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November 9, 1987

Timothy Ryan, Plaintiff,
Burlington County, et al., Defendants

The opinion of the court was delivered by: BARRY

 On October 3, 1983, plaintiff Timothy Ryan was a pretrial detainee in the Burlington County Jail. *fn1" He was a healthy, fully functioning human being capable of the things human beings take for granted. He could walk, feed himself, go to the bathroom on his own, and make love. On October 4, 1983, Timothy Ryan was rendered quadriplegic. The person who caused this injury, Michael Scott, was Ryan's cellmate and a criminal convicted of a crime involving death or injury to another. On October 4, 1983, Scott was awaiting transfer to a state run facility as a parole violator, and had been waiting for 58 days during which time he was involved in several violent attacks on other inmates.

 This tragedy occurred despite a federal consent decree ordering the classification of prisoners as well as the capping of the number of inmates at eight instead of the ten housed in Ryan's cell on October 4, 1983. It occurred despite an Executive Order by the Governor of New Jersey authorizing the Commissioner of the Department of Corrections to take whatever steps he deemed necessary to efficiently allocate inmates of both state and county facilities to relieve the pressures caused by overcrowding.

 The moving defendants, as discussed below, are not guilty of wholly disregarding the overcrowding pervasive in the state and county prisons. Indeed, the record is replete with special reports, letters, and memoranda detailing efforts to relieve this problem. Nevertheless, the record convinces me that the conditions at the Burlington County Jail on October 4, 1983 were the product of a system in which no one assumed ultimate authority. The county officials determined that the county was compelled to comply with state requests. The state officials, while overburdening the county prisons with state inmates, did nothing to assure themselves that those county facilities could handle the overload despite the fact that the same Executive Order which authorized the state officials to use county prisons also entrusted those officials with greater responsibility for those same facilities. And Ryan was gravely injured.

 On November 13, 1985, defendants Fauver and Call filed a motion to dismiss the complaint and all cross-claims against them or, in the alternative, for summary judgment. On December 13, 1985, I ordered that these defendants be deposed and reserved on the motion pending further discovery. In the interim, defendant Hogan moved for summary judgment. Discovery having now been completed, this opinion resolves both motions.

 Essentially, the motions before me raise related questions which may be summarized as follows:

 (1) What constitutional rights, if any, did plaintiff enjoy on October 4, 1983 when he was rendered quadriplegic?

 (2) Are these defendants immune under Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)?

 (3) Is plaintiff's claim actionable under Davidson v. O'Lone, 752 F.2d 817 (3d Cir. 1984) (en banc), aff'd sub. nom., Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986) and Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986)?

 (4) If plaintiff has a claim for a violation of his constitutional rights, was plaintiff's injury proximately caused by the acts or omissions of any of these defendants?

 In order to answer these questions, it is necessary to first recount in some detail the facts relating to the administration of state prisons in New Jersey, the history of the Burlington County Jail, and the role of each of these defendants.

 The New Jersey Statutory Scheme

 New Jersey maintains a parallel system of incarceration. Pursuant to N.J.S.A. 2C:43-10(a), with certain exceptions not relevant here, a person sentenced to a term of one year or more is committed to the custody of the Commissioner of the Department of Corrections. A person sentenced to less than one year is committed "either to the common jail of the county, the county workhouse or the county penitentiary for the term of his sentence and until released in accordance with law." N.J.S.A. 2C:43-10(c). Responsibility for county jails is generally under the control of the county sheriff, N.J.S.A. 30:8-17, 18, unless the County Freeholders resolve to "assume and thereafter to exercise the custody, rule, keeping and charge of the county jails in their respective counties, and of the prisoners therein . . . ." N.J.S.A. 30:8-19.

 Despite this dual system of incarceration, the Commissioner of the Department of Corrections is directed to "promote a unified criminal justice system, including the integration of State and local correctional programs and probation and parole services." N.J.S.A. 30:1B-6(o). Indeed, the declared purpose of the Department of Corrections is "to protect the public and to provide for the custody, care, discipline, training and treatment of persons committed to State correctional institutions or on parole" as well as "to supervise and assist in the treatment and training of persons in local correctional and detention facilities, so that such persons may be prepared for release and reintegration into the community . . ." N.J.S.A. 30:1B-3. The Legislature further declared that "the incarcerated offender should be protected from victimization within the Institution." N.J.S.A. 30:1B-3(c). It is understood that all persons sentenced to a term of imprisonment for a term of one year or more will be placed in the custody of the sheriff of the appropriate county who is obliged by law "within 15 days [to] transport him to the State Prison and there deliver him into the custody of the Commissioner of the Department of Corrections . . . ." N.J.S.A. 2C:43-10(e).

