Full opinion text
MEMORANDUM AND ORDER DON J. YOUNG, Senior District Judge. This cause came to be heard upon the Fourth Report of the Special Master evaluating the state of compliance of the Defendants with the Court’s Orders of July 30th, 1971, as modified, and July 29th, 1977. Said Fourth Report is attached hereto as an appendix, incorporated herein by reference, and made a part hereof as fully for all intents and purposes as if set forth at length herein. Both the Plaintiffs and the Defendant Sheriff have filed objections to the report of the Special Master. No objections have been filed by the Defendant Commissioners. The Sheriff has requested a hearing on his objections before any ruling of the Court. The Court, however, has reviewed the report of the Special Master with great care and has considered the objections of the parties in light of the report and finds them to be without merit. The Court will, therefore, overrule all objections to the Fourth Report of the Special Master and confirm said report in all respects. In confirming said report, the Court adopts the findings with respect to the state of compliance in all aspects of the case. The Court further will adopt the recommendation of the Special Master that the rules for the regulation of the Lucas County Correction Center, which have been adopted by the Lucas County Court of Common Pleas, be substituted for and replace the Court’s original Order of July 30th, 1971, as amended. Finally, the Court will grant to the Defendants sixty (60) days in which to effectuate full compliance with those areas wherein the Special Master found noncompliance. These include rules 6B 1-5; 6C; 10; 11; 12C; 14D; 15E; 15G; 151; 23B; 23F; 24B; 24D; 24F; 29B; and 29C. Within this time, the Defendants must make whatever physical repairs and alterations, including repair of plumbing fixtures, painting of showers and installation of laundry facilities, which are required to effectuate full compliance. The Court will require the Special Master to report on the state of compliance with respect to the above referred to rules within ninety (90) days from the date of this Memorandum and Order. THEREFORE, for the reasons stated herein, and for the cause of appearing, it is ORDERED that the objections of the parties to the Fourth Report of the Special Master should be, and they hereby are overruled in their entirety, and it is FURTHER ORDERED that the Fourth Report of the Special Master is confirmed in all respects, and it is FURTHER ORDERED that the rules for the regulation of the Lucas County Correction Center, adopted by the Lucas Court of Common Pleas, should be, and they hereby are, substituted for and replace the Court’s Order of July 30th, 1971, as modified by subsequent Orders of the Court; and it is FURTHER ORDERED that all Defendants, as well as their subordinates, proceed at once to effectuate full compliance with the rules for the regulation of the Lucas County Correction Center; and it is FURTHER ORDERED that all steps taken by the Defendants to effectuate full compliance with the rules, be supervised, coordinated and approved by the Special Master, acting for the Court. In this connection, the Special Master shall have the authority to state to the Defendants, their subordinates, and all the persons acting in concert with them, or any of them, the actions required to be taken by them, or any of them, to effectuate full compliance, and to seek Orders from Court requiring any or all of the Defendants, their subordinates, and persons acting in concert with them, or any of them, to show cause why they should not be punished as for contempt for failure to carry out such actions required; and it is FURTHER ORDERED that the Defendants shall have sixty (60) days from the date of this Order in which to effectuate full compliance with those rules wherein the Special Master found noncompliance and said compliance by the Defendant shall include making any and all physical alterations and repairs to the Correction Center, including repairing of the plumbing fixtures, painting of the showers and installation of the laundry facilities, and it is FURTHER ORDERED because of the disclosure of noncompliance contained in the Fourth Report of the Special Master, that the Special Master shall continue to investigate the Defendants state of compliance, and shall file a Report with this Court within ninety (90) days from the date of this Order. For this purpose the Special Master shall have all the authority granted to him by the December 17th, 1976 Order of this Court. IT IS SO ORDERED. FOURTH REPORT OF SPECIAL MASTER Timothy J. Doyle Special Master 32055 Grand River Avenue Farmington, Michigan 48024 INTRODUCTION It has now been three years since a formal, complete report of the Special Master has been submitted to the Court in this case. There are a number of reasons for this, the most significant of which is the decision to submit a set of Jail Rules and Regulations to the Lucas County Court of Common Pleas for adoption. A brief review of the chronology of events since the First Report is perhaps the best way to introduce this report. However, before presenting this chronology, the Special Master would like to express his appreciation to the former Special Master for his help and cooperation and also to the various student assistants, Daniel Cron, Bruce Beck, Amy Knowles, and Michael Wagner, whose assistance has been invaluable and without whose help, this report and the accomplishments reflected in it would not have been possible. It was in late July of 1977 that the Court adopted, without objections, the findings of the Special Master in his First Report. And, it would not be an oversimplification to state that this First Report reflected a general state of noncompliance on the part of the Defendants. The Court thus in its July 29, 1977 Order ruled as follows: FURTHER ORDERED, because of the disclosures of noncompliance contained in the First Report of the Special Master, that the Special Master shall continue to investigate the Defendant’s state of compliance with the July 30, 1971 order of this Court, as modified, and shall make supplemental reports to the Court in the event that further or continuing instances of noncompliance are discovered... The former Master thus continued to work in an effort to bring the Defendants into a state of compliance with the Court’s Order and filed supplemental reports on Discipline, Recreation, Contact Visitation, and Classification. On July 25,1978, the parties stipulated to a disciplinary procedure which was then introduced into the jail. Substantial progress was also made toward reaching agreement with respect to a new medical services program, a contact visitation program, and a complete classification procedure. Before implementation of any of these, however, the former Special Master resigned and the present Master was appointed by Order of the Court dated November 16, 1978. When the present Special Master took over, the first order of business was to oversee the implementation of the Defendant Sheriff’s plan of contact visitation. By the Court’s Order of August 29, 1978, the Sheriff had ninety (90) days from the date of said Order in which to implement a plan of contact visitation. Within the allotted time-frame, a plan was implemented and on January 12, 1979, a stipulation regarding contact visitation was filed by the parties. At