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January 31, 1986

George FALTER, Robert Mahler, William Hilbert, Joseph Scaffuto, John Sousa, and Eugene Madgett, suing Individually and on behalf of all others similarly situated Plaintiffs,
The VETERANS ADMINISTRATION, an agency of the Government of the United States; Max Cleland, Administrator, Veterans Administration, John Chase, M.D., Director, Department of Medicine and Surgery of the Veterans Administration; Ernest Shacklett, M.D., Director, Veterans Administration, Medical District Number 10-CA-4; Carl M. Mikail, Director, Veterans Administration Medical Center at Lyons, New Jersey; Howard D. Cohn, M.D., Chief of Staff of the Veterans Administration Medical Center at Lyons, New Jersey; J. B. Dodman, R.N., Director of Nursing Home Care Unit at the Veterans Administration Medical Center at Lyons, New Jersey and the United States of America, Defendants

The opinion of the court was delivered by: BISSELL

 This is a class action brought by George Falter, Robert Mahler, William Hilbert, Joseph Scaffuto, John Sousa and Eugene Madgett on behalf of all patients at Lyons Veterans Administration Medical Center (Lyons) to redress certain alleged grievances. The defendants are The Veterans Administration (V.A.); Max Cleland, Administrator, Veterans Administration; John Chase, M.D., Director, Department of Medicine and Surgery of the Veterans Administration; Ernest Shacklett, M.D., Director, Veterans Administration; Carl M. Mikail, Director of Lyons; Howard D. Cohn, M.D., Chief of Staff of Lyons; J. B. Dodman, R.N., Director of Nursing Home Care Unit of Lyons; and the United States of America. No claims for money damages are asserted; only injunctive relief is sought for benefit of the class as a whole or for certain readily identifiable segments thereof. After extensive pretrial proceedings, the case went to trial upon allegations of defendants' conduct which plaintiffs assert is of such magnitude as to violate one or more of their rights under the Constitution of the United States. After a lengthy presentation of their case, plaintiffs rested, whereupon defendants moved for judgment pursuant to Fed.R.Civ.P. 41(b). Because of the extensive testimonial and documentary evidence, the Court required that defendants' motion be set forth in writing and that the briefs on both sides contain specific citations to the record. Having received such materials, the Court is prepared to adjudicate defendants' motions.


 As relevant, Fed.R.Civ.P. 41(b) reads as follows:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). [Emphasis added].

 It is now settled law that a judge, as trier of the facts, should critically evaluate plaintiffs' evidence pursuant to a Rule 41(b) motion. E.g., Emerson Electric Company v. Farmer, 427 F.2d 1082 (5th Cir.1970). When such a motion is filed, the judge must weigh and evaluate the evidence in the same manner as though he were making findings of fact at the conclusion of the entire case, according it such weight as he believes it is entitled to receive. A mere prima facie showing by a plaintiff will not withstand a defense motion under Rule 41(b). E.g., Ellis v. Carter, 328 F.2d 573, 577 (9th Cir.1964). Subsequent to the adoption in 1946 of amendments to Rule 41(b) which added the last two sentences quoted above, it is clear that "the Court is not to make any special inferences in plaintiffs' favor, nor concern itself with whether plaintiff has made out a prima facie case. Instead, it is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies." 9 Wright & Miller, Federal Practice and Procedure : Civil § 2371 at 224-225 (1971) (footnotes omitted).

 The Third Circuit now accepts the distinction between directed verdict motions in jury trials and motions to dismiss in non-jury cases.

 In O'Brien v. Westinghouse Electric Corporation, 293 F.2d 1 (3d Cir.1961), a jury case, the Court, in dictum, clearly distinguished between a motion to dismiss in non-jury trials and a motion for directed verdict in jury trials:

It is clear a motion under Rule 41(b) for dismissal at the end of plaintiff's case, that upon the facts and the law the plaintiff has shown no right to relief, is proper in a case without a jury. Upon granting such a motion the court should make findings of fact and conclusions of law pursuant to Rule 52(a). Upon review the findings must be accepted unless clearly erroneous. It is equally clear that in a jury case the question only can be one of law.

