Marcera v. Chinlund

• Decision Date: 04 June 1979
• Docket Number: 360,Nos. 359,D,s. 359
• Citation: 595 F.2d 1231
• Parties: Joseph MARCERA and John Dillman, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants-Cross-Appellees, v. Stephen CHINLUND, Joseph Wasser and Dorothy Wadsworth, Individually and in their official capacities as members of the New York State Commission of Correction, Defendants-Appellees, and William Lombard, Individually and in his official capacity as Sheriff of Monroe County and on behalf of all other persons similarly situated, Defendant- Appellee-Cross-Appellant. ockets 78-2081, 78-2090.
• Court: U.S. Court of Appeals — Second Circuit

Page 1231

595 F.2d 1231

Joseph MARCERA and John Dillman, Individually and on behalf of all others similarly situated Plaintiffs-Appellants-Cross-Appellees, v. Stephen CHINLUND, Joseph Wasser and Dorothy Wadsworth Individually and in their official capacities as members of the New York State Commission of Correction, Defendants-Appellees and William Lombard, Individually and in his official capacity as Sheriff of Monroe County and on behalf of all other persons similarly situated Defendant- Appellee-Cross-Appellant.

Nos. 359, 360, Dockets 78-2081, 78-2090.

United States Court of Appeals, Second Circuit.

Argued Dec. 6, 1978.

Decided Feb. 27, 1979.

Certiorari Granted and Judgment Vacated June 4, 1979.

See 99 S.Ct. 2833.

Ian C. DeWaal, Rochester, N. Y. (Monroe County Legal Assistance Corp., Rochester, N. Y., of counsel), for plaintiffs-appellants-cross-appellees.

Patricia C. Armstrong, Dept. of Law of N. Y., New York City (Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, of counsel), for defendants-appellees Chinlund, Wasser, and Wadsworth.

Joseph C. Pilato, Rochester, N.Y. (John D. Doyle, County Atty., Rochester, N. Y., of counsel), for defendant-appellee-cross-appellant Lombard.

Before KAUFMAN, Chief Judge, and SMITH and VAN GRAAFEILAND, Circuit Judges.

IRVING R. KAUFMAN, Chief Judge:

Recent years have witnessed an explosion of litigation testing the rights of prisoners who have not been convicted of a crime but are merely held in custody to ensure their attendance at trial. A recurrent issue has been the extent to which these pretrial detainees must be permitted "contact visits," and, since 1974, we have repeatedly held that due process forbids denying detainees the right "to shake hands with a friend, to kiss a wife, or to fondle a child," Rhem v. Malcolm ("Rhem I"), 371 F.Supp. 594, 626 (S.D.N.Y.), Aff'd, 507 F.2d 333 (2d Cir. 1974). Accord, Wolfish v. Levi, 573 F.2d 118, 126 n. 16 (2d Cir.) (recognizing First Amendment basis to right), Cert. granted, --- U.S. ----, 99 S.Ct. 76, 58 L.Ed.2d 107 (1978); Rhem v. Malcolm ("Rhem II"), 527 F.2d 1041, 1043 (2d Cir. 1975).

Before the instant litigation, however, the cases have focused on one institution at a time, and our decrees have had a practical impact only on the inmates of the particular facility under consideration in each suit. Thus, the sheriffs of 47 of New York's 62 counties continue to deny pretrial detainees in their custody ¹ the contact with friends and loved ones that Rhem I established as their due. At Monroe County Jail, for example, which was built in 1970 and is considered one of the most modern jails in the state, the detainee and his visitor are kept apart by a ceiling-high wall. They see each other only through a small plexiglass window, and they talk by telephone. The visiting facilities at the other 46 jails whose inmates are denied contact visits are similar.

New York State officials have not been unmoved by the plight of the detainees in the county jails. In 1976, following our decisions in Rhem I and Rhem II, the State Corrections Commission promulgated regulations requiring each facility to adopt a contact visitation program. 9 N.Y.Codes, Rules & Regs. §§ 7008.1 to .8 (1976). ² The sheriffs, however, viewed this action by the Commission as infringing on their prerogatives as administrators of the jails, and they secured a state court injunction against enforcement of the regulations. McNulty v. Chinlund, 62 A.D.2d 682, 406 N.Y.S.2d 558 (3d Dep't 1978), Aff'g 89 Misc.2d 713, 392 N.Y.S.2d 790 (Sup.Ct., Albany Co. 1977). ³

In November 1976, shortly after the Corrections Commission's regulations were promulgated, Joseph Marcera and John Dillman, two inmates of the Monroe County Jail, commenced this action to enforce their right to contact visitation. Seeking the broadest possible vindication of this right, they sought to maintain the suit as a double-edged class action under Rule 23 of the Federal Rules of Civil Procedure. Specifically, on behalf of themselves and a plaintiff class of pretrial detainees throughout the state, they sought relief against a defendant class of 42 sheriffs who deny contact visits in their jails. ⁴ Sheriff William Lombard of Monroe County was named as representative of the proposed defendant class. ⁵ Plaintiffs promptly moved before Judge Burke for certification of plaintiff and defendant classes, and they also requested preliminary injunctive relief to facilitate implementation of contact visitation at the 42 affected jails.

