the commissioner may develop and administer

programs of grants-in-aid or subsidies for any county |

correctional facility.

§$1B. Inspection of county correctional facilities; compli-

ance with minimum standards; report; notice of

violations; enforcement procedure

At least once each six months the commissioner or his

delegate shall inspect each county correctional facility to

determine compliance with minimum standards. The re-

sults of such inspections shall be summarized in the annual

report of the commissioner to the general court. Personnel

of the department shall be admitted to all county correc-

tional facilities as required for the purposes of this section.

If, in the opinion of the commissioner, any county cor-

rectional facility does not comply with the standards estab-

lished by him for county correctional facilities, the com-

missioner shall give notice of the alleged violation to the

sheriff and the county commissioners of the county in

which such facility is located except that in the case of

Suffolk County House of Correction such notice shall be

given to the penal institutions commissioner of the city of

Boston. Said notice shall specify the particular standards

that in the commissioner’s opinion have not been met by

such facility. The officials so notified shall have the right

to be heard by the commissioner with regard to the alleged

violation and shall have a reasonable period of time to

remedy any such violation. If, in the opinion of the com-

missioner, the facility has not been brought into compli-

A-34

ance with the aforesaid standards within a reasonable time

from the date when notice of their violation is given, the

commissioner may petition the Superior Court in equity in

the county in which such facility is located for an order

to close the facility or for other appropriate relief. The

Superior Court shall have jurisdiction to enter such an

order.