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WOMEN PRISONERS OF THE DIST. OF COLUMBIA DEPT. OF

December 13, 1994

WOMEN PRISONERS OF THE DISTRICT OF COLUMBIA DEPARTMENT OF CORRECTIONS, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: JUNE L. GREEN

 I. INTRODUCTION

 This matter is before the Court after a three-week trial, including the submission of approximately 900 exhibits and hundreds of pages of deposition and transcript testimony. On December 1, 1993, the Court granted the Plaintiffs' Motion for Class Certification pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(1) and 23(b)(2). The class is defined as all women prisoners who are incarcerated in the District of Columbia correctional system as of October 1, 1993, and all women prisoners who will hereafter be incarcerated in the D.C. correctional system.

 Women prisoners in the District of Columbia are incarcerated in three facilities: the Lorton Minimum Security Annex (Annex), the Correctional Treatment Facility (CTF) and the Central Detention Facility (Jail). The Annex is a collection of minimum security dormitories in Lorton, Virginia, which presently house approximately 174 women prisoners who are either held for trial, awaiting sentence or within 24 months of release. (R. 8-99; Pls. Exs. 621 at WP00034; 520 at DC0030902.) CTF is an 800 bed co-correctional facility in the District of Columbia consisting of a series of buildings which house approximately 271 medium custody, general population women prisoners. (Pls. Exs. 638 at 5; 520 at DC0030902.) The Jail is a medium to maximum security co-correctional facility in the District of Columbia housing approximately 168 women prisoners who are either serving sentences of less than one year or who are awaiting trial or sentencing. (Pls. Exs. 621 at WP00031, 520 at DC0030902.)

 The Plaintiffs premise their claim for declaratory and injunctive relief on the following grounds: 1) women prisoners at the Annex, CTF, and the Jail are subject to sexual harassment in violation of the Fifth Amendment and the Eighth Amendment; 2) women prisoners at the Annex and CTF receive unequal opportunities to participate in prison programs in comparison to similarly situated men at other correctional facilities in violation of Title IX and the Fifth Amendment; 3) the provision of inadequate obstetrical and gynecological care offered to women prisoners at CTF violates the Eighth Amendment; and 4) the general conditions of confinement and fire hazards at the Annex and CTF violate the Eighth Amendment. Plaintiffs allege that the Defendants are liable for these constitutional violations under 42 U.S.C. § 1983. In the alternative, the Plaintiffs argue that virtually all of the Defendants' actions violate the Plaintiffs' rights under the D.C. Code §§ 24-442 and 24-425.

 II. FINDINGS OF FACT

 A. Sexual Harassment at the Jail, CTF and the Annex

 The evidence demonstrates that there have been many incidents of sexual misconduct between prison employees and female prisoners in all three of the womens' facilities in this case. The level of harassment involves forceful sexual activity, unsolicited sexual touching, exposure of body parts or genitals and sexual comments. (R. 2-3.)

 Within the D.C. Department of Corrections (DCDC) there is a general acceptance of sexual relationships between staff and inmates which creates a "sexualized environment" where "boundaries and expectations of behavior are not clear." (R. 5-78.) Based on conversations with DCDC employees, Mr. Howard Ray Jr., former administrator of CTF, stated, "You just get this sense that [sexual misconduct] has always happened and it is always going to happen." (Ray Dep. I at 112.)

 The most disturbing evidence of sexual harassment involves sexual assaults on women prisoners and the inadequacy of the Defendants' response to these attacks. *fn1" On October 31, 1993, at about 2:30 a.m., a correctional officer at the Jail, sexually assaulted Jane Doe Q while she was a patient in the infirmary. (R. 1-75 to 1-80.) The officer fondled her breasts and vagina, tried to force her to perform oral sex and then raped her. On December 9, 1993, at approximately 5:30 a.m., a correctional officer at CTF forced Jane Doe RR to perform oral sex on him while Jane Doe RR attempted to empty trash as part of a work detail. (R. 6-123 to 24.) The individual officers who assaulted Jane Doe Q and Jane Doe RR warned the women not to report the attacks. (R. 1-80; 6-126.)

 Jane Doe Q and Jane Doe RR were placed in protective custody after they filed complaints. (R. 1-86; Pls. Ex. 502 at 11.) Jane Doe RR explained the problems with this arrangement: "[Protective Custody] is just like being punished. It's the same place where you go if you do something . . . . You stay on lock 23 hours every day. . . . I didn't [feel safe] . . . because the person that is supposed to be watching us, [is] never at the desk hardly . . . I don't consider that as being protected." (R. 6-132 to 6-133.)

 In addition to rape and forced sodomy, women prisoners endure other varieties of sexual assault. In September 1993, a correctional officer at CTF grabbed Jane Doe W's buttocks and vagina while he escorted her from the medical unit where she had received prenatal care. (R. 1-36 to 1-38.) A CTF foreman tried to rub up against Jane Doe Z, and steward hands and different officers fondled women prisoners' breasts, legs, arms and buttocks. (R. 7-64.) Another CTF officer attempted on several occasions to fondle Jane Doe K's breasts, vagina and buttocks in the television room. (R. 6-110.) A teacher in the print shop would frequently try to pull Jane Doe OOO to him and kiss her. (R. 1-112 to 113.) An officer in the garment shop attempted to paw and kiss women prisoners. (R. 6-113.) *fn2"

 Another problem at CTF and the Annex is a lack of privacy. Some male officers fail to announce themselves before appearing in areas where women undress. (R. 3-16; 1-56 to 1-58; Y. Jackson Dep. at 32-33, 43.) In addition, the structural design of CTF permits male inmates a view of women's rooms while the men are in the recreation yard or in their own cells. (R. 9-131.) Defendants claim that they allow women to cover the window while they are dressing, but the Court did not see evidence of a written policy to this effect. (R. 9-53; 9-131.)

 Women prisoners at all three facilities are the targets of sexual comments. Steward hands and officers at CTF feel free to direct sexual comments at women prisoners. (R. 7-64, 66.) One officer in particular discovered that Jane Doe V was going to take a shower and said, "Well, you go ahead and do that and I'll be in there to stick my rod up in you." (R. 4-68.) Male prisoners and correctional officers at the Annex also direct sexually explicit comments toward women prisoners. (R. 1-117; 6-115.) Officers at the Jail verbally harass women by making derogatory references about women prisoners' breasts and buttocks. (R. 1-88.)

