507 F.2d 333 (2nd Cir. 1974), 329, Rhem v. Malcolm

Docket Nº:329, Docket 74-2072.
Citation:507 F.2d 333
Party Name:James RHEM et al., Plaintiffs-Appellees, v. Benjamin J. MALCOLM, Commissioner of Correction for the City of New York, et al., Defendants-Appellants, Peter Preiser, Commissioner of Correction of the State of New York, et al., Defendants.
Case Date:November 08, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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507 F.2d 333 (2nd Cir. 1974)

James RHEM et al., Plaintiffs-Appellees,


Benjamin J. MALCOLM, Commissioner of Correction for the City

of New York, et al., Defendants-Appellants, Peter

Preiser, Commissioner of Correction of

the State of New York, et al.,


No. 329, Docket 74-2072.

United States Court of Appeals, Second Circuit

November 8, 1974

Argued Sept. 25, 1974.

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[Copyrighted Material Omitted]

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Stanley Buchsbaum, New York City (Adrian P. Burke, Corp. Counsel for City of New York, L. Kevin Sheridan, Leonard Bernikow, Kew Gardens, N.Y., Mark D. Lefkowitz, New York City, on the brief), for defendants-appellants.

Joel Berger, New York City (William E. Hellerstein, Steven A. Herman, Eric Neisser, The Legal Aid Society Prisoners' Rights Project, New York City, on the brief), for plaintiffs-appellees.

Before LUMBARD, FEINBERG and OAKES, Circuit Judges.

FEINBERG, Circuit Judge:

In September 1970-- one month after an explosive riot at the Manhattan House of Detention for Men-- several inmates brought a civil rights action under 42 U.S.C. 1983 in the United States District Court for the Southern District of New York against various New York City and State officials. The complaint alleged that conditions in the House of Detention, better known as the Tombs, denied plaintiffs and the class they represent their 'fundamental constitutional rights.' In January 1974, after a trial which lasted several weeks, Judge Morris E. Lasker held that the circumstances under which unconvicted, pre-trial detainees were confined in that institution 'manifestly violate the Constitution.' The judge stated that 'the dismal conditions' at the Tombs 'would shock the conscience of any citizen who knew of them.' 371 F.Supp. 594, 636. In March 1974, the judge entered final judgment on certain issues not now relevant, 1 set a hearing date for further consideration of others, 2 and ordered the City defendants to submit a plan for the elimination of the remaining conditions which had been held unconstitutional. After some delay, the City 3 finally flatly refused to submit the required plan. Thereafter, the court, on July 11, 1974, enjoined the City from confining any person in the Tombs after August 10, 1974.

The City appealed from the July 11 order and sought a stay. In August, a panel of this court granted a conditional stay and expedited the appeal. 4 We heard argument on September 25, and the stay has continued in effect. Appellant attacks both the substance of the district court's findings and the relief granted. The City claims that conditions at the Tombs, while far from ideal,

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do not violate due process. Even if this is not true, the City argues, the order directing it to submit a plan was improper and the order closing the Tombs was unreasonable. For reasons set forth below, we affirm the judgment of the district court insofar as it held unconstitutional certain conditions at the Tombs but remand for further consideration of the court's order.


In holding that the constitutional rights of unconvicted, pre-trial detainees had been violated, Judge Lasker wrote a thoroughly documented and persuasive opinion. 371 F.Supp. 594. The judge made detailed findings on excessive use of maximum security conditions; limitations on visiting rights; insufficient opportunities for exercise, recreation and education; the intolerable living environment created by the combination of excessive heat and noise, inadequate ventilation, and inability to see out of the building; and the failure to staff the jail adequately. There is no need to list the judge's findings in detail. They present a melancholy picture of a fortress in bedlam. In short, according to the judge,

The totality of circumstances at (the Tombs) have produced dismal conditions significantly inferior to those existing at New York State penal institutions and many other municipal or federal houses of detention.

371 F.Supp. at 622. The City does not argue that the judge's essential findings of fact are clearly erroneous. It could not do so with success in any event since the findings are solidly supported by the record.

