Petition for Writ of Certiorari — Wecht v. Inmates of the Allegheny County Jail
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= Supreme Court, U.S,
~ FILED
In the
| SEP 5 1989
Supreme Court of the United Spates... - corsior sp
CLERK
October Term, 1990
CYRIL H. WECHT, President of the Allegheny County
Board of Prison Inspectors and the other members of the
Board; THOMAS FOERSTER and WILLIAM H. HUNT,
Commissioners for Allegheny County; FRANK J.
LUCCHINO, Controller for Allegheny County, EDGENE
COON, Sheriff for Allegheny County, THE HONORABLE
PATRICK R. TAMILIA, MICHAEL J. O’MALLEY and
MARION K. FINKELHOR, Judges Court of Common
Pleas of Allegheny County; RICHARD S. CALIGUIRI,
Mayor of the City of Pittsburgh; HARRIET McCRAY:
Monsg. CHARLES OWEN RICE and CHARLES
KOZAKIEWICZ, Warden of the Allegheny County Jail,
and WILLIAM B. ROBINSON, Executive Director 6f
Prison Inspectors, and CYRIL WECHT, THOMAS
FOERSTER and WILLIAM H. HUNT, as Commissioners
of Allegheny County,
Petitioners,
VS.
INMATES OF THE ALLEGHENY COUNTY JAIL,
THOMAS PRICE BEY, ARTHUR GOSLEE, ROBERT
MALONEY, and CALVIN MILLIGAN, on their own
behalf and on behalf of all others similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
GEORGE M. JANOCSKO
Second Assistant County Solicitor
GEORGE C. DIAMANTOPULOS*
Assistant County Solicitor
ALLEGHENY COUNTY LAW DEPT.
300 Fort Pitt Commons
445 Fort Pitt Boulevard
Pittsburgh, Pennsylvania 15219
(412) 644-1177/1132
Counsel for Petitioner Wecht, et al.
*Counsel of Record for Petitioners
i
QUESTION PRESENTED
Whether a federal district court in tailoring an equitable
remedy for constitutional violations found te exist in a
county jail exceeds the bounds of its remedial authority in
ordering the closing of the existing jail and the submission
of a plan for the construction of a new jail.
il
TABLE OF CONTENTS
Page
Cnpntion PrisenieG aes csc o-00keadeebee ae aseennes i
i; gg fl eee ere ere rere iy se iv
CR END. isn cc ocncevsndedeaeees eee 2
Po o.b'n 050k deka sc 0hnee es eee 2
Constitutional Provisions Involved ................ 3
Sines OF i CS ss oto ov kaha vectdeoaeneas aes 4
Reasons for Granting the Writ .................... 7
I. The decision of the Third Circuit affirming
the District Court order requiring the
closing of the Allegheny County jail and the
submission of a plan for the construction of
a new jail is in conflict with this Court’s
decisions establishing the bounds limiting
the exercise of remedial authority by the
oo rrr ri oe 7
II. The Third Circuit’s decision has created a
conflict among the Circuit Courts of Appeal
regarding the scope of equitable relief which
may properly be ordered in bringing state and
local government correctional institutions up to
Constitutional standards under the Eighth and
Fourteenth Amendments................4+- 13
Cometeeieeh |. nc ck cesuveu’eths 1434 17
ill
Page
APPENDICES
A—Opinion and Order of the United States Court
for the Western District of Pennsylvania ..... la
B—Decision of the United States Court
of Appeals for the Third Circuit ........... 28a
C—Order of the United States Court
of Appeals for the Third Circuit ........... 50a
iv
TABLE OF AUTHORITIES
CASES
Page
Dayton Board of Education v. Brinkman,
Ce A ere 8, 9
Hutto v. Finney, 437 U.S. 678 (1978)............... 11
Inmates of the Allegheny County Jail v. Wecht,
565 F.Supp. 1278 (W.D.Pa. 1983) .............. 4
Inmates of the Allegheny County Jail v. Wecht,
eho “5. f 3 8. Eee 5
Inmates of the Allegheny County Jail v. Wecht,
699 F.Supp. 1137 (W.D.Pa. 1988) .............. 11
Inmates of the Allegheny County Jail v. Wecht,
peo PPT Pe rT rrr reree 5
Jones v. Wittenburg, 330 F.Supp. 707 (N.D.Ohio
1971), affd 456 F.2d 854 (6th Cir. 1972) ........ 15
Jordan v. Wolke, §93 F.2d 772 (7th Cir. 1978) ....14, 15
Miller v. Carson, 563 F.2d 741 (Sth Cir. 1977) ....... 10
Milliiken v. Bradley, 433 U.S. 267 (1977) ...... 9, 10, 11
Owens-el v. Robinson, 442 F.Supp. 1368
kt ere eae 4
Owens-el v. Robinson, 457 F.Supp. 984
I eee ee aa vaca aes 4
Reece v. Gragg, 650 F.Supp. 1297 (D.Kan. 1986) ..... 14
Rizzo v. Goode, 423 U.S. 362 (1976) ....... pep ery 8, 11
Swann vy. Charlotte-Mecklenburg Board
of Education, 402 U.S. 1 (1971) ...... 7, 8, 9, 10, 11
Page
CONSTiTUTION
SB. Comet. Amand, VINE... 5c ccc cccceccccn, 3, 13
ee a 3, 13
STATUTES
Me GMa ED onc nccnindcndccaceccceati hon. 2
MP ID oo oo bb oe celec cea oe eed 4
aR WR TAR OE cyhght OS Boo 4.14
In the
Supreme Court of the United States
October Term, 1990
No.
CYRIL H. WECHT, President of the Allegheny County
Board of Prison Inspectors and the other members of the
Board; THOMAS FOERSTER and WILLIAM H. HUNT,
Commissioners for Allegheny County; FRANK J.
LUCCHINO, Controller for Allegheny County, EUGENE
COON, Sheriff for Allegheny County; THE HONORABLE
PATRICK R. TAMILIA, MICHAEL J. O’MALLEY and
MARION K. FINKELHOR, Judges Court of Common
Pleas of Allegheny County; RICHARD S. CALIGUIRI, .-
Mayor of the City of Pittsburgh; HARRIET McCRAY;
Monsg. CHARLES OWEN RICE and CHARLES
KOZAKIEWICZ, Warden of the Allegheny County Jail,
and WILLIAM B. ROBINSON, Executive Director of
Prison Inspectors, and CYRIL WECHT, THOMAS
FOERSTER and WILLIAM H. HUNT, as Commissioners
of Allegheny County,
Petitioners,
vs.
INMATES OF THE ALLEGHENY COUNTY JAIL,
THOMAS PRICE BEY, ARTHUR GOSLEE, ROBERT
MALONEY, and CALVIN MILLIGAN, on their own
behalf and on behalf of all others similarly situated,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
The County of Allegheny, Prison Board, and members
thereof (hereinafter “County officials”) respectfully pray
that a writ of certiorari issue to review the decision of the
2
United States Court of Appeals for the Third Circuit
entered in the above-entitled case on May 4, 1989. In that
decision, a panel of the Third Circuit affirmed the judg-
ment of the United States District Court for the Western
District of Pennsylvania and held that it was within the
remedial authority of the District Court to order the clos-
ing of the Allegheny County Jail (hereinafter “County
jail”) and to require the submission of a plan for the con-
struction of a new jail.
OPINIONS BELOW
The opinion and order of the United States Court for
the Western District of Pennsylvania dated November 17,
1988, is officially reported at 679 F.Supp. 1137 (W.D.Pa.
1988) and appears as Appendix A (“App. A”) hereto. The
decision of the United States Court of Appeals for tite
Third Circuit, which affirmed the decision of the District
Court, is officially reported at 874 F.2d 147 and appears as
Appendix B (“App. B”) hereto. The order of the United
States Court of Appeals for the Third Circuit dated June 7,
1989 which denied the County officials’ petition for rehear-
ing before the Court in banc is not officially reported and
appears as Appendix C (“App. C”) hereto.
JURISDICTION
The judgment of the panel of the Third Circuit Court
of Appeals was entered on May 4, 1989. The 6rder of the
Third Circuit denying the County officials’ petition for
rehearing before the Court in banc was entered on June 7,
1989. The jurisdiction of this Court is invoked under 28
U.S.C. §1254(1).
3
CONSTITUTIONAL PROVISIONS INVOLVED
The provisions of the United States Constitution
involved are the Prohibition of Cruel and Unusual Punish-
ment contained in the Eighth Amendment and the Due
Process Clause of Section | of the Fourteenth Amendment.
The Eighth Amendment states:
“Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.”
U.S. Const. Amend. VIII.
The Due Process clause of Section i of the Fourteenth
Amendment states:
“
...} Mor shall any state deprive any person of life,
liberty or property, without due process of law; ...”
U.S. Const. Amend XIV.
4
STATEMENT OF THE CASE
This case arises out of litigation that has been ongoing
for the last 13 years between County jail inmates and the
County officials concerning the conditions of confinement
in the County jail.
In 1976 a class action was filed under 42 U.S.C. §1983
and 28 U.S.C. §1343(3) on behalf of past, present and
future inmates at the County jail against the County off-
cials. The lawsuit alleged that conditions at the County jail
violated the inmates’ constitutional rights and it sought
declaratory and injunctive relief. After a trial, the District
Court found that the inmates’ constitutional rights were
being violated by the conditions of confinement at the
County jail and granted injunctive relief to correct the
deprivations. Owens-el v. Robinson, 442 F.Supp. 1368
(W.D.Pa. 1978), Owens-el v. Robinson, 457 F.Supp. 984
(W.D.Pa. 1978). 2
In April, 1983, the inmates filed a motion seeking a
rule to show cause why the County officials should not be
held in contempt for failure to comply with earlier orders
of the District Court.
After a hearing, the District Court dismissed the con-
tempt rule but found that the jail was overcrowded and on
May 25, 1983, entered an order requiring a staged reduc-
tion of the population in the County jail. Inmates of the
Allegheny County Jail v. Wecht, 565 F.Supp. 1278
(W.D.Pa. 1983). A population limit of 540 inmates was set
for the County jail. ,
Despite their best efforts, the County officials were
unable to meet the population limit set by the May 25,
1983 order. To achieve the required reduction in the popu-
lation, the District Court, on October 20, 1983, entered an
5
order providing a formula for the release of prisoners
according to the amount of bond for which an inmate was
being held. Inmates of the Allegheny County Jail v. Wecht,
573 F.Supp. 454 (W.D.Pa. 1983).
On December 30, 1983, the District Court ordered
that the County officials pay a $5,000 per inmate sanction
for each inmate released under the October 20, t983 order.
The December 20, 1983 order was vacated by the Third
Circuit Court of Appeals and the case remanded to the
District Court. Inmates of the Allegheny County Jail v.
Wecht, 754 F.2d 120 (3d Cir. 1985).
On January 13, 1988, the District Court convened a
hearing in order to determine whether the population at
the County jail was exceeding the population limit. After
hearing testimony from several witnesses, the District
Court issued an order clarifying the method of taking the
population count and denied two motions made by the
County officials during the course of the hearing to
increase the population limit. The District Court granted
the County officials’ motion to join the Commonwealth of
Pennsylvania as an additional defendant.
On S. ptember 20, 1988, the County officials filed a
motion to increase the population cap at the County jail. A
hearing was held on October 13 and 14, 1988. On Novem-
ber 17: 1988, the District Court issued an opinion and
order requiring, inter alia, the closing of the County jail
and the submission of a plan for the construction of a new
facility capable of housing 900 inmates. App. A.
The County officials appealed the November 17, 1988
order to the Third Circuit Court of Appeals. In a decision
dated May 4, 1989, the Third Circuit affirmed the judg-
ment of the District Court. The Court of Appeals held that
6
the provisions of the November 17, 1988 order were
within the District Court’s remedial authority. App. B.
On June 7, 1989, the Circuit Court denied the County
officials’ petition for rehearing before the court in banc.
