Jаmes BENJAMIN, et al., Plaintiffs-Appellees-Cross-Appellants, v. William J. FRASER, Commissioner of the Department of Correction of the City of New York, et al., Defendants-Appellants-Cross-Appellees.
Docket No. 01-7533(L).
Docket No. 01-7876(CON).
Docket No. 01-7934(XAP).
Docket No. 02-7115(CON).
United States Court of Appeals, Second Circuit.
Argued: March 26, 2003. Decided: September 2, 2003.
343 F.3d 35
Daniel L. Greenberg, The Legal Aid Society, Prisoners Rights Project (John Boston, Dale A. Wilker, Madeline H. delone, Lisa Freeman, on the brief), New York, NY, for Plaintiffs-Appellees-Cross-Appellants.
Before: McLAUGHLIN, B.D. PARKER, JR., and RAGGI, Circuit Judges.
B.D. PARKER, JR., Circuit Judge.
This appeal concerns the effect of the Prison Litigation Reform Act of 1995 (“PLRA“),
BACKGROUND
I. History of Litigation
ensure that detainee mail and property are handled properly, and that procedures in concert with constitutional protections are followed during detainee cell and body searches. On an institutional level, the Consent Decrees seek to maintain the physical plant of the jails in a condition safe for human habitation. They mandate that attention be given to vermin and insect control, sanitation, maintenance and refuse removal. Other provisions govern food services to the detainees and ensure that the detainees are adequately fed while in custody, with food that is prepared and served in a sanitary environment.
Benjamin v. Jacobson, 935 F.Supp. 332, 337 (S.D.N.Y.1996) (”Benjamin I“).
In 1982, the consent decrees were consolidated before Judge Morris E. Lasker of the Southern District of New York. After the agreement of the parties, Judge Lasker ordered the creation of the OCC, a neutral third party, to monitor and assist with compliance efforts. Between 1982 and 1987 the OCC was continued by agreement of the parties. Thereafter, pursuant to biannual orders of the district court, the OCC continued to operate with its responsibilities and activities periodically adjusted. See Benjamin v. Fraser, 156 F.Supp.2d 333, 336 (S.D.N.Y.2001) (”Benjamin VIII“).
Before enactment of the PLRA, the district court, because of changed conditions or changes in the law, was asked from time to time to modify or terminate various remedial provisions of the consent decrees. See, e.g., Benjamin v. Koehler, 710 F.Supp. 91 (S.D.N.Y.1989) (denying defendants motion for temporary modification of decree concerning population limits in order to accommodate increase in jail population); Benjamin v. Malcolm, 156 F.R.D. 561 (S.D.N.Y.1994) (denying defendants motion for modification of court order and decree provision concerning food preparation). When the PLRA came into effect in April 1996, however, and after the City swiftly moved for termination of the consent decrees, judicial scrutiny of the propriety of various categories of prospective relief in the decrees came to be required. The Act provides that any prospective rеlief (defined broadly by
a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.
Responding to the City s motion, the detainees acknowledged that the relief in the consent decrees and related orders had been entered without the PLRA-mandated findings and that the record, as it stood, did not support such findings. They argued, however, that the PLRA was unconstitutional. See Benjamin v. Jacobson, 172 F.3d 144, 151-52 (2d Cir.1999) (en banc) (”Benjamin III“). In Benjamin I, the district court rejected their constitutional challenge, granted the City s motion for immediate termination, and vacated the consent decrees. On appeal, in Benjamin II, a panel of this court affirmed the district court s determination that the PLRA was constitutional, albeit under different reasoning, but reversed the vacatur of the consent decrees. The panel reasoned that the PLRA did not require the termination of consent decrees without the mandated need-narrowness-intrusiveness findings but merely prohibited their enforcement in federal court, with the parties free to enforce them in state court.
II. Environmental Health Rulings
In May 2000, the district court considered various environmental health and hygiene issues at the jails, taking testimony from eighteen present and former detainees.5 The detainees presented testimony from Robert W. Powitz, Ph.D., an expert in the field of environmental health. The DOC s Director of Environmental Health, Patricia Feeney, provided expert testimony for the City. See Benjamin v. Fraser, 161 F.Supp.2d 151, 154 (S.D.N.Y.2001) (”Benjamin VI“).
