*1
plaintiffs
230,
at 2866. The
106 S.Ct.
the Executive
claim
cases
PRISONERS OF
DISTRICT
in both
WOMEN
agreement
Branch,
to an executive
pursuant
DEPARTMENT OF
COLUMBIA
OF
nation,
congression-
violated a
foreign
CORRECTIONS,
al., Appellees,
with a
et
interpretation
al
statute.10
v.
212(d)(5)(A)
the INA is well within
§
COLUMBIA,
DISTRICT OF
expertise.
judicial
area
al., Appellants.
et
only
complaint raises
stat
FAIR’S
Because
95-7041,
Nos.
95-7205.
“judicially
discov
utory questions, there
for resolv
manageable standards
erable
Appeals,
United States Court
217,
Baker,
it,”
power over the admission in the narrow con is reflected States
United power of their own courts
struction discretionary of the At decisions
review the authority pursuant
torney made General by Congress.” her] him
delegated [or (2d 204, Sava, v. 684 F.2d
Bertrand Nelson,
Cir.1982); v. 727 F.2d see also Jean Cir.1984) (en (11th banc), 976-77 aff'd 472 U.S. grounds,
other (1985). though But “the even
86 L.Ed.2d
Attorney has broad discretion General deny parole,” that discretion “is not
grant or Karn, 746 F.2d Moret
unlimited.” Cir.1984). (3d Therefore, FAIR’S com non-justiciable present any
plaint does
political questions. I and remand
Accordingly, would reverse court. to the district
the case goes; any- distinguish Japan political question attempt as the doctrine if 10. The defendants plaintiffs Whaling ground thing, in that on the of the relief that the less intrusive nature mandamus, sought whereas FAIR case a writ of problemat- even less FAIR seeks makes its claims injunction prohibitory under the APA. seeks ic. significance, This is a distinction without as far *2 9H *3 Schwab, Corporation Edward E. Assistant Reischel, Counsel, L. with whom Charles Counsel, Deputy Corporation and Garland Pinkston, Jr., Corporation Principal Deputy Counsel, briefs, argued were on the the cause Prager, appellants. Lutz A. Assistant Counsel, Deputy Corporation ap- entered an pearance. Nickles, DC, Washington,
Peter J. Brown, Thomas, Tracy whom M. A. Caroline brief, Smith, on the and Brenda V. were argued appellees. the cause for BUCKLEY, SILBERMAN, Before ROGERS, Judges. Circuit Opinion year; the court filed Circuit than a all such offenders were sent to Judge BUCKLEY. penitentiaries federal throughout scattered country. The District has since assumed ROGERS, Opinion Judge filed Circuit custody women, of such and it now houses part concurring dissenting part. them in three facilities: the Lorton Minimum BUCKLEY, Judge: Circuit Security (“Annex”), Annex the Correctional ease, appellants In this raise number of (“CTF”), Facility Treatment and the Central challenges judgment to district court order- (“Jail”). Facility Detention The first of these ing improve them to conditions at various Lorton, facilities is located in Virginia; (“District” “D.C.”) District of Columbia latter two in the District. imprisoned. facilities in which women are *4 Annex, The which is situated on the existing The district court found that grounds Security men’s Minimum Fa- following statutory conditions violated the (“Minimum”), cility largely consists of a (1) few provisions: and constitutional D.C.Code military converted barracks that serve as 24-442, § remedy which creates a tort dormitories. (2) The women in officials; the Annex are negligence by prison IX, Title (“Title specified escorted Minimum at IX”), times to Education Amendments of 1972 attend academic seq., 1681 et gymna- § courses and requires 20 U.S.C. which use the re- 1994, cipients January sium. As of provide of federal aid to men and there were 936 equal women with pro- access to educational men at Minimum and 167 women at (3) activities; grams equal protection action, Annex. In this class the female in- guarantee of the Fourteenth Amendment of mates at challenges the Annex raise involv- Constitution, the United applied States ing misconduct, sexual general living their Amendment; through the District the Fifth conditions, and discrimination in access to (4) Eighth the Constitution’s Amend- academic, vocational, work, recreational, and guarantee against ment cruel and unusual religious programs on the basis of their sex. punishment. provided The medical care to female inmates governed by separate the Annex is con-
The provisions court’s order contains relat- sent decree. harassment; ing to sexual obstetrical and care; academic, gynecological vocational, designed diagnos- CTF was as an 800-bed
work, recreational, religious programs; tic and treatment center for offenders with general conditions; living safety. and fire special 1992, however, early needs. In (1) We hold that the district court abused its part District facility converted of CTF into a in exercising supplemental juris- discretion that, 1994, January general as of housed diction arising over claims under D.C.Code population, medium-custody female inmates. (2) 24-442, § equal protection Title IX and action, In this class the female inmates at principles applicable are not here because present challenges involving sexual mis- the male and female whom the conduct, conditions, general living their compared district court similarly were not quality gynecological of their obstetrical and situated, (3) provisions certain care, and discrimination in access to aca- district court’s order broader relief demic, vocational, work, and recreational necessary than remedy the violations of grams on the basis of their sex. Eighth addition, In Amendment. we re- mand the ease to the district court to deter- security The Jail is a maximum medium to portions mine whether other of its order are facility. January correctional As of it recently inconsistent with the enacted Prison housed 168 female inmates who were either Litigation Reform Act. awaiting sentencing trial or or who were action, sentenced misdemeanants. I. BACKGROUND the inmates at the Jail have limited then- A. The Facilities challenges allegations of sexual miscon- recently, Until regulated the District maintained no duct. Medical care the Jail is facility serving by separate for women sentences of more consent order. the Dis- Women Prisoners History Order. B. Procedural Dep’t v. trict Columbia Corrections action was filed in this class complaint Columbia, District of (“appellees”), The class on October (D.D.C.1995) (‘Women II”). Prisoners inmates at of the female comprised order that modi- court also issued a second Jail, CTF, Annex, was certified paragraphs of the Order and vacated fied 23 The defendants include objection. without at 677-79. six others. Id. Depart- District, of Columbia the District (“Department” Corrections
ment of Opinions The District Court’s C. “DCDC”), of Columbia General District Commission, District and numerous Hospital findings 1. Factual (collec- officials, capacities their official all in Jail, (a) at the Sexual Harassment tively, “appellants”). CTF, and the Annex trial, the district Following three-week a half female inmates testified About dozen opinion on December court issued sexually trial that had been assaulted multiple it violations in which found See, e.g., testimony of prison guards. law. Women Prisoners and local federal (“Tr.”) W, Transcript Doe Trial at Vol- Jane Dep’t Corrections Columbia District (Tr. (“1-36”), Q page Jane Doe ume *5 Columbia, F.Supp. District of (Tr. 1-100), 1-74), at Jane Jane Doe OOO V). (D.D.C.1994) (“Women Prisoners On (Tr. (Tr. IV-66), at Jane Doe RR at Doe Five an day, the court issued order the same VI-124) (Tr. VII-64). Z and Jane Doe at of instructions consisting paragraphs from this testi- The district court concluded (“Order”) intended to correct the that were mony “many that there had been incidents The defendants Id. at 679-90. violations. prison employees sexual misconduct between district court subsequently moved prisoners in all three of the wom- and female stay its enforcement. amend Order in ens’ facilities this case.” Women [sic] the motion amend its The court denied F.Supp. at 639. The court Prisoners stay entirety, the motion to ex- and denied ranged of misconduct found the level paragraphs four Order. cept as to inappropriate from remarks to invasions of 2, 1995, the District filed a March On privacy to violent sexual assaults. Id. at stay pending appeal to this motion for a 639-40. that the case be held in We ordered court. court, According to the one of the “most proceedings in abeyance pending additional disturbing” aspects of this misconduct was appellants’ motion to court on
the district inadequacy response of the Defendants’ “the stay. the District Prisoners Women to these attacks.” Id. at 639. The court Dep’t Corrections District Columbia adopted had found that while the DCDC (D.C.Cir. Columbia, Apr. No. 95-7041 policies procedures designed to address 1995). misconduct, policies various “[t]hese sexual remand, filed a revised the District procedures On are of little value because the modify judgment. stay [Department] problem motion to of sex- address[es] and/or parties’ briefs and oral After review ual with no harassment of female temporarily argument, the district specific training, reporting staff inconsistent stayed thirty paragraphs and ordered the practices, cursory investigations and timid (internal attempt negotiate agreement parties to at 640 citation sanctions.” Id. omitted). concerning paragraphs. parties those agreement as to 26 of eventually reached (b) jointly moved the court to
paragraphs Gynecological Obstetrical and amend the Order. at Care August the district court is- The district court found that the District
On provided inadequate opinion supple-, which it had women’s medical sued second care, opin- specifically concluding that the care legal mented the conclusions of the first following stay provided ion and them was deficient appellants’ denied motion for examination, testing Id. at 654- people living facility. at gynecological areas: diseases, care, sexually follow-up transmitted education, prenatal care and edu-
health Id. at The court was also cation. 643-48. (d) Programs appellants’ physical use of concerned about The district court found that in- female pregnant inmates when restraints on mates at CTF and the Annex did not have Id. transported hospital. at were 646- educational, vocational, work, access to recre- ational, religious programs equal those made available the District to simi- (c) Physical Conditions of Confinement Id. at larly 656-62, situated men. 677-78. conclusion, problems reaching The district court also found the court com- physical buildings pared programs condition of the offered to the women facility CTF. The court observed that with those available to men facilities that levels, originally custody had been constructed as a treat- had “similar sentence struc- special Id. purposes ment center for inmates with needs. tures and of incarceration” II, Id. at 648-49. 675; buildings Prisoners Its were connected walkways Specifically, covered compared created a closed-in 670-71. the court setting designed only programs for controlled move- available to women at the Annex Id. The court concluded that CTF with those available to the men at Minimum; ment. flaws, including compared had several structural insuf- and it available to heating, malfunctioning ficient ventilation women at CTF with those available in- system, and defective Id. prisons: toilets. 649-60. mates at three men’s Occoquan Facility (“Occoquan”), Facility the Central The court found that the Annex inmates (“Central”), (“Medi- Facility and the Medium *6 military were in housed converted barracks I, um”). Women Prisoners at initially designed that were not for continued 656, 659, 675. residency, preventative that renovations and appellants agree maintenance have been either lax or non- ap- Because IX Title existent, plies and that the dormitories were inad- to the educational and vocational train- Id. at 651-52. The equately ing programs ventilated. offered inmates at District court prisons, only also found that the dormitories were we will summarize the court’s overcrowded, overcrowding findings that, and that this respect programs had with to those facilities, view, shortage sanitary created a in- in scope their he outside the of Title spreading creased the risk of IX. infectious dis-
eases, produced levels, high noise and creat- Work Details. The district court de- conditions. Id. filthy living ed “support scribed work details as duties need- Id. at 657. running jail.”
The court further found that fire hazards ed for the Annex, at participate existed both CTF and the Annex. The At the women could in a details, court following variety including identified the difficulties at of such work as sprinkler system inadequately receptionists, housekeepers, CTF: the was and librarians. maintained; CTF, Id. leakage water in At among occurred areas women could choose thir- details, building clerical, equipment including where electrical teen work house- seldom, ever, exposed; Id. keeping, culinary assignments. and fire drills were if at Annex, conducted. Id. at 653-54. At the found, however, 661. The court similar- safety ly found that the level of fire was situated male inmates had access better “grossly inadequate”: system programs its fire alarm and more than numerous the “ster- ones available to the women. Id. “antiquated,” way was eotypical” little was done (men training, participate of fire drills and staff at Minimum the dormito- at could electrical, quantities involving carpentry, ries contained excessive of com- details (men work); id. inadequate eompart- bustible at materials and mechanical at fire, participate mentalization to contain and there were Central could in such work as mechanics, enough bricklaying, welding). exits to accommodate the number industry quan, they had five and seven hours prison “A is a between Industries. Prison day, per depending on the sea- goods of recreation prison a where run out of business son. Id. and then sold to inmate labor produced with Id. at 657. At the agencies.” government at Annex had Religion. While women garment shop Annex, could work a women on a week- “Catholic and Protestant services Minimum, shop; at men could print and a Study Program,” ly and a Bible id. at basis landscape work. agriculture and engage in they did not the court concluded these found Id. The court religious access to the same activities held that the women at comparable and were (observ- at Minimum. Id. at 677-78 the men equal men at Minimum had Annex and religious Annex were ing that services at the programs. Id. at 677. to industrial access Minimum). frequent as those at not as only CTF, participate in one could At findings respect court made no to reli- “remotely” akin to a program that was gious programs at CTF. Because the men en- industry. Id. at 661. greater number of indus- joyed access to a Law 2. Conclusions of i.e., Medium, tries, Occoquan, two at at one Prisoners the district court id., Central, the court found that and ten following to be violations of federal found had been denied an the women at CTF (1) law: sexual harassment at the or D.C. in the area of “equivalent opportunity indus- CTF, Annex, (Eighth and the Jail Amend- Title IX. Id. at 678. tries” violation 1983), 665-67; § ment and 42 U.S.C. id. at (2) Annex, substandard medical care women had At the Recreation. (D.C.Code (3) 667-68; 24-442), § id. trailer which contains to “a recreation access pregnant (Eighth table, shackling of table, pool ping pong a exercise bikes 1983), § id. at Amendment and U.S.C. Fur- weight Id. at 658. and a machine.” (4) 668-69; “unconstitutionally intolerable thermore, escorted the women were twice injury by (Eighth Minimum, risk of fire” at the Annex areas at where to recreation week 1983), § and 42 id. at basketball, Amendment U.S.C. volleyball, play could (5) 669-70; inadequate safety fire measures court found that the men handball. Id. The (D.C.Code 24-442), 671-72; § at CTF id. at greater oppor- recreational had Minimum (6) living intolerable conditions at the Annex gymnasium they had access to a tunities: (Eighth and CTF Amendment and U.S.C. approximately six hours and ball field *7 (7) 1983), 670-71, 672; § at id. discrimination Monday through Friday, day, as well as for (Title IX), programs in to id. at 672- week; access nights three hours on several each 78. days they weight a trailer seven a could use
week; they participate variety could a and II, In Prisoners the district court Women sports, organized intramural team as well rejected appellants’ argument that it should Drama at as in a “Renaissance Class.” Id. juris- supplemental have declined to exercise 658, 677. diction over claims based on D.C.Code F.Supp. § 24-442. 899 at 665-68. The court CTF, participate in At women could sched- discrepancy also concluded that day, days for an hour a a uled recreation five programs to male in- available and female week, gymnasium and had access to for two IX, only mates violated not Title but also week; hours, days they three were able to equal protection principles applied as volleyball in a small out- play basketball and through the Due Clause of District Process area; part could take side and “low- the Fifth Amendment. Id. at 669-72. impact days a week for an horn- aerobics” two day. each The district court Id. at 661-62. D. District The Court’s Order greater opportu- far found that the men had Order, example, reported nities for For the men The which is at Women recreation. 679-90, engage F.Supp. play could cards or Prisoners as Central II, sports or other outdoor activities between 7 amended Women Prisoners 677-79, paragraphs p.m.; F.Supp. a.m. and 10 those at Medium could contains 132 day is to remain “in long”; “have recreation all at Occo- of detailed instructions and and ¶¶ years.” 44-45; care, provisions emergency 46; all for five effect with If and the ¶ (The originally Order contained 138 scheduling appointments 137. transpor- and the paragraphs, but six were vacated ¶¶ hospital, 49-50, tation of inmates to the as 677.) II. ¶ Prisoners Or- amended, 51. reprinted der and its amendments are as Program ¶¶ III. 63-101. Evaluation. Appendices opinion. A B to requires appellants Part III improve to parts, The Order consists of six of which academic, quality vocational, work, of the re- appeal: the first five are relevant to this creational, religious programs available ¶¶3-19. I. Sexual Harassment. to purpose female inmates. Its is to ensure provisions relating to sexual harassment are the women have access to the same First, they require multi-faceted. the DCDC opportunities that are avail- adopt regulation prohibits sexual similarly able to pris- situated atmen other harassment and invasions of female inmates’ ons. ¶¶ 3-4, privacy. regulation 7. This must regard programs, With to academic appel- provide allege that female inmates who sexu- lants are ordered to the women with subject al misconduct not be greater access to adult college- education and disciplinary “regardless action of the merits ¶¶ 68-69, 70-71, programs. level as amend- disposition underlying or the com- ¶ed, They 72. must also variety make a ¶ 7(c). Second, plaint.” autho- Order vocational, pre-vocational, and work Special rizes the district court’s Officer to ¶¶ grams 76-93, available to them. as investigate allegations of sexual misconduct requires amended. The appellants Order participate and to in the establishment of provide the women at CTF with 25 hours of ¶¶ 5, 6, penalties prohibited conduct. ¶ week, 96, per amended, recreation ¶¶ (in (in 8, 14, entirety) part). their those at the Annex with access to a recre- Third, requires Department comply it day, days ation trailer “8 hours a a week.” Procedure, with its own Inmate Grievance ¶ Appellants “improve 98. must also the An- which establishes the mechanisms grounds by court, nex adding a basketball may report by prison inmates misconduct ¶ volleyball pit, and outdoor tables.” Fi- ¶ addition, guards. the Order directs nally, appellants provide chaplaincy must appellants employ “trainers” to instruct week, days service to female inmates five jailers Department’s inmates and about the including “evening during hours the week to policies regulations regarding sexual working those accommodate on de- heighten harassment and to their awareness ¶ tails, industry, community.” or in the ¶¶ 17-18, problem. as amended. Gynecological ¶¶ II. Obstetrical IV. Environmental 102- Health. ¶¶ Among many 20-62. things, Appellants required improve other en- Care. paragraphs require these appellants to hire a vironmental health at CTF and the Annex in *8 variety ways. outset, half-time health educator with they obstetrical and At the are gynecological training provide to clinical and ordered to limit im- the number of women ¶ ¶20, population, prisoned health services to the CTF the Annex to 135. as amended; modify screening They as the intake repair amended. are also directed to ¶ roofs, 103; special inquiry dormitory inmates and make provide about then- the Annex’s contraceptives history sexually use of and each inmate with “at least one vertical locker ¶ ¶ diseases, 24; footlocker,” 105; adopt transmitted written “replace and one all torn ¶ “protocols” regard gynecological 106; pillows,” mattresses and lin- “use cart problems preg- and the use of disposable laundry bags restraints on ers or or washable ¶ women, ¶¶28, 35, postpartum 107; nant transport laundry,” provide and as and amended; develop protocol and a written each double-bunk with “a minimum of 20 ¶ care, governing prenatal provi- prisoner-controlled light.” Other footcandles of ¶ CTF, recording sions concern such matters respect appellants as the 108. With are ¶ statistics, 23; pregnancy-related Pap required improve heating its and ventila- ¶¶ ¶¶ smears, 30, 32; tion, 116-17, coverage, medical staff and to “monitor the food ID I—‘ n foods, Eighth delivery times of all which the court found to violate the and
temperature ¶ meals.” including special diet Amendment. Safety. ¶¶ An- 125-136. At the Fire V. Program ¶¶ III. Evaluation. 63-101. nex, required to and are install appellants paragraphs These are based on alternative detection, alarm, sprin- fire and fire maintain (1) IX, grounds: requires recipi- Title which ¶¶ 125-127; to ensure that bed systems, kler ents of federal aid to men and wom- dormitory materials fire linen and other equal en with access to educational ¶ 128; retardant, “conduct and to fire drills activities, and see Prisoners shift, per year, per 4 times and [to] 12 times (2) 676-78; F.Supp. at and constitutional keep documentation of all such written require equal protection principles, which ¶ CTF, must, appellants 129. At drills.” similarly that men and women who are situ- among things, storage “maintain the other alike, ated be treated see Women Prisoners culinary storage room a manner that II, Appellants at 669-72. ask prevent sprinkler heads from does not paragraphs that we vacate 64-67 and 83-99 ¶ 134, functioning adequately,” and test the details, they “to the extent that affect work system pump fire and conduct sprinkler industries, training, work and recre- ¶¶ 135, periodic basis.
