Full opinion text
LASKER, District Judge. In this action, plaintiffs, who are a class of inmates at the New York City Correctional Institution for Men (“CIFM”), have challenged the conditions of confinement at CIFM on many grounds, of which rampant violence, both between inmates and between staff and inmates, is one of the most significant and distressing.' After a long trial on a motion for a permanent injunction on the separate issue of violence at CIFM and its causes, it is determined that plaintiffs have established that violence at CIFM, both inmate-inmate and staff-inmate, has reached proportions that violate the Eighth Amendment. Systematic deficiencies in the operation of CIFM, most significantly, overcrowding, overreliance on open dormitory housing, lack of adequate classification, inadequate staffing and supervision, and inadequate systems for controlling, investigating and disciplining misuse of force, have led to a world where inmates suffer physical abuse, both by other inmates and by staff, in a chillingly routine and random fashion. Although defendants have implemented many positive changes at CIFM during the course of and after the trial, the entrenched and recurring nature of violence at CIFM requires the issuance of an injunction, albeit one which will take into account defendants’ recent efforts to improve the situation. On October 3, 1986, plaintiffs filed a motion for a preliminary injunction “requiring defendants to take appropriate action to end the pattern of violence among inmates and between inmates and staff at” CIFM, one of the most pressing issues raised in the complaint. The hearing on the preliminary injunction began on October 23,1986; the hearing on the application for a preliminary injunction was later consolidated with the trial on the merits on the separate issue of violence, under Fed.R. Civ.P. 65(a)(2). Testimony was heard at intervals through June 9, 1987, and the record was substantially completed on June 25, 1987. Post-trial memoranda, totalling almost 950 pages, were submitted by October 26, 1987. Plaintiffs’ witnesses consisted of fourteen CIFM inmates and former inmates and four expert witnesses. Toni V. Bair, regional administrator of the Central Region of the Virginia Department of Corrections, and Colonel James Shoultz, who has most recently been Director of Corrections in the Seminole County, Florida jail system, testified as experts on correctional administration. Vincent M. Nathan, an attorney who has served as a court-appointed master in numerous cases involving the misuse of force in prisons, testified as an expert concerning use of force issues, including the investigation, monitoring and discipline of use of force, and remedies for use of force in correctional systems. T. 4233. Professor Verne C. Cox, chair of the Department of Psychology of the University of Texas at Arlington, testified as an expert in psychology and the effects of crowding. Defendants’ witnesses included Richard J. Koehler, Commissioner of the New York City Department of Correction (“Department of Correction”); James T. Garvey, who was then Warden of CIFM; Judy Schultz, who was then Inspector General of the Department of Correction; Francesca Digirolamo, the civilian Director of Classification; a former director from the Training Academy; five CIFM captains and ten CIFM correction officers. Defendants called two expert witnesses. James W. Painter, who is Chief of the Custody Division of the Los Angeles County Sheriffs Department, testified as an expert on corrections. Dr. Gerald G. Gaes, a Senior Research Analyst at the United States Bureau of Prisons, testified as an expert on the effects of prison crowding. Both parties also submitted extensive documentary evidence at trial. In addition, following the testimony of the expert witnesses, the parties entered into two testimonial stipulations. Defendants’ Exhibit (“DX”) XXX describes further testimony that certain witnesses for the defendants would have presented if they had been called, including efforts at improvement in various areas at CIFM. DX DDD describes new procedures and efforts at improvement in the Department of Correction’s classification system about which Francesca Digirolamo, defendants’ Director of Classification, would have testified if she had been recalled as a witness. Finally, with the submission of post-trial briefs, the parties also submitted further affidavits, including a supplemental affidavit from Commissioner Koehler describing defendants’ efforts to improve CIFM since the close of the trial. The court, accompanied by counsel for the parties and various CIFM officials, toured CIFM on January 8, 1987, visiting many of the areas relevant to the case. I. The New York City Correctional Institution for Men CIFM is a medium security facility operated by the New York City