App. C.
j
REASONS FOR GRANTING THE WRIT
I. The decision of the Third Circuit affirming the District
Court order requiring the closing of the Allegheny County
jail and the submission of plans for the construction of a
new jail is in conflict with this Court’s decisions establish-
ing the bounds limiting the exercise of remedial authority
by the federal courts.
The controlling decisions of this Court establishing
the bounds limiting the exercise of remedial authority by
the federal courts have directed that federal courts proceed
with caution and exercise judicial self-restraint in fashion-
ing equitable relief against a state or local governemnt
body to cure constitutional violations. There are inherent
limitations on the power of federal courts which must be
observed and adhered to in tailoring such equitable reme-
dies. Out of these inherent limitations arises an obligation
_of the lower federal courts to craft equitable remedies
against a state or local government body with sensitivity
and care.
Swann vy. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1971), marks the beginning of the painstaking
development by this Court of a coherent set of equitable
principles and limitations to guide the federal courts in
their employment of equity’s power against a state or local
government body.
In Swann, the Court addressed the issue as to the
scope of the equitable powers of the federal courts. The
Court dictated that the scope of the equitable remedy was
to be determined by the nature of the constitutional viola-
tion. Jd. at 16.
The Swann Court expressed a strong reluctance to
intrude into areas of local concern, such as a public school
8
system, yet upheld the District Court’s far-reaching and
highly intrusive desegregation remedy in the face of mas-
sive resistance on the part of state legislatures and school
authorities to remedying the constitutional violation.
Chief Justice Burger stated: “Judicial authority enters only
when local authority defaults.” Swann, 402 U.S. at 16. It
was only after local authorities had been found wanting at
the remedial stage that the Court had emphasized the
breadth and flexibility of the District Court’s equitable
power.
In Rizzo v. Goode, 423 U.S. 362 (1976), this Court
declared that the principles of federalism “which play such
an important part in governing the relationship between
federal courts and state governments” must be given
appropriate consideration in determining the availability
and scope of equitable relief. Jd. at 379 (citations omitted).
The Court cautioned the lower federal courts to be cogni-
zant of ‘delicate issues of federal-state relationships”
underlying cases where federal injunctive relief is sought
against a state or local government body. /d. at 380 (cita-
tions omitted). The Rizzo Court stated that an adequate
consideration of the principles of federalism would pre-
vent excessive intervention in state or local government
affairs by federal courts.
In Dayton Board of Education v. Brinkman, 433 U.S.
406 (1977), this Court remanded to the Circuit Court for
reconsideration of a plan imposed by the District Court to
cure public school racial segregation. The Court concluded
that the remand was necessary in light of the enormous
disparity between the evidence of constitutional violations
and the sweeping remedy decreed. /d. at 419. The Court
stressed that in the face of 2 constitutional violation, “a
federal court is required to tailor the scope of the remedy
9
to fit the nature and extent of the constitutional violation.”
Id. at 419-20 (citations omitted). The federal courts are to
impose the least intrusive remedy that will still be effec-
tive. Id.
In the decision in Milliken v. Bradley, 433 U.S. 267
(1977), Chief Justice Burger reaffirmed these limitations
upon the equitable power of federal courts in fashioning
equitable remedies against state and local government
bodies. The scope of the equitable remedy is to be deter-
mined by the nature of the constitutional violation. Jd. at
280 (citations omitted). A court can order only relief suffi-
cient to correct the violation found. Therefore, an equita-
ble remedy will be considered overly broad if the federal
court could have taken other, less intrusive, action.
Additionally, in devising a remedy, the federal courts
mus* take into account the interests of state and local
authorities in managing their own affairs. Jd. at 280-61.
This guiding principle of federalism and comity towards
the states calls for minimum intrusion by federal courts
into the affairs of state and local governments.
The decisions of the District Court and the Third Cir-
cuit have moved beyond the well-established bounds limit-
ing the exercise of remedial authority by the federal courts.
Both opinions cited Swann, supra, for the principle that a
federal court’s equitable powers to remedy past wrongs is
broad. However, both opinions failed to note that the
Swann court was reluctant to uphold what it deemed to be
a broad, intrusive remedy imposed by the District Court,
and did so only in the face of massive resistance by the
local authorities to remedying the constitutional violation.
In light of the steps taken by the County officials to remedy
10
the unconstitutional conditions at the County jail, the pn-
mary justification for such a broad, sweeping remedy as in
Swann is lacking in this case.
The County officials have undertaken extensive efforts
to improve the conditions and reduce the population at the
County jail. At a cost well in excess of $10 million the
County officials constructed an auxiliary jail facility hous-
ing 435 inmates. They also authorized and constructed a
25-bed group home for female offenders, and converted an
old post office facility into a housing facility for 25 non-
violent offenders. A house arrest program was set up for
non-violent offenders, and jail cells in neighboring coun-
ties have been rented. In order to improve the County
jail’s medical procedures, the County officials authorized
an Ad Hoc committee and in response to the committee’s
recommendations they have contracted with a private firm
to assume control of medical procedures and implement
the committee’s recommendations. The County officials
have not been wanting at the remedial stage.
Contrary to Milliken, supra, the scope of the remedy
imposed by the District Court, and affirmed by the Third
Circuit, is not commensurate with the nature of the uncon-
stitutional conditions existing at the County jail. The rem-
edy imposed goes beyond the constitutional violations
found. Both the District Court opinion and the Third Cir-
cuit opinion cited Miller v. Carson, 563 F.2d 741 (Sth Cir.
1977), for the principle that when the totality of conditions
in a jail violates the Constitution, a federal court need not
confine itself to the elimination of specific conditions. This
is contrary to this Court’s directives in Milliken that a
federal court can order only relief sufficient to correct the
constitutional violations found, and that an order will be
1]
considered overly broad when there are other less intrusive
ways of eliminating the unconstitutional conditions.
The unconstitutional conditions of confinement as
determined by the District Court consisted of overcrowd-
ing, insufficient and under-qualified staff, fire hazards and
low quality of medical and psychiatric care. Inmates of the
Allegheny County Jail v. Wecht, 699 F.Supp. 1137, 1147
(W.D.Pa. 1988) (App. A at 24a). Based on these condi-
tions, which the District Court determined to be non-
remedial, the closing of the County jail and the submission
of a plan for construction of a new jail were ordered. The
District Court, under Swann and its progeny, was limited
to ordering the correction of the specific unconstitutional
conditions of confinement. The District Court should have
limited the scope of its order to requiring the reduction of
overcrowding, the addition of suitably qualified staff, the
elimination of fire hazards, and the improvement of the
quality of medical and psychiatric care. Such an order
would be proper in scope, less intrusive, well-tailored to
the violations found, and within the bounds of the District
Court’s remedial authority under Swann and its progeny.
Contrary to Milliken, supra, and Rizzo, supra, the Dis-
trict Court failed to adequately consider the interests of the
County officials in managing their own affairs, and the
dictates of federalism, when it fashioned its equitable rem-
edy. This Court stated in Hutto v. Finney, 437 U.S. 678,
688, n.9 (1978), that state and local authorities have the
primary responsibility for curing constitutional violations.
It is the federal court’s responsibility to identify the uncon-
stitutional conditions of confinement and to order their
correction. Once identified, the details of compliance in
correcting the constitutional violations are to be left to
state and local officials. Jd. It is in the interests of the
12
County officials in managing their own affairs that they
should make the tough decisions on how to bring the
County jail up to constitutional standards. The District
Court and the Third Circuit both failed to adequately con-
sider this interest of the County officials and have closed
the door to other less intrusive remedies that would still be
effective.
Further, the District Court and the Third Circuit have
failed to adequately consider the principles of federalism
and, as a result, have usurped the taxing power of state and
county officials by ordering, in effect, the construction of a
new jail requiring the appropriation and expenditure of a
considerable sum of taxpayer funds. Such a decision is to
be made by state and local elected officials through the
political process, not by judicial decree. The District Court
is trying to use a power that it does not, and should not,
have.
In sum, the failure of the District Court and the Third
Circuit to stay within the clearly-defined bounds limiting
the exercise of remedial authority by the federal courts has
resulted in a decision in conflict with the controlling deci-
sions of this Honorable Court. Because of this conflict, this
petition for a writ of certiorari should be granted.
13
II. The Third Circuit’s decision has created a conflict
among the Circuit Courts of Appeal regarding the scope of
equitable relief which may properly be ordered in bringing
state and local government correctional institutions up to
constitutional standards under the Eighth and Fourteenth
Amendments.
There has been considerable litigation over the scope
of equitable relief which may properly be ordered in bring-
ing state and local government correctional institutions up
to constitutional standards under the Eighth and Four-
teenth Amendments. The uncertainty concerning the
proper scope of equitable relief centers around the issue of
whether it is within the remedial! authority of the federal
courts to order government officials to appropriate and
expend public funds for the construction of a new jail.
It is clear that the District Court’s order in this case
calls for the construction of a new jail which will require
the appropriation and expenditure of a considerable sum
of public funds. Although the Third Circuit held that the
County officials were not limited to the construction of a
new jail in complying with the District Court order requir-
ing the submission of a plan for a “new facility”, the
requirement that the “new facility” house roughly twice
the number of inmates in the existing jail, in conjunction
with the requirement that the existing jail be closed, leaves
the County officials no other viable alternative than to
construct a new jail. To conclude otherwise is to place
form over substance.
Other District Courts and Circuit Courts of Appeal
have held that an order requiring the construction of a new
jail is beyond the remedial authority of the federal courts
and amounts to an-usurpation of the taxing power of local
officials.
\4
In Reece v. Gragg, 650 F.Supp. 1297 (D.Kan. 1986), a
class action under 42 U.S.C. §1983 was brought on behalf
of jail inmates and pretrial detainees seeking injunctive
relief requiring operation of the Sedgwick county jail under
present conditions cease. The District Court found certain
conditions in the jail to be unconstitutional. /d. at 1299.
In considering the remedy to be imposed the District
Court noted:
The Court does not have the power to order legislative
appropriations for jail construction.
Id. at 1306. The District Court further noted:
Even if this Court could order a new jail built,it would
not do so. A decision such as that is a decision to be
made by the political process, not by judicial fiat.
Id. The District Court limited its remedial order to
requiring that the Sedgwick county officials submit a plan
to bring the existing jail into compliance with constitu-
tional minima. /d. at 1307.
The Seventh Circuit in Jordan v. Wolke, 593 F.2d 772
(7th Cir. 1978), reversed a District Court injunction man-
dating that jail authorities make certain changes to a
county jail, including the construction of facilities for con-
tact visitation, on the ground that the injunction would
require the expenditure of an unknown sum of money. /d.
at 774-75. The Seventh Circuit concluded that the matter
of cost should be carefully considered when a Court fash-
ions an affirmative remedy for unconstitutional condi-
tions. In reaching its conclusion the Seventh Circuit noted:
The courts may not order a state public body to appro-
priate monies for prison reform. The authorities are
15
given two options, to operate the jail constitutionally
or not at all.
Id. (citations omitted).
The Sixth Circuit in Jones v. Wittenburg, 330 F.Supp.
707 (1971), aff'd 456 F.2d 854 (6th Cir. 1972), affirmed the
District Court which held that an order requiring county
officials to construct a new jail would be beyond the reme-
dial authority of the federal courts. The District Court
stated:
[I]n order to build a new jail, the Public must provide
additional funds. This Court has no power whatsoever
to require the public to do so. Under our system of
government, the ultimate source of power is the peo-
ple. The people have not given this Court any taxing
power, or any control over the use of the taxing power.
Id. at 712. The District Court ordered that less intru-
sive remedial steps be taken, including upgrading the phys-
ical condition of the jail and changes in the operation of
the jail.
The Third Circuit’s decision is in direct conflict with
the decisions of the Kansas District Court, the Sixth Cir-
cuit and the Seventh Circuit. The District Court order in
this case was not limited to ordering the discontinuation of
the unconstitutional act, i.e. the operation of the County
jail under unconstitutional conditions. The District Court
imposed the highly intrusive remedy of requiring the
expenditure of public funds for the construction of a new
jail under the threat of its contempt powers. The Third
Circuit's decision affirming the District Court order creates
a conflict among the circuits regarding the scope of equita-
ble reef which may properly be ordered in bringing state
16
and local government correctional institutions up to con-
stitutional standards. Because of this vonflict among the
various circuits, this Honorable Court should grant the
Petitioner’s prayer for a writ of certiorari to resolve this
conflict.
