MEMORANDUM DECISION AND ORDER
This matter is before the Court by reason of objections, from both sides, to the *137 Report and Recommendation of U.S. Magistrate Phyllis Halsey Atkins. That Report was made after a hearing on the defendants’ motion for partial summary judgment in this civil rights class action concerning conditions at the Washoe County Jail.
Pretrial Detention and Bail
The Magistrate recommends that summary judgment be granted as to the practice in setting bail or allowing release on a defendant’s own recognizance. The plaintiffs contend that the Sheriff’s Department is still exercising “gut feeling” discretion as to the release of alleged misdemeаnants, despite a 1981 amendment to Nevada Revised Statutes that makes this solely a judicial function. The basis for Magistrate Atkins’ recommendation was the failure of the plaintiffs to submit any affidavits or other evidence showing violation of the amended statutes.
An affidavit accompanied the plaintiffs’ objections to the Magistrate’s Report and Recommendation, however. The affiant is a law clerk of the plaintiffs’ counsel. She details an interview with a sergeant in the Sheriff’s Department. The sergeant reportedly indicated to the affiant that the “gut feeling” of the booking officer remains the foremost criterion in determining whether an arrestee will be released on his own recognizance.
Said affidavit having been submitted subsequent to the Magistrate’s report, she had no opportunity to consider it. (It appears that the sergeant’s statements could be admissible under F.R.Ev. 801(d)(2)). The affidavit could be stricken as untimely.
See Wood v. Santa Barbara Chamber of Commerce, Inc.,
Contact Visits
The Magistrate recommends denial of the defendants’ motion for partial summary judgment as to the restrictions on contact visits. She feels that the defendants have failed to present evidence that the restrictions are reasonably rеlated to a legitimate penological purpose.
The defendants point out that one of its jail officer witnesses testified that contact visitation creates a significant security danger of the smuggling of contraband and weapons into the jail. They further argue that the reasonable relationship standard is inapplicable because contact visits are not a constitutional right.
In
Rutherford v. Pitchess,
Thus, the Supreme Court seems to feel that contact visitation involves Fourteenth Amendment rights, but that those rights are not violated where, as here, the jail administrators determine that such visits constitute a threat to security.
Pretrial detainees may not be punished to any extent, by reason of the protection of the Fourteenth Amendment, whereas convicted prisoners may be held under punitive conditions so long as the Eighth Amendment is not violated.
Fischer v. Winter,
Thе Court rejects the recommendation of the Magistrate, and holds that the defendants are entitled to partial summary judgment on the issue of contact visitation.
Telephone Use
It has been recommended by the Magistrate that partial summary judgment be granted the defendants on the issue of restrictions on teleрhone use. The defendants provided authority that there is no constitutional right to telephone communication; since the plaintiffs did not cite authority to the contrary, Magistrate Atkins feels the defendants’ motion should be granted.
Affidavits presented by the plaintiffs indicate that detainees are allowed only infrequent (e.g., once a week) use of the telephone, sometimes at hours when the person to be called wouldn’t be available. Also, if the jail staff is overwhelmed with other work, there could be a two-week delay in receiving a call. By comparison, the plaintiffs сlaim that inmates of the State’s penitentiaries are provided with regular, systematic access to telephones.
Ofttimes use of a telephone is essential for a pretrial detainee to contact a lawyer, bail bondsman or other person in order to prepare his case or otherwise exercise his rights. There are instances where the family of a detainee or inmate may live so far away from Washoe County as to make personal visitation impractical. The better view appears to be that there is no legitimate governmental purpose to be attained by not allowing reasonable access to the telephone, and that such use is protected by the First Amendment.
See Brenneman v. Madigan,
The defendants are not entitled to judgment as a matter of law on the issue of telephone use, therefore the Magistrate’s recommendation that they be granted partial summary judgment is rejected.
Opening of Mail
The affidavits submitted by the plaintiffs have caused the Magistrate to recommend denial of the defendants’ motion as to treatment of mail. For the purpose of eliminating the issue, the defendants are willing to stipulate that violations of their own regulations have occurred and that they will not happen again.
Under such circumstances the defendants are not entitled to partial summary judgment on this issue, therefore the Court accepts Magistrate Atkins’ recommendation of denial of the defendants’ motion.
Library Facilities
The Magistratе has recommended denial of the defendants’ motion as to legal assistance for inmates who are involved in or wish to commence civil litigation. The defendants object to this recommendation, on the ground that the jail staff will secure, from the County law library, books requested by inmates wishing to represent themselves without questioning whether criminal or civil litigation is involved. Further, the defendants argue that civil cases are not comprehended by the rule as to legal assistance for inmates involved in criminal cases.
It is unrealistic to expect a lay person to know the speсific law books he will need to research a legal problem, so that he might request them from a guard.
Martino v. Carey,
The Court accepts the recommendation that the defendants’ motion be denied as to access to legal materials in civil matters. *139 Educational, Vocational and Voluntary Work Programs.