 The DCDC has policies and procedures designed to address sexual misconduct. In the Defendants' Basic Regulations for all Employees, employees are cautioned not to become intimate with prisoners. (Defs. Ex. 26 at 5-6.) The Defendants also have created the Inmate Grievance Procedure (IGP) under Department Order No. 4030.1D (Pls. Ex. 117.), the D.C. Personnel Policy on the Employee and Inmate Relationships under Department Order No. 3350.1, (Defs. Ex. 53.), the Sexual Harassment in the Workplace policy under Department Order No. 3310.4B (Pls. Ex. 107.) and the Procedure for Handling Institutional Persons Suspected of Committing Crimes in the Institutions under Department Order No. 5410.1. (Defs. Ex. 27.) These regulations are supposed to be taught during a seven-week, pre-service training program and each year during a 40-hour in-service training program. (R. 8-125 to 26.)

 Though the DCDC has established an Inmate Grievance Procedure, (R. 8-127 to 28), procedures for filing an IGP form are not posted on each one of the units as required, and requests for written reports present an obstacle for illiterate women who wish to file a complaint. (R. 2-44 to 2-45.)

 Reports of sexual misconduct also do not remain confidential. (Perry Dep. at 164; R. 4-50.) After Jane Does Q and RR reported their assaults, the incidents quickly became a matter of public knowledge among prisoners and staff. (R. 1-86; 6-137.) Officers spoke with Jane Doe RR about her attack and gave her the impression that they regarded it as a "joke" or "gossip." (R. 6-137.)

 The Defendants do not adequately investigate the incidents of sexual misconduct because there is no policy and because the investigations are not taken seriously. (Krull Dep. at 227; Derr. Dep. II at 105-06; Y. Jackson Dep. at 161.) If the DCDC does not have first-hand knowledge of an incident, Mr. William Plaut, the Deputy Director of Operations and Acting Deputy Director for Programs, *fn4" believes that they must wait for the conclusion of a police investigation or the conviction of the accused employee before they can take any action. (R. 8-132.) On many occasions while Mr. John Henderson worked as the Administrator of the Jail, police would not respond to his initial call to investigate and he would not make any further attempts to contact them or conduct an independent investigation. (Henderson Dep. at 146.) In a case involving an allegation that an officer had impregnated an inmate through coerced sexual intercourse, Mr. Henderson referred the case to the police and did not learn of the results until four months after the police concluded their investigation. (Henderson Dep. at 94-95, 108-110.) Mr. Henderson did not conduct his own investigation or discuss the case with the accused officer who was eventually reassigned to the Occoquan Facility. (Henderson Dep. at 108-10, 113-15.)

 Ms. G. H. McCathorine *fn5" , Associate Director of Programs for the DCDC, responds to complaints by assigning Deputy Warden L.C. Jones *fn6" to a case and then she waits for the results of his investigation. (McCathorine Dep. at 242.) When Jane Doe RR discussed incidents of sexual misconduct with Deputy Warden Jones he discouraged her from talking to him too often because people would view her as an informer. (R. 6-144 to 145.) He also assured Jane Doe RR that if she did not provide any names to one of the Plaintiffs' lawyers, he would work toward getting her released from jail. (R. 6-144.) Though Mr. Jones himself had an allegation of sexual misconduct pending against him, his superior Ms. McCathorine claimed that she was not aware of this. (Jones Dep. at 169-70; McCathorine Dep. at 230.) Mr. Jones claims to have certain difficulties determining whether harassment has occurred. Concerning an allegation against one officer, he expressed disbelief that a man the officer's age would be attracted to an openly homosexual inmate. *fn7" With respect to harassment in the culinary section of CTF, he believes that he cannot adequately conduct an investigation without a camera. (Jones Dep. at 31.)

 Though Ms. Jennie Lancaster, a jail administrator and the Plaintiffs' expert penologist, has been able to reach a conclusion in approximately 90 percent of all sexual harassment cases she has confronted, the record demonstrates that the Defendants often fail to reach any conclusions in their investigations. (R. 5-74, 76.) Jane Doe Q reported her attack to the administration and the police, but at the time of trial, she did not know the results of the investigation or whether any action was taken against the officer who assaulted her. (R. 1-85 to 86.) Jane Doe RR filed an IGP, (Pls. Ex. 502), and later filed criminal charges yet neither the CTF administration nor the police has informed Jane Doe RR about the status of the investigation into the incident; and to her knowledge, no disciplinary action has been taken against the officer who assaulted her. (R. 6-136.) Jane Doe OOO, along with five other women, complained to the Administration about sexual harassment by a teacher in the Print Shop yet there is no evidence that the administration took corrective action. (R. 1-114.) Jane Doe K complained to CTF staff about the incidents of CTF officers pawing women prisoners but the administration took no action against the officers. (R. 6-111.)

 When the evidence is reduced to a dispute between an inmate's allegation and an employee's version of events, the Defendants generally side with the employee. (R. 8-133 to 34; See, e.g., Pls. Exs. 74, 76, 77, 79, 86.) A typical example is the administration's response to Jane Doe W's IGP in which the administration summarily concludes that her allegations "could not be validated." (Pls. Ex. 69 at 2-4; R 1-40, 43.)

 When the Defendants do suspect that an employee is guilty of sexual misconduct they possess a range of sanctions to use against an employee, (Defs. Ex. 25), but they often simply reassign the employee to a different facility. (R. 5-74 to 5-76.) Mr. Plaut stated,

 
There are . . . cases where we believe the inmate. In fact, the inmate's story in some cases is more credible than the employee's story, but you cannot take adverse or corrective action against the employee because you believe the inmate over the employee. In cases like that we relocate the employee and make sure the employee does not come in contact with that inmate, does not work in that institution.