In its first order on environmental health conditions, the district court addressed eleven categories: (1) ventilation; (2) air temperature; (3) plumbing; (4) vermin; (5) food service; (6) personal hygiene and laundry services; (7) sanitation in non-medical areas; (8) lighting in nоn-medical areas; (9) noise; (10) medical areas; and (11) modular units. It found no ongoing violations of federal law with respect to plumbing, vermin control, food service, or personal hygiene and laundry services, but it found constitutional violations in certain facilities with respect to ventilation, air temperature, sanitation in non-medical areas and some medical areas, lighting, noise, and modular units. The court then directed the parties to submit recommendations for prospective relief. See Benjamin VI, 161 F.Supp.2d at 160-89.
Both parties moved for reconsideration. The detainees requested that the court reconsider its decisions concerning ventilation at two facilities and sanitation conditions at two other facilities. The City principally sought clarification of certain elements of the court s decision. The district court granted in part and denied in part both motions. See Benjamin v. Fraser, 2001 WL 282705, 2001 U.S. Dist LEXIS 3173 (S.D.N.Y. Mar. 22, 2001) (”Benjamin VII“). It then solicited agreement on appropriate relief. On April 26, 2001, the court issued its “remedial order,” directing the City to take various actions and, over its objections, ordering the OCC to continue to monitor certain aspects of compliance. The court ordered prospectivе relief in the areas of general sanitation, air temperature, ventilation, heating, lighting, noise, and sanitation in clinics and medical areas. The City appeals this order (01-7533).
The parties again cross-moved for reconsideration. Although these motions mostly raised narrow, technical issues, both parties also asked the court to determine whether the continued existence of the OCC complied with the “special master” provisions of the PLRA,
In October 2001, the City moved for reconsideration or, alternatively, for a partial stay pending appeal. See
I. Standard of Review
Generally, we review “questions of law de novo, questions of fact for clear error, and matters of discretion for abuse of discretion.” Benjamin V, 264 F.3d at 184. Accordingly, the district court s factual findings regarding the conditions at the facilities are reviewed for clear error, but its conclusions about their constitutionality are reviewed de novo. See Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir.2002); see also United States v. Millan, 4 F.3d 1038, 1043 (2d Cir.1993) (“[W]e review the district court s findings of historical fact in this case for clear error, but we review its ultimate resolution of the constitutional due process issue de novo.“).
Yet, as the First Circuit has recognized, see Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 661 (1st Cir.1997), this fact/law dichotomy may be somewhat too blunt a tool for the delicate task of reviewing the constitutional issues at hand, since some of the conclusions we must review do not involve questions exclusively of law or fact. Many rest squarely within the district court s duty as fact finder; yet some ostensibly factual findings implicate constitutional conclusions. An example is whether food-service sanitation implicates the safety of the detainees to a constitutional extent. In evaluating the district court s resolution of such an issue, the appropriate standard of review turns on the nature of the finding or conclusion being challenged, that is, whether the challenge concerns the conditions the court found to exist or the court s conclusion about whether those conditions implicated the Constitution. See id.
II. OCC and PLRA Special Master Provisions
We first consider whether the OCC s continued participation in this litigation on the terms ordered by the district court comports with the PLRA.
A. OCC s creation and continuation
As we have seen, the district court has long used the services of the OCC as a neutral third party to assist the litigants in the implementation of the consent decrees and in dispute resolution and to assist the court in monitoring the City s compliance with its obligations.7 The OCC was created in 1982, when the parties agreed by stipulation to hold in abeyance a contempt motion filed by the detainees, whose agreement to postpone consideration of the motion was predicated on the OCC s creation. Between 1982 and 1987, the parties consented to renewals of its mandate. In 1987, however, when the parties were unable to agree on the terms of renewal, the district court renewed the OCC s mandate after finding that the OCC s existence was necessary to ensure compliance with the consent decrees. (See Jan. 6, 1997 Mem. and Order, 75-Civ-3073, at 2).8
Following enactment of the PLRA, the City objected to the continued participation of the OCC, asserting that the terms of its continuation would now have to comply with the special master provisions of the Act, which would require, among other things, that the OCC be compensated by funds appropriated to the judiciary instead of by the City.9 Tying the OCC to these provisions would likely render its continued involvement impracticable. The district court ordered the continuation of the OCC, based on its determination that it continued to play a necessary and beneficial role in monitoring and assisting the City s compliance efforts and the court s desire to maintain the status quo in light of our stay pending appeal of its order holding the PLRA to be constitutional. (See Jan. 6, 1997 Mem. and Order, aff d, Benjamin v. Jacobson, 122 F.3d 1055, 1997 WL 560944 (2d Cir. Sept.10, 1997) (unpublished table decision)).
