Moore v. Janing

• Decision Date: 29 December 1976
• Docket Number: Civ. No. 72-0-223.
• Citation: 427 F. Supp. 567
• Parties: Jethro MOORE et al., Plaintiffs, v. Theodore J. JANING, etc., et al., Defendants.
• Court: U.S. District Court — District of Nebraska

427 F. Supp. 567

Jethro MOORE et al., Plaintiffs, v. Theodore J. JANING, etc., et al., Defendants.

Civ. No. 72-0-223.

United States District Court, D. Nebraska.

December 29, 1976.

COPYRIGHT MATERIAL OMITTED

Terrence J. Ferguson, Vard R. Johnson, Robert V. Broom, Legal Aid Society of Omaha-Council Bluffs, Omaha, Neb.; Robert S. Catz, Washington, D.C., for plaintiffs.

Henry L. Wendt, Deputy County Atty., Douglas County, Omaha, Neb., for defendants.

DENNEY, District Judge.

This class action, which was filed on April 12, 1972, arises under the provisions of 42 U.S.C. § 1983 and the United States Constitution. Jurisdiction is conferred by 28 U.S.C. § 1343(3) which grants jurisdiction without regard to the amount in controversy in cases seeking redress for infringement of civil rights, and by 28 U.S.C. §§ 2201 and 2202, providing for declaratory and injunctive relief. The Court also has pendent jurisdiction to hear integrally related claims arising under the laws of the State of Nebraska.

The plaintiff class includes those persons, male and female, who are or will be incarcerated at the Douglas County Jail, Douglas County Courthouse, Omaha, Nebraska Courthouse jail and the Interim Jail Facility, 11th and Dodge Streets, Omaha, Nebraska Interim jail, pending trial. The class is limited to pretrial detainees and does not include persons who have been convicted of criminal charges and who are confined in the above institutions pending or serving sentences. The defendants are the Sheriff and the Commissioners of Douglas County, Nebraska, sued in their official capacities.

By this lawsuit, the plaintiffs seek to improve the conditions of their confinement at the Courthouse and Interim jails. Since the commencement of this suit, the Courthouse jail has undergone substantial remodeling, resulting in improved conditions at the facility in many respects. In addition, other claims presented in the complaint Filing # 1, amended complaint Filing # 19 and second amended complaint Filing # 35 are now moot or are unsupported by any evidence in the record.¹ These factors and the commendable cooperation by the parties' counsel with each other and with the Court have substantially narrowed the issues to be determined. The issues remaining for resolution concern the living conditions of the facility in which female detainees are housed at the Interim jail, the availability of recreation and exercise for detainees in both jails, the restrictions on detainees' visiting privileges and telephone usage at both jails, the limited access by detainees to legal books and materials, and the dissemination of the jail rules to detainees, so that they may be aware of their rights and obligations.

The plaintiffs' motion for a preliminary injunction Filing # 53 has been consolidated with the resolution of this case on its merits. The plaintiffs' motion for summary judgment Filing # 77 is hereby denied, and this memorandum shall constitute the Court's findings of fact and conclusions of law on the merits of this controversy. The findings of fact herein are based on the parties' stipulations, the affidavits, depositions, answers to interrogatories, and documents produced through discovery, the photographs and other exhibits which have been submitted to the Court Filing # 87 and the Court's personal observations during an inspection of the women's detention facility at the Interim jail on November 22, 1976.

In Bell v. Wolff, CV. 72-L-227 (D.Neb. 1973), Chief Judge Warren Urbom of this Court set forth the standards against which the plaintiffs' challenges to the conditions of their confinement are to be tested.

It must be stressed that the determinative principle against which all treatment of a pretrial detainee is to be assessed is that he is not to be subjected to any hardship, except those necessary to ensure his secure confinement and, hence, his appearance at trial. Considerations of necessary security aside, pretrial detainees have all the rights of ordinary citizens because, not having been adjudged guilty of anything, they are ordinary citizens. Anderson v. Nosser, 438 F.2d 183 (C.A. 5th Cir. 1971); Brenneman v. Madigan, 343 F.Supp. 128 (U.S.D.C. N.D.Calif.1972); Jones v. Wittenberg, 323 F.Supp. 93 (U.S.D.C. N.D.Ohio 1971). See Stack v. Boyle, 342 U.S. 1 72 S.Ct. 1, 96 L.Ed. 3 (1951). Id. at 2-3.

See also Rhem v. Malcolm, 371 F.Supp. 594, 622-23 (S.D.N.Y.1974), aff'd, 507 F.2d 333 (2nd Cir. 1974), in which the court noted the growing recognition of prisoners' rights and the increasing intervention by the federal courts to protect those rights.