fire drills on a ation,” 37, because, Appellants Brief for contend, they these activities are unrelated Challenges Appellants’ E. They to academic and vocational education. characterize the relief ordered Appellants object, “having nothing as also do with court as far broader than the district id., IX,” provisions governing li- Title law necessary the constitutional and to correct ¶ hours, 64; brary transportation prison- exist, statutory that were found to violations ¶ interviews, 93; job “large group ers to specific provi- they ask that we vacate ¶ events,” 97; religious programs, parts of the first five sions each ¶¶ addition, appellants argue 100-101. Order, as follows: equal protection principles ap- have no ¶¶3-19. Al- I. Harassment. Sexual plication to this case because the district they though appellants concede compared male and female inmates abuse, from protect failed to sexual similarly Finally, who were not situated. (1) they challenge paragraphs that autho- general objection raise to the reme- Special rize the Officer’s staff to monitor being expansive dies as far too and burden- (¶¶ (in 5, 6, complaints sexual harassment some, (re- citing, examples, paragraphs as (in (2) 8, 12,14, entirety) part)); their educations), quiring provision college require comply with the DCDC to its Inmate (mandating 98 and 99 hours for the recre- (¶ (3) 9); prohibit Procedure Grievance ational trailer and the construction of basket- taking any retaliatory appellants from action volleyball picnic ball and facilities and tables complaints, against inmates who file even if it Annex), (requiring at the and 64 the coordi- complaint is determined that the inmate’s timing nation of the of activities “to maximize (¶ 7(c)). was filed bad faith prisoners’ participation many in as Gynecological possible”). areas as II. Obstetrical ¶¶ Paragraphs Care. 20-34 and 20-62. 36- ¶¶ IV. Environmental Health. 102- require appellants improve which Appellants challenge paragraph quality gynecological of the obstetrical amended, imposes population cap CTF, provided care to inmates are based *9 They argue the Annex. that it is not war- § on D.C.Code 24-442. See Women Prison- ability ranted and encroaches on their to I, ers F.Supp. Appellants at 667-68. They vague incarcerate convicts. also make argue provisions that must be these set aside challenges paragraphs to the other in this because the district court abused its discre- section, contending they that are overbroad jurisdiction tion in exercising supplemental unduly intrusive. They over these local law claims. do not Safety. ¶¶ challenge governing paragraph 35 the use of V. Fire 125-136. These women, physical pregnant paragraphs findings on restraints address the court’s jurisdiction supplemental district court of its Eighth Amendment violations of the claims, Annex, they § 24-442 24^442 at CTF. over the section ask that of D.C.Code .and 669- Prisoners we remand those issues so that See Women 70, challenge relat- Appellants may questions those 671-72. consider constitutional (¶¶ 133-136), contending that the ing previously to CTF reserved. its discretion exercis- district court abused appellees’ objections not We will address jurisdiction supplemental over claims
ing
First,
Act
to the
for two reasons:
we are able
arising
under
section.
dispose
majority
appellants’
to
of the
chal-
lenges
pre-PLRA
on the basis of
law. Sec-
Litigation Reform Act of
F. The Prison
ond,
may
disposi-
the new
because
statute
remaining challenges
may
tive of the
25, 1996, following
argument
oral
April
On
ones,
provide the basis for
we
re-
new
will
appeal,
Litigation Reform
in this
the Prison
provisions
mand the
we do not vacate so that
“Act”)
(“PLRA”
became effec-
Act of 1995
light
the district court
review them
as Title
The reforms were enacted
tive.
free,
Appellees
PLRA.
will be
at that
VIII,
Depart-
sections 801 and 802 of the
time,
challenges
bring
to
their various
Justice,
State,
Commerce,
ments
Eighth
Act and to renew their
Amendment
Agencies Appropria-
Judiciary, and Related
respect
claims with
to medical care and fire
104-134,
Act, 1996,
tions
Pub.L. No.
Stat.
safety at CTF.
1996).
26,
(Apr.
The Act amends 18 U.S.C.
3626,
“Appropriate
§
is now entitled
II.
Discussion
respect
prison
to
conditions.”
remedies with
matter,
preliminary
As a
we think it
litigation,
in a
governs
It
all civil
whether
appropriate
emphasize
that federal courts
court,
respect to condi-
federal or state
upon
must move with caution
called
when
state,
federal,
prison
in a
or local
tions
even
deal with
serious violations
the law
alleged
right.
a federal
to violate
by
prison
Supreme
local
As
officials.
(5).
3626(a)(1)(A),(d),
(g)(2)
§
U.S.C.
Jenkins,
Missouri
observed in
Court
apples
pending cases such as this one.
It
33, 51, 110
1651, 1663, 109
S.Ct.
L.Ed.2d
3626(b)(l)(A)(iii)
(b)(2).
§
Id.
&
(1990),
important
“one of the most
consid
governing
supplemental
equitable
In
briefs submitted
erations
the exercise of
argue
proper respect
integrity
parties, appellants
power
the Act has
is a
for the
great majority
para-
government
invalidated the
and function of local
institu
graphs
Specifically, they
respect
main-
the Order.
tions.” This
for local authorities is
(1)
prison
PLRA
courts
in the context of
reform
tain that the
denies federal
its zenith
authority
prospective
litigation:
to order
relief to
(2)
law;
precludes
of local
correct
problems
prisons
violations
in America are
“[T]he
non-judicial
assigning
functions
intractable, and,
complex and
more to the
(3)
officer;
court-appointed special
prohibits
they
readily susceptible
point,
are not
“narrowly
the award of relief
require exper-
resolution
decree. Most
(4)
drawn”;
strips
federal courts of the
tise, comprehensive planning, and the
prisons
power
impose population caps
resources,
commitment of
all of which are
except under circumstances that are not sat-
province
legis-
peculiarly within the
isfied here.
govern-
branches of
lative and executive
reasons, courts are
ment. For all of those
response, appellees question appellants’
increasingly
equipped
ill
to deal with the
a num-
construction of the PLRA and raise
urgent problems
administration
challenges
ber of constitutional and other
recognition of that
and reform.
Judicial
They
origi-
the Act.
also note that
had
healthy sense
fact reflects no more than a
nally alleged
inadequate
medical
of realism.”
safety provided
in-
care and fire
the female
Chapman,
24- Rhodes v.
§
351 n.
452 U.S.
mates
CTF violated both D.C.Code
Therefore,
Eighth
2401 n.
69 L.Ed.2d
442 and the
Amendment.
S.Ct.
*10
Martinez,
(1981) (quoting Procunier v.
416
if we should find that the Act divested the
1800, 1807,
404-05,
a federal court has an inde
396,
When
94 S.Ct.
U.S.
(1974)).
exercising
jurisdic
pendent basis for
federal
See also Bell v.
L.Ed.2d
Wolf
circumstances,
tion,
1861, 1879,
may, in
also
520, 548,
it
certain
ish,
99 S.Ct.
441 U.S.
(1979) (“the
jurisdic
pendent,
supplemental,
exercise
or
operation of our
L.Ed.2d
law. In
prov
tion over related claims under state
peculiarly
facilities
correctional
Gibbs,
v.
United Mine Workers America
Legislative
and Executive
ince of
1130,
715,
Government,
provisions Improvements of the Judicial Act 28 U.S.C. § (1994). [*] [*] [*] [*] v [*]
921 (e) may supplemental jurisdiction courts decline to statute The district juris- vides that district courts decline jurisdiction supplemental over exercise (a) diction over claims that “raise[] novel or if— claim under subsection complex issue of State law.” 28 U.S.C. (1) claim raises a novel or com- 1367(c)(1). below, § Appellants argued law, plex issue State argument appeal, renew their (2) substantially predomi- novelty appellees’ request equitable the claim 24-442 precluded
nates over the claim or claims
relief based on section
jurisdiction.
supplemental
Spe-
exercise of
which the district court has
over
cifically, they
merely
contend that the
jurisdiction,
section
original
extends the common law of torts to local
(3) the district court has dismissed
See,
prisons.
e.g., District
v.
Columbia
orig-
all claims over which it has
Mitchell,
629,
(D.C.1987).
533 A.2d
See
jurisdiction,
inal
Columbia,
1,
Toy
also
v. District
549 A.2d
(4)
circumstances,
exceptional
(D.C.1988);
Hughes
v. District
Colum-
bia,
1299,
(D.C.1981);
compelling
rea-
there
other
425 A.2d
Gaither
Columbia,
57,
declining jurisdiction.
sons for
v. District
333 A.2d
(D.C.1975). Appellants point out that
Jjs
‡
‡
sj:
upon by
statute has been relied
inmates su-
ing
monetary damages
and that D.C.
(e)
section,
As used in this
the term
ordinary
applied
principles
courts have
tort
includes the District of Columbia
“State”
See,
Mitchell,
e.g.,
to those cases.
533 A.2d
633;
Columbia,
v.
Matthews
District of
§
1367. As we observed Diven
U.S.C.
(D.C.1978).
731,
Furthermore,
387 A.2d
Amalgamated
Transit Union Internation
appellants observe that
the District of Co-
(D.C.Cir.
598,
al and Local
38 F.3d
Appeals
upon
lumbia Court of
has relied
1367(c)
1994), the extent to which section
has
jurisdictions
cases in other
that have held
discretion to
modified the district’s court’s
simply permit
that similar laws
a common
law is a matter of
hear claims under local
against
law tort action for inmate claims
Diven,
rejected
dispute.
we
some
Gaither,
prison officials. See
local law law.” Women Prisoners CTF, safety and fire the medical care respectfully disagree with the dis 668. We operative true, from a “common nucleus of arose analysis. it is trict court’s While claims; namely, course, recognized facts” as the federal that the common law custody decision to re-assume of its injunctive District’s in certain in propriety of relief alleged stances, failure regarded female and its it was never as relief actions, resort; indeed, question before for their needs. The tort the stan first us, then, is whether the court abused its formulation of the common law on this dard relief, exercising jurisdiction point equitable over the such as an discretion is that only plain- injunction, granted when claims. will be local *12 922 in a com questions, care to these inadequate. effort See remedies legal
tiffs
area of local law a federal
pletely unsettled
Pomeroy,
Equity
A Treatise on
Norton
John
an
(5th ed.1941);
opinion is no substitute for
218,
District Court
at
§
369
Jurisprudence
courts of the
decision
the
Funiak,
authoritative
Modem
Handbook
Q. de
William
of
” Doe,
(2d ed.1956).
717 F.2d at
District of Columbia.’
18,
Further
32
§
Equity
778).
(quoting Metzger, 680 F.2d
variety
1428-29
long
that a
more,
stated
courts
164,
Barry,
F.2d
169
interest,
v.
733
also
public
See
Grano
factors, including the
factors,
(D.C.Cir.1984) (because, among other
injunction.
award of
the
weigh against
of local
an unsettled issue
Mfg.
ease involved
Dickey Clay
v. W.S.
See Harrisonville
law,
remedy,
any,
if
lies
602,
“[ajppellees’
in
334,
hear
and the
injunctive
impose appropriate
re-
thority to
desirability
reading
of a surer-footed
ongoing institutional failure
*13
lief in the face of
applicable
support
law
the determination
duty
at 948
legal
of care.” Dissent
to meet
of state claims in state court. Determina-
Plainly,
interpret
free to
by
local courts are
especially impor-
n.5.
tion
the state court is
authorizing injunctive
24^442 as
re-
section
tant where the case involves novel and
repeat
point:
Here,
simply
We
our earlier
lief.
unsettled issues of state law.
new,
they
quite
dissent is
confi-
in question
meaning ambig-
never have. The
law
its
Moreover,
interpret
sharply disputed.
dent that the local courts would so
uous and
statute;
being impressed
jurisdic-
we confess to
district court should not retain
they
directly implicates
done so.
tion because this case
the fact that
have never
processes by
locality governs
which a
sought
intrusiveness of the relief
also
remedy,
Appellees’
any,
if
lies in
itself.
juris-
against
pendent
weighs
the exercise
the courts of the District of Columbia.
(district
1367(e)(4)
§
diction.