17
Conclusion
For the foregoing reasons, it is respectfully prayed that
the County officials’ petition for a writ of certiorari should
be granted.
Respectfully submitted,
Georce M. JANOCSKO
Second Assistant County Solicitor
GeorGE DIAMANTOPULOS
Assistant County Solicitor
ALLEGHENY COUNTY
LAW DEPARTMENT
300 Fort Pitt Commons Building
445 Fort Pitt Boulevard
Pittsburgh, Pennsylvania 15219
Counsel for Petitioner
Wecht, et al.
Date: September 5, 1989 ~
la
APPENDIX A
OPINION AND ORDER OF THE UNITED
STATES COURT FOR
THE WESTERN DISTRICT OF PENNSYLVANIA
IN THE
United States District Court
For THE WESTERN DISTRICT OF PENNSYLVANIA
INMATES OF THE ALLEGHENY COUNTY)
JAIL, THOMAS PRICE BEY, ARTHUR
GOSLEE, ROBERT MALONEY, and CALVIN
MILLIGAN on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
v.
-CYRIL H. WECHT, President of the Allegheny
County Board of Prison Inspectors and the other
members of the Board: THOMAS FOERSTER
and WILLIAM H. HUNT, Commissioners for
Allegheny County; FRANK J. LUCCHINO,
Controller for Allegheny County, EUGENE
COON, Sheriff for Allegheny County; THE
HONORABLE PATRICK R. TAMILIA, ,
MICHAEL J. O’MALLEY and MARION K.
FINKELHOR, Judges Court of Common Pleas
of Allegheny County; RICHARD S.
CALIGUIRI, Mayor of the City of Pittsburgh;
HARRIET McCRAY; MONSG. CHARLES
OWEN RICE and CHARLES KOZAKIEWICZ,
Warden of the Allegheny County Jail, and
WILLIAM B. ROBINSON, Executive Director
of Prison Inspectors, and CYRIL WECHT,
THOMAS FOERSTER and WILLIAM H.
HUNT, as Commissioners of Allegheny County,
Defendants.
V.
COMMONWEALTH OF PENNSYLVANIA
Third-Party Defendant. J
Civil
Action
76-743
2a
OPINION
COHILL, C.J.
Findings of Fact and Conclusions of Law
Presently before the Court are (1) plaintiffs’ Motion
for Sanctions, (2) defendants’ Motion to Increase Popula-
tion Cap at the Allegheny County Jail, and (3) third-party
defendant’s Motion to Dismiss. The recurring issue per-
meating this case is whether the inmates in the custody of
defendant County of Allegheny, et al., (“County’’) are
being housed under constitutionally adequate conditions.
For the reasons set forth below, we will grant plaintiffs’
Motion for Sanctions, conditionally grant defendant’s
Motion to Increase Population Cap, and deny third-party
defendant’s Motion to Dismiss.
Following a hearing on October 13 and 14, 1988, and
a tour of the Allegheny County Jail (“Jail’’) and Jail Annex
(“Annex”) on October 13, 1988, we now make the follow-
ing findings of fact and conclusions of law.
I. Findings of Fact
With respect to the motions presently before the
Court, we are generally considering only the old main facil-
ity, or Jail. The Annex, which was opened in 1986, and
which can house up to 435 inmates, is at capacity but not
unconstitutionally overcrowded. The Annex appears to be
operating smoothly with the exception of difficulties
related to female inmates suffering mental health
problems. (See infra p. 10).
The Jail is a 102-year-old structure, used for every
conceivable function related to the County’s criminal jus-
tice system. It is a pretrial detention center housing uncon-
victed persons awaiting trial; unfortunately it must also
3a
serve as a detention unit for convicted state and federal
prisoners awaiting sentencing, assignment or transfer to
other institutions; it is also a prison for convicted state
prisoners serving sentences of up to 23 months and for
County prisoners convicted of misdemeanors who are
serving short sentences. A number of inmates are in a
work-release program. These are primarily fathers who
have disobeyed child-support orders. They are housed in
the Jail at night but are permitted to work at their own jobs
during the day. The facility additionally houses prisoners
brought to the Jail from other institutions to testify in
federal or state trials. Only male inmates are housed in the
Jail. All females are in the Annex.
The County attempted, through a law suit, to force the
Commonwealth to house all convicted state prisoners in
state facilities, but the Supreme Court of Pennsylvania
ruled that the Commonwealth need not take prisoners
whose sentences were less than twenty-three months. See
County of Allegheny v. Commonwealth of Pennsylvania,
544 A.2d 1305 (Pa. 1988).
Although the Jail is orderly and clean, it is no longer
constitutionally adequate. While superficially in good
physical condition, considering its age, the structure falls
far short of meeting contemporary standards. Conditions
are a vast improvement over what they were when this
case began in 1976. (See this Court’s description of those
conditions in Owens-E/l v. Robinson, 442 F.Supp. 1368
(1978)). However, there have been no structural changes
made to the Jail to create additional bed space or to facili-
tate other activities at the Jail.
The housing structure of the Jail consists of the North,
East, and West Blocks, two Mental Health sections, a
Receiving Unit, and a Disciplinary Housing Unit. A total
4a
of 610 cells in the Jail are currently available for inmate
housing.
The North Block consists of 47 cells which are 8’ deep
x 5’ wide x 8’ 10” high (40 sq. ft.).
The East Block consists of 250 cells which are 7’ 81/2”
deep x 6’ wide x 8’ 11/2” high (46.25 sq. ft.). Ten of these
cells are used as mop rooms, one a supply room and one a
nurse’s station; thus, 238 cells remain for inmate housing.
The West Block consists of 210 cells which are 7’ 81/2”
deep x 6’ wide x 9’ 3/4” high (46.25 sq. ft.). Like the East
Block, ten of these cells are mop rooms, one a supply room
and one a nurse’s station; thus, 198 cells remain for inmate
housing.
The two Mental Health units each have 20 cells which
are 8’ 10!1/2” deep x 7’ 11/2” high (63.2 sq. ft.).
The Receiving Section has 63 cells. Twelve are used as
mental health cells for new admissions. Each of these cells
is 7’ 71/2” x 6’ 11/2” x 8’ 1” high (46.7 sq. ft.).
Three ranges of cells comprise the Disciplinary Hous-
ing Unit. The “A” range has 8 cells which are 10’ 10” deep
x 6’ wide x 8’ 1” high (65 sq. ft.). The “B” range has 7 cells
which are 9’ 11” deep x 6’ 6” wide x 8’ 1” high (64.4 sq.
ft.). The “E” range consists of 9 cells which are 7’ 9” deep x
6’ 6” wide x 8’ 1” high (50 sq. ft.). Inmates are double-
celled in 6 “B” range cells and in 5 “E” range cells. Thus,
there are 30 bed spaces in that unit.
Every cell contains a sink with push button cold water,
a seatless toilet, and mattress suspended from chains.
The gymnasium measures 45’ 10” x 63’. This is the
only large open area in the main facility. Although a court
Sa
yard is available to the inmates, no real outdoor exercise
facility exists. The Jail also contains a hospital room mea-
suring 19’ x 31’ 6”.
On any given day, approximately 20 cells are
“down”—inoperable and unavailable for inmate housing.
An additional 20 cells in the East and West Blocks have
been converted into storage facilities or “mop rooms” for
cleaning and maintenance equipment. The County seeks
to convert these back to cells by removing the mop sinks
and installing cots, wash basins and toilet facilities. This is
where 20 of the requested 40 additional inmates would be
housed.
The average daily inmate population in the main facil-
ity was 429 in 1976. By 1983 it had increased to 644. When
this case was filed in 1976, the litigation focused on condi-
tions at the Jail. Overcrowding was not a problem until
1983. -
Pursuant to this Court’s Order of February 28, 1985,
we held that the maximum constitutional inmate popula-
tion was 540 inmates. The number of inmates housed in
the main facility is not to exceed that number after 5:00
p.m. on any day.
The County has violated that Order. The population
limitation up to the date of the hearing has been exceeded
as follows (inmates remaining at 5:00 p.m. in main facility
after release of inmates per this Court’s Orders of February
28, 1985 and of February 9, 1988):
8/27/88 — 567 inmates (27 over limit)
8/28/88 — 574 inmates (34 over limit)
8/29/88 — 545 inmates (5 over limit)
10/8/88 — 559 inmates (19 over limit)
6a
10/9/88 — 567 inmates (27 over limit)
10/10/88 — 569 inmates (29 over limit)
These figures do not include persons received for
incarceration after 5:00 p.m. on the noted days. Such com-
mitments substantially increase the inmate population on
a regular basis.
Recently the Population Control Manager resigned.
This vacancy exacerbates the logistical problems of coordi-
nating the inmate population. This position had been cre-
ated by the County following the institution of this action.
The person filling it was, according to the Warden, of great
assistance in expediting releases, obtaining alternate hous-
ing and holding the prisoner population within the cap set
by the Court.
Rarely does the main facility house fewer than 540
inmates at a time. If the number drops below 540, the
occurrence is only temporary.
The population at the Jail is constantly in a state of
flux. We had previously arbitrarily determined that, for
purposes of the Court order, the population count should
occur at 5:00 p.m. At this time work-release prisoners
should have reported back, permitting jail personnel to
determine the population. Problems arise, of course, when,
although the population is 540 at 5:00 p.m., police later
bring in more prisoners or pretrial detainees.
In the future the physical demands on the structure
are only going to multiply. The population of the main
facility will continue to grow through the year 2000. The
Kimball Report', commissioned by the County and issued
'L. Robert Kimball & Associates, Allegheny County Criminal Sys-
tems Facility Report Feasibility Report (1985) (commonly known as the
“Kimball Keport.’’)
7a
in 1985, recommended that the County have facilities to
house 1,095 inmates by 1990 and 1,339 inmates by the
year 2000. These projections appear to be low, since even
today the average daily population at the Jail alone would
approximate 620 inmates if no releases occurred. When
this is added to the 435 inmates housed in the Annex the
total is 1055. At the hearing on this matter on October 13,
1988, an expert in demographics, Hunter Hurst, testified
that the County will require a total jail capacity for 1300
inmates by 1995 and 1400 inmates by the year 2000.
The County has attempted to meet the problems but
with only partial success. In 1986 the County opened the
newly constructed Annex, a block from the Jail, to house
435 prisioners. The County also obtained a facility for
approximately 25 non-violent offenders. This is a former
post office in Homestead, Pennsylvania, which is not yet
open. The County is investigating a facility in New Brigh-
ton, Beaver County, Pennsylvania, for housing non-violent
offenders and considering converting the 13th floor storage
area at the Annex into additional housing for 16 inmates.
Currently in very early planning stages, these latter two
possibilities are at best tentative and, if completed, will not
put such of a dent in the problem. The County has also
commenced an electronically monitored House Arrest
Program. As of October 14, 1988, 31 prisoners were being
confined to their home under the program.
These stop-gap measures are not sufficient to handle
the present requirements of the County, let alone future
needs stemming from the large projected increases in
inmate population. Other conditions at the Jail indicate its
inadequacy to serve as a constitutionally adequate institu-
tion for prisioners.
8a
The old, unreliable, unsafe heating plant is totally
inadequate. The system breaks down regularly each winter.
The master locking systems, which allow prison personnel
to lock or unlock a complete row of cells at one time, do
not work properly. This deficiency creates an obvious dan-
ger in the event of fire.
The ductwork lacks smoke or fire detectors that would
effect an automatic shutdown should a fire occur. Smoke,
delivering toxic products through the return air ductwork,
would cause a hazardous condition throughout most areas
of the Jail. The Jail lacks a sprinkler system. On our latest
inspection no emergency evacuation plan was posted. We
note that this Court’s Order of October 11, 1978 required
such a plan. See Item 29 of that Order.