 (R. 8-134.) Mr. Plaut stated that he has personally reassigned "many, many" officers who he believed may have been engaged in sexual misconduct. (R. 8-135.) The officer who assaulted Jane Doe W continued to work on Jane Doe W's unit after the incident (R. 1-47) and was transferred to the Maximum Security Facility on May 8, 1994. (Pls. Ex. 675.) Jane Doe K complained to staff about the harassment by the officer in the garment shop (R. 6-113; Pls. Ex. 66 at 5.) and that officer was transferred to another post. (R. 8-153, 6-114.) When Yvette Jackson, a correctional officer at the Annex, reported the problem of an officer entering women's areas without announcing his presence, Captain Larry Corbett assured Jackson that he would try to keep the officer from coming up to the Annex as much as possible. (Y. Jackson Dep. at 38.)

 Reassignment does not always occur. When Jane Doe RR returned to CTF in May 1994 the officer who assaulted her still worked at the facility. (R. 6-135.)

 The effect of sexual harassment on women prisoners is profound. The abuse has a significant impact on a woman's concentration, and it lowers confidence and self-esteem. (R. 2-57 to 2-58.) It leads to irritability, anxiety and nervousness. Women may be angry that the incident is happening and fearful that they will be continually exposed to it. (R. 2-58.) Women prisoners who experience sexual harassment report significant depression, nausea, frequent headaches, insomnia and feelings of fatigue. (R. 2-58.) Those who report the harassment often experience increased stress and may end up becoming isolated from other women in the institution. (R. 2-58.) Women can feel self-doubt, and disillusionment at the failure of the organization to protect them. Women prisoners lose confidence in the system and may decide not to complain about additional incidents. (R. 1-118; 6-115.)

 For women who have a history of sexual abuse the harassment often brings back memories of the prior abuse. *fn8" (R. 2-61 to 62.) This can lead to severe depression, reinforcement of a "victim" self-image and a belief that, as in childhood, they have no control over their lives. (R. 2-61.)

 B. Obstetrical and Gynecological Care at CTF

 Women prisoners at CTF, like most female inmates, experience a higher rate of illnesses than the general population. (R. 3-52 to 3-53.) Specifically, women inmates have a greater risk of contracting sexually transmitted diseases such as syphilis, AIDS, *fn9" or gonorrhea, and other illnesses such as cervical cancer and sterility due to infection. (R. 3-53.) The reason for the high rate of disease stems from the fact that the lifestyle of a typical woman prisoner does not include good health habits. (R. 3-52.)

 Doctors should examine people in a "high risk" health category much more frequently and they should also anticipate complications, particularly in the case of prenatal patients. (R. 3-57 to 3-58.) Failure to monitor these women closely results in an unnecessary degeneration of their health and the health of a fetus if they are pregnant. (R. 3-58, 3-60.)

 Adequate gynecological care begins with a thorough examination. This includes a pelvic examination, a thorough gynecological-obstetric history, a PAP smear, cultures for gonorrhea and chlamydia, a test for syphilis, a thyroid examination, breast examination and an examination of the rectum, abdominal contents and pelvic organs. (R. 3-59.) In certain instances a test for Hepatitis B should be done. (R. 3-59-60.) Failure to give timely examinations can shorten a patient's life in the case of AIDS, or it can result in infertility in the case of chlamydia and gonorrhea. (R. 3-63 to 64.) It is best if an institution establishes a list of necessary exams as part of a protocol for health care providers to follow. When an organization faithfully follows a protocol, people "develop a habit of doing things properly." (R. 3-72.)

 The DCDC policy states: "All new arrivals . . . will be seen within 24 hours to determine the health status of the resident and to take any steps necessary to protect the health and safety of the resident and general population." (Pls. Ex. 563.) Also, "it is the policy of Health Services to provide clinically appropriate periodic health examinations and follow-up care to inmates under the [DCDC]." (Pls. Ex. 483.)

 Defendants do not routinely test women prisoners at CTF for sexually transmitted diseases. (R. 3-74; 14-12.) In 7 out of 47 reviewed cases, either a gonorrhea culture or chlamydia culture was missing. (R. 3-74.) In some cases women were not tested for syphilis. (R. 3-74.) Failure to screen for chlamydia may result in sterility for a woman or eye infections and pneumonia for a newborn baby. (R. 3-74 to 3-75.) Advanced gonorrhea may result in sterility, abscessed ruptures and peritonitis. (R. 3-75.) Syphilis may lead to an aortic aneurysm, dementia or psychoses. *fn11" (R. 3-76.)

 Even when women prisoners receive medical tests, the follow-up care of inmates at CTF is inadequate. In one instance a woman with an abnormal PAP smear declined further testing because she believed that she would be released soon and would get better care from a private doctor. (R. 3-78.) She was not released, however, and received the tests three months after the time prescribed. (R. 3-78.) In another case, doctors performed a biopsy on a woman after a very abnormal PAP smear. The woman was subsequently released from custody without the record indicating that any medical advice was given to her. (R. 3-78.)

 The Plaintiffs presented women prisoners who provided further evidence of the Defendants' failure to render adequate follow-up care. Jane Doe II is a CTF prisoner who is HIV positive and suffers from the human papilloma virus (HPV). *fn12" (R. 2-158, 172.) While at CTF in September 1992, Jane Doe II experienced abnormal vaginal discharges and painful discharges of fluid from her left nipple. (R. 2-158, 166.) At her initial screening, she complained to a CTF physician's assistant about her breast problem. (R. 2-164.) On September 16, 1992, she saw Dr. Charles Hall at the CTF infirmary. (R. 2-165.) Dr. Hall prescribed medicine for the vaginal discharge and scheduled an appointment for her at the Howard University surgery clinic at the Jail approximately three weeks later. (R. 2-166.) She missed the next two appointments because the Defendants were late in transporting her. (R. 2-166 to 167.)

 Despite her continued complaints to CTF medical staff *fn13" and a worsening condition, Jane Doe II did not receive an examination until November 1993, more than one year after complaining about her condition. (R. 2-167 to 169.) Doctors performed a biopsy on March 23, 1994 at D.C. General. (R. 2-170.) The five month wait for the biopsy occurred because CTF staff on approximately four occasions scheduled her for the wrong medical facility. (R. 2-170.)