28 U.S.C.
See
added) (citation
(emphasis
S.Ct.
had not re-
applied
in a mates at CTF and the Annex
district court
a D.C. statute
academic,
vocation-
way
politi-
control over local
ceived the same access
novel
assume
(D.C.Cir.1984).
recreational,
695,
religious
al, work,
programs
725 F.2d
697 n.
however,
Constitution,
similarly
require
‘“does not
situated men
available
that were
things
opinion
original opinion,
In
which are different
fact or
prisons.
its
at other
though they
to be treated in law as
were the
violated Title IX.
that this
Women
court held
”
Doe,
202, 216, 102
Plyler
same.’
U.S.
F.Supp. at 672-78.
Prisoners
(1982)
2382, 2394,
II,
669-72,
(quot
S.Ct.
“that does not have a math and science
analy
focus”;
The dissent contends
our
Mary
cannot take at
Baldwin
ignored
sis
have
errs because we
“how the
engineering
courses in
or the advanced
segregated,”
came to be
with wom
physics
math and
courses VMI offers.
typically assigned
prisons
en
to smaller
than
—VMI,
-,
S.Ct.
As an
men. Dissent
initial mat
(citations omitted).
ter,
segregation
note that
we
of inmates
addition,
the Court noted the extreme
unquestionably
sex is
constitutional. See
discrepancy in the financial
avail-
resources
(D.C.Cir.
Thornburgh,
Pitts v.
Furthermore, our decision here is alto-
gether
Supreme
consistent with the
Court’s We decline this invitation. While certain
(such
equal protection
most
programs
recent articulation of
as a work detail in auto
— mechanics)
principles
Virginia,
in
v.
may
United States
only
be available
to male
-,
2264,
inmates,
(such
135
S.Ct.
L.Ed.2d 735
programs
other
as a life skills
(1996)(“VMI”).
VMI,
class)
Supreme
Court
only
be available
in-
to female
compared
programs
available at the all- mates. Under
program-by-program
Mary
female
College,
Baldwin
where
comparison
the Vir- method
embraced
the dis-
ginia
sent,
Women’s Institute
for Leadership
any divergence from identity
pro-
an
(“VMIL”)
located,
is
with the
grams gives
avail-
equal protection liability.
rise to
Virginia
Thus,
able at the
Military
all-male
Insti-
if male inmates have access to a work
(‘VMI”).
tute
Mary
The enrollment at
women,
Bald-
detail that is unavailable to
that vio-
1,327 students,
College
win
is
of whom
equal protection.
spend
lates
If men can
an
actually
campus,
live
United States v.
day
gymnasium,
extra hour a
in a
that vio-
471,
Virginia,
F.Supp.
Commonwealth
equal protection. Conversely,
lates
if women
(W.D.Va.1994);
the enrollment at
had
parenting
access to a
class unavailable to
1,124,
VMI
men,
United States v.
equal
Common-
protection.
violates
Such an
Virginia,
wealth
approach
completely
eviscerates the defer-
(W.D.Va.1991). Despite
comparable
their
ence that federal
obliged
give
courts are
services to avoid
Turner,
programs and
482 U.S.
See
prison administrators.
liability.
equal protection
2259-60,
threat of
As
84-85,
observed,
Eighth Circuit has
Klinger, 31 F.3d at
there will
prisons,
two
as between
significant differences
Given these
program-
always be stark differences
Annex and
the women at the
situations
with
prisons start
Assuming that all
ming.
facilities
of the men at the
and those
funding
we must
yet
adequate
limited
—as
them,
compared
the court
which
claim that
do not
here,
plaintiffs
because
IX and
that the court’s Title
given the fact
subject to dis-
facility] is
correctional
[the
analyses
depend on
protection
both
equal
calibrate
funding
will
criminatory
—officials
situated,
they
similarly
we
findings that
were
differently in each
needs
programming
programs themselves
need not examine
prison
in one
emphasizing
prison,
program-related provi-
in order to vacate
de-emphasize
others.
grams that
challenged. But
appellants
sions that
always
point
can
out
Thus,
inmates
female
scope of
though
not address the
we do
even
prisons are “better”
ways
which male
context,
we admit
IX in the
Title
can
theirs,
point
inmates
just male
than
problems
proposition
with the
grave
prisons
ways in
female
out other
industries,
recreation,
details, prison
work
than theirs.
“better”
counseling have
religious services and
F.3d at
Klinger, 31
equality of
with the
anything in common
an inmate
Finally,
note that
we
Title
opportunities with which
educational
edu
right to work and
constitutional
has no
¶¶ 83-
therefore vacate
IX is concerned. We
Occoquan
Inmates
opportunities.
cational
¶¶
entirety and
64-67
their
(D.C.Cir.1988).
828, 886
Barry, 844 F.2d
v.
educational
they do not relate to
extent
right to
limited
exer
inmate has a
While
programs.
only if
cise,
“movement
right is violated
atrophy,
allowed to
and muscles
denied
Eighth Amendment
C.
is threat
individual
the health of the
[or]
Owens, 777 F.2d
that the fol-
French
concluded
ened.”
district court
itself,
Cir.1985).
(7th
Eighth
In and of
idleness
violated
lowing
conditions
pro
Amendment
Eighth
and un-
guarantee against
not violate the
cruel
does
Amendment
*17
punish
(1)
unusual
pattern
and
of sexual
against cruel
the
punishment:
tection
usual
Jail,
indeed,
CTF,
not even consti
ment;
Annex,
does
the
idleness
and
at the
harassment
Rhodes,
664-66;
452
at
I,
“punishment.” See
U.S.
at
F.Supp.
877
tute
Women Prisoners
Thus, the
348,
(2)
District
on women
physical
at 2400.
restraints
S.Ct.
use of
the
could,
the Constitu
at
entirely
pregnancy,
with
id.
consistent
third trimester
their
tion,
inmates
deprive
living
male and female
at both
668;(3)
conditions
general
the
enjoy.
670-71, 672;
they now
programs
Annex,
virtually all of the
at
id.
and the
CTF
equal protection
(4)
find
for fire
provisions
courts could
inadequacy
federal
If
Annex,
female inmates
The
liability whenever male
id. at
safety
669-70.
at the
programs,
sets of
vio-
perceived
these
have access
different
each of
addresses
Order
(sexual harassment),
¶¶
prison administrators
budget-strapped
3-19
lations. See
reducing,
¶35
to a constitutional
by
pregnant wom-
respond
on
(physical restraints
well
¶¶
minimum,
programs
at
en),
living
offered
conditions
(general
the number
102-124
observed,
(fire
¶¶
Annex),
court
Klinger
inmates. As
125-132
all
and the
Annex). (The
origi-
had
court
willing
hazards at the
be far less
officials would
prison
child visita-
“lack of
nally
that the
concluded
experiment and innovate
placement counsel-
inadequate child
knowing
tion
that
an individual institution
Amendment,
Eighth
ing at CTF” violated
liability
impose
on
federal
could
669,
itself
it later
but
reversed
id. at
[by program] compari
program
of a
basis
(39-42) of
paragraphs
relevant
vacated the
Indeed,
because
would suffer
inmates
son.
II,
F.Supp.
Order,
Prisoners
likely
each
institu
would
officials
674-75.)
minimum
the bare constitutional
tion with
Supreme Court has
1. Living
concluded
Conditions at the Annex
subject
prison
Eighth
conditions are
that
The district court observed that en
scrutiny.
Helling
Amendment
See
v.
experts
vironmental
by
health
retained
both
25, 32,
McKinney,
509 U.S.
S.Ct.
parties agreed that
the Annex dormitories
(1993).
125 L.Ed.2d
“[W]hen
are overcrowded. Women Prisoners
person
custody
into its
State takes
and F.Supp. at 651 n. 22.
&
The court found that
will,
against
holds him there
his
the Constitu
overcrowding
shortage
“creates a
of san
imposes upon
corresponding duty
it a
tion
itary facilities,”
as measured
the stan
responsibility
safety
for his
assume some
dards established
the American Correc
general well-being.” DeShaney v. Winneba
(“ACA”),
tional Association
id. at 651-52 & n.
Services,
go County Dep’t
Social
489 U.S.
23;
spread
“increases the
of infectious dis
189, 199-200,
998, 1005,
103 ease, produces a ... noise level
excess of
[in
(1989).
Supreme
L.Ed.2d 249
Court has
acceptability],”
the ACA standard of
id. at
rejected
double-celling
a claim that
(citations
omitted);
652 & n. 24
to record
Amendment,
Eighth
inmates had violated the
filthy
conditions,
living
dirty
“creates
such as
noting
practice
“did not lead to
bathrooms,”
moldy
floors and
id. at 652. In
food,
care,
deprivations of essential
medical
discussing
general
conditions at the An
sanitation[,]
did it increase
[n]or
violence nex, which
many
beyond
included
deficiencies
among inmates or create other conditions
it
those
had identified
having
resulted
Rhodes,
prison
intolerable for
confinement.”
from overcrowding, the court found that the
Relying
929
(internal
at
Rhodes,
Occoquan, 844 F.2d
839
452 ties.”
“soul-chilling,”
so
are
conditions
omitted).
therefore va-
(Brennan, J.,
We
quotation marks
at 2403
at
paragraph 102.
cate
Eighth
they implicate the
concurring), that
Amendment,
empowered to
is
court
a district
Sexual Harassment
specifically tailored
is
that
order relief
“[b]e-
has stated that
Supreme Court
The
court has identi-
the violations
address
simply not
violently
is
ing
assaulted
is found
example, if ventilation
For
fied.
that criminal offenders
‘part
penalty
improve
wanting, an
grossly
instruction
be
”
society.’
pay
against
their offenses
remedy.
In-
appropriate
quality is the
air
Brennan,
825,-,
v.
511 U.S.
Farmer
many
the environmental
deed,
in this case
(1994)
1970, 1977,
vations
Officer.
sufficiently
are
one or more members
necessities”
directs that
sures of life’s
Order
Eighth
Special Officer
of an
court’s
of the district
grave to form
basis
staff
harassment
allegations of sexual
violation.
Amendment
“monitor
prisoners are
facility in which women
each
Seiter,
294, 298,
S.Ct.
501 U.S.
Wilson
requires
Paragraph 8
housed.”
(constru-
(1991)
2321, 2324,
L.Ed.2d
pen
Special Officer establish
DCDC
349, 347,
Rhodes,
452 U.S.
ing
quoting
Depart
by the
prohibited
for conduct
alties
(internal
2399)
citations
101 S.Ct. at
Finally,
policy on sexual harassment.
ment’s
omitted).
that standards
suggests
This
provides:
paragraph
“unacceptable”
nonethe-
ACA finds
monitor(s)
that each re-
shall ensure
To
extent
less
constitutional.
policy
thoroughly
violation
ported
“are restrictive
the Annex
conditions at
The moni-
investigated
documented.
harsh,
penalty that
part of the
even
*19
tor(s)
report to
final
a
written
shall submit
pay for their offenses
criminal offenders
institution;
report
the
the
Rhodes,
Warden of
the
452 U.S.
society.”
against
findings conclu-
factual
include
Keeping in mind that
shall
at 2399.
101 S.Ct.
of
preponderance
as to
dealing
whether
provisions
sion
other
Order includes
of the
sexu-
that violation
being a
shows
as
evidence
it had identified
hazards that
policy
Within
occurred.
nothing in
harassment
al
overcrowding, we see
product of
the moni-
after the Warden receives
clearly
hours
density
that can
population
itself
tor(s)’
shall inform
report, the Defendants
the inmates “of
depriving
as
be described
in writ-
prisoner,
woman
complaining
of life’s necessi-
measures
minimal civilized
Here,
ing,
investigation.
of the outcome of the
Special
the staff of the
Officer are
appropriate
The Warden shall
only. They
take
action monitors in name
do not sim-
penalties.
as detailed in the
of
ply
schedule
Department’s
oversee the
compliance
Order;
rather,
with the
perform the
Appellants argue that
it
was
abuse of
authorities,
functions
local
such as the in-
court
discretion for
district
to direct its
vestigation
complaints
of misconduct.
Special
perform
non-judicial,
Officer
Contrary to appellees’ assertion that “[De-
government
investigating
local
function
fendants retain the
authority
ultimate
harassment,
complaints
citing
of sexual
Mis
actions,”
determine the proper disciplinary
Jenkins,
33, 51,
souri v.
495 U.S.
Appellees
Brief for
pro-
the Order
1651, 1663, 109
(1990) (“one
L.Ed.2d 31
of the
that,
vides
based on a
report,
monitor’s
important
governing
most
considerations
appropriate
“[t]he Warden shall take
action
equitable power
exercise of
proper
is a
re
as detailed in
penalties,”
the schedule of
spect for the integrity and function of local
¶
(emphasis added); penalties,
might
we
institutions”).
government
add, that the Special
given
Officer has been
Appellees respond by likening
powers
setting.
hand in
See
The Order
¶8.
Special
Officer and her monitors to
therefore
appellants’
cabins
discretion to a
master,
special
contemplated
that of a
greater
far
degree
appellees
than
repre-
Rule 53 of the Federal Rules of Civil Proce
sent:
merely
rather
providing
than
for the
analogy
dure. This
us
strikes
as inexact.
In monitoring
compliance
with the court’s
circumstances,
unusual
see Fed.R.Civ.P.
decree,
effectively
usurps
Order
the ex-
53(b) (“[a]
[special]
reference to a
master
ecutive functions of the District. Accord-
exception
rule”),
shall be the
and not the
ingly, we
paragraphs
vacate the
of the Or-
appointment
special
of a
may
master
be use
der that
Special
relate to the
Officer and
compliance
ful
oversee
with a court order.
her monitors.
Organization
National
Reform,
See
Inmate Grievance Procedure. The
Marijuana
Mullen,
Laws v.
828 F.2d
district court noted that the DCDC had es
(9th Cir.1987) (“NORML”)
544—45
(approv
tablished a
policies, procedures,
number of
ing use of monitors
compliance
to oversee
regulations
regarding
misconduct,
sexual
compliance
with court order where
with past
including an Inmate Grievance Procedure
sporadic);
Estelle,
orders has been
Ruiz v.
(“IGP”), which allows inmates to
com
file
(5th
1115, 1159-63
Cir.1982)
(same),
F.2d
plaints with
authorities.
See Women
part
vacated in
grounds,
on other
688 F.2d
Prisoners
at 640. The court
(5th Cir.1982). Nevertheless,
the mas
found, however, that “[t]hese various policies
ter’s role
such eases has been limited. As
procedures
are of little value because
the Ninth
approving
Circuit noted in
the use
[appellants]
problem
address the
of sexual
case,
monitors in a
reform
harassment of
spe
with no
Special
[t]he
has
authority
Master
no
training,
cific staff
inconsistent
reporting
operation
interfere with the
City’s
practices, cursory investigations and timid
jails. The district
appointed
(citation omitted).
sanctions.” Id.
To cor
Special
investigate,
Master to
report, and
rect
deficiency,
paragraph 9 of the Order
recommend actions
City
could commands the
comply
District to
with the
take to ensure compliance with the consent
IGP.
City agreed
decree. The
appoint-
his
Appellants contend that the
IGP is “a
ment.
vision of local law and the Court has no
City
County
Francisco,
Stone
San
compliance
business directing
with it.” Brief
(9th Cir.1992).
