Petition — Block v. Rutherford

Office-Supren Cou:

83-317 thipiei:,

AUG 23 i983

ALEXA

noen SEV

No. ..-....

Supreme Court of the United States

October Term, 1983

SHERMAN BLOCK, Sheriff of the County of Los Angeles,

et al.,

Petitioners,

vs.

DENNIS RUTHERFORD, HAROLD TAYLOR and RICHARD ORR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT.

DONALD K. BYRNE,

Chief Deputy County Counsel,

FREDERICK R. BENNETT,

Principal Deputy County Counsel,

648 Hall of Administration,

500 West Temple Street,

Los Angeles, Calif. 90012,

(213) 974-1880,

Counsel for Petitioners.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

Questions Presented.

1. Whether jail inmates have a constitutional right to

contact visitation.

2. Whether jail inmates have a constitutional right to

be present to observe and make inquiries during general

searches of their cells?

Parties.

Petitioners herein are:

SHERMAN BLOCK, Sheriff of the County of Los An-

geles, successor in office to Peter J. Pitchess, Appellant

below; FRED E. STEMRICK, Assistant Sheriff, successor

in office to William Anthony, Appellant below; JAMES W.

PAINTER, Chief of the Los Angeles County Sheriff's De-

partment Custody Division, successor in office to John Knox,

Appellant below; RON BLACK, Captain Central Jail, suc-

cessor in office to James White, Appellant below; ED-

WARD EDELMAN, KENNETH HAHN, and PETER

SCHABARUM, Supervisors of the County of Los Angeles

and Appellants below; DEANE DANA and MICHAEL D.

ANTONOVICH, Supervisors of the County of Los Angeles,

as successors in office to James Hayes and Baxter Ward,

Appellants below. =

Respondents herein are:

DENNIS RUTHERFORD, HAROLD TAYLOR, and

RICHARD ORR.

~

-~

ii

TABLE OF CONTENTS

Page.

SE BIN wocsscdiseeitlcdsvevecciAcesetboccaesees i

MIEN Nintetisbdkatsncsteinscccesonds sshonacaheuguaphonsdpinreled i

IEE ncccisciigbbvivadsccstebiseoseocsoscotveytenens 1

TINS hc icsevnpesenpsccosd War ilictibesactavetieses |

Constitutional and Statutory Provisions .................. 2

Statement OF Cee Case ........cccccvcccccccoseseccsccesccees 2

Reasons, for Granting the Writ ...............ssceseseeeeees 5

»1. The Decision Below Concerning Contact Visi-

tation Raises a Significant and Recurring Issue

Conflicting With the Decisions of Other Courts

of Appeal, and Ripe for Review ..............++. 5

2. The Decision Below Concerning Cell Searches

Is in Conflict With an Applicable Decision of

See SANE besdidatbsibcotearehncersoncerquedsosessabie 6

CR sinc) Gadde crebiabidycnperdsorersecepbenacoucy 6

APPENDIX

1. Opinions of the Court of Appeals ........ App. p. 1

A. Opinion Filed July 14, 1983 ................4.. 1

Dissenting Opinion ................0sseeeseeesees 15

B. Memorandum Opinion Filed August 8, 1980

sven il nisi isalip Laaaeddteespeaedtes thas aahls tl ves thay 17

2. Opinions and Judgment of the District Court ....:. 23

A. Memorandum Decision Filed May 18, 1981

iti

Page

C. Reported Memorandum Opinion, 457 F.Supp.

LOS CD. COAG TS) a cites in cenegacici ch ccosne Gl

3. Constitutional and Statutory Provisions .............. 67

United States Constitution, Amendment 14 ....:... 67

United States Code, Title 28 ............cccceceeseees 67

United States Code, Title 42 .........cccccceeceeseee 68

iv

TABLE OF AUTHORITIES

Cases Page

Ahrens v. Thomas, 570 F.2d 286 (8th Cir. 1978) .....

Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60

L..Ed.2d 447 (1979) .....ccececsecececeeeereeeeeees 2S,

Campbell v. McGruder, 580 F.2d 521 (D.C. Cir. 1978)

POPUP UOC OC ECOCO COCO COCO COOOL

Feeley v. Sampson, 570 F.2d 364 (ist Cir. 1978) .....

Inmates of Allegheny Cnty Jail v. Pierce, 612 F.2d 754

Cs RC «vv adeeentapethenis ctasidscupsectnchiovescese

Jones v. Diamond, 636 F.2d 1364 (Sth Cir. 1981), cert

granted sub nom., Ledbetter v. Jones, 452 U.S. 954,

101 S.Ct. 3106, 69 L.Ed.2d 970 (1981), cert. dism.,

453 U.S. 950, 102 S.Ct. 27, 69 L-Ed.2d 1033 (1981)

Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1980) .......

Marcera v. Chindlund, 595 F.2d 1231 (2d Cir. 1979),

vacated sub nom., Lombard v. Marcera, 442 U.S.

915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979) ........

Oxendine v. Williams, 509 F.2d 1405 (4th Cir. 1975)

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ......

Rutherford v. Pitchess, 457 F.Supp. 104 (C.D. i

SOFTEN. aio veihidodcuddsccthacctdvatiegdesesenpaovdébeshets 1,

Constitutional Provisions

United States Constitution, Amendment 14, Section 1

SOE EERE EEE EEE EEE HEHE

~ wae

A, |. -_ ate se.

v

Page

Rules

Federal Rules of Civil Procedure, Rule 53 .............. 5

Statutes

United States Code, Title 28, $1254(1) ............0000+- 1

United States Code, Title 28, $1343 ............c:0eeeees 2

United States Code, Title 28, §2201 ..............0000+- 2

United States Code, Title 28, $2202 ...........:ecces00es 2

United States Code, Title 42, $1983 ............cccce00es 2

United States Code, Title 42, $1985 .............:sceeees 2

No. ..-....

Supreme Court of the United States

October Term, 1983

SHERMAN BLOcK, Sheriff of the County of Los Angeles,

et al.,

Petitioners,

vs.

DENNIS RUTHERFORD, HAROLD TAYLOR and RICHARD Orr,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT.

Opinions Below.

The opinion of the Court of Appeals, entered July 14,

1983, not yet reported, its earlier unreported memorandum

opinion (filed August 8, 1980); and the unreported mem-

orandum opinion (filed May 18, 1981), the unreported sup-

plemental memorandum opinion (filed February 15, 1979),

and the reported memorandum opinion (Rutherford v. Pit-

chess, 457 F.Supp. 104 (C.D. Cal. 1978)), of the District

Court, appear in the appendix hereto.

Jurisdiction.

The judgment of the Court of Appeals for the Ninth Cir-

cuit was entered on July 14, 1983, and this petition for

certiorari was filed within 90 days of that date. This Court’s

jurisdiction is invoked under 28 U.S.C. $1254(1).

'

AAs De

ewe

Constitutional and Statutory Provisions.

The following constitutional and statutory provisions ap-

pear in the appendix hereto:

United States Constitution, Amendment 14, Section 1.

United States Code, Title 28, Sections 1343, 2201, 2202.

United States Code, Title 42, Sections 1983, 1985.

Statement of the Case.

The judgment of the United States Court of Appeals for

the Ninth Circuit was entered on July 14, 1983, affirming

the orders of the District Court concerning Los Angeles

County Central Jail (1) requiring pretrial inmates confined

longer than 30 days and concerning whom there is no in-

dication of drug or escape propensities, to be permitted one

contact visit a week, up to a maximum of 1,500 such visits

a week for all such inmates; and (2) requiring that available

inmates be permitted to observe and make inquiries during

general searches of their own cell areas.

28 U.S.C. §1343 for a claim under 42 U.S.C. §§1983,

1985, and for injunctive and declaratory relief pursuant to

28 U.S.C. §§2201, 2202, as a class action challenging a

wide range of conditions of confinement at the Los Angeles

County Central Jail, a 5,000 man jail located in downtown

Los Angeles, and used primarily for the housing of male

inmates awaiting trial on criminal charges. After trial the

District Court, in a reported decision (Rutherford v. Pit-

chess, supra), and an unreported supplemental memoran-

dum opinion (filed February 15, 1981), ordered a number

of changes in jail conditions. Petitioners appealed three of

those orders, including the orders here involved. The orders

are stayed pending appeal.

In an earlier unpublished memorandum decision (filed |

August 8, 1980), the Court of Appeal remanded these orders

= Sa

to the District Court for reconsideration in light of the in-

tervening decision in Bell v. Wolfish, 441 U.S. 520, 99

S.Ct. 1861, 60 L.Ed.2d 447 (1979).

On remand, in an unreported memorandum opinion (filed

May 18, 1981), the District Court acknowledged that Wo!-

fish required some differences in analysis, but concluded

that it required no difference in result, and reaffirmed its

previous orders finding that the categorical rejection of con-

tact visitation exceeded the reasonable requirements of se-

curity, and that the ordered search procedures were a nec-

essary prophylactic against improper seizure of inmates’

property.

Petitioners again appealed, and the Court of Appeal af-

firmed the orders with regard to contact visits and cell

searches. Petitioners seek review of that judgment of

affirmance.

The visitation procedures found constitutionally inade-

quate by the District Court, permitted daily unmonitored

visits with adults and children 12 hours a day between the

hours of 8:30 a.m. and 8:30 p.m. The number of such visits

average over 2,000 a day, over 63,000 a month. (Admitted

facts, CR 133, p. 14, excerpt 142). The visits are conducted

in an area where visitors never enter the jail’s security, and

inmates and visitors are separated by glass and speak over

power phones. No direct supervision or searches of visitors

or inmates is done or required. Since visitors never enter

the jail or come in contact with the inmates, the large number

of visits can be accomplished with no prior appointments,

screening, or approved visitor lists, and uninhibited by in-

trusive security measures. (Lonergan decl., CR 88, excerpt

122-125, admitted by stipulation, CR 145).

Under the search procedures found constitutionally in-

adequate by the Court, cell areas were searched while all

eee

inmates were out of the cell areas for other activities such

as meals, exercise, or the like. Under the ordered proce-

dures, all inmates are to be removed to a separate day room

area, and the available occupants of particular cells brought

back to observe end make inquiries during the search of

their particular cell.

ae...

REASONS FOR GRANTING THE WRIT.

1. The Decision Below Concerning Contact Visitation

Raises a Significant and Recurring Issue Conflicting

With the Decisions of Other Courts of Appeal, and

Ripe for Review.

A right to contact visitation is regularly asserted in most

prisoners’ rights litigation. Contact visitation, which is un-

derstandably desirable to detainees, presents substantial se-

curity problems, opportunities for importation of contra-

band, and potential for violence and escape, with direct and

serious consequences to jail staff, inmates, and the public.

This Court touched upon, but declined to decide the ques-

tion in Bell v. Wolfish, supra, 441 U.S. 520, as the issue

was not challenged in that appeal. However, this Court

observed with regard to another issue, the validity of strip

searches conducted to discourage smuggling of contraband

during such visits, that the need for such searches could be

obviated by abolishing contact visitation altogether. There-

after, in another case, this Court reversed and remanded

the issue of contact visitation for reconsideration by the

Second Circuit in light of Bell v. Wolfish, supra. Marcera

v. Chindlund, 595 F.2d 1231 (2d Cir. 1979), vacated,

Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61

L.Ed.2d 281 (1979).

The question of contact visitation apveared to be pre-

sented for resolution with the granting of certiorari on that

issue in Jones v. Diamond, 636 F.2d 1364 (Sth Cir. 1981),

cert. granted sub nom., Ledbetter v. Jones, 452 U.S. 954,

101 S.Ct. 3106, 69 L.Ed.2d 970 (1981); however, the mat-

- ter was dismissed pursuant to Rule 53. Ledbetter v. Jones,

453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).

The circuits that have considered the issue remain in

apparent conflict, at least in terms of result reached, the

sili

weight of authority being that contact visitation is not con-

stitutionally required. Feeley v. Sampson, 570 F.2d 364,

373 (ist Cir. 1978); Inmates of Allegheny Cnty. Jail v.

Pierce, 612 F.2d 754, 757-761 (3d Cir. 1979); Oxendine

v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975); Jordan

v. Wolke, 615 F.2d 749, 751 (7th Cir. 1980); Ahrens v.

Thomas, 570 F.2d 286, 290 (8th Cir. 1978); Ramos v.

Lamm, 639 F.2d 559, 580 (10th Cir. 1980). Cf. Campbell

v. McGruder, 580 F.2d 521 (D.C. Cir. 1978); West v.

Infame, 707 F.2d 58 (2d Cir. 1983); Jones v. Diamond,

supra, 636 F.2d 1363, 1377 (Sth Cir. 1981). The decision

of the Ninth Circuit Court of Appeals is the only post-

Wolfish Circuit Court of Appeals’ decision, specifically re-

quiring contact visitation at a particular facility.

2. The Decision Below Concerning Cell Searches Is in

Conflict With an Applicable Decision of This Court.

The District Court’s decision requiring that general cell

searches be conducted in the presence of available inmate

occupants as necessary to minimize the risks of improper

confiscation of inmate possessions is in conflict with this

Court’s reversal of an order requiring similar search pro-

cedures in Bell v. Wolfish, supra, 441 U.S, at 455-457.

Conclusion.

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Ninth Circuit.

Respectfully submitted,

DONALD K. BYRNE, |

Clot Onpety. Cgeaty Comsesl,

FREDERICK R. BENNETT,

Principal Depty County Counsel

Counsel for Petitioners.

APPENDIX.

1. Opinions of the Court of Appeals.

A. Opinion Filed July 14, 1983.

In the United States Court of Appeals for the Ninth Circuit.

Dennis Rutherford, et al., Plaintiffs-Appellees, v. Peter

J. Pitchess, et al., Defendants-Appellants. No. 81-5461.

D.C.# CV-75-4111-WPG.

OPINION.

Appeal from the United States District Court for the Cen-

~tral District of California. William P. Gray, District Judge,

Presiding. Argued and submitted December 7, 1982.

Before: TANG, SCHROEDER, and POOLE, Circuit

Judges. SCHROEDER, Circuit Judge:

preme Court decision in Bell v. Wolfish, 441 U.S. 520, 99

S. Ct. 1861 (1979) (Wolfish). On remand, the district court

wallace

analysis, but concluded that it required no difference in

result. The court reaffirmed its previous order with respect

to all three conditions. The county again appeals.