 In May 1993, she requested a PAP smear from the CTF medical staff because she discovered lesions on her buttocks and experienced irregularities in her menstrual cycle. (R. 2-171.) She did not receive a test until November 1993 and the results of the test were abnormal. (R. 2-171 to 172.) In January 1994, Jane Doe II received a culdoscopy which revealed no abnormalities. *fn14" (R. 2-172 to 173.) By June 1994, she still had not seen a gynecologist at CTF since the PAP smear and culdoscopy. (R. 2-173.)

 The case of Jane Doe V provides another example of a breakdown in medical treatment. In June 1993, Jane Doe V requested a PAP smear and a mammogram because a physician's assistant at the Jail informed her that she had polycystic breasts. (Pls. Ex. 254 at 4.) Three separate physician's assistants at CTF told her that she could not receive a mammogram because she was not thirty-five years old. (R. 4-94.) She finally saw a gynecologist about her breast in September 1993 but still did not receive a mammogram. (R. 4-95.) Only after Jane Doe V threatened to file a complaint did she receive a mammogram. (R. 4-95.)

 Defendants' policy on health promotion and disease prevention states: "Health Services will provide health education and training in self-care skills to all inmates . . ." (Pls. Ex. 570.) The health education at CTF, however, is "grossly inadequate." (R. 3-86.) Dr. William Hall, Assistant Director for Health Services, stated that the DCDC does not have any pamphlets or videos that deal specifically with obstetrical and gynecological care. (William Hall Dep. 181-82.) The only evidence of health education that Plaintiffs' medical expert found, was a breast self examination chart located on the back of one of the rooms in the infirmary. (R. 3-86 to 3-87.)

 According to Dr. Major, records at CTF demonstrate "too many records of refusal of treatment." (R. 3-84.) The number of women refusing treatment could be reduced by proper counseling as to the importance of treatment. (R. 3-84.) In one case, a pregnant woman with syphilis refused treatment for two months simply because she did not like injections. (R. 3-84 to 3-85.) Education is particularly important in the area of breast self-examinations where over the past ten years more breast lumps have been discovered by women than by their doctors. (R. 3-88.)

 The DCDC has a written policy which requires the Defendants to provide comprehensive medical care and counseling to all pregnant women prisoners. (Pls. Ex. 2.) But even in 1994 they recognized a "lack of gender specific care in the areas of prenatal and postnatal education and care." (Pls. Ex. 434 at 5.)

 In the area of abortion counseling, the written policy of the DCDC provides: "The Institution Administrators shall provide each inmate with medical and social counseling to aid her in making the decision to have an elective abortion. Religious counseling will be made available should the inmate desire it." (Pls. Ex. 5.) Women prisoners receive abortion counseling from Ms. Marydot Thomas, a licensed nurse, as well as from the clinic performing the abortion. (R. 13-89.)

 In rendering prenatal care, the Defendants have not followed any written protocol. *fn15" (R. 13-99.) A protocol or use of a Problem Oriented Prenatal Risk Assessment (POPRAS) form is a crucial element of prenatal medical treatment. (R. 3-94, 14-129.) This form takes health care providers through a step-by-step approach to treating a prenatal patient. Dr. Charles Hall, who is responsible for prenatal care at CTF, told Dr. Major during an interview that there was no written protocol at CTF and that the "protocol" was "in his head". (R. 3-95-96.)

 After Dr. Major's interview with Dr. Hall, Dr. Eliza Taylor asked Dr. Hall to prepare a prenatal protocol for CTF. (Pls. Ex. 457; Charles Hall Dep. at 122-23.) The protocol, however, is not nearly sufficient. (R. 3-97.) For example, it requires an Alpha Feto Protein test "at appropriate time," which might mean one thing to a doctor and another thing to a nurse practitioner or physician's assistant. (R. 3-98.) It does not indicate when or how an ultrasound test should be performed. (R. 3-98.) The protocol vaguely prescribes "tests, management and referral as needed based on the judgment of the health care provider." (Pls. Ex. 457.) *fn16"

 Dr. Major found eleven instances where women did not receive prenatal care until after two or more months from the start of pregnancy. (R. 3-99 to 3-100.) General standards require prenatal care to commence no later than two months after pregnancy begins. (R. 3-99.) Care within the first two months enables doctors to ameliorate gestational problems such as anemia, hypertension, diabetes and poor weight gain or infant growth. (R. 3-101.) The standard of care for prenatal appointments is monthly visits for the first six months, bimonthly visits for the seventh and eighth months and weekly visits for the last month. (R. 14-126.)

 The experiences of Jane Doe QQQ and Jane Doe L offer examples of inadequate prenatal treatment. On a Saturday in January 1994, Jane Doe QQQ experienced vaginal bleeding and was sent to D.C. General where a nurse informed her that she had to wait in the lock-up. (R. 4-23 to 24.) Jane Doe QQQ refused to go because as she explained: "I believed I was threatening a miscarriage, and [in] lock-up, I would have been on a metal bed without a mattress and I would have been in a cell . . . for five or six hours." (R. 4-24 to 4-25.) She finally returned to CTF that night and did not see a doctor until the following Monday. (R. 4-26.)

 Jane Doe L was five months pregnant when she arrived at CTF on March 22, 1993. (R. 2-134.) She received two examinations and a sonogram before delivery even though she made requests for a prenatal examination through sick call. (R. 2-136 to 2-138; 14-20 to 14-24; Pls. Exs. 681, 682, 683.)

 On the night before delivery, Jane Doe L experienced labor pains and was taken to the hospital. (R. 2-139.) But D.C. General sent her back because her water had not broken and she was not dilating. (R. 2-139 and 140.) Despite the fact that her contractions were five minutes apart, the staff at CTF placed her in handcuffs and leg shackles and sent her to a prescheduled court appearance. (R. 2-141 to 142.) The Marshals at the courthouse sent her back to CTF because she could not walk due to labor pain. (R. 2-143.) At CTF, she spoke to a nurse who knew about her trip to D.C. General but only offered her some aspirins and told her to prop her feet up and rub her stomach. (R. 2-143 to 2-144.) Jane Doe L went to her cell and delivered her baby shortly thereafter. (R. 2-146.) Jane Doe L had not yet purged the afterbirth from her body when guards placed her in handcuffs and leg shackles and sent her by ambulance to D.C. General. (R. 2-147.)

