ROBERT L. STICKNEY, ET AL. VS. ROBERT LIST, ET AL., No. 3:1979cv00011 - Document 181 (D. Nev. 2018)

Court Description: ORDER granting in part and denying in part ECF No. 175 Motion to Terminate Prospective Relief (see order for details); denying ECF No. 178 Motion for Postponement of Automatic Stay. Signed by Judge Robert C. Jones on 4/16/2018. (Copies have been distributed pursuant to the NEF - KR)
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ROBERT L. STICKNEY, ET AL. VS. ROBERT LIST, ET AL. Doc. 181 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ______________________________________ ) ) ROBERT L. STICKNEY, ) ) Plaintiff, ) ) vs. ) ) ROBERT LIST et al., ) ) Defendants. ) ) 3:79-cv-00011-RCJ ORDER 12 13 This case arises out of inadequate staffing at Northern Nevada Correctional Center 14 (“NNCC”). Pending before the Court is a motion to terminate the permanent injunction. In 15 1979, Plaintiff Robert Stickney filed this action, arguing that various conditions at NNCC 16 violated the Eighth Amendment. Judge Reed certified the case as a class action in 1981 and 17 entered judgment in 1982 after a bench trial. (See Mem. Dec. & J. 1–4, May 14, 1982, ECF No. 18 175-1, at 5). Plaintiff argued, inter alia, that overcrowding at NNCC had resulted in frequent 19 assaults and other unconstitutional conditions. (Id. 6). Judge Reed found that violence in Units 20 1, 2, and 3 at NNCC “exceed[ed] constitutional standards” and was due “essentially to 21 understaffing,” (id. 7), 1 ordering the following injunctive relief: 22 23 24 1 Judge Reed ruled that Plaintiff’s claim that prison staff was inadequately trained was not cognizable. (Id. 10). Nor was his complaint about a lack of job opportunities. (Id. 18). He found that evidence of isolated incidents of assaults on psychiatric patients by inmate psychiatric 1 of 8 Dockets.Justia.com 1 2 3 [No fewer] than two correctional officers [shall] be on duty at all times in Units 1, 2 and 3 at NNCC. In the event that the number of inmates housed in any of Units 1, 2 and 3 shall exceed 172, . . . a minimum of three correctional officers must be assigned to duty on a 24-hour basis in such unit. If all three of said units exceed an inmate population of 172, then said minimum staffing must also include an additional two roving officers who may move about said three units . . . . 4 (Id. 19). Judge Reed later clarified that the units could exceed 172 while inmates were briefly 5 shuffled during a prison refurbishing project, and that the injunction would not be violated if 6 correctional officers had to leave the subject units to respond to emergencies elsewhere in the 7 prison or to escort inmates to the cafeteria. (Order, Oct. 19, 1982, ECF No. 175-1, at 2). 8 Defendants have asked the Court to terminate the injunction under the Prison Litigation 9 Reform Act of 1996 (“PLRA”). In a “prison conditions” case where prospective relief was 10 ordered before the date of enactment of the PLRA, as here, any party may request termination of 11 such relief two years after the date of enactment. 18 U.S.C. § 3626(b)(1)(iii). Defendants are: 12 13 14 entitled to the immediate termination of any prospective relief if the relief was approved or granted in the absence of a finding by the court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. 15 Id. § 3626(b)(2). However, 16 17 18 Prospective relief shall not terminate if the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation. 19 Id. § 3626(b)(3). 20 21 22 23 24 attendants was insufficient to show deliberate indifference, (id.), as was evidence of isolated incidents of inoperable firefighting equipment, (id. 11). He found that the nutritional value of the food at NNCC was constitutionally sufficient, (id. 12), as were the conditions of cells, (id. 13– 14), medical care, (id. 14–15), sanitation (id. 15–16), clothing and laundry, (id. 16–17), bedding, (id. 17), health and hygiene items, (id.), heating, (id.), water supply, (id. 17–18), recreational opportunities, (id. 18), and prison maintenance, (id.). 2 of 8 1 The Court cannot, of course, re-litigate the underlying constitutional question, and 2 Defendants do not alternatively ask the Court to relieve it from judgment under Rule 60(b)(6), 3 i.e., due to changed conditions. A court’s task under § 3626(b) is to determine first not whether 4 the remedy previously imposed was in fact the least intrusive necessary, but whether the court 5 issuing the injunction so found. See id. § 3626(b)(2). Only if the answer to that first question is 6 “no” does a court proceed to examine whether the remedy previously imposed remains the least 7 intrusive necessary to correct an ongoing violation. See id. § 3626(b)(3). The Court cannot say 8 that Judge Reed failed to make the required findings with respect to the two-guard requirement 9 in each of Units 1, 2, and 3. However, he did not make explicit findings with respect to the 10 three-guard requirement when any of the units exceed 172 inmates or the two-roving-guard 11 requirement when all three of the units exceed 172 inmates. 