Department of Correction. It is the principal facility in which New York City’s sentenced male inmates are incarcerated. The city-sentenced inmates at CIFM are serving terms of one year or less for violations, misdemeanors, or low-degree felonies. Of the sentenced men, roughly eighty-two percent are adults aged twenty-one and above, and approximately eighteen percent are adolescents aged sixteen to twenty. CIFM also houses technical state parole violators who have been remanded pending a final revocation hearing; these violators constitute roughly seventeen percent of the population. CIFM’s official capacity is 2083. As is discussed in greater detail in Section IV of this opinion, its population has reached peaks as high as 2800; the average population at CIFM at the time of the trial was about 2500-2600 inmates. Commissioner Koehler testified that the average length of stay for sentenced inmates at CIFM is fifty days, T. 3434, and the average length of stay for parole violators is fifty-four days, T. 3435, but many of the inmates who testified at trial had been incarcerated for much longer periods, several for as long as eight months, and one for over a year. (Consecutive sentences may result in an inmate’s incarceration at CIFM for more than a year.) Other inmates are at CIFM for far briefer periods than fifty days. CIFM’s main building was built in 1964, with one set of dormitories added in 1970. Three prefabricated “modules” were attached to the jail in 1984-1985. General population inmates at CIFM, as well as most protective custody inmates, are housed in large unpartitioned dormitories. PX 247 (admissions 24 and 31); T. 1798 (Captain DeCicco). In addition, there are four cell areas, with a total of 136 cells, used for adult administrative segregation, adolescent administrative segregation, mental observation, and punitive segregation. There are also dormitories designated for drug detoxification, mental observation, and infirmary use. On the North Side of CIFM there are two floors of twin cell corridors in the shape of a chevron; there are thirty-four cells on each corridor, for a total of 136 cells, as stated above. Each cell has a window, a toilet and a sink; most of the cell areas have a dayroom at the front. There are also four dormitories on the North side: two per floor. The South Side of CIFM and the Annex each contain three floors with four dormitories per floor. These dormitories are large rectangular areas with beds, most of them double bunks, and with a dayroom, bathroom and officer’s station near the entrance. The three modular units each contain two separate prefabricated housing units, which share a single large officer’s station near the entrance. CIFM also contains dining areas for inmates and staff, a chapel, a gymnasium, a clinic, a law library and other program and administrative areas. II. Inmate-Inmate Violence at CIFM: Scope of the Problem Plaintiffs have established that inmate-inmate violence pervades CIFM. As described below, the evidence at trial demonstrated an alarmingly high level of reported incidents of inmate-inmate violence, which has spiralled upward from almost nine hundred incidents in 1982 to over thirteen hundred incidents in 1986. Although about twenty-five percent of these incidents were fights in which there was no documentation of injury, plaintiffs have documented numerous examples of stabbings, burnings, sexual assaults and other serious and gruesome injuries. Many of these injuries were inflicted by inmates who had acquired lengthy histories of violence against other inmates but who were still housed and allowed to roam at large in open dormitories. Violent injuries took place not only in housing dormitories, but in cell areas, in the halls, on staircases and even in protective custody areas, where inmates who fear for their safety seek refuge. A. Eyewitness Testimony Twelve inmate witnesses testified about inmate-inmate violence at CIFM. Each inmate testified to a number of separate incidents of such violence, in which the inmate had either been the victim or an eyewitness. Some of the incidents described bordered on the trivial, and a few were incredible altogether or in part. However, taken as a whole, the inmate testimony, which was supported in many instances by documentary evidence, credibly describes CIFM as an institution where inmate-inmate assaults and fear of assault are rampant. Defendants, for the most part, did not challenge the essence of the inmates’ accounts of these incidents, except to dispute in some instances the exact circumstances of the injury, such as whether a weapon was involved. For the purpose of concluding whether plaintiffs have established a pattern of pervasive inmate-inmate violence, the fact that each incident occurred, the seriousness of any injury, and the place where the incident