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ESSEX COUNTY JAIL ANNEX INMATES v. TREFFINGER

August 3, 1998

ESSEX COUNTY JAIL ANNEX INMATES, et. al., Plaintiffs,
v.
JAMES TREFFINGER, County Executive, et. al. and WILLIAM H. FAUVER, Commissioner, et. al., Defendants, ESSEX COUNTY JAIL INMATES, et. al., Plaintiffs, v. JAMES TREFFINGER, County Executive, et. al. and WILLIAM H. FAUVER, Commissioner, et. al., Defendants,



The opinion of the court was delivered by: ACKERMAN

OPINION

 Ackerman, D.J.

 This matter comes before the court on plaintiff's civil contempt motion and represents another chapter in the ongoing Essex County prison litigation. Plaintiffs now request that the court award contempt sanctions for the county's failure to comply with the most recent consent decree. The Special Masters have filed a Report and a Supplemental Report. The parties were also given an opportunity to file objections to the reports.

 I. Background

 In 1982, inmates of the Essex County Jail ("ECJ") brought suit against the county alleging unconstitutional conditions of confinement. The Essex County Jail Annex ("ECJA") prison litigation followed in 1987 and the cases were eventually consolidated. Throughout the history of this litigation, the parties have resolved each of their disputes through a series of consent decrees, the most recent one being the "Second Consolidated Consent Order" ("2CCO"). The 2CCO embodies a "bona fide settlement" of the legal issues in this case. See Special Master Report ("Report") at 7.

 The 2CCO, which incorporates all of the rights and obligations of nine other consent orders previously filed, is a lengthy document which addresses "virtually every aspect of jail administration . . . from dripping faucets to population caps and medical care." Id. When filed, it aimed to ameliorate the deplorable conditions of confinement which existed at the time. The instant contempt application, which was originally filed in December 1993, requests that this court impose sanctions upon the county for failing to comply with several provisions of the 2CCO. This court referred the contempt application to Special Masters Bennet Zurofsky and John Degnan, that latter of whom was replaced by Frederic Becker on April 6, 1995. The Special Masters conducted 48 days of hearings and participated in an eight day tour of the facilities.

 There does not seem to be any question that the county was in serious contempt in 1993, but several intervening developments have effected a change in climate. Initially, I note that the parties have resolved many matters by consent, e.g. the "Medical Consent Order." On other matters, while the county was recalcitrant at first, it eventually behaved more responsibly. Within the last three years, it has spent over $ 25 million in capital improvements and has committed itself to building a new $ 200 million jail. Many hope and believe that the new jail will eliminate any persisting problems. In light of these developments, the plaintiff submitted to the Special Master its "Brief to Update the Record" outlining the areas in which it believes, the county has still not complied. These specific complaints are the focus of the Special Master's Report.

 According to the Special Master, the update brief makes the following complaints:

 
1. Staffing is inadequate and thus, inmates and staff are exposed to danger and other problems;
 
2. The facilities have exceeded the population caps set by the 2CCO which has resulted in overcrowding and the housing of inmates in dayrooms that has thereby endangered inmates and created unsanitary conditions;
 
3. The institution serves inadequate food;
 
4. The Fire Safety equipment and training is inadequate;
 
5. There is an insufficient supply of personal hygiene items;
 
6. There is an insufficient opportunity to shower;
 
7. There are continuing maintenance problems, particularly with regard to water temperature;
 
8. There is inadequate opportunity for recreation;
 
9. The prison does not provide sufficient access to telephones for legal and family calls;
 
10. The prison does not provide adequate visitation;
 
11. The prison does not provide adequate access to law libraries which are themselves inadequate.

 See Report at 13-14.

 On December 18, 1997, the Special Masters submitted to this court their report recommending that with the exception of the staffing issue, the court should dismiss plaintiff's contempt application "without prejudice to any new motions that plaintiffs may wish to file regarding current conditions." Report at 8. According to the Special Masters, the dismissal should be "premised upon Essex County's continuing commitment to complete its present projects of building completely new jail facilities and making interim repairs and improvements." Id.