 Jane Doe L's experience with shackling is not unusual. When Defendants transport pregnant women prisoners on medical visits they customarily place women in leg shackles, handcuffs and a belly chain with a box that connects the handcuffs and belly chain. (R. 4-14; 6-98 to 6-99; 2-141 to 2-142; 2-147; 1-61 to 1-62.) A physician's assistant stated that even when a woman is in labor "their ankles and their hands are cuffed." (Ali Dep. at 162-63.) Leg shackles are the least inconvenient method of shackling and chest boxes, arm shackles and wrist shackles increase the chance for injury. (R. 4-7.) Deputy Warden Jones stated that he does not use leg shackles on a woman in her third trimester of pregnancy "because there's a possibility she might trip." (Jones Dep. at 16-17.) Dr. Major stated that unless a pregnant prisoner is assaultive or an escape threat the need for shackling is unnecessary. (R. 4-6 to 7.)

 In the area of prenatal nutrition, the Defendants' written policy states: "Pregnant females shall be placed on a nutritionally balanced diet that includes milk and a late evening snack . . . . Any dietary recommendations made by D.C. General Hospital shall be followed." (Pls. Ex. 2 at 2.) Records of some women reveal abnormally low weight gain which could possibly mean that the nutritional needs of women have not been met. (R. 3-112; See R. 1-59 to 1-60.) On one occasion, Defendants refused to give a dietary supplement even though D.C. General prescribed it. (R. 4-27 to 4-30, 14-28.) There were also incidents where the CTF pharmacy ran out of vitamins due to storage problems. (R. 3-113.)

 In other areas of prenatal care, the Defendants offer parenting classes once a week, prenatal exercise classes two days a week for an hour (as of May 1994) and a "therapeutic community" (as of April 1994) in which counselors and Ms. Linda Studevent, the unit manager for pregnant women, hold group discussions with women prisoners on issues related to pregnancy. (R. 9-121 to 23, R. 4-11 to 4-13.)

 Defendants, however, provide post-partum women prisoners with almost no time to visit their babies while the babies board at D.C. General. (R. 4-18; 6-100.) The record shows that mothers are transported to D.C General for visits only when the baby is critically ill. (R. 9-141 to 42; Pls. Ex. 48 at 6, 7, 9, 11, 13.) The Defendants have no policy statement on visitation between inmates and their babies. The evidence indicates that women need to hold their children at each feeding time. (R. 3-121 to 122.)

 In cases where the infant is critically ill, the infant has died or when the mother is depressed because of child placement, post-partum counseling is crucial in alleviating stress or depression. (R. 3-128 to 129.) Defendants offer post-partum counseling through Ms. Loretta Brantley, a supervisory social worker. (R. 10A-4 to 5 (Morning Session).) Ms. Brantley has worked on the pregnancy unit since May 1994 and supervised the previous pregnancy counselor Ms. Pearl Jackson. (R. 10A-6 (Morning Session).)

 Perhaps the most important post-partum concern is child placement while a mother is incarcerated. The Defendants recognize that the separation of women prisoners from their children often creates a trauma more severe than that experienced by male prisoners. (R. 8-115, 9-10, 11-51.) The Defendants' policy on child placement is as follows: "Arrangements for placement of any child born while the mother is in custody should begin as soon as the pregnancy is known, but prior to delivery." (Pls. Ex. 8 at DC0000090.) The evidence shows that child placement counseling needs to occur by at least the second trimester. (R. 3-116.) At trial, the Defendants claimed that as of January 1994 child placement counseling is available for pregnant women prisoners once a week. (R. 9-125, 127; R. 10A-4 (Morning Session).)

 By 1994, however, Defendants recognized that they did not offer enough programming in the area of boarder babies, child custody and foster care. (Pls. Ex. 434 at DC0027809.) Jane Doe L testified that at no point during her pregnancy did anyone at CTF counsel her on child placement. (R. 2-151.) Jane Doe QQQ tried to make arrangements for the placement of her child but the counselor responsible for child placement "seemed unconcerned and unwilling to assist [her]." (R. 4-32.) Jane Doe QQQ testified that a woman she briefly met once will care for the baby. (R. 4-32.)

 Plaintiffs' Exhibit 458 lists seven inmates' babies who boarded at D.C. General in 1993. The previous year, 16 babies of women prisoners boarded at the hospital. (R. 10A-33 (Morning Session).) Dr. Major stated that in his experience with correctional institutions he had never seen that many boarder babies. (R. 3-119 to 120.) He "refused to believe that this many mothers did not want their children placed properly." (R. 3-120.) Dr. Charles Hall has not spoken to anyone within the DCDC about the issue of boarder babies. (R. 14-10.)

 Overall, many of the problems with obstetrical and gynecological care can be traced to inadequate staffing, problems with transportation and a lack of consultation between CTF and D.C. General. As of November 1993, Dr. Eliza Taylor stated that the physician shortage is "quite apparent." (Pls. Ex. 394 at DC0025016.) Even when staff is available, the Defendants too often fail to transport women prisoners to medical appointments. (Pls. Ex. 389 at DC0024258-63; Ali Dep. at 103-04.) A lack of transportation caused Jane Doe QQQ to miss two prenatal appointments (R. 4-20.), kept Jane Doe K from approximately four appointments (R. 6-96.) and prevented Jane Doe II from being examined on two occasions. (R. 2-166 to 167.)

 The Defendants' Monthly Medical Reports offer further proof that the lack of transportation is a longstanding problem. (Pls. Ex. 394.) In September 1992, 151 women were scheduled for OB/GYN appointments, 91 are listed as not receiving transportation and 9 refused to go. (Pls. Ex. 394 at DC0025220.) The Chief Medical Officer of CTF at that time, Dr. Lynette E. Mundey, expressed concern about the "significant number of no shows" and stated that the escort system had "not worked effectively." (Pls. Ex. 394 at DC0025218.) In November 1992, 148 women were scheduled for OB GYN appointments and 39 were listed under "no transportation." (Pls. Ex. 394 at DC0025201.) In October 1993, 100 women were scheduled for OB GYN appointments but only 76 were seen and in August 1993, 118 women prisoners had OB GYN appointments and 71 were seen. (Pls. Ex. 394 at DC0025033 & DC0025062.) Defendants' records fail to explain the reasons for these women not being examined.