 293 F.2d at 9. See also Kahn v. Massler, 241 F.2d 47, 48 (3d Cir.1957) and Bateman v. Ford Motor Company, 310 F.2d 805, 807 (3d Cir.1962).

 Indeed, district courts within the Third Circuit now uniformly recognize that pursuant to a Rule 41(b) motion, they "need not view the evidence in a manner most favorable to the plaintiff, but instead must weigh it, deciding issues of fact and credibility." Dickerson v. United States Steel Corporation, 439 F. Supp. 55, 63-64 (E.D.Pa.1977); see also Beissinger v. Rockwood Computer Corp., 529 F. Supp. 770, 775 n. 4 (E.D.Pa.1981); Sworob v. Harris, 451 F. Supp. 96, 99 (E.D.Pa.), aff'd mem., 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1089, 99 S. Ct. 871, 59 L. Ed. 2d 55 (1979); Pan American World Airways, Inc. v. Continental Bank, 435 F. Supp. 642, 643 n. 1 (E.D.Pa.1977).

 Thus, a motion to dismiss in a non-jury trial is very different than a motion for a directed verdict in a jury trial. As the plain language of Rule 41(b) itself indicates, the Court in a non-jury trial has not only the right, but the duty to examine the credibility of witnesses and to weigh the evidence on such a motion. In short the Court is called upon to adjudicate the case on the merits, and need not consider plaintiffs' evidence in the light most favorable to them, as required in a jury trial.


 Injunctive relief is an extraordinary remedy, not to be granted absent a finding of irreparable injury, not compensable by adequate remedies at law, and a real or immediate threat that plaintiffs will be wronged again. One major treatise on federal civil procedure has stated the following in this regard:

There is no power the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or more dangerous in a doubtful case, than the issuing [of] an injunction; it is the strong arm of equity, that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. The right must be clear, the injury impending or threatened, so as to be averted only by the protecting preventive process of injunction: but that will not be awarded in doubtful cases, or new ones, not coming within well established principles; for if it issues erroneously, an irreparable injury is inflicted, for which there can be no redress, it being the act of a court, not of the party who prays for it.

 11 Wright & Miller, Federal Practice and Procedure : Civil § 2942 at 369 (1973) (quoting Bonaparte v. Camden, 3 F. Cas. 821, 827(C.C.D.N.J.1830) (No. 1,617) ).

 Injunctive relief must not be awarded merely to assuage fears of what may happen in the future, e.g., Roseboro v. Fayetteville City Board of Education, 491 F. Supp. 110, 112 (E.D.Tenn.1977); or be based upon speculative determinations of what may happen in the future, e.g., Bradley v. Detroit Board of Education, 577 F.2d 1032, 1035 (6th Cir.1978). The mere possibility of future misconduct is not enough, e.g., Reporters Committee for Freedom of the Press v. American Telephone & Telegraph Co., 192 U.S. App. D.C. 376, 593 F.2d 1030, 1064-65 (D.C.Cir.1978), cert. denied, 440 U.S. 949, 99 S. Ct. 1431, 59 L. Ed. 2d 639 (1979). Rather, the harm must be threatened or imminent, and must be such that there is no adequate remedy in damages. E.g., Detroit News Pub. Assn. v. Detroit Typo. Union, 471 F.2d 872, 876 (6th Cir.1972), cert. denied, 411 U.S. 967, 93 S. Ct. 2149, 36 L. Ed. 2d 687 (1973). As the Third Circuit has stated:

We must protect that which is protectable, but, in so doing, we must limit the use of injunctive relief to situations where it is necessary to prevent immediate and irreparable injury. The dramatic and drastic power of injunctive force may be unleashed only against conditions generating a presently existing actual threat; it may not be used simply to eliminate a possibility of a remote future injury, or a future invasion of rights. . . .

 Holiday Inns of America v. B & B Corp., 409 F.2d 614, 618 (3d Cir.1969).

 Against this long-standing set of basic principles governing the issuance of injunctions, clear-cut legal standards have recently emerged as to when injunctive relief based on claimed constitutional violations by governmental entities or agencies is appropriate.