12 In 1982, Judge Reed did not have the benefit of the PLRA’s text concerning the tailoring 13 of remedies. Nevertheless, he clearly recognized that his function was to “fashion[] a remedy 14 that does no more . . . than correct th[e] particular constitutional violation.” (Mem. Dec. & J. 5 15 (quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982)) (emphasis added)). Although he 16 did not use the phrase “least intrusive means,” the phrase “no more” is essentially synonymous 17 therewith. It is the substance of Judge Reed’s findings, not whether he used “talismanic 18 language,” that matters, cf. Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir. 2012) 19 (Gorsuch, J., joining), especially where the language at issue was not adopted until after Judge 20 Reed ruled. 21 Still, Judge Reed only made an explicit finding of narrow tailoring as to the two-guard 22 requirement, not as to the three-guard or two-roving-guard requirements. In making his findings, 23 Judge Reed relied on the testimony of former Director of Corrections of the State of California 24 3 of 8 1 Jerry Enomoto, who inspected NNCC in order to prepare an expert report as to sufficient staffing 2 levels for guards. (Mem. Dec. & J. 3–9). Judge Reed found that “unless additional staff is 3 provided to supervise the inmates confined in Units 1, 2 and 3, of NNCC, the inmates are not 4 safe . . . .” (Id. 7). He accepted Mr. Enomoto’s expert opinion that “there is only one reasonable 5 way to control assaults among inmates and that way is to direct supervision of the inmates by 6 additional necessary correctional officers.” (Id. 9 (emphases added)). But Judge Reed’s only 7 finding as to what particular level of staffing was necessary to avoid a constitutional violation, 8 based on Mr. Enomoto’s expert report, was that “at least two guards on watch during every shift 9 in Units 1, 2 and 3 is the minimum required to ensure a reasonable level of safety in each unit.” 10 (Id. (emphasis added)). No similar findings were made as to the three-guard or two-roving-guard 11 requirement, which were simply appended to the decree, (see id. 19), without any findings of 12 narrow tailoring, (see id. 9). 13 In summary, Defendants are not entitled to termination of the injunction as to the two- 14 guard requirement. In most circuits, Defendants would be entitled to immediate termination of 15 the three-guard and two-roving-guard requirements (unless Plaintiff showed that they were the 16 least restrictive necessary to remedy an ongoing violation under current conditions), but in this 17 Circuit the Court may not so rule unless the record before Judge Reed would not have supported 18 such a finding, regardless of whether Judge Reed made explicit findings to that effect. Gilmore v. 19 People of the State of Cal., 220 F.3d 987, 1008 (9th Cir. 2000). Contra Benjamin v. Jacobson, 20 172 F.3d 144, 158 (2nd Cir. 1999) (en banc); Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999), 21 cert. denied, 530 U.S. 1264 (2000). 22 23 24 4 of 8 1 Accordingly, the Court has requested and received from the National Archives a copy of 2 Mr. Enomoto’s expert report (“the Report”) relied upon by Judge Reed. 2 The Report indicates 3 that Mr. Enomoto inspected NNCC on eight days between July 21 and 31, 1981, with the 4 participation of Plaintiff. (Jerry Enomoto, Report of Prison Expert 1, Sept. 13, 1981, Dkt. No. 5 59). Mr. Enomoto’s conclusions as to inmate safety with regard to staffing read in relevant part: 6 I must conclude that inadequate Correctional Officer positions at NNCC jeopardizes both inmate and staff safety. Modern correctional standards oppose the housing of medium security inmates in dormitories because control of such areas is extremely difficult. Analysis of the population shows that there are inmates with serious management problem histories at NNCC. 7 8 9 10 11 12 13 14 The physical layout of Units 1, 2 and 3 are such that visual supervision of all three (3) wings is impossible from the custody office in the rotunda. This is compounded by the fact that inmates are housed in twelve (12) man dormitories and five (5) bed day rooms (soon to be increased) that are crowded with property and are difficult to see into. The minimum staffing for these units should be three (3) C.O.’s so that at least two (2) are available to rove through the dormitories. The current staffing is two (2) on the day, evening and morning shifts. It is not uncommon for positions to be allocated elsewhere because of demands for court and hospital coverage outside the institution. This results in only one (1) C.O. remaining to provide coverage in the unit. 15 (Id. 10). Although Mr. Enomoto opined that there was no deliberate indifference in the 16 constitutional sense, because NDOC had requested additional staffing but had been denied by the 17 state legislature, (id.), Judge Reed did not adopt that aspect of the Report. 18 Mr. Enomoto addressed overpopulation in Units 1, 2, and 3 under the section of the 19 Report concerning the complaints about adequate shelter. He noted that “NNCC is seriously 20 overcrowded.” (Id. 7). Units 1, 2, and 3 were each designed for 144 inmates, with each unit 21 consisting of three wings extending from central rotundas. (Id. 7–8). The capacities of Units 1, 22 23 24 2 Because it is not in the electronic record, the Court will append the Report to this Order. 