 With respect to the staffing issue, the Special Master recommends that this court order the defendants to comply with PXIV of the 2CCO which would require them to commission an an "independent, professional staffing analysis" addressing the areas of "staff training, staff coverage, classification, inmate activity, inmate population, and corrections operations." Additionally, the defendant must implement a plan based upon the independent analysis. See Report at 34-36. Finally, the Special Master recommended that the court impose a fine of $ 100,000, the payment of which shall be suspended. See Report at 36.

 The approach taken by the Special Masters is somewhat unique in that they have chosen not to focus on every detail of the consent order. Rather, they acknowledge that the county is definitely not in full compliance in every area, but they are impressed by the fact that the county has made an enormous investment into improvements of current facilities and the construction of a new jail. It is the Special Master's belief that the county's laudatory efforts make contempt sanctions inappropriate. The Special Masters' report focuses upon the following twenty-five improvements:

 
1. Two new modular facilities have been built at the Annex, known as Satellite 6 and Satellite 6A. These facilities were completed in 1995 with a combined capacity of 116, to hold male inmates. (Estimated cost: $ 3,444,337).
 
2. A new Women's Wing has been built at the Annex, known as Satellite 7. This new building was completed in June 1996 with a capacity of 252 inmates. (Estimated cost: $ 15,585,745).
 
3. A new Processing and Visitor Reception Center has been built at the Annex, completed in June 1995. This facility improves the hospitality for inmate visitors (for example, there is now an indoor waiting room with lockers for personal belongings rather than an outdoor line awaiting admission) and facilitates several steps of the inmate admission process. (Estimated cost: $ 3,855,956).
 
4. A new "support building" was completed at the Annex in 1996, along with demolition of several decaying structures and improvements to the perimeter. The support building includes a supply warehouse so that greater stocks of clothing, hygiene items, and maintenance parts can be maintained within the institutions than had been the case in the past. The building also includes workshops for various repair and maintenance staff. This has resulted in improved maintenance at the facilities. (Estimated cost: $ 4,039,956).
 
5. A Central Intake Processing Unit was built on the first floor of the Jail in Newark to accommodate initial medical screening and examinations. (Estimated cost: $ 10,000).
 
6. The installation of two additional elevators was completed at the Jail in Newark in April of 1994. This work had been commenced pursuant to earlier consent orders but delays had plagued the project and were a part of what underlay the original contempt motion. Completion of this work has improved all prisoner movements throughout the thirteen-story structure and generally improved safety. The two original elevators have also been rehabilitated. At the time of the original motion filing the old elevators were subject to frequent failures and there had even been some injuries when elevators fell between floors. (Estimated cost: $ 3,808,730).
 
7. Satellites 1 and 2 at the Annex have been completely rehabilitated. Work was completed on Satellite 1 in October 1997 and on Satellite 2 in July 1997. Prior to rehabilitation these were two of the worst housing areas. Satellite 2 was the old Women's Wing, which we described at some length above. Satellite 1 consists of a group of modular units that were installed as a temporary measure during Peter Shapiro's administration in an effort to solve overcrowding problems. They became permanent and were used well beyond their original anticipated life. Ventilation was virtually non-existent in Satellite 1 and there was no fire-suppression or sprinkler system whatsoever. The rehabilitation brought both Satellites up to code. In addition, one of the housing pods in Satellite 1 was converted into an indoor recreation area. (Estimated cost: $ 4,205,386).
 
8. The rehabilitation of Satellites 3 and 4 at the Annex is now scheduled to be completed by June 1998. This work could not get underway before the recent completion of the Satellite 1 rehabilitation because there was no place to put the prisoners who need to be removed in order for construction to take place. Satellites 3 and 4 are trailer-like facilities originally built as a temporary measure to deal with overpopulation while satellite 5 was being constructed at the Annex during the Nicholas Amato administration. These too have become permanent and have outlived their predicted lifespan. The rehabilitation will address fire safety, plumbing, HVAC and electric. (Estimated cost: $ 942,000).
 
9. The East Gate of the Annex is being rehabilitated and is scheduled for completion this month. This is a staging area for inmate movements in and out of the Annex. (Estimated cost: $ 205,639).
 
10. A consulting fire protection engineer has been retained. This is the County's fire safety expert who has been working with the plaintiffs' expert in designing and then supervising the installation of improved fire safety equipment and procedures throughout both institutions. (Estimated cost (annually): $ 52,850).
 