approximately the same time (January 9,1979 to be exact), the Defendant Commis-. sioners contracted with Leroy A. Rodgers, M.D., of the Medical College of Ohio, Department of Family Medicine to act as Medical Director of the Lucas County Correction Center. Dr. Rodgers implemented an entirely new medical program using residents in the Department of Family Medicine to conduct sick call and to administer the necessary physical examinations. As indicated previously, a classification procedure had been proposed at the time of the appointment of the present Master. A series of meetings was held with counsel as well as with various members of the Sheriff’s staff and the Medical Director, and the final details were resolved in September of 1979. While all of the above was taking place, the present Master was familiarizing himself with the case as a whole, reviewing files, pleadings, and reports, as well as the physical structure of the Correction Center itself. In addition, a series of meetings was held in late March and early April, 1979 with counsel for the respective parties. All of this was done with the goal of determining the overall state of compliance as of that time. It had been the intention of the Special Master to submit a full report to the Court in the Summer of 1979 detailing his findings with regard to the general state of compliance. However, in May of 1979, the United States Supreme Court decided the case of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) and this case changed the entire course of proceedings by the Court and the Special Master with regard to this case. While the Wolfish case considered five specific issues, its impact is far greater because of its sweeping delineation of the powers a Federal Court has and does not have in reviewing prison and jail conditions. The Supreme Court’s position on the powers of the federal judiciary is best summed up in Part V of the majority opinion, Bell v. Wolfish, supra at 562, 99 S.Ct. at 1886: There was a time not too long ago when the federal judiciary took a completely “hands-off” approach to the problem of jail administration. In recent years, however, these courts largely have discarded this “hands-off” attitude and have waded into this complex arena. The deplorable conditions and draconian restrictions of some of our Nation’s prisons are too well known to require recounting here, and the federal courts rightly have condemned these sordid aspects of our prison system. But many of these same courts have, in the name of-the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But, under the Constitution, the first question to be answered is not whose plan is best, but in what branch of the Government is lodged the authority to initially devise the plan. This does not mean that constitutional rights are not to be scrupulously observed. It does mean, however, that the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution, or in the case of a federal prison, a statute. The wide range of “judgment calls” that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government. The Special Master, with the Court’s backing and authority, has never attempted to do, and has never done more than to “scrupulously observe” the constitutional rights of the inmates. However, what the Constitution requires changes with the various decisions of the Supreme Court and Wolfish dictated such a change regarding the Court’s power in jail cases. It was thus the decision of the Special Master, with the knowledge and consent of the Court, not to submit a formal report in the Summer of 1979. Rather, it was decided that, if at all possible, the case would be transferred to the Lucas County Court of Common Pleas, who has statutory authority, see O.R.C. § 341.06 et seq., to prescribe rules for the regulation of the Correction Center. A set of rules was prepared by the Special Master which incorporated many of the paragraphs of the Court’s initial July 30, 1971 Order, as modified; certain existing Common Pleas Court rules, as well as certain sections of the Ohio Revised Code. The purpose of proceeding in this fashion was basically two-fold. First, it was an attempt by the Court to comply with the mandate of Wolfish. And, secondly, it was seen as a way to preserve the accomplishments of this case and permit it to have enduring impact through the enforcement of its provisions by the Court of Common Pleas. A proposed draft of jail rules was sent to counsel and to the Court of Common Pleas in October of 1979. As with every other aspect of this case, the rules provoked a great deal of discussion, debate, and disagreement. The parties submitted their proposed changes, additions, and deletions to the Rules, and a series of meetings was held in an attempt to reach a consensus on a final set of rules. Interspersed with these meetings were three pretrials held by the Court, the last one being held on April 25, 1980. At that time, decisions were made by the Court with regard to proposed rules on which the parties simply could' not agree. Thus, a final set of rules was completed and submitted to the Court of Common Pleas. By Journal entry dated June 13, 1980, the Common Pleas Court adopted the rules and further agreed to hire a full-time jail monitor to enforce compliance with these rules. The “Rules for the Regulation of the Lucas County Correction Center” are attached to this report as Appendix 1. It is the position of the Special Master that these rules should be substituted for the provisions of the Court’s original July 30, 1971 Order, as amended. The Court is intimately familiar with the content of the Rules. They, in large part, incorporate the provisions of the original Order, often expanding on it and certainly making it more specific and detailed. To the extent that certain paragraphs of the Court’s Order have not been incorporated into the Rules, it reflects either the restrictions of Wolfish or the fact that these provisions were already covered by an existing Common Pleas Rule. The Court’s belief that the Supreme Court has limited the authority of federal courts in the area of prison law is reflected procedurally by having the Rules prepared and submitted to the Common Pleas Court and substantively by the content of the Rules themselves. Given this belief in the propriety of proceeding in this manner, the Court should now confirm this belief by, itself, adopting the Rules as a substitution for its original Order. Since shortly after the submission of the initial draft of the Rules, the Special Master has taken the position that compliance with the Rules should be sought as opposed to compliance with the original Order. And it is compliance with the Rules which has been monitored. Periodic correspondence has been sent to the parties indicating to them the state of compliance with respect to different Rules. It is the purpose of this report to analyze the state of compliance with respect to each Rule. Each Rule is discussed separately, and findings with respect to compliance have been made. Additionally, areas where further monitoring may either be helpful or necessary are pointed out. RULE 1 The Sheriff shall take charge and have control of all clothing, utensils, and other property belonging to the County in and about the Center, and pertaining to the kitchen, laundry, storeroom, wash rooms, bath rooms, and other parts of the Center and residence. The