5 of 8 1 2, and 3 had been expanded to 194, 194, and 199, respectively, by using day rooms for housing, 2 and the actual populations of the units were 186, 166, and 186, respectively. (Id.). The Report 3 does not indicate a 172-inmate threshold for additional guards. The Court notes that 173 is the 4 point at which the units exceed 120% of their design capacity. However, the Report does not 5 ascribe any significance to that figure. Moreover, Mr. Enomoto concluded that “Although 6 NNCC is seriously overcrowded, I do not believe that the effects of that condition have created 7 constitutional violations.” (Id. 12). In other words, the record does not support a finding that 8 overcrowding had led to any constitutional violations. The record only supports a finding of 9 violations based on inadequate staffing, regardless of whether Units 1, 2, and 3 were above or 10 below design capacity. It is the physical layout of Units 1, 2, and 3 (each of which consists of 11 three wings emanating from a central rotunda) that requires minimum staffing levels in order to 12 avoid a constitutional violation, not overcrowding. (Id. 10, 12). 13 14 15 16 17 Mr. Enomoto’s expert recommendations as to minimum staffing were in one way stricter but in another way more lenient than the remedy Judge Reed imposed: The minimum staffing for these units should be three (3) C.O.’s so that at least two (2) are available to rove through the dormitories. The current staffing is two (2) on the day, evening and morning shifts. It is not uncommon for positions to be allocated elsewhere because of demands for court and hospital coverage outside the institution. This results in only one (1) C.O. remaining to provide coverage in the unit. 18 (Id. 10). In one way, the Report recommended a stricter remedy, i.e., three guards per unit at all 19 times. (See id.). Judge Reed required two guards per unit at all times (which was already in 20 place, according to the Report), and three guards per unit at all times only when a unit exceeded 21 120% of design capacity. The Court therefore cannot say that the record does not support the 22 requirement of three guards per unit when any unit exceeds 172 inmates, Gilmore, 220 F.3d at 23 1008, because it would in fact have supported a requirement of three guards per unit at all times 24 6 of 8 1 regardless of inmate population. In another way, however, Judge Reed imposed a remedy 2 stricter than that supported by the record. The Report indicates that three guards per unit is 3 advisable so that two may rove the wings of the unit while one guard remains in the central 4 rotunda. But the Report includes no recommendation for any number of additional guards to 5 rove between the units themselves. 3 The record simply does not support this aspect of the 6 injunction, and Defendants are entitled to its immediate termination unless Plaintiff can show 7 that the remedy is the least intrusive necessary to correct an ongoing constitutional violation. See 8 18 U.S.C. § 3626(b)(3). Plaintiff cannot make a showing of an ongoing violation in this case, 9 because the record did not support a finding of a violation even in 1982. That is, any finding of a 10 constitutional violation, the least intrusive remedy for which is two additional roving guards, 11 would have to be based on a new violation asserted via a new claim; it cannot be based on an 12 ongoing violation in this case, because not only did Judge Reed not make explicit findings that 13 the two-roving-guard requirement was the least intrusive remedy necessary to correct a 14 constitutional violation, the record would not have supported such a finding. 15 Finally, the Court notes that Defendants claim the conditions leading to the injunction no 16 longer exist. Defendants remain free to file a motion under Rule 60(b)(6). The Court cannot 17 reexamine the underlying constitutional issues in the absence of such a motion. The Court’s 18 power to terminate the injunction under the present PLRA motion are more limited. 19 20 21 22 23 3 The Court respectfully believes that Judge Reed may have misinterpreted the Report to include a recommendation of additional roving guards, based on the recommendation of three guards per unit “so that at least two (2) are available to rove through the dormitories.” But the only recommendation in the Report as to roving guards is an increase in guards from two per unit to three per unit so that in each unit two guards may rove between the three wings of a single unit while one guard remains in the central rotunda of that unit, not that any additional roving guards are required to rove between units. 24 7 of 8 CONCLUSION 1 2 IT IS HEREBY ORDERED that the Motion to Terminate Prospective Relief (ECF No. 3 175) is GRANTED IN PART and DENIED IN PART. The requirements of two guards per unit 4 at all times in Units 1, 2, and 3 at Northern Nevada Correctional Center and three guards per unit 5 when the inmate population of the unit exceeds 172 shall remain in force. The requirement of 6 two additional roving guards when all three units exceed 172 inmates is terminated. 7 8 IT IS FURTHER ORDERED that the Motion for Postponement of Automatic Stay (ECF No. 178) is DENIED. 9 IT IS SO ORDERED. 10 16th day April, 2018. Dated this 6th day of of April, 2018. 11 12 _____________________________________ ROBERT C. JONES United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 8 of 8