 Succinctly stated, an injunction against particular conduct in such a setting will lie only where a plaintiff establishes that such conduct is virtually universal in practice or is codified, authorized or uniformly acquiesced in by the government entity or its top management. As stated by the U.S. Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (with reference to the particular claims of that case) an injunction was inappropriate because plaintiff therein failed to establish either "that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter" or "that the City ordered or authorized police officers to act in such a manner." Id. at 106, 103 S. Ct. at 1667 (emphasis in original). Accord Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976); O'Shea v. Littleton, 414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). Compare Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S. Ct. 1267, 28 L. Ed. 2d 554 (1971) where administrators by their own actions had denied constitutional rights.

 In Lewis v. Hyland, 554 F.2d 93 (3d Cir.), cert. denied, 434 U.S. 931, 98 S. Ct. 419, 54 L. Ed. 2d 291 (1977), the Third Circuit followed Rizzo, holding that absent proof of affirmative involvement of supervisory police officials in a plan or scheme to suppress constitutional rights, injunctive relief may not issue against them. The district court (Judge H. Curtis Meanor) had found 34 clear violations of Fourth and Fourteenth Amendment rights by individual police officers, yet had denied injunctive relief. *fn1" "The number of incidents of police abuse . . . even extrapolating beyond those proved . . . paled in comparison with the overwhelming number of routine contacts between Troopers and travelers." 554 F.2d at 97. The problem, the trial judge said, lay in the willful and random acts of a minority of troopers, not in any deliberate pattern and practice by responsible officials. The Third Circuit affirmed the district court's denial of an injunction, finding that Rizzo's focus was on the absence of any evidence of participation by the named defendants in a plan or scheme to suppress constitutional rights. So saying, the Third Circuit followed the requirements of Rizzo that a mere failure to act by responsible authorities in the face of a statistical pattern provides no basis for injunctive relief. Absent the required causal relationship linking the illegal actions taken to responsible authorities, no injunction can be issued.

 Similar language has been used concerning injunctive relief sought in institutional settings. In Rennie v. Klein, 476 F. Supp. 1294, 1308-09 (D.N.J.1979), modified on other grounds, 653 F.2d 836 (3d Cir.1981) en banc, vacated on other grounds, 458 U.S. 1119, 102 S. Ct. 3506, 73 L. Ed. 2d 1381 (1982), on remand, 720 F.2d 266 (3d Cir.1983) this Court, discussing the appropriate Supreme Court precedent, determined that isolated incidents of improper conduct by individual psychiatrists or other staff at a psychiatric hospital are not sufficient to sustain classwide relief. Similarly, in Society For Good Will To Retarded Children v. Cuomo, 737 F.2d 1239, 1245 (2d Cir.1984), the Second Circuit stated, "Isolated instances of inadequate care, or even of malpractice, do not demonstrate a constitutional violation." See also, Seide v. Prevost, 536 F. Supp. 1121, 1135 (S.D.N.Y.1982).

 In Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), in which the constitutionality of various conditions of the Metropolitan Correctional Center in New York were challenged, the Court stated, with regard to the challenge concerning room searches of prisoners, that although it may be that some guards have conducted these searches improperly, and assuming that the violations may even have reached constitutional proportion, this is not an action for damages and therefore such isolated problems do not warrant classwide injunctive relief. 441 U.S. at 557 n. 38, 99 S. Ct. at 1884 n. 38.

 None of the decisions involving institutional settings, including Rennie, supra, Bell, supra, Youngberg v. Romeo, 457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) or Scott v. Plante, 691 F.2d 634 (3d Cir.1982), significantly reduce the requirement that challenged conduct must either be codified or a pervasive practice in order to rise to that level which will warrant an injunction against such conduct in futuro.2



 The First Amendment to the U.S. Constitution interdicts federal action "respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Additionally, an implicit constitutional right of privacy has emerged in our jurisprudence which is akin to First Amendment guarantees. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).