The challenged orders, which have been stayed pending

appeal, require wat the jail administrators: (1) allow low-

risk detainees who are imprisoned for more than one month

to receive one contact visit per week, up to a maximum of

1,500 such visits per week; (2) permit inmates to observe

searches of their cells; and (3) reinstall transparent windows

in the cells.? We reverse the order requiring reinstallation

sideration of relevant aspects of the detainees’ confinement,

The exact language of the challenged orders is as follows:

2.(6] Contact Visits. ES oe ee,

the dae ofthis order, the Wal cake avulatte

able of rotation or other be maintained. The

“ore $ owe rea tang diecretion ro the —

tag of ie rte Borns gree bey idarenr yy der

n of the jail from have been removed.

Pat WES

including whether the challenged restrictions were reason-

ably necessary to the maintenance of security, order, and

safety in the institution.

In our decision remanding the case in light of Wolfish,

we summarized the standards which the district court should

appiy:

Bell v. Wolfish, 441 U.S. 520 (1979), . . . set forth

two tests for evaluating constitutional attacks by pre-

trial detainees on conditions and restrictions during

their confinement. Where a condition implicates the

fourteenth amendment’s protection against deprivation

of liberty without due process, the proper inquiry is

whether the condition amounts to punishment. /d. at

538. A condition is punitive if there is a showing of

express intent to punish. Otherwise, if a particular con-

dition is reasonably related to a legitimate nonpunitive

objective, it does not, without more, amount to pun-

ishment. Jd. Legitimate objectives include both insur-

ing the detainee’s presence at trial and facilitating the

effective management of the facility. Jd. at 539-40.

Where a restriction implicates another constitutional

right as well, a court must assess whether the condition

or restriction impermissibly infringes that right. In

making that assessment, however, the court must rec-

ognize that the essential goals of maintaining security

and preserving internal order and discipline may re-

quire some limitation on the constitutional rights of

detainees, id. at 546, and must grant wide-ranging

deference to prison administrators in the adoption of

policies to serve these goals. /d. at 547-58.

Rutherford v. Pitchess, Nos. 79-3061/79-3367, slip op. at

2-3 (9th Cir. Aug. 8, 1980) (mem.). We commented upon

the relationship between the analysis used by the district

court in this case and the Supreme Court in Wolfish as |

follows: Ri

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The district court here articulated standards that track

closely those the Supreme Court subsequently laid down

in Wolfish. Relying on case law to the date of its de-

cision, however, the district court also observed that

proof of the availability of less restrictive means dem-

onstrated that prison officials had exaggerated their

response to security concerns. Wolfish rejected this

mode of analysis. /d.

Id. at 3. On remand, Judge Gray reaffirmed his prior orders,

stating that the county's actions ‘‘exceeded the reasonable

requirements of security.”’

We review the district court’s decision upon remand in

light of the controlling authority and our earlier mandate.

In doing so, we recognize that the authority to make policy

choices concerning prisons is not a proper judicial function.

Wolfish, supra, 441 U.S. at 562, 99 S. Ct. at 1886. Never-

theless, we also are conscious of the fact that pre-trial de-

tainees, who have not been convicted of any crime, retain

important constitutional rights which must be protected.

A court confronted with challenges to prison practices

therefore faces an important and difficult task. To fulfill the

Supreme Court's mandate under Wolfish, it must explore

and analyze two ofttimes competing se(s of needs and ob-

jectives — the penal institution’s interest in institutional

administration and security and the detainee’s interest in

protecting and exercising his retained constitutional rights.

Only after such a thorough review can a court decide whether

or not a particular prison condition is an unreasonable, ex-

aggerated response to the legitimate nonpunitive objectives

of a detention facility.

Here, the trial court’s factual findings are for the most

part not challenged by the county and we defer to those

findings as they have not been shown to be clearly erro-

neous. Fed. R. Civ. P. 52(a). The county assails the court’s

application of the appr —S—

ditions existing at the :

toma, eng apean ne men © Oo cm

F.2d 1237, 1245 (9th > novo review. Hoptowit v. Ray, 682

challenged order. —_»ir_ 1982). We consider, in tu, each

Ge

The district court fouConsact Visits

ees the opportunity for ind that the county denies all detain

The inmates are separat physical contact with their visitors.

glass and must use a ‘ted from their visitors by transparent

In considering the aglephone’’ for voice communication.

the district court rejecteppeliees’ challenge to this practice,

tact visits should be psd any contention that unlimited con-

were permitted in all Wovided, concluding that if contact

would result and the tovisits, an enormous security burden

ical limitations of L.Atal number of visits, given the phys-

duced. At the same tim. County Jail, would have to be re-

adverse psychological ge, the court was concerned with the

contact with family meffects caused by the lack of physica!

time. Such effects areembers over a prolonged period of

record and have been supported by the evidence in this

fronting similar challernoted by other district courts con-

371 F. Supp. 594, 601-nges. See, e.g., Rhem v. Malcolm,

(2d Cir. 1974). 07 (S.D. N.Y.), aff d, 507 F.2d 333

The court carefully r

lems that contact visiteviewed the particular security prob-

of physical harm and eation engenders, including the risks

©: contraband such as d'scape, as well as of the importation

A ee ES ee ea tale tarian

particular facility. Afte® most detainees at

concluded that the loss*t this thorough analysis, the court

was an unreasonable an‘ Of contact over a prolonged period

d exaggerated response by the county

*

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Soe en,» ae Gee ae | I, ae et j . gh, hie fa La 2s Poe

_

for those detainees who spend more than thirty days in the

facility and who can be identified as low-risk detainees. The

court therefore entered a narrow order providing for one

contact visit per week for such detainees and for a maximum

number of contact visits per week in the institution. The

court found that only modest physical alterations would be

necessary to permit this small number of visits.’

The county argues in this appeal that the contact visitation

order is improper because the district court relied on evi-

dence of visitation practices in other county institutions in

order to arrive at a ‘‘lowest common denominator.’’ The

Supreme Court in Wolfish stated that the Due Process clause

does not require such a security standard, ‘‘whereby a prac-

tice permitted at one penal institution must be permitted at

all institutions.’’ 441 U.S. at 554, 99 S. Ct. at 1882.

Our review of the district court’s opinion, however, con-

vinces us that Judge Gray fashioned a narrowly drawn order

based upon the capacities, limitations, and security risks of

this particular jail. In reaffirming his order on remand, Judge

Gray noted that he had tried ‘‘to find the ‘mutual accom-

provisions of the constitution that are of general applica-

tion,” to which Justice Rehnquist referred in his opinion

(441 U.S. at 546).’" He concluded that the ‘‘categorical

rejection of all proposals involving [contact] visits’’ is not

consistent with this approach. We agree with Judge Gray

in this regard.

The district court’s analysis in this case is fully consistent

with the approach approved by the Fifth Circuit in Jones v.

Diamond, 636 F.2d 1364, 1377-78 (Sth Cir.) (en banc),

cert. dismissed, 453 U.S. 950, 102 S. Ct. 27 (1981). In

The maximum number of contact visits was set at | 500. By contrast,

the total number of visitors at Central Jail per week exceeds 15,000.

et

Diamond the Fifth Circuit held that the determination of

whether contact visitation may be denied for legitimate se-

curity reasons is a decision peculiar to each penal institution:

**Whether or not contact visitation rights should be accorded

pretrial detainees in the Jackson County jail can be decided

only after a full hearing on the facilities available in both

jails and the security requirements in each.’’ 636 F.2d at

1377.

Nor is affirmance of the district court’s order in conflict

with other post-Wolfish circuit opinions which have dis-

approved of increased contact visitation. For example, in

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980), cert.

denied, 450 U.S, 1041, 101 S. Ct. 1759 (1981), the court

of appeals refused to approve a district court decision or-

dering unrestricted contact visitation. However, the pre-

existing prison facility policy in that case permitted even

more liberal contact visitation than the order on review here;

all inmates were allowed to kiss their visitors at the begin-

ning and end of each visit, hold hands, and hold small

children on their laps. The court of appeals deferred to this

existing policy because ‘‘it is a reasonable response to the

legitimate concerns of prison security.’’ 639 F.2d at 580.

In Jordan v. Wolke, 615 F.2d 749 (7th Cir. 1980), the

cour also refused to enforce a district court order requiring

unrestricted contact visitation for all detainees. The court

noted that only five percent of the detainees stayed in the

facility for over thirty days, implicitly recognizing that dif-

ferent considerations may apply when courts consider re-

quiring contact visits for long-term as opposed to short-term

detainees. See also 1979 B.Y.U. L.Rev. 1022, 1034-35.

Here, the record reflects that the percentage of long-term

detainees in L.A. County Jail is considerably higher.

in Inmates of Allegheny County Jail v. Pierce, 612 F.2d

754 (3d Cir. 1979), the court of appeals affirmed the district

Ps

dni

court’s ruling that contact visitation could be prohibited.

The district court’s findings, which were held not to have

been clearly erroneous, were based on the conditions and

security problems existing at that particular institution.

The twin threads running through all these post-Wolfish

cases are first, that contact visitation is not constitutionally

mandated for all detainees in all facilities; and second, that

the denial of all contact visitation is not per se beyond court

scrutiny. The pattern which emerges is one which recognizes

the important security interests of the institution but at the

same time recognizes the psychological and punitive effects

which the prolonged loss of contact visitation has upon

detainees, who have not as yet been convicted of any crime.

The institution's security interests do not always predomi-

nate. A blanket restriction on contact visits for all detainees

may present an unreasonable, exaggerated response to se-

curity concerns at a particular facility. The district court’s

order here, granting a limited number of contact visits for

only those who have been held more than thirty days and

who do not constitute security risks, fits harmoniously within

this pattern. We therefore affirm that order.

Il

Observation of Cell Searches

The second challenged jail practice is that of conducting

unannounced ‘‘shakedown’’ searches of cells outside the

presence of the inmates. The need for such searches them-

selves is not at issue, only the need for conducting them in

— pre per beeec mney i caine Boned ped sore

as or excessive clothing and reading

the security of the facility.

a

inmates in the general area of their cells when a ‘‘shake-

down’’ search occurs should be ‘‘near enough to observe

the process and raise or answer any relevant inquiry.’’

Before entering this order, Judge Gray visited the prison

and personally observed four alternative methods of con-

ducting cell searches. As with the order regarding contact

visits, Judge Gray carefully took into account the conditions

at the facility and the security concerns expressed by prison

officials, including the possibility that the prisoner’s pres-

ence would disrupt the search or, more important, would

frustrate it by disclosing safe hiding places. He also con-

sidered the county’s further argument that confrontation dur-

ing searches would create security risks too costly to deal

with.

In support of the plaintiffs, Judge Gray considered tes-

timony and observed first-hand that the county’s method of

searching all the cells in a row while the inmates were

contained in a day room, or elsewhere, presents its own

risks. For example, prison officials may improperly con-

fiscate the prisoner’s meager possessions. The prisoners also

objected that this practice encouraged officials to ‘‘tear their

cells apart.’’

In analyzing the prison’s procedure, Judge Gray recog-

nized the competing needs and objectives of the parties, and

therefore stated in his opinion that his order only required

that individual inmates be brought to the cell area one at a

time to observe the search of their respective cells. This

procedure was designed to meet the piaintiffs’ concerns and

avoid confrontation and additional expense.

The county argues in this appeal, however, that the Su-

preme Court’s decision in Wolfish forecloses any order which

ial detainees to observe cell searches because,

county’s view, Wolfish held that the practice of con-

}

|

tts

ducting searches outside of a detainee’s presence is, in every

instance, rationally related to legitimate security concerns.

We disagree. While the court in Wolfish did reverse an order

permitting inmates to observe shakedown searches of their

cells, it did so because it concluded that a rule preventing

observation does not, in itself, render a search ‘‘unreason-

able’’ under the fourth amendment. 441 U.S. at 557, 99

S. Ct. at 1883-84. In our view this holding does not preclude

an observation order based on the circumstances and evi-

dence present here; there are significant differences between

this case and Wolfish.

The challenged district court order in Wolfish, for ex-

ample, failed to take into account the concerns of prison

officials that inmates could frustrate searches by ‘‘distract-

ing personnel and moving contraband from one room to

another ahead of the search team.’’ 441 U.S. at 555, 99 S.

Ct. at 1883. Here, by contrast, these concerns were clearly

addressed by Judge Gray and taken into account in framing

the cell search order. The order approves of the unannounced

removal of inmates from their cells and their detention in

the day room while the cell row is being searched. Individual

detainees need only be brought back from the day room to

observe the search of their own cell.

Another significant difference is that the lower court in

Wolfish had taken the position that the searches infringed

the detainees’ interest in privacy and were ‘‘unreasonable”’

within the meaning of the fourth amendment. The Supreme

Court sharply criticized this holding, stating that

**[pjermitting detainees to observe the searches does not

lessen the invasion of their privacy. . . .”’ 441 U.S. at 557,

99 S. Ct. at 1883. Here, however, in considering the Su-

preme Court’s opinion in Wolfish, the district court em-

phasized that its order was not based solely upon fourth

amendment concerns, but was, to a large extent, also based

sia ic

2. as :

sith eee

upon the protection of the inmates’ right to due process of

law under the fourteenth amendment. Judge Gray found,

given all of the evidence before him, including his own

observations in the prison, that the risks of improper con-

fiscation of a detainee’s few cherished possessions were

great and could not be redressed in any action to recover

the value of the articles taken.

The district court specifically referred to one incident

which was significant to its conclusion that improper dep-

rivations could only be avoided by injunctive relief. During

the demonstration of one of the alternative methods of search

conducted during the district court’s visit, the deputy con-

ducting the search started to confiscate a prisoner’s maga-

zines. Since in this alternative the prisoner was permitted

to observe the search, he was able to explain to the deputy

that the two magazines did not violate prison regulations on

the currency and condition of magazines. Hence observation

prevented the taking and destruction of materials valuable

to a prisoner. As the district court observed: ‘‘[t]hese are

small matters; but they are important to the detainees.’’

Thus, Judge Gray concluded that ‘‘to allow these prized

possessions to be confiscated under subjectively enforced

regulations, without giving the possessor any opportunity

to explain or protest or entreat, deprives him of his property

without due process of law.”’

