Paragraph 20 (a) seeks to remedy specifically the grossly inadequate health education at CTF. (Mem. Op. at 18-19.) The Order simply mandates a health educator with appropriate training in obstetrics and gynecology in a half-time position to provide clinical and health educational services.
Paragraph 20(b) seeks to remedy specifically the inadequate staffing which results in inadequate obstetrical and gynecological care. (Mem. Op. at 25.) The Order gives the Defendants the choice of adding a nurse practitioner, physician's assistant with special training in obstetrics and gynecology, or nurse midwife to provide clinical services.
Paragraph 43's implementation of an obstetrical and gynecological health education program, like Paragraph 20 specifically addresses the problem of inadequate education. Provision of educational material addresses the absence of any educational materials for women prisoners at CTF. (Mem. Op. at 18-19.) Maintenance of records allows the parties to prove compliance or noncompliance with the Paragraph.
Given the nature and extent of problems with obstetrical and gynecological care at CTF, the Court holds that these remedies are sufficiently tailored to meet specific existing problems. In addition, these paragraphs of the Order place women prisoners at CTF in a position they would have occupied in the absence of such neglect. They will now be educated and treated.
As to the interests of the District of Columbia in managing its own affairs, Paragraphs 20 and 43 simply conform to the policies of the Department of Corrections. Defendants' policy on health promotion and disease prevention states: "Health Services will provide health education and training in self-care skills to all inmates . . . ." (Mem. Op. at 18.) Furthermore, "it is the policy of Health Services to provide clinically appropriate periodic health examinations and follow-up care to inmates under the [DCDC]." (Mem. Op. at 14.)
Paragraphs 79 and 96 specifically address two blatant inequalities at CTF. There are no apprenticeships at CTF equal to those offered to similarly situated male prisoners. (Mem. Op. at 59.) Paragraph 79 does nothing more than order the Defendants to remedy this situation and allows them to do so "as defined by Department order."
Similarly, Paragraph 96 is specifically tailored to remedy the unequal provision of recreational opportunities at CTF. (Mem. Op. 60-62.) The twenty-five hours of recreation time per week given to women is less than the fifteen hours per day given to males at Central or the all day recreation of males at Medium or the daily seven hours of recreation at Occoquan. (Mem. Op. 61.) The option to remain indoors or go outdoors is exactly the option men exercise at the similarly situated facilities. Furthermore, Paragraphs 79 and 96, at the very least, place women prisoners in the position they would have occupied in the absence of such inequality.
The Court has been cognizant of the Defendants' interest in managing their own affairs. paragraph 79 does not offer any specifics as to the type of apprenticeship program to be offered. It simply orders the Defendants to establish one. Paragraph 96 does not set a detailed schedule for recreation but instead provides a weekly amount. The Defendants still retain much latitude within the broad outlines of these two Paragraphs.
In summary, the Court holds that the four paragraphs challenged by the Defendants on "overbreadth" grounds are consistent with the limiting principles which district courts in this Circuit must apply when devising remedies for unlawful prison conditions.
B. Irreparable Injury to the Defendants
The Defendants justify their Motion for a stay by arguing that the District of Columbia has been declared insolvent by the General Accounting Office and the Order diverts funds to costly improvements. Defendants claim that they cannot afford to hire the two additional staff members required by Paragraph 20 or to start the health education program under Paragraph 43. The Defendants did not make this argument for Paragraph 79 or 96, but even so, "mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925; 104 U.S. App. D.C. 106 (D.C. Cir. 1958). Though some of this money night be unrecoverable, "a party moving for a stay is required to demonstrate that the injury claimed is both certain and great." Cuomo v. United States Nuclear Regulatory Commission, 772 F.2d 972, 976 (D.C. Cir. 1985). The Court holds that the potential injury from these two provisions does not rise to that level.