On a prior appeal, we held that Judge Burke erred in denying the relief sought out of hand, without holding a hearing. Marcera v. Chinlund,565 F.2d 253 (2d Cir. 1977) (Per curiam ). Although we stated that plaintiffs had raised "substantial claims of deprivations of (constitutional) rights," the virtually nonexistent record precluded us from ruling on the merits. Id. at 255. After the required hearing, the district judge determined that plaintiffs had demonstrated neither irreparable injury nor likelihood of success on the merits. In addition, he found that significant differences in jail construction, staffing, and inmate population among the 42 counties precluded Sheriff Lombard from adequately protecting the interests of the absentee defendants. Judge Burke therefore declined to certify either a defendant class or a statewide plaintiff class, ⁶ and he denied most of the requested preliminary relief. He did, however, certify a plaintiff class consisting of Monroe County inmates, and he ordered Sheriff Lombard to ask the County Legislature for funds with which to implement a contact visitation program. ⁷

The sheriff appeals this directive, and plaintiffs appeal the denial of statewide class certification ⁸ and the refusal to enter a more comprehensive preliminary injunction. Because we believe the district judge has misconceived both the nature of the constitutional issues and the appropriate procedural response, we reverse the order denying class certification and direct the district court to grant the interim relief requested by plaintiffs. ⁹ To avoid further shuttling between this court and the district court, we shall also attempt to provide some guidance for the future conduct of the litigation.

I. THE CONSTITUTIONAL FRAMEWORK

As we noted earlier, we have repeatedly held that it is unconstitutional to deny inmates regular contact visits while they are incarcerated awaiting trial. This right is founded on the bedrock of our criminal jurisprudence: an individual accused of a crime is presumed innocent, and may not be punished, until a jury finds him guilty beyond a reasonable doubt. Accordingly, pretrial detainees may be subjected only to those restraints on their liberty that inhere in the confinement itself or are clearly justified by the "compelling necessities of jail administration." E. g., Wolfish v. Levi, supra, 573 F.2d at 124.

Moreover, it is equally well established that these "compelling necessities" do not include cost or mere administrative inconvenience, for "(i)nadequate resources (or) finances can never be an excuse for depriving detainees of their constitutional rights," Detainees of Brooklyn House of Detention v. Malcolm, 520 F.2d 392, 399 (2d Cir. 1975). Accord, Rhem II, supra, 527 F.2d at 1043-44; See, e. g., Wolfish v. Levi, supra, 573 F.2d at 124; Todaro v. Ward, 565 F.2d 48, 54 n. 8 (2d Cir. 1977). To be sure, the legitimate and vital interests of jail security may be protected, but only by rules carefully tailored to cause no more restrictions of inmates' rights than essential. Thus, reasonable classification schemes, designed to weed out those detainees who would present intolerable security risks if granted contact visits, are permissible. Rhem I, supra, 507 F.2d at 338; 371 F.Supp. at 626; See id. at 603-04, 617-20. Blanket prohibitions, however, are banned. See Rhem II, supra, 527 F.2d at 1043; Miller v. Carson, 563 F.2d 741, 748-49 (5th Cir. 1977); Detainees of Brooklyn House of Detention v. Malcolm,421 F.Supp. 832 (E.D.N.Y.1976). In sum, it is too late in the day to suggest that it does not offend the Constitution not to permit pretrial detainees contact visits. Judge Burke clearly erred in finding that plaintiffs suffered no irreparable injury and were unlikely to succeed on the merits, and his failure to award effective interim relief was thus an abuse of discretion. The true issues on this appeal concern not the right to relief but the scope of relief; not whether to enter an injunction but against whom and to what extent.

II. CLASS CERTIFICATION

We turn, therefore, to the district court's rulings on the class certification motions. Under Fed.R.Civ.P. 23, of course, a moving party must demonstrate that the putative class not only meets each of the four criteria of subsection (a) but also fits one of the three categories set forth in subsection (b). See, e. g., Green v. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968), Cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). These twin requirements apply equally to plaintiff and defendant classes. See, e. g., Research Corp. v. Pfister Associated Growers, Inc., 301 F.Supp. 497 (N.D.Ill.1969), Appeal dismissed sub nom. Research Corp. v. Asgrow Seed Co., 425 F.2d 1059 (7th Cir. 1970); Note, Defendant Class Actions, 91 Harv.L.Rev. 630, 633 (1978). In this case, however, there is an additional hurdle to overcome. Unless the custodians of the 41 affected jails outside Monroe County are members of a proper defendant class, it would be an exercise in futility to define the plaintiff class to include detainees in counties other than Monroe. Indeed, because there is surely no case or controversy between Sheriff Lombard and non-Monroe detainees, to certify a statewide plaintiff class and not a corresponding defendant class would violate Article III as well. See generally Developments in the Law Class Actions, 89 Harv.L.Rev. 1318, 1460-63 & nn. 47 & 48 (1976) (citing cases). Th...