Nevertheless, the county still suggests that the district

court’s order cannot stand because, as a matter of law,

language in a footnote of the Wolfish opinion prevents courts

from examining the effect of search practices on property

ead ins

rights of inmates. See 441 U.S. at 558 n.38, 99 S. Ct. at

1884.°

In our view the Wolfish footote does not preclude such

considerations; the lower courts in Wolfish had not even

considered possible violations of property rights. The Court

in this footnote merely points out that, even assuming that

searches violate prisoner property rights, a wholesale chal-

lenge to a prison search policy must still be analyzed with

reference to jail officials’ concerns and judgments on se-

curity matters. The record in this case clearly reflects that

Judge Gray, in fashioning his order modifying jail search

practices, paid ample deference to the jail officials’ concerns

order with respect to cell search procedures.

IV

Restoration of Windows

The last challenged order is Judge Gray’s requirement

that the county reinstall transparent windows in those por-

tions of the jail which originally had such windows. Shortly

after L.A. County Jail was constructed, the original win-

dows, made of wired glass, were replaced. Eventually, cur-

rently existing concrete enclosures were put in to cover the

openings. It is undisputed that these changes were brought

*The complete text of footnote 38 is as follows:

apm Anka drne do pratima Hono nate 7

them by failing to treat the personal possessions of inmates

these abuses Ses seached is lnvel of Comstaationdh

F

:

if

Hie

re" wie

about by the fact that many of the glass windows were

broken by the inmates and thus seriously interfered with

security at the facility. The county considered installing

other transparent materials, but these were disapproved by

the fire department due to fire hazard regulations.

Plaintiffs argue that they have a psychological need for

exposure to the outside world and that the lack of windows

along with other conditions at the jail, including inadequate

rooftop exercise time, overcrowding, and the lack of indoor

recreational facilities, coalesced to create a punitive atmos-

phere violative of due process. They allege that Judge Gray’s

order to restore the windows is designed, in part, to com-

pensate for his refusal to issue comprehensive orders re-

garding other aspects of the jail’s conditions.

Judge Gray’s order was based on the ground that ‘‘the

[inmates’] right not to be deprived of all view of the outside

world far outweighs the inferred danger of serious escape

attempts or contraband importation. . . .’’ This conclusion

was premised on his opinion that, given the physical layout

of the jail and windows, and the intense supervision pro-

vided, the possibility of escape was remote and prison of-

ficials could use their ‘‘resourcefulness’’ to prevent contra-

band importation. Judge Gray also was not convinced that

the county had made a complete search for transparent plas-

tic windows that would comply with fire safety standards.

On remand, Judge Gray likened the lack of windows to

**loading a detainee with chains and shackles and throwing

him in a dungeon. . . .”’ See Wolfish, supra, 441 U.S. at

539 n.20, 99 S. Ct. at 1874. Although he did not find any

express intent to punish, he concluded, in effect, that such

an intent could be inferred. 7

The difficulty with Judge Gray’s order and his explicative

reasoning is that it fails to account for the jail’s history of |

very real and serious security problems with respect to win- f

Bet ya

dows, a history which is not challenged by the appellees.

Uncontroverted evidence shows that every measure at-

tempted prior to the installation of the concrete enclosures

proved unsatisfactory. When the broken wired glass win-

dows were replaced, first by steel screens and then by steel

plates, both the screens and plates were torn down by the

inmates, and the security problems concerning escape and

access to contraband continued.

Nor does the order adequately address the testimony pre-

sented by the county that ‘‘non-breakable’’ glass is unsuit-

able in that it can, in fact, be broken by objects available

to the inmates and that the material used in other transparent

plastic windows will not meet fire regulations. Without the

appropriate findings and evidence to support them, the con-

crete windows cannot be characterized as an ‘‘exaggerated

response’’ by county officials in this case. See Wolfish,

supra, 441 U.S. at 561-62, 99 S. Ct. at 1885-86; cf. Hop-

towit v. Ray, supra, 682 F.2d at 1246-47 (totality of con-

ditions may not justify relief which must be based on show-

ing of independent constitutional violation), citing Wright

v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 1981). Since

the record contains no indication that, given the security

problems attendent to the use of windows in this facility,

any more appropriate response exists, we must conclude

that the county’s action with respect to the windows was

therefore erred in requiring reinstallation of transparent

windows.

Vv

Conclusion

We have carefully and thoroughly reviewed the district

court’s orders to determine, in each instance, whether the

standards set forth by the Supreme Court in Wolfish properly

as

were followed. The orders with respect to contact visitation

and cell searches are affirmed. The order with respect to

transparent windows is reversed. Each party is to bear its

own costs.

DISSENTING OPINION.

Rutherford et al. v. Pitchess, et al., No. 81-5461.

Filed: July 14, 1983.

POOLE, Circuit Judge, concurring in part and dissenting

in part:

Because I belicve that the outcome is controlled by Bell

v. Wolfish, 441 U.S. 520 (1979) (‘‘Wolfish’’), 1 dissent

from part III of this opinion, concerning prisoner obser-

vation of cell searches. I concur in the remaining portions

of the opinion.

The majority seeks to find a distinction between this case

and the situation in Wolfish, insofar as both consider the

problems posed by cell ‘‘shakedowns.’” A fair reading of

the Supreme Court’s holding in Wolfish would not permit

a distinction with meaning to be drawn. In Wolfish, the

prison officials established a policy which did not permit

prisoners to observe the searches of their cells, citing se-

curity concerns and a fear that the prisoners would be able

to evade or frustrate the searches. Jd. at 555. The prisoners

objected because they suspécted the guards of theft. Jd. at

556. In the present case, the identical policy had been adopted

by the jail officials, citing the same security and evasion

the improper confiscation of their property.

Faced with the competing concerns which underlay the

search policy and the objections thereto, the Court held that

the policy should not be enjoined, stating:

. proper deference to the informed discretion of

prison authorities demands that they, and not the courts,

we Peee

—16—

make the difficult judgments which reconcile conflict-

ing claim affecting the security of the institution, the

welfare of the prison staff, and the property rights of

the detainees.

Id. at 557 n.38 (citations omitted). The Court’s language

could hardly be more clear, and there is no basis for holding

that it does not provide controlling guidance in this case.

The distinctions relied upon by the majority are, I believe,

without substance. First, it is claimed that the district court

in Wolfish failed to weigh the prison official’s security and

evasion concerns in framing its order. Since the district

judge in this case did expressly address those concerns, his

order—essentially the same as that issued by the district

court in Wolfish—is thought to be permissible. However,

it is factually inaccurate to state that the district court in

Wolfish did not also weigh those concerns. See United States

ex rel. Wolfish v. Levi, 439 F.Supp. 114, 148-49 (S.D.N.Y.

1977).

A second basis for distinguishing Bell v. Wolfish cited

by the majority is that the constitutional basis for invali-

dating the search policy relied upon by the district and

appellate courts in that case was limited to privacy and fourth

amendment concerns. In the case at bar, the majority notes,

the district court found a due process claim grounded in the

improper confiscation of prisoners’ property. Again, this

distinction is strained, to say the least. While the district

court in Wolfish confined its constitutional discussion to

fourth amendment concerns, both that court and the Second

Circuit on appeal stressed that the primary concern of the

prisoners was the potential theft of their property—the same,

allegedly new concern raised by Judge Gray here. See 439

F.Supp. at 148-49; 573 F.2d at 131. Further, the Second

Circuit in Wolfish explicitly noted that the cell searches

could give rise to a due process claim in certain circum-

ie

,

, ‘

+s aes)

46) toe ci: | ain

a

stances. See 573 F.2d at 131 n.29 (due process requires that

receipts be given for property seized during cell searches).

Further, in Wolfish the Court determined that injunctive

relief barring cell searches unless the prisoner was permitted

to observe the search was improper when the concern was

the possible theft of property. The Court suggested instead

that actions for damages were the proper remedy, even if

the thefts rose to the level.of constitutional violations. See

441 U.S. at 557 n.38. This, of course, reflects the traditional

doctrine that injunctive relief is inappropriate unless there

has been a showing that legal remedies are inadequate.

Beacon Theatres v. Westover, 359 U.S. 500, 506-07 (1959).

But even if the potentially repetitive incidence of violations

of personal property rights could under some circumstances

warrant injunctive relief, the Supreme Court has told us, on

facts almost exactly similar to those found here, that this

cell-search practice violates no constitutional provision and

should not be conditioned on the inmate’s physical presence.

Bell v. Wolfish, 441 U.S. at 555-557.

The district court in Wolfish and Judge Gray here con-

sidered the same concerns of the correctional officials and

the inmates, and ordered the same injunctive relief. The

Supreme Court rejected that approach in Wolfish, and our

obligation now must be to heed the plain language of the

Supreme Court’s ruling and to reverse the order issued by

B. Memorandum Opinion Filed August 8, 1980.

United States Court of Appeals for the Ninth Circuit.

Dennis Rutherford, Harold Taylor, and Richard Orr,

Plaintiffs-Appellees, v. Peter J. Pitchess, as Sheriff of the

County of Los Angeles; William Anthony, as Assistant

Sheriff of the County of Los Angeles; John Knox, as Chief

of the Corrections Division of the Los Angeles County Sher-

;

- ‘

oh

. atm aty

ot seer ——— Oe.

iff's Department; James White, as Commander of the Los

Angeles County Central Jail; and Edward Edelman; Kenneth

Hahn, James Hayes, Peter Schabarum and Baxter Ward, as

Supervisors of the County of Los Angeles, Defendants-

Appellants. Nos. 79-3061, 79-3367. DC #CV 75-4111-

WPG.

Appeal from the United States District Court for the Cen-

tral District of California, William P. Gray, District Judge,

presiding.

Before: Markey,* Court of Customs & Patent Appeals

Judge, and Pregerson and Ferguson, Circuit Judges.

Plaintiff pretrial detainees brought this class action as a

comprehensive challenge to conditions of their confinement

at the Los Angeles Central Jail. After a 17-day court trial

and two personal inspections of the jail, the district court

ordered 12 changes in jail conditions and restrictions. The

court explained its rulings in two thorough memoranda of

decision, which revealed the court’s careful consideration

of all the aspects of the detainees’ confinement.

The court’s orders required jail administrators to: (1) cease

making ‘‘overflow’’ men sleep on mattresses on the floors;

(2) permit unaccompanied minor children to visit an inmate

parent upon the inmate’s request; (3) allow all inmates two

and one-half hours’ exercise per week, and work toward

allowing one hour per day; (4) re-establish television view-

ing in the day rooms; (5) develop a new program for pro-

cessing inmates for court appearances so that those on trial

do not leave bed before 6:00 a.m., do not spend time con-

fined in holding cells, travel 30 minutes or less on buses

and return not later than 8:00 p.m.; (6) eliminate overcrowd-

ing in the holding cells for prisoners who must make court

*The Honorable Howard T. Markey, Chief Judge, United States

Court of Customs and Patent Appeals, sitting by .

a

appearances but are not then on trial; (7) provide more

telephones; (8) allow inmates at least 15 minutes for meals;

(9) furnish clean laundry twice weekly; (10) permit inmates

to watch the guards Conducting searches of their cells; (11)

re-install windows in the cells; and (12) allow low-risk de-

tainees who are imprisoned for more than one month to

receive one contact Visit per week, providing for a maximum

of 1,500 such visits per week. The Sheriff appeals only the

latter three requirements. The remaining nine are therefore

final.

The attorney for the pretrial detainees, an American Civil

Liberties Union (ACLU) attorney, moved the court for an

award of attorney’s fees under 28 U.S.C. § 1988. He re-

quested $201,266 for 1006.33 hours’ work. The court

awarded $90,000, which it calculated on the basis of $60/

hour for 1,000 hours, with a 1.5x incentive multiplier. The

Sheriff appeals the award.

INJUNCTIVE RELIEF

After the district court issued its orders, the Supreme

Court decided Bell v. Wolfish, 441 U.S. 520 (1979), in

which it set forth two tests for evaluating constitutional

attacks by pretrial detainees on conditions and restrictions

fourteenth amendme"t’s protection against deprivation of

liberty without due process, the proper inquiry is whether

the condition amoun'S t© punishment. /d. at 538. A con-

dition is punitive if there is a showing of express intent to

punish. Otherwise, if # Particular condition is reasonably

—_,

Whcre a restriction implicates another constitutional right

as well, a court must assess whether the condition or re-

striction impermissibly infringes that right. In making that

assessment, however, the court must recognize that the es-

order and discipline may require some limitation on the

constitutional rights of detainees, id. at 546, and must grant

wide-ranging deference to prison administrators in the adop-

tion of policies to serve these goals. Jd. at 547-48.

The district court here articulated standards that track

closely those the Supreme Court subsequently laid down in

Wolfish. Relying on case law to the date of its decision,

however, the district court also observed that proof of the

availability of less restrictive means demonstrated that prison

officials had exaggerated their response to security con-

cerns. Wolfish rejected this mode of analysis. Id.

Accordingly, we must remand the case to the district court

for reconsideration of the three challenged orders in light

of Bell v. Wolfish. See Lombard v. Marcera, 442 U.S. 915

(1979), vacating for reconsideration, Marcera v. Chinlund,

595 F.2d 131 (2d Cir. 1979). With its extensive knowledge

of all the conditions of Central Jail and the factors underlying

the prison administrators’ actions, the district court can ap-

ply the Wolfish standards without further trial on the facts.

ATTORNEY’S FEES

The Sheriff attacks the award of attorney's fees on three

grounds: (1) the district court did not conduct an evidentiary

hearing; (2) the fees are unreasonable and produce a wind-

fall; Re ee ee

its decision.

While the district court did not conduct a full evidentiary

hearing with witnesses, it did review numerous documents,

=. ,

including deposition testimony and affidavits, and it con-

ducted an in-court proceeding on the attorney’s fees issue,

the transcript of which runs ten pages. Moreover, the Sheriff

has not disputed any of the facts material to decision of the

ACLU’s motion for attorney's fees, and the trial court would

have discretion whether to conduct an evidentiary hearing

even if the motion did involve disputed facts. Fed. R. Civ.

P. 43(e).

Similarly, we reject the Sheriff's argument that the fees

are per se unreasonable because awarding a public interest

law firm fees computed under prevailing market rates pro-

duces a windfali and because the district court used an

incentive multiplier. It is well established that a court setting

a reasonable fee award must consider the twelve factors

initially propounded by the Fifth Circuit in Johnson v. Geor-

gia Highway Express, Inc., 488 F.2d 714, 717-19 (Sth Cir.