The City argues that (1) the OCC is a “special master” under
B. OCC is not a special master
Although concluding that the “OCC is not now, and never has been, a special master as defined by the PLRA,” the district court did not rest on that ground, apparently because it viewed that conclusion as leaving open the question whether “the PLRA s special master provisions leave intact the power of courts to appoint entities of a different stripe, like OCC.” Benjamin VIII, 156 F.Supp.2d at 335. We see the matter somewhat differently. If the OCC is not a special master, then the provisions in the Act applicable to special masters do not apply to the OCC and would not bar its participation.10 Because we agree with the district court that the OCC is not a special master under the PLRA, we also agree that continuing to use it does not violate the Act.
The term “special master” is defined by the PLRA as “any person appointed by a Federal court pursuant to Rule 53 of the Federal Rules of Civil Procedure or рursuant to any inherent power of the court to exercise the powers of a master, regardless of the title or description given by the court.”
The powers of special masters, who are quasi-judicial officers, are set forth generally in
The OCC s functions are quite different from those of a Rule 53 special master. The OCC was not appointed to hold hearings, subpoena witnesses, take testimony, or rule upon evidence. It does not prepare reports to assist in the court s determination of discrete issues of law or fact, and its factual findings are not legally entitled to deference. The OCC s reports, which are neither formally filed in the court s docket nor adopted, modified, or rejected by the court, serve a different function from the typical report of a special master. Besides informing the court of ongoing compliance efforts, these reports facilitate the City s awareness of its compliance with remedial directives. In other words, the OCC serves a monitoring function; it does not exercise quasi-judicial power.11
The conclusion that Congress did not intend “special master” to refer to all court agents draws some support from the legislative history of the PLRA. This history is somewhat scant, in part because the PLRA was enacted as part of an omnibus appropriations bill. See 142 Cong. Rec. S 2292, 2296 (1996) (Sen.Kennedy) (lamenting fact that PLRA was subject to a single Judiciary Committee hearing, not resulting in a report). Congress s contemplation of a predecessor bill to the PLRA, introduced but not passed in the House of Representatives, is instructive. This bill, entitled Stop Turning Out Prisoners (“STOP“), expressly provided that in prison conditions litigation, “any special master or monitor shall be a United States magistrate and shall make proposed findings on the record on complicated factual issues submitted to that special master or monitor by the court, but shall have no other function.” H.R. 667 § 301, proposed new section
If enacted, STOP would have done precisely what the City argues the PLRA does: bar the use of monitors in prison conditions litigation. But, in light of STOP s express prohibition of the use of monitors, to draw the conclusion that the PLRA meant silently to prohibit their use would show infidelity to what we know of Congress s intentions. Well-settled principles of statutory construction dictate that “[w]here Congress includes limiting language in an earlier version of a bill but deletes it prior to enactment, it may be presumed that the limitаtion was not intended.” Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (citing Arizona v. California, 373 U.S. 546, 580-81, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963)). The Supreme Court has instructed that “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (citations and internal quotation omitted). Congress s contemplation of STOP indicates its awareness of the distinction between quasi-judicial court agents appointed to undertake the activities of a master, as generally outlined in Rule 53, and monitors employed by courts to assist in compliance with remedial orders.