F.2d
859 n. 18
Appellants
See
court,
at 43. A federal
howev-
NORML,
(“Masters
also
er,
functions. Relief appellants; it impose new burdens general living The district court found that observe their simply requires appellants to the Annex conditions at and CTF and fire running of policies procedures own safety at Eighth the Annex violated the foregoing, light of we prisons. their Amendment, appellants conclusions that have challenge paragraph reject appellants’ to chosen not to contest. Parts IV and V the of improve require appellants living Order to introduced at Retaliation. Evidence safety and fire at the in a had conditions facilities that women who filed trial indicated variety ways. appellants spe- While occasionally have complaints under the IGP were cifically by employ challenged paragraph (imposing DCDC victims of retaliation Annex), they population cap a at the court found that De further ees. district confidentiality contend that ordered partment preserve did not remedies complaints, Eighth had of those inmates who filed district court to address the Amend- prison “[b]y leaking private necessary information ment are than violations broader prisoners and staff officials coerce women to correct the violations that court had Indeed, they issue, silence and insulate themselves from passing, into found. if in take F.Supp. scrutiny.” roof), Prisoners paragraphs (replacing abuses, (eradication paragraph vermin), prevent (twenty To such at 666. footcan- 7(c) bunk) prohibits prisoner-controlled per of the light Order dles of ventilation), which, they of, (improving reporting complaints
Retaliation say, “hardly implicate Eighth Amend- making in assisting any individual re- Appellants ment.” Brief for of, We investigation port cooperating or in an questions harassment, unable address of overbroad re- regardless sexual appellants in so lief aired casual disposition underly- or of the merits Nevertheless, manner. because inter- complaint. Retaliatory conduct in- ing vening passage ques- and the PLRA against following cludes the actions taken parties, supple- in their tions raised both prisoner’s prisoner response briefs, applicability of its mental as ...: complaint dis- of sexual harassment case, its provisions especially provi- to this program ciplining, changing work or as- sion a court of, signments transferring to another fa- of, cility involuntary placing under or any prospective grant approve shall not custody any prisoner. protective relief the court finds that such relief unless drawn, narrowly further extends no than paragraph Appellants contend this necessary correct the violation of the broadly” deprives “sweeps far them too right, Federal and is the least intrusive taking response any remedial action necessary to the violation of means correct claims of sexual misconduct. fabricated right, the Federal Appellants at 42^3. Brief 3626(a)(1)(A), § this II, we remand U.S.C. Prisoners the court ad- In Women may have question that the so district The court specific concern. ex- dressed 7(c) opportunity to this and other address pre- paragraph “does plained light new issues statute taking unresolved legitimately from vent the Defendants applied relevant facts. prevents It punitive simply them action.... using up cover disciplinary measures to
from III. CoNolusion at 676. In sexual harassment.” experience in have little Department Because courts light explanation, of this running “inordinately being difficult” task without held discipline, free to fear court, give prison, who should deference contempt an inmate has *21 Turner, possible, cifically officials where at challenged by appellants provi- is the 2259; only and because sion imposing population cap on the Annex. court can state authoritative deci- Because the district justify court failed to law, sion in an unsettled area of state necessity for this “last remedy, resort” we be reluctant court should to exercise federal paragraph vacate jurisdiction supplemental ques- over novel ¶¶ Safety. Fire 125-136. Paragraphs principles law. With tions of local these 125-130 are intended to deal with fire haz- mind, reviewed appellants’ we have chal- Annex, ards at the which the district court lenges disposed and to the Order found to Eighth have violated the Amend- as follows: them ment; paragraphs 133-136 are intended to ¶¶ Appellants Harassment. 3-19. Sexual address conditions at CTF that the court paragraphs relating contest the office 24-442; § found had violated D.C.Code and Officer, Special Inmate Grievance paragraphs 131-132 safety relate to fire Procedure, against and retaliation inmates both the Annex and again CTF. We con- filing complaints. reject IGP we While clude that the court by abused its discretion objections appellants’ paragraphs to the con- supplemental exercising jurisdiction over cerning and against the IGP retaliation in- claims, these local and we therefore vacate mates, accept we those relating Special (insofar paragraphs 131-132 they as relate to Officer and her monitors. We therefore va- CTF) (in 133-136 entirety). their Appel- 5, 6, paragraphs cate and 13 entirety in their objected lants have not para- 8, 12, 14, paragraphs and 15 in relevant graphs intended to part address the fire as unwarranted hazards intrusions on the func- Annex; accordingly, government. express tions local we no opinion propriety. to their Gynecological Obstetrical Care. ¶¶ exception 20-62. With the of paragraph Finally, we take note of the fact appel- appellants do not challenge, this charged very lants have general terms section Order based D.C.Code that the district court has ordered them to 24—442. section We conclude the dis- adopt relating measures educational trict court abused its in exercising discretion grams and other matters that the District jurisdiction supplemental over these local which, can ill they say, afford and the court is claims. We therefore vacate this entire sec- authority without impose. Because Order, with exception tion para- generality appellants’ charges, we are not graph 35. able to particular address complaints these ¶¶ Program Evaluation. 63-101. These this proceeding. We therefore remand these paragraphs remedy were intended to in- questions they may so that resolved equalities in access to court in district the context of the PLRA. district court held to violate both Title IX time, At that appellees will argue be free to guarantee Constitution’s equal the unconstitutionality Also, of the Act. protection. Appellants do challenge judicial economy, interests of appellees paragraphs that those are intended to deal arguments renew their to the court that unequal access to educational and voca- the substandard medical care and the fire programs, challenge tional but all the others. hazards Eighth violated the Amend- disagree we Because with the court’s conclu- ment. sion the male and female inmates it was comparing similarly situated, were It is so be- ordered.
cause that conclusion was an essential ele- ment in both its protection Title IX and equal APPENDIX A analyses, we vacate paragraphs 83-92 and entirety 94-101 in paragraphs their 63- ORDER FOR DECLARATORY AND 67 and 93 to the extent do not INJUNCTIVE RELIEF involve educational or programs. vocational ¶¶ Environmental Health. 102-124. upon Based findings the Court’s of fact provision only part in this spe- law, Order conclusions of it is Court *22 facility, and to the relevant
to the Warden of of DCDC. Director the the ORDERED day of December 13th that: policy the under conduct Prohibited 7. and inactions actions Defendants’ 1. The as: be defined shall Plaintiff the violate continue and violated includes: harassment which Sexual a. and the Fifth rights under class members’ (1) activity direct- sexual all unwelcome States to the United Eighth Amendments employee prisoner at a any DCDC ed of the Constitution, § Title IX 42 U.S.C. intercourse, oral including of sexual acts 1972, 20 U.S.C. of Amendments Education attempt any sex, touching and or sexual of (1988), District Columbia and the § 1681 acts; and to commit these 24-442; and §§ Code advances, (2) re- sexual all unwelcome take all are ordered Defendants 2. The favors, other un- and for sexual quests remedy prevent and necessary action of a physical conduct or welcome verbal Plaintiffs’ above-mentioned violations of by any DCDC directed sexual nature take are ordered The Defendants rights. prisoner; and employee at a in areas specific measures following gyneco- prisoners’ privacy harassment, and Invasions of women obstetrical b. of sexual peno- and a valid care, opportunities, employees without male logical reason, All measures safety. including the failure and fire logical environmental six presence in effect within his completed employee to announce be shall male Order, unless housing of this unit. the date a female entering months when specified. otherwise of, complaints reporting Retaliation c. making report in assisting any individual HARASSMENT I. SEXUAL investigation of of, in an cooperating or shall Defendants days, the Within harassment, regardless of the'mer- sexual prohib- Order Department follow write and underlying disposition of its or involving District harassment iting sexual Retaliatory includes conduct complaint. of Corrections Department Columbia against pris- taken following actions prisoners. (DCDC) employees and prisoner’s com- response to that oner post and circulate shall The Defendants cooperation or harassment of sexual plaint de- with Order accordance Department sexual investigation of or reporting partmental policy. changing disciplining, work harassment: of, transferring the DCDC has policy assignments this program 4. Under or pre- steps to of, appropriate placing under invol- facility take or obligation to another prisoner. harassment commit- remedy custody any sexual untary protective vent employees. by its own ted by any confidentiality Any breach d. office report from the of sexual concerning any more members employee 5. One of the Lopes, Special Officer of Grace M. harassment. of Colum- District for the Court U.S. District investigations Any interference e. harass- sexual
bia, allegations of will monitor harassment. sexual prison- facility in which at each ment under prohibited conduct Penalties monitor(s) log in shall housed. ers are by the Di- out worked policy shall be harassment, investi- allegation of sexual each Special and the Court’s DCDC rector the results allegations, submit gate days of Lopes within Ms. Grace Officer the relevant to the investigation Warden Order. the DCDC facility the Director resolution of the Defendants’ keep records re- able to shall actions, of matter, disciplinary including through harassment of sexual port instances such claims. Procedure Grievance existing Inmate Department Order (IGP) specified as monitor(s) investigate all out- shall strictly ad- shall The Defendants 4030.1D. of sexual harassment standing allegations Procedure Grievance Inmate allegation each here report shall submit odically police document the status of investi- shall establish Inmate Grievance Advisory- gations. The police occurrence of a investi- (IGAC) Committee required by Section gation monitor(s) does not relieve the VII(C) Department *23 Order 4030.1D. duty investigate. to prisoners 10. Women shall also be able identity 15. The target of the al- complaints to submit IGP’s or concerning leged sexual harassment shall be revealed form, any sexual in orally harassment or in only to those who have an immediate to need writing, any to DCDC employee, who must know, including monitor(s), alleged information, submit the writing, to the harasser(s) retaliator(s) or any wit- monitor(s) and Warden facility within parties nesses. All contacted in the course of 24 hours receiving the information. an investigation will be any advised that re- prisoners may submit also IGP’s or taliation, reprisal, or breach of confidentiality complaints prisoner to an representa- [sic] separate is a actionable provided offense as tive to the IGAC. penalties. schedule 11. The Defendants shall establish a con- Any 16. prisoner who is dissatisfied with line, fidential hot under supervision any investigation or resolution allega- of an monitor(s), through prison- which women tion of sexual appeal harassment to report allegations ers can of sexual harass- Director of the days DCDC within 15 ment. receiving written notice of the outcome of the employee Each required shall be investigation. The Director must respond report information, any source, any from con- within days. harassment, cerning sexual in writing, to the facility monitor(s) Warden of the 17. Within days, a trainer from the within 24 of receiving hours National (NIC), Institute of information. Corrections mu- employee Failure of report tually agreed an any upon by parties, sus- shall con- pected incident of sexual harassment duct mandatory training shall on sexual harass- subject employee discipline. pris- If ment employees all DCDC who work with requests, oner so prisoner shall prisoners. be treat- The trainer shall se- be ed an anonymous as informant. monitor(s) lected days. within 60 The if choose, so may attend training. monitor(s) 13. The shall ensure that each reported policy violation of the thoroughly a. training shall include education investigated and documented. The moni- concerning the policies Defendants’ re- tor(s) shall submit final report written garding reporting, investigating, pre- institution; the Warden of the report venting harassment, sexual and the conse- shall findings include factual and a conclusion quences for violating any policy concerning as preponderance to whether a of evidence harassment; sexual shows that a violation of the sexual harass- b. In addition to roll training, call formal policy ment occurred. Within 48 hours after training sessions on sexual harassment monitor(s)’ the Warden receives the report, shall be conducted on a quarterly basis the Defendants shall inform the complaining years all succeeding entry of this Court prisoner, woman in writing, of the outcome of Order. the investigation. The Warden shall take appropriate days, Within consultant, action outside detailed the schedule mutually penalties. agreed upon by parties, shall develop a sexual harassment training pro- 14. Upon receipt of any allegation of an gram and materials and conduct on training act of unwelcome sexual any intercourse or sexual harassment prisoners for women so allegation of unwelcome touching, sexual prisoners how recognize know monitor(s) and the notify institution must report sexual harassment. The trainer proper law agency. enforcement The moni- shall be selected within days. tor(s) shall communicate with the law en- forcement agency concerning the status of a. training materials must be includ- monitor(s) investigation. The peri- must ed in the orientation that each woman pattern diseases sexually transmitted (if applicable). drug use at each classification intake upon receives facility; and policy, the DCDC In accordance for women training sessions b. Formal prisoners all women inform shall Defendants shall harassment sexual on services access health procedure to first monthly basis on a conducted incarcerated. while de- consent entry of the succeeding year appraisal the health addition years all basis quarterly cree, Defendants prisoners, the male conducted for remain decree shall that this thereafter examination, gynecological shall conduct effect. *24 and evalua- including pelvic a examination necessary make shall Defendants 19. accompanied tion, examination a breast Treat- the Correctional at both alterations smear, chlamydia education, a a PAP patient (CTF) Secu- the Minimum Facility and ment serology for culture, and gonorrhea and days (Annex) to ensure within rity Annex Oper- with CTF In accordance syphilis. living, their privacy in women Commission and National ations manual areas. shower sleeping and (NCCHC) and Healthcare Correctional (ACA) Association AND GYNECOLOGI- American Correctional II. OBSTETRICAL shall occur standards, appraisal health CARE CAL DCDC, days admission into within hire within shall Defendants 20. The complete aof documentation unless there days: within appraisal comparable health and position in a half-time midwife a. a nurse days. previous edu- health clinical and provide who shall pris- female the entire services cational im- develop and shall The Defendants 27. population; and oner appropriate days, an plement within practitioner nurse an additional b. with correspond appraisal form health training special with assistant physician’s for women noted appraisal health ordered provide gynecology in obstetrics and 26. paragraph prisoners to women services clinical develop im- shall The Defendants CTF. written days, detailed within plement main- shall Clinic 21. The OB/GYN follow-up care concerning routine tocols hours. scheduled regularly tain its current including problems gynecological common for pre- establish a shall Defendants 22. The in- pelvic chlamydia, and gonorrhea, syphilis, who receive women for at CTF natal clinic tests; disease; pelvic exam- PAP flammatory This at CTF. care prenatal primary their examinations; education inations; breast half-day each at least one operate shall clinic high- for mammography contraception and re- not shall Pregnant women week. the stan- women, with in accordance risk prenat- for the appointments quired to make College Obstetrics American dards process, but sick-call through the al clinic (ACOG). Gynecology appointments rather, have scheduled shall gyneco- shall Defendants 29. The the clinic. and in time frames care within logical maintain statis- shall Defendants proto- gynecological with consistent manner pregnant number on the tics unless standards satisfy ACOG cols mothers infants whose outcomes the birth medi- or her in his determines physician incarcerated. while delivered medically appropriate it judgment cal in- general health In addition accordance provided to be care for such for male performed and observation terview the reasons case in which protocol, with screening all women the intake prisoners, into be entered shall for this determination about inquiry specific shall include medical record. patient’s de- intrauterine contraceptives or her use minimum, protocol concern- At men- known last vices, history pregnancy, shall care gynecological provision ing the history likelihood period, current strual
those women with histories of alcohol and provide that the Defendants shall offer and drug abuse, sexually diseases, transmitted make PAP high-risk available tests to all anemia, diabetes or women, older every women at CTF six months. poor histories, obstetrical and women expecting multiple births.
