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July 18, 1979

Emmitt Valentine, William Coles, Bruce Cunningham, Nathaniel Dash, Winfred Gray, Tony McCutchen, Damon Wilder, on behalf of themselves and all other persons similarly situated, Plaintiffs,
Edwin Englehardt, Sheriff, Passaic County, John DeYoung, Warden, Passaic County Jail, Edward O'Bryne, Freeholder-Director, Joseph Bubba, Freeholder, Louise Friedman, Freeholder, S. M. Terry LaCorte Freeholder, James Roe, Freeholder, Joseph Russo, Freeholder-Deputy Director, Cyril Yannarelli, Freeholder, all of Passaic County, New Jersey, and their successors in office, Defendants.

The opinion of the court was delivered by: STERN

In this class action brought pursuant to 42 U.S.C. ยง 1983 by the inmates of the Passaic County Jail, many of whom are pretrial detainees, the Court must decide whether that institution's visitation regulations, which completely ban all minor children from seeing their incarcerated parents and limit all inmates to a total of thirty minutes of non-contact visiting time a week, with a maximum of two adult visitors, are constitutional. On the basis of the testimony, papers and argument in this case, the Court finds that the Passaic County Jail procedures totally barring visitation by inmates' children are unconstitutional. The Court also finds that the present record is inadequate to permit it to determine the constitutionality of the jail's other visitation practices. Therefore, the Court will refer this case to a Special Master with directions to conduct a thorough examination of all the circumstances surrounding the existing visitation policies at the Passaic County Jail and to report his findings to this Court.

I. Background

 The Passaic County Jail is a three-story structure erected in 1956 and located in downtown Paterson, New Jersey. The jail houses an average population of 300 men and women, of which approximately 65% Are pretrial detainees, that is, persons awaiting trial on state charges who remain confined solely because they cannot post bail. It is not unusual for a pretrial detainee to be confined in the jail for three to four months, although the average stay is considerably shorter. The remaining 35% Of the inmate population consists largely of individuals who have been sentenced by the State to terms of up to one year, and, to a lesser extent, of individuals awaiting sentence, persons already sentenced who are awaiting transfer to a state prison, and individuals incarcerated in other institutions whose presence is required in Passaic County.

 A. The Complaint and the Issues Raised Pre-Settlement

 This action was commenced in February 1978 by seven pretrial detainees, represented by the Office of Inmate Advocacy of the New Jersey Department of the Public Advocate. Defendants are the Sheriff of Passaic County, the Warden of the Passaic County Jail, and individual members of the Board of Chosen Freeholders of the County of Passaic. *fn1" Plaintiffs, seeking to remedy certain conditions and practices in the jail, allege that numerous aspects of their confinement violate their rights to equal protection and due process of law and constitute cruel and unusual punishment. *fn2" The class as certified by the Court on April 28, 1978, pursuant to F.R.Civ.P. 23(b)(2) consists of all persons incarcerated as of the date of class certification and all future inmates of the Passaic County Jail. *fn3"

 On May 31, 1978, plaintiffs filed an amended complaint. Dividing their allegations into 10 categories, *fn4" plaintiffs complain, Inter alia, of overcrowding; inadequate classification systems; unsanitary living conditions; inadequate medical care; insufficient opportunity for exercise; insufficient and nutritionally deficient food; overly limited restrictions on telephone use and visitation; inadequate disciplinary procedures; inadequate provisions for inmates not literate in English; and overly restrictive access to the courts, to reading material, and to religious worship.

 The complaint also alleges sex discrimination. It is alleged that women are not permitted to attend services in the jail chapel and are deprived of other opportunities for religious worship furnished male inmates. Routine sick call is available for women only once a week; it is provided to men five days a week. Female inmates are permitted to use the institution's gym for only two hours a week, while male prisoners may use it three hours each week. Moreover, the only exercise equipment in the gym a machine involving the use of weights is not geared for use by females.

 The alleged difference in allotted gym time affects more than merely the amount of exercise the inmates receive because the jail's "law library" is located in the gym, as are the only newspapers and magazines to which the inmates have access.

 Newspapers and magazines were not allowed in the inmate housing areas. One copy of each day's local newspaper, The Paterson News, and occasionally other newspapers, were retained for one week in the gym and were available to inmates during, but only during, their recreation time. Thus, inmates had the opportunity to read newspapers and magazines for a possible maximum of three hours per week, an opportunity which they had to forsake if they wished to exercise.

 The complaint further alleges that the following conditions exist at the Passaic County Jail. The institution is racially segregated and violent inmates are housed with the nonviolent and convicted inmates with the unconvicted. Inmates sleep on dirty mattresses in housing areas that are filthy and vermin infested. Ventilation is poor. Heating in winter months is often insufficient and hot water is frequently unavailable. When an inmate must have his teeth extracted, he is often unable to eat because he is given no dentures or other means of chewing food. Inmates who cannot afford their own underwear must go without. Not only do plumbing fixtures operate defectively, but, if guards are unavailable or unwilling to be of assistance during the day, many inmates cannot reach toilet facilities and are forced to urinate in shower stalls. In addition, toilets are located close to and in open view of the inmate eating areas.

 This condition was further explicated during a colloquy between the Court, defense counsel, and the Warden of the Passaic County Jail.

THE COURT: Is it really true they had open toilets where the prisoners ate in the dining room?
MR. KOPF: They did and do.
THE COURT: You mean you could see them sitting there on a toilet?
MR. KOPF: Yes, but we are remedying that situation, your Honor. We're putting in partitions.
THE COURT: You mean it still exists right now?
MR. KOPF: Yes, your Honor.
THE COURT: . . . How long has that been going on, counsel?
MR. KOPF: I imagine since the jail was constructed.
THE COURT: What is the area we are talking about?
MR. KOPF: We are talking about the day room.
THE COURT: And that's where the prisoners eat?
MR. KOPF: Yes.
THE COURT: How many eat there at one time? Do you know?
THE WARDEN: Fourteen at two tables.
THE COURT: Now, you say there are open toilets there?
MR. KOPF: Yes.
THE WARDEN: Wall-hung toilets. Flushable toilets. All the jails are built that way. The toilets are built up against the room. Corrections for years have built rooms they have built day rooms. In the day rooms they would have two toilets and two sinks. They would have tables for them to sit and eat at. The cells are in the back. Each one of those have a toilet. During the day they are out in the day room, playing the cards. They go over to the bathroom. There is no lid on the toilet. The toilets aren't built with lids.
THE COURT: Does somebody go to the bathroom while somebody is eating there? Is that right?
THE WARDEN: They could.
THE COURT: If somebody has to go to ...

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