occurred are the most important considerations, and thus I have not attempted to resolve all inconsistencies in testimony. Finally, it should be noted that not all the inmate testimony cast CIFM correction officers in a bad light: while some inmates testified that individual correction officers were deliberately blind to inmate-inmate violence, others testified that individual guards assisted them by preventing violence or by rescuing them once an attack had begun. As is discussed in Sections IV and V of this opinion, inmate-inmate violence at CIFM is the result of systematic problems and deficiencies, which tend to negate the efforts of many of the frontline correction officers to curb violence. The following accounts of violence inflicted upon inmate witnesses by other inmates, drawn as examples from the testimony, show the nature of the problem: a)James Crosby: Crosby was a twenty-eight year old inmate who had been convicted of shoplifting. He was sent to CIFM in June 1986 after violating the terms of his parole, and remained there until September 1986. He was attacked by other inmates twice. In July 1986, in dormitory 9 Lower, after a quarrel over a radio, another inmate attacked Crosby from behind and then slashed his face with what Crosby claimed was a homemade knife made from a disposable razor blade and a toothbrush. The fight was broken up when a correction officer came into the dormitory. The housing captain who investigated the incident eventually concluded that Crosby’s injury was caused by the other inmate’s ring; Crosby testified that this captain tried to pressure him into stating that there was no knife. See T. 29-38; PX 45. In August 1986, when working in the clothes storage area, an inmate stabbed Crosby with a sharpened metal rod after Crosby told him not to use his drinking cup. Crosby was treated for a puncture wound. T. 45-61; PX 124 (unusual incident 21MM73); PX 48. b) James Kenny: Kenny was a twenty-two year old inmate who was sent to CIFM on a forgery conviction early in 1986 and was still incarcerated there when he testified in October 1986. Kenny, who is homosexual, testified to numerous incidents of violence, including the following: First, while in new admissions dormitory 4 Upper, he was threatened with sexual abuse. T. 268-269. Second, while working in the mess hall, several inmates forced him into a utility closet and attempted to rape him; he did not report the incident because he was afraid of reprisal from the other inmates, T. 171-74. Third, while in dormitory 6 Main, an inmate hit Kenny in the face; when Kenny fought back at least three other inmates joined the attack against him. Eventually other inmates broke up the fight, but no correction officer ever intervened. T. 145-150; PX 34. Fourth, in cell area 2 Main, in the course of twenty-four hours, Kenny was sexually harassed, his cell was set on fire, and he was hit on the head and broke a tooth. T. 138-144; PX 16. Fifth, while in the East Module protective custody dormitory, Kenny was involved in four other fights and injured in at least two. T. Í54-58, 175-82; PX 15; PX 35. c) Rene Lisojo: Rene Lisojo, who was eighteen at the time of his testimony in November 1986, was incarcerated at CIFM from March through July 1986 on a grand larceny conviction. He testified to the following incidents: First, in June or July 1986, an inmate chased him with a broomstick when Lisojo refused to give him his sneakers, tried to extort money and commissary items from him and scraped him with a razor. T. 508-511, 520-21. Second, on the night of June 20, 1986, Lisojo woke up to discover that someone had wrapped burning toilet paper around his hand. He suffered second degree burns. T. 512-13; PX 26. Third, on another occasion, an inmate punched Lisojo in the face in the bathroom, allegedly in the presence of a correction officer. Lisojo required five stitches in the mouth. PX 17. Lisojo testified that the inmate and his friends threatened to slash him if he reported the incident to the authorities, so he told the officer to report that he received his injuries by falling down in the bathroom. T. 514-520. Officer Eder, the officer on duty, denied being in the bathroom and witnessing the punch and testified that he had believed Lisojo’s statement that he had slipped and fallen. However, Eder stated that he made no effort to go into the bathroom to determine independently what had occurred. T. 2694-99, 2703-12. d)Michael Palmer: Palmer, who was twenty-four years old when he testified, was incarcerated at CIFM from April through December 1985 for possession of a controlled substance. He testified to the following incidents, among others: First, on July 1, 1985, another inmate attacked him with a dustpan while he was doing exercises, causing various abrasions and contusions. PX 27, 32 (entry for July 1, 