O'BRYAN v. County of Saginaw, Mich.

• Decision Date: 08 December 1981
• Docket Number: Civ. No. 75-10075.
• Parties: James O'BRYAN, et al., Plaintiffs, v. The COUNTY OF SAGINAW, MICHIGAN, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

529 F. Supp. 206

James O'BRYAN, et al., Plaintiffs, v. The COUNTY OF SAGINAW, MICHIGAN, et al., Defendants.

Civ. No. 75-10075.

United States District Court, E. D. Michigan, N. D.

December 8, 1981.

Steven Winter and Joel Berger, New York City, for NAACP Legal Defense Fund.

Alan S. Ells, Legal Services of Eastern Michigan, Flint, Mich., for plaintiffs.

David Meyer, Peter C. Jensen, Saginaw, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

I. INTRODUCTION

A. Procedural History

In 1975, plaintiffs brought this action on behalf of themselves and all others similarly situated challenging the constitutionality of certain practices and procedures affecting inmates at the Saginaw County Jail. In O'Bryan v. County of Saginaw, 437 F.Supp. 582 (E.D.Mich., 1977) (hereinafter "O'Bryan I"), the Court concluded that plaintiffs' constitutional rights had been violated. In O'Bryan v. County of Saginaw, 446 F.Supp. 436 (E.D.Mich., 1978) (hereinafter "O'Bryan II"), the Court entered a Final Judgment and Permanent Injunction requiring the implementation of various procedures and programs in the Saginaw County Jail (hereinafter "jail").

Defendants appealed certain portions of the case. While the appeal was pending, defendants filed a petition for modification of particular aspects of O'Bryan II so as to bring about desired changes after having implemented the injunction for a substantial period of time. On April 10, 1980, 620 F.2d 303, the United States Court of Appeals for the Sixth Circuit remanded the case to this Court on plaintiffs-appellees' motion for further proceedings in light of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

On January 14, 1981, the Court issued a Memorandum Opinion and Order granting defendants' petition for modification in substantial measure. The modifications were not based on Wolfish but rather on practical considerations attending the orders in O'Bryan I and II. On February 27, 1981, the Court issued a second Memorandum Opinion and Order denying both defendants' motion to dismiss and/or vacate O'Bryan II and plaintiffs' conditional motion for modification of the final judgment. The Court, however, did grant plaintiffs' motion for reconsideration on remand of the contact visitation and receipt of publication issues and plaintiffs' motion for reconsideration of the medical aspects of the Court's opinion of January 14, 1981. A consent decree was entered by the Court on the receipt of publications and medical treatment issues on May 19, 1981.

Thus, the sole issue now before the Court is the impact of Wolfish on the Court's resolution in O'Bryan I and II of the visitation question. In 1977 and 1978, the controlling law required the application of the "least restrictive means" test. Jones v. Wittenberg, 323 F.Supp. 93, 99 and 330 F.Supp. 707 (N.D.Ohio, 1971), aff'd sub nom. Jones v. Metzger, 456 F.2d 854 (CA 6, 1972). It was applied in O'Bryan I and served as the basis for O'Bryan II. When applied, that test placed the "burden of justification" on the state to show a compelling necessity for the curtailment or restraint of a pretrial detainee's personal liberty beyond that absolutely necessary for security reasons and/or the assurance of a pretrial detainee's presence at trial. O'Bryan I, 437 F.Supp. at 595. Based on this test, the Court held that contact visitation was constitutionally required. O'Bryan I, 437 F.Supp. at 598-599; O'Bryan II, 446 F.Supp. at 441.

While the parties disagree as to the impact of Wolfish on the issue of contact visitation, they do agree that as a result of it, the "least restrictive means" test is no longer applicable. Supplementation of an already exhaustive record was therefore allowed for the purpose of focusing on the legal and factual considerations expressed in Wolfish. In order to afford the parties an opportunity to construct their arguments, the Court framed the issue generally, to wit: "whether contact visitation is constitutionally required for pretrial detainees at the Saginaw County Jail under Bell v. Wolfish."