11. Smoke detectors and sprinklers have been renovated and installed throughout the Jail in a project completed in October, 1997. Previously, the smoke detectors generally did not function and many of the sprinkler installations were inadequate to cover the intended areas. (Estimated cost: $ 440,000).
 
12. Smoke barriers were built throughout the Jail in a project completed in October 1997. These are essentially solid walls that prevent smoke from migrating from tier to tier or floor to floor. In other institutions such smoke migration has been a frequent cause of serious injury. (Estimated cost: $ 244,743).
 
13. A centralized fire safety reporting center is being built at the Annex, scheduled to be completed at about the time of this writing. The Annex consists of many separate buildings. This center will provide a central monitoring location for all fire and smoke alarms and detectors throughout the facility. (Estimated cost: $ 10,935).
 
14. The County has entered into consolidated maintenance and inspection contracts with an outside contractor to insure that all fire safety systems remain operable. (Estimated cost (annual): $ 10,000.)
 
15. The Jail has contracted for a rehabilitation of its sally port, which is the primary port of entry and egress to that facility. Work is expected to be completed in the Spring of 1998. This should improve the accommodation of those who come to bail out prisoners. It does not particularly relate to any of plaintiff's priorities, although it will be helpful. (Estimated cost: $ 515,000.)
 
16. Both institutions are in the midst of a network computer systems upgrade that is intended to link the Jail and Jail Annex computer systems into a single network and is scheduled to be completed this month. With regard to issues raised in the contempt application, it is expected that the enhanced PC network will include a terminal in each satellite of the Jail Annex that will permit legal research through the use of centralized cd roms and other means, commissary records will also be better kept and medical records will be more accessible and reliably complete when an inmate is transferred between the Jail and the Annex. If it all works, this will be a great improvement. (Estimated cost: $ 143,166).
 
17. The County has privatized its medical services, retaining Correctional Health Services, Inc. to provide it with all physicians, nurses, supervisory personnel, medical clerks, and pharmacy and lab services. The provision of this service is monitored by Dr. Ronald Shansky, who was appointed by this Court and reports on a quarterly basis. According to Dr. Shansky, medical services are greatly improved. (Estimated cost (annual): $ 4,600,000).
 
18. The County has contracted with St. Elizabeth's Hospital for a medical lock unit and specialist visits. Previously there were recurring problems finding bed space and appropriate specialists when needed for inmate care. Estimated cost (annual): $ 1,000,000.
 
19. The County has added 77 additional corrections officers to its table of organization beyond it 1994 staffing level. The 1994 level reflected cuts in staff made by the D'Allessio administration.
 
20. The County advises that it has now provided Correctional Officer Training Academy training to all correctional officers who have been employed for more than one year. Previous to this motion, very few of the officers had received this training despite the fact that it is the minimum training required by State regulation. We believe the large amount of untrained staff had contributed to many problems. (Estimated cost: $ 268,000).
 
21. Exterminators have been retained for forty hours per week at the Jail and twenty hours per week at the Annex. The need was obvious. The benefits are obvious. (Estimated cost (annual): $ 100,000).
 
22. The County has implemented a so-called S.L.A.P. program, which is an early work-release program for sentenced prisoners under the supervision of the Sheriff's office. There are presently approximately 25 prisoners in this program. When fully implemented, the program should accommodate 125 prisoners. Those admitted to the program are sentenced prisoners who are released early from the Jail or the Annex to a work program. This is an alternative to incarceration of the type sought by plaintiffs.
 
23. The County has created an Expeditor position to help insure that prisoners are not held inappropriately. In the past, some prisoners seemed to get lost in the system and were not released although their Essex County criminal court proceedings may have permitted release. This was due to a variety of factors including holds from family court or from other jurisdictions and all sorts of bureaucratic malfunctions. The Expeditor has been in place since August of 1995 and appears to be effective with, we believe, a beneficial impact on population. (Estimated cost (annual): $ 35,000).
 
24. With the assistance of appropriate consultants, the County has written a Jail Master Plan which, among other things, attempts to predict the number and provide Constitutionally appropriate accommodation for Essex County inmates for the next 25 years. It was the development of this plan which directly led the County to conclude that it needed to construct a new jail. (Estimated cost: $ 202,000).

 See Report at 16-24.