Sheriff shall see that the property in his control shall be properly preserved and in good working order. The Sheriff certainly is in substantial compliance with respect to having charge and control of the property of the Correction Center, although this authority is delegated to the various staff members whose functions and duties mandate that they directly control various items of property (e. g., Food Service Director — kitchen equipment, supplies, and utensils; Property Officer — linens and clothing, etc.) With regard to the condition and working order of the property, this is covered extensively in the analysis of various subsequent Rules such as Rule 5 — Lighting; Rule 6 — Food; and Rule 11 — Hot and Cold Water. To set forth the same analysis here would be redundant. However, to the extent that any non-compliance is found with these other Rules, the Defendants will also be in a state of non-compliance with Rule 1. RULE 2 The Sheriff shall enter and keep in a book in his possession an inventory of all the property of every kind and description belonging to the County and pertaining to the Center, including utensils, clothing, bedding and other goods. The Property Inventory Book is kept by the Sheriff. It is all inclusive as required by the Rule and it is current. It is, therefore, the finding of the Special Master that the Defendants are in substantial compliance with the provisions of this Rule. RULE 3 The Sheriff shall provide the Court Administrator with a Center report by the third working day of each month clearly stating the name and booking date of each inmate. The Report required by this rule is prepared by the Records Officer and submitted to the Court Administrator in a timely fashion. Thus, it is the finding of the Special Master that the Defendants are in substantial compliance with the provisions of the Rule. RULE 4 POPULATION Sub-rule (a) which limits the number of inmates that may be housed on the third, fourth, fifth, and sixth floors to 226 is taken directly from the Court’s Order of July 29, 1977. The figure is derived from the fact that there are 58 single cells on the third, fourth, and sixth floors, and 52 single cells on the fifth floor. The Court’s Order was designed to ensure that there would be no double-bunking, and sub-rule 4(d) makes it clear that no more than one (1) inmate shall be housed in any regular housing cell. Each week, the Special Master receives copies of the daily Shift Commander’s Information Sheet. This form is, in effect, a daily population report, indicating the total number of individuals housed in the facility, the gender of each, and how many were housed on each floor. From reviewing the Shift Commander’s Information Sheet, from discussions with various members of the Sheriff’s staff, and from personal inspections both by the Special Master and his associates, it is clear that at no time has double-bunking occurred in the Lucas County Correction Center. There were several occasions when two females were placed in an individual cell in the booking area for a short period of time (one or two hours.) This resulted from the fact that one of the two cells assigned for females in the booking area was occupied by an inmate who was physically acting out. When a third female inmate had to be held in booking, there was nowhere to place her but in the other female cell which was also occupied. However, the door was left open and the situation was not uncomfortable. And, as indicated, the time period was very short. The fact that the Defendant’s adhered to this rule and did not double-bunk does not mean that population is not a problem at the Lucas County Correction Center or that the facility has never been overcrowded. In fact, the contrary is true. In addition to the 226 regular housing cells on the third, fourth, fifth, and sixth floors, there are 24 individual cells on the second floor which are normally used to house inmates with medical problems and inmates who have not as yet been classified. There is also a dormitory on the fifth floor for Trusties which houses approximately 20 inmates when filled. Thus, there is room for approximately 270 inmates “upstairs” in the Correction Center. The booking and receiving area has the capacity to hold an additional 65 inmates (20 individual cells and three (3) fifteen (15) man bullpens.) However, the booking area is designed as a short-term holding facility, and certainly not as a regular housing area. Yet, if the 270 cells upstairs are filled, there is no place left to house inmates except in booking. And, this is what is done. The most serious population problem during the tenure of the present Special Master occurred in May of 1979 and again in September-October of 1979. It was not uncommon during these periods to have more than 330 inmates housed in the facility. With the upper levels completely filled, inmates spent as long as seven days in the booking area. During the Labor Day weekend in 1979, the problem with respect to female inmates was so critical that cots were set-up in the day room areas of the female modules on the third floor. When booking was holding a female, the third floor counselor was contacted. A brief interview would then take place, and the counselor would have a cot assigned for the inmate in one of the three dayrooms. While the counselors did a commendable job of ensuring appropriate classifications, this was obviously an unsatisfactory situation, and it was fortunate that that particular population crisis subsided by the conclusion of the weekend. In May of 1979, a number of other measures was taken by the Sheriff and his staff in an attempt to alleviate the temporary overcrowding. The Adult Parole authority was asked to review the situation of any inmate housed for parole violations; the Prosecutor’s Office was asked to review cases where inmates charged with lesser felonies or misdemeanors were unable to make relatively low bonds; the Probation Department was asked to expedite Pre-Sentence Investigation reports, and Work Release was asked to review a list of female inmates who had been sentenced by Municipal Court to determine if any were eligible for that program. However, the most effective measure in terms of reducing the population was the transferring of sentenced county inmates, including some Trusties, to the Toledo House of Correction (the Workhouse.) This was done in both May and September of 1979, with the approval of the Special Master and the Court. It was agreed that this was a temporary, emergency measure and not one which could be used regularly without making substantial changes in the Workhouse. It is the opinion of many that use of the Workhouse represents a long-range solution to the population problem. As early as October of 1977, the Court met with representatives of both the Common Pleas Court and the Municipal Court to discuss the problem of over-population. (There had been an overcrowding problem in the Jail in September of 1977.) It appears that all Judges agreed that if the administration of the Corrections Center and the Workhouse could be unified, with the latter being brought up to constitutional standards, this would go a long way toward solving the population problem. Discussions and negotiations were held in late 1977 and early 1978, but to no avail. When the population crisis in the Spring of 1979 arose, again the City and County were notified of the