To be sure, one gathers from certain statements of the PLRA s sponsors that they were motivated in pаrt by a perceived over-involvement of federal courts in the remedial aspects of prison conditions litigation. See, e.g., 146 Cong. Rec. S 14611, 14626 (1995) (Sen.Dole) (bemoaning the activities of “liberal Federal judges who see violations of constitutional rights in every prison complaint and who have used these complaints to micromanage State and local prison systems“). One could extrapolate from this concern a desire to limit, perhaps entirely to prohibit, the use of court-appointed monitors. But we must ultimately look to Congress s text, not to concerns it did not address in the relevant statutory language. This task leads us to conclude that
C. Temporal reach
We also agree with the district court that, even if the OCC were a special master under the PLRA, it still would not be subject to
Finally, even if the temporal reach of
For these reasons, we conclude that the OCC is not subject to
D. Is OCC “prospective relief“?
A final question concerning the OCC remains: whether it is “prospective relief” subject to the need-narrowness-intrusiveness test of
Fortunately, we need not resolve this question because the district court made the appropriate need-narrowness-intrusiveness findings. It found that
the nearly twenty year history of incomplete compliance with the consent decrees amply attests to the need for external monitoring, and that the April 26 Order (1) directs OCC to monitor only those conditions which this Court found to constitute “current and ongoing” violations in the environmental conditions opinions, (2) reduces the scope of OCC s monitoring from previous orders in recognition of the remedial work defendants have completed, and (3) provides OCC with limited resources that are sufficient only to carry out its narrоw range of activities.
Benjamin VIII, 156 F.Supp.2d at 343.
The court also expressed its “view [] that a more robust OCC would substantially compress the time it takes to correct the constitutional violations, release this Court from its role and provide minimal standards for thousands of detainees,” but “with an eye to the PLRA and in the interest of minimizing the burden on defendants,” the court preserved the OCC s limited role. Id.
III. Continuing Prospective Relief
The district court found constitutional violations in the areas of ventilation, sanitation, lighting, and heating. It ordered a variety of relief, which, in accordance with the PLRA s requirements, it found necessary, narrowly drawn, and the least intrusive means of correcting the violations. In this section, we consider the City s challenges to these findings and to the corresponding relief. In certain instances, findings and relief sought by the detainees in other areas were denied. In the following section, we consider their challenges to those findings.
A. Legal standard
As the district court correctly concluded, the detainees challenges to the environmental conditions of their confinement are properly reviewed under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishment Clause of the Eighth. See Benjamin VI, 161 F.Supp.2d at 156 (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). This is because “[a] person lawfully committed to pretrial detention has not been adjudged guilty of any crime,” Bell, 441 U.S. at 536, and thus, under the Due Process Clause, may not be punished in any manner-neither cruelly and unusually nor otherwise. See id. at 535. Accordingly, courts considering challenges by pretrial detainees must initially consider whether the challenged conditions are punitive. Id. Because restraint is always necessary in effectuating confinement, not every uncomfortable or disabling condition and restriction can be considered punitive. See id. at 537.16
But because this punitiveness inquiry focuses principally on the purpose of an imposed disability, it is of limited utility when evaluating the environmental challenges to prison conditions at issue in this case, which, for the most part, were not affirmatively imposed. Consequently:
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upоn it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs \xe2\x80\x94 e.g., food, clothing, shelter, medical care, and reasonable safety \xe2\x80\x94 it transgresses the substantive limits on state action set by the ... Due Process Clause.
DeShaney v. Winnebago County Dep t of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (citation omitted). See also County of Sacramento v. Lewis, 523 U.S. 833, 851-852, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); Youngberg v. Romeo, 457 U.S. 307, 319-325, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982).
The Due Process Clause obliges states to consider the welfare of pretrial inmates since, “in the custodial situation of a prison, forethought about an inmate s welfare is not only feasible but obligatory.” County of Sacramento, 523 U.S. at 851. For this reason, although a pretrial inmate mounting a constitutional challenge to environmental conditions must show deliberate indifference, it may generally be presumed from an absence of reasonable care.
[L]iability for deliberate indifference to inmate welfare rests upon the luxury enjoyed by prison officials of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.