 Defendants hoped to improve the provision of medical care by creating a Memorandum of Understanding between D.C. General Hospital and the DCDC. (Pls. Ex. 455) It requires administrative and clinical principals of each facility to attend meetings at intervals of no more than four months. (Pls. Ex. 455 at DC0030944.) The Memorandum also provides for continuity of care and states that all inmate-patients "referred to [D.C. General] for ambulatory clinics will be seen with dispatch and given priority status to other patients." (Pls. Ex. 455 at DC0030946.) Defendants do not follow this Memorandum of Understanding. (R. 3-138, 14-158.) Dr. John Clark, Defendants' medical expert, found that there was a "lack of adequate communication and coordination at three levels . . . . Medical to Medical (i.e., Doctor to Doctor), Nurse to Nurse (DCGH to CTF) and DCGH Medical to DOC-CTF Custody Staff." (Pls. Ex. 667 at 12.) Dr. Charles Hall of CTF has had no discussions with D.C. General concerning the general quality of care that is provided to all women prisoners who are treated at D.C. General. (Charles Hall Dep. at 151.)

 C. Physical Conditions of Confinement at CTF and the Annex

 1. Housing Conditions

 a. CTF

 The DCDC created CTF in response to a need for an 800-bed facility that would offer intensive treatment and transitional services for special needs offenders. (Pls. Ex. 338 at DC0018947.) The Defendants intended to divide the facility into three areas: Reception and Diagnostic (288 beds); Substance Abuse (256 beds), and Mental Health (256 beds). (Pls. Ex. 338 at DC0018947.) This plan changed in 1992 when the Defendants increased the number of female offenders to be placed at CTF and delayed the implementation of the Mental Health Program. (Pls. Ex. 338 at DC0018947-48.) This decision was made for primarily financial reasons. (R. 8-9.) In a February 27, 1992 letter to Deputy Mayor Robert Mallett, Mr. Ridley explained his request to change the mission of CTF:

 
Unfortunately, recent developments associated with the budget and the growing population has forced the department to reconsider full implementation of the Mental Health Program at the CTF. The Federal Bureau of Prisons informed the department that it can no longer house approximately 700 inmates from the District. The anticipated increase in population by 700-800, as a result of the Bail Reform Act, and assurance that existing court orders are complied with are a few of the problems forcing the department to consider increasing the number of females at the CTF. More importantly, the department must consider all cost saving efforts as a means of meeting its budget mark.

 (Pls. Ex. 338 at DC0018948 (emphasis added). In assessing the "Pros" and "Cons" of this move, the first "Pro" listed was: "Assist the department in reducing its budget by eliminating 71 positions with a savings of $ 3,267,748." (Pls. Ex. 338 at DC0018949.) One of the "Cons" was "[a] small number of individuals in the community may respond in a negative manner concerning the movement of women from a campus-like setting to a closed-in setting. This can be justified in that the availability of more comprehensive services and privacy outweigh the continued placement at Lorton." (Pls. Ex. at 338 at DC0018950.)

 CTF is constructed as a series of multi-level buildings all connected by inside walkways. (Pls. Ex. 638 at 5.) Administration, medical and visiting facilities are located in Building B; food service is located in the basements of Buildings A and B; central services and a gymnasium are located in Building B; reception and diagnostic services are located in Building C (which houses some females); housing and treatment facilities for substance abuse are located in Building D. (Pls. Ex. 638 at 5.)

 Women prisoners are housed in Building E. (Pls. Ex. 638 at 5.) Building E contains 4 housing units and there are 64 cells in each housing unit. A single unit takes up an entire floor and is symmetrically divided into an "A" side and a "B" side. Each side has a day room and then an L shape to the building of two wings of cells opening off the day room and each of the legs of the L has two levels of cells in it. There are eight cells on each level.

 Each cell has a single bed with a toilet, a slot type window on an outside wall and registers for air circulation. (R. 6-53.) The bed is fastened to a masonry outside wall. (R. 6-53.) The cells are not insulated and those at the far end have two outside walls which make them the coldest rooms. (R. 6-53.)

 As Mr. Paul Quander, the Executive Deputy Director for the DCDC said of the facility, "CTF is designed for controlled movement . . . . Elevator control, door control, electronics, computer generated. Things of that nature. It's different from what we have in our other facilities." (R. 8-67.) Ms. Lancaster added, "This is not the type of facility that would be designed for a general population female institution and is not designed in my opinion to house a general prison population . . . ." (R. 5-45.)

 Despite the fact that it is a new facility, CTF has problems. The facility is unable to generate a sufficient amount of heat in winter. (Pls. Ex. 145 at DC0003388; Pls. Ex. 159 at DC0003820.) The failure of steam coils in the air handling mechanism and lack of insulation in the cells cause low cell temperatures. (Pls. Ex. 638 at 7-8; R. 6-55 to 56, 72.) The steam coil malfunction forced the administration to shut down the outdoor air intake and thus prevent the entry of fresh air and the removal of contaminants. (Pls. Ex. 638 at 7; R. 6-56.) Jane Doe V testified:

 
Last winter, my first winter in CTF, I experienced icicles on [the inside of] my windows, extremely cold weather, blowing puffs out of my mouth and nostrils. There were mornings when we would have to get extra blankets if they would bring them up to us. We would have to put on layers and layers of clothes just to stay warm. *fn17"

 (R. 4-89.) Low temperatures greatly increase the incidence of illness from cold or flu. (R. 6-54; Pls. Ex. 159 at DC0003820.)

 Jane Doe K notified the Defendants about the heating problem in a letter to Ms. Parrott-Fonseca asking for the Administration to fix the problem. (Pls. Ex. 160. at DC0003826-27.) She wrote:

 
I come to you expressing the dire need for heat in the Correctional Treatment Facility . . . . The institution has provided some of the residents with extra clothing and blankets, but even so, there is a large percentage of the population who did not receive such. *fn18" This out of kindness is still not enough to protect us from such frigid temperatures . . . . In this facility, the Department of Corrections houses residents of all [kinds]. There are pregnant females, diabetics, HIV patients, high and low blood pressure patients, etc. Therefore, these people, as well as those who are not categorized above, need to protect themselves from the cold. Some nights it gets so cold until I can't sleep . . . . I have heard many different stories regarding the heat situation . . . but the main thing is that we need heat in this building.

