Dimarzo v. Cahill, s. 77-1416 and 77-1417

• Citation: 575 F.2d 15
• Decision Date: 19 May 1978
• Docket Number: Nos. 77-1416 and 77-1417,s. 77-1416 and 77-1417
• Parties: James DIMARZO et al., Plaintiffs-Appellees, v. Robert E. CAHILL et al., Defendants-Appellees, Frank A. Hall, Defendant-Appellant. James DIMARZO et al., Plaintiffs-Appellees, v. Robert E. CAHILL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 15

575 F.2d 15

James DIMARZO et al., Plaintiffs-Appellees, v. Robert E. CAHILL et al., Defendants-Appellees, Frank A. Hall, Defendant-Appellant.

James DIMARZO et al., Plaintiffs-Appellees, v. Robert E. CAHILL, Defendant-Appellant.

Nos. 77-1416 and 77-1417.

United States Court of Appeals, First Circuit.

Argued Jan. 5, 1978.

Decided May 2, 1978.

As Amended May 19, 1978.

Robert H. Claridge, Counsel, Dept. of Correction, Boston, Mass., and John N. Nestor, Lynn, Mass., with whom Lee Carl Bromberg, Special Asst. Atty. Gen., Boston, Mass., was on brief, for defendant-appellant.

Alvin J. Bronstein, Boston, Mass., with whom Susan E. T. Studlien and Earnest Winsor, Boston Mass., were on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Commissioner of Correction Hall and Essex County Sheriff Cahill appeal from an order by the district court mandating certain changes in the Essex County Jail and House of Correction (hereafter "Essex"). Sheriff Cahill filed no brief in support of his appeal; he was represented at oral argument where his counsel stated that the sheriff's position was ministerial only and that he has tried to comply with the court order to the extent within his power. The Essex County Commissioners, who have not appealed from the district court order, control the purse strings, not the sheriff. The Commissioners, we were informed at oral argument, have appropriated funds to effectuate the changes for which they are responsible. Our opinion is addressed primarily to points raised in defendant Hall's brief.

Essex, constructed in 1815 with an addition in 1884, houses approximately eighty-five prisoners in the House of Correction and approximately twenty-five pretrial detainees in the Jail. Plaintiffs-inmates brought suit under 42 U.S.C. § 1983 alleging numerous unconstitutional conditions and practices.

The district court found conditions at Essex to fall below constitutional minimum requirements. After viewing Essex, he ordered specific improvements relating to fire prevention and protection, health, recreation, and sanitation.

The court found the most pressing problem to be the fire hazard. The structure is divided into four tiers; the only exits from the cells are through the central stairwell at one end of the building and from the floor level into the exercise yard. The floors of the catwalks are tongue and groove pine, covered with several layers of old paint and, in some cases, flammable floor covering. The cells must be unlocked individually. The two fire hoses on the stairwell would be totally ineffectual if there were either fire or extensive smoke in the stairwell. The cells are equipped with mattresses which are composed either of flammable ticking or of a foam which exudes highly toxic gas when ignited.

There is only one flush toilet for the approximately 130 inmates. No plumbing at all exists in the cells. Inmates are provided a plastic pail for excrement, a water pitcher and a plastic basin. Absence of privacy when one is engaged in personal functions is only one of the results of this system.

There are only two sets of shower stalls, each with three shower heads. The court found that existing facilities would permit the installation of at least three more enclosed flush toilets and sinks. This would help alleviate the difficulties presented by the present plumbing arrangements. The trial judge found that inmates were not always issued the required pitcher, basin, towel, sheets, and blankets upon admission.

Kitchen screens were found to be filthy and storage of food did not always comport with health requirements concerning separation of food and cleaning materials. Many of the windows in the cell area were without glass, being covered instead with dirty screens or dirty plastic sheeting which was frequently torn. Such conditions drastically reduce the amount of sunshine in the cells.

Prisoners are allotted fifteen hours per day out-of-cell time; pretrial detainees are permitted ten and one-half hours per day for three days a week, seven and one-half hours for the alternating three days, and fifteen hours on Sunday.

The district court directed that certain changes be implemented to bring Essex within constitutional bounds.

I.