In recent years, the assertion of constitutional rights by prisoners has been litigated largely in the federal courts. In earlier times the federal courts withheld action or acted with great caution in such cases, observing the principle of comity and recognizing that the administration of prisons requires an expertise to which courts do not pretend. However, the reluctance to assert authority has rapidly eroded in recent years as one federal court after another has concluded that conditions in America's prisons and jails have sunk below federal constitutionally acceptable levels. As the United States Supreme Court has put it, "Federal courts sit not to supervise prisons but to enforce the constitutional rights of all `persons,' including prisoners."

The plaintiff class is composed of persons who are not at liberty only because they cannot afford bail or because they have been charged with nonbailable offenses. They have not been convicted of any crime, and they are presumed to be innocent of the charges against them. The state may detain a person for trial, but any additional punishment must be justified by a valid interest of the state. Cudnik v. Kreiger, 392 F.Supp. 305, 311-12 (N.D.Ohio 1974). The state has legitimate interests in assuring a detainee's appearance at trial and in maintaining the security and internal order of its jails. Any prison condition, policy or practice which is punitive in effect must bear a relationship to and must further these legitimate interests of the state. "Considerations of rehabilitation, deterrence or punishment are not material." Seale v. Manson, 326 F.Supp. 1375, 1379 (D.Conn.1971).

A detainee may not be confined in conditions which are harsher in fact than convicted prisoners experience. In fact, there is a general consensus that conditions for pretrial detention must be superior to those provided for inmates who have been convicted and are serving sentences. Moreover, the imposition of punishment without conviction deprives an accused of due process.

Thus, the state is required to use "the least restrictive alternatives" to achieve its interests and may not deprive a detainee of his liberty to an extent greater than necessary. "Any deprivation of or restriction of the detainee's rights beyond those which are necessary for confinement alone must be justified by a compelling necessity." Detainees of Brooklyn House of Detention for Men v. Malcolm, 520 F.2d 392, 397 (2nd Cir. 1975), cited in Martinez Rodriguez v. Jimenez, 409 F.Supp. 582, 593 (D.P.R.1976). The state may not "justify the denial of other unrelated rights for budgetary reasons." Rhem v. Malcolm, 520 F.2d 1041, 1044 (2nd Cir. 1975). "Lack of adequate economic resources does not excuse, nor does it lessen, the obligation of states and local governments to provide jail facilities which are constitutionally adequate." Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649, 669 (S.D.Tex. 1975), citing Finney v. Ark. Board of Corrections, 505 F.2d 194 (8th Cir. 1974). "If the state cannot obtain the resources to detain persons awaiting trial in accordance with minimum constitutional standards, then the state simply will not be permitted to detain such persons." Hamilton v. Love, 328 F.Supp. 1182, 1194 (E.D.Ark.1971); Brenneman v. Madigan, 343 F.Supp. 128, 139 (N.D.Cal.1972).

Other cases in accord with the above views include United States ex rel. Tyrrell v. Speaker, 535 F.2d 823 (3rd Cir. 1976); United States ex rel. Wolfish v. Levi, 406 F.Supp. 1243 (S.D.N.Y.1976); Miller v. Carson, 401 F.Supp. 835 (M.D.Fla.1975); Dillard v. Pitchess, 399 F.Supp. 1225 (C.D.Cal. 1975); Wilson v. Beame, 380 F.Supp. 1232 (E.D.N.Y.1974); Inmates of Suffolk County Jail v. Eisenstadt, 360 F.Supp. 676 (D.Mass. 1973), aff'd, 494 F.2d 1196 (1st Cir. 1974), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 189 (1974); Smith v. Sampson, 349 F.Supp. 268 (D.N.H.1972); Jones v. Wittenberg, 323 F.Supp. 93, 330 F.Supp. 707 (N.D. Ohio 1971), aff'd, 456 F.2d 854 (6th Cir. 1972).

I. LIVING CONDITIONS AT THE INTERIM JAIL

Female pretrial detainees are housed on the fourth floor of the Interim jail at 11th and Dodge Streets, Omaha, Nebraska. The jail was built in 1920, and other than some painting and cleaning and the creation of a dayroom out of a cell, the facility has never been remodeled. It is generally acknowledged that the jail is substandard and that it will be demolished when new quarters become available² see Exhibit 8u.

The women occupy four four-person cells measuring eight by ten feet each and one six-person cell measuring eight by twelve feet. Each cell contains either four or six steel bunks, a toilet, a sink and a night-stand. Female pretrial detainees and convicted inmates are sometimes housed together. The population averages twelve to eighteen women, and a total of twenty-two can be accommodated.

The cells are located along a narrow L-shaped corridor at the end of which is a heavy steel door leading into the matron's office. As only one matron is on duty at a time, she is usually outside of the actual detention area, and has to be summoned by a detainee in the event of a fight, illness or fire in the inmate area.

The cell doors are barred as are the windows located along the corridor. There are no skylights or windows in the cells. Some natural light enters the area, but lighting primarily...