1974). Dennis v. Chang, 611 F.2d 1302, 1306 & n.9 (9th

Cir. 1980); Seymour v. Hull & Moreland Engineering, 605

F.2d 1105 (9th Cir. 1979). The Johnson standards apply

regardless of whether the prevailing attorney works for a

public interest law firm. Dennis v. Chang, supra, 611 F.2d

at 1306; Brandenburger v. Thompson, 494 F.2d 885, 889

(9th Cir. 1974). The use of an incentive multiplier is ap-

propriate where the possibility of success is contingent and

the quality of the work is high. See Stanford Daily v. Zurcher,

64 F.R.D. 680 (N.D. Cal. 1974), aff'd, 550 F.2d 464 (9th

Cir. 1977), rev'd on other grounds, 436 U.S. 547, 553 n.3

(1978), cited with approval in S. Rep. No. 1011, 94th

Cong., 2d Sess. 6, reprinted in {1976} U.S. Code Cong.

& Admin. News 5908, 5913.

Because the district court did not set forth the array of

factors underlying its fee decision, however, we must re-

mand the issue to allow the court to state the factors con-

tributing to its fee award. Ellis v. Cassidy, slip op. at 3852

“

-

a

a a

22

(June 20, 1980); Fountila v. Carter, 571 F.2d 487, 496

(9th Cir. 1978). See Gluck v. American Protection Indus-

tries, slip op. at 3159 (May 12, 1980).

REMANDED for further proceedings consistent with this

opinion.

eet ea

2. Opinions and Judgment of the District Court.

A. Memorandum Decision Filed May 18, 1981.

United States District Court, Central District of California.

Dennis Rutherford, Harold Taylor and Richard Orr, et

al., Plaintiffs, vs. Peter J. Pitchess, et al., Defendants. Case

No. CV 75-4111-WPG.

MEMORANDUM OF DECISION.

On February 15, 1979, this court, after a trial of the class

action here concerned, entered an order requiring several

changes in practices and conditions of confinement in the

Los Angeles County Central Jail (the jail). Three of these

requirements were appealed. On August 8, 1980, the Court

of Appeals remanded the case to this court for reconsider-

ation of the three challenged orders in light of Bell v. Wol-

fish, 441 U.S. 520 (1979), which was decided after those

orders were rendered.

The three orders here concerned read as follows:

**2.(b) Contact Visits. Commencing not more than

ninety days following the date of this order, the de-

fendants will make available a contact visit once each

week to each pre-trial detainee that has been held in

the jail for one month or more, and concerning whom

there is no indication of drug or escape propensities;

provided, however, that no more than fifteen hundred

such visits need be allowed in any one week. In the

event that the number of requested visits in any week

exceeds fifteen hundred, or such higher number as the

Sheriff voluntarily undertakes to accommodate, a rea-

sonable system of rotation or other priorities may be

maintained. The lengths of such visits shall remain in

the discretion of the Sheriff."

**5. Restoration Of Windows. Within ninety days

following the filing of this order, transparent windows

shall be restored in each portion of the jail from which

pe, Ye

they previously have been removed.”’

**8. Cell Searches. Inmates that are in the general

area when a ‘shakedown’ inspection of their cells is

undertaken shall be permitted to be sufficiently prox-

imate to their respective cells that they may observe

the process and respond to such questions or make such

requests as circumstances may indicate.”’

The factual findings and the legal analyses upon which

such orders were based are set out at length in a Memo-

randum of Decision dated July 25, 1978 (457 F. Supp. 104)

and a Supplemental Memorandum of Decision dated Feb-

ruary 15, 1979. In those memoranda I undertook to discuss

the considerations that guided this court in its attempt to

find the appropriate balance between the competing goals

of institutional security, order and safety, on the one hand,

and the need to preserve for the inmate such of his consti-

tutional rights as the fact of his incarceration permit.

Pursuant to the mandate of the Court of Appeals, I have

studied thoroughly the opinion in Bell v. Wolfish and have

reexamined my memoranda of July 25, 1978, and February

15, 1979, in light of its teachings. I find nothing in Beil v.

Wolfish that renders inappropriate any of the three chal-

lenged orders, and they therefore are reaffirmed.

Justice Rehnquist’s opinion in Bell v. Wolfish asserts at

the outset that ‘‘. . . under the Due Process Clause, a de-

tainee may not be punished prior to an adjudication of guilt

in accordance with due process of law.’’ (441 U.S. at 535).

It then states that the court must decide whether the disability

complained of ‘‘. . . is imposed for the purpose of punish-

ment or whether it is but an incident of some other legitimate

governmental purpose. [Citation omitted] Absent a showing

of an expressed intent to punish on the part of detention

facility officials, that determination generally will tum on

‘whether an alternative purpose to which [the restriction]

a a

may rationally be connected is assignable for it, and whether

it appears excessive in relation to the alternative purpose

assigned [to it].’ ’’ (Citations omitted).

This court does not conclude that the Sheriff or his sub-

ordinates were consciously motivated by a desire to punish

in creating the situations that my orders sought to remedy.

However, in each instance, the conclusion is believed to be

inescapable that the action was, in the words of the Supreme

Court, “*. . . excessive in relation to the alternative purpose

assigned to it.’’ (Quoted supra). The assigned purpose was

security, but, as I undertook to set out in the earlier mem-

oranda, the deprivation imposed upon the detainees clearly

exceeded the reasonable requirements of security. I con-

clude from the opinion in Bell v. Wolfish that under such

circumstances an intent to punish may be inferred, irre-

spective of the actual motivation of the authorities. The

punishment imposed upon an inmate can be no more tol-

erable because it stems from an unreasonable fixation upon

security rather than from a desire to be vindictive. I believe

that Justice Rehnquist recognized this in his reference, in

footnote 20, to an example of loading a detainee with chains

and shackles.

Thus, it seems to me that, regardless of how it is phrased,

the. test still remains: ‘‘What is reasonable under the cir-

cumstances? This is the question that I sought to answer in

the memoranda upon which the three orders were based. I

was trying to find the ‘‘mutual accommodation between

Constitution that are of general application,’’ to which Jus-

tice Rehnquist referred in his opinion. (441 U.S. at 546).

Contact Visits. Surely, it cannot be denied that to deprive

an inmate, for long periods of time, of any opportunity to

embrace his wife or hug his children is very traumatic treat-

ment. And if such treatment is not made necessary by the

ue

reasonable requirements of security, it constitutes severe

punishment. Naturally, any allowance of contact visits cre-

ates problems for the jailer, and, naturally, he would prefer

to avoid such problems altogether. However, these well-

recognized problems cannot be considered intolerable it lim-

itations are imposed as to numbers and frequency of visits

allowed, and if such visits are accorded only to those who

are identified as low security risks. To my own knowledge,

many other penal institutions, including the Metropolitan

Correctional Center in New York City with which the de-

cision in Bell v. Wolfish was concerned, have regularly

accorded contact visits.

For the defendants here to make categorical rejection of

all proposals involving any such visits is believed to con-

stitute overreaction that is not consistent with the balancing

process that the Constitution requires. In light of such refusal

to undertake such balancing process, I have felt obliged to

do so, as is shown in my earlier memoranda. Paragraph

2.(b) is the result of these efforts.

Windows. Little need be said here in addition to the dis-

cussion in my earlier memoranda. The building was built

with transparent windows, according to design. Even if the

detention personnel were to conduct themselves in a manner

considerably below the high standards of vigilance with

which the jail is regularly maintained, the presence of the

wina ws could present no reasonable risk of escape or im-

portation of contraband. The action of the Sheriff in re-

placing all of such windows with solid sheets of steel, thus

cutting off all view of the outside world, was overreaction

akin to the chains and shackles example in footnote 20 to

Justice Rehnquist's opinion.

The defendants have made some suggestion that retention

of the sheets of steel is necessary in order to maintain proper

operation of the air conditioning system. Any such conten-

oe

ae,

tion is absurd. If the air conditioning system needs strength-

ening or other modification, such correction certainly can

be made without the need to seal up the occupants in this

manner

Cell Searches. The conclusion that I must adhere to my

prior order with respect to cell searches has given me some

concern, because the opinion in Bell v. Wolfish held that a

similar order was not constitutionally required. Certainly,

this court is mindful of its duty to adhere, without question,

to decisions of the Supreme Court. However, I believe that

there are factors that significantly distinguish this case from

Bell v. Wolfish.

As my memorandum of February 15, 1979, shows, I

observed the alternative processes of unannounced cell

shakedown under which the inmates were (Method C) and

were not (Method A) allowed to observe the searches. Under

Method C, and unlike the situation envisaged by the officials

involved in Bell v. Wolfish, there is no opportunity for ‘*. . .

the inmates to attempt to frustrate the search by distracting

personnel and moving contraband from one room to another —

ahead of the search team.’’ (See 441 U.S. at 555).

Also, according to the opinion in Bell v. Wolfish, *‘[t}he

Court of Appeals did not identify the constitutional provision

on which it relied in invalidating the room-search rule”’ (see

441 U.S. at 556), and the District Court found a violation

of the Fourth Amendment, which the Supreme Court ruled

to have been in error (see 441 U.S. at 557). Having wit-

nessed the comparative ease and institutional security and

safety under which a prisoner can be allowed to observe the

search of his cell, it seems to me that to refuse such ob-

servation is contrary to the Due Process Clause of the Four-

teenth Amendment.

The possessions that a man is allowed to keep in his cell

are meager, indeed, being limited to things like a few pic-

193

tures, magazines, cigarettes, candy bars, and perhaps an

extra pair of socks. Nonetheless, these items are cherished

by the inmates. Enforcement of regulations as to what may

be maintained is left, in large measure, to the discretion of

the officer conducting the search. My own limited obser-

vation, as is mentioned in my memorandum of February

15, 1979, revealed an instance upon which the opportunity

for a prisoner to make a plea or an explanation on his own

behalf resulted in saving his property from confiscation. It

was obvious that this fact meant a good deal to him, and I

bclieve that the incident justifies a significant generalization.

Due process, after all, means fair treatment under the

circumstances. I believe that to allow these prized posses-

sions to be confiscated under subjectively enforced regu-

lations, without giving the possessor any opportunity to

explain or protest or entreat, deprives him of his property

without due process of law.

The Court of Appeals remanded this case because, in

rendering my decision, I relied, in part, upon the belief that

*. . . proof of the availability of less restrictive means dem-

to security concerns, and that Wolfish rejected such a mode

of analysis.’’ (See Court of Appeals Memorandum Decision

of August 8, 1980, page 2). In giving reconsideration to

this matter, I put aside altogether the now rejected doctrine

and base my reaffirmance upon the other portions of my

earlier memoranda and upon this memorandum, all of which

I believe to be in harmony with Bell v. Wolfish.

DATED: May 18, 1981.

/s/ William P. Gray

WILLIAM P. GRAY

United States District Judge

29

B. Supplemental Memorandum Opinion and Judgment, Filed

February 15, 1979.

United States District Court, Central District of California.

Dennis Rutherford, Harold Taylor, and Richard Orr, et

al., Plaintiffs, v. Peter J. Pitchess, et al., Defendants. Case

No. CV 75-4111-WPG.

On July 25, 1978, this court issued a Memorandum of

Decision in which it concluded, from the evidence at trial,

that specific corrective action would be required concerning

certain conditions and policies at the Los Angeles County

Central Jail. The Memorandum expressed a ‘reluctance to

impose specific requirements with regard to other conditions

and policies without further consideration. For this reason,

no order was issued, and additional evidentiary hearings

were held, followed by further briefing.

In the meantime, the defendant Sheriff has adopted and

has begun to implement, even without an order, most of

the changes proposed by the court. Such action provides

further manifestation of the good faith of the Sheriff and

his principal assistants. They and their counsel, like the

attorney for the plaintiffs, have displayed throughout this

litigation a willingness to work out reasonable solutions to

the problems involved in these proceedings. The attitude

thus displayed by the jail authorities has been a strong re-

minder to the court that it should defer to the expertise of

the ‘‘jailer’’ to all appropriate extent.

As stated in my earlier Memorandum, this court is aware

that ‘*. . . [t]he problem .. . in each of the issues here

concerned is to determine the point at which the imple-

mentation of the goals of security and order and safety must

be balanced by the need to preserve for the inmate all of

the constitutional rights that the fact of his incarceration will

permit.’’ In resolving the remaining issues in this Memo-

. - » = . re . 4 ‘ -

eit a se. lh! CS Ee ns etl Ae ee ey

=

randum, I have sought to apply the test of whether the

chollenged conditions or restrictions are reasonably neces-

sary to the maintenance of security, order and safety in the

institution, or whether they constitute an exaggerated re-

sponse by the custodial officials to these considerations.

This test was ably expounded in the case of Feeley v. Samp-

son, 570 F.2d 364 (ist Cir. 1978). Theoretically, it is less

burdensome upon the custodial authority than the ‘‘strict

scrutiny’’ standard, under which a state must justify every

restriction imposed upon an inmate as being based upon a

*‘compelling interest,’’ and must show that there is no fea-

sible ‘‘less restrictive alternative.’’ See, Campbell v.

McGruder, 580 F.2d 521 (D.C. Cir. 1978). However, at

least for purposes of this case, applications of the two tests

involve differences only as to starting points, and the results

are substantially the same whichever path of analysis is

followed. We are dealing with pre-trial detainees, men who

have not been convicted and thus still are entitled to as much

benefit from the presumption of innocence as may be ac-

corded them, granted the need to confine them to insure

their presence at trial. ‘‘Any restriction or condition that is

not reasonably related to this sole stated purpose of con-

finement would deprive a detainee of liberty or property

without due process, in contravention of the Fourteenth

Amendment.’’ See, Campbell v. McGruder, 580 F.2d 521,

528 (D.C. Cir. 1978), quoting from Duran v. Elrod, 542

F.2d 998, 999-1000 (7th Cir. 1976). Under such circum-

stances, if jail security and order can be protected by less

restrictive means, the conditions and practices challenged

here must be deemed unreasonable as an exaggerated

response.