 Finally, the Special Master looked at the County's commitment to building a new jail which is:

 
being designed to hold at least 2400 prisoners, and perhaps as many as 3,000. The design will be in a star pattern that will permit the addition of more wings if more space becomes necessary. We are not experts on Jail design, but we understand that the project is being designed by leading experts in the field and in accordance with current thinking on what is needed for such a facility. The County has designated a site on Doremus Avenue in Newark and it has also retained an architectural and engineering firm and a construction management firm. The County hopes to be able to open the facility in the year 2000 and has already begun to make plans for different uses of the present Jail and Jail Annex sites. Two Hundred Million Dollars of bonding has been authorized for this project through the Essex County Improvement Authority. Ground-breaking is scheduled for the spring of 1998. We believe this to be a real project which will be completed in a reasonably timely manner. Id. at 24-5.

 Until the new jail is built, a period likely to be "several years," there is no question that the plaintiff class will still be "suffering deprivations of some of the rights that they had obtained through the consent orders." Id. at 16. But the underlying rationale behind the Special Master's recommendation is that the new jail:

 
will eventually provide fully adequate conditions of confinement, that the closing of the present facilities upon the completion of that construction will render most of the provisions of the [2CCO] moot, and that the present conditions are being greatly ameliorated by the County's efforts. Id. at 16.

 As the Special Master perceives the situation, any contempt sanctions would only be counterproductive and would impede the County's efforts in building the new jail. Thereby, the prisoners would be denied the ultimate realization of better prison conditions. If this approach has any vulnerability, it is its demand that the current prisoners make some sacrifice for those of the future.

 It is important to note, however, that in recommending this practical and sensible approach, the Special Masters were keenly aware that their decision did not allow any conditions that might reach unconstitutional levels to be continued. In other words, they recognized that while the prisoners might be asked to relinquish some of the benefits guaranteed by the 2CCO, their constitutional rights remain intact. Thus, it cannot be said the Special Masters have completely ignored the plight of current inmates. Had the Special Masters believed that the conditions violated the inmates' constitutional rights, I doubt that they would have made the same recommendations. The performance of the Special Masters throughout the history of this litigation confirms as much. They have never shied away from difficult decisions. Furthermore, in recommending that the court not impose sanctions, the Special Masters expressed their awareness that the defendants' commitment to invest over $ 250 million far exceeds any amount of sanctions requested by the plaintiff.

 In response to the Special Master Report, the plaintiff initially made several objections. These objections cover the areas of:

 
. Overcrowding;
 
. Visitation;
 
. Showers;
 
. Hygiene Supplies;
 
. Clothing;
 
. Legal Access;
 
. Recreation;
 
. Implementation of Alternatives to Incarceration;
 
. Staffing; and
 
. Classification.

 Upon its review of the Report and plaintiffs' objections, the court expressed concern with some of the report's shortcomings and requested that the Special Masters make supplemental findings in six areas: shower conditions, clothing, recreation, inmate classification, alternatives to incarceration, and distribution of hygiene items. The Special Masters submitted a Supplemental Report on July 21, 1998. Plaintiff filed additional objections on July 29, 1998. The supplemental findings will be considered along with the rest of the record. I will consider each of plaintiff's objections in turn.

 II. The Contempt Power

 The court has the "inherent power to enforce compliance with its lawful orders through civil contempt." Carty v. Schneider, 986 F. Supp. 933, 939 (D.V.I. 1997) (quoting Cooper v. Aaron, 358 U.S. 1, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958)). The power to hold one in contempt is an equitable one, the purpose of which is to make the defendant comply with an order of the court. With the instant application, the court must consider "the character and magnitude of the harm threatened by continued contumacy and the probable effectiveness of any suggested sanction in bringing about the result desired." United States v. United Mine Workers of America, 330 U.S. 258, 304, 91 L. Ed. 884, 67 S. Ct. 677 (1947). There must be a "balancing of equities." See Imprisoned Citizens Union v. Shapp, 11 F. Supp. 2d 586, 1998 WL 220957, *17 (E.D. Pa. 1998). The court also acknowledges that while the instant case involves a consent decree as opposed to direct allegations of unconstitutional prison conditions, it is mindful of the deference courts have exhibited towards state corrections officials in prison litigation. See Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 ...


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