Court’s interest in attempting a unification of the two facilities. Discussions once again commenced, and again they proved fruitless. The major stumbling block in the negotiations apparently was the disparity in salaries between the City and County employees. The employees of the City at the Workhouse are paid substantially more for similar jobs than are the county employees at the Correction Center. And, since both the County and the City have union contracts with their employees, the labor problems presented by any unification are enormous and apparently insurmountable. Despite the above, it appears that the population problem at the Correction Center is not unsolvable. In the Spring of 1979, Toledo-Lucas County was awarded a grant by the Law Enforcement Assistance Administration to participate in Phase One of a Jail Overcrowding and Pre-trial Detainee Program. Phase One consisted of the collection of data concerning félony and misdemeanor offenders in Lucas County. Exhaustive information was gathered on the type of individuals who were processed through the criminal justice system in Lucas County, as well as the length of time it takes for a defendant to progress through each stage of the process (e. g., booking to preliminary hearing; preliminary hearing to indictment, etc.) The data was collected by the Toledo, Lucas County Criminal Justice Regional Planning Unit in conjunction with the Corrections Coordinating Council of Lucas County. At the end of Phase One, the data was synthesized and analyzed and a Jail Population Management Plan was prepared. This Plan was then submitted to LEAA for Phase Two funding, and recently (June 12,1980) the Jail Population Plan was approved and is in the process of being implemented. The Jail Population Management Plan consists of three parts, all of which will be integrated into a working whole with the aim of reducing the Jail population, as well as positively affecting the administration of justice in Lucas County. . The three parts are System Flow, Pre-Trial Services, and Mobilization of Community Resources. The System Flow portion of the Plan is aimed at reducing the processing time at each stage of the criminal justice process. For purposes of analysis, the plan found the following stages in the criminal justice process significant: 1. Arrest 2. Initial appearance in Municipal Court 3. Preliminary Hearing 4. Grand Jury 5. Arraignment 6. Trial 7. Pre-sentence Investigation Report 8. Sentencing 9. Transport. The Plan then indicates that the portion of defendants held in custody during all or part of the time their case is pending accounts for 69.6% of the facility’s average daily classified population. It then further found that reducing the processing time between any or all of the key events in the criminal justice process would significantly reduce jail population. The Plan projects the use of such tools as the “Same Day Grand Jury,” and Pre-trial Conferences, to reduce processing time. It also forecasts greater use of computerized information to reduce the time needed to prepare Pre-sentence Investigation Reports and further indicates that it will be possible to transport an individual sentenced to a state or federal penitentiary to said institution on the same day that the sentencing occurs. The second section of the Jail Population Management Plan involves a number of Pre-trial Services which would be made available to ensure that only those individuals who absolutely have to be incarcerated either for society’s protection or for the appearance of the defendant in Court, actually wind-up as a member of the Jail population. The services encompassed in this second phase of the Plan would primarily be rendered by a Central Intake Team located in the booking and receiving area of the Correction Center. This Team would consist of a Toledo Police Department Command Officer, Court Intake Officer, County Prosecutor, Booking Officer, Jail Classification Officer, and a Jail Counselor. The primary objective of this Team is to, in all appropriate cases, keep individuals charged with a crime out of jail. One way in which it is hoped that this goal will be achieved is by the expanded use of citations by the Police Department on the street. Ohio law allows the use of citations in minor misdemeanors. The Plan study found that the police presently are using this method of release sparingly and that misdemeanor bookings could be reduced by approximately 20%, if greater use is made of citations. In addition to the use of citations, the Plan, through its Central Intake Team, plans to take greater advantage of the use of summons as well as other forms of bond or O.R. release. It finds that far too many individuals charged with misdemeanors, as well as some charged with felonies, are spending much more time in jail than is necessary to ensure their appearance in court. Finally, it will be the function of the Central Intake Team to screen all cases which come into the booking and receiving area of the Correction Center, not only to ensure the proper use of citations, summons, O.R., or other types of bonds, but also to ensure that the charges alleged are proper and justified and to ensure that accurate and timely information is properly recorded in the computer terminal. Cases will further be screened to determine if the individual involved is suffering with an alcohol or drug related problem or perhaps from some mental disability. It is the hope of the Population Management Plan that appropriate diversion programs can be established so that such individuals, if in need of confinement, may have it in an agency trained to deal with their particular affliction, and not in the Correction Center which is not geared to helping such individuals. It is primarily in relation to the diversion programs mentioned above that Section Three of the Jail Population Management Program is concerned. It is entitled “Mobilization of Community Resources.” This portion of the Plan “is based on the assumption that resources exist in the community which can be utilized as an alternative to incarceration ... and that where resources do not exist, the community should be mobilized to develop them.” A study done in with the preparation of the Jail Management Population Plan indicated prevalent overcrowding conditions in the booking area on weekends. This is the result of weekend commitments which average approximately 15. The study further indicates that a large percentage of these commitments as well as of others who are processed through the booking area on weekends are drug or alcohol dependent, and thus are potential diversion candidates. In addition, a study conducted by the Court Diagnostic and Treatment Center indicates that 35% of all persons booked have drug or alcohol related problems and 9% of all individuals booked are suffering from some sort of emotional illness (3% of all bookings apparently have quite severe mental illnesses.) Thus, it is clear that alternative placement centers, both pre-trial and sentenced, are imperative. And, while the Population Plan indicates that some alternatives are available, especially for those not suffering from alcohol, drug, or mental health problems, there is a severe shortage of diversion alternatives for the substance abuser or mentally ill inmate. The Jail Population Management Plan with its Central Intake concept is extremely important for the