 (Pls. Ex. 160 at DC0003826-27.) Jane Doe K received no response from the DCDC. (R. 6-119.)

 Mr. Ward Duel, the Plaintiffs' expert in the field of environmental health, visited CTF in February 1994 on a mild February day and took temperature readings in the living areas. (R. 6-54.) Within the same unit some cells were 64 degrees and other cells were 75 degrees. (Pls. Ex. 638 at 7.) Mr. Duel found that the temperature of the air blowing out of a register was 65 degrees. (Pls. Ex. 638 at 8.) Residents use paper products, such as toilet paper and sanitary napkins, to cover air vents which are blowing cold air. (Pls. Ex. 147 DC0003401, DC0003412, DC0003444, DC0003440.)

 The malfunction of the ventilating system creates noise. (Pls. Ex. 638 at 9-10.) From the ventilation noise alone, Mr. Duel received a decibel reading of 74 decibels and in an empty cell during the morning with the door shut he got a reading of 44 decibels. (Pls. Ex. 638 at 9.) He stated that the maximum allowable decibel level for nighttime conditions is 45. (R. 6-57.)

 Mr. David White, Chief of Facilities Maintenance at CTF, is uncertain that the recent efforts to repair the system will solve the problems with heat at CTF. (R. 6-68; 12-75.)

 Beyond the heating problem, there are many other unsanitary conditions at CTF. There are defective toilets which result in the exposure of sewage and possible environmental transmission of sewage-born illnesses. (Pls. Ex. 638 at 6.) Water leaks out of some showers damaging ceilings below and injuring prisoners. (R. 6-62; Pls. Ex. 638 at 6-7; Pls. Ex. 159 at DC0003820.) CTF staff do not use cart liners to transport the laundry thus promoting the spread of germs. (Pls. Ex. 638 at 12; R. 6-58; 12-5.) Women inmates are responsible for cleaning their cells, yet the institution does not provide them with adequate supplies because of an internal distribution problem and an uneven delivery by the supplier. (R. 4-91; 6-62 to 63.) CTF has a problem with rodents. In a September 20, 1993 letter to Captain L. C. Jones, then Assistant Administrator for Operations, Ms. G. H. Washington, Associate Director of Programs, stated that "there is excessive mice dropping, mice nesting debris and trash on the floor, on the shelves, and behind the shelves." (Pls. Ex. 146 at DC0003390.) Mr. Duel found that CTF had a significant problem with mice in the corridors, hallways, stairways and kitchen. (Pls. Ex. 638 at 15.)

 Inadequate food preparation threatens residents at CTF. (R. 6-63 to 65.) Mr. Duel found special diet meals *fn19" which were 30 to 40 degrees below an acceptable level. (R. 6-64.) The sanitarian's Food Establishment Self-Evaluation Reports, (Pls. Ex. 183), are similar to the evaluations used by the D.C. Department of Consumer and Regulatory Affairs (DCRA) when they examine commercial food establishments. Out of 41 Food Establishment Self-Evaluation Reports for the CTF main and satellite kitchens, 34 fell below the "acceptable" level. (Pls. Ex. 183.) The Defendants recently hired a nutritionist who has improved the quality of the special diets but it is not clear whether she has been hired for long-term employment. (R. 6-71, 75.)

 The water temperature in the lavatory hot water faucets ranged from the high 80's to the low 90's. (Pls. Ex. 638 at 6.) When the Administration uses disposable utensils, trays and plates during breakfast, the mid-morning water is borderline acceptable. (R. 6-69.) The use of disposable goods, however, creates a waste removal burden. (R. 12-8.)

 b. The Annex

 Though the Defendants intended to send all female prisoners to CTF in 1992, "population pressures" forced the Defendants to use the Annex to house short-term female prisoners. (Pls. Ex. 334 at DC0018932.) One factor in this decision is contained in a June 1, 1992 Memorandum to Director Ridley, in which Administrator Krull observes that by "confining the population to short-term offenders, the risk of a law suit is diminished." (Pls. Ex. 334 at DC0018935.) Despite this type of strategic thinking, the Defendants' official policy states: "It is the policy of the DCDC to provide a safe environment for all staff and inmates in its institutions and facilities through compliance with American Correctional Association (ACA) standards and other applicable regulations and statutes." (Pls. Ex. 143.)

 The Annex was constructed in 1955 and served as the Department's Training Academy until August 1988 when it was converted to a minimum security facility for male prisoners. In September 1989, it was converted again for use by women prisoners. The Annex is composed of dormitories which are converted military barracks. (Pls. Ex. 637 at 4.) Dormitory 6 is a large open room with a rest room and small day room combination opening off one end. (Pls. Ex. 637 at 4; R. 6-10.) Dormitory 7 is a larger dormitory with smaller sleeping areas on either side that open up into a small, central day room. (Pls. Ex. 637 at 4; R. 6-10..) Attached to the day room is a rest room and showers shared by both wings. (Pls. Ex. 637 at 4.) In Dormitory 6, as of June 1994, there were 80 beds. (R. 6-8, 6-43.) In Dormitory 7A there were 62 beds and in Dormitory 7B there were 32 beds. (R. 6-8, 6-43.) The beds in the dormitories are double bunks the heads of which are placed against the outside wall. (R. 6-8.) Most of the beds in the row are approximately 30 inches apart which means that an inadequate amount of light reaches the lower bunks. *fn20" (R. 6-8; 11-142; Pls. Ex. 637 at 14.) The lack of light is an obstacle to floor cleaning. (Pls. Ex. 637 at 14; R. 6-19 to 20.)

 On July 26, 1993, Ms. Regina Gilmore, *fn21" Acting Chief of Female Offender Programs, sent a letter to Ms. G.H. Washington. In the letter, Ms. Gilmore provided a summary of conditions at the Annex:

 
These buildings were not initially designed for continued residency and in 1989 emergency renovations were made to accommodate housing of female residents. In July 1992, the population dramatically decreased when CTF opened and upkeep suffered. In late 1992, the population quickly swelled as female offenders were returned from federal facilities and the Detention Facility transferred more women to manage crowding. There is an average of one hundred and seventy (170) females housed in these two dorms. Renovations and preventive maintenance have not kept pace and repair needs have reached crisis proportions.