Hence, in undertaking to decide these remaining issues,

the court is again confronted with the question of what is

reasonable. This question involves consideration of, inter

tT

alia: the constitutional rights of the inmates; the need to

preserve security, order and safety in the jail; the under-

standable propensity of the Sheriff to favor the latter con-

sideration when the two are not fully harmonious; and the

duty of the court to give appropriate deference to the ex-

pertise of the Sheriff and still fulfill its above-mentioned

constitutional responsibility.

Contact Visits. Testimony at the supplemental hearing

reaffirmed the court’s awareness of how important it is to

a prisoner that he be able to have contact visits from time

to time with persons that are emotionally close to him. Such

testimony also demonstrated clearly the great burden that

would be imposed upon the jail authorities and the public

if such contact visits were to be accorded all or most of the

five thousand prisoners at the jail. Expensive construction

would be required in order to create a new, large and secure

visiting area that would be insulated from the jail and from

the outside by separate sally ports. The processing of visitors

would have to include careful identification, sometimes in-

cluding interviews, personal searches and the checking of

hand-carried articles. Prisoners necessarily would be strip-

searched upon leaving the visiting area. Substantially in-

creased numbers of guards would be required for visual

This complicated, expensive, and time-consuming proc-

ess, coupled with the fact that contact visits are inherently

more protracted than those that can be terminated simply

by cutting off the telephones, inevitably would reduce far

below the present level of two thousand per day the numbers

of visits that could be accommodated.

A further problem that is of great concern to the jail

authorities is the fact that the establishment of any program

of contact visits does increase the importation of narcotics

into a jail, despite all safeguards and precautions. The Sher-

a ,

iff also is concerned about the increased possibility of the

introduction of weapons and of escape attempts with the

taking of hostages.

From the foregoing summary, it is apparent that many

factors strongly militate against the allowing of contact vis-

its. Most of the pre-trial detainees remain at the jail only

for a few days or weeks, and I cannot conclude that their

hardship in being unable to embrace their loved ones for

such a limited period of time renders unreasonable the un-

willingness of the Sheriff to accommodate them in this re-

spect. The impracticability of such accommodation is so

great that this deprivation must be considered to be one of

the inconveniences that necessarily stem from the need for

However, the foregoing discussion does not solve the

entire problem. In Campbell v. McGruder, 580 F.2d 5721,

532 (D.C. Cir. 1978), Chief Judge Bazelon said, in writing

the opinion for the court: ‘‘[TJhe responsibilities of the jail

increase as the period of the detainee’s incarceration grows

longer. Conditions that might be tolerable for ten days,

might be unacceptable if imposed for a month or longer.’’

I believe this statement to be pertinent here. Unfortunately,

considerations of public safety make it necessary that some

accused (but not yet convicted) defendants be obliged to

remain in custody for many months pending trial. I have

become convinced that in such instances the factors that

make it impracticable to provide contact visits for large

numbers of men with stays of short duration are much less

compelling. On the contrary, I believe that if a man is

incarcerated in the jail for more than a few weeks, principles

of basic human decency require that all reasonable attempts

be made to permit him to kiss his wife or his girlfriend and

to hug his children once in a while during this long, difficult

and inherently depressing period in his life.

By the time that a man has been held for a month, quite

a bit is known about him, due to the investigative and

classification process that has been conducted, and the op-

portunity to observe his day to day conduct. If contact visits

were to be limited to men who have been in uninterrupted

custody for a month or more and who are not determined

to be drug oriented or escape risks, the number of prisoners

eligible for such treatment would be reduced greatly, and

by placing a maximum limit upon the total number of contact

visits per week, the scope, burden and dangers of the pro-

gram would be substantially diminished.

Such a curtailment in the number of contact visits would

mean that the massive construction that would be required

in order to facilitate such visits for the entire jail population

could be avoided. Modest alteration within the jail presum-

ably could provide appropriate space, or the Sheriff might

choose to establish a facility for such visits outside the jail

and transport the inmates back and forth.

An order will be issued requiring the defendants to make

available a contact visit once each week to each pre-trial

detainee that has been held at the jail for one month or more

and concerning whom there is no indication of drug or

escape propensities; provided, however, that no more than

fifteen hundred such visits need be allowed in any one week.

In the event that the number of requested visits in any week

exceeds fifteen hundred, or such higher number as the Sher-

iff voluntarily undertakes to accommodate, a reasonable

system of rotation or other priorities may be maintained.

The lengths of such visits shall remain in the discretion of

the Sheriff.

Rooftop Recreation. in my earlier Memorandum, I ex-

pressed the lament that the defendants have ‘‘. . . substan-

tially ruined [the roof] as a place for basketball and other

team sports by installing upright lengths of steel pipe every

ini

twenty-seven feet throughout the floor surface.’’ Counsel

for the defendants, in his brief, referred to such comment

as an instance in which ‘‘The Court has wandered off on a

lark of its own. . . .”’ Upon further reflection, I am forced

to the conclusion that counsel is right and that no corrective

order is appropriate. I am still convinced that ‘‘[i}f the jail

authorities were to put their minds to the matter, . . . they

would find ways to remove all or most of those posts that

so seriously diminish the adequacy of the roof for physical

exercise, and still keep the escape and assault risks under

reasonable control.’’ However, I suppose that whether the

roof conditions permit the inmates to play full-court bas-

ketball or unnecessarily restrict them to ‘‘half-court’’ is a

matter that does not rise to constitutional dimensions.

Restoration Of Windows. Evidence at the supplemental

hearing has in no sense altered my conviction that the win-

dows must be restored in the original portion of the jail.

The right of the inmates not to be deprived of all view of

the outside world far outweighs the inferred danger of se-

rious escape attempts or contraband importation through

holes that might be made in the ‘‘unbreakable’’ glass avail-

able for installation.

From the testimony at the supplemental hearing, it ap-

pears that an agile inmate wielding a heavy metal instrument

could break the best available glass by giving it from thirty

to forty heavy blows. The noise created by such activity

would reach a decibel count of between 100 and 120, which

is roughly equivalent to the sound of a nearby jet aircraft

beginning its takeoff.

Alternatively, an inmate with a propane torch, or a cell-

made substitute therefor, could penetrate the best ‘‘security

proof’’ glass and, in about four to eight minutes, make a

hold large enough for a person to squeeze through. A by-

product of such effort would be a large quantity of black

a |,

pungent smoke.

Beyond doubt, the jail is ably administered, a fact that

militates heavily against an inmate having access to an iron

bar or a torch. It also seems reasonable to assume that the

noise or the smoke created by any such benighted venture

would attract the attention of an alert guard well before a

significant breach could be accomplished. Also, if a hole

were to be made in a window, I have no doubt whatever

of the resourcefulness of the jail authorities in being able

to prevent narcotics or other contraband from being passed

through the opening pending permanent restoration.

The replacing of the windows with sheet steel clearly was

an exaggerated response to a remote danger and was in

derogation of the legitimate interests of the detainees. The

windows must be restored promptly.

Cell Searches. In my earlier Memorandum, I expressed

the conclusion that ‘*. . . shakedowns should be made while

the respective inmates remain outside their cells but near

enough to observe the process and raise or answer any

relevant inquiry.’’ This conclusion now is reaffirmed, par-

ticularly in light of the subsequent demonstration of four

alternative methods of cell search presented by the Sheriff.

Method A involved searching all of the cells in a row while

the inmates remained in the day room, which is the manner

in which searches currently are conducted. In Method C,

the men occupying a particular cell were brought from the

day room and stood outside their cell while it was being

searched. When such search was completed, the men were

locked in their cell and the remaining cells were searched

successively in the same manner. Methods B and D are so

unsatisfactory and expensive that no further comment con-

_ cerning them is indicated.

According to the statistics reported by the defendants,

Methods A and C take substantially the same amount of

bs A ¢, ie) oe Oe ae

—=— =

time, and C is slightly more expensive, due to the need to

utilize a few more deputies to escort the prisoners and to

insure against assault upon the deputies that are engaged in

searching the cell.

At the invitation of counsel for the defendants, I asked

two ‘‘experienced’’ inmates whose cell was being searched

which method they preferred. The ready responses were that

they preferred to be present so that they could see what was

going on, and in order that they might seek to explain why

certain questioned items should not be removed. Coinci-

dentally, while I was watching the search of that very cell,

one of the deputies started to remove a magazine as not

being sufficiently current and thus in violation of regulations

designed to minimize fire danger by preventing accumu-

lation of old periodicals. Upon being asked to reconsider,

the deputy found that it was not as old as he had thought

and left it. The same deputy started to discard another mag-

azine on the ground that it lacked a cover. The inmate urged

him to riffle the pages a bit; he did; the cover thereupon

appeared; and the magazine stayed in the cell.

These are small matters; but they are important to the

detainees, and their legitimate interests in protecting their

meager possessions outweigh the small increase in the bur-

den upon the defendants.

Implementing Judgment. 1 believe that my Memoran-

dum of July 25, 1978, and this Memorandum cover all of

the matters concerning which affirmative action is deemed

by the court to be required. A judgment containing such

orders will be filed contemporaneously herewith. In all other

respects, I find that the issues raised by the plaintiffs (apart

from the medical issues, which are involved in separate

pending proceedings) do not merit court intervention at this —

= =

This Memorandum and the Memorandum of July 25,

1978, shall constitute findings of fact and conclusions of

law, as provided in Rule 52(a) of the Federal Rules of Civil

Procedure.

DATED: February 15, 1979.

/s/ William P. Gray

WILLIAM P. GRAY

United States District Judge

Judgment.

United States District Court, Central District of California.

Dennis Rutherford, Harold Taylor, and Richard Orr, et

al., Plaintiffs, v. Peter J. Pitchess, et al., Defendants. Case

No. CV 75-4111-WPG.

Filed Feb. 15, 1979.

In this action, the plaintiffs, on behalf of inmates of the

Los Angeles County Central Jail, challenge certain policies

and practices of the defendant administrators of the jail and

tained. The matter has been tried and briefed, and the court

has made findings of fact and conclusions of law in the

form of a Memorandum of Decision filed on July 25, 1978,

and a Supplemental Memorandum of Decision that is being

filed contemporaneously herewith. In accordance with such

findings, the court renders this judgment.

IT IS ORDERED AS FOLLOWS:

1. Beds. Every prisoner kept overnight in the jail will

be accorded a mattress and a bed or bunk upon which to

sleep.

This order shall not preclude the defendants from per-

mitting inmates to be housed with full bedding but without

a bunk, for one night only, if, in the defendants’ judgment,

such inmate or inmates require more secure housing than is

a a

provided in the available areas and the appropriate housing

does not have a sufficient number of bunks. Further, this

order shall not apply in the event of an emergency causing

a sudden and unusual intake of prisoners, in which case full

bedding shall be provided and the defendants will exercise

their best efforts to provide bunks for all inmates as soon

as possible.

2. Visitation.

(a) Visits By Children Of Prisoners. Upon prior re-

quest from a prisoner, his minor children over the age of

twelve (12) years shall be permitted to visit him unaccom-

panied by an adult.

(b) Contact Visits. Commencing not more than ninety

days following the date of this order, the defendants will

make available a contact visit once each week to each pre-

trial detainee that has been held in the jail for one month

or more, and concerning whom there is no indication of

drug or escape propensities; provided, however, that no

more than fifteen hundred such visits need be allowed in

any one week. In the event that the number of requested

visits in any week exceeds fifteen hundred, or such higher

number as the Sheriff voluntarily undertakes to accommo-

date, a reasonable system of rotation or other priorities may

be maintained. The lengths of such visits shall remain in

the discretion of the Sheriff.

3. Outdoor Recreation. All prisoners except those that

are hospitalized, in disciplinary segregation, those under the

jurisdiction of the medical staff of the Forensic Mental Health

Unit who such medical staff determine are inappropriate for

roof recreation, and except for those high security inmates

who the Sheriff believes cannot safely be permitted roof

recreation shall be allowed not less than two and one-half

hours of outdoor exercise or other recreation per week.

ee

Within sixty days following the date of this order, the Sheriff

shall report to the court the number of inmates under the

jurisdiction of the Forensic Mental Health Unit and the

number of high security inmates included in the roof rec-

reation program and the nature of alternative recreation pro-

vided for high security inmates not allowed roof recreation.

4. Indoor Recreation. Television receiving sets shall

be installed and reasonably maintained in each day room.

5. Restoration Of Windows. Within ninety days fol-

lowing the filing of this order, transparent windows shall

be restored in each portion of the jail from which they

previously have been removed.

6. Processing For Court. As soon as practical, but

not more than four months from the date of this order.

(a) each detainee placed in a holding cell will be given

a chair or a bench upon which to sit;

(b) on each day of trial after the first day a detainee will

not be required to leave his bed earlier than 6:00 A.M., and

will not be confined in a holding cell for longer than thirty

minutes, either before leaving for court or following his

return; and his waiting time on a bus at the jail will not

exceed thirty minutes; and he will be returned to his cell

not laier than 8:00 P.M.

Within four months from the date of this order, the Sheriff

shall report his progress in this regard to the court and the

reasons, if any, for his inability to comply in all respects.

At that time, the court will review this portion of this order

as to whether there is any justification for modification

thereof .

7. Telephones. On January 5, 1979, a separate order

was filed approving and directing implementation of a plan

-for the improvement of telephone facilities in the jail. Ac-

cordingly, no further order is indicated on this subject at

—40—

8. Cell Searches. Inmates that are in the general area

when a ‘‘shakedown’’ inspection of their cells is undertaken

shall be permitted to be sufficiently proximate to their re-

spective cells that they may observe the process and respond

to such questions or make such requests as circumstances

may indicate.

9. Time For Meals. An inmate shall be allowed not

less than fifteen minutes within which time to complete each

meal.

10. Change Of Clothing. Effective not more than sixty

days following the filing of this order, each inmate shall

receive at least twice each week clean outer garments, un-

dergarments, socks and a towel in exchange for those that

he has been using.

hl. Injunctive Relief. When any inmate has infor-

mation that he believes to disclose a violation of this order,

he may set forth that information in writing to the Com-

mander of the jail who shall cause an investigation thereof

to be made as soon as reasonably practicable, and in any

event within ten days following receipt of such written state-

ment. Promptly following the completion of the investi-

gation the Commander shall deliver a written reply to the

inmate indicating the results thereof and what, if any, action

has been taken concerning the inmate’s complaint and what,

if any, action has been taken to prevent violations of this

pelling reasons why following this procedure would result

in substantial prejudice to the inmate, no petition for a

judgment of contempt for violation of this order shall be

entertained by the court until the inmate first complies with

for contempt for violation of this order, the court shall take

rT

into account the appropriateness of any action taken by the

jail Commander in response to information provided him in

accordance with this procedure.

