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August 11, 1995

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 on the Defendants' Revised Motion to Stay and/or Modify Judgment. The Court shall deny the Motion to Stay because the Defendants have not met the necessary standards used to justify such action. The Court, however, will modify certain provisions of the remedial Order of December 13, 1994, as amended ("the Order").

 II. Background

 This matter came before the Court as a class action in which women prisoners at the Lorton Minimum Security Annex ("Annex"), the Correctional Treatment Facility ("CTF") and the Central Detention Facility ("Jail") sued the Defendants and asked the Court to grant them declaratory and injunctive relief in order to correct alleged violations of the Fifth Amendment, the Eighth Amendment, Title IX and the D.C. Code Ann. § 24-442 (1989).

 The Court held a three week trial and found Defendants liable for certain constitutional violations via 42 U.S.C. § 1983 (1994) and statutory violations of D.C. Code Ann. § 24-442 (1989). The Court issued a Memorandum Opinion ("Mem. Op.") and an Order which sought to correct the specific constitutional and statutory violations. The Defendants subsequently filed a Motion to Stay and/or Modify the Order and the Court denied it. The Defendants then sought a Stay of the Order in the United States Court of Appeals for the District of Columbia Circuit. The Court of Appeals ordered that the case be held in abeyance pending additional proceedings on the Defendants' Motion to Stay in this Court. Women Prisoners of the District of Columbia Dept. of Corrections v. District of Columbia, No. 95-7041 (D.C. Cir. April 4, 1995). The Defendants ultimately filed a Revised Motion to Stay and/or Modify Judgment. After a review of the parties' briefs and oral argument, the Court temporarily stayed 30 paragraphs of the Order and ordered the parties to attempt to negotiate an agreement on those paragraphs. Women Prisoners of the District of Columbia Dept. of Corrections v. District of Columbia, 899 F. Supp. 659 (D.D.C. 1995). In commendable fashion, the parties were able to reach agreement on 26 paragraphs. The results are embodied in the Joint Status Motion and Motion Proposing Modifications to the Order for Injunctive and Declaratory Relief ("Joint Motion"). The Motion to Stay as it relates to the four remaining provisions and the Motion to Modify which was based on legal and practical arguments are left for resolution.

 In the Joint Motion, the parties informed the Court that the Defendants seek a stay of Paragraphs 20, 43, 79 and 96 of the Order. Although the parties agreed to modify Paragraphs 20 and 43, the Defendants requested a stay due to lack of funds to hire additional medical staff. The four paragraphs, as modified, provide the following:

(a) a health educator with appropriate training in obstetrics and gynecology in a half-time position who shall provide clinical and health educational services to the entire female prisoner population; and
(b) an additional nurse practitioner, physician's assistant with special training in obstetrics and gynecology, or nurse midwife to provide clinical services to women prisoners at CTF.
43. The health educator shall implement, within 60 days from the day that the health educator is hired, an obstetrical and gynecological health education program that satisfies a recognized national medical standard. Educational material should also be made available in the CTF library. The Defendants shall maintain adequate documentation on the program so that it can be evaluated by the Court within 60 days after implementation.
79. The Defendants shall provide women prisoners at CTF with at least one apprenticeship program as defined by Department order. *fn1"
96. The Defendants shall immediately provide all women prisoners at CTF, including pregnant prisoners subject to medical approval, with recreation for twenty-five hours per week. Women shall have the option of going outside or to indoor recreation facilities during the time period. This recreation schedule shall be effective at CTF within 15 days of this Order. *fn2"

 III. Analysis of Motion to Stay

 In deciding the Defendants' motion for a stay, the Court must determine whether the Defendants have demonstrated a strong showing that they are likely to prevail on the merits of the appeal and that they will be irreparably injured in the absence of a stay. WMATA v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). The Court also must determine whether a stay would substantially harm other parties interested in the proceedings and whether the public interest would be served by a stay. Id. When the other three factors strongly favor granting a stay, a Court may exercise its discretion to grant a stay "if the movant has made a substantial case on the merits." Id. Essentially, the Court may properly stay its own order when it has "ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained." Id. at 844-45.

 A. Merits of the Appeal

 1. D.C. Code Ann. § 24-442 (1989)

 Paragraphs 20 and 43 of the Order rest on the Court's finding of a lack of adequate obstetrical and gynecological care at CTF in violation of D.C. Code Ann. § 24-442 (1989). The statute provides, in pertinent part:

[The] Department of Corrections ... shall ... be responsible for the safekeeping, care, protection, instruction, and discipline of all persons committed to [facilities under its jurisdiction].