 Pursuant to its authority to supervise the county jails, the Department of Corrections in 1979, under the direction of defendant Fauver, promulgated a Manual of Standards for New Jersey Adult County Correctional Facilities. Exhibit P-2 to Plaintiff's Appendix in Opposition to Fauver and Call's Motion to Dismiss (the "County Manual"). See also February 26, 1986 Deposition of William H. Fauver at 49. The County Manual "defines the minimum criteria for the various functions and operations of county correctional facilities." Id. at 2. It also recites the basis for the Commissioner's authority to create these standards, N.J.S.A. 30:1B-10, which provides:

All functions, powers, and duties of the Commissioner of Institutions and Agencies and the Department of Institutions and Agencies with respect to all county and city jails or places of detention, county or city workhouses, county penitentiaries, county and municipal schools of detention, privately maintained institutions and non-institutional agencies and juvenile detention facilities for the care, treatment, government, and discipline of inmates are hereby transferred to the Department of Corrections . . . The commissioner may . . . promulgate such rules and regulations as he shall deem necessary to establish minimum standards for such care, treatment, government and discipline.

 Of significance to this case is the requirement promulgated by the Department of Corrections and contained in the County Manual that there shall be separate management of inmates distinguishing inter alia between pretrial detainees and convicted prisoners and between aggressive inmates and passive/independent inmates. Id. at 28. Classification was a goal and obviously important. The design of facilities under construction must accomplish this goal. Id. at 2, 6.

 Inexplicably, the statutory scheme does not authorize the Commissioner or the Department of Corrections to enforce these regulations. The Department does inspect county facilities, Fauver Dep. at 26, 28, but " prior to the executive order [the Department] would have to go to a court to enforce any recommendations that we felt were important enough that should be addressed." Id. at 28 (emphasis added).

 The Governor's Executive Order

 On June 2, 1981, then Governor of New Jersey Brendan T. Byrne signed Executive Order No. 106. This order stated in relevant part:

WHEREAS, the State Prisons and other penal and correction institutions of the New Jersey Department of Corrections are housing populations of inmates in excess of their capacities and are seriously overcrowded as a result of unusually large numbers of commitments to the State institutions and commitments for terms of years which are longer than heretofore imposed; and
WHEREAS, the Department is physically unable to accept from the Sheriffs of the various counties the custody of inmates sentenced to the custody of the Commissioner of the Department of Corrections, as mandated by N.J.S.A. 2C:43-10(e); and
WHEREAS, many county penal institutions of the various counties are also presently overcrowded and are housing inmate populations in excess of their capacities while other county penal institutions have available space for additional inmates; and
WHEREAS, there is a need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding ; and
WHEREAS, the New Jersey Correctional Master Plan recommended the coordination of resources for jail operation and services by the State, while the jails remain under local jurisdiction; and
WHEREAS, these unusual conditions endanger the safety, welfare and resources of the residents of this State, and threaten loss to and destruction of property, and are too large in scope to be handled in their entirety by regular operating services of either the counties or the New Jersey Department of Corrections;
NOW, THEREFORE, I, BRENDAN T. BYRNE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and laws of the State of New Jersey, do hereby DECLARE a state of emergency and ORDER and DIRECT as follows:
1. I DECLARE, that a state of emergency exists in the various State and County penal and correctional facilities by reason of facts and circumstances set forth above.
* * *
3. I hereby DIRECT that the authority to designate the place of confinement of all inmates confined in all State and County penal or correctional institutions shall be exercised for the duration of this Order by the designee of the Governor.
4. I hereby designate the Commissioner of the Department of Corrections to effectuate the provisions of this Order.
5. The Commissioner may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether owned by the State, a County, or any political subdivision of this State, or any other person, for the confinement of inmates confined in the State and/or County penal or correctional institutions.
6. When it appears to the satisfaction of the Commissioner that an inmate should be transferred to a penal or correctional institution or facility of the State or the various Counties more appropriate for his needs and welfare, or that of other inmates, or the security of the institution in which he has been confined he shall be authorized and empowered to designate the place of confinement to which the inmate shall be transferred.
* * *
8. I further ORDER that the authority of the Commissioner to designate the place of confinement of any inmate may be exercised when deemed appropriate by the Commissioner regardless of whether said inmate has been sentenced or is being held in pretrial detention except that only persons sentenced to a prison or committed to the custody of the Commissioner may be confined in a State Prison.
9. The Commissioner of the Department of Corrections shall have full authority to adopt such rules, regulations, orders and directives as he shall deem necessary to effect the above provisions. (emphasis added).

 This Executive Order was continued by Governor Byrne and later by Governor Thomas H. Kean and was in effect in October, 1983. July 15, 1983 Executive Order No. 43.