31. The Defendants shall maintain a list and, of abnormal PAP results within seven 37. The Defendants arrange shall days receipt result, of an abnormal PAP pregnant each prisoner woman see notify patient shall of the abnormal result monthly obstetrician at during intervals develop and initiate a course of treat- first two trimesters of pregnancy, her bi- ment. monthly during intervals the seventh and 32. All women who receive an abnormal months, eighth weekly during intervals PAP test result shall be scheduled for a the ninth month. The Defendants shall ar- repeat test at PAP three-month intervals range for women who experiencing are high- until the PAP test results are normal. Once pregnancies risk to see an obstetrician at normal, the PAP results test a PAP test shorter than routine intervals until it is de- place shall every take months. If six a cul- termined that the pregnancy is progressing doscopy *25 required, it performed shall be in normally. a manner and within accepted time frames as 38. The Defendants implement shall a appropriate by ACOG standards. tracking system to insure pregnant that all 33. implement The Defendants shall with- women are scheduled and regularly seen days a tracking system to insure that prenatal care. all women appropriate preventive receive gy- 39. The necological permit Defendants shall regular care a at woman intervals. prisoner to baby feed her at D.C. General 34. If pregnancy a test that reveals a Hospital while prisoner the woman baby pregnant, woman is prenatal routine care remain at D.C. Hospital. General shall immediately. be initiated 40. The Defendants develop shall 35. The a rou- Defendants shall develop and im- visiting tine plement program protocol a women concerning whose'chil- restraints dren remain in used pregnant on D.C. postpartum Hospital. General women These provides women pregnant a shall be prisoner allowed to shall visit their transported be children at Hospital least D.C. General way every day. restrictive possible consistent legitimate security 41. In accordance with the Defendants’ Specifically, reasons. protocol pro- shall Department Order, pregnant prison- vide: ers shall counseling receive regarding child a. The Defendants shall use no restraints placement as soon pregnancy any labor, during woman delivery, or known. recovery immediately delivery. after 42. The designate Defendants shall rep- During b. the last trimester of pregnancy resentative who shall develop and maintain labor, up until the Defendants shall use contacts with licensed child-placing agencies, only leg shackles transporting when including Department of Human Ser- pregnant prisoner woman unless the wom- vices. The Defendants shall provide training an has history demonstrated a of assaultive to its social workers on range options escaped behavior or has from a correction- available for placement, child including al third- facility. party placement with family friends, or fos- 36. The Defendants develop shall and im- placement, ter-care adoption. Each plement days, within a detailed written given woman shall be information about each prenatal protocol for women who receive options. primary their prenatal care at CTF in accor- dance with ACOG standards. The protocol 43. The nurse midwife implement shall shall provide guidelines also “high- days define within an obstetrical and gynecologi- risk pregnancy.” High-risk pregnancies cal health program education satisfies shall be considered to include at a minimum recognized national medical standard. Edu- a medical prisoner misses If a woman
51. reason, Defendants appointment made available be also should material cation ear- for the appointment shall reschedule shall library. The Defendants CTF shall Defendants date. liest available on the documentation adequate maintain the re- insure efforts to best use their by the evaluated be it can gram so a medi- occurs within appointment scheduled implementation. days after within Court of time. period cally appropriate least have at shall The Defendants 44. fully comply shall The Defendants 52. CTF at available member staff one medical of the Memorandum provisions with all day. 24 hours each D.C. the DCDC Understanding between shall personnel medical CTF 45. Hospital. General physician access telephone OB/GYN assign physi- shall The Defendants hours. weekend evening during CTF staff the medical cian, a member or is in need prisoner If a woman gynecologi- or CTF, provides obstetrical who care gynecological emergency obstetrical liaison between care, as a to serve cal hours, shall she evening or weekend during Hospi- D.C. General personnel medical emergency area immediately to taken be tal. Hospi- D.C. General clinic in the OB/GYN maintain shall Defendants obstetrical providing employees tal, unless orderly in an record medical of each content D.C. General care at gynecological and/or manner. confidential emergency main determine Hospital prisoners, pregnant would all Hospital For General room D.C. a medical maintain shall the Defendants appropriate. medically more *26 chart, pregnancy form the POPRAS chart on each provide shall 47. The Defendants regu- a form, together equivalent or an cus- discharged from who is prisoner woman chart; by to or visits All medical lar medical following: tody with health- primary or physician responsible medications of essential supply a a. tests, laboratory orders provider, care reasonably ex- may be until she last will *27 appropriate. ordered trailers. 62. The require Defendants shall a wom- 66. prisoner an The who Defendants develop refuses shall medical and im- care to do plement quality so in presence programs a licensed assurance staff medical monitoring program member who can patient’s delivery answer the ques- ensure the tions provision and continued patient counsel equal concerning adequate and consequences programs of a prisoners. refusal. women accordance policy with DCDC regarding quality assur- 67. The Defendants shall increase the ance, the reasons for refusal shall be ana- number posted of staff or detailed at the lyzed regularly part as of a comprehensive women’s unit at CTF and at the Annex to up-to-date and quality assurance program. ensure prisoners that women are escorted to quality This assurance activity shall be docu- programs, educational recreation, employ- mented. ment, and medical care as scheduled. Suffi- cient staff shall be provided in a manner that III. PROGRAM EVALUATION does not prevent the programming staff from 63. The provide Defendants shall diag- performing any of their duties. nostic evaluations for prisoners women simi- lar to provided those currently for men in the 68. The Defendants provide shall women Reception and Diagnostic Unit prisoners at CTF to at the Annex range with a of aca- determine prisoners’ needs, women interests, demic programs education equivalent that is requirements and for increased programs to the range of academic programs provided and opportunities in academic higher and prisoners to male at the Minimum Security education, vocation, work, religion (Minimum). and Facility recre- regular teach- during absences instructors than three work- more instructors or ers women provide shall Defendants The 69. substitute of a days. provision The ing range of academic with a CTF at prisoners in con- shall not result instructor or teacher to the equivalent programs education increasing into one solidating two classes provided programs academic range of class size. and Oceoquan, Central at prisoners male women provide facilities. Medium shall The Defendants range of vocational awith at CTF prisoners and Annex at prisoners 70. Women equivalent that is programs opportunity education with provided be shall pro- programs days education day, range of (five five vocational per hours for full-time ABE, Oceoquan, prisoners male week) to include vided education basic per facilities. classes. and Medium Education GED, Special Central and two immediately provide shall Defendants provide women shall Defendants 77. The ABE, teachers education basic full-time pro- prevocational two at CTF with prisoners classes GED, Education Special and in dura- six weeks at least to be grams each Annex. those include programs tion. Prevocational shall at CTF prisoners development personal 71. Women teach courses programs higher education to on-site skills skills, employment access skills, living and/or four-year B.A. and/or include which shall Techniques, Awareness Employment as such degree A.A. program, an degree (ETAP) B.S. Lifesltills. Preparation precol- program, and certification gram, a shall Defendants associate The bachelor program. lege of four minimum with a at CTF prisoners variety be offered shall programs including the programs, education vocational offer shall each fields, aat minimum (DocuTeeh). currently place program one leading to study areas of three different to female be available programs shall These days, the Defendants degree. Within A vocational custody levels. all prisoners University of the make the least shall at of 12 to any program program education programs A.A. B.A. of Columbia District employa- that teaches of duration 24 months prisoners CTF. to women available com- a classroom both contains ble skills shall offer The Defendants compo- on-the-job-training ponent for these arrangements financial prisoners operative shall programs Two nent. same that are the education Order. entry of this days within similarly sit- available arrangements those provide women shall Defendants 79. The prisoners. uated male appren- two at least with at CTF immediately shall The Defendants Department as defined ticeship programs at CTF *28 prisoners women provide order. week per of access 30 hours least vocation- programs, prevocational All shall be computers. Women Atlantic Union for added apprenticeships and programs, al during edu- computer the to access scheduled po- the shall at CTF prisoners time, women during free time and program cational job skills with women providing for tential Women weekends. evenings and including An market. local labor an amount marketable with provided be shall prisoners Defendants’ the consideration important their needs. to meet sufficient computers wage- the be shall programs selection immediately shall The Defendants pro- the completion upon capacity earning Union for Atlantic applications the process gram. shall timely manner. and complete affir- materi- conduct and course shall books all Defendants with provided during the enroll- women course. of a women the start to before outreach als mative guidance training. This tutorial substantive receive for vocational period shall ment meeting qualified educators. from staff work the course DCDC entail shall outreach the before month one at least women immediately with shall The Defendants inform to enrollment program for or deadline teachers substitute appropriate provide oner eligible for training work expedite the women that the new programs avail- approval are process. able and to offer full description 90. The Defendants required shall submit programs available applicable crite- paperwork for training work approval 45 participation. for ria days prior to a woman prisoner’s eligibility
82. The date in Defendants shall order complete ensure to process that all contractual date of provide eligibility. used to ser- the event that a wom- prisoners vices to compatible women are arrives with institution with less than 45 days provisions fulfill eligible until she is this Order. work training, for the Defendants expedite shall the paperwork. 83. The Defendants shall provide women 91. The prisoners Defendants deny shall not range Annex of work prisoner woman the opportunity opportunities partici- to equivalent that is to range pate training work based on work her opportunities provided arrival at pris- male or Annex classification oners at Minimum. minimum cus- tody status within previous days or 84. The Defendants shall provide women because of her impending eligibility for half- prisoners at CTF range with a op- work way placement parole. house portunities that equivalent range 92. The Defendants provide shall ade- opportunities work provided to male prison- quate staff, including case managers and vo- Occoquan, ers Central and Medium cational development specialists, to enable facilities. prisoners women to be informed of their 85. The employ Defendants shall capable training work eligibility and complete prisoners women on all work details available necessary paperwork in required time facility at the where prisoners women are frame. housed. These details shall include mainte- 93. The Defendants shall staff a sufficient trades, nance and such as plumbing, carpen- number of vocational development specialists try, and electrical. at the Annex in order to conduct testing, 86. The Defendants shall equivalent offer classes and counseling; completes necessary opportunities industrial by establishing at paperwork and develop jobs, including non- least two industries at CTF or transport- employment, traditional transport wom- ing women from CTF to the in- toen interviews. The Defendants shall dustries at the Facility Central perform vide the vocational development specialist(s) industrial days, work. Within 60 the Defen- with an appropriate vehicle for transporting dants shall submit to plans the Court job women to interviews performing implementation of an program industrial job development activities. prisoners. women 94. The provide Defendants shall 87. The Defendants shall revise the prisoners at the Annex with op- recreational guidelines practices for work training portunities that equivalent to the recre- eligibility days within 30 to take into account ational opportunities provided to prison- male the different sentence structure of female ers at Minimum. permit offenders women’s maximum 95. The Defendants shall participation in work training. *29 prisoners at CTF with recreational opportu- 88. The Defendants will immediately pro- nities that equivalent are to the recreational vide a training work program to all women opportunities provided to prisoners male at prisoners eligible who are under the revised Occoquan, the Central and Medium facilities. guidelines, including those who are at housed 96. The Defendants shall immediately CTF as stated in the CTF Operations Manu- provide all women prisoners CTF, at includ- al. ing pregnant prisoners subject to medical days 89. Within 30 entry Order, of this approval, with recreation seven days per the Defendants complete shall and submit week for at per least five day. hours work training packets for pris- each woman option shall have the going outside or to
941 of vermin. infestation present the eliminate promulgate thereafter shall Defendants The time during this facilities recreation indoor eradication vermin an effective follow and be shall schedule recreation This period. program. this Order. days of 30 within at effective shall Defendants days, the 60 Within the 105. to access given be shall 97. Women the housed prisoner woman each provide are activities recreation variety of same locker vertical one at least dormitories large group Annex including men, available footloeker. dra- one and and crafts intramurals, and arts events, shall Defendants days, the ma activities. Within 30 106. the pillows at and immediately torn mattresses all replace shall Defendants The 98. mat- untom, clean, fire-retardant for Annex the Annex at trailer the recreation open shall The Defendants pillows. a week. days 7 tresses day, per hours 8 at least mattresses of all inspection regular supervise conduct open and shall officers Correctional time, immedi- shall, at that pillows specialist the recreation when trailer the dam- are any mattresses replace shall ately specialist The recreation duty. off adequate prevents degree that aged her duties to a from away pulled or assigned cleaning. at women the specialist recreation as a emergen- anof immediately case Annex, except the shall the The Defendants 107. washable cy- or disposable or liners cart use the laundry at transport An- bags the laundry improve shall Defendants The 99. court, a basketball Annex. adding grounds nex tables. outdoor pit, and volleyball dormito- Annex long as the For as 108. shall, double-bunked, Defendants the women provide shall are ries Defendants The 100. foot of 20 reli- a minimum range of provide days, awith Annex within at the prisoners each light equiva- are prisoner-controlled and services candles programs gious religious range bunk. lent at Minimum. to male Defen- vided immediately, Effective 109. housing units shall all Defendants ensure days, shall dants Within adequate prison- timely, women are issued services Annex chaplaincy provide cleaning supplies. week days per amount appropriate Annex ers chaplain, volunteer chaplain, through staff shall Defendants days, 110. Within members. staff chaplain combination every or a handsinks toilets connect evening include hours shall chaplain’s trailer. Annex those accommodate week during the hours continue shall Defendants in the industry, or details, working women sani- readily accessible sufficient community. industries facilities tary Facility. Central HEALTH IV. ENVIRONMENTAL shall Defendants days, the Within Defendants year, one 102. Within dormi- the Annex ventilation improve the Dormi- Annex population reduce shall shop garment shop and tories, print than more no so that and 7 tories areas in these air quality of so dormitories two housed level. acceptable toup brought combined. shall Defendants days, the 113. Within Defendants year, one Within the Annex system at drainage install of Annex roofs replace repair shall wa- accumulations hazardous prevent will ain them retain 7 and Dormitories ter. condition. watertight *30 promulgate shall Defendants The 114. shall Defendants days, the Within maintenance preventive a written follow pre- and as to so dormitories Annex repair dormitories, the Annex Annex plan shall of vermin refuge entry and vent grounds. trailers, Annex program vermin eradication conduct cluding special meals, diet delivered to the satellite kitchen. Three every times year, the Defen- dants shall cause District of Columbia 122. The Defendants shall promulgate Department of Consumer and Regulatory and follow a written preventive maintenance (DCRA) Affairs inspect the Annex for plan for the CTF that includes maintenance compliance requirements with the of environ- structures, systems, and equipment. mental sanitation and maintenance and food (at delivery service 123. The the main Defendants Minimum com- shall ensure that pound). inspection first such correctional shall officers inspect all be plumbing conducted within days shift, fixtures each date of this shall ensure that Order. Within 30 days plumbing of each inspection, fixture that requires repair will the Warden reported of Minimum shall immediately upon obtain the discovery, and DCRA findings. repaired The Warden shall repair, immediately. The shall Defendants clean, or otherwise remedy logs maintain unsanitary, demonstrating compliance with unsound, or practice unsafe this requirement. or condition by identified DCRA as soon as feasible but in 124. Three times per year, the Defen- no event later than 30 days following the dants shall cause the District of Columbia receipt of the DCRA report. DCRA to conduct inspections of the CTF for days, Within 90 the Defendants shall compliance with the requirements of environ- qualified hire a air balancing contractor to mental sanitation, maintenance and food ser- service the CTF air handling system so that vice delivery. The first inspection such shall provides it an acceptable level of air quality be conducted within days of the date of to all areas of the facility by prison- inhabited this Order. Within 30 days of each inspec- ers. tion, the Warden of CTF shall obtain the 117. In the event that the air balancing DCRA findings. The Warden shall repair, and other repairs recent clean, sys- heating or otherwise remedy an unsanitary, tem at CTF fail to maintain a unsound, minimum cell or unsafe practice or condition temperature of 65°F in cell, every measured identified DCRA as soon as feasible but in at the perimeter wall, the Defendants shall no event later than 30 days following the immediately receipt of the DCRA report.