C. Substantial Harm to Other Interested Parties
"As with irreparable harm to the movant, [the Court] test[s] these harms for substantiality, likelihood of occurrence and adequacy of proof." Id. at 977. The provision of health care and education is exceedingly important for people in a high risk health category such as Defendants. Failure to educate and treat obstetrical and gynecological problems will lead to very serious health problems for some members of the Plaintiff class.
At trial the Plaintiffs' expert penologist testified that, in the opinion of the Department of Corrections employees with whom she spoke, the "inability to have a job" was the most common reason for the return of women prisoners to jail. The apprenticeship program cannot be postponed while women prisoners at CTF move closer to their release dates.
Recreation assumes a greater dimension within the context of a controlled movement facility like CTF. The Plaintiffs' expert likened the limited recreation at CTF to punitive segregation which is a form of injury that a prison may legitimately use against prisoners. At CTF, however, such a restriction is the norm. It is a daily substantial injury.
As with the Defendants' funds, the Plaintiffs' potential loss of recreation, health and vocational training are unrecoverable. The Court holds that upon weighing the competing harms, the balance swings toward a denial of the Motion to Stay.
D. The Public Interest
The Court holds that whatever interest the public has in the Order favors a denial of a Motion to Stay. The interest in saving the public money needed for the four provisions is outweighed by the public interest in having women prisoners leave jail reasonably healthy and with the capacity to hold productive jobs instead of returning to jail for a publicly financed incarceration.
IV. Analysis of Motion to Modify
In addition to the Motion to Stay, the Defendants have moved the Court to modify its Order. As a preliminary matter, the Court will adopt the modifications proposed by the parties in the Joint Motion, with the exception of Paragraphs 20 and 40. Defendants' arguments for modification generally are premised on legal and practical grounds. The Court will consider each category in turn.
A. Legal Bases for Modification
The Court is satisfied that its legal analysis of the Eighth Amendment, the Fifth Amendment, Title IX and the D.C. Code adequately support the remedial order issued in this case with the exception of child visitation and child placement issues. The Court will address this issue first. In addition, the Court will review the challenges to the Order under the limiting principles for remedies announced in Inmates of Occoquan v. Barry, 269 U.S. App. D.C. 210, 844 F.2d 828 (D.C. Cir. 1988).
1. Child Visitation and Child Placement Counseling
In its Memorandum Opinion, the Court held that the lack of child visitation and inadequate child placement counseling at CTF combined to form an Eighth Amendment violation. (Mem. Op. at 78-80. ) Upon reconsideration of the legal issue, the Court holds that issues involving prisoner visitation rights are more appropriately reviewed under the Due Process Clause. On the issue of prisoner contact visits, the Supreme Court has held that the Constitution does not require that prisoners be allowed contact visits "when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility."
Block v. Rutherford, 468 U.S. 576, 589, 82 L. Ed. 2d 438, 104 S. Ct. 3227 (1984).
Attached to the Revised Motion to Stay and/or Modify Judgment, the Defendants attached the Corrected Declaration of Margaret Moore, Director, D.C. Department of Corrections. Ms. Moore's revised declaration contains additional information not previously provided to the Court. In her revised Declaration, the Director explains that a program allowing for women prisoners to routinely visit their children at D.C. General Hospital would create significant security risks such as escapes, assaults and the passing of contraband. (Moore Dec. at 11-12.) Based on Ms. Moore's evaluation of the security risks, the Court will vacate that portion of the Memorandum Opinion holding that the lack of child visitation violates the Eighth Amendment. The Court will also vacate Paragraphs 39 and 40 of the Order.
Without child visitation as an Eighth Amendment concern, the Court holds that the lack of child placement counseling does not by itself rise to the level of an Eighth Amendment violation.
Though the Court regards such matters as exceedingly important, it does not believe that lack of child placement counseling is a deprivation which denies the minimal civilized measure of life's necessities. See Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The Court, therefore, vacates Paragraphs 41 and 42 of the Order.