future of the Lucas County Correction Center. As indicated above, overcrowding will make compliance with all of the other rules nearly impossible. And, with the unification of the Correction Center and the Workhouse a very dim possibility, the Jail Population Plan appears to be the only realistic alternative to the physical expansion of the Correction Center itself. The Plan is just now being implemented and it is too early to tell whether it will have the desired effects. But, it should be given every opportunity to succeed. To do this, it will take the cooperation of the City and County Courts, the City and County governments, and the various mental health agencies. Absence of support from any one of these sources could doom the system to failure. And, while monitoring of the Central Intake system itself, though certainly not of the population, may be beyond the scope of this case, it is strongly recommended that both be given a careful eye by the Court of Common Pleas and its Jail Monitor under the Rules. FINDINGS RELATING TO COMPLIANCE It is the finding of the Special Master that the Defendants have not exceeded the population limits set forth in Rule 4(a). It is further found that a proper segregation of inmates has been maintained and that no more than one (1) inmate has been housed in any regular housing cell. Thus, the Defendants are in substantial compliance with all of the provisions of Rule 4. RULE 5 LIGHTING The original Court Order required the Correction Center to comply with Section 7.04 of Regulation Al-68 of the Toledo District Board of Health. This regulation basically required that each cell contain one ceiling-type electric light fixture. When the former Special Master originally inspected the Correction Center, he found that forty-eight (48) cells did not meet the specifications of the Board of Health Regulation. The Special Master also found that the original lighting in the Correction Center did not provide sufficient illumination. Thus, on April 18, 1977, the parties entered into a Stipulation to correct the lighting situation. It was agreed that all cells would contain a ceiling-type electric light fixture and further that said fixture would provide at least thirty (30) foot candles of illumination. By the time of the filing of the First Report of the Special Master, the Stipulation had not been carried out. In fact, it was not until November 10, 1977 that bids were let on the light fixtures, and it was not until the Spring of 1978 that the fixtures were actually installed. The light fixtures were checked by the assistant to the Special Master just after installation and again in February of 1979 and found to be adequate and in compliance on both occasions. Rule 5 of the Rules and Regulations of the Lucas County Correction Center requires that lighting in all parts of the Center be sufficient to ensure safety and further to be adequate for reading, writing, working, recreation, and other activities. Thus, the lighting continued to be monitored by the Special Master. And, while the lighting in the cells was at all times found to be in compliance, in early 1980, problems were discovered in Module lighting. In a check conducted by the Special Master’s assistant on January 7, 1980, one-half (Vfe) of the Module lights in 3 West and 3 Southwest were found to be burned out or otherwise not functioning. Similar, though less severe, problems were discovered in 4 Southwest, 4 Northwest, and 4 Southeast. This was brought to the attention of the Sheriff by the Special Master, and by the end of March, 1980, all non-functioning Module lights had been repaired. In June of 1980, it was discovered that a number of lights in the gymnasium were not functioning. Again, the matter was brought to the attention of the Defendant Sheriff, and these lights were repaired in July of 1980. FINDINGS RELATING TO COMPLIANCE It is the finding of the Special Master that the Defendants are in substantial compliance with Rule 5 of Rules and Regulations of the Lucas County Correction Center. RULE 6 FOOD AND FOOD SERVICE Certainly as much, if not more, attention has been given to the area of food and food service by the Special Master than as to any other aspect of the case. One reason for this is that the food service process is on-going, day in and day out, and in order to accurately determine patterns of behavior, a great deal of time spent observing the operations is necessary. A second reason for closely scrutinizing food service is the importance given to it by the inmates. When one is incarcerated, there is often little to look forward to other than the next meal, and thus inmates are quick to point out even the slightest flaw in the system. However, perhaps the most important reason for carefully reviewing and monitoring the food system is its effect on the overall sanitation throughout the Correction Center. With meals not served in a central dining facility, but rather in the modules on each floor, the possibility of spreading filth, vermin, and disease exists unless careful controls are maintained on the food services operation. There should be no doubt that in the Lucas County Correction Center, the preparation and serving of food is a major operation. In 1977, 248,917 meals were served. In 1978, this figure increased to 308,893, and in 1979, it further increased to 368,647. The amount of money spent in this area also is substantial, ranging from over $254,-000.00 in 1977 to just under $320,000.00 in 1979. The former Special Master, in his First Report to the Court, found generally that the Defendants had failed to comply with paragraph 4 of the Court’s original Order. He found that meals did not meet minimum nutritional standards and that food was not served at proper temperatures or in reasonable variety. He further found that the Ohio Department of Health Regulations for food service operations were not being met by the Correction Center with regard to sanitation, equipment, food storage, and employees. He finally indicated that additional health inspections were necessary. In June of 1978, the Special Master had the food service operations of the Correction Center reviewed by Mr. James T. Wahl, Sr., a food service consultant from Bowie, Maryland. And, while Mr. Wahl’s report is very much cost oriented, he did find that many of the same problems elicited in the Master’s First Report continued to exist. Mr. Wahl found poor temperature controls on food, unsuitable food carts, as well as other unsuitable equipment, poor sanitation, and an inappropriate menu. It was clear from the initial report of the Special Master, the report of Mr. Wahl, as well as from personal observation, that changes were going to have to be made in the kitchen operation if the problems were ever going to be solved. Mr. Wahl recommended the “Microwave Meal Delivery System,” which involved the use of mobile microwave ovens in connection with refrigerated food carts. The Special Master recommended a hospital-type unitray system which would allow the preparation of the trays in the kitchen, and their storage in compartmentalized carts designed to keep both hot and cold foods at proper serving temperatures. However, after the Sheriff and County Commissioners investigated the matter, reviewed the above two approaches, as well as literature on other available systems, it was decided that the Szabo Food Service Company of