1985); T! 569-70. Second, he was attacked by fifteen inmates who snatched a pendant he was wearing, cut him with a knife, kicked and punched him in the head and face, and stomped and kicked his stomach. T. 571-74; PX 126 (unusual incident 19MM35); PX 30. Third, in an apparently related incident, he was threatened several days later by several inmates with “shanks” (homemade knives), but was helped to safety by a guard. T. 569-70. Fourth, after Palmer was transferred to protective custody in unit 2 Main, a number of inmates attacked him in his cell after they managed to open his locked door. His lock was opened, he believed, by inmates in the officer’s section, an occurrence which he had witnessed before. During the ensuing fight, an inmate holding a shank punched Palmer in the mouth. Eventually, Palmer was able to close his door and an officer arrived on the scene. T. 577-585; PX 31. e) John Rizzi: Rizzi, who was nineteen years old when he testified, was incarcerated at CIFM from May until August 1986, after violating probation on a grand larceny conviction by missing appointments with his probation officer. He testified to the following incidents: On his first day at CIFM, he was attacked in the crowded receiving room bullpen. An inmate stole his jacket and stomped on his hand. Rizzi’s hand later became swollen and infected and he had to be hospitalized for a week. T. 665-669; PX 54. Second, a few weeks later, in dormitory 6 Upper, an inmate attacked Rizzi after accusing him of stealing cookies, giving him a black eye, cut lip and bloody nose. T. 669-670; PX 55-56. Third, in dormitory 9 Upper, an inmate punched Rizzi when he refused to agree to give up his sneakers. T. 671-672. Fourth, in work dormitory 12 Upper, inmates tried to extort commissary items from Rizzi and an inmate pulled a homemade knife on him. T. 684-87. f) Raymond Castro: Castro, who was twenty-one at the time of the trial, testified that he had been convicted of three grand larcenies and a felony charge for sale of a controlled substance. Castro testified about the following incidents that occurred during his second incarceration at CIFM, from the end of 1985 to the beginning of 1986: First, in dormitory 12 Upper and later in 7 Upper, a group of inmates jumped him and kicked him because they said he had pubic lice. T. 857-60; PX 5. Second, in 8 Upper, a group of inmates who accused Castro of being an informant attacked him: they put a blanket over his head, kicked, punched and cut him. T. 861-64; PX 6. Third, in 9 Upper, while watching television in the dayroom, he was jumped by a group of inmates, who kicked him, punched him and swung a broom at him. T. 864-67, PX 9. Fourth, in East Module Protective Custody he was attacked, punched and kicked but was not injured. T. 870-73; PX 8. Fifth, in another dormitory he was burned on his feet while sleeping and suffered second degree burns. T. 874-75; PX 9. B. Severity of Inmate-Inmate Violence at CIFM Although no inmate has died at CIFM in the last five years as the result of an inmate attack, plaintiffs have established that much of the inmate-inmate violence at CIFM is extremely serious and some of it is indeed savage. For instance, in the month of February 1987, inmate-inmate violence resulted in sixteen slashings, lacerations or stab wounds requiring sutures or emergency room treatment, and thirteen other serious injuries, including a fractured rib and collapsed lung, a fractured jaw, a neck sprain and a loss of consciousness. Plaintiffs also have tabulated 100 incidents from March 1982 to March 1987 in which inmates were set on fire or otherwise burned, often while asleep in the dormitory at night, or were the victim of an attempted burning, although in seventeen of these incidents, no bum injury was documented. Finally, while none of the inmate' witnesses testified that they had actually been raped, there was testimony about sexual harassment and attempted rape and there is documentary evidence of a number of inmate rapes and complaints of rape at CIFM. Many of these incidents involve knives, both the commercial variety and homemade knives called “shanks” or “shivs”, as well as razors, broom sticks, ammonia, bleach and miscellaneous blunt and sharp instruments. In 1986, there were over six hundred violent incidents involving weapons and infractions for possession of weapons. Defendants presented evidence at trial that they had increased the number of cell searches for weapons in recent months, and that, as a result, the frequency of serious attacks has decreased since October 1986. In comparing March 1987 to August 1986, there does appear to be a slight decrease in the number of violent incidents involving cutting or stabbing weapons; however, the March 1987 list still demonstrates the wide use of an impressive array of dangerous objects and