Due in large part to the lack of adequate space the
quality of the physical and mental health care provided to
inmates is deteriorating.
The County does not provide for or require psychiat-
ric training for its nursing staff, nor must applicants for
nursing positions have psychiatric nursing backgrounds.
One third of the normal complement of eighteen nursing
positions is vacant. An insufficient number of full-time
nurses remain available at the Jail. We note that the defi-
ciency in psychiatric nursing services violates this Court’s
Order of May 15, 1983. See Item 11.
The beds in the Jail’s mental health unit are regularly
filled to capacity. The Jail does not provide a nurse to
cover the Mental Health Unit on a full-time basis during
the 11:00 p.m. to 7:00 a.m. shifts and 3:00 p.m. to 11:00
p.m. shifts. This also violates this Court’s Order of May
25, 1983. See Item 11.
9a
—
Once a mentally ill inmate has been legally deter-
mined to be a danger to himself or to others delays of up to
30 days precede an actual transfer to a state psychiatric
facility. Additional delay in transferring seriously mentally
ill inmates for necessary care and treatment is at least
partially attributable to a lack of accreditation for the
Mental Health Unit. Because the Jail itself is not accred-
ited, the psychiatric staff must first refer a seriously ill
inmate to the Allegheny County Behavior Clinic for com-
mitment proceedings.
The female mental health personnel log indicates that
a psychiatrist visited the female mental health cells only 12
times over a 67-day period from August 1, 1988 through
October 6, 1988. We note that this omission applies to the
Annex, the only facility where female inmates are held.
In 1986, the County formed an Ad Hoc Committee on
Jail Medical Procedures, chaired by Gilbert A. Friday,
M.D. The purpose of the Committee was to recommend
improvements to Jail medical procedures.
The Committee recommended, inter alia, the imple-
mentation of continuing education opportunities for all
mental health personnel, the hiring of additional and bet-
ter qualified nurses, the training of the nursing and physi-
cian staff in emergency medical care, and increasing the
availability of psychiatric services to inmates. See The
Roport of the Allegheny County Jail Ad Hoc Committee on
Jail Medical Procedures, 9-16 (April 2, 1987).
In response to the Committee’s report, the County is
currently negotiating a contract with Correctional Medical
Services (“CMS”) of St. Louis, Missouri, to operate medi-
cal services at the Jail. The County expects a final arrange-
ment with CMS soon, with the objective that CMS will
10a
implement the Committee’s recommendations by January
1, 1989.
II. Conclusion of Law
The defendants have committed and condoned seri-
ous violations of various orders of this Court. We are
disturbed particularly that the population caps were vio-
lated, not by negligence or mistake but consciously and
with full knowledge that this Court’s orders were being
violated. The County made no effort to come back to the
court to seek relief.
The courts don’t operate in a vacuum. At the trial
level we “see the bodies,” whether they be civil litigants,
criminal defendants, victims of crime or inmates of the
Allegheny County Jail. Since our first visit to the Jail in
1977 we have been well aware of the problems, not only of
the inmates but those of County officials. We have written
reams of opinions and orders on the subject.’
Throughout this twelve-year period, this Court has
attempted to use restraint by not superimposing on the
County Commissioners what this judge thinks needs to be
done; they, after all, are the duly-elected representatives of
the citizens of this County.
Rather than ordering that a new jail be built, we
imposed a population cap on the original jail facility. This
resulted in the Annex being constructed. As noted in the
2Jnmates of Allegheny County Jail v. Wecht, et al., 612 F.Supp. 874
(W.D. Pa. 1985); 573 F.Supp. 454 (W.D. Pa. 1983); 565 F.Supp. 1278
(W.D. Pa. 1983); Inmates of Allegheny County Jail v. Peirce, 487
F.Supp. 638 (W.D. Pa. 1980); Owens-E/ v. Robinson, 457 F.Supp. 984
(W.D. Pa. 1978); 442 F.Supp. 1368 (W.D. Pa. 1978). The foregoing are
only the published opinions; we have also written many unpublished
orders and memoranda.
Findings of Fact above, the average daily population in the
Jail was 429 in 1976. In 1983, it had jumped to 644. On
one day that we toured the jail (May 5, 1983), it was 705.
Again, setting the cap was not done precipitously. We
ordered a population reduction in steps beginning on July
1, 1983 and giving the County until January 1, 1984 to
reduce the jail population to 530. By Order of February 28,
1985, we increased the cap to 540 but also ordered the
County to obtain additional facilities fr prisoners over the
cap or release them and be fined for releasing them. The
County released many prisoners and piled up about 2 mil-
lion dollars in fines. It also built the Annex, and we then
agreed to forgive the fines.
Now we are back to square one; even though the
Annex can house 435 prisoners, the County has again
started releasing prisoners in some cases and in others has
simply violated this Court’s orders.
Judges often have to go through what are called “bal-
ancing tests” by the lawyers. In a criminal trial, for exam-
ple, if an item of evidence is technically admissible, the
judge must decide whether the possibie unfair prejudice to
the defendant outweigiis the probative value (proof) of that
evidence. A typical example is whether or not to let the
jury know about a prior conviction of the defendant.
Well, in this case the time has come for another kind
of balancing test. The prisoners are not entitled to a coun-
try club or hotel, but they are entitled to be housed in
constitutionally humane conditions. The County is obliged
to provide such conditions. But the County also has an
obligation to its citizens to protect them from dangerous
people.
Ee
12a
In complying with the population cap, the County
released pretrial detainees on “own recognizance” or
“OR” bonds. These came to be known as “Cohill bonds”
as a result of this Court’s Orders. While it must be kept in
mind that prisoners released on so-called “Cohill bonds”
have not been convicted of anything and would have been
released anyway if they had been able to “make” their
bonds, nevertheless having a judge be responsible for
wholesale releases rather than utilizing the deliberate judi-
cial process for each case as provided by the law is simply a
distortion of the law. The problem has now been com-
pounded by the Warden deliberately violating our orders
which set the population cap.
This method of operating can’t continue indefinitely.
The balance now tips in favor of protection of the citizens;
the County cannot postpone the inevitable; it must pro-
vide adequate facilities for all of its prisoners. We conclude
today that the Jail is no longer constitutionally adequate.
The main facility houses not only convicted inmates
but pretrial detainees who are only accused of crimes. Pre-
trial detainees have due process rights under the fifth and
fourteenth amendments and are entitled to non-punishing
jail conditions. Bell vs. Wolfish, 441 U.S. 520, 535 (1979).
Pretrial detainees may not be held under punitive condi-
tions, because they are still cloaked with the presumption
of innocence. Reese v. Gragg, 650 F.Supp. 1297, 1300 (D.
Kan. 1986). Sentenced inmates may be held under condi-
tions that are punitive, as long as the punishment is not
incompatible with societal standards of decency and does
not constitute cruel and unusual punishment. /d. How-
ever, where a correctional facility, such as the Jail, houses
both types of inmates and does not segregate them, non-
punishing conditions must be provided.
fretteinieeipmeniennt een
13a
Overcrowding becomes punishment when it “subjects
a detainee over an extended period to genuine privations
and hardship not reasonably related to a legitimate govern-
mental objective.” Lareau v. Manson, 651 F.2d 96, 103 (2d
Cir. 1981). All inmates are entitled to protection from an
environment where degeneration is probable and self-
improvement is unlikely because of conditions which
inflict needless physical or mental suffering. Capps yv.
Atiyeh, 495 F.Supp. 802, 813 (D. Ore. 1980).
Our inquiry, then, is whether the totality of conditions
“deprives inmates of the minimum civilized measures of
life’s necessities.” Rhoades v. Chapman, 452 U.S. 337, 346
(1981). We find that the totality of conditions at the Jail,
including the lack of adequate living space for inmates, the
deplorable mental health facilities, fire hazards and the
lack of reliable climate control, deprive inmates of the
minimum necessities of life. The Jail is therefore a consti-
tutionally inadequate facility.
While no consensus among courts exists regarding the
minimum number of square feet that should be provided
to an inmate, courts recognize that the fifth (due process),
eighth (cruel and unusual punishment), and fourteenth
(also due process) amendments demand some minimum,
and our review of the cases indicates that the figure is 60 to
70 square feet per cell. .
In Battle v. Anderson, 564 F.2d 388, 395 (10th Cir.
1977), the Tenth Circuit Court of Appeals adopted the 60
square feet standard set by the American Public Health
Association noting that “[m]inimum space to call one’s
own IS a primary psychological necessity. Without the
basic minimums prisons are doomed to failure, with both
society and the inmates incarcerated therein the losers.”
teat etl
l4a
The institution that the Battle court examined housed con-
victed sentenced inmates but not pretrial detainees.
Other courts have attempted to set a constitutional
minimum as to the amount of square feet to be provided
each inmate. See Ahrens v. Thomas, 434 F.Supp. 873, 901
(W.D. Mo. 1977) (70 sq. ft. min.); Anderson v. Redman,
429 F.Supp. 1105, 1119 (D.Del. 1977) (60 sq. ft. min.);
Pugh v. Locke, 406 F.Supp. 318, 334 (M.D. Ala. 1976).
aff'd, 559 F.2d 283 (Sth Cir. 1977) (60 sq. ft. min.).
The American Correctional Association (“ACA”) pro-
vides “‘current standards deemed appropriate by detention
facility managers and recognized organizations represent-
ing corrections.”” ACA, Standards for Adult Local Deten-
tion Facilities, xiii (2d ed. 1981). With respect to living
space, the ACA recommends that “‘[a]ll single rooms or
cells in detention facilities have at least 60 square feet of
floor space, provided inmates spend no more than 10
hours per day locked in; when confinement exceeds 10
hours per day, there are at least 70 square feet of floor
space.” /d., standard 2-5111. Discussing this standard, the
ACA notes that “[a]dequate living space is important to
the mental well-being of the inmate. Rooms or cells of
sufficient size enable inmates to personalize living space
consistent with facility rules and regulations.” /d.
The National Clearinghouse for Criminal Justice
Planning and Architecture recommends 70 square feet per
inmate. The National Advisory Commission on Criminal
Justice Standards and Goals recommends 80 square feet
per inmate. The American Institute of Architects recom-
mends 70 square feet per inmate.
While these recommendations, suggesting that
inmates be provided with between 60 and 80 square feet of
lSa
living space, do not establish constitutional minima, and
are certainly not binding on this Court, they do provide
guidance.
The living space provided to inmates in the main
facility at the Jail does not even approach these recom-
mendations. Cells in the North Block provide only 40
square feet of space. Cells in the East and West Blocks
provide only 46.25 square feet of space. Cells in the
Receiving Section provide only 46.7 square feet. While the
cells in the Disciplinary Housing Unit provide between 50
and 65 square feet of space, many of these house two
prisoners. These figures are all floor space dimensions and
include floor areas which are covered by desks, bedding,
and toilets.
These cells are simply too small to provide humane
living conditions to inmates. It is evident that the Jail
facility was constructed over 100 years ago solely for the
purpose of locking people up and, with the passage of time,
no longer meets community standards of humane treat-
ment. While they may have been sufficient in 1886, they
are clearly not tolerable in 1988.
Not only are the cells physically inadequate, but there
is no way for this structure to be made adequate. In the
past several months, the inmate population has regularly
exceeded 540. Officials at the main facility are forced to
handle an increasing number of individuals whether on a
temporary or a permanent basis. Moreover, we are really
just beginning to feel the effects of an ever increasing jail
population. The overcrowding problem is not going to go
away; as the testimony and evidence of record indicate, the
situation will only get worse.
l6a
Overcrowding not only affects the physical housing of
inmates, but the totality of the adequacy of their confine-
ment. Areas for physical recreation are wholly inadequate
for the number of inmates who seek recreation. The only
areas available for the recreation of 540 plus inmates is the
gymnasium which measures 45’ 10” x 63’, and a small
court yard.
The physical limitations of the structure also affect the
quality of other necessities of life such as the food service,
the ability to shower, counseling, medical services and the
myriad other activities necessary in a jail. Even without
the current problem of overcrowding, we find that the Jail
is now constitutionally inadequate.