B. The City s claims of error
1. Deliberate indifference
The City asserts that, assuming arguendo that the detainees have been deprived of constitutional rights, the district court erred in finding deliberate indifference. This finding was primarily based on the City s failure to remedy serious violations to which it had long been alerted:
[T]he Consent Decrees have been in place for more than a generation, and accordingly, the Department, qua Department cannot demonstrate that it did not have actual knowledge of any conditions which are unconstitutional from an objective standpoint. The deficiencies shown at trial are largely the continuations of deficiencies that have been known, obvious, and commented upon by the [OCC] and plaintiffs counsel for years, ... and that have been the subject of further court orders between the entry of the Consent decrees and the present proceedings.
Benjamin VI, 161 F.Supp.2d at 159.
The City, citing its good-faith compliance efforts, asserts that the detainees failed to demonstrate a “wanton disregard of their rights.” (Def. Br. at 26). By this argument, the City attempts to impose upon the detainees the burden of making a showing of deliberate indifference under the Eighth Amendment, a showing that does require demonstrating wantonness or, more specifically, that officials knew of and disregarded an excessive risk to inmate health or safety. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). But this requirement is unique to Eighth Amendment claims, stemming from that amendment s prohibition of cruel and unusual punishments-as opposed to cruel and unusual conditions. See id. at 837-38. The analysis of a claim brought by an individual who may not be punished at all is different, beginning instead from the premise of a state s obligation to take some responsibility for the safety of those involuntarily committed to its custody. As discussed above, in a challenge by pretrial detainees asserting a protracted failure to provide safe prison conditions, the deliberate indifference standard does not require the detainees to show anything more than actual or imminent substantial harm.18
Nor do the City s compliance efforts, some more effective than others, prevent its liability. The district court found that the ongoing constitutional violations were, for the most part, “continuations of deficiencies that have been known, obvious, and commented upon ... for years” and that the City s remedial efforts were largely ineffective. Benjamin VI, 161 F.Supp.2d at 159. Giving appropriate deference to the district cоurt, which has overseen these efforts for over twenty years, we see no reason to disturb either conclusion.
2. Unconstitutionality findings
In finding constitutionally inadequate ventilation at eleven facilities,19 the district court noted, among other things, the presence of large numbers of inoperable windows, clogged or dirty ventilation registers and exhaust vents in showers and cells, and poor air quality. It then made specific findings concerning the threatened and actual health hazards resulting from these conditions. Benjamin VI, 161 F.Supp.2d at 162-65. In finding constitutionally inadequate lighting at nine facilities,20 the district court found, among other things, that inmates on occasion were left with inoperable lights in their cells for days on end, see id. at 183, and that in somе cells where the lighting fixtures did work, the light emitted was barely discernible, see id. at 184.21 In finding inadequate heat and extreme temperatures at ten facilities,22 the court noted that the evidence of extreme temperatures, including no heat at all at times during the winter, was essentially uncontroverted. Id. at 170. In view of these factual findings, we affirm the district court s legal conclusion that inadequate ventilation, lighting, and exposure to extremes of temperature violated the detainees constitutional rights.
3. Remedies
The City more strenuously, and somewhat more persuasively, contests several elements of the prospective relief ordered by the court. As discussed, under the PLRA prospective relief may continue only if the court makes need-narrowness-intrusiveness findings. See
a. Bed-spacing requirement
Of the numerous remedies ordered by the court to correct inadequate ventilation, the City primarily challenges the requirement that all inmate beds be spaced so that heads are at least six feet apart while the inmates are sleeping. (See Apr. 26, 2001 Order at 12). It contends that this requirement “is not supported by law or fact, nor justified by any empirical scientific data,” and that, moreover, implementing it “will entail a significant loss of bed capacity,” which could threaten inmate safety. (Def. Rep. Br. at 36-37). Because most of the beds in the facilities are placed less than three feet apart and are bolted to the floor, complying with the order would, the City asserts, require significant and costly changes in the facilities dormitory housing that are neither warranted nor practical. (See id. at 37-39).
