# Petition — Hall v. DiMarzo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1454%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 927 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1454%3A1. Public record. Not legal advice.