a. cease housing women in the end cells of tier; each V. FIRE SAFETY provide b. each prisoner woman with two 125. Within days, the Defendants blankets, extra pairs two of thermal under- shall install and maintain a wear, manual fire alarm pairs two socks; of wool system and fire system detection which cov- c. explore means of insulating or heating all ers areas used perimeter cells; walls of the Minimum, including the Annex dormitories. d. report back to the Court. The fire system detection must include 118. The Defendants shall develop and smoke detectors in all sleeping and dayroom implement an effective prevention rodent areas, and smoke or heat detectors in all program. other areas. There must be an automatic 119. Effective immediately, the Defen- retransmission of the systems above to a dants shall ensure that all housing units at constantly attended location outside of the CTF are issued a timely, adequate ap- dormitory buildings. There must also be a propriate amount cleaning supplies. control panel emergency power or send a warning if system Defendants shall use is not cart opera- liners tional. disposable or washable laundry bags to transport laundry between CTF and the Jail. 126. The Defendants must repair or re- 121. -Effective immediately, the Defen- place the fire system alarm in the Adminis- dants at CTF shall monitor the food temp- tration building, the cafeteria gymnasi- erature and delivery times foods, of all in- um at the Minimum main compound. *31 main- shall CTF, Defendants the 134. At storage room culinary the storage in tain the sprin- a install must Defendants 127. sprin- the prevent not does that a manner in and dormitories Annex the in system kler adequately. functioning from heads kler of enclosure fire-rated 20-minute a provide main- dormitories. shall CTF, in both the Defendants located rooms 135. At storage quarter- it test and system sprinkler the tain that all ensure shall Defendants 128. The annually. pump fire the test shall ly and draper- blankets, curtains linens, and bed fire- are of dormitories Annex the ies in con- shall CTF, Defendants the 136. At material. per retardant year, 4 times per 12 times drills fire duct An- immediately, in each documentation keep written shift, shall and Effective 129. conduct shall Defendants dormitory, the drills. such all nex of shift, per year, 4 times per 12 times fire drills of all documentation written keep shall and GENERAL VI. drills. such full in continue shall This Order 137. and conduct shall Defendants 130. The by the effect, modification absent and force training on mandatory semi-annual document complied Court, Defendants until the of- correctional all procedures safety fire years. 5for provisions all with ficers. of costs the are awarded Plaintiffs in accor- immediately, and Effective attorneys’ fees. suit, reasonable and this 2920.1A, No. Order Department with dance shall: the Defendants B APPENDIX build- all inspections of weekly conduct a. hazards, and fire grounds ing[s] ORDER inspections; such document Defendants’ Upon consideration fire all of inspections quarterly b. conduct Judg- Modify Stay and/or Motion in- Revised such document safety equipment, to Defen- Opposition ment, Plaintiffs’ the spections; Mod- Stay and/or Motion Renewed dants’ Mar- Fire Institutional the c. ensure the Reply, Defendants’ Judgment, ify inspections quarterly conducts shal Sur- Plaintiffs’ Supplement, Defendants’ Facility. Motion Motion Status Joint reply, the accor- immediately, and Effective In- Order Modifications Proposing 2920.1A, No. Order Department dance Relief, Plain- Declaratory junctive Department Fire Columbia District ¶¶ 79 and Regarding Motion Status tiffs’ inspections safety fire conduct shall 11th by Order, Court it is every 12 than frequently less Annex August, day of ob- shall Minimum Warden months. the Defen- the portion report within ORDERED Department’s Fire tain Modify Stay and/or Plain- Motion copy to the Revised give a dants’ promptly days and stay seek Defendants shall Thereafter, Judgment the Warden counsel. tiffs’ DENIED; further identified it is safety deficiencies fire cause remedied to be report Department’s Fire ¶¶73 74 of ORDERED report provide or shall days, within VA- 13, 1994 are December Order Court’s why deficien- toas Department Fire Atlan- termination due CATED plan remedied be so cy cannot CTF; it is program College tic Union further deficiency within remedy the further days. exceed not to time period 42 of the 40, 41, ¶¶39, ORDERED days, the Defendants Within 13, VA- December Order Court’s leakage from the water repair shall CATED; further it is high- vicinity of in the rain, particularly 43, 35, 20, 18, 17, ¶¶ 12, ORDERED culinary stor- conduit voltage electrical 87, 71, 75, 70, 67, 60, 58, 49, 50, basement. the CTF located age room *32 recognize report sexual harassment. 102, 115, 123 and 124 of the Court’s Order of Training sessions for prisoners women on December 1994 are amended as follows: sexual harassment provided shall be within a 12. Failure of an employee reasonable report upon time any woman’s entry into allegation of sexual misconduct the D.C. any Department or facts Corrections. and circumstances which would lead a rea- 20. The Defendants shall hire within 90 sonable employee to believe that sexual mis- (a) days: a health educator with appropriate conduct occurring or has occurred shall training in obstetrics and gynecology in a subject employee discipline. position half-time who shall clinical 17. The Department shall conduct man- and health educational services to the entire datory training using certified trainers on prisoner female population (b) at CTF and sexual misconduct for all DCDC employees. additional practitioner, nurse physician’s as- A consultant from the National Institute of sistant special with training in obstetrics and (NIC), Corrections mutually agreed upon by gynecology, or nurse midwife to provide clini- parties, develop shall plan training cal services to women prisoners at CTF. and materials. A “certified trainer” is de- any fined as person who completed has The Defendants shall develop and im- plement “Train-the-Trainer” developed course protocol concerning restraints NIC consultant. monitor(s), if on used pregnant so and postpartum women choose may attend training. provides which that pregnant prisoner shall a. The training shall include transported education in the least restrictive way concerning the possible Defendants’ policies re- consistent legitimate security garding reporting, investigating, pre- reasons. Specifically, protocol shall venting harassment, sexual and the conse- vide: quences for violating policy concerning a. The Defendants shall use no restraints harassment; sexual on any labor, woman in during delivery, or in b. All staff who work with pris- female recovery immediately after delivery; and oners shall be trained certified trainers within six months commencing no b. later During the last trimester of pregnancy August 30, than 1995. After the up initial labor, until the Defendants shall use no training staff, the training will be includ- restraints when transporting a pregnant ed in pre-service training of all staff. prisoner woman unless the woman has dem- Annual retraining shall be conducted to onstrated a history of assaultive behavior or refresh staff on the Department Order re- has escaped from a facility, correctional garding sexual misconduct. ease, only handcuffs shall be used. e. Within year, one selected employees 43. The health educator implement, shall working with prisoners female shall re- within 60 days from day that the health ceive a forty-hour training program on educator hired, an obstetrical gyneco- working with female offenders. A semi- logical health education program that annual, satis- enhancement training on special fies a recognized national medical standard. issues related to working with female of- Educational material should also be fenders made will be offered to selected employ- available in the library. ees. Defen- dants shall maintain adequate documentation 18. Commencing no later than August 30, program so that it can be evaluated by 1995, Department shall conduct mandato- the Court within days after implementa- ry training on sexual harassment using certi- tion. fied trainers for all prisoners current- ly in the DCDC. A consultant If from the woman prisoner is in need of National Institute of (NIC), Corrections mu- emergency or obstetrical gynecological care tually agreed upon by the parties, during shall de- evening or hours, weekend she shall velop the training plan and materials which be taken immediately to the emergency room will instruct on the Depart- at D.C. General Hospital if she is less than 20 ment Order on sexual misconduct and how to pregnant, weeks and admit- OB/GYN upon physician discretion
at prisoner. woman by the request preg- weeks more or if she ting office obstetrical providing ensure shall employees Defendants nant, unless The 67. General D.C. and at to arrive care escorted are gynecological prisoners women and/or emergency recreation, employ- the main programs, determine Hospital at educational be as would manner Hospital timely in a ment, General care at D.C. and medical room prevent not that does appropriate. medically manner in a more scheduled performing from staff programming the each provide shall Defendants The 47. duties. of their has DCDC the whom for prisoner woman Annex custody the at prisoners from discharge 70. Women her of notice advance opportunity the with provided be shall following: CTF the with days day, five per (three hours full-time for medications essential supply of a a. day, five per five hours at CTF per week reasonably ex- may be until she last will Annex) education basic the at week days per follow-up care necessary obtain pected to Education GED, Special ABE, include to community; and her in classes. community to services referrals b. shall CTF at prisoners 71. continuity of care. insure to programs education higher to on-site access prior is released a woman If 48. four-year B.A. a and/or include shall any gynecologi- of results that abnormal time degree A.A. degree program, B.S. by CTF are received tests obstetrical or cal mini- At a program. precollege a gram, for- shall Defendants personnel, medical be offered shall programs mum, bachelor known her last result[s] test ward associate study, and of area one advise shall Defendants address. mailing leading to study of areas different two policy. of this prisoners women comply with shall Defendants degree. ensure shall Defendants The provision 49. of this requirement precollege appoint- to medical transported prisoners days. within on time. ments shall the Defendants days, 75. Within modify their shall or teachers Defendants The 50. substitute appropriate provide women so teach- regular procedures of transportation during absences instructors no Hospital General work- at D.C. three arrive than prisoners more instructors or ers time scheduled before 2 hours a substitute than provision more days. The ing in in- result appointment. not shall their or instructor teacher acceptable beyond size class creasing the prisoners, women pregnant all For 55. time period community standards medical maintain shall Defendants days. school exceeding 15 consecutive awith together form an ACOG on chart women provide visits shall All medical chart. Defendants The medical 79. regular appren- one primary or least physician CTF with responsible prisoners or laboratory Department defined provider, program orders ticeship healthcare *34 shall population reduce the of the Annex Dormitories and 7 so that no more than 135 ROGERS, Judge, Circuit concurring in
women are housed in the two dormitories
part and dissenting in part:
combined.
115. Three times every year, the Defen-
Because I find no
question
novel
of law as
dants shall cause the District of Columbia
pose
would
an obstacle to the district court’s
Department of Consumer and Regulatory
exercise of supplemental jurisdiction over the
(DCRA)
Affairs
to inspect
the Annex for
prisoners’ request
injunctive
relief from
compliance with
requirements
the
of environ-
violations of
§
24^442, I dissent
D.C.Code
mental sanitation and maintenance and food from Part II A of the
opinion.
court’s
Fur-
(at
service delivery
the main Minimum com-
ther, because I conclude that
the court’s
pound).
any
If
area is shown to be in com-
equal protection analysis
flawed,
is
I would
pliance
completion
after
of
inspection,
an
the
affirm the district court’s ruling that
the
mid-year inspection may
abatement
prisoners were denied their Fifth Amend-
inspection rather than full inspection.
At a
ment right
process
to due
by the District of
minimum, DCRA shall conduct full compli-
Columbia’s giving them unequal access to a
inspections
ance
at the Annex two times ev-
variety of programs on the basis of
sex,
their
ery year.
days
Within 30
of each inspection,
and therefore dissent from Part II B of the
the
of
Warden Minimum shall obtain the
opinion.1
court’s
In other respects I concur
findings.
DCRA
The Warden
repair,
shall
in the
opinion.
court’s
clean, or
remedy
otherwise
an unsanitary,
unsound, or
practice
unsafe
or condition
by
identified DCRA as soon as feasible but in
I.
no event later than
days
following the
of
receipt
the DCRA report.
On the basis of its identification of a novel
question of
123. The
District of
law,
Defendants
Columbia
shall ensure that
the
the
court
correctional
concludes that the
inspect
officers
all
district
plumbing
court abused
its
daily,
fixtures
discretion
rejecting
shall ensure
the
District’s invita-
plumbing
tion
fixture that
requires
jurisdiction
repair
decline
pursuant
will be
to reported immediately
1367(c)
upon
§
U.S.C.
discovery,
prisoners’
over
the
claims
repaired in a timely manner.
arising
The
under
Defen-
§
D.C.Code
24-224. While I
dants shall
logs
maintain
join
demonstrating
com-
court’s account
general
struc-
pliance
requirement.
with this
ture of the law supplemental
of
jurisdiction,
Op.
920-21,
I agree
per
Two
year,
times
that the
district
Defendants
court “clearly
shall cause
had
the power”
District of
to hear
Columbia DCRA
prisoners’
to conduct inspections
claims arising
of the CTF
under
for compli-
D.C.Code
§
ance
24-442,
requirements
Op. at
I
agree
do not
environmental
that an
sanitation, maintenance
intolerable
novel
posed
food
issue
service de-
an obstacle to
livery. Within
days
of each
court’s
inspection,
jurisdiction.
exercise of
In the
the Warden of CTF shall
terms of
obtain
supplemental
DCRA
jurisdiction stat-
findings. The
ute,
Warden
repair,
shall
clean,
prisoners’
or
local-law claims did not
otherwise remedy any unsanitary, unsound,
raise novel or complex issues of
law;
local
practice
unsafe
or condition
identified
nor did this
present
case
exceptional circum-
DCRA as soon as feasible but in no event
stances which there were compelling rea-
court,
Like the
I do not
question,
reach the
challenged
whether the
subject
which is one of
impression
circuit,
first
in this
Op.
Title IX.
at 927-28.
all
proved
care have been
duty of
posed
U.S.C.
jurisdiction.
decline
sons
injunctive
granting
conditions
the usual
4) (1994).
1367(c)(1,
§
met,
consider-
Op. at 923—is
been
relief
novelty
degree
course,
some
is
there
Of
end of
“certain”
further toward
ably
legal rules
hoariest
even
applying
presented
issues
than are
continuum
case; there
new
in each
presented
facts
and Doe
General
as Financial
such
cases
novelty
degree
greater
obviously a
is
Ct.
D.C.
Resp.
Board
Prof.
newly
ain
phrase
ambiguous
construing an
(D.C.Cir.1983) (per
F.2d
Appeals,
a district
question
statute.
enacted
case
instant
curiam).
The issue
claim under
a local-law
about
ask
must
power
general
the familiar
whether
not,
novel?”
“Is it
therefore, is
1367(c)(1),
§
Columbia
District
Court
Superior
ask
reason
it?”
but,
novel
“How
§ 11-
relief, D.C.Code
equitable
award
novel
the more
obvious:
question is
ing
whose
statute
applied to
921(a), can be
*35
likely
federal
the
is,
more
the
issue
local-law
by
explicated
has been
content
substantive
of
sense
wrong, in
get it
to
court is
District
of the
decisions
authoritative
several
a
how
differently from
the issue
deciding
Op. at
See
Appeals.
of
Court
of Columbia
See
it.
Unit
decided
would
court
local
eases).
to
By contrast
local
(collecting
921
715, 726,
Gibbs,
383
v.
Workers
Mine
ed
power,
institutional
of
question
this
(1966)
218
1139,
L.Ed.2d
1130,
were
and Doe
General
Financial
in
courts
pendent
of
discretionary dismissal
(endorsing
regulations
concerning
questions
with
faced
“proeur[e]
to
order
in
claims
state-law
been
had never
action
of
and causes
appli
reading of
a surer-footed
parties]
[the
In
all.3
courts
local
by the
addressed
is
“novelty”
of
law”).
question
The
cable
General,
court was
district
Financial
uncertainty;
the issue
question of
really a
difficult
of
number
deciding a
faulted
local
of
the decision
predictable
how
attorney’s duties
an
involving
questions
existing local-law
light of
be in
would
courts
“[n]o
when
transactions
corporate
complex
frame
Thus,
appropriate
authorities.2
provid-
has
Columbia
District
of the
court
appeal
instant
deciding the
work for
de-
standards
regarding
any guidance
ed
Bank
Gen.
in Financial
described
standard
duties, the con-
fiduciary
attorney’s
fining an
768, 776
F.2d
Metzger, 680
shares,
v.
Inc.
provisions
interest
conflict
of the
struction
uncertainty in
degree of
(D.C.Cir.1982): “the
Responsibility,
Professional
Code
of the
should
factors
of several
is one
law
state
F.2d
for breach.”
the remedies
discretion,”
a
albeit
Court’s
District
guide the
its dis-
court abused
Moreover,
district
given considerable
be
“should
factor
ques-
these
decide
reaching out to
cretion
weight.”
on which
claims
the federal
all of
when
tions
been
had
founded
was
jurisdiction
original
standard,
this
appropriate
light
present
not
that is
dismissed, a factor
by the
relied on
those
from
differs
case
Doe,
769,
As
Id. at
instant case.
by the
raised
issues
local-law
The
court.
issues
the local-law
court characterized
this
The
novel.
simply not
claims
prisoners’
Re-
on Professional
the Board
“[w]hether
as
court
by the
cited
issue
local-law
sole
necessary
records
subpoena
may
sponsibility
has
court
trial
local
“novel”—whether
mandate
regulatory
of its
performance
ongoing
injunctions when
impose
power
Appeals
to Court
give
construction
what
im-
statutorily
of a
violations
systemic
law.
local
on
based
pled a claim
shortage
even
no
Thus,
there is
when
even
injunction based
entered
had
court
court
district
district
question, the
authority
aon
law,
vacated.
among
court
which
solely
where a conflict
federal
claim
on
a local-law
dismiss
inappropriate
uncertain.
the issue
be
would
leaves
that it
held
court
the authorities
This
Tenants
Towers
Gallagher v. Alban
attempt to reinstate
&
plaintiff
Edmondson
permit the
(D.C.Cir.1995).
Assn,
re-
F.3d
claim
adding a local-law
injunction
been
had
mand,
claims
federal
now
Barry,
F.2d
v.
Grano
is true
same
now
"[E]ntertaining
claim
such
dismissed:
court,
by the
(D.C.Cir.1984),
cited
also
taking jurisdic-
initially
like
be somewhat
would
was
issue
initiative
ballot
local
in which
no
there is
when
law issue
local
over
tion
sharply
ambiguous and
meaning
its
[and]
“new
Id.
pendent.”
be
it could
to which
claim
moreover,
case,
federal
plaintiff had
In that
disputed.”
regulations governing the Board’s exercise of
See DANB.
Dobbs,
7.4(4)
Law
of Remedies §
its
subpoena power-”
asserted
(2d
ed.1993)
F.2d
(describing prevalence of struc
at 1428. Doe thus involved the construction
injunctions
tural
rights cases,
civil
includ
grant
authority
to particular
ing prison
local
litigation).
reform
Whatever oth
entity, question
that could not be
objections
answered
er
might be raised to the district
any certainty
without a local decision on court’s enforcement of local
case,
law this
subject.