We agree with the City that this remedy fails the PLRA s need-narrowness-intrusiveness test. There is no constitutional requirement that pretrial detainees have six feet of breathing room. Assuming it could be demonstrated that forcing a detainee to sleep too close to another violated due process, this demonstration would require a showing of actual or imminent substantial harm. See Lewis, 518 U.S. at 350. Since our review of the record generates no evidence of actual harm and insufficient evidence on which to conclude that harm, of some substantial extent, was imminent, we vacate this aspect of the district court s order of prospective relief.
b. Operational windows
The City also contests as overly broad and burdensome the court s requirement that all windows designed to be opened must be operational. Contending that under the PLRA the district court was obliged to consider the utility of each window individually, the City observes:
The effeсt of a window defect depends upon the nature and degree of the defect, and the nature of the housing area, as well as the outside temperature. For example, a single window in a dayroom or modular unit that is stuck open a crack in mild weather, or one window that will not open among many windows that are operational in a particular area, will not cause unconstitutional conditions in that area. (Def. Br. at 48).
But it is ironic that the City, which strenuously opposes the OCC s continued participation, invokes the PLRA, which was intended in part to prevent judicial micro-management, in support of the proposition that the district court was required to examine every window. We agree with the district court that a comprehensive repair program would be more effective and less intrusive than an individual review of each window at the various facilities. See Benjamin VIII, 156 F.Supp.2d at 350. Although the PLRA s requirement that relief be “narrowly drawn” and “necessary” to correct the violation might at first glance seem to equate permissible remedies with constitutional minimums, a remedy may require more than the bare minimum the Constitution would permit and yet still be necessary and narrowly drawn to correct thе violation. Given the impracticability of the court examining each window, ordering comprehensive repairs was a necessary and narrowly drawn means of effectuating relief-even though the Constitution would certainly permit a broken window or two.23
c. Heating-system certification
d. Lighting requirement
To remedy unconstitutional lighting conditions, the court ordered, among other things, that at least twenty foot-candles of light be provided in all cells and dormitory housing areas. (See Apr. 26, 2001 Order at 14). The City objects that this remedy is (1) overbroad, because ten foot-candles of light is sufficient; (2) unnecessary, because some inmates prefer dimmer lights; and (3) overly intrusive, because the deadline for compliance is unreasonable.
There is a troubling ambiguity in the district court s award of this remedy. Although noting that it considered the DOC s ten foot-candle standard “inadequa[te],” the court s ultimate finding of unconstitutionality seems to have rested not simply on this standard, but on the inadequacy of the lighting actually provided. Benjamin VI, 161 F.Supp.2d at 182. The district court found this inadequacy, and we affirm, based on its findings of: (1) non-working light fixtures; (2) inadequate light-bulb wattage; and (3) obstructed luminary covers. See id. In a subsequent order, however, the court again stated that it had found the ten foot-cаndle lighting standard itself “constitutionally inadequate.” Benjamin VIII, 156 F.Supp.2d at 352. The parties focus on this finding on appeal and dispute whether the standard is constitutional.
From our review of the record, we cannot be sure whether the need-narrowness-intrusiveness findings concerning the twenty foot-candle remedy were made because of the actual lighting conditions in the facilities, or because of the court s belief that the ten foot-candle standard violates the Constitution. The latter course would have been impermissible, as the Constitution does not mandate any particular foot-candle standard; it only places outside limits on actual lighting conditions.
We, therefore, vacate the court s twenty foot-candle requirement. On remand, the court should consider whether this requirement meets the PLRA s need-narrowness-intrusiveness findings in view of the actual conditions at the facilities. In making this determination, the court should consider the apparently significant lighting improvements the City has made since its most recent order. (See Def. Br. at 44-46 (discussing improvements)).
e. Power washing
The district court found, and the City does not contest, unconstitutionally unsanitary conditions in various areas of the facilities. As one remedy, the court ordered that all showers be power washed with bleach quarterly. The City contends that this requirement will damage its newly renovated grouted-tile showers. It also contends that other remedial directives, such as the requirement that showers be “thoroughly cleaned and sanitized at least once daily,” are sufficient to keep the showers in sanitary condition. (Apr. 26, 2001 Order at 8).