12. Emergencies. In the event that the Sheriff or his

authorized representatives have reasonable cause to believe

that there exist facts showing a serious imminent threat to

the security of the jail or the safety of any persons therein

that would occur if any of the provisions of this decision

were enforced and there is insufficient time to seek a formal

modification or exception to such provisions, the Sheriff

may temporarily suspend such of the provisions of this de-

cision as may be necessary to overcome or reduce such

threat for a period not exceeding five court days, provided

he submits a statement in writing to this court setting forth

what he has done and why he has done it.

13. Posting Of This Judgment. The defendants and

their successors in interest shall cause this judgment to be

posted permanently and conspicuously in each prisoner

housing area in the jail for the period of one year; thereafter,

the defendants and their successors in interest shall per-

manently and conspicuously post this judgment in each of

the jail’s law libraries. .

14. Counsel for the plaintiffs shall recover his costs

incurred in this action.

DATED: February 15, 1979.

/s/ William P. Gray

WILLIAM P. GRAY

United States District Judge

C. Reported Memorandum Opinion, 457 F.Supp. 104 (C.D. Cal.

1978).

United States District Court, Central District of California.

Dennis Rutherford, Harold Taylor, and Richard Orr, et

al., Plaintiffs, v. Peter J. Pitchess, et al., Defendants. Case

Py SEM OP: ee oi iN eye $> Re Oped ped Vi oo gate ve

os. va

No. CV 75-41111-WPG.

Filed July 25, 1978.

This action seeks injunctive and declaratory relief, on

constitutional grounds under 42 U.S.C. § 1983, against cer-

tain practices and conditions of confinement at the Los An-

geles County Central Jail (the ‘‘jail’’). The court previously

has established the plaintiff class as consisting of all pris-

oners in the jail since December 31, 1975. The court finds

that the class is so numerous that joinder is impracticable;

that the questions of law and fact and the claims presented

by the class representatives are common to the class; and

that the outstandingly competent representation provided the

named plaintiffs by Terry Smerling, Esq., of the ACLU

Foundation of Southe:a California, will adequately protect

the interests of the class as a whole.

The defendants are the Sheriff of Los Angeles County,

some of his subordinates that are concerned with the admin-

istration of the jail, and the members of the County Board

of Supervisors.

Trial of this case involved about seventeen days of tes-

timony, the receipt of many exhibits, and the submission

of thoroughly prepared pre-trial and post-trial briefs. In ad-

dition, with the prior agreement of counsel, the court made

unannounced visits to the jail on September 23, 1977, and

June 12, 1978.

The plaintiffs have challenged the constitutionality of many

aspects of the housing and treatment of inmates at the jail.

In this memorandum, I shall undertake to resolve these

issues, bearing in mind, as best I can, the dilemma that

confronts every federal judge before whom a case such as

this is litigated. On the one hand, we are reminded that

**. . . courts are ill equipped to deal with the increasingly

urgent problems of prison [and presumably ‘‘jail’’] admin-

, oR” &

- : i “a eal

— + of ef & - en

WW « Pa tn ee eee 8 eS as ee

—43—

istration and reform’’ , Procunier v. Martinez, 416 U.S. 396,

405 (1974), and that considerations of institutional security

should be left to the expertise of state correctional officials

unless they ‘‘have exaggerated their response to these con-

siderations.’’ Pell v. Procunier, 417 U.S. 817, 827 (1974).

On the other hand, these same decisions go on to state

that ‘‘[cJourts cannot, of course, abdicate their constitutional

responsibility to delineate and protect fundamental liber-

ties.’’ Pell v. Procunier, 417 U.S. at 827, and that:

. . . a policy of judicial restraint cannot encompass

any failure to take cognizance of valid constitutional

claims whether arising in a federal or state institution.

When a prison regulation or practice offends a fun-

damental constitutional guarantee, federal courts will

discharge their duty to protect constitutional rights.”’

Procunier v. Martinez, 416 U.S. at 405 (1974).

Every inmate in a penal institution, by the very fact of

his incarceration, necessarily is deprived of some of the

constitutional rights that otherwise would be his to enjoy.

Price v. Johnston, 334 U.S. 266, 285 (1948). But he retains

those rights *‘. . . that are not inconsistent with his status

as a prisoner or with the legitimate penological objectives

of the corrections system.’’ Pell v. Procunier, 417 U.S. at

822. Of course, institutional security and order and the

physical safety of jail personneland inmates are necessarily

paramount objectives of any jail administrator. If those were

the only considerations, there would be no occasion for a

court to ‘second guess’’ the expertise of the Sheriff in

pursuing such objectives. The problem, then, in each of the

issues here concerned is to determine the point at which the

implementation of the goals of security and order and safety

must be balanced by the need to preserve for the inmate all

of the constitutional rights that the fact of his incarceration

Bet we

will permit.

Issues of this nature have been brought to federal courts

with increasing frequency during the past several years, and

the task of accomplishing this balancing process is always

difficult. Most courts are sympathetically mindful of the

problems of the ‘‘jailer’’ and desire to defer to his experience

and expertise to all appropriate extent. On the other hand,

as Judge Frankel said in United States ex rel Wolfish, et

al., v. Levi, 439 F. Supp. 114, 141 (S.D. N.Y. 1977),

**. . . the court is not free to blink away the common aware-

ness that zeal for security is among the most common ya-

rieties of official excess.’’

So, in considering whether a prisoner is being denied his

due process rights under the Fifth or Fourteenth Amend-

ments, his First Amendment rights, or the right, accorded

by the Eighth Amendment, to be free of conditions that

constitute crue] and unusual punishment, the courts must

seek to determine what is reasonable under the circum-

stances at hand. In Rochin v. California, 342 U.S. 165, 170

(1952), Justice Frankfurter delivered a wise admonition to

courts engaged in making these determinations:

“*The vague contours of the Due Process Clause do

not leave judges at large. We may not draw on our

merely personal and private notions and disregard the

limits that bind judges in their judicial function. Even

though the concept of due process of law is not final

and fixed, these limits are derived from considerations

that are fused in the whole nature of our judicial

process.”’

Accordingly, I have sought to determine the issues here

presented in light of the body of law that has developed by

the decisions of other courts confronted with similar prob-

lems. In doing so, I have been impressed by Chief Justice

Warren's observation in Trop v. Dulles, 356 U.S. $6, 100-

—_

101 (1958), that **. . . the words of the [Eighth] Amendment

are not precise, and that their scope is not static. The Amend-

ment must draw its meaning from the evolving standards

of decency that mark the progress of a maturing society.’’

I hope also to take heed of an equally pertinent comment

by Justice (then Judge) Blackmum that in considering prob-

lems of the type here concerned, **. . . broad and idealistic

concepts of dignity, civilized standards, humanity, and de-

cency are useful and usable.’’ Jackson v. Bishop, 404 F.2d

571, 579 (8th Cir. 1968).

One further consideration must be taken into account.

Most of the inmates at the jail are pre-trial prisoners. They

are there, not to receive punishment for their misdeeds, for

their guilt has not yet been established. They are there be-

cause it has been deemed necessary to incarcerate them to

insure their presence at trial. Thus, they are entitled to the

least restrictive alternatives consistent with the purpose of

their incarceration. Brenneman v. Madigan, 343 F. Supp.

128, 138 (N.D. Cal. 1972).

We now deal with the specific complaints.

Inadequacy of Cell Space. The jail normally confines

more than five thousand inmates, a majority of whom oc-

cupy cells designed to hold four, six or eight men. The

plaintiffs complain that these cells are so impermissibly

small that they contain less than 25 square feet of floor

space for each man, and that the larger part of this space is

taken up by the bunks and toilet. The plaintiffs point out

that such cell space is far less than the 40 square feet per

inmate prescribed as a minimum by the California Minimum

Jail Standards, 15 Cal. Adm. Code § 1081(d), and that

parable, or even larger, space to be constitutionally inade-

quate. See, ¢.g., Detainees of Brooklyn H. of Det. for Men

v. Malcolm, 520 F.2d 392, 398 (2d Cir. 1975) (20 square

_ ¢ : : ¥ Pv ee », - ee al a

RT See NY A aeN CL ee Ee Pe Ra Oa eae eee Pepe

me’ ae

feet); Moore v. Janing, 427 F. Supp. 567, 572 (D. Neb.

1976) (20 square feet); Inmates of Suffolk County Jail v.

Eisenstadt, 360 F. Supp. 676, 679 (D. Mass. 1973); aff'd

on other grounds, 494 F.2d 1196 (ist Cir. 1974), cert denied

419 U.S. 977 (1974); aff'd on other grounds, 518 F.2d

1241 (1st Cir, 1975) (44 square feet). In Gates v. Collier,

390 F. Supp. 482, 486 (N.D. Miss. 1975), aff'd on other

grounds, 525 F.2d 965 (Sth Cir. 1976), Chief Judge Keady

stated that ‘‘[w]e know from the undisputed evidence that

generally accepted correctional standards require a mini-

mum of 50 square feet of living area for each prison inmate.”’

Both from the testimony at the trial and from my personal

inspection of the cell rows in the course of the September

23, 1977 visit, it is apparent to the court that the multiple

occupancy cells in both the ‘‘old’’ and new sections of the

jail and the general atmosphere in which they are located

present poor examples of the civilized standards and con-

cepts of dignity, humanity and decency to which Justice

Blackmun made reference in Jackson v. Bishop, supra. The

cells are much like those in the Hall of Justice Jail, as I

pointed out in Dillard v. Pitchess, 399 F. Supp. 1225, 1231

(C.D. Cal. 1975), a case in which the living conditions

there were held to be intolerable. However, the opinion in

that decision made a significant comparison. Hall of Justice

inmates were confined in their cells almost constantly. By

contrast,

. . . inmates at the Central Jail have several advan-

tages not available to Hall of Justice prisoners, the most

important of which are that they take their meals in a

dining room and have daily use of shower rooms lo-

cated at the ends of the cell modules. Also, one of

several day rooms is frequently available to Central

Jail prisoners, where they may sit at tables and play

Goan ce wally or RE See

oobi

several hundred inmates is used for the presentation of

occasional shows or musical entertainment, as well as

regular church services.’’

The cells of the Central Jail are, indeed, small, but in

view of the frequent and substantial periods of time that the

inmates are allowed to be out of their cells, I am not able

to conclude that the matter of the limited number of square

feet of sleeping space per man presents a constitutional issue

that requires immediate action. Matters discussed later in

this memorandum present problems that may require sub-

stantial modifications in the system of allocating prisoners

among the penal facilities of Los Angeles County. It is

expected that any such adjustment ‘*. . . will take into ap-

propriate account the increasingly enlightened standards with

respect to the living space that should be accorded each

inmate.’’ See, Stewart v. Gates, __. F. Supp. ——, — ~

(C.D. Cal. 1978).

The evidence at the trial disclosed the fact that from time

to time a particular module becomes so crowded that there

are more inmates than bunks. As a result, the ‘‘overflow’’

men are obliged to sleep on mattresses on the concrete floor

of the cell or of the walkway that fronts a row of cells. As

was indicated earlier in open court, I find this to be intol-

erable. ‘‘If the public, through its judicial and penal system,

finds it necessary to incarcerate a person, basic concepts of

decency, as well as reasonable respect for constitutional

rights, require that he be provided a bed."’ Stewart v. Gates,

supra, at page __. An order to such effect will be included

in the judgment that will implement this memorandum.

Visitation. The plaintiffs complain that an inmate at the

jail is separated from his visitor by a transparent glass par-

tition and must use.a ‘‘telephonc’’ for voice communication.

The defendants respond by emphasizing that to permit con-

tact visits would increase the risks of physical harm, escape

a

and importation of drugs and other contraband. They point

out that the measures that would have to be taken to guard

against such risks, including strip searches and greatly in-

creased supervision, would make it impossible for the jail

to accommodate the more than two thousand visits per day

that are now being accorded.

It is evident that to allow unrestricted contact visitation

would add greatly to the Sheriff's security problems and

reduce the numbers of allowable visits. On the other hand,

it is equally obvious that the ability of a man to embrace

his wife and his children from time to time during the weeks

or months while he is awaiting trial is a matter of great

importance to him. The problem that confronts us here was

well expressed by Judge Lasker in Rhem v. Malcolm, 371

F. Supp. 594, 605 (S.D. N.Y. 1974); aff'd 507 F.2d 333

(2d Cir. 1974);

‘*There can be no doubt that the necessity of assuring

security must be balanced against the right to humane

treatment of prisoners, and that if contact visits are

incompatible with that need they must be sacrificed.

The critical question is whether the two can coexist.’’

It seems to me that a reasonable balance can be struck

between these two valid considerations of security and pris-

oners’ rights. Under the classification process that the Sher-

iff has established and is now implementing, within two

weeks after an inmate arrives at the jail, the staff has learned

enough about him to make a tentative evaluation as to whether

he presents a security threat from the standpoints of being

escape prone or drug oriented or otherwise, and he is class-

ified accordingly. It is my understanding that a substantial

proportion of the inmates are given a low risk classification _

in these respects. As to them, the dangers to security would

appear not to be sufficient to justify depriving them of all _

physical contact with their loved ones, bearing in mind the

=” en

supervision and post-visit searches that the custodial staff

would administer.

In order that the additional processing not overburden the

prison staff and thus curtail the total number of visits that

it could reasonably handle, a qualified inmate might be

limited in the number of contact visits that he might receive.

At the outset, one visit per week might be appropriate,

subject to modification in light of experience.

The evidence at trial indicated that most of the inmates

remain at the jail less than one week. By restricting the

contact visits to those who have been in the jail for two

weeks and have received other than a high risk classification,

and by imposing limits upon the frequency of their visits,

it would appear that the numbers of such visits would be

reasonably manageable.

Counsel for the defendants has advised that Biscailuz

Center probably will be fully reactivated shortly as a place

of pretrial detention. In such event, it is assumed that it will

house a substantial number of low risk inmates that other-

wise would be kept in the Central Jail. If this occurs, it will

further ease the problem of according contact visits in the

Central Jail, and the court would expect that this type of

visitation would be established at Biscailuz Center.