 Three days before Governor Byrne issued Executive Order No. 106, a County Executive and the Sheriff of Atlantic County filed an action to compel the Commissioner to accept within 15 days, pursuant to N.J.S.A. 2C:43-10(e), prisoners from Atlantic County who were sentenced to terms of one year or more and, thus, to state institutions. The Appellate Division of the Superior Court of New Jersey held, on September 4, 1981, that Executive Order No. 106 was valid. Worthington v. Fauver, 180 N.J. Super. 368, 434 A.2d 1134 (App. Div. 1981). The majority emphasized that the case illustrated the need "for centralization of the authority" over both county and state penal institutions to control overcrowding at both "our county jails and state prisons." Id. at 371.

 Judge Joelson, in dissent, argued that the Executive Order was an improper invasion by the executive into the province of the legislature and that, as implemented by the Commissioner, it was arbitrary, capricious, and unreasonable. "It is not reasonable for state officials to dump their problems on county officials who already have the same or worse problems." Id. at 389 (Joelson, J., dissenting).

 On appeal, the Supreme Court of New Jersey unanimously affirmed. 88 N.J. 183, 440 A.2d 1128 (1982). Noting the problems caused by overcrowding, Justice Pashman stated:

It is commonly acknowledged that overcrowding in prisons causes grave problems. Rehabilitative programs and recreation become disrupted or nonexistent. As crowding increases, frustration and anger emerge, causing tempers to flare and fights to erupt. Lack of space makes it difficult if not impossible to segregate prisoners for disciplinary and other purposes. Overcrowding can contribute to riots.

 Id. at 188-89 (emphasis added).

 In finding the Executive Order valid, the Supreme Court noted that the "centralization of power to allocate prisoners among the various state and county facilities is a rational means of alleviating the problem of overcrowding in our prisons." Id. at 201. What was significant was the apparent understanding of the Supreme Court that Executive Order No. 106 was meant not only to alleviate state overcrowding but also county overcrowding. "The record below demonstrates that our state and county facilities may be dangerously close to producing such a disaster [of substantial loss of property or life]. The prevention of such an occurrence is clearly a proper subject of executive emergency action under the statute." Id. at 196 (emphasis added). And, in an indirect response to Judge Joelson's argument that Executive Order No. 106 was the dumping of a state problem onto the counties, Justice Pashman noted actions taken by the Commissioner to reduce overcrowding at the county jails. Id. at 205.

 Significantly, despite the favorable ruling in Worthington and for reasons not provided to this court, in 1982 the Department of Corrections entered into two consent judgments with Essex and Camden counties in suits similar to Worthington. In Essex County Jail Inmates v. Collier, Civ. No. 82-1945 (D.N.J. Oct. 18, 1982) (Ackerman, J.), the Commissioner agreed to remove three hundred state prisoners housed in Essex County Jail over a two and one half month period and agreed that, after July 1, 1983, any and all state sentenced inmates who caused the Essex County Jail population to exceed 594 would be removed within 15 days. Consent Judgment attached as P-63 to Plaintiff's Appendix Opposing Fauver and Call's Motion to Dismiss. In Camden County Jail Inmates v. Parker, Civ. No. 82-1946 (D.N.J. Nov. 18, 1982) (Ackerman, J.), the Commissioner agreed to remove all inmates sentenced to imprisonment in state facilities by removing them from the Camden County Jail within 15 days. This consent judgment also noted that as a result of the overcrowding at Camden County Jail there was no "adequate classification program which insures that inmates are held in the least restrictive circumstances necessary to insure their presence at trial and the maintenance of institutional security . . . which protects each inmate's right to personal security." Consent Judgment at 3 attached as P-64 to Plaintiff's Appendix Opposing Fauver and Call's Motion to Dismiss.

 Prior to these consent decrees, on December 3, 1981 a special Governor's Task Force, of which defendant Fauver was a member, issued a Report on Prison Overcrowding. This Report described the then existing situation of overcrowding and noted that the picture became "truly . . . startling" when one considers the fact "that prison officials believe that in order to most efficiently and safely operate prison facilities, they should operate at 92 % of operational capacity . . ." and the fact that a rapid rise in the number of state prison inmates was forecasted. Report at 3 attached as P-104 to Plaintiff's Appendex Opposing Fauver and Call's Motion to Dismiss. Moreover, "the prolonged use of total bedspaces within an institution could lead to significant management control problems and increase the potential for serious disruptions." Id. at 13.

From the constitutional perspective, the following factors were considered: (1) Overcrowding (sanitation, recreation, space, etc.); (2) Availability of medical treatment; (3) Protection of the physical safety of inmates ; (4) Access to the courts -- including legal consultation and library access; and (5) Overall prison management.

 Id. at 12 (emphasis added).

 Finally, prior to making specific recommendations, only one of which directly impacted on county inmates, the Task Force reported that in November, 1981, the state institutions were running at 102% capacity, a percentage which did not include the 960 state inmates being housed in county facilities. At the same time, the county facilities were running at 121% capacity. Had the 960 state holdovers been transferred out of the county facilities, those ...

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