It is the recommendation of the Magistrate that the defendants’ motion for partial summary judgment as to educational, vocational and voluntary work programs be granted. She has found that there is no constitutional right to such programs. The plaintiffs contend that the adverse effect on rehabilitation and the increased violence engendered by forced idleness can amount to a violation of the Eighth Amendment.
Case law supports the Magistrate’s recommendation. There is no constitutional right to rehabilitation; idleness and a lack of programs do not violate the Constitution.
Hoptowit v. Ray,
The Court accepts Magistrate Atkins’ recommendation that partial summary judgment be granted the defendants as to this issue.
Training of Personnel
The plaintiffs have asked that a plan be submitted that would assure that the jail would be adequately staffed and properly trained tо the standards of the American Correctional Society. Magistrate Atkins has recommended that the defendants’ motion be granted as to this issue, for
Hoptowit v. Ray, supra
at 1251, declares that it is impermissible for courts to become involved in the minutiae of recruitment and training programs. The plaintiffs point out that laсk of proper training may well result in the jail staff violating constitutional standards. There are cases that support the plaintiffs’ position. It has been held that negligence in hiring, training and supervising law enforcement officers creates a foreseeable risk that violation of citizens’ civil rights may occur, providing a basis for holding the governmental entity liable under 42 U.S.C. § 1983.
Hirst v. Gertzen,
The Court, therefore, accepts Mаgistrate Atkins’ recommendation that partial summary judgment be granted the defendants as to the training of personnel.
Personal Property
The Magistrate recommends granting the defendants’ motion as to the limitation of the kinds of personal property pretrial detainees may keep in their cells. She found no constitutional right to have personal property in one’s cell. The plaintiffs argue that no purpose for the restriction has been shown, thus a genuine issue of material fact remains.
The jail officials’ need to maintain security and order allows reasonable restrictions on the property rights of those who are confined there.
See McCrae v. Hankins,
Although pretrial detainees have not yet been convicted, this does not meаn that they do not present a threat to security. In
Block v. Rutherford,
— U.S. -, -,
*140 The Court accepts the Magistrate’s recommendation as to the issue of what personal property may be kept in a cell.
Fire Safety
Magistrate Atkins recommends denial of the defendants’ motion as to fire safety. She stated that even after accepting as true all the evidence on the issue presented by the defendants she is unable to say as a matter of law or fact that the inmates and detainees at the Washoe County Jail are free from a life-threatening situation.
In objeсtion, the defendants point out that testimony and affidavits reflect the following: The jail is constructed of noncombustible concrete and steel; the jail has a trained and experienced fire safety officer; the mattresses, bedding and pillows are fire retardant; there are no flammable wall coverings; jail personnel are trained in the use of fire-fighting equipment; there is a formal evacuation plan; and there have been only three fires at the jail, all set by inmates, and all were immediately extinguished without injury to anyone.
The plaintiffs have not presented any evidenсe from which it could be inferred that the jail is a death trap in case of fire.
Cf Leeds v. Watson,
The recommendation of the Magistrate that the motion of the defendants for partial summary judgment be denied on the issue of fire safety is rejected.
Unsanitary Conditions and the Physical Plant
Magistrate Atkins has recommended denial of the defendants’ motion as to unsanitary living conditions, on the ground that a genuine issue of material fact remains.
The defendants object on the ground that they have presented evidence that shows that any deficiencies do not rise to the level of constitutional deprivations. A review оf the record reveals that the plaintiffs have not supported their complaint with probative evidence.
As to the convicted inmates, the Eighth Amendment protects from conditions which amount to an unnecessary and wanton infliction of pain. Hoptowit v. Ray, supra at 1256. The Fourteenth Amendment protects pretrial detainees from conditions which serve no legitimate purpose but inflict misery on them, thereby punishing them. Martino v. Carey, supra at 994. When sanitary conditions are in question, the test is whether substandard sanitation endangers the health of the jail occupants. Id. at 1000. Again, the defendants’ evidence has established the . ion-existence of a triable issue of fact, whereas the plaintiffs’ evidence does not support any contention of constitutional deprivation.
The recommendation of the Magistrate that the defendants’ motion as to unsanitary conditions be denied is rejected.
The Court aсcepts all the recommendations and findings of Magistrate Atkins not objected to by the parties.
IT IS, THEREFORE, HEREBY ORDERED that the defendants’ motion for a partial summary judgment be GRANTED as to the following issues:
a) Contact visits;
b) Reading materials;
c) Educational, vocational and voluntary work programs;
d) Training of personnel;
*141 e) Personal property;
f) Fire safety; and
g) Unsanitary conditions and physical plant.
IT IS FURTHER ORDERED that the defendants’ motion for a partial summary judgment be DENIED as to the following issues:
a) Food preparation and service;
b) Telephone use;
c) Opening of mail;
d) Access to legal materials; and
e) Recreation and exercise.
IT IS FURTHER ORDERED that this matter be remanded to the U.S. Magistrate for reconsideration of the issue of pretrial detention and bail in the light of the affidavit of the law clerk of the plaintiffs’ counsel.