 In December 1982, the V. A. Patients' Bill of Rights was promulgated. This, of course, now constitutes the defendants' official policy which must be measured against appropriate constitutional standards. Any evidence of practice in fact at Lyons varying from this policy must be assessed to determine whether it is merely episodic or prevalent, and, if the latter, whether this practice violates one or more constitutional protections.

 (1) Plaintiffs assert that defendants are depriving them of their First Amendment rights to freedom of thought, speech and expression, and further that defendants are chilling the expression of thoughts by plaintiffs to other persons with whom they come in contact while hospitalized.

 This alleged violation is said by plaintiffs to primarily occur as a consequence of: affording plaintiffs what they characterize as non-private telephones for their incoming and outgoing calls (which permit staff and others to overhear a conversation), *fn4" controlling and surveilling the distribution of incoming mail to patients, and failing to provide stamps and letter-writing materials to patients on closed wards.

 While some public telephones available for patient use at the hospital are more private than others simply because of their location in less populated or traveled areas, none of those phones are confined within the sort of privacy-insuring structure, i.e., a booth or separate room, which plaintiffs appear to press for in this claim. In this institutional setting, the fact that pay telephones are not enclosed in booths and may be stationed in hallways or other areas where complete privacy is not guaranteed does not rise to the level of a violation of any patient's constitutional rights to either freedom of speech or privacy.

 It is the firm policy of the hospital not to open patients' mail, except that mail may be opened in the presence of the intended recipient or sender, when there is reason to believe such mail may contain contraband, weapons or drugs, or when the patient is unable to handle mail due to his medical or psychiatric condition. 38 C.F.R. § 17.34a(b)(1)(iii); (Ps Ex. 309, 314). *fn5" None of these impositions is sufficient to support a claim of constitutional dimension. They are well within the permissible range of administrative discretion. Youngberg v. Romeo, supra.

 No exercise of any right conferred under the First Amendment is absolute. Rather, the exercise of First Amendment rights is always subject to substantial and legitimate institutional policies and goals. Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed. 2d 495 (1974); Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974). One may borrow from the large body of caselaw regarding prisoners' rights as an analogy to an institutional situation such as a hospital. The Supreme Court in Procunier v. Martinez, supra, set the standards for review of claims of unconstitutional censorship in institutional settings. Relying upon such earlier precedents as Healy v. James, 408 U.S. 169, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972); Tinker v. Des Moines School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969); and United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the Court held that censorship is justified if the following criteria are met:

(1) The practice furthers an important or substantial governmental interest unrelated to the suppression of expression, vis., its content;
(2) The restriction must be no greater than is necessary or essential to protect the particular governmental interest involved.

 416 U.S. at 413-14, 94 S. Ct. at 1811. In Bell v. Wolfish, supra, 441 U.S. at 554-55, 99 S. Ct. at 1882, the Court upheld a prison regulation which barred receipt of all personal packages by pretrial detainees, saying that prison authorities had not conclusively been shown to be wrong about the need for the rule. Accord: Block v. Rutherford, 468 U.S. 576, 104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984).

 Application of this standard to the policy and regulation at issue here clearly warrants a conclusion that no violation of the Constitution is made out. The controlling regulation provides:

(c) Restrictions. (1) A right set forth in paragraph (b) of this section may be restricted within the patient's treatment plan by written order signed by the appropriate health or mental health professional if --
(i) It is determined pursuant to paragraph (c)(2) of this section that a valid and sufficient reason exists for a restriction, and
(ii) The order imposing the restriction and a progress note detaining the indications therefor are both entered into the patient's permanent medical record.
(2) For the purpose of this paragraph, a valid and sufficient reason exists when, after consideration of pertinent facts, including the patient's history, current condition and prognosis, a health or mental health professional reasonably believes that the full exercise of the specific right would --
(i) Adversely affect the patient's physical or mental health,
(ii) Under prevailing community standards, likely stigmatize the patient's reputation to a degree that would adversely affect the patient's return to independent living,
(iii) Significantly infringe upon the rights of or jeopardize the health or safety of others, or
(3) If it has been determined under paragraph (c)(2) of this section that a valid and sufficient reason exists for restricting any of the patient's rights set forth in paragraph (c)(1) of this section, the least restrictive method for protecting the interest or interests specified in paragraphs (c)(2)(i) through (iv) of this section that are involved shall be employed.
(4) The patient must be promptly notified of any restriction imposed pursuant to this paragraph and the reasons therefor.
(5) All restricting orders must be reviewed at least once every 30 days by the practitioner and must be concurred in by the Chief of Services or Chief of Staff.