 D.C. Code Ann. § 24-442 (1989). This statute "implicitly recognizes the common law rule which imposed upon prison authorities, a duty to exercise reasonable care under the circumstances in the protection and safekeeping of prisoners." Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988). Nothing in the statute explicitly curtails the equity jurisdiction conferred on the Court by D.C. Code Ann. § 11-921(a) (1995). *fn3" The District of Columbia Court of Appeals has "always construed this grant of jurisdiction broadly . . . [and] has upheld [the Superior Court's] exercise of equitable jurisdiction in a variety of contexts, even when statutes did not explicitly provide access to the Superior Court." Hessey v. Burden, 615 A.2d 562, 571 (D.C. 1992) (citations omitted).

 The Defendants argue that the statute merely extends the common law of torts to prisons and does not permit equitable relief to prevent future torts. Implicit in the argument is the view that the common law of torts forbids injunctive relief to prevent future torts. It is well-settled, however, that the common law recognizes that an important form of remedy for a tort is an injunction, granted before any damage occurs. Berrien v. Pollitzer, 83 U.S. App. D.C. 23, 165 F.2d 21, 22 (D.C. Cir. 1947) ("No one can seriously contend that money is an adequate remedy for all sorts of personal wrongs. Clearly 'injunctions and similar flexible remedies of equity are much better suited than a speculative action for damages to protect [personal] interests . . . .'"); see also Prosser and Keeton on The Law of Torts, Ch. 1, § 1 p. 2 (5th Ed. 1984).

 In negligence actions where irreparable injury is threatened, a court may act by injunction to prevent harm before it occurs. Prosser and Keeton on The Law of Torts, Ch. 5, § 30 p. 165 n.8 (5th Ed. 1984). The availability of an injunction against a threatened tort depends upon various factors including "the relative adequacy to the plaintiff of an injunction and of the other remedies, plaintiff's laches or unclean hands, the relative hardship likely to result to defendant if an injunction should be granted and to plaintiff if it should be denied, the interests of third persons and of the public and the practicability of framing and enforcing the order of judgment." Restatement (Second) of Torts, Ch. 48 § 933(1) p. 559 and Comment a. on Subsection (1) p. 560 (1979). The threatened tort must be of sufficient seriousness and imminence to justify coercive relief. Restatement (Second) of Torts, Ch. 48 § 933 p. 561 comment b. on Subsection (1) (1979). A common method of proving a threat of a future tort is by proving a past tort under conditions that render its repetition or continuance probable. Id. It is not necessary, however, to prove a past wrong. Id.

 The Defendants' failure to meet the standard for obstetrical and gynecological care is the proximate cause of past injuries and it is reasonably foreseeable that their actions or inactions will lead to future injuries to the Plaintiffs. The Defendants' failure appropriately to educate women prisoners results in their refusal of medical help. Inadequate examinations and follow-up treatment permit cervical and breast cancer, opportunistic infections in AIDS patients, sterility as a result of chlamydia and gonorrhea, peritonitis from gonorrhea, and aortic aneurysms, dementia, psychosis or death from syphilis. Plainly, an award of damages is no remedy for these medical problems. Furthermore, women prisoners do not have the option of finding other doctors. Only equitable relief will provide an adequate remedy.

 The Defendants argue that the Court should refrain from using its equitable powers in the absence of any guidance from the District of Columbia Court of Appeals interpreting § 24-442. This Circuit, however, has affirmed an order of equitable relief in the absence of any District of Columbia decisional law. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 241 U.S. App. D.C. 83, 746 F.2d 816, 828 n.18 (D.C. Cir. 1984) (stating, "Since no District of Columbia decisional law is on point here, we must make a predictive judgment about D.C. law.")

 The Defendants argue that § 24-442 should be interpreted like 18 U.S.C. § 4042 (1985) which provides federal prisoners with a tort remedy in damages but not equitable relief. Federal prisoners, however, may not sue for injunctive relief because such a remedy is precluded by the doctrine of sovereign immunity and the Federal Tort Claims Act does not provide a waiver of sovereign immunity for equitable relief. Federal prisoners may maintain an action in tort for money damages because the Federal Tort Claims Act, 28 U.S.C. § 2674 (1994) carves out an exception to the doctrine. Section 18 U.S.C. § 4042 (1985) simply establishes the Bureau of Prisons' duty of care. *fn4" The District of Columbia, lacking sovereign immunity, does not possess a similar shield to protect it from claims for injunctive relief. See Wade v. District of Columbia, 310 A.2d 857, 861 (D.C. 1973).