Both Financial General
therefore,
it cannot be said that the court’s
Doe
stand
contrast
to the purportedly
action was novel. See Campbell v. McGru
“novel” issue raised by
prisoners,
der,
416 F.Supp.
(D.D.C.1975) (for
is whether well-settled remedies
gen-
rules of
violation,
constitutional
imposing mandatory
eral applicability should
applied
injunction
then-
part
that in
required local agencies
case.
to remedy
fire,
violations of local
building,
health,
housing,
regulations
and food
at D.C.
Nor can there be any doubt that the law of
Jail); Campbell McGruder,
580 F.2d
remedies is well-settled in the District of
(D.C.Cir.1978)
544 n. 47
(noting that
ap
no
Columbia. The District of Columbia Court
peal had been taken from
portion
Appeals
has repeatedly held that the local
injunction).6
trial
enjoys
equitable jurisdiction
broad
pursuant
ll-921(a).
§
to D.C.Code
Hessey
The court raises
arguments
three
in sup-
*36
Burden,
v.
562,
615
(D.C.1992)
A.2d
(col-
571
port of its conclusion that the district court
lecting cases);
v.
McIntosh Washington, 395 abused its
discretion
entertaining local-
744,
(D.C.1978).
A.2d
748-49
The standards
law claims that were
jurisdiction.
within its
governing the
equitable
exercise of
powers First, the court notes
injunctions
that
were
are also well-defined.
v. District
Co-
“never regarded
Ifill
as
of
of
resort,”
relief
first
lumbia, 665
185,
(D.C.1995).
A.2d
187-88
cites the ancient rule
equitable
that
relief will
Finally, the use of
powers
those
to effect
if plaintiff
lie
has an adequate remedy at
change
institutional
in variety
of
gov-
law,
local
points
out that
variety
“a
factors,
of
ernmental departments
agencies
is al-
including
public interest,
the
may weigh
most a commonplace
jurisdiction,4
in this
as
against the award
injunction.”
anof
Op. at
it is in state courts5 throughout the Nation.
922.
respect,
With
none of this has anything
E.g.,
4.
Kelly v. Parents United
the D.C. Pub.
Although
for
the District of Columbia is not a
Schools,
159, 163,
641
state,
A.2d
(D.C.1994) (af-
165
its
system
local court
enjoyed
has
powers
firming permanent
injunction
noting
commensurate with
that
those of the states for a
quarter
trial
of
"ordering
century.
considered
States,
Palmore v.
school closures
United
389,
2,
411 U.S.
1670,
392
n.
93
2,
incarceration with
S.Ct.
work release
responsi-
1674 n.
for
(1973)
36 L.Ed.2d 342
("Congress
ble
...
District
possible
officials as
invested
sanctions" when
the local
jurisdiction
courts with
equivalent to
District
comply);
failed to
Savoy,
In re
Nos. 70-
that
courts”);
exercised
409,
state
id. at
70-4714,
93
&4808
Daily
98
Rptr.
L.
Wash.
1937
S.Ct.
(noting
at 1682
that the functions of the
(D.C.Super.
13, 1970)
Ct. Oct.
(imposing struc-
District of Columbia courts are "essentially simi-
injunction
tural
juvenile
facility);
detention
lar to those of the local courts found in the 50
Savoy,
J-4808-70,
re
etc.,
Nos.
Daily
101
Wash.
States
Union").
of the
McIntosh, 395 A.2d at
Cf.
Rptr.
L.
(D.C.Super.
20,
317
1973)
Ct. Feb.
749 n.
(“Congress
...
intended to transfer to
(same);
Kelly,
Pearson
92-CA-14030,
No.
the new local courts all
judicial pow-
those local
Daily
Rptr.
Wash. L.
1837 &
(D.C.Super.
ers previously exercised by the United States
18,
Aug.
1994)
Ct.
(appointing
over
receiver
De-
District Court for the
Columbia.”)
District of
partment
government
of District
judges
The
repeated
Superior
vi-
Court of the District
law).
olations of federal
See
Columbia
also
would
DeNeen L.
surprised
therefore be as
judges
Brown &
Parker,
the
Lonnae
O’Neal
general
state
Again
court of
equitable
Schools
jurisdiction
Running
Code,
suggested
to hear it
Finds,
D.C.
Judge
Fire
that
Afoul
lacked
authority
3, 1996,
to
July
impose appropriate injunctive
at Bl.
Wash.
In the Matter
Post,
Cf.
relief in the face of ongoing
an Inquiry
institutional
Allegations
into
failure
Misconduct
legal duty
meet a
of care.
Against Juveniles Detained at and Committed at
Institution,
Cedar Knoll
1087, 1093,
430 A.2d
The District
appeal
did not
the district
(1981) (Ferren, J.,
dissenting) (noting pow-
finding
court's
in the instant
general
cases that
er of
Superior
branch of
Court to
sweep-
award
living conditions at the Annex and CTF and fire
ing
injunction
structural
in properly pled class
safety at the Annex
Eighth
violated the
Amend-
action).
Op.
ment.
at 928.
availability of
court,
because
by this
ed
opposite,
Quite
novelty.
to do
ordinary principle
is an
relief
equitable
were for-
by the court
cited
the rules
fact:
the conditions
law, assuming that
tort
long before
by the Chancellor
mulated
met.
Restatement
been
have
relief
such
See
existed.
even
Columbia
District
(1979).
no
This is
§ 936
(second)
ToRTS
history of
(reviewing
§ 2.5
supra,
Dobbs,
prisoners’ cause
simply because
less true
reme-
adequate
noof
requirement
equitable
statute.8
from a
arises
of action
too
court was
law).
If
district
dy at
relief,
would
that
equitable
awarding
and histo-
hasty in
the text
[Although
examine
we
prisoners’
merits
on the
Con-
whether
an error
to determine
a statute
ry of
question
to do with
nothing
having
right of
action
claims
create
intended
gress
enter-
been
ap-
should
availability
claims
of all
whether
presume
... we
would
mistake
has
place.
Congress
first
unless
tained
propriate
remedies
law, rather
princi-
of well-settled
misapplication
This
be a
otherwise.
expressly indicated
develop-
future
predict
jurisprudence.
a failure
in our
deep
than
roots
ple has
courts.
in the local
issue
unsettled
of an
ment
Schools,
County Pub.
v. Gwinnett
Franklin
S.Ct.
can
that “we
point
second
court’s
course,
Ordinarily, of
(1992).
L.Ed.2d
award-
court has
a D.C.
in which
case
find no
duty
of a
violation
remedy
an isolated
24-442.”7
section
under
relief
injunctive
ed
however,
Here,
damages.
money
care is
local
theory
922. The
Op. at
violations
persistent
alleged
plaintiffs
causes
among
classify § 24-442
might
courts
them
ongoing harm
threatened
princi-
“ordinary tort
apply
of action
local
pursuant
injunctive relief
prayed for
permit
among those
than
rather
ples,”
injunc-
An
Grano,
law,
733 F.2d
is no
There
Id. at
cf.
relief.
equitable
such
remedy when
“appropriate”
is the
tion
local
however,
reason,
suppose
proven.9
claims
dichotomy invent-
embrace
would
courts
*37
court,
by the
on
argument not relied
for the ab-
explanation
suggests an
7.History
local
the
because
contends
the District
of
District
in which
cases
of local
sence
require
the substantive
have construed
courts
injunctive relief
imposed
have
courts
Columbia
analogous fed
light
of
§ 24-442 in
of
ments
§ 24-442.
D.C.Code
of
finding a violation
upon
(1994), it would
statute,
§
U.S.C.
4042
18
eral
Reform
Court
the D.C.
Congress enacted
Until
local
under
available
remedies
also limit
1970,
91-
Pub.L.
ofAct
Procedure
Criminal
and
law. See
federal
under
available
to those
law
473,
courts
29, 1970),
the local
(July
84 Stat.
358
Columbia,
731
A.2d
387
v. District
Matthews
of
transfer
jurisdiction. The
of limited
courts
were
States, 534
(citing
v. United
(D.C.1978)
Jones
courts
the local
the federal
jurisdiction from
of
Cir.1976),
denied, 429 U.S.
(5th
53,
rt.
54
F.2d
ce
29,
July
after
completed
months
until 30
not
was
(1976)).
487,
586
978,
50 L.Ed.2d
S.Ct.
97
479, citing
id.,
D.C.Code
Stat.
84
See
sov
waived
has
government
the federal
Whereas
injunctive relief
seeking
Litigation
§ 16-2901.
per
immunity in
circumstances
ereign
these
correc-
of Columbia
District
in connection
however, the munici
only,
damages
money
mit
completed transfer
predated
facilities
tional
smaller
of
is much
immunity
the District
pal
courts,
history
federal
long
has a
immunity
has
sovereign
law
scope, and local
constitution
premised
violations
sovereign
federal
independently from
developed
§ 24-
D.C.Code
necessitating
no recourse
thus
Colum., 310
Wade v. District
immunity law.
prison-
that D.C.
asserts
Although
banc).
(in
fre
(D.C.1973)
857, 860-61
A.2d
strangers to
are no
injunctive relief
seeking
ers
ordered
have
local courts
quency with
cases,
922,
courts,
no
Op.
it
cites
the local
depart
against District
injunctions
structural
that D.C.
to assume
reason
is no
there
hence
inde
to this
bears witness
agencies
ments
for viola-
injunctive relief
sought
prisoners have
pendence.
courts
the local
§
24—442
of D.C.Code
tions
Ct.,
support
540 N.W.2d
See,
in-
not
Dist.
will
v. Iowa
e.g.,
statute
that the
Bear
ruled
Bank,
moreover,
248
1995);
(Iowa
v.
439,
lo-
FirsTier
suggest,
Riha
To
junctive
441
relief.
(1995);
632,
v.
Stern
"usurpation]”
785,
637
engaged
N.W.2d
539
be
Neb.
would
cal court
21, 626
Corp., Misc.2d
§
165
24-442
Svcs.
Delphi
Internet
D.C.Code
it to find violations
were
694,
(N.Y.Sup.Ct.1995); Ducham v.
powers under
696
injunctive
N.Y.S.2d
its
to invoke
1002,
436,
1006
Tuma,
P.2d
877
923,
11-921,
goes
the mer-
265 Mont.
Op.
§
D.C.Code
rel.
ex
v. State
Dep’t
Co.
(1994); May
Stores
own view
court's
local
simply ignores the
its and
1993);
(Colo.
967,
Jensen
Woodard,
978
P.2d
863
authority and its
its remedial
breadth
77,
Co.,
603 N.Y.S.2d
82 N.Y.2d
Burden,
Elec.
v. General
Hessey v.
See
of them.
invocation
547,
(1993);
Kaplan
426,
420,
N.E.2d
571,
supra n. 4.
A.2d
holding
The court’s
thus resolves to this: it
treated
other
doctrines.
Section
intolerably
is
novel for a district court
1367(c)(4)
is a
provision;
catch-all
it permits
assume that
generally
remedies
applicable to
the district court to recognize situations un-
persistent institutional violations of duties of
foreseen by the drafters in which it is appro-
care
apply
will
to such
particu-
violations of a
priate
jurisdiction.
to decline
By using such
lar duty of
until
care
the local
apply
courts so
words as “exceptional” and “compelling,”
it —even when
there
no local authority
however, Congress indicated that invocations
remotely suggesting that
general
rule
1367(c)(4)
§of
should
rare.
be
Executive
would
apply.
not
That cannot be the law.
Amer.,
N.
Inc. v. United
Software
States
noted,
As
application
aof well-settled
Ct.,
(9th
Dist.
1545,
Cir.1994).
F.3d
general rule to a current
always pres-
case
In particular,
is no
there
“compelling” reason
ents some degree
novelty.
It is
excep-
jurisdiction
to decline
where other doctrines
tion, however, for the district court to decline
protect
exist to
the interests purportedly
to exercise supplemental jurisdiction, see 13B supporting dismissal.
Supreme
Court
Wright
al„
ChaRles Alan
et
Federal
Prac-
cases cited
the court
require
caution
§
3567.3 & n.17 (Supp.
tice
ANDProcedure
in deciding when
impose
a structural
in-
1996), and therefore
application
gen-
of a
junction and further caution in fashioning
eral rule in the
particular
context
case
injunction,
such an
for example,
create
must
fairly
uncertain before a local-law
doctrine of
remedies
protects states and
claim
be dismissed.
say
To
localities
overly
from
intrusive and far-reach-
local-law claims in this case
only
may but
ing federal oversight of local institutions.
must be dismissed
suggest
is to
that it is the
Op. at 919-20 (citing,
alia,
inter
Lewis v.
supplemental
jurisdiction
exercise
that is
—
Casey,
-,
2174,
116 S.Ct.
the exception.
(1996)).
L.Ed.2d 606
Abstention doctrines
The court turns finally to
para-
another
also recognize
important
interests of
graph
§of
asserting that
the “intru-
states in retaining control
complex
matters
“[anjother
siveness” of
remedy
compel-
of local administration. E.g.,
v. Sun
Burford
ling reason[ ] for declining jurisdiction.” Op.
Co.,
Oil
315, 317-18,
319 U.S.
(citing
1367(c)(4)).
§
28 U.S.C.
Again,
1098-1100, 87
(1943);
L.Ed. 1424
Louisiana
the court
question
confuses the
whether the
Power
Light
&
Co. v. Thibodaux, 360 U.S.
district court was correct on the merits with
25, 29,
S.Ct.
II.
A.
analysis is
protection
equal
court’s
the same
commit
people
Two
flawed.
also
a feature
analysis starts from
Proper
by Dis-
similarly convicted
Each is
crime.
chal-
not been
that has
prisons
the District’s
respects—
In all
court.
of Columbia
trict
separation of male
physical
lenged:
circumstances, edu-
family
history,
criminal
Because
prisoners..
female
team—
use,
baseball
cation,
favorite
drug
segregation,
sex
challenged
one,
is:
save
All
identical.
they are
segregation
such
assume
must
Solely because
sexes.
they are
different
words,
sex-
this facial
other
lawful:
to different
difference,
are sent
of that
gov-
important
“serves
classification
based
superior
enjoys
man
at which
facilities
...
the discrimina-
objectives
ernmental
than examine
Rather
options.
programming
substantially relat-
are
employed
tory means
separate
its
justify
can
the District
whether
objectives.”
those
achievement
ed
however,
sexes,
—
treatment
unequal
-,
U.S.
Virginia,
v.
States
United
equal
concludes
concludes
the court
2271,
2264,
135 L.Ed.2d
-,
apply:
not even
do
principles
protection
Mississippi Univ.
(“VMF)
(1996)
(quoting
not “simi-
prisoners two identical
these
Hogan, 923-25.
Op. at
(1982)).12
larly situated.”