Commencing on May 18, 1981, the Court held three days of trial. During that time, it heard the testimony of nine witnesses and admitted five exhibits into evidence. Pursuant to F.R.Civ.P. 52(a), the Court hereby enters its supplemental findings of fact and revised conclusions of law. To facilitate review, the Court initially sets forth its understanding of the standard of review in light of Wolfish. Then, it enters its supplemental findings of fact and revised conclusions of law. As a point of procedure, the Court hereby incorporates into its revised conclusions of law, the following introductory analysis of Wolfish.

B. The Standard of Review in Light of Bell v. Wolfish

1. While "there is no iron curtain drawn between the Constitution and prisons of this country," Wolff v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974), "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948).

2. When a condition or practice within a prison becomes the subject of legal action, the breadth of judicial inquiry and the resolution of the issue itself are limited to what a constitutional minimum requires in the situation. Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979).¹ A pretrial detainee is protected by the Due Process Clause. Id. at 535, 99 S.Ct. at 1872.

3. In gauging a particular prison condition or practice against the requirements of due process, the Court must initially ascertain the nature of the claimed constitutional violation so it can determine the proper mode of analysis. If the contested condition or practice implicates only the general constitutional protection against the deprivation of liberty without due process of law, then the "proper inquiry is whether those conditions amount to punishment of the detainee." Wolfish, supra, at 535, 99 S.Ct. at 1872. If the contested condition or practice implicates an express constitutional right, then the Court must also inquire whether the condition or practice violates those legal precepts inherent in that constitutional right as they may apply in a prison environment.²

4. In determining whether a particular restriction or condition accompanying pretrial detention amounts to "punishment" in the constitutional sense of the word:

A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on `whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it.' Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to `punishment.' Conversely, if a restriction or condition is not reasonably related to a legitimate goal, — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. Wolfish, supra at 538-539, 99 S.Ct. 1873-1874 (citations omitted). See also Id. at 539, n. 20, 99 S.Ct. at 1874, n.20.

5. In prison matters, the plaintiffs' burden of proof is "heavy," Wolfish, supra at 561, 99 S.Ct. at 1885, because "in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Id. at 540, n. 23, 99 S.Ct. at 1875, n.23, quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).

II. SUPPLEMENTAL FINDINGS OF FACT

1.) The defendants have complied fully with O'Bryan I and II.

2.) Contact visitation is a categorical term which ideally refers to a meeting within a jail wherein a visitor(s) and inmate may converse without being separated by some form of physical barrier and briefly touch, embrace and/or kiss one another.

3.) Contact visitation is emotionally and socially constructive. Other benefits of contact visitation are, among many, that it (a) reflects a common manner of visitation; (b) assures audible communication; (c) enhances the message being communicated; (d) is preferred by inmates and visitors over other forms of visitation; and (e) tends to reduce inmate and visitor apprehension and tension.

4.) Contact visitation occurs on the main floor of the Law Enforcement Building in a room which adjoins the front main lobby of the Law Enforcement Building. The jail is located in the Law Enforcement Building.

5.) Before an actual visit at the jail, a visitor is required to place all hand-held belongings in a locker, but retains the key thereto. A frisk is thereafter conducted during which the visitor is also required to open his or her mouth and roll the tongue to prevent the transfer of drugs or contraband by mouth. Babies are also checked for similar reasons. Upon meeting and leaving, the inmate and visitor(s) may briefly touch, embrace or kiss one another. During the barrierless visit, they are required to keep their hands above the tables provided in the visiting area, and to sit across from each other rather than closely together. Children are not permitted to sit on the inmate's lap. After the visit, the inmate relinquishes the prison uniform worn during the visit and is then strip-searched and issued a new set of clothing.

6.) Contact visitation at the jail generally requires the services of six...