 38 C.F.R. § 17.34a.

 Manifestly, in a hospital, an institution charged with the responsibility of fostering both the physical and mental health of its patients, it cannot be over-emphasized that the institution has a legitimate and substantial interest in preserving its therapeutic environment and the health of its patients to the fullest extent possible. This self-evident proposition cannot be seriously debated. N.L.R.B. v. Baptist Hospital, Inc., 442 U.S. 773, 788, 99 S. Ct. 2598, 2606, 61 L. Ed. 2d 251 (1979).

 If a restriction is imposed for the protection of this interest, in the judgment of the patient's medical professional, and as concurred in by the appropriate Chief of Staff or Chief of Service upon notice to the patient, any restriction imposed must be done in the least restrictive way possible for no more than 30 days without review for necessity of continuation. Moreover, any restriction contemplated may only be imposed after a full consideration of the patient's history, current condition and prognosis, and then only if the medical professional further believes that the consequences of a full exercise of these rights are so compellingly serious and likely as to warrant the restriction. *fn6" E.g., Mayberry v. Robinson, 427 F. Supp. 297 (M.D.Pa.1977); Peterson v. Davis, 415 F. Supp. 198 (E.D.Va.1976).

 The Evidence

 Under the controlling regulation, effective as of December 10, 1982, each patient at Lyons has the right to communicate freely and privately with anyone outside the facility. Exercise of this right includes convenient and reasonable access to public telephones to make and receive calls, and to send and receive unopened mail. 38 C.F.R. § 17.34a(b)(1). If receipt of mail is restricted, the patient shall be required to open mail in the presence of hospital staff for the purpose of ascertaining whether it contains contraband material. Id., subsection (iii). Each patient is to be afforded the opportunity to purchase, at his or her own expense, stamps and letter writing material. Id., subsection (iv).

 Similarly, staff interruptions of patients' telephone conversations were either abnormal or amply justified. If Arthur Muglia was beaten by a nursing assistant with the telephone receiver while attempting to make a call during early morning hours, that staff-person's conduct was inexcusable. However, it is hardly illustrative of a course of conduct constituting a regular interruption of plaintiffs' First Amendment rights. The incident involving Dr. Watson demonstrates only an understandable mistake in one instance while carrying out the perfectly acceptable medical judgment that a committed psychiatric patient be intercepted in his efforts to arrange for transportation to leave the hospital unilaterally. In this case, when Dr. Watson was advised that Dr. Nora (the Chief of Psychiatry) was the other party to the patient's conversation, he promptly returned the receiver to that patient.

 Plaintiffs have failed to demonstrate any actionable violations of their constitutional rights regarding use of the telephones or the mails. The mere fact that some members of the class may subjectively feel their privacy in making or receiving phone calls is infringed by virtue of the placement of unenclosed phones on the wards can scarcely warrant a conclusion that a constitutional deprivation is demonstrated. *fn7" Even if some few specific instances of interference with plaintiffs' phone calls and mail were made out, there has been no demonstration that the controlling regulation ensuring the right to make phone calls and send and receive mail is not followed in the normal course, or that defendants herein sanction illegal interference. See City of Los Angeles v. Lyons, supra.

 (2) Under the purported cloak of the First Amendment, plaintiffs also assert that visitation both within the hospital and with friends from outside is so curtailed as to violate their constitutional rights of association and assembly.

 Prior to July 9, 1984, there was virtually an absolute prohibition against patients from one ward at Lyons going to another ward to visit a patient there. There have always existed, however, numerous off-ward locations where patients could visit each other. Furthermore, as of July 9, 1984, by Professional Services ...

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