The health services provided to inmates are wholly
inadequate; this is not merely an administrative problem
but one compounded by the lack of adequate space.
Currently, the Jail contains 40 mental health cells, 20
located in the Summary I unit on one floor and 20 located
in the Summary II unit on another floor. An additional 12
cells are available on the “B” range in the generai popula-
tion to accommodate the overflow of mentally ill patients.
All of the beds available to the mental health unit are
regularly filled to capacity.
If mentally ill inmates are to be housed at the Jail, the
professional staff must have adequate space, equipment
and supplies. The American Medical Association sets three
conditions that must be met if psychiatric treatment is to
be provided at a jail: (1) a safe, sanitary, humane environ-
ment as required by sanitation, safety and health codes of
the jurisdiction, (2) adequate staffing, security to inhibit
suicide and assault (i.e. staff within sight and sound of all
mentally ill inmates), and (3) trained personnel to provide
17a
treatment and close observation. American Medical Asso-
ciation, Standards for Health Services in Jails, at 10 (1981).
Failure to provide adequate treatment is a violation of
the eighth amendment’s prohibition against cruel and
unusual punishment when it results from “‘deliberate indif-
ference” to a prisoner’s serious medical needs. Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)).
At a minimum, the deliberate indifference standard must
be met as to pretrial detainees. Jd. at 762. In evaluating
medical care, the “deliberate indifference’? standard
applies to both convicted prisoners and pretrial detainees.
Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987),
cert. denied, 108 S.Ct. 1298 (1988). In other words the
same level of medical care is required for both types of
inmates.
Psychological or psychiatric care provided at a jail is
constitutionally inadequate if inmates with serious mental
illnesses are denied reasonable access to personnel quali-
fied to diagnose and treat those illnesses. Jnmates, 612
F.2d at 765.
The confined space at the Jail prohibits the construc-
tion and operation of constitutionally adequate mental
health facilities. There is simply not enough room in the
existing mental health units to house those inmates need-
ing psychiatric care. During hearings conducted by this
Court in April, 1980, the evidence established that a mini-
mum of 10% and a maximum of 30% of the inmates in the
Jail could be considered to be seriously mentally ill. As
Warden Kozakiewicz testified at the hearing before this
Court on October 13 and 14, 1988, many prisoners in the
main population would be housed in the mental health
units but for the lack of space.
18a
The Ad Hoc Committee recognized the enormity of
this problem in its April 2, 1987 report. The Committee
noted the “physical limitations to a building erected a hun-
dred years ago.” It stated that more mental health space
should be a high priority. Plaintiffs Exhibit 2, at 5-7. The
Committee recommended that, since the County Engineer-
ing Department had determined that combining the two
summary units would be prohibitively costly and impracti-
cal, a totally new site for a larger Mental Health Unit
should be considered. Jd. at 11.
The lack of space for adequate mental health units
complicates the County’s problem in attracting and retain-
ing qualified nursing personnel to staff the units. Qualified
nurses, consistent with their oaths to provide an acceptabie
level of nursing care, may well find practicing in the cur-
rent jail environment a violation of those oaths.
We note particularly the deficiency in nursing service
for mentally ill inmates who must, out of necessity, be
housed with the general population. With respect to these
inmates, for whose health the nurse accepts responsibility,
she must depend upon security personnel, rather than her
own experienced observations, to identify and alert her to
the inmate’s need for care. We applaud the efforts of the
nurses now working at the Jail. However, because sparse
nursing services must be spread among the three mental
health units and even beyond those units into the general
population, inmates with serious mental illnesses are
denied access to personnel qualified to diagnose and treat
those illnesses. Therefore, current conditions amount to a
constitutional violation. See Inmates, 612 F.2d at 765.
Moreover, after twelve years of trying, it is apparent that
the County is unable to provide constitutionally acceptable
psychiatric care in this antiquated jail.
MI icici
19a
The Jail cannot handle the demands required of a
modern jail facility. Neither can it meet the needs of this
County’s criminal justice system in the next decade. The
totality of conditions in the Jail amount to unconstitu-
tional punishment and violate the rights of the inmates
housed there.
“Once a right and a violation have been shown, the
scope of a district court’s equitable powers to remedy past
wrongs is broad, for breadth and flexibility are inherent in
equitable remedies.” Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S. 1, 15 (1971). Moreover, lack
of financing is not a defense to the failure of a county to
provide minimum constitutional standards in its opera-
tion of a county jail. Battle v. Anderson, 447 F.Supp. 516,
526 (E.D. Ok. 1977).
This Court is fully aware of the judicial restraint
which federal courts must exercise in attempting to remedy
constitutional violations in a correctional institution. We
have respect for the allocation of functions in our federal
system and for comity towards the County and the Com-
monwealth. To that end, we have attempted to exercise
control over the last twelve years by fashioning what we
deem to be conservative relief consistent with the policy of
minimum intrusion into the affairs of the County’s prison
administration. However, it is now apparent that these
measures were ineffective; the time has come to implement
more stringent remedies. See Ruiz v. Estelle, 679 F.2d
1115, 1145-46 (Sth Cir. 1982) (“Conservative treatment is
essential because it is more readily administered, less
costly to the state, and not irreversible... If these mea-
sures later prove ineffective, more stringent ones should be |
considered.”’), cert. denied, 460 U.S. 1042 (1983).
20a
Courts have reacted to unconstitutional jail condi-
tions in various ways. To deal with the physical condition
of prisons, some courts have ordered extensive structural
improvements, such as requiring a minimum number of
square feet to be assigned to each prisoner for living space.
See Newman y. Alabama, 559 F.2d 283, 288 (Sth Cir.
1977); Gates v. Collier, 501 F.2d 1291, 1303 (Sth Cir.
1974). Similarly, to deal with constitutionally inadequate
mental and physical health care, at least one court ordered
the construction of a new prison hospital. Hamilton v.
Landrieu, 351 F.Supp. 549, 550 (E.D. La. 1972). Finally,
when no physical reconstruction efforts could improve a
jail so as to meet constitutional standards, the United
States Court of Appeals for the Second Circuit determined
that the appropriate remedy was to close the old jail and
transfer the prisoners to another facility. Rhem v. Mal-
colm, 507 F.2d 333, 340 (2d Cir. 1974).
This Jail can no longer physically handle the burdens
placed on it by the criminal justice system in Allegheny
County. The Warden and his staff have made valiant
efforts to keep the Jail clean and in repair. These attempts
affect the structure only superficially. As a jail, time has
passed this building by. While we have attempted less
intrusive remedies with the population cap and release
orders, they were unfortunately ineffective short term solu-
tions. We have no choice now but to order that more
stringent measures be taken.
Although apparently three courts have refused to
order a county to build a new jail, such refusal was based
primarily on the fact that such a remedy would not have
solved the constitutional violations found in their cases.
See Madison County Jail Inmates v. Robert Baldwin, et al.,
No. IP 79-675-C (S.D. Ind. 1980) (LEXIS Genfed library,
2la
Dist file); Padgett v. Stein, 406 F.Supp. 287, 303 (M.D. Pa.
1975); Jones v. Wittenberg, 330 F.Supp. 707, 712 (N.D.
Ohio 1971).
In Jones, the United States District Court for the
Northern District of Ohio determined that the problem
with the county jail was not its physical structure, but the
archaic policies and attitudes of the public officials operat-
ing it. Jd. at 712. Therefore, the court determined that
requiring construction of a new jail would be broader than
necessary to remedy the constitutional violations. The
court also believed that it had no authority to compel such
a remedy. Jd.
While we recognize the concerns expressed by these
courts, the situation before us presents an additional
dilemma not confronting those courts. Despite all of our
efforts and orders over the last 12 years, the County has
been unable to provide constitutionally adequate housing
in this institution.
The problem with the Jail is that it is a fortress-like
stone structure to which additional floor space cannot be
added. Those same physical inadequacies prevent the
County from remodeling it to meet constitutional stan-
dards, while at the same time accommodating current and
futute population demands.
We have determined that the conditions existing at
the main facility are inadequate under the Constitution of
the United States. There is no qustion that we may require
the County to comply wit’ the Constitution and provide
constitutional housing to inmates.
The plaintiffs have presented substantial evidence of
long existing and continuing constitutional violations at
the main facility. Severe overcrowding, inadequate cell
22a
size, inadequate staffing and the insufficient medical and
psychiatric services do not provide even minimally ade-
quate care. These conditions can no longer be tolerated.
When the totality of conditions in a penal institution
violates the Constitution, the trial court’s remedies are not
limited to the redress of specific constitutional rights.
Miller v. Carson, 563 F.2d 741, 751 (Sth Cir. 1977). Rather,
the nature of the violation determines the scope of the
remedy. Swann, 402 U.S. at 16. Moreover, in fashioning a
remedy for constitutional violations, federal courts must
order full and effective relief. Smith v. Sullivan, 611 F.2d
1039, 1044 (Sth Cir. 1980). The fact that a remedy is costly
does not preclude a district court from ordering that rem-
edy. Toussaint v. McCarthy, 801 F.2d 1080, 1110 (9th Cir.
1986), cert. denied, 107 S.Ct. 2462 (1987).
We believe that construction of a new jail and/or
some alternative facility to provide constitutional inmate
housing is required to eliminate continuing constitutional
violations produced by the deplorable jail conditions long
maintained by the County.
While the Court recognizes that the Pennsylvania
Supreme Court held in County of Allegheny v. Common-
wealth of Pennsylvania, 544 A.2d 1305, 1308 (Pa. 1988),
that state prisoners who are sentenced to less than two
years confinement are properly in the custody of the
County absent a proclamation from the Governor making
state facilities available, the Court does not agree that the
Commonwealth of Pennsylvania should be dismissed from
this action.
If the conditions at the Jail violate the Constitution of
the United States due to overcrowding and the Common-
wealth has contributed to those conditions by availing
23a
itself of the Jail, we fail to see why the Commonwealth
should be absolved from partial responsibility for such
conditions. This Court has supreme federal equitable
power to remedy unconstitutional confinement conditions.
Accordingly, the Commonwealth’s Motion to Dismiss will
be denied.
Ill. CONCLUSION
It has become increasingly clear that the Jail cannot be
brought into the latter 20th century, let alone the 2Ist.
Despite the heroic efforts of its staff, the physical facility
itself is not capable of providing adequate housing for cur-
rent and projected populations.
This Court has no choice other than to order that the
Jail be closed. Recognizing that a new facility cannot be
constructed nor alternate housing be located overnight but
also realizing that the County’s own consultants long ago
recognized the space problems at the Jail, we will enter an
Order that no prisoners shall be housed at the main jail
after June 30, 1990.
The defendants shall submit to the Court a plan for
construction of a new facility or alternate housing, accom-
modating at least 900 inmates, within six months of the
date of this Order. For each month thereafter that such
plan has not been filed, defendants will be fined a sum to
be determined.
In the interim, and as a temporary measure only, we
will grant in part the County’s petition to house additional
inmates in the Jail. Since it has been established that there
are 20 additional cells in the main jail which have never
been counted as cells in this litigation because of their
conversion to utility rooms, our Order will permit inmates
24a
to be housed in those rooms as soon as they can be recon-
verted to cells to the Warden’s satisfaction and that of the
Court Monitor. In addition, it appears that constant main-
tenance has reduced the number of “down” or malfunc-
tioning cells. To the extent that the Warden can keep the
number of “down” cells to a minimum, he may house up
to an additional 20 inmates in the Jail if habitable opera-
tional cells are available.
We believe that these allowances will not seriously
impair the functioning of the jail since the additional
inmates will be spread throughout the institution. How-
ever, to insure that there will be no strain, these additional
inmates will be permitted only if (1) the position of Popu-
lation Control Officer at the jail is filled and (2) the Jail
remains in substantial compliance with the prior orders of
this Court relative to conditions.
Because the defendants have repeatedly violated ear-
lier Orders of this Court relative to population and medi-
cal care without seeking permission of the Court, we
believe that financial sanctions are warranted and will
grant the plaintiffs’ petition in part.