Birmingham, Michigan would be hired to operate the entire food service operation at the Lucas County Correction Center. Under either of the systems recommended by Mr. Wahl or the Special Master, the Director of Food Services in the Center, would continue to operate the kitchen, but with the advantage of having the microwave or uni-tray equipment available to improve service. Under the new contract, Szabo will bring in its own people and/or hire present kitchen staff and will direct the entire operation from the purchasing of food, to the preparation of meals, to the cleaning and sanitizing of the kitchen. In reviewing the kitchen operations at the Correction Center, the Szabo people found many of the same shortcomings previously mentioned. To overcome these deficiencies, Szabo has proposed the use of its own 14-day cycle menu, which they guarantee to meet minimum nutritional standards of the National Academy of Sciences, as well as the requirements propounded by the American Correctional Association. In addition, Szabo has requested, and the Defendant Commissioners have agreed, to purchase the following control equipment: (a) 1 ea. Groen Model No. FPC-3 Electrically Heated, Tilting, Braising Pan (b) 1 ea. Blodgett Model No. 1220 Electric Baking and Roasting, Double Stack Deck Oven (c) 1 ea. General Electric Model No. DK50, Dimension II, High Capacity Fryer (d) 1 ea. Shelcon, Inc. ShelConserve Model No. ETA-15, Motorized, tray assembly conveyor. It was determined that this equipment is compatible with the existing equipment in the Correction Center and also can be installed without alterations to either the physical plant or the exhaust ventilations system. In addition, it was agreed that the Alladin Meal Delivery System would be purchased. This system is comprised of individual meal trays which are insulated to maintain food temperature. When the trays are stacked one on top of the other, cavities in the trays form thermal columns, so a cavity in one tray shares temperature with the same cavity of the tray above and below it. The trays are then stacked together, and the stacks are then loaded on two shelf, stainless-steel utility carts for delivery to the floors. One cart will be used for each floor, and they require no electrical power. Szabo indicates that its system will not only be of higher quality and more efficient, but also will be substantially less expensive. It proposes to charge the Correction Center $1.31 per meal for each meal served. This price includes all food, labor (excluding inmate labor), cleaning, and paper supplies, taxes, licenses, administrative expenses, and an equitable profit. Szabo is supposed to begin operation September 1, 1980. And, while the Special Master is hopeful that it will accomplish all of its goals and thus solve many of the problems now existing in the Correction Center, this remains to be seen. Careful monitoring will be required to ensure complete compliance with the Rules. Since, at the time of the writing of this report, the new system is not yet operable, this report must deal with the system that has been in operation at the Correction Center since its inception, and examine the current status of compliance. This will be done by reviewing each subpart of Rule 6. RULE 6(a) This rule requires the food to be sufficient, wholesome, and properly cooked. In this connection, it should be noted that Ohio Department of Health Regulation 3701-21-05(B) requires that: All food shall be clean, free from unwholesomeness, free from spoilage, and otherwise safe for human consumption. ... Given the volume of food that is prepared, as mentioned above, the number of instances of food contamination are few. This is not to say that it does not happen. The instances of bugs or vermin contaminating food are much less frequent now than in 1977 and 1978, although Corrections Officers have indicated to the Special Master that this does occur. The last reported case (which was confirmed) occurred in November of 1979, where the oatmeal served for breakfast was generally contaminated by vermin. On this date, the oatmeal was returned to the kitchen for a substitute meal. There has also been some instances where the food has not been properly cooked. The most frequent occurrence is the under-cooking of eggs in the morning. Again, however, the occurrences have been few. This Special Master thus finds that the food provided by the Sheriff is, on the whole, properly cooked and wholesome. RULE 6(b) Rule 6(b) requires that the food and food service meet and comply with certain specific conditions and standards. The first requirement (Rule 6(b)(1)) is that the food meet minimum nutritional standards. At the time of the First Report of the Special Master, the Food Director was using a seasonal cycle menu. This menu was evaluated by several registered dieticians and was found to be deficient with respect to vitamin C content. It was also recommended by the evaluating nutritionists that the Food Director change to a three to five week cycle menu which they believed would be more beneficial for both ordering and preparing food. The Food Director did, in fact, switch to a thirty (30) day cycle menu, and the present Special Master has had this menu evaluated for its nutritional content. NUTRIENT EVALUATION PER DAY Nutrient RDA Average Daily Intake At or Above RDA Below RDA Calories 2900 kcal. 2992 kcal. X Protein 56 gm. 99 gm. X Vitamin A 1000 meg. R.E. or 5000 I.U. 13,570 I.U. X Vitamin D 7.5 meg. Chole, or 300 I.U. 306 I.U. X Vitamin E 10 mg. alpha T.E. (13) (X) Vitamin C 60 mg. 122 mg. X Thiamin 1.5 mg. 1.6 mg. X Riboflavin 1.7 mg. 2.5 mg. X Niacin 19 mg. N.E. or 19 mg. 21 mg. X Vitamin Bg 2.2 mg. 2.22 mg. X Folacin 400 meg. 374 meg. The evaluation was based upon the 1980 Revised Recommended Dietary Allowances as determined by the Food and Nutrition Board, National Academy of Sciences — National Research Council, Washington D.C. The evaluation was further based upon the Recommended Dietary Allowances for young adult males of average height and weight having a moderate activity level, since this population group requires the highest dietary allowances. The following chart lists the essential nutrients, the recommended dietary allowances for these nutrients, the average daily intake at the Lucas County Correction Center and whether the intake meets or does not meet the recommended allowances for each nutrient. NUTRIENT EVALUATION Nutrient RPA Average At or Daily Intake Above RPA Below RDA Vitamin B12 3.0 meg. 4.9 meg. X Calcium 800 mg. 997 mg. X Phosphorus 800 mg. 1394 mg. X Magnesium 350 mg. 388 mg. X Iron 10 mg. 23 mg. X Zinc 15 mg. 19 mg. X Iodine 150 mg. (260 meg.) X It is thus readily apparent that only with respect to the intake of folacin, or folic acid, is the menu deficient. The nutritionist found this deficiency to be the result of the relative low level of green, especially leafy green, vegetables in the menu. She suggests that brocoli or spinach be substituted for a starch preferably on a weekly, but at least on a bi-monthly, basis. Other changes which would correct this problem would be more frequent use of green, leafy salads or the substitution of whole wheat bread for white bread. Other suggestions made by the nutritionist, although not necessary to meet the required allowances, include: the exclusive use of iodized salt; the substitution of low-fat or non-fat milk for homogenized