 The Defendants also argue that the Court should not have exercised supplemental jurisdiction over the § 24-442 claim pursuant to 28 U.S.C. § 1367 (1993). That statute provides, in pertinent part:

(a) In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
(c) The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if -
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original jurisdiction, *fn5" or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

 The claims under § 24-442 are so related to claims in the action within the Court's original jurisdiction that they form part of the same case or controversy. A Court has the authority to reach a state law claim when a non-frivolous claim arising under federal law and one arising under state law emerge from a common nucleus of operative fact. Common Cause v. District of Columbia, 858 F.2d 1, 10 (D.C. Cir. 1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)). The justification for such an exercise of jurisdiction "lies in considerations of judicial economy, convenience and fairness to litigants." United Mine Workers of America v. Gibbs, 383 U.S. at 726.

 Although the Court did not address the issue of gynecological care under the Eighth Amendment, the Court holds that the constitutional claim is not "so attenuated and unsubstantial as to be absolutely devoid of merit." Hagans v. Lavine, 415 U.S. 528, 536, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974). *fn6" The record is replete with instances of profound suffering caused by inadequate obstetrical and gynecological care at CTF. This factual situation is a far cry from one in which a state cause of action is bootstrapped on to a frivolous constitutional claim.

 The statute conferring supplemental jurisdiction is permissive in that it provides that a district court "may" decline to exercise supplemental jurisdiction over a state law claim for the enumerated reasons. The Court does not find any reason under 28 U.S.C. § 1367(c)(1)-(4) (1993) to relinquish jurisdiction over the § 24-442 claims.

 The claim does not raise a novel or complex issue of District of Columbia law. The standard of care in the statute has been clarified so as to preclude any ambiguity. See District of Columbia v. Mitchell, 533 A.2d 629, 648 (D.C. App. 1987) (holding physicians owe same standard of care to prisoners as physicians owe to private patients generally). The exercise of injunctive relief is explicitly authorized by D.C. Code Ann. § 11-921(a) (1995) and is an unexceptional feature of common law.

 The claim does not substantially predominate over the constitutional or Title IX claims "whether in terms of proof, or the scope of the issues raised, or of the comprehensiveness of the remedy sought." See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Furthermore, there are no other compelling reasons for declining jurisdiction.

 The Defendants argue that application of § 24-442 is barred by the 11th Amendment to the United States Constitution. *fn7" The Defendants support this argument with the case of Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984), in which the Supreme Court held that the Eleventh Amendment prohibits federal courts from granting relief against state officials on the basis of state law. The District of Columbia, however, is not a state for the purposes of the Eleventh Amendment. Committee of Blind Vendors v. District of Columbia, 695 F. Supp. 1234, 1241 n.6 (D.D.C. 1988); See Morris v. WMATA, 781 F.2d 218, 228 (D.C. Cir. 1986) ("Had Maryland and Virginia created WMATA without the participation of the District of Columbia, we would conclude that WMATA enjoys eleventh amendment immunity as an instrumentality of the state.") Cf. Bolling v. Sharpe, 347 U.S. 497, 98 L. Ed. 884, 74 S. Ct. 693 (1954) (District of Columbia not a "state" under the Fourteenth Amendment). It is well-settled that the District of Columbia is a municipality. Jones v. District of Columbia, 116 U.S. App. D.C. 301, 323 F.2d 306, 309 (D.C. Cir. 1963); La Forest v. Board of Commissioners, 92 F.2d 547, 548 (D.C. Cir. 1937). The Eleventh Amendment does not protect municipalities. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). The District of Columbia, therefore has no immunities under the Eleventh Amendment.

 2. Title IX8

 Paragraphs 79 and 96 of the Order rest on the Court's finding of an inequality of programs offered at CTF in violation of Title IX and its implementing regulations. The Court, therefore, must examine these laws.

 Title IX of the Education Amendments of 1972 provides, in relevant part, that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . ." 20 U.S.C. § 1681(a) (1990).

 Under Title IX, "state prisons receiving federal funds are required . . . to make reasonable efforts to offer the same educational opportunities to women as to men. Although the programs need not be identical in number or content, women must have reasonable opportunities for similar studies and must have an equal opportunity to participate in programs of comparable quality." Jeldness v. Pearce, 30 F.3d 1220, 1229 (9th Cir. 1994).

 The Defendants argue that the Court mistakenly applied Title IX to prison industries, prison recreational activities, prison work details and work training programs. The Court, however, is required to accord Title IX "a sweep as broad as its language," North Haven Board of Ed. v. Bell, 456 U.S. 512, 521, 72 L. Ed. 2d 299, 102 S. Ct. 1912 (1982), and therefore, it holds that Title IX reaches industries, recreation, work details and work training.

 During congressional debates on Title IX, Senator Bayh, who introduced the legislation, plainly announced that the proposed law was meant to expand employment opportunities for women:

It is . . . an important first step in the effort to provide for the women of America something that is rightfully theirs - an equal chance to attend the schools of their Choice, to develop the skills they want, and to apply those skills with the knowledge that they will have a fair chance to secure the lobs of their choice with equal pay for equal work.