IV. Termination of Prospective Relief
The district court concluded that certain conditions, even if not ideal, did not amount to current and ongoing constitutional violations and terminated prospective relief. The detainees appeal from three of these conclusions.
a. Scalding hot water
The detainees contend that the district court erroneously concluded that plumbing conditions at the facilities were within constitutional limits. In particular, they assert that they are exposed to scalding hot water in showers and sinks, which presents an unconstitutional threat to their safety. The district court rejected this contention, finding that although some showers did provide water that was either too hot or too cold, this problem was insufficiently pervasive to amount to a constitutional violation. Since our review of the record supports the conclusion that such problems were isolated, we affirm the district court s finding that the plumbing conditions are not unconstitutional.
b. Sanitation in food areas
The district court found that sanitary practices regarding food storage and preparation were adequate. The detainees contend that the court s analysis was insufficiently specific and that, had it engaged in a facility-by-facility analysis, it would have found the practices constitutionally inadequate at three facilities: AMKC, ARDC, and GMDC. Conditions there allegedly exposed prisoners to “food contaminated by vermin, food contaminated by leaking refrigerator and freezer condensers, food contaminated by fecal contaminants due to inadequate hand washing practices, and food contaminated by dirty equipment and pooled water.” (Pl. Br. at 73).
Because the PLRA requires the court to make particular findings only when it identifies constitutional violations, it is to be expected that a court s discussion of conditions it finds not to violate the Constitution may be somewhat more cursory. But with respect to food-service sanitation, the court departed from its typical practice of considering individual institutions and, instead, considered them in the aggregate. After observing that both experts had noted numerous deficiencies at the institutions, the court stated that
only a few deficiencies could be classified as “critical” and they were confined to the kitchens and food storage areas of ARDC, AMKC, GMDC, GRVC, JATC, and QHD. The remainder of the Department s prisons did not register a single “critical” violation.
Benjamin VI, 161 F.Supp.2d at 174.
The record is replete with evidence of high levels of vermin activity in the food storage and service areas in the three facilities with which the detainees are primarily concerned, a problem which the City s own expert acknowledges. The record is also replete with evidence of other unsanitary conditions at other facilities. The district court appears to have placed great weight on Director Feeney s testimony that, in her eight years with the department, “not one pre-trial detainee has suffered a reportable incident of a food-borne illness.” Id. But this testimony was an insufficient basis on which to discount the uncontroverted evidence of serious sanitary problems in the food service areas at AMKC, ARDC, and GMDC. “[A] remedy for unsafe conditions need not await a tragic event.” Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). The court should have considered whether the conditions at these three facilities posed an imminent threat.25 Accordingly, we vacate its finding of no constitutional violation and remand for particularized findings concerning the food-service areas in AMKC, ARDC, and GMDC.
c. Vermin infestation in residential areas
Despite acknowledging significant vermin problems at AMKC, ARDC, BKHD, and GRVC, the court found “vermin infestation in the residential portion of the facility” only at AMKC. Benjamin VI, 161 F.Supp.2d at 173-74. But it found that the problem at AMKC was assuaged by the recent introduction of an Integrated Pest Management (“IPM“) Program. The detainees contend that the court s findings of no vermin infestation are unsupported by the record and that the court should not have considered the IPM Program, since it was unclear whether it would be properly implemented.
Although the detainees are correct that, when considering whether to terminate relief, courts should generally assess “a record reflecting conditions as of the time termination is sought,” Benjamin III, 172 F.3d at 166, this record may include “bona fide steps that prison officials are taking to аlleviate poor prison conditions,” Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982). See also Helling, 509 U.S. at 36-37 (noting that voluntary remedial steps may bear on deliberate indifference inquiry). The district court was convinced that the implementation of the IPM Program obviated a finding that a constitutional violation was present at AMKC, and we see no reason to disturb this conclusion. Moreover, we believe the record supports the court s conclusion that vermin activity was not present to an unconstitutional extent at any of the facilities.
CONCLUSION
Notes
If the monitor is a court officer designated a “master,” the court may treat its reports with the deference due master s reports, accepting the findings of fact “unless clearly errоneous.” But a monitor s activities are so unlike those of a rule 53 master that the court should not do so. Monitoring rarely, if ever, proceeds by the quasi-judicial hearings envisaged by rule 53.
“Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.”Bell, 441 U.S. at 537-38 (quoting Mendoza-Martinez, 372 U.S. at 168-69).