As to the remedies for Title IX violations, the Defendants argue that the inequalities can be cured by a redistribution of existing resources and programs and that they should be given the option of redistributing these resources. The remedies which correct Title IX and Equal Protection violations rest on evidence the Court reviewed at trial. The Court realizes that the situation with programs at all of the Defendants' facilities is fluid. The Court does not intend the Order to preclude a redistribution of resources, as long as it can be accomplished within the bounds of the Order and the court orders and consent decrees which control other institutions under the Defendants' control. Nonetheless, the Court does not have before it any evidence that such a redistribution has occurred. If the Defendants devise a plan which offers the Plaintiffs fewer programs than what is contained in the Order but which is also not in violation of Title IX or the Equal Protection Clause, the Defendants may present such evidence to the Court and seek a modification of the Order.
The Defendants' Motion to Stay and/or Modify identifies individual provisions of the Order which they say are not justified. The Court will consider each objection that contains a specific legal argument.
Paragraph 7, inter alia, prohibits the Defendants from retaliating against a woman prisoner who reports sexual harassment. This provision specifically addresses problems of retaliation found by the Court at trial. The evidence demonstrated that officers threatened women not to report the incidents of assaults. (Mem. Op. at 4.) Women prisoners were also placed in non-voluntary protective custody after reporting these events. (Id.) This remedy does not prevent the Defendants from legitimately taking punitive action against women prisoners for an infraction. It simply prevents then from using disciplinary measures to cover up sexual harassment.
Paragraph 10 allows women prisoners to submit Inmate Grievance Procedure forms ("IGP's") or complaints orally or in writing to a DCDC employee who must submit it to the monitor and Warden within 24 hours. This provision specifically addresses problems encountered by illiterate prisoners and problems with inconsistent reporting practices of the Defendants. (Mem. Op. at 6-7.)
The parties have reached an agreement as to the wording of Paragraph 20. The Court, however, will amend Paragraph 20(a) to require the ordered health educator to provide the ordered services to "the entire female prisoner population at CTF." Obstetrical and gynecological care of women prisoners at the Annex is controlled by the consent decree in Inmates of Three Lorton Facilities v. District of Columbia, No. 92-1208 (D.D.C.) and such care at the Jail is controlled by Campbell v. McGruder, 1993 U.S. Dist. LEXIS 5377, No. 1462-71 (D.D.C.).
Paragraph 21 requires the Defendants to maintain their current regularly scheduled hours. This specifically addresses problems with understaffing, (Mem. Op. at 25), and overall inadequate OB/GYN care. (Mem. Op. at 15-18.) The Defendants argue that since a clinic already exists this provision is unjustified. In The Special Officer's Report on Compliance with the December 13, 1994 Order, as Amended ("Special Officer's Report") filed on May 10, 1995, the Special Officer informed the Court that, although Paragraph 21 would not take effect for another month, evidence indicated that the clinic operated sporadically between January 1995 and April 1995. (Sp. Off. Rpt. at 20.) The Court holds that this provision corrects a specific problem and it is not an unwarranted intrusion into the Defendants' affairs inasmuch as it merely requires them to maintain the hours of their own clinic.
Paragraph 22 of the Order requires the Defendants to establish a prenatal clinic at CTF. This provision specifically seeks to remedy the inadequate prenatal care given to women prisoners at CTF. (Mem. Op. at 19-22.) Defendants claim that the needs of women prisoners are met by using the OB/GYN clinic at CTF. The Special Officer's Report contradicts this position. (Sp. Off. Rpt. at 21.) The Court, therefore, will not modify Paragraph 22.
B. Practical Basis for Modification
Paragraph 79 mandated two apprenticeship programs for CTF. The Defendants claim that they have not been able to find a suitable apprenticeship program. In the Joint Motion, the Defendants informed the Court that they would file a proposal as to Paragraph 79. The Court did not receive a proposal from the Defendants and is not persuaded that no program can be found. The Court will adopt the proposal filed by the Plaintiffs which reduces the requirement to one apprenticeship program.