The defendants will be fined $25,000 for failure to
comply with this Court’s orders. The same fine will be
imposed for each month in the future that applicable limits
are exceeded. These finds will be payable immediately
upon a violation of this Court’s orders relative to the pop-
ulation count.
An appropriate Order will issue.
Chief Judge
25a
IN THE
United States District Court
For THE WESTERN District OF PENNSYLVANIA
INMATES OF THE ALLEGHENY COUNTY
JAIL, THOMAS PRICE BEY, ARTHUR
GOSLEE, ROBERT MALONEY, and CALVIN
MILLIGAN on their own behalf and on behalf
of all others similarly situated,
Plaintiffs,
We
CYRIL H. WECHT, President of the Allegheny
County Board of Prison Inspectors and the other
members of the Board: THOMAS FOERSTER
and WILLIAM H. HUNT, Commissioners for
Allegheny County; FRANK J. LUCCHINO,
Controller for Allegheny County, EUGENE
COON, Sheriff for Allegheny County; THE
HONORABLE PATRICK R. TAMILIA,
MICHAEL J. O'MALLEY and MARION K.
FINKELHOR, Judges Court of Common Pleas
of Allegheny County; RICHARD S.
CALIGUIRI, Mayor of the City of Pittsburgh;
HARRIET McCRAY; MONSG. CHARLES
OWEN RICE and CHARLES KOZAKIEWICZ,
Warden of the Allegheny County Jail, and
WILLIAM B. ROBINSON, Executive Director
of Prison Inspectors, and CYRIL WECHT,
THOMAS FOERSTER and WILLIAM H.
HUNT, as Commissioners of Allegheny County,
Defendants.
4
COMMONWEALTH OF PENNSYLVANIA
Third-Party Defendant.
26a
ORDER
AND NOW, to-wit, this 17th day of November, 1988,
for the reasons stated in the foregoing Opinion, it is
ORDERED, ADJUDGED, and DECREED that:
1. no inmates shall be housed in the main facility
of the Allegheny County Jail after June 30, 1990;
2. on or before May 1, 1989, the County shall!
submit to the Court a plan for construction of a new
facility or alternative housing, accommodating at least
900 inmates, not counting the 435 inmates housed in
the Jail Annex.
3. the County’s Motion to Increase Population
Cap be and hereby is conditionally GRANTED. The
County may house unmates in the 20 utility room
areas in the Jail if, in the opinion of the Court Moni-
tor, these are converted to habitable cells. The County
may further house up to an additional 20 inmates in
the Jail to the extent that the Warden can keep the
number of inoperable cells to a minimum. Said popu-
lation increases may be made only if (1) the position
of Population Control Officer at the Jail is filled, and
(2) in the opinion of the Court Monitor the Jail
remains in substantial compliance with the prior
Orders of this Court relative to conditions.
4. plaintiffs’ Motion for Sanctions be and hereby
is GRANTED. The County is Ordered to pay a fine in
the amount of $25,000 to the Clerk of Court on or
before Friday, December 2, 1988;
5. third-party Defendant’s Motion to Dismiss be
and hereby is DENIED.
/s/ Maurice B. Conte, Jr.
“*e eee eneneneneneeeeneeeneeeee eee e ee
Chief Judge
=e
27a
cc: George C. Diamantopulos
Asst. Allegheny County Solicitor
300 Fort Pitt Commons Building
445 Fort Pitt Blvd.
Pittsburgh, PA 15219
Donald Driscoll, Esq..,
Neighborhood Legal Services Assn.
928 Penn Avenue
Pittsburgh, PA 15222
Thomas F. Halloran
Office of Attorney General
Western Regional Office
4th Floor, Manor Building
564 Forbes Avenue
Pittsburgh, PA 15219
Lynette Norton, Esq.
Sherman & Picadio
Suite 3180, 600 Grant Street
Pittsburgh, PA 15219
28a
APPENDIX B
DECISION OF THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT
United States Court of Appeals
For THE THIRD CIRCUIT
Nos. 88-3820, 88-3871
INMATES OF THE ALLEGHENY COUNTY JAIL,
THOMAS PRICE BEY, ARTHUR GOSLEE,
ROBERT MALONEY, and CALVIN MILLIGAN
on their own behalf and on bahalf
of all others similarly situated,
Plaintiffs/Appeilees,
Ws
CYRIL H. WECHT, President of the Allegheny
County Board of Prison Inspectors, and the other
members of the board: THOMAS FOERSTER and
WILLIAM H. HUNT, Commissioners for Allegheny
County; FRANK J. LUCCHINO, Controller for Alle-
gheny County; EUGENE COON, Sheriff for Alle-
gheny County; THE HONORABLE PATRICK R.
TAMILIA, MICHAEL J. O’MALLEY, and MARION
K. FINKELHOR, Judges, Court of Common Pleas of
Allegheny County; RICHARD S. CALIGUIRI,
Mayor of the City of Pittsburgh; HARRIET
McCRAY; MSGR. CHARLES OWEN RICE, and
CHARLES KOZAKIEWICZ, Warden of the Alle-
gheny County Jail; and WILLIAM B. ROBINSON,
Executive Director of Prison Inspectors; and CYRIL
WECHT, THOMAS FOERSTER and WILLIAM H.
HUNT, as Comniissioners of Allegheny County,
Defendants/Appellants,
29a
V.
THE COMMONWEALTH OF PENNSYLVANIA;
THE COMMONWEATH OF PENNSYLVANIA,
DEPARTMENT OF CORRECTIONS; DAVID S.
OWENS, JR., Commissioner, Department of
Corrections, and ERSKIND DERAMUS, Deputy
Commissioner, Department of Corrections.
Third Party Defendants/Appellees.
ON APPEAL FROM THE UNITED STATES
District COURT For
THE WESTERN DISTRICT OF PENNSYLVANIA
U.S.D.C. No. 76-743
Argued: April 3, 1989
Before: GIBBONS, Chief Judge,
BECKER and NYGAARD Circuit Judges
(Opinion Filed: May 4, 1989)
JAMES J. DODARO
County Solicitor
GEORGE C. DIAMANTOPULOS (ARGUED)
Assistant County, Solicitor
Allegheny County Law Department
300 Fort Pitt Commons Building
445 Fort Pitt Boulevard
Pittsburgh, PA 15219
Attorneys for Cyril H. Wecht, et al.,
Defendants/Appellants
—
30a
DONALD DRISCOLL, Eso. (ARGUED)
Neighborhood Legal Services Association
928 Penn Avenue
Pittsburgh, PA 15222
Attorneys for Inmates of Allegheny
County, et al., Plaintiffs/Appellees
ERNEST D. PREATE, JR.
Attorney General
THOMAS F. HALLORAN
Senior Deputy Attorney General
JOHN G. Knorr, III
Chief Deputy Attorney General
Chief, Litigation Section
CALVIN R. Koons
Deputy Attorney General
Office of Attorney General
4th Floor, Manor Complex
564 Forbes Avenue
Pittsburgh, PA 15219
Attorneys for The Commonwealth of
Pennsylvania, et al., Third Party
Defendants/Appellees
OPINION OF THE COURT
GIBBONS, Chief Judge:
Once mor2, and undoubtedly not for the last time, we
are presented with an appeal by officials of Allegheny
County from an order of the district court in the thirtecn
year old dispute over unconstitutional conditions of con-
finement at the Allegheny County Jail. To the extent that
3la
the order appealed from, dated December 20, 1988, is
appealable, we will affirm.
I. Prior Proceedings
The Allegheny County Jail in Pittsburgh, Pennsylva-
nia was erected in 1886. At the time of its construction the
population of the County was approximately 450,000.
(The U.S. Census reported 355,869 residents in 1880 and
551,959 in 1890). The 1983 population was 1,385,558. In
1886 the County had six Common Pleas Judges; now
forty-five judges sit there. The jail was designed, in connec-
tion with the county courthouse, by the great architect
Henry Hobson Richardson. In 1976 the jail was placed on
the National Register of Historic Places. Its recognition as
an historic landmark, however, coincided with the com-
mencement of this class action on behalf of past, present,
and future inmates, for in 1976 a complaint was filed alleg-
ing that conditions in Richardson’s grim fortress violated
their Fifth, Eighth, and Fourteenth Amendment rights.
On January 4, 1978, after a six week trial, the district
court held that conditions in the jail violated the constitu-
tion in many respects. Owens-El v. Robinson, 457 F. Supp.
984 (W.D. Pa. 1978). The county defendants did not
appeal. The class representatives did, however, and this
court remanded for consideration of changes in the decree
necessary to upgrade the psychological treatment facilities
in the jail to the constitutional minimum. Jnmates of Alle-
gheny County Jail v. Pierce, 612 F.2d 754 (3d Cir. 1979).
On remand, after a five week trial, the district court
found that the level of care for mentally ill inmates
amounted to deliberate and unconstitutional indifference.
The court also found that the county officials were not in
full compliance with the October 11, 1978 decree. The
32a
court ordered such compliance as well as additional steps
to bring treatment of the mentally ill inmates up to consti-
tutional minimum standards. Inmates of Allegheny County
Jail v. Pierce, 487 F. Supp. 638 (W.D. Pa. 1980). No appeal
was taken from this judgment.
During the seventies overcrowding in the jail had not
become an issue, and was not addressed in the initial class
action. The average daily inmate population in 1975 was
only 429, and the court in 1978 observed in passing that
“fo]vercrowding of the institution is not a problem.”
Owens-El v. Robinson, 442 F. Supp. 1368, 1376 (W.D. Pa.
1978). By April of 1983, however, the average daily popu-
lation had risen to 690, and as a consequence jail condi-
tions seriously deteriorated. That month the class repre-
sentatives obtained an order directing the county officials
to show cause why they should not be held in contempt for
non-compliance with the court’s prior orders, and moved
for additional relief. On May 25, 1983, after a six day
hearing, the district court found that the maximum consti-
tutional capacity of the facility was 475-500 males in the
main unit, 63 males in the receiving unit, and 38 females
in the female section; an upper limit of 575-600. The court
found 705 inmates in the jail on the day he toured it, and
found:
The jail is now dangerously overcrowded. Fires and
prisoner unrest are an ever-present danger in any penal
setting. Here they could result in disaster. The Alle-
gheny County Jail is a catastrophe waiting to happen.
Inmates of Allegheny County Jail v. Wecht, 565 F. Supp.
1278, 1281 (W.D. Pa. 1983). (emphasis in original). By
order of May 25, 1983 the court ordered phased reductions
of the jail population as follows:
33a
a. After July 1, 1983, there shall be no more than
650 male and 60 female inmates housed in the
jail;
b. After August 15, there shall be no more than 600
male and 50 female inmates housed in the jail;
c. After October 1, 1983 there shall be no more than
550 male and 40 female inmates housed in the
jail;
d. After January 1, 1984 there shall be no more than
500 male and 30 female inmates housed in the
jail.
No appeal was taken from the May 25, 1983 order.
By October 20, 1983 it was clear that the county
authorities were not meeting the population cap, and the
court addressed their August 4 and September 30 motions
for upward modification. Finding that the dangerously
overcrowde * conditions in the jail were just as serious as
on May 25, . +83, the court ordered the release of those
prisoners held in the lowest amount of bail until the popu-
lation limits of the May 25 order were met. The court
made it clear that the release remedy was a temporary
expedient, noting:
It is the duty of the County to house prisoners, and
any release of prisoners as a result of this order should
be recognized as final, albeit temporary, effort to ame-
liorate the situation, not as a solution to the problem.
Inmates of Allegheny County Jail v. Wecht, 573 F. Supp.
454, 457 (W.D. Pa. 1983). No appeal was taken from the
October 20, 1983 order.
By late December 1983, 14 males and 12 females had
been released, and it became clear to the district court that
34a
no permanent solution was in the offing. To provide an
incentive for such a solution the court ordered “that after
February 15, 1984, a sanction of $5,000 against the defend-
ants for each prisoner released under the court’s order of
October 20, 1983” would be assessed. Thereafter the court
denied the request of the county authorities to increase the
population cap as well as a request to house some inmates
temporarily in a trailer within the jail compound. Finding
heating problems, fire hazards, and lack of constitutionally
required support services the court reaffirmed the popula-
tion caps in the October 20, 1983 order. The county
authorities appealed from the denial of their request to
raise the population caps, and from the $5,000 sanction
order.