milk; and an increased fiber content in the menu. It must be noted, however, that the above evaluation is based on the assumption of proper food handling and preparation techniques and is further based on the assumption that the quantity called for in the menu is actually served. In fact, the last assumption is probably erroneous. Under the system employed at the time of this writing, the quantity of food served to each inmate is not uniform nor consistent. As indicated above, the individual trays are not prepared in the kitchen. Rather, a sample tray is prepared and sent to each floor with the food. The servers, of course, are supposed to prepare each individual tray in accordance with the portions on the sample trays. This is not done. More often than not, the sample tray is set on the floor and ignored and the server then uses his own discretion regarding portion sizes. As indicated, this leads to inmates receiving different portion sizes of the same meal, as well as receiving varying portions from one meal to the next. Thus, the nutritional content of a meal, at any given time, could be, and often is, different from that of the meal as planned on the menu. Rule 6(b)(2) requires the food to be served at proper temperatures, be fresh, and be served in reasonable variety. The First Report of the Special Master found the food served to be fresh and except for some isolated instances, as mentioned above, there is no indication that this situation has changed. It is also the finding of the Special Master that with the advent of the thirty (30) day cycle menu, the food served has reasonable variety. The adequacy of the variety of the food is confirmed both in the report of Mr. Wahl as well as in the evaluation of the nutritionist. The ability to serve food at proper temperatures, however, is totally unsatisfactory. The food, of course, is prepared in the kitchen on the basement level of the Correction Center and put into serving containers which are then placed in warming carts used for delivery of the food to the various housing floors. And, while these warming carts are plugged into electrical outlets in the kitchen at least an hour before serving time, they are not adequate to keep hot food at a reasonable temperature. On June 7,1979, the process of keeping food at proper temperatures was investigated and evaluated by the Board of Health. The report indicates the process to be deficient in several respects. First, the food warming carts are not capable of performing their intended function which is to maintain a temperature of 140° F when empty. The National Sanitation Foundation standard on electric warming equipment requires this type of unit to be capable of maintaining food at 150° F or higher. The Board of Health report also indicates a difficulty in dispensing food due to small work space on the carts and further finds that carts were not being plugged in immediately after being left at a particular floor. With respect to this last noted deficiency, the Special Master finds it inexcusable. On occasions too numerous to mention, the problem of Correction Officers and trusties not plugging the carts in immediately was brought to the Sheriff’s attention. And, while directives were issued from time to time, the problem continued and has not yet been completely alleviated. There is no reason to take an already bad system and make it worse by failing to do something as simple as putting a plug in the wall. It should also be noted that with the present system, there is no capability of keeping cold food properly cool. There are no refrigerated carts. And so, cold food sits on the serving carts for a substantial period of time (up to an hour) before actually being served, and is thus probably closer to room temperature than proper serving temperatures when served. Rule 6(b)(3) requires serving methods to meet minimum health and sanitary standards for food service in restaurants. Rule 6(b)(5) requires persons working in and around the kitchen and with the handling and serving of food to meet the applicable restaurant and health requirements. And, since these two sub-rules, as well as the applicable standards, overlap, they will be considered together. Ohio State Department of Health Regulations 3701-21-04M and 3701-21-04N state as follows: 3701-21-04M — All employees shall wear clean garments and shall keep their persons neat and clean at all times while engaged in the handling of food or utensils. No employee while engaged in preparing or serving food shall use tobacco in any form. 3701-21-04N — All employees shall wear their hair, natural or artificial, clean and neat, and under control at all times so that: (1) There shall be no undue handling of hair. (2) Hair should not come into contact with food or food contact surfaces. (3) Loose hair shall be prevented from falling into food or on food contact surfaces. All employees, including trusties, are required to and do shower daily. In addition, adequate facilities are available to permit hands to be washed as frequently as necessary. On several occasions, reports were received that there were insufficient trusty uniforms. This was brought to the attention of the Food Director who then ordered more. The present policy of the Food Director is to provide clean uniforms to employees as often as necessary but not less than every, other day. A major problem in the area of handling and serving food is the unwillingness of the individuals involved to consistently wear hats and gloves. This requirement was constantly checked by the Special Master’s Assistants, and it was the exception rather than the rule when they would report that all required personnel were wearing hats and gloves. This situation, on several occasions, was brought to the attention of the Defendants, and while the situation greatly improved, there are still occasions when either hats or gloves, or both, are not worn as required. . The Special Master found no evidence that tobacco was being used, in any form, during the actual preparation and serving of food. Finally, with respect to the kitchen employees, Department of Health Regulation 3701-21-06(1) requires that “No person afflicted with a disease in communicable form, or who is a carrier of a communicable disease shall work in any food service operation.” The written policy and procedures of the Lucas County Correction Center, Section 1.05.14 require that “All persons working in the preparation and serving of food shall first be examined and approved by the medical staff and meet restaurant health requirements.” This policy, however, is not followed. Although all trusties are given physical examinations by the medical staff, the Special Master was informed by the Food Director that the civilian kitchen employees are not required to submit to such examinations before commencing employment. Without such an examination, of course, it is impossible to know whether a communicable disease is being carried. There are also no regular check-ups provided to either trusties or civilian employees to ensure that no communicable disease, is present. Rule 6(b)(4) requires the kitchen, kitchen equipment, food storage, and sanitation to meet the minimum standards for' restaurants. The first applicable Ohio Department of Health Regulations is 3701-21-04A which reads: Every food service operation and all parts thereof and places appurtenant to the food