The district judge went on to analyze the constitutional issues involved. As he viewed it, the core of plaintiffs' constitutional arguments is that they are not convicted felons but are pre-trial detainees, presumed innocent of the charges against them but imprisoned only for failure to make bail. 5 The judge accepted the following propositions as 'now firmly embedded in the law.' The demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail; and the same constitutional provisions prevent unjustifiable confinement of detainees under worse conditions than convicted prisoners. 371 F.Supp. at 623. We agree with these propositions and rely, as did the district judge, upon the considerable number of recent decisions applying them. Although there have been few direct appellate holdings on the subject, the many district court opinions cited by Judge Lasker are indeed persuasive. Thus, in Brenneman v. Madigan, 343 F.Supp. 128 (N.D.Cal.1972), the court held that:

Pre-trial detainees do not stand on the same footing as convicted inmates . . .. Subjecting pre-trial detainees to restrictions and privations other than those which inhere in their confinement itself or which are justified by compelling necessities of jail administration, is a violation of the due process and equal protection clauses of the Fourteenth Amendment.

Id. 343 F.Supp. at 142. In Jones v. Wittenberg, 323 F.Supp. 93, and 330 F.Supp. 707 (N.D.Ohio 1971), aff'd sub nom., Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972), the court put it this way:

. . (detainees) are not to be subjected to any hardship except those absolutely requisite for the purpose of

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confinement only, and they retain all the rights of an ordinary citizen except the right to go and come as they please. (Otherwise) their confinement . . . denies them the equal protection of the laws.

323 F.Supp. at 100. Similarly, in Hamilton v. Love, 328 F.Supp. 1182 (E.D.Ark.1971), the court stated:

The distinction between those detained and those on bail must be based upon the State's determination that there is a need for physical custody of the former . . .. Accepting this distinction as constitutionally permissible, then it is manifestly obvious that the conditions of incarceration for detainees must, cumulatively, add up to the least restrictive means of achieving the purpose requiring and justifying the deprivation of liberty.

Id. at 1192. Some district courts have also found the cruel and unusual punishment prohibition of the eighth amendment directly applicable to detainees. 6 This court, however, has expressed 'considerable siderable doubt that the . . . clause is properly applicable at all until after conviction and sentence.' Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973). Accordingly, we prefer to adopt the approach taken by the district judge here that a detainee is entitled to protection from cruel and unusual punishment as a matter of due process and, where relevant, equal protection. 371 F.Supp. at 623-624 & n. 5. See also Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676, 688 (D.Mass.1973), aff'd, 494 F.2d 1196 (1st Cir.), cert. denied, U.S. , 95 S.Ct. 239, 42 L.Ed.2d 189 (1974).

Testing conditions in the Tombs against these standards, the judge held that the constitutional rights of detainees were violated in the following ways, among others. All detainees are kept in maximum security conditions and are locked in a cage-like cell 16 hours a day, as a result of appellant's failure to establish a classification system to winnow out the approximately 20 per cent for whom maximum security might be necessary. For the remaining portion of the day, detainees are relegated to enforced idleness on noisy, stifling tiers. Failure to provide for contact visits eliminates altogether any chance 'to shake hands with a friend, to kiss a wife, or to fondle a child,' and visiting rights generally are unnecessarily limited and far less than those accorded convicted felons, restrictions not shown to be justified by security considerations. The 50-minute per week opportunity for exercise is inadequate. Finally, the extremes of heat and noise, the poor ventilation, and the inability to see the sun in the sky 'in some instances threaten, and in all cases unnecessarily burden the health' of the detainees. Id. 371 F.Supp. at 627.

On this phase of the case, appellant offers a number of arguments-- none very persuasive. The City first contends that while conditions at the Tombs may be 'very uncomfortable,' they do not deny due process. Thus, the City first tries to distinguish a number of the cases relied on by the district judge. It is true that in some, conditions were worse in many respects-- though not in all-- than those in the Tombs. E.g., Inmates of Suffolk County Jail v. Eisenstadt, supra; Brenneman v. Madigan, supra; Hamilton v. Love, supra (defendants stipulated conditions violated Constitution); Jones v. Wittenberg, supra. But this proves only that some jails are even less tolerable than the Tombs, not that the district judge here was necessarily in error. Arguing that conditions at the Tombs are not 'shocking to the conscience,' the City

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also attacks Judge Lasker's conclusion that maximum security confinement constituted cruel punishment 'at least for those in whose cases maximum security is not required.' 371 F.Supp. at 624 n. 5. However, because the rights of detainees rather than of convicted defendants are involved, the district judge did not have to decide whether...

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