This court, on January 29, 1985 affirmed the order
reconfirming the population caps. We reluctantly vacated
the contempt sanctions, reasoning that the county officials
could not be held in contempt for failure to develop substi-
tute jail facilities because the court’s previous orders were
not sufficiently explicit to satisfy Fed. R. Civ. P. 65(d).
Inmates of Allegheny County Jail v. Wecht, 754 F.2d 120,
127-30 (3d Cir. 1985). We made it clear, however, that the
district court had the power to order production of such a
plan, observing:
Orders to responsible public officials to prepare and
submit plans for remedying constitutional violations
are not uncommon. Such orders often issue in the
school desegregation context.
Similarly, in the prisoner contexts the courts have
authority to order local officials to take costly mea-
sures to cure constitutional violations.
754 F.2d at 128 n.5 (citations omitted).
35a
On remand the district court after a hearing on Febru-
ary 20, 1985 ordered the county officials “to appraise the
court as to...[p]lans for alternate facilities in order to
prevent the further release of prisoner.” The court indi-
cated that [i]f no plan is presented, the court will order
further appropriate action at that time.” Jnmates of Alle-
gheny County Jail v. Wecht, 612 F. Supp. 874, 877 (W.D.
Pa. 1985). A week later, the court after a hearing deter-
mined that although the county was then in compliance
with the cap “the measures taken by the county continued
to be, in essence, a stopgap approach to a serious and
continuing problem.” Jd. at 877-78. The court ordered that
the county have adequate facilities in place by May 6, 1985
or be subject to a $5,000 contempt fine for each prisoner
released. When the county failed to meet this deadline,
contempt fines were commenced. The county authorities
appealed from the order directing that they develop a plan
for new facilities, and from the order imposing fines.
Before these appeals were heard, the district court was
forced to deal with a new mode of evasion. In a hearing on
a motion by the class representatives for further relief it
was revealed that the county was complying with the popu-
lation cap by refusing to admit inmates committed to jail.
As a result, committed inmates were being detained in
local police lockups not designed for overnight use. Find-
ing the practice unconstitutional the district court enjoined
it, and ordered the county to accept any prisoner commit-
ted to jail before spending more than twelve hours in
police lock-ups. Jnmates of Allegheny County Jail v. Pierce,
612 F. Supp. at 878-84. The county officials likewise
appealed from this order.
36a
The appeals from the orders directing preparation of a
plan, imposing the contempt fines, and prohibiting over-
night use of police lockups, were never addressed in this
court. Faced with mounting fines the county some time in
1985 commissioned a study entitled Allegheny County
Criminal Systems Facilities Report, by a firm called
L. Robert Kimball & Associates which recommended
against attempting to renovate the historic jail. In June of
1986 the county had managed to complete a jail annex, in
a converted office building a block away, with 274 cells
capable of housing 435 inmates double-celled. By then
fines against the county for releasing prisoners to comply
with the population cap totaled $2,090,000. The county
requested this court to remand, while retaining jurisdic-
tion, for the purpose of implementing an amicable settle-
ment. We did so on May 19, 1986.
As part of that settlement the district court remitted
the $2,090,000 in fines. In the order to that effect, however,
the court stated:
{[s]uffice it to say that following the 1986-77 hearings,
court inspections, and the involvement of court-
appointed monitors, conditions at the Allegheny
County Jail did improve, but it was still an antiquated
100-year-old facility.
* * *
The new auxiliary jail appears to be an excellent facil-
ity. We are particularly concerned, however, about the
condition of the old jail. The Warden and his person-
nel are doing the best they can at this point in a very
old and decrepit building. A study should be made to
determine whether it is better to continue the old jail as
te eh the eo tle Pa ne eee
ited
37a
a jail, or to build elsewhere and convert the jail build-
ing to another use. This should be done now, not after
another crisis.
Memorandum Order, June 2, 1986 at 2, 4(emphasis sup-
plied). The court noted the statutory duties of the Alle-
gheny County Prison Board under state law, 61 Pa. Stat.
Ann. § 407.1 et seg. and concluded that “our review today
of what the Allegheny Prison Beard is required by law to
do is intended to give fair warning for the future.” Jd. at 6.
The parties then entered into a stipulation providing that
l.
All prior orders would continue except as modi-
fied by the stipulation.
The Annex would operate at full capacity by July
31, 1986.
. The capacity of the Annex would be 274 inmates
single celled, 435 double celled.
. No double celling would be permitted unless
inmates were allowed 12 hours outside the cells.
. All female inmates would be housed in the Annex.
. The mental health unit in the jail would be
doubled to 40 beds, with appropriate modifica-
tions and services.
. Six cells in the female unit in the Annex would be
set aside for mental health problems.
. The jail officials would submit a progress report
after one year.
The male population cap in the old jail would be
increased to 540 when the Annex was at full
capacity and the former female section in the old
jail thus made available for males.
38a
10. The county would pay counsel fees to the attor-
neys for the plaintiff class.
11. Court costs would be paid by the county.
12. The pending appeals would be dismissed.
Stipulation, June 4, 1986. On June 11, 1986 this court,
pursuant to the stipulation, dismissed the county’s consoli-
dated appeals.
The truce embodied in the June 4, 1986 stipulation
proved to be, like the Lebanese variety, of short duration.
By January of 1988 the county authorities were back in the
district court seeking and order lifting the population caps,
while the class representatives moved for sanctions and
additional relief on account of the deteriorating condition
of the old jail and overcrowding in the Annex. On Febru-
ary 9, 1988 the court found that there had been chronic
violations of the population caps at both facilities. Memo-
randum Order, February 9, 1988 at 2,3.
Noting that the conditions in both facilities violated
the stipulaison at least, if not the constitution, the court
nevertheless denied the class representatives’ motion while
the county sought through litigation in the Pennsylvania
courts to have the Commonwealth take some sentenced
prisoners off its hands. On July 28, 1988 the Pennsylvania
Supreme Court rejected the county’s effort to move prison-
ers to state facilities. Allegheny County v. Commonwealth,
518 Pa. 556, 544 A.2d 1305 (1988).
With no relief in sight from the Commonwealth, a
further hearing was held in the district court on October
13, and 14, 1988. That hearing produced the November
17, 1988 order appealed from. That order provides in rele-
vant part:
39a
1. no inmates shall be housed in the main facility
of the Allegheny County Jail after June 30, 1990;
2. on or before May 1, 1989, the county shall
submit to the court a plan for construction of a new
facility or alternative housing, accommodating at least
900 inmates, not counting the 435 inmates housed in
the Jail Annex.
3. the county’s Motion to Increase Population
Cap be and hereby is conditionally GRANTED. The
county may house inmates in the 20 utility room areas
in the Jail if, in the opinion of the Court Monitor,
these are converted to habitable cells. The county may
further house up to an additional 20 inmates in the
Jail to the extent that the Warden can keep the num-
ber of inoperable cells to a minimum. Said population
increases may be made only if (1) the position of Pop-
ulation Control Officer at the Jail is filled, and (2) in
the opinion of the Court Monitor the Jail remains in
substantial compliance with the prior orders of this
court relative to conditions.
4. plaintiffs Motion for Sanctions be and hereby
is GRANTED. The county is ordered to pay a fine in
the amount of $25,000 to the Clerk of Court on or
before Friday, December 2, 1988.
The county officials appeal from paragraphs |, 2, and 4.
We address each paragraph, although not in the same
order. ~
II. The Contempt Sanction
This court has appellate jurisdiction over the order
imposing a contempt sanction for prior violations of the
district court’s injunction because that order is a final judg-
ment. 28 U.S.C. § 1291. Commonwealth of Pennsylvania v.
Local Union No. 542, International Union of Operating
40a
Engineers, 552 F.2d 498 (3d Cir. 1977), cert. denied sub
nom, Freedman vy. Higginbotham, 434 U.S. 822 (1977).
The scope of review is limited to these questions: did
the order give fair notice, was the contempt hearing proce-
durally proper, did contemnors violate the order, and was
compliance with the order physically possible. The validity
of the underlying order is not open to consideration. Hald-
erman v. Pennhurst State School & Hospitai, 673 F.2d 628,
636-37 (3d Cir. 1982) cert. denied, 465 U.S. 1028 (1984).
The court imposed a $25,000 fine, payable to the
Clerk of Court on or before Friday, December 2, 1988.
When the fine was not paid on that date the court imposed
an additional fine of $5,000. The $25,000 fine was imposed
because the county officials failed to comply with several
provisions of prior orders, including inmate population
caps in the May 4, 1984, and February 25, 1985 orders, the
requirement for trained psychiatric nurses in the October
11, 1978 order, the requirement of one guard and one
nurse for each shift in the Mental Health unit, in the April
17, 1980 order, and the requirement that there be sufficient
nursing staff so that one nurse will be present in the Mental
Health unit at all times, in the May 25, 1985 order.
The county officials do not contend that these orders
did not give fair notice of the conduct they prescribed or
proscribed. Compare Jnmates of Allegheny County vy.
Wecht, 754 F.2d at 127-30. Nor de they contend that the
contempt hearing was procedurally irregular. Nor do they
dispute that the orders were not complied with in the spe-
cific respects noted by the district court. Their sole conten-
tion is that they were unable to comply. In advancing this
contention they rely on United States v. Bryan, 339 U.S.
323, 330-31 (1950). The Bryan defense of inability to com-
ply. however, refers to physical impossibility beyond the
4la
control of the alleged contemnor. The orders in question
were directed to all the defendants, and the suggestion that
it was physically impossible for Allegheny County to obey
the order in the respects inwhich they were held to be in
contempt is sophistical. The county officials simply chose
to take no steps to provide the Warden and his staff with
the wherewithal to comply. Such conduct exposes the party
responsible to contempt. Pennhurst State School & Hospi-
tal, 673 F.2d at 639.
Alternatively, the county contends that the fine was
not a proper civil contempt remedy since it is not reme-
dial. See Ramos Colon vy. U.S. Attorney for the District of
Puerto Rico, 576 F.2d 1 (1st Cir. 1.978). That argument is
no more persuasive than the county’s reliance on the
defense of impossibility. More was at stake than merely
vindicating the dignity and authority of the court. The
orders which were disobeyed are still in place, and the
district court imposed the fines for the clear purpose of
deterring their violation in the future.
The orders imposing a $25,000 and $5,000 fine for
violations of outstanding injunctions will therefore be
affirmed.
Ul. The Jail Closing Order
As noted above, the November 17, 1988 order pro-
vides that “no inmates shall be housed in the main facility
of the Allegheny County Jail after June 30, 1990.” This
order modifies a prior injunction, which permitted use of
the old jail subject to a population cap and other limits. It
is therefore appealable under 28 U.S.C. § 1292(a)(1). We
review the district court’s findings of fact in support of the
modification of the injunction by the clearly erroneous
standard of Fed. R. Civ. P. 52. If those findings disclose a
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constitutional violation, our review of the district court’s
remedial order turns on whether the court committed a
clear abuse of discretion. See e.g., Hodge v. Hodge, 621
F.2d 590, 593 (3d Cir. 1980). When the totality of condi-
tions in a jail violates the Constitution a district court need
not confine itself to the elimination of specific conditions.
Miller v. Carson, 563 F.2d 741, 751 (Sth Cir. 1977). Rather,
the nature of the overall violation determines the permissi-
ble scope of an effective remedy. Swann v. Charlotte-
Mecklenburg Board of Education, 402 U.S. 1, (1971). A
remedy c2::not, however, go beyond the constitutional vio-
lations found. Milliken v. Bradley, 433 U.S. 267, 280-81
(Milliken II) (1977).
The district court determined that inevitable and una-
voidable conditions at the old jail violate the constitution
now, and will do so to a greater extent in the future. If the
court applied the proper legai standard and its findings are
not clearly erroneous in these respects, the order requiring
that the jail not be used to house inmates is an appropriate
remedy. Jordan v. Wolke, 593 F.2d 772, 775 (7th Cir.