service operation shall be maintained in good repair and shall be kept thoroughly clean and and free from any accumulation of filth, garbage, rubbish, or other waste. The problems which were discovered in this area pertain less to the kitchen, itself, than to the “places appurtenant to the food service operation.” Upon the numerous inspections of the kitchen area by the Special Master and his assistants, it was generally found to be clean and in good order. The problem areas consisted of the service elevator, the landing area, and, to a lesser extent, the service areas. It should be noted, however that as problem areas were pointed out to the Defendants, corrections were made and the kitchen sanitation on the whole was greatly improved during the term of the present Master. The biggest problem has been the failure of Corrections Officers and trusties to collect all trays at the conclusion of a meal. It is not an unusual occurrence to find dirty trays on the floor outside the service elevator. This occurs as a result of the failure of those who collect trays to wait until all inmates have finished their meal, as well as to then insist on getting a tray back from every inmate. Trays are also left on the floors by corrections officers when they finish eating, and they are not returned to the kitchen until the time of the next meal. Leaving trays on the floor in this fashion spreads germs, invites vermin and thus causes an obvious health problem. The next applicable health regulation is 3701-21-04H which reads: Cleaning and bactericidal treatment of utensils and fixtures. (1) All utensils and fixtures shall be kept clean and free from dust, dirt, insects, and other contaminating material. All cloth, sponges, brushes, and similar items used by employees shall be clean. Single-service containers shall be used only once. (2) All multi-use utensils used by the consumer shall be thoroughly cleaned and effectively subjected to an approved bactericidal process after each usage. All other multi-use utensils shall be thoroughly cleaned and subjected to an approved bactericidal process immediately following the day’s operation. All meals are served on trays which are used repeatedly for each meal. After each meal, the trays are returned to the kitchen and scraped, washed out by hand and placed in a dishwasher where they are cleaned and sterilized. This process is normally sufficient, although there have been isolated instances of trays coming out dirty. A bigger problem with respect to trays is that they are apparently used as ashtrays. A great many of them have burn marks on them, and some have been declared unusable by the Health Department. Since a new system, with new, more expensive trays, is being implemented, all necessary precautions should be taken by the Sheriff to ensure that this problem does not continue. Problems were also encountered concerning the cup and spoon which are issued to each inmate upon being classified into the regular population. Initially, it was determined that the inmates would use this same cup and spoon for each meal and be responsible for cleaning and sanitizing them. This system proved unsatisfactory from a sanitation point of view. It was therefore changed, and now every inmate’s cup and spoon are collected after breakfast and returned to the kitchen where they are properly cleaned and sanitized. A clean cup and spoon are then returned with the noon meal. While this new method has placed an added burden on the kitchen staff because of the additional dishwashing, they have responded well. With regard to the fixtures in the kitchen, the Special Master and his assistants have found them to be clean and sanitary. The floor of the kitchen is mopped several times a day, and the other fixtures are cleaned regularly to keep it in a sanitary condition. Department of Health Regulation 3701-21-04(5)(2) states: Garbage if stored shall be stored in rodent proof containers. Such containers shall be provided with tight fitting lids except when in regular use in food preparation areas. Refuse other than garbage shall be kept in suitable receptacles, in such a manner as not to become a nuisance. Garbage and other refuse shall be disposed of in a safe and sanitary manner. Garbage in the Correction Center is not stored. It is disposed of regularly by use of an automatic garbage disposal. Refuse other than garbage is also not stored. It is placed in large trash receptacles which are lined with plastic liners, and it is removed from the kitchen areas on a daily basis. The area of the kitchen where the refuse containers are kept was inspected periodically by the Special Master and his assistants and consistently found to be clean and sanitary. The final sanitation regulation is Ohio Department of Health Regulations 3701-21-04L which states: All food shall be so stored, prepared, displayed, and served as to be reasonably protected from dust, flies, vermin, depredation, and pollution by rodents, poisonous insecticides, poisonous rodenticides, unnecessary handling, droplet infection, overhead leakage, and other contamination. No live animals or fowls shall be kept in any room in which food is prepared, served, or stored except guide dogs accompanied by blind guests. All practicable means shall be used for the elimination of flies, roaches, vermin, and rodents. All food which is stored in the Correction Center, whether in a refrigerator, freezer, or in a storage room, is stored so as to be off the floor and away from the walls. The storage areas, also, upon the several inspections made, have been found to be clean, neat, and sanitary. Therefore, the food, as stored, is reasonably protected from dust, flies, and vermin. An extermination company has been contracted with by the Correction Center, and it comes into the kitchen every Monday and performs whatever fumigation is necessary. In addition, the Food Director uses a fogger every Thursday. With the use of these two operations, the Correction Center has been kept generally free of roaches, rodents, and other vermin. Rule 6(b)(6) requires the kitchen and food service to be regularly inspected by the public health authorities and further requires that the recommendations or requirements of the inspecting authorities shall be implemented by the Sheriff within the time prescribed by the authorities. Ohio Revised Code, Section 3732.05, requires restaurants (and thus the Correction Center) to be inspected at least annually. The former Special Master determined, however, that more frequent inspections of the Correction Center were required. Officials of the Toledo Board of Health also recommended inspections at least three times per year. Inspections at the Correction Center, are, in fact, conducted three times per year. In the most recent two reports with respect to food sanitation conditions, public health authorities ordered a number of actions. The following chart indicates the substance of such requirements, the date of the order, and the degree of compliance by the Sheriff and his staff. NATURE OP ACTION _REQUIRED DATE OF HEALTH DEPT. ORDER DEGREE OF COMPLIANCE 1. Scrape and repaint wall 12-19-79 area above warming carts. Complete 2. Clean dusty ceiling area above three vat sink. 12-19-79 Complete 3. Thoroughly clean and routinely maintain hallway to rear kitchen door. 12-19-79 Complete 4. Discontinue blockage of handsink with large containers. 12-19-7