 (Pls. Ex. 170 at DC0003870.)

 The environmental health experts of the Plaintiffs and the Defendants believe that the population in the dormitories is "excessive." *fn22" (R. 6-10, 11-140.) The overcrowding at the Annex creates a shortage of sanitary facilities, *fn23" (Pls. Ex. 637 at 9-10.), increases the spread of infectious disease, (R. 6-11.), produces a heightened noise level, *fn24" (Pls. Ex. 637 at 8.) and creates filthy living conditions, such as dirty floors and moldy bathrooms. (R. 4-119; 4-150.) Jane Doe XI stated, "I was housed . . . for a long period of time [at] Alderson, West Virginia [which] is the oldest federal women's facility there is and . . . you can't even compare it to [the Annex] . . . . (R. 4-150.)

  There is no mechanical ventilation in the dormitories except for the window air conditioners. (Pis. Ex. 637 at 12-13.) This results in a level of carbon dioxide which far exceeds military standards. (R. 6-11 to 6-15.) The poor quality of air promotes eye and throat irritation and the transmission of respiratory illnesses. (R. 6-15.)

  The Annex also has a "very significant level of roaches." (Pls. Ex. 637 at 11-12; R. 6-22.) As Jane Doe VII testified: "They're in the room, in your bunk . . . . If you look behind your bunk right in the crease, . . . you'll see roaches hibernating back there. . . . Sometimes if you look over next to you you'll see roaches crawling on the person while they sleep." (R. 4-120.) Plaintiffs' environmental health expert witnessed roaches in footlockers and vertical lockers at the Annex. (R. 6-22 to 6-23.) Roaches use the many cracks in Annex walls to hide or drop an egg and are capable of carrying dysentery, salmonella and infectious hepatitis. (R. 6-22 to 6-24.)

  Mr. Duel found torn mattresses and pillows which provide a haven for bedbugs, lice and ectoparasites. (Pls. Ex. 637 R 10-11; R. 6-24 to 6-25.) Torn mattresses cannot be cleaned effectively, thereby increasing the likelihood that previous users will transmit skin diseases to the next person who sleeps on the mattress. (R. 6-25.) Defendants also place clean and dirty laundry in the same cart without any liner. (Pls. Ex. 637 at 16; R. 6-49 to 6-50, 11-139.) Germs from the dirty laundry stay in the cart to contaminate the clean laundry that reenters the cart. (R. 6-49 to 50.)

  The kitchen facilities are unsanitary. (Pls. Ex. 637 at 18-20.) Despite Defendants' efforts to clean prior to inspection, Mr. Duel found dirt in less obvious places. (R. 6-32.) A review of maintenance records revealed that the kitchen drains were frequently clogged. (R. 6-33.) All of the these unsanitary conditions in the kitchen provide a source of food borne illnesses. (R. 6-33.) In addition, the dumpsters attract vermin because they are left open and contain unbagged material from the cafeteria. (R. 6-28 to 29, 11-142.)

  Monthly inspection reports performed by the Defendants' Environmental Safety and Sanitation Office indicate that there is very little preventive maintenance at the Annex. (Pls. Ex. 144.) The heating unit which is designed to provide heat and hot water to the Annex frequently malfunctions, resulting in lukewarm water all year around. (R. 4-120; 6-26; Pls. Ex. 170 DC0003871.) The grounds of the Annex drain poorly which results in dangerous accumulations of ice in the winter, mud in the day rooms and breeding grounds for mosquitos in summer. (R. 6-27 to 6-28; Pls. Ex. 486; Smith Dep. at 87-88; Gilmore Dep. at 108, 127.) In fact, mosquitos and flies are in the dining room, the food preparation area and the dish washing area of the kitchen. (R. 6-46, 11-144.) These mosquitos transmit illness-causing organisms. (R. 6-46.)

  The record indicates a willingness on the part of women prisoners to improve the living conditions at the Annex. In a letter to Ms. G.H. Washington, dated June 26, 1993 Jane Doe XI stated:

  (Pls. Ex 177.)

  Outside of the Annex grounds, in the area of prison industries, women prisoners have a history of enduring unhealthy working environment. The Defendants have given potentially hazardous food to women who must eat in unsanitary conditions. (Pls. Ex. 637 at 18; R. 6-35.) The Defendants now provide women with thermal trays, a special delivery truck which keeps the food warmer, and two microwave ovens in the garment shop. (R. 6-46 to 6-47, 11-145-46, Gibbons Dep. at 117.)

  Though approximately 25 women used to share one small bathroom at the garment shop, the Defendants now provide the male prisoners with a single bathroom and give the women prisoners four bathrooms. (R. 4-140 to 141; 11-136; Pls. Ex. 362.)

  The printing and garment shops do not have an adequate ventilation system which is capable of diluting and eliminating airborne contaminants. (R. 6-34; Pls. Ex. 637 at 13;) Instead there are fans near the ceiling on one side which blow air into the building while on the other side there are fans to blow air out of the building. (R. 6-33 to 6-34.)

  Though the evidence undoubtedly demonstrates some attempts to improve conditions at the Annex and the industries, numerous Daily Work Sheets of Facilities Management and Facilities Engineering Service Orders show accelerated activity in the month before the site visit of the Plaintiffs' environmental health expert, Mr. Duel. (Pls. Ex. 480 DC0033257-DC0033300.) Since the February 1994 inspection by Mr. Duel, the Defendants have repaired the roof where it leaked onto the electrical box. (R. 6-44.) A dirty ceiling in the kitchen had been replaced and lighting for the walk-in coolers had been added. (R. 6-45.)

  2. Fire Safety

  The three crucial elements of fire safety are the building, the systems within the building, and the building's operations. (R. 7-7.) The operational aspect of a correctional facility is distinct from an ordinary building because inmates need the assistance of third parties (correctional staff) to exit a building. (R. 7-23.) It is, therefore, crucially ...


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