 118 Cong. Rec. 5808. (1972) (Emphasis added). See Northhaven Board of Education v. Bell, 456 U.S. at 526-27 ("Senator Bayh's remarks, as those of the sponsor of the language ultimately enacted, are an authoritative guide to the statute's construction.")

 Title IX's implementing regulations specifically prohibit sexual discrimination in the areas presently at issue. A recipient of federal funds may not discriminate on the basis of sex in the following education programs or activities: industrial, physical education, *fn9" vocational, *fn10" technical. 34 C.F.R. § 106.34 (1994). In the area of employment, recipients are prohibited from sexually discriminating when they assist another organization or person in making outside employment available. 34 C.F.R. § 106.38(a) (1994). Use of the word "outside" indicates a clear intent to prevent discrimination in ordinary employment as opposed to the more traditional academic or work training programs. Furthermore, the regulations prevent the recipient from discriminating when they hire for their own needs. 34 C.F.R. § 106.38(b) (1994). The "outside employment" distinction is important because it destroys the inflexible partition between work and study which the Defendants' interpretation of Title IX creates. *fn11"

 Defendants also ignore the very practical interconnections between work and study at the institutions. In the Court's Memorandum Opinion of December 13, 1994 it found that the completion of academic, vocational, apprenticeship and higher education programs qualifies women prisoners for an increased industrial wage. (R. 10A-48 (Morning Session).) (Memorandum Opinion ("Mem. Op.") at 47.) Work opportunities and academic performance are woven together as in a more traditional work-study context.

 3. The Fifth Amendment and Equal Protection

 At trial, the Plaintiffs challenged programs at CTF and the Annex on Equal Protection grounds. The Court decided not to reach that issue because the remedial devices in Title IX sufficiently cover discrimination in educational programs. A decision on the constitutional question was, therefore, not absolutely essential to the disposition of the case. (Mem. Op. at 105.) This issue now comes before the Court in a different posture. In deciding a motion to stay, the Court must decide whether it has rendered a decision on "an admittedly difficult legal question." See WMATA v. Holiday Tours, Inc., 559 F.2d at 844-45. Since the issue raised under Title IX is one of first impression in this Circuit, the Court holds that it should proceed to the Equal Protection claim. *fn12"

  The fundamental purpose of the Equal Protection Clause is to compel the government to treat equally all people who are similarly situated. *fn13" Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985). Equal protection principles apply to federal action through the due process clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499, 98 L. Ed. 884, 74 S. Ct. 693 (1954). Government policies that seek to distinguish between males and females are subject to scrutiny under the Equal Protection Clause, Reed v. Reed, 404 U.S. 71, 75, 30 L. Ed. 2d 225, 92 S. Ct. 251 (1971), and anyone defending such a policy must provide an "exceedingly persuasive justification" for it. Mississippi University for Women v. Hogan, 458 U.S. 718, 724, 73 L. Ed. 2d 1090, 102 S. Ct. 3331 (1982). Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976). The Supreme Court has rejected administrative ease and convenience as a justification for gender-based classifications. Id. at 198.

 In the case of Pitts v. Thornburgh, 275 U.S. App. D.C. 332, 866 F.2d 1450 (D.C. Cir. 1989), the D.C. Circuit Court of Appeals confronted an equal protection challenge by female prisoners. In Pitts, the inmates alleged that the District of Columbia's policy of incarcerating long-term female offenders at distant federal facilities violated the Equal Protection Clause. Id. at 1451-52. The Court of Appeals applied the heightened scrutiny standard despite the Supreme Court's use of a "reasonableness" standard when reviewing prison regulations in Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).

 The Pitts court offered two reasons for its application of heightened scrutiny. The Court stated that Turner "applies to cases involving regulations that govern day-to-day operation of prisons and that restrict the exercise of prisoners' individual rights within prison" whereas Pitts involved "general budgetary and policy choices made over decades in the give and take of city politics." Pitts v. Thornburgh, 866 F.2d at 1453-54.

 The Court also stated that Pitts involved "important concerns that the Supreme Court has clearly held call for stepped-up scrutiny" under the Fifth Amendment. Id. at 1454. Equal protection claims are distinct from the personal rights challenges in Turner because the former is a "demand that governmental action that affects an individual not be predicated upon constitutionally defective reasoning. The claim charges invidiousness, rather than an unwarranted interference with constitutionally secured liberties." Id. at 1455.

 The Defendants argue that the differences in treatment between men and women in the areas of recreation, industries and work details, "are largely attributable to the differences in the physical structures in which men and women convicts are incarcerated and in the relative proportion of men and women placing demands on limited space, personnel, and other resources available to the Department of Corrections." (Defs. Reply at 12.) The Defendants also argue that CTF "had been operating for only a short period, and [was] just getting off the ground, ...

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