L.Ed.2d
S.Ct.
however,
assumed,
is the
not be
should
What
flaws
there are
surprisingly,
Not
*39
by
challenged
very practice
the
of
people
propriety
that identical
concludes
analysis that
if the District
Even
prisoners.
it
the
because
court errs
The
similar.
are not
sex, it
does
prisoners
segregate
properly
be-
middle,
at the
than
rather
starts
by sex
them
may segregate
it
that
follow
similarly situ-
not
consigns
District
ginning.
doctrinal
Put
in
unequal
into
facilities
separate
to
women
facilities.
men
ated
objec-
governmental
terms,
“important
the
characteristics,
ex-
acting
having different
separation
physical
by the
served
The court
tives”
their
sex.
the basis
on
pressly
by pro-
necessarily served
not
are
sexes
the
the
characteristics
different
the
relies
segregated
to
benefits
viding different
iden-
otherwise
that
to conclude
facilities
wom-
depriving
Thus,
justify
to
populations.
therein
incarcerated
women
tical men
available
choices
programming
en
situated,
on that basis
similarly
are not
depri-
how
explain
men,
must
District
eompari-
judicial
no
can
there
be
that
holds
con-
prisons and
segregated
Note,
for sex
Herbert,
tifications
Rosemary
Women's
12. But cf.
Constitu-
prisons violate
Evaluation,
cluding
tion).
such
that
Equal Protection
Yale
An
Prisons:
jus-
(1985) (considering possible
L.J.
substantially
vation
relates to the achieve- would require no
justification.
further
Less
important
ment of an
governmental objec-
fancifully perhaps, the
District could
tive.13
v. Thornburgh,
Pitts
866 F.2d
only stereotypically feminine programming
(D.C.Cir.1989);
1453-55
v. Virginia
West
at the
prisons,
women’s
cooking
such as
Corrections,
Dep’t
954 similarly-situated ties.19 The court’s analysis similarly were not situated with respect encourages the District to take such imper- purpose of Selective registration. Service ' By immunizing missible actions. the District purpose The registration prepare was to from comparison of programming at [Wjomen for a draft of troops.... combat men’s and prisons, women’s deci- court’s are excluded from combat.... Men and sion result having more “woman- women, because of the combat restrictions appropriate” programming at the women’s women, on are simply not similarly situat- facilities. Subjecting programming choices ed purposes or a registration of draft to appropriate equal protection analysis en- for a draft.... exemption of women sures that the District meets its constitution- registration from is only not sufficiently al obligation give equal opportunities to closely but also to Congress’ pur- related male and female individuals. The court errs pose in authorizing registration. by exempting comparison from the benefits provides District to men pris- 77-79, women Id. at 101 S.Ct. at (emphasis 2658-59 oners, exempting and thus added). the District from contrast, the court repeatedly having to justify its different treatment of states that men and women are not the sexes. similarly situated without ever mentioning purpose with respect to which they are dissimilarly situated.20 It
B.
is
unsurpris-
thus
ing that the court fixates on such irrelevan-
Aside from treating
government-im-
facilities,
cies
the size of the various
posed segregation of the sexes into different
have everything to do with the cost of admin-
generis
facilities as if
sui
were
and of no
istering programs and nothing to do with
constitutional importance, the court also mis-
determining which
similarly
inmates are
ca-
conceives what it
persons
means for
to be
pable
benefiting
from
Notably,
them.21
“similarly
purposes
situated” for
equal
this was not an error into which the district
protection analysis.
(or
two
Whether
people
See,
court fell.
e.g.,
I,
Women Prisoners
people)
classes of
differently by
treated
F.Supp. at
(finding
women at the Annex
government
similarly
are
situated depends
similarly situated to
atmen Minimum with
purpose
government
for which the
is
respect to
purposes
of programming be-
acting.
Klinger Department
v.
Correc-
Cf.
cause “[b]oth of these populations
pre-
are
tions,
727,
(8th Cir.1994)
31 F.3d
734-35
paring for release into the community and
(McMillian, J., dissenting) (noting that men
therefore[ ] have the same
fully pre-
need to
imprisoned
women are
for the same
pare
stage
lives”).
themselves
of their
purpose
similarly
and are
situated “with re-
See also Klinger, 31 F.3d
(McMillian,
at 735
spect
goal
rehabilitation”);
Glover,
J., dissenting) (noting that men and women
F.Supp.
at 1081-83 (considering goals.of
equally capable
of benefiting
from
incarceration and programming).
In Rostker
grams).
v.
Goldberg, 453 U.S.
101 S.Ct.
(1981),
L.Ed.2d 478
for example,
Su-
Determining the purpose
government
preme Court concluded that men and women
action before embarking on a similarly-situ-
The District asserted
had more
compared
them
we
...
need
examine
not
men,
problems
acute substance abuse
than
but
Op.
themselves ...."
at 927-28.
rejected
the district court
the assertion as un-
founded
record. Women Prisoners
21."It
is well-settled
hardship
that financial
F.Supp.
however,
clear,
at 676. As J.E.B. and VMI make
not a defense to sex
prisons.”
discrimination in
true,
even if the assertion were
it would
Klinger,
(McMillian, J.,
F.3d
dissenting)
justify using
proxy
drug
sex as a
addic-
(citing Shapiro
Thompson,
394 U.S.
tion.
1322, 1330,
(1969)).
person’s sex
programs
for
separate
whether
stitutionally provide
the question
answer
not
would
arbitrarily.23 It
sexes,
be substantial-
being
programs
treated
must
is
individual
—
every
at-,
VMI,
in which
rare situation
only
equivalent.
U.S.
ly
is
identically
Sweatt);
class is
(quoting
Glo-
quasi-suspect
aof
at 2285-86
member
116 S.Ct.
governmental
to the
court
respect
ver,
The district
with
at 1079.25
situated
Rostker,
can
in which
does
purpose,
applied this standard.26 This
correctly
as
class member’s
any
however,
individual
must
mean,
all women
conclude that
that
not
rejected
“the threshold.”
at
can
choices
programming
claim
be
access
have
to
be-
cases,
general
if
differences
even
Rational sex-neu-
other
man.
to
are available
can be
women
and most
evenhandedly
men
men
criteria,
tween most
to
applied
tral
provide
must still
discerned,
government
eligi-
women,
to determine
used
for
justification
“exceedingly persuasive”
J.E.B.,
at
511 U.S.
See
bility
programs.
differently.
sexes
treating the
n.16;
categorically
Op. at
n.16,
at
&1429
-&
114 S.Ct.
—
-,
2275.
VMI,
116 S.Ct.
Regina Gil-
testimony of Ms.
(quoting
custody
If
Ryan).
level
Dr. T.A.
more
pur-
consider
failure to
The court’s
criterion,
example, then medium-
such
at issue
of the various
poses
programs
to
not be entitled
custody
would
understandable,
as
inasmuch
perhaps
to minimum-cus-
only
available
made
gov- grams
any.
It is the
supplied
not
has
District
However, if
District chooses
tody men.27
with a
to
forward
come
burden
ernment’s
‘sepa-
provide
can
question whether States
prisoners can be
suggest that
to
is not
22.
This
undergraduate institutions
equal’
rate but
only
reference
programs
excluded from
females”).
governmental inter-
males
purpose.
programs’
Other
administering a
ests,
safety
public
as
such
support an exclu-
furlough program, could
work
See,
F.Supp. at
e.g., Women Prisoners
26.
sion.
respect
voca-
to
(finding
with
no violation
apprenticeships because
training and
tional
Schulhofer,
at Minimum
Penn.
Annex
men
supra
at the
n.
“women
See
offerings”);
meager
id.
to
equivalent access
at 2201.
L.Rev
to
(cid:127)
“fail[ed]
(finding
District
de-
area
work
equivalent opportunity
equal protec-
did
address
not
The District
tails”);
although
(finding
the industrial
id.
portion of
reply
The relevant
brief.
until
tion
its
Minimum differed
Annex and
programs at the
challeng-
solely to
opening
was devoted
brief
its
prove
content,
plaintiffs “have failed
findings
IX viola-
of Title
ing
court's
the district
receive industrial
prisoners ... do not
wheth-
concerned
of that discussion
tions. Most
equivalent
male
opportunities
thus
"educational”
were
er certain
order) (ordering
(¶
....”);
84 of
id. at
35-37,
brief at
Appellants’
subject
Title DC.
with a
at CTF
“provide women
the District to
quotation from
lengthy
consisting largely
aof
equivalent to
that is
range
opportunities
of work
was no
any event
there
Klinger,
added
provided male
opportunities
range of work
prisoners were
female
because
IX
Title
violation
Occoquan,
Central
Medium
prisoners at the
Only in
prisoners.
similarly
to male
situated
facilities”).
argu-
its
extend
reply
did the District
brief
equal protection.
ment to cover
medium-custody women
example,
In this
similarly
minimum-
situated
would not be
VMI,-U.S.
116 S.Ct.
at-n.
But
see
just
program,
respect
custody
men with
720 n.
Hogan,
(quoting
458 U.S.
n.
ineligible for
categorically
were
(“we
women who
1)
are not faced
n.
at 3334
*43
to
minimum- and
house
medium-custody
The
analysis
district court’s
accounted for
facility,
legitimate,
women in the same
it cannot use
sex-neutral
criteria in comparing
deny
programs
fact
the
to
the
to
available to men
minimum-custo-
to those avail-
able to
is,
notes,
women. As
dy
the court
women. That
the
may
District
the
not
district
levels,
court
“custody
considered
sen-
differently
treat
men and women who are
structures,
tence
purposes
of incarcera-
sex, something
identical but for
it surely
tion”
prisoners.
Op.
the
at 924 (quoting
by sending
would do
minimum-custody wom-
I,
675).
Prisoners
877 F.Supp. at
en
facility
to a
provided
where
are
appeal,
On
the District has not shown that
programming
inferior
to the programming
ignored
district court
any relevant crite-
minimum-security
available to
men.
brief,
rion.
In its opening
the District lists
four criteria: number of
When
inmates
an
permissibly
the sexes
at
insti-
segregat
are
tution, “length of stay,”
ed,
level,
classification
equivalence”
“substantial
may
require
“special
characteristics.” As previously
perfectly identical treatment.
Some differ
explained, the first and last of these are
ences
be unavoidable
because
analytically inappropriate,29 and the district
physical separation. Moreover,
peculiar
expressly
court
considered the other two cri-
circumstances
administration may
reply brief,
teria.
In its
the District focuses
require different programs
entirely
almost
physical
differences
Pitts,
housed in different facilities. See
between the facilities to which it has chosen
F.2d
1455.
programming
at
While
decisions
assign
to
otherwise identical men and wom-
by
are to made
by
be
the District and not
en,30yet
physical
such
by
differences caused
court,
Pearce,
Jeldness
30 F.3d
cf.
the District itself cannot alone excuse sex-
(9th Cir.1994)
(applying
IX pris
Title
based
court,
discrimination.
meanwhile,
on programs), the District must show that
faults the district court for not considering
the important penological
implicat
interests
population size,
physical
other
aspects of the
by
ed
policies
of its various facilities have
sex-segregated facilities,
“special
charac-
relationship
substantial
to the denial of
teristics,” which are
improper
all
bases for
by
prisoner
access
a female
program
treating
differently
women
from
Op.
men.
at
prisoners.28
available to male
North Ha
Cf.
Otherwise,
924-26.
the court
cites
list of
Bell,
ven
Bd.
Educ. v.
456 U.S.
criteria culled from the testimony of two
(1982).
S.Ct.
would *44 consider evidence further receive Elliott, F.3d Pargo v. criterion. relevant COM- FEDERAL COMMUNICATIONS Cir.1995). (8th The States United MISSION reasons, I conclude For these America, Appellees/Respondents, no error demonstrated District has court district analysis. The district court’s America’s Public Association at imprisoned that women correctly found al., Stations, et Television inferior receive and CTF the Annex Interveners. None of sex.32 of their gramming because can by the court mustered arguments 93-1384, 93-5349, 93-1266, Nos. the Dis- fact that inescapable change the & 93-5351. 93-5350 would, solely on basis policies trict’s con- people, identical sex, otherwise two send Appeals, States Court United crime, same facing the same of the victed Circuit. of Columbia District pur- sentence, same imprisoned substantially un- offering to facilities pose, 20, 1995. Argued November court, by ignoring equal programming. to take District fact, require August does Decided parity steps to assure minimal even most the sexes. between opportunities of access Unfortu- requires more.
Equal protection Consti- and for the prisoners,
nately for the chosen to follow
tution, has the court mistakenly circuit
example another provide, government “could
believed that principle, equal protection fidelity to the unequal educational separate — VMI, at women.” men and 44 F.3d
-, (reversing at Cir.1995)). (4th from dissent
Accordingly, respectfully I decision, II B court’s II
Parts A order portions remand the
and would opinion so that parts those
vacated if impact, consider the could
the district of 1995. Act Prison Reform
any, of the court, the district (“[t]he Op. overlooks I, F.Supp. at 675 Women Prisoners similarly findings regard to educational specific compare who are court's Court will custody alia, support lev- conclu- similar of its virtue of their opportunities, inter situated ("[a] els"); CTF] comparison [of women id. not have reasonable CFT do sion that “women inappropriate because would CTF men and do men] [as opportunities for similar studies diagnos- CTF for short-term either men reside participate in equal opportunity to not have an voluntary intensive 18-month of a tic attention quality are available comparable [as programs of (comparing program”); id. abuse substance F.Supp. at Prisoners men].” because men at Annex Minimum to women at commu- into the preparing release both "are nity”). notes and other laboratory test results follow-up care necessary pected obtain preg- care medical to the relating orders community; and in her recorded be shall prisoners nant women community to services referrals b. form. or consultation form the POPRAS care. continuity of insure im- develop and shall The Defendants 56. prior to released is If a woman 48. consultation a new days, within plement or any gynecological time that results informa- adequate clinical provides form that by medi- CTF are received tests obstetrical and insures Hospital General to D.C. tion forward shall the Defendants personnel, cal by provided information adequate mailing known last to her results the test per- medical to CTF Hospital D.C. General address. sonnel. suffi- provide shall The Defendants institute, main- shall The Defendants are prisoners to insure cient resources to coordinate system follow tain and in a appointments medical transported to or- tracking physician implementation number fashion, including a sufficient timely obstetrical gynecological so that ders ap- prisoners, transport security staff timely fashion. provided within be care will vehicles, transport and sufficient propriate re- all orders coordinate system shall waiting areas. appropriate orders physician of whether gardless facility. outside or filled inside to be their modify shall The Defendants in written reflected system shall be This trans- that the so procedures transportation shall of which copy guidelines, procedural cause does not alone system portation within Plaintiffs counsel provided be hour one than for more wait prisoners to to be are not medication days. Orders receiving medi- Hospital before D.C. General system. this under tracked care. cal procedure ation. The for the needs assess- ment by shall be done an approved scientific 58. Documentation required shall be method. These evaluations shall complet- whenever CTF medical staff elect not to ed days within 30-45 prisoner’s follow the of a female consulting instructions physi- transfer to CTF Hospital cian at D.C. General or Annex. or The evalua- elsewhere. This tions documentation shall justifi- should include the include educational testing, voca- cation for providing testing tional therapy and psychological testing. ordered. Only medically-based justifications Defendants provide shall shall be women with the permissible. appropriate programming called for days evaluation within 60 of their arrival at 59. For all prisoners who are dis- facility. charged from D.C. Hospital General or other CTF, medical facilities to per- medical 64. The Defendants shall coordinate the sonnel shall promptly obtain a discharge scheduling classes, academic educational summary and maintain the summary in the higher classes, education training, vocational prisoner’s medical record. activities, recreation time and library law 60. Prisoners shall receive notice of re- hours, and work in details for women of laboratory sults diagnostic or tests which in such a manner as to maximize women are of no significance clinical within seven prisoners’ participation in many as areas as days calendar date the facility receives possible. of such results test. 65. The provide Defendants shall suffi- In the case of non-emergency abnor- cient program space so that women laboratory mal diagnostic or test results of can participate equal adequate clinical significance, prisoner will be seen grams and compared as services pris- to men by the ordering physician, if physi- oners. The Defendants shall at least unavailable, cian is Officer, the Medical two additional (with trailers at the Annex within 24 hours of the time facility re- sanitary facilities) functional to allow for ad- ceives the results of such test. At such time ditional programming activities. Within 30 physician explain will the result days, the Defendants submit for the patient and order follow-up such care Court’s consideration an alternative to
Notes
notes and other results laboratory test tests, order. care medical relating to orders De- revise shall Defendants be recorded shall prisoners pregnant prac- guidelines of Corrections partment form. consultation or form ACOG within placement training for work tices sen- different into account required take days shall 58. Documentation offenders female structure elect staff medical tence whenever participation maximum consulting physi- women’s permit instructions follow training. or Hospital elsewhere. work D.C. General cian justifi- immediately include should documentation This shall Defendants ordered. therapy CTF, providing includ- for not cation prisoners all medical subject ing pregnant of nor- notice receive shall Prisoners twenty-five recreation approval, tests diagnostic laboratory results mal later than days following receipt per hours week. Women shall have op- report. DCRA tion going outside or to indoor recreation It is further facilities during the period. time This recre- ation schedule shall be effective at CTF with- ORDERED that all deadlines shall run days of this Order. from the entry date of of this Supplemental year, Within one the Defendants Order.