This court is hopeful that the above described tentative

proposal can enhance considerably the goal of treating the

the problems of security. Any order implementing these

comments concerning the allowance of contact visits will

be withheld pending a further opportunity for the parties to

express their views and suggestions. A hearing for that

purpose will be scheduled shortly after the filing of this

memorandum.

Under the present arrangement, 228 visitors are accom-

modated at one time in separate ‘‘telephone’’ cubicles and

'

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are allowed to remain twenty minutes. The defendants point

out that the visiting facilities are in use twelve hours per

day throughout the week; that 63,000 visitors are accom-

modated each month; and that logistical problems neces-

sitate the twenty-minute limitation in order to accommodate

the large numbers of weekly visits that are desired. The

plaintiffs urge that this is too short a time and they seek to

show that hour long visits could be accomplished without

reducing the numbers of people that could be served.

It is evident that the Sheriff and his staff fully recognize

the value of visitation, and they are to be commended for

the attention and effort that they devote to accommodating

such a large number of people. I am unable to conclude

that whether individual visitors should stay only twenty

minutes or could be allowed more time raises a constitutional

issue that requires the court to second guess the Sheriff in

this matter.

Under present regulations, individuals under eighteen years

of age are not admitted to the jail to visit an inmate unless

they are accompanied by an adult. This means that a teenage

person that is fully capable of coming to the jail alone would

be unable to visit his or her father unless the mother or

some other friend would be available to come along, a

situation that, unfortunately, is not always the case. The

reluctance of the Sheriff to open the jail to unaccompanied

visits by children under any and all circumstances is un-

derstandable. Nonetheless, inmates should be permitted,

upon prior request, to receive unaccompanied visits from

Outdoor Recreation. Except for the corridors, or free-

ways, that front the rows of cells, the only areas available

for physical exercise are portions of the roof of both the

original jail and the new addition. Under schedules worked

out by custodial personnel, prisoners are allowed two and

Ete

atin.

one-half hours per week, at most, for recreation on the roof,

in groups of about 130. This is considerably less than the

daily outdoor exercise of one hour that several federal courts

have required as a minimum. See, e.g., Mitchell v. Un-

treiner, 421 F. Supp. 886, 901 (N.D. Fla. 1976); Campbell

v. McGruder, 416 F. Supp. 100, 105 (D. D.C. 1975);

Conklin v. Hancock, 334 F. Supp. 1119, 1122 (D. N.H.

1971).

Neither citation of legal authorities nor testimony of ex-

perts is needed in order to convince this court of the im-

portance of regular outdoor exercise to the physical health

and emotional well being of the men (particularly the young

men) that make up the jail population. Clearly, they should

have at least an hour for such purpose each day. The de-

fendants do not challenge this. However, they understand-

ably point out that the limited size of the rooftop areas

available, the succession of complex routines that occur

within the jail each day, and the logistical problems of

controlling and moving large numbers of prisoners back and

forth to the roof, limit substantially the opportunity for out-

door recreation.

The rooftop program was newly inaugurated at the time

of trial, and the jail officials have had insufficient oppor-

tunity to assess the extent to which it reasonably can be

expanded. Under all of the circumstances, including the

defendants’ apparent good faith desire to provide for ade-

quate recreation, I am of the view that one hour per day

should be considered a goal, rather than a constitutionally

mandated minimum. The court will retain jurisdiction in

order to assess the progress toward such goal. In the mean-

time, all prisoners, including those considered “‘high power’’

-and those in administrative segregation, must be allowed

not less than two and one-half hours of roof recreation per

—

The roof of the new portion of the jail provides a rea-

sonably large open expanse. But the defendants have sub-

stantially ruined it as a place for basketball and other team

sports by installing upright lengths of steel pipe every twenty-

seven feet throughout the floor surface. These uprights sup-

port steel ‘‘eye-beams’’ that, along with the eighteen feet

high perimeter wall, support the heavy wire screen that

covers the entire area. The top of the wall on two sides is

about eighty feet above the ground that abuts it; on the third

side the roof of the Inmate Reception Center is about thirty

feet below the top of the wall.

Custodial personnel assert that the screen is necessary in

order to counteract the risk of someone from the outside

throwing a weapon over the wall and into the recreation

area, and to prevent escape over the wall with the aid of a

jail-made ‘‘grappling hook’’ and line or a suddenly formed

human pyramid.

Here is one instance in which it seems to me that the

concern for security has resulted in an exaggerated response.

If the jail authorities were to put their minds to the matter,

I am sure that they could find ways to remove all or most

of those posts that so seriously diminish the adequacy of

the roof for physical exercise, and still keep the escape and

assault risks under reasonable control. Such study and con-

sequent readjustment will be required.

Indoor Recreation. The plaintiffs complain that inmates

are allowed insufficient time to use the day rooms or to

*‘stretch their legs’’ by walking back and forth along the

walkways (‘‘freeways’’) that extend across the front of each

row of cells. The defendants refer to a new program that

began at about the time cf trial under which all inmates,

other than those of maximum security classification, have

considerably increased use of the day rooms and freeways.

Maximum security inmates are given access to the freeway

ee Ha

on a limited basis. Inasmuch as they are considered generally

to be assault prone, they are not allowed in the day rooms

and are escorted whenever they must be in areas where other

people are present. The defendants appear to be heading

voluntarily and appropriately in the direction of allowing as

much day room and freeway time as scheduling problems

' and reasonable security considerations will allow. There-

fore, no order in this respect is presently indicated.

The day rooms once had television sets, but as they be-

came inoperative because of internal malfunction or van-

dalism they were removed and not restored. Without im-

plying any endorsement of the quality of most of the daytime

television programs, it is obvious that people that are con-

fined derive considerable recreational value from them. The

jail authorities have agreed to reestablish television in the

day rooms promptly. They should do so.

The plaintiffs complain of unconstitutional discrimination

because inmates that agree to work, and thus become trus-

tees, are given more privileges than are other prisoners. They

may enter and leave their cells at will, have virtually un-

restricted access to a day room and many other areas of the

jail, and may attend weekly movies. I do not find such

discrimination improper. Many menial chores must be per-

formed regularly if the jail is ‘o operate. In order to induce

inmates to work at these tasks, the Sheriff is entitled to

“hold out the carrot’’ of certain privileges that from a prac-

tical standpoint could not, or constitutionally need not, be

accorded the general jail population. This is all that has

occurred here.

Windows. A prisoner does not catch even a glimpse of

the outside world throughout his entire time of confinement

in the jail, other than the portion of the sky that he can see

during his limited recreational periods on the roof. Thus, a

man may go for many months without even seeing a bush

a

or a tree or any human activity outside the jail. This was

not always so. When the building was constructed, in about

1963, it contained perimeter windows of transparent ‘‘un-

breakable’’ glass. Thus, prisoners in the exterior cells or

mess halls or day rooms had a bit of sunlight and outside

view. However, within a short period of time, inmates suc-

ceeded in destroying several of these ‘‘unbreakable’’ win-

dows, either through vandalism or in fruitless escape at-

tempts. The defendants responded by replacing all of the

windows with solid sheets of steel.

In Rhem v. Malcolm, 432 F. Supp. 769, 778 (S.D. N.Y.

1977), Judge Lasker held that to confine inmates so that

they cannot see ‘‘the sun, sky or outside world’’ is a con-

stitutional deprivation. This court agrees. Of course, as is

recognized at the outset of this memorandum, constitutional

rights must be limited by the reasonable requirements of

security. But the conclusion is inescapable that this is an-

other example of the response being more extreme than the

danger against which it was directed.

Based upon visual observation, the lowest bank of win-

dows is about twenty feet above the ground, and those of

the next floor are about ten feet higher. In parts of the jail,

the windows are immediately accessible to a person standing

on the floor. In other places, they are much harder to reach.

For example, along the upper tiers of the cells, a person

would need considerable agility, dexterity and time in order

to traverse the four-foot wide and very deep gap between

the walkway and the wall in which the windows are set,

maintain himself in a position to try to break a window,

succeed in such attempt, and get through the opening.

I do not claim expertise in assessing the extent of the

ingenuity of a prisoner determined to try to escape, nor am

I aware of all of the appropriate means of frustrating such

attempts. But when consideration is given to the vigilance

er ae

and care with which inmates are watched and supervised,

the heights of the windows above the ground, the possibility

of satisfactory fire resistant unbreakable glass being avail-

able,* and, in any event, the ability to bar and/or screen

windows, this court is simply unable to conclude that the

need to guard against occasional benighted escape attempts

warrants depriving all inmates of any view of the outside

world. To liken the jail, in its present condition, to one of

those infamous dungeons of medieval days would be unfair,

because the jail is well ventilated and reasonably well lighted.

But the action in sealing up the place was a step in the

wrong direction.

Processing For Court. On each court day, between 700

and 1,000 inmates are transported by bus to twenty-six

courts scattered throughout the broad expanse of Los An-

geles County. These prisoners are awakened at about 4:20

a.m., and, after being given breakfast, they are escorted to

the Inmate Reception Center located in the same building

complex as is the jail. Most of the men arrive there at about

5:30 a.m. and are distributed promptly among the more than

thirty holding cells, each of which holds inmates bound for

a particular court.

The holding cells are about fourteen feet by fourteen feet

in linear dimension, and the only furnishing is a toilet. The

early arrivals in the cell are able to lie or sit on the concrete

floor, but as more men are added this becomes increasingly

I counted about twenty-eight men in several of the cells, a

condition of ‘standing room only.’’ One cell, number 21,

became jammed with so many occupants that I could not

but I am not convinced as to the completeness of the search or the

enthusiasm with which it was made.

—56—

count them. Finally, one of the deputies came and directed

that about one-half of the men move to an adjacent cell that

had been cleared. Twenty-two men responded to that order,

and thereafter I was able to count at least thirty-two re-

The men remain in the holding cell for about an hour,

and then, at about 6:15 a.m., the chaining process begins.

The inmates from a particular holding cell form a line in

the adjacent corridor. There they are handcuffed, and then

the handcuffs of each four men are connected with a chain.

The line thereupon moves gradually to the nearby parking

lot and the men board the bus in such manner that two men

of each group of four are seated immediately in front of the

other two, with the connecting chain passing over the back

of the seat that separates them. A little more than an hour

after the start of the boarding process, the buses begin to

roll, and the time of the ensuing trip ranges from a few

minutes to more than an hour, depending upon the desti-

At the end of the court day, between 4:00 and 7:00 p.m.

(sometimes much earlier), the reverse process begins. After

the return bus ride, a shakedown examination, another sub-

stantial wait in a holding cell, and the evening meal, the

men finally are returned to their cells, usually by about 8:00

p-m., but sometimes considerably later.

Any procedure involving the transportation to court of a

group of detainees that present varied security risks is nec-

essarily a demeaning experience for the prisoners. This is

one of the regrettable but unavoidable consequences of the

need for pre-trial detention. But, bearing this in mind, |

find the above described process to be constitutionally in-

tolerable in two respects.

The first glaring problem is the holding cells. The sight

of from twenty to fifty-four men being crammed into a |

RPO ED OS pt Sts?

a, a

fourteen-foot cell is a repelling experience in any society

that takes pride in its high concepts of human dignity. The

closest comparison that I can draw to such a spectacle is

that of an overcrowded pig pen. If the defendants find it

necessary to detain an inmate in a holding cell before placing

him on a bus, or after his return, they must at least give

him a place to sit on a bench or a chair.

This requirement clearly will create a difficult problem

for the defendants, as well as for the court. It is obvious

that the forthcoming order will reduce greatly the numbers

of men that the present holding cells can contain, and it is

doubtful that the Inmate Reception Center, as presently con-

structed, has space available for additional cells. On the one

hand, considerations of constitutional rights and basic de-

cency require that these dehumanizing conditions of holding

cell detention be changed immediately. On the other hand,

the Sheriff has been ordered by competent judicial authority

(both state and federal) to move large numbers of prisoners

back and forth to the various courts every day, and I cannot

reasonably stop the present process in its tracks. The de-

fendants must be given a minimum reasonable time within

which to propose a solution that will make prisoners avail-

able to the courts and still treat them as human beings.

The second constitutional problem perceived in the pres-

ent system for getting inmates to court is even more difficult.

For a man to be subjected to the above described process

that begins at 4:20 a.m. and ends at 8:00 p.m., or later, is

inherently an exhausting and emotionally draining experi-

ence. To go through it once is bad enough; but to be obliged

to repeat it for several successive days, or even weeks, while

he is a defendant on trial, is believed to be constitutionally

intolerable. Due process can hardly be accorded a defendant

that is so worn out by the above described procedure that

he lacks the alertness to help his attorney or to try to ‘‘put

Per te? —_ =

tp

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es

—58—

his best foot forward’’ in the presence of the trier of fact.

The defendants in this case will be required to modify sub-

stantially the present procedure in order to avoid subjecting

inmates on trial to such daily trauma.

It is true that most of the inmates go to court in custody

‘only once or twice, because their cases are dismissed, or

non-custodial sentences are imposed, or they are granted

bail, or they plead guilty and are returned to court only for

sentencing. Put it is largely the fact that the Sheriff must

transport so many men such long distances one or two times

that makes it difficult for him to deal more reasonably with

As is indicated earlier in this memorandum, to be sub-

jected even once or twice to the present process of busing

large numbers of prisoners back and forth to outlying courts

is emotionally draining and dehumanizing. Nonetheless, de-

fendants in custody must be brought before the court, and

if this is the only reasonable procedure, with respect to

prisoners not then undergoing trial, it scarcely can be chal-

lenged as unconstitutional. But the inherent need to haul so

many men so far for purposes other than trial is far from

evident, and if a reasonable and more humane alternative

is available, the constitutional rights of the inmates entitle

them to it.

On the morning that I was present to view the process,

thirty-two large and obviously very expensive six-wheel

buses, each controlled by two deputy sheriffs and filled with

inmates, left the parking lot. From casual conversation, it

appeared evident that most of these men were scheduled for

arraignment or for other purposes not requiring the presence

of witnesses. It is not readily apparent why all judicial

processes involving defendants in custody, other than trial

and sentencing after trial, could not be performed in court-

_ en

rooms constructed within, or immediately adjacent to, the

Central Jail.* To the extent that locally assigned judges

could not properly handle such calendars, it would be far

less expensive and cumbersome for the Sheriff to transport

one or more judges from an outlying courthouse to the jail

than to bus a large number of prisoners to any such outlying

court. One possibility worth considering is to establish and

operate a system of closed circuit television as a means of

conducting non-trial judicial procedures. This alternative

would appear to be less expensive and far less arduous than

busing many hundreds of prisoners all over the county every

day. And, finally, if the governmental bodies of Los Angeles

County remain determined that all phases of the criminal

process shall continue to be handled in the outlying areas,

they will be obliged to house their prisoners much closer to

the respective courthouses.