1978); Rhem v. Malcolm, 507 F.2d 333, 341 n.19 (2d Cir.
1974).
The old jail currently houses both pretrial detainees
and convicted prisoners, and they are not segregated. Pre-
trial detainees retain the presumption of innocence, and
may not be held in conditions amounting to punishment.
Bell v. Wolfish, 441 U.S. 520 (1979). Sentenced inmates
may be held in punitive conditions as long as those condi-
tions do not fali below Eighth Amendment standards for
punishment. Rhodes v. Chapman, 452 U.S. 337, 344-45
(1981); Trop v. Dulles, 356 U.S. 86, 101 (1958). Where
both convicted inmates and pretrial detainees are housed
eee
43a
together the higher standard applicable under the due pro-
cess Clause should govern their common condition. E.g.,
Reece v. Gragg, 650 F. Supp. 1297, 1300 (D. Kans. 1986).
Here, however, the district court applied the cruel and
unusual punishment standard of Bell, 441 U.S. at 542 and
Rhodes, 452 U.S. at 344-45. Thus, the district court mea-
sured the defendants’ constitutional obligation by the stan-
dard applicable to the sentenced inmates. Certainly, there-
fore, the county officials cannot contend that the court
abused its discretion with respect to the applicable legal
standard.
Turning to the facts, the district court relied on several
factors in support of the finding that the old jail is inher-
ently constitutionally inadequate. The court deemed lack
of space for adequate mental health care the most grievous
problem. The American Medical Association has set forth
three prerequisites for adequate psychiatric care in a penal
institution: (1) a safe sanitary environment; (2) adequate
staffing and security to prevent assault and suicide; and
(3) trained personnel for treatment and close observation.
AMA Standards for Health Services in Jails, at 10 (1981).
This court has already held that a denial of access to per-
sonne! qualified to diagnose and treat mental illness is a
constitutional violation. Jnmates of Allegheny County, 612
F.2d at 765. The court found that “[t]he confined space at
the jail prohibits the construction of constitutionally ade-
quate mental health facilities.” (A. 20). This finding is not
clearly erroneous. The record established in 1980 10% to
30% of the jail population could be considered seriously
mentally ill. The record does not disclose any improve-
ment in inmate mental health. The 40 mental health cells,
along with 12 overflow cells, are regularly filled to capacity.
The mental health facility is understaffed, lack of space
44a
hampers the recruitment of qualified nurses, and the
county’s own Ad Hoc Committee on Jail Medical Proce-
dures noted the “physical limitations to the building
erected a hundred years ago.” (A. 20). The district court
found that the confined space in the jail prohibits construc-
tion and operation of constitutionally adequate mental
health facilities.
The district court also found other unremediable
physical limitations. Chief among these is an antiquated
heating system, the ductwork for which would channel
smoke and noxious fumes throughout the cells in case of a
fire. The building lacks a sprinkler system, and contains
faulty electrical wiring. The central cellblock unlocking sys-
tem chronically breaks down, exposing inmates to the
prospect of being trapped in cells in the event of a fire. The
gymnasium, measuring 45’ 10” x 63’, furnishes the only
exercise area in the facility. Food service, access to show-
ers, and access to counseling, all suffer because of the jail’s
age, size and deteriorating condition.
On top of these seriously hazardous conditions the
district court found that there was the persistent problem
‘of overcrowding. This court has already noted that such
overcrowding may be unconstitutionally punitive. /nmates
of Allegheny County Jail, 754 F.2d at 127. See also Lareau
v. Manson, 651 F.2d 961, 103 (2d Cir. 1981); Rhem, 507
F.2d at 342. The county argues that overcrowding as a
“constitutional violation can be remedied by imposing a
population cap. The district court’s experience with such a
cap, however has amply demonstrated that it has not been
an effective remedy for the several constitutional viola-
tions previously adjudicated. Moreover, the county’s own
study by L. Robert Kimball & Associates (A. 559-94)
describes numerous interrelated structural and operational
45a
problems in the old jail and recommends against renova-
tion as both costly and ineffective. Finally, the district
court noting the projection in the Kimball Report of the
need to house 1095 inmates by the year 1990 and 1339
inmates by the year 2000, observed:
These projections appear to be low, since even today
the average daily population at the Jail alone would
approximate 620 inmates if no releases occurred.
When this is added to the 435 inmates housed in the
Annex the total is 1055. At the hearing on this matter
on October 13, 1988, an expert in demographics,
Hunter Hurst, testified that the county will require a
total jail capacity for 1300 inmates by 1995 and 1400
inmates by the year 2000. (A. 63)
Besides the general problem of overcrowding, the
court noted that as designed in 1886 the floor space in each
cell falls far short of the minimums recommended as psy-
chologically necessary by the American Public Health
Association, and as penologically necessary by The Ameri-
can Correctional Association. The court found that the
cells are simply too small to provide humane living condi-
tions, and that there is no way for the structure to be made
adequate. (A. 73)
One response made by the county officials to these
well supported findings of fact is to suggest that they can-
not be credited because at one point in this protracted
litigation the district court, after an inspection on February
5, 1988, observed that the old jail appeared to be “in good
physical condition and operating smoothly; a vast
improvement from the conditions that existed in 1976.”
(A. 21). The memorandum opinion containing this obser-
vation, complimentary to the Warden, expressly refrained
46a
from determining whether conditions in the old jail vio-
lated the constitution, and set the matter down for an
evidentiary hearing. Thus the reference to the court’s
observation about improved conditions has no relevance
to the findings made after that evidentiary hearing took
place.
The record response made by the county officials to
the court’s well supported findings is to point to testimony
of Lynette Watson the court appointed jail monitor that
the old jail is “neat... [and]...clean” (A. 400, 402-03,
406). The court monitor’s testimony, however, taken in
context, refers only to matters of sanitation and lighting. It
does not address the issues of structural defects, cell space,
fire hazards, inadequate mental health facilities, and over-
crowding. The court monitor did comment on ventilation,
but qualified her observations by noting that she checked
only “those things that one could check by visual inspec-
tion and by asking questions.” Other evidence in the
record amply supports the district court’s findings of
unconstitutional conditions.
Since the court’s findings of fact with respect to the
totality of conditions at the old jail are not clearly errone-
ous, and it applied the Eighth Amendment standard in
determining the constitutionality of those conditions, we
cannot hold that the order directing that the county cease
housing inmates in that facility was an abuse of discretion.
The county officials’ last desperate argument, that the
order should have been made, if at all, years ago, is not
supported either by logic or by authority. Other pressing
problems existed and were addressed at the outset of the
litigation. The overcrowding which has developed since
entirely changed the remedial posture of the case.
47a
The order that “no inmates shall be housed in the
main facility of the Allegheny County Jail after June 30,
1990” will therefore be affirmed.
IV. The Order to Prepare a Plan
The county officials seek to appeal from the direction
in the November 17, 1988 order that by May 1, 1989 they
“shall submit to the court a plan for construction of a new
facility or alternative housing, accommodating at least 900
inmates not counting the 435 inmates housed in the Jail
Annex. That effort presents a question of appellate juris-
diction. The order does not qualify as a final judgment
within the meaning of 28 U.S.C. § 1291. An order to sub-
mit a remedial plan that contemplates further action by the
court is by definition not final. Hoots v. Pennsylvania, 587
F.2d 1340, 1347 (3d Cir. 1978). Authority for our review of
the plan order, therefore, is conferred, if at all, by 28
U.S.C. § 1292(a)(1). The county officials urge that we have
such authority. The class representatives contend that we
do not.
An order appealable as an injunction under section
1291(a)(1) must:
adjudicate some of the relief sought in the com-
plaint... [and]... must also be of such nature that if
‘t grants relief it could be enforced pendente lite by
contempt if necessary.
Cohen yv. Board of Trustees of the University of
Medicine and Dentistry of New Jersey, 867 F.2d 1455, 1465
(3d Cir. 1989). There is no question that the order to pro-
duce a plan is one which will be enforced by contempt.
Indeed the district court, in the opinion accompanying the
order, informed the county that for each month after may,
1989 that a plan is not filed the defendants will be fined a
48a
sum to be determined. (A. 20). Thus one of the two section
1292(a)(1) requirements is satisfied. The more problemati-
cal question is whether the order adjudicates some of the
relief sought in the complaint.
In deciding this more problematical question in the
context of a suit addressed at remedying unconstitutional
conditions this court and others have focused on whether a
plan order (1) is inseparable from the rest of an order that
is clearly an appealable injunctive order, or (2) specifies the
nature and content of the plan to be submitted. Hoots, 587
F.2d at 1349; Hendrickson v. Griggs, 856 F.2d 1041, 1044
(8th Cir. 1988). We conclude that the instant plan order
satisfies neither requirement.
The plan order is unquestionably separable from the
contempt order. The county officials do not contend other-
wise. They contend, rather, that the plan order is insepara-
ble from the order closing the old jail. We conclude other-
wise. The court’s findings as to future inmate population
establish the need for additional inmate capacity whether
or not the old jail continues in use. The constitutionally
adequate annex accommodates 435 inmates, and the con-
stitutionally inadequate old jail 540; far short of the pro-
jected inmate population. Thus a plan for additional hous-
ing is required even if the old jail were to be continued in
use. The plan order thus can be considered apart from the
shutdown order. The shutdown order is not conditioned
on court approval of any plan which may be submitted.
The two orders are separable. See Frederick L. v. Thomas,
557 F.2d 373 380-81 (3d Cir. 1977).
Appealability must rest, then, on whether the order
specifies the nature and content of the plan sufficiently to
be more than a step toward selection of a remedy, among
several possible, for the constitutional violations
49a
addressed. We conclude that the order is not sufficiently
specific. The plan order does require a significant practical
step toward the selection of an ultimate remedy. In that
respect it is analogous to a discovery order, which though
significant and enforceable by contempt, is not reviewable
under section 1292(a)(1). Metex Corp. v. ACS Industries,
748 F.2d 150, 156 (3d Cir. 1984). The plan order accores
inmates none of the relief requested. Until it is approved
by the court it will have no effect on the unconstitutional
conditions of which the class representatives complain.
The only specific requirement of the plan order is that it
provide housing for 900 inmates. The county is free to
propose half-way houses, work release centers, minimum
security facilities, traditional jail facilities, one facility or
several, or any combination of the aforesaid. Whether the
county’s proposal will be deemed by the court an adequate
response to the constitutiona! violations it has found
remains to be seen.
We hold, therefore, that the appeal by the county offi-
cials from the order directing them to prepare an inmate
housing plan by May 1, 1989 must be dismissed.
V. Conclusion
The orders directing the county to pay $30,000 in
contempt fines will be affirmed. The order modifying the
injunction to provide that the Allegheny County Jail may
not be used to house prisoners after June 30, 1990 will be
affirmed. The appeal from the order requiring the county
officials to present to the court a plan for housing 900
inmates no later than May 1, 1989 will be dismissed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
50a
APPENDIX C
ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
United States Court of Appeals
FOR THE THIRD CIRCUIT
No. 88-3866
INMATES OF THE ALLEGHENY COUNTY JAIL,
et al.,
Appellees
We
CYRIL H. WECHT, et al.
Appellees
v.
COMMONWEALTH OF PENNSYLVANIA, et al.,
Appellants
(W.D. of Pa. D.C. Civil No. 76-743)
SUR PETITION FOR REHEARING
Present: GIBBONS, Chief Judge, HIGGINBOTHAM,
SLOVITER, BECKER, STAPLETON, MANSMANN,
GREENBERG, SCIRICA, COWEN and NYGAARD,
Circuit Judges
The petition for rehearing filed by the Commonwealth
in the above entitled case having been submitted to the
judges who participated in the decision of this court, and
to all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in the
Sla
decision having asked for rehearing, and a majority of the
circuit judges in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing is
denied.
By the Court,
“ee © © © oe Fee eee eee eee eee eee eens
Chief Judge
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