Defendant Hall moves us to strike him as a party defendant because, he claims, he cannot be held responsible for denying plaintiffs their constitutional rights. The Commissioner construes too narrowly his statutory duties. See Inmates of Suffolk County Jail v. Eisenstadt, 494 F.2d 1196, 1199 (1st Cir.), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974). Under Massachusetts law, the Commissioner of Correction has supervisory responsibility for all state correctional facilities, Mass.Gen.Laws ch. 124 § 1(a), and is charged with promulgating minimum standards for the care and custody of persons committed to those facilities. Mass.Gen.Laws ch. 127 § 1A. Should he find any facility in violation of those minimum standards, he is instructed to seek compliance by resort to the specific statutory enforcement procedures of Mass.Gen.Laws ch. 127 § 1B (set out in the margin below ¹). Mass.Gen.Laws ch. 124 § 1(d). As Commissioner, he has an express duty to establish rules and regulations relating to sanitation, safety, recreation, classification, care and custody of the persons committed to the correctional facilities. Mass.Gen.Laws ch. 124 § 1(q). Plaintiffs have alleged that, by failing to promulgate and enforce proper statutory standards, defendant Hall caused them to suffer the unconstitutional conditions of which they complain.

Defendant Hall argues, relying on Rizzo v. Goode, 423 U.S. 362, 371, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), that there is an insufficient causal link between the constitutional violations and any action or inaction on his part. He argues that his mandate is only to promulgate standards and inspect the facility and that his failure to do so does not have constitutional implications. He cannot so easily elude his mandate. Surely, if the Commissioner had promulgated standards which fell below a constitutionally permissible level, there can be no serious dispute but that this would constitute the establishment of a policy or practice open to attack by plaintiffs. Cf. Rizzo v. Goode, supra, 423 U.S. at 371, 96 S.Ct. 598. Conversely, there would exist no constitutional grievances if the Commissioner were in conformity with his statutory duties, viz., to promulgate and enforce minimum (which of necessity means, at the very least, constitutional) standards. We are faced with a situation where the Commissioner of Correction has statutory responsibility over precisely the conditions giving rise to the violations. We are not confronted with sporadic incidents, over which the Commissioner might properly claim to have no knowledge or control. ² Rather, we are dealing with the pervasive failure of responsible authorities to maintain Essex in conformity with constitutional requisites. The causal nexus between Hall's acts or failure to act and the constitutional infirmities is clear. ³

A natural consequence of Hall's failure to comply with his statutory duties to promulgate and enforce minimum standards is that conditions would fall below a constitutionally allowable limit. We emphasize what is implicit in the foregoing analysis, i. e., that Hall is a proper defendant because of his own statutory duty and subsequent failure to act (and the consequent constitutional injury) and not on the basis of the act of others. We thus do not face the issue of whether it is proper to predicate liability under section 1983 on the basis of respondeat superior. Cf. Kostka v. Hogg, 560 F.2d 37, 40 n. 1 (1st Cir. 1977).

II.

Defendant Hall next urges us to hold that there is no live case or controversy because plaintiffs lack standing to sue. The basis for this assertion lies in defendant's view of the nature of the injury which plaintiffs must sustain for their allegations to rise to the status of an actual case or controversy. The requisites for standing were capsulized in Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). A party must allege "a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . ." See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37-39, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976); Buckley v. Valeo, 424 U.S. 1, 11-12, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Rizzo v. Goode, supra; Warth v. Seldin, 422 U.S. 490, 498-500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

It cannot be doubted that features relating to general health and sanitation within Essex are of prime interest to inmates incarcerated there. Nor can there be any serious dispute that plaintiff inmates have a personal stake in the fire-worthiness of the structure in which they are housed. Defendant Hall inaptly construes the requirement of injury as requiring proof that the inmates inevitably will suffer physical injury or death from fire before they have standing to challenge the hazardous fire conditions which the district court found existing at Essex. We find this proposition to fall far below contemporary expectations of constitutionally-mandated humane treatment. One need not wait for the conflagration before concluding that a real and present threat exists. ⁴

III.

We next examine whether the district court exceeded the scope of its discretion by ordering the closing of Essex if certain mandated corrections are not implemented. Federal courts have long exercised equity powers and in the key case of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), the Court highlighted the authority federal courts have when confronted with constitutional abridgements. "Once a right and a violation have been shown, the scope of a...