Once the large ‘‘non-trial’’ proportion of inmates that

make up the laborious collection and distribution program

are eliminated therefrom, the court days can begin for pris-

oners currently on trial at a much more reasonable hour, the

use of holding cells can be substantially reduced or perhaps

even eliminated; and most of the large and expensive buses

would not be needed. A reasonable time will be accorded

the defendants within which to propose plans that will permit

the processing of detainees going to court in a manner more

closely in harmony with that in which a civilized society

should deal with its prisoners.

However, as a matter of due process, no such delay can

be tolerated with respect to inmates currently on trial. Be-

ginning forthwith, on each day of trial after the first day,

such inmates will be required to leave their beds not earlier

*A of floor could

aicteeaunt eed aeons. one apparently provide

ins

than 6:00 a.m.; they will not be confined in holding cells,

either before leaving for court or following their return; their

waiting time on the buses at the iail will not exceed thirty

minutes; and they will be returned to their cells no later than

8:00 p.m. An order to such effect will so provide.

Telephones. Evidence at the trial disclosed that the

numbers of pay telephones in the cell blocks are insufficient

to accommodate within a reasonable time inmates desiring

to make calls. The public need to keep a person in custody

pending trial does not justify cutting off his access to the

outside world. He must be allowed to communicate by tele-

phone with members of his family, or with anyone else he

chooses, at all reasonable times. O’ Bryan v. County of Sa-

ginaw, Michigan, 437 F. Supp. 582, 599 (E.D. Mich. 1977).

The defendants opposed any thought of increasing tele-

phone access at the jail by pointing to the relatively high

incidence of coin cheating or fraudulent reference to credit

cards attributable to telephones presently there. Reasonable

supervision and monitoring by the jail authorities should be

able to limit somewhat this abuse, and the telephone com-

pany has or can find ways of forestalling ‘‘credit card’’ calls

from a particular telephone. In any event, occasional abuse

cannot justify an ‘‘across the board’’ denial or limitation of

telephone access.

An adequate number of telephones should be sufficiently

proximate to the modules that each of the inmates desiring

to use them may make at least one call per day. The de-

fendants will be required to propose plans for the appropriate

numbers and locations of additional telephones. -

Cell Searches. Jail authorities conduct *‘shakedown’’

inspections of the cells at irregular intervals in search of

contraband or other items not allowed in the cells, such as

food or excessive clothing or reading materis!. The defen-

| es

—61—

dants insist that these searches are accomplished with min-

imum disruption of the inmates’ possessions. The plaintiffs

paint quite a different picture. They contend that their prop-

erty is left in disarray; that items are unnecessarily removed

and destroyed; and that valuable property is taken without

a receipt being given. In United States ex rel Wolfish v.

Levi, 439 F. Supp. 114, 149 (S.D. N.Y. 1977), Judge

Frankel said, with respect to the identical problem:

**Allowing inmates to observe from a reasonable

distance the searching of their rooms would go far to

eliminate these grounds of complaint. An officer viewed

by the owner is more likely to fulfill the stated duty

to put things back as they were. The claim of stolen

property is far less likely to be made, the grounds for

suspicion, or ostensible suspicion, being largely ob-

viated. Having one’s things searche ‘| is no pleasure in

the best of circumstances. Being denied the right even

to watch the invasion is a blunt oppression.”’

This court agrees. Future shakedowns should be made while

the respective inmates remain outside their cells but near

enough to observe the process and raise or answer any

relevant inquiry.

Time For Meals. One of the grievances most frequently

expressed by inmates that testified at the trial was that they

were given insufficient time within which to eat their meals

in the dining halls. The same contention was made before

this court in the trial of the case of Stewart v. Gates, _—

F. Supp. __ (C.D. Cal. 1978), which involved the Orange

County Jail. The comments made in that decision are equally

**The court is sympathetic with the security concerns

of the jail administrators when large numbers of in-

mates are congregated in a limited space in the presence

of a relatively few unarmed deputies, which is what

— oe

occurs during the serving of meals, and I agree that

such instances should not be prolonged more than nec-

essary. However, mealtime is an important occasion

to a prisoner, and he should be entitled to savor his

food, along with a bit of conversation, rather than be

obliged to eat in a hurried atmosphere. An inmate should

be allowed not less than fifteen minutes at the meal

table, and an order will be issued accordingly.’” (__

F. Supp. —— at —_).

Clothing And Laundry. Under California law, as im-

plemented by the Sheriff's Department Custody Division

Manual, an inmate’s mattress cover, towel, socks, under-

garments and outergarments are required to be exchanged

for clean items at least once each week. As of the time of

reported having worn the same denim pants and shirts for

as much as a month or more, and such testimony was el-

oquently confirmed by the appearance of their garments.

Some inmates have washed their clothing in the toilet or

while taking a shower and have dried the items as best they

could. The defendants assured the court that the shortage

of clothing for exchange was due to a temporary logistics

problem that soon would be corrected. The court is willing

to assume that this is so.

However, a once per week change of clothing for pris-

oners has been held to be completely inadequate in a grow-

ing number of federal cases. See, for example:

Alberti v. Sheriff of Harris County, Texas, 406 F.

Supp. 649, 677 (S.D. Tex. 1975) (daily exchange

required);

Mitchell v. Untreiner, 421 F. Supp. 886, 898 (N.D.

Fla. 1976) (daily exchange required);

Martinez Rodriguez v. Jimenez, 409 F. Supp. 582,

596 (D. P.R. 1976), aff'd on other grounds, 537

— =

F.2d 1 (ist Cir. 1976); 551 F.2d 877 (ist Cir.

1977) (semi-weekly access to laundry required);

Hamilton v. Landrieu, 351 F. Supp. 549, 553 (E.D.

La. 1972) (uniform laundry twice a week);

Inmates of Henry Cty. Jail v. Parham, 430 F. Supp.

304, 307, 308 (N.D. Ga. 1976) (laundry twice a

week; clean uniform three times per week).

An inmate must be permitted at least twice per week to

receive clean outergarments, undergarments, socks and a

towel in exchange for those that he has been using. An order

will be made to that effect.

Law Library For Pre-Trial Detainees. Pre-trial detain-

ees representing themselves (‘‘pro pers’’) have regular use

of an adequate law library in the jail. Another law library,

on the second floor, is available to sentenced prisoners. A

third law library, purportedly quite inferior to the other two,

may be used by pre-trial prisoners with appointed or retained

counsel. If they desire to use the second floor library, they

must seek the permission of the Legal Sergeant.

This jail official testified that the second floor library is

relatively small and quite fully utilized by sentenced pris-

oners, and that he grants requests from others only if the

applicant *‘. . . seems sincere and able to make use of it,

rather than someone who is looking to use it just as an

excuse to get out of their module for a while.’’ He estimates

that of the forty to fifty-five inmates that use the library

pursuant to permission.

The plaintiffs contend that the pre-trial detainees are en-

titled to. unrestricted reasonable access to the second floor

library. 1 am not able to agree. These inmates have counsel

representing them in the pending proceedings, and they can

supplement or second guess the work of their counsel with

the help of the limited library available to them. If they can

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show a legitimate reason why exhaustive research by them

is necessary, they are accorded the use of the larger library.

If they are refused a request for more extensive library

facilities in order to prepare litigation challenging conditions

at the jail, their attorneys can help with such litigation or

at least assist them in gaining access to the better library.

In addition, the jail has an arrangement with Southwestern

University under which its law students, supervised by law

professors, provide legal assistance to inmates regarding

civil matters.

In light of all of these circumstances, plus the constant

availability of ‘‘jailhouse lawyers’, it is concluded that the

‘taccess to the courts’’ provided to inmates at the jail is

fully in compliance with the requirements expressed in Gil-

more v. Lynch, 319 F. Supp. 105 (N.D. Cal. 1970), aff'd

sub nom., Younger v. Gilmore, 404 U.S. 15 (1971), and

in Bounds v. Smith, 430 U.S. 817 (1977).

Brutality, Harassment And Abuse. The plaintiffs con-

tend that the deputy sheriffs on duty at the jail regularly use

excessive force in enforcing their orders, commit unpro-

voked assaults, inflict verbal abuse upon the prisoners, and

generally conduct a ‘‘reign of terror’ at the jail. Much of

the trial was devoted to hearing testimony of alleged victims

of, or witnesses to, such improper conduct, and to hearing

the deputies’ versions of such incidents.

Controversies of this kind are extremely difficult to re-

solve. On the one hand, the deputies have a most difficult

job. Their obligation is to maintain control and enforce

discipline under circumstances in which the use of some

force occasionally is needed on a snap judgment basis. And

yet, the deputies are obliged to treat inmates with reasonable

courtesy despite the vilification frequently directed toward

them and the constant threat of physical harm under which

they work. When they respond reasonably to situations that

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require immediate action, they must be upheld even though

reflection in the calmness of the courtroom might lead to

the conclusion that a softer response would have been

preferable.

On the other hand, it is well known that there are such

things as ‘‘badge happy’’ and sadistic custodial officers.

And the courts, as well as jail administrators, have an ob-

ligation to protect inmates against them.

After evaluating the evidence as best I could, it seems

clear that there is no ‘‘reign of terror’’ at the jail that requires

court intervention. It is obvious that in some instances the

deputies used excessive force upon an inmate that they be-

lieved to have been ‘‘out of line’’. But for the most part,

the deputies that testified at the trial and those that I observed

in the course of my visits to the jail impre: -d me as having

an enlightened attitude concerning their obligation to be

respectful of the sensibilities of their prisoners.

However, the record at trial did disclose that the inmates

frequently were annoyed by excessive and sometimes in-

sulting use of the loudspeakers by the deputies in charge of

the modules. It is noisy enough in the modules without the

deputies making unnecessary announcements or subjecting

the inmates to uncalled for monologues. Such conduct is

contrary to directives by the Sheriff, but it nonetheless is

recommended that he give a renewed and emphatic reminder

to all module deputies that misuse of the ‘‘intercom’’ will

not be tolerated.

Cost Of Compliance. This court is well aware that com-

court regrets this and is fully sympathetic with the budgetary

problems faced by the County of Los Angeles, particularly a

in the present atmosphere of Proposition 13. Unfortunately, a

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however, these budgetary problems cannot be used to defeat

the changes mandated by this decision.

If state authorities, on behalf of the public, authoritatively

determine that it is necessary to incarcerate a person in the

county jail, such determination carries with it the obligation

to pay the cost of maintaining that person in harmony with

such of his constitutional rights as are consistent with in-

carceration. In other words, he must be housed and fed and

clothed and otherwise treated as a human being. In the

judgment of the court, the requirements of this decision go

no farther, and they must be enforced accordingly.

Implementing Judgment. Some of the actions envisaged

by this memorandum of decision will require a reasonable

amount of time for planning and preparation. The court

would prefer to prepare the judgment implementing this

memorandum after consultation with counsel in order that

the time schedules contained therein may take into appro-

priate account the problems that will be involved. Accord-

ingly, a judgment will be withheld pending further hearing

scheduled for Monday, August 14, 1978, at 2:00 p.m.

DATED: July 25, 1978.

/s/ William P. Gray

WILLIAM P. GRAY

United States District Judge

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3. Constitutional and Statutory Provisions.

United States Constitution, Amendment 14.

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and the State wherein they reside.

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

United States Code, Title 28.

$1343. Civil rights and elective franchise.

The District Courts shall have original jurisdiction of any

civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act

done in furtherance of any conspiracy mentioned in

section 1985 of Title 42.

(2) To recover damages from any person who fails

to prevent or to aid in preventing any wrongs mentioned

in section 1985 of Title 42 which he had knowledge

were about to occur and power to prevent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured by

the Constitution of the United States or by any Act of

Congress providing for equal rights of citizens or of

all persons within the jurisdiction of the United States; ‘

(4) Torecover damages or to secure equitable or other Z

relief under any Act of Congress providing for the me

protection of civil rights, incluc.ag the right to vote. 5,

—63—

§2201. Creation of remedy.

In a case of actual controversy within its jurisdiction,

except with respect to Federal taxes other than actions

brought under section 7428 of the Internal Revenue Code

of 1954, any court of the United States, upon the filing

of an appropriate , may declare the rights and

other legal relations of Hy interested party seeking such

declaration, whether or not further relief is or could be '

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be review-

able as such.

§2202. Creation of remedy.

Further necessary or proper relief based on a declaratory

judgment or decree may be granted, after reasonable no-

tice and hearing, against any adverse party whose rights

have been determined by such judgment.

United States Cocle, Title 42.

$1983. Civil Action for Deprivation of Rights.

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.

$1985(3). Conspiracy to interfere with civil rights.

(3) Depriving persons of rights or privileges. If two or

more persons in any State or Territory conspire, or go in

disguise on the highway or on the premises of another,

for the purpose of depriving, either directly or indirectly,

any person or class of persons of the equal protection of

the laws, or of equal privileges and immunities under the

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laws, or for the purpose of preventing or hindering the

constituted authorities under the laws, or for the purpose

of preventing or hindering the constituted authorities of

any State or Territory from giving or securing to all per-

sons within such State or Territory the equal protection

of the laws; or if two or more persons conspire to prevent

by force, intimidation, or threat, any citizen who is law-

fully entitled to vote, from giving his support or advocacy

in a legal manner, toward or in favor of the election of

any lawfully qualified person as an elector for President

or Vice-President, or as a member of Congress of the

United States; or to injure any citizen in person or property

on account of such support or advocacy; in any case of

conspiracy set forth in this section, if one or more persons

engaged therein do, or cause to be done, any act in fur-

therance of the object of such conspiracy, whereby an-

other is injured in his person or property, or deprived of

having and exercising any right or privilege of a citizen

of the United States, the party so injured or deprived may

have an action for the recovery of damages, occasioned

by such injury or deprivation, against any one or more

of the conspirators.