Paragraph 96 requires the Defendants to provide recreation to women prisoners for five hours a day, seven days a week. The Defendants claim that the physical limitations at CTF prevent compliance. The Court did not receive a proposal from the Defendants on this Paragraph as promised in the Joint Motion. The Court will adopt the Plaintiffs' compromise proposal of twenty-five hours of recreation per week. The weekly allocation of less recreation time gives the Defendants more flexibility to correct this unequal opportunity.
Paragraph 116 orders the Defendants to hire a qualified air balancing contractor to service the CTF air handling system. The Defendants claim that repairs to the system cannot be accomplished within the timefrane of the Order. Paragraph 127 requires the Defendants to install a sprinkler system in the Annex dormitories within six months of the Order. The Defendants also claim that they cannot accomplish this within that period of time. Director Moore estimates that it could take over a year due to testing the water system and the contracting process. The Court will not modify these two paragraphs. The Defendants may, however, submit a detailed report which explains the measures which have been taken to correct these serious problems, reasons for noncompliance with the Order and any reasonable alternatives to the requirements in the Order.
Since the Court finds that the Defendants have not met the standards necessary to justify a stay, the Court denies the Defendants' Motion to Stay the Judgment. The Court will, however, grant the Defendants' Motion to Modify in part. The Court modifies its Order as to Paragraphs 12, 17, 18, 20, 35, 43, 46, 47, 48, 49, 50, 55, 58, 60, 67, 70, 71, 75, 87, 102, 115, 123 and 124 and vacates Paragraphs 39, 40, 41, 42, 73 and 74.
JUNE L. GREEN
UNITED STATES DISTRICT COURT JUDGE
Date: August 11, 1995
Upon consideration of the Defendants' Revised Motion to Stay and/or Modify Judgment, the Plaintiffs' Opposition to Defendants' Renewed Motion to Stay and/or Modify Judgment, the Defendants' Reply, the Defendants' Supplement, the Plaintiffs' Surreply, the Joint Status Motion and Motion Proposing Modifications to the Order for Injunctive and Declaratory Relief, the Plaintiffs' Status Motion Regarding PP 79 and 96 of the Order, it is by the Court this 11th day of August, 1995
ORDERED that the portion of the Defendants' Revised Motion to Stay and/or Modify Judgment in which Defendants seek a stay is DENIED; it is further
ORDERED that PP 73 and 74 of the Court's Order of December 13, 1994 are VACATED due to the termination of the Atlantic Union College program at CTF; it is further
ORDERED that PP 39, 40, 41, 42 of the Court's Order of December 13, 1994 are VACATED; it is further
ORDERED that PP 12, 17, 18, 20, 35, 43, 46, 47, 48, 49, 50, 55, 58, 60, 67, 70, 71, 75, 87, 102, 115, 123 and 124 of the Court's Order of December 13, 1994 are amended as follows:
12. Failure of an employee to report any allegation of sexual misconduct or any facts and circumstances which would lead a reasonable employee to believe that sexual misconduct is occurring or has occurred shall subject the employee to discipline.
17. The Department shall conduct mandatory training using certified trainers on sexual misconduct for all DCDC employees. A consultant from the National Institute of Corrections (NIC), mutually agreed upon by the parties, shall develop the training plan and materials. A "certified trainer" is defined as any person who has completed the "Train-the-Trainer" course developed by the NIC consultant. The monitor(s), if they so choose may attend this training.
a. The training shall include education concerning the Defendants' policies regarding reporting, investigating, and preventing sexual harassment, and the consequences for violating any policy concerning sexual harassment; and
b. All staff who work with female prisoners shall be trained by certified trainers within six months commencing no later than August 30, 1995. After the initial training of staff, the training will be included in the pre-service training of all staff. Annual retraining shall be conducted to refresh staff on the Department Order regarding sexual misconduct.
c. Within one year, selected employees working with female prisoners shall receive a forty-hour training program on working with female offenders. A semi-annual, enhancement training on special issues related to working with female offenders will be offered to select employees.