weapons. There is also considerable evidence of record, through documentary evidence and through the testimony of both officers and inmates, concerning the activities of inmate gangs, referred to as “posses,” that prey on weaker inmates. For example, there were at least four separate incidents in early 1986 in which inmates asked to be moved to protective custody after being injured or threatened by a posse led by an inmate named James Corey. There was also testimony about other organized activity such as 1) extortion of money in exchange for sleeping space, called “paying rent,” 2) forcing other inmates to wash clothes or do other menial chores for posse tnembers, called “maytagging,” and 3) forcing inmates to pay for telephone use, called “running the phone.” In addition, many inmates referred to the phrase “snitches get stitches” as a slogan frequently used by assaultive inmates to threaten inmates who complain to the authorities. Defendants argue that they take reasonable steps to break up such activities and that plaintiffs exaggerate the seriousness of organized inmate violence and extortion. Defendants point out, for instance, that three officers testified that they had never heard complaints about maytagging and two had never even heard the term. It is not unexpected, however, that inmates may be more knowledgeable than officers on the types of injuries inflicted upon them by other inmates. I conclude that the evidence establishes that the type of inmate activity described in this paragraph is a significant aspect of inmate-inmate violence at CIFM. C. Defendants’ Failure to Control Inmate-Inmate Violence In addition to the sheer quantity and severity of inmate-inmate violent incidents, the pervasiveness of inmate-inmate violence is demonstrated by evidence establishing defendants’ failure to protect inmates from assaults even where a specific need or danger has been identified. This failure is illustrated by the patterns of 1) violence by inmates who have repeatedly attacked other inmates but are permitted to continue their assaultive behavior and 2) violence in protective custody housing units. 1. Repeat Offenders: In PX 376, plaintiffs have compiled documentation about seven inmates who were repeatedly involved in violent incidents, many involving the use or possession of weapons. Their history at CIFM shows that, even when assaultive inmates become known to the authorities for their violent behavior towards other inmates, they are allowed to remain in open general population dormitories. If placed in segregation, which is rare, they are allowed to return to general population after a very short time. Finally, when they are released from CIFM and then return on subsequent convictions, they are placed once more into general population dormitories. For instance, inmate Marco Reyes was placed in administrative segregation from May to November 1986, during which period he was involved in thirteen reported instances of violent or disruptive behavior, including attacks on inmates with a razor, a broomstick, and a pick. Despite this history, in early December 1986 he was moved back to an open general population dormitory, where, within the course of a month, he slashed two inmates with razors. See PX 376. 2. Violence in Protective Custody: Pri- or to 1985, defendants’ protective custody policy was somewhat restrictive, in part because there was often no room to house inmates who required or requested protective custody. In late 1985, however, defendants adopted a policy under which any inmate who requested protective custody status would receive it unless it was known that he intended to do harm to others. To create more room, defendants designated part of the East Module to be an adolescent protective custody area; later, the adolescent protective custody unit was moved to the adolescent new admissions dormitory, without physical separation from the other inmates in that dormitory. T. 2008 (Captain DeCicco). Adult protective custody was also moved back and forth from dormitory to dormitory. Plaintiffs’ expert James Shoultz testified that dormitories are unsuitable for housing protective custody inmates because of their special problems and needs: some need protection and others can be “explosively violent.” T. 3810, 3808-10; see also T. 4000-03 (Bair). While Shoultz testified that he had never seen , another jail or prison, other than CIFM, where protective custody inmates are kept in dormitories, T. 3809, defendants’ expert Chief Painter testified that such inmates may be housed safely in dormitories, and that he used to do so in his Los Angeles system. T. 4494-95, 4663. (Currently, protective custody inmates in Los Angeles are housed in multiple occupant cells. T. 4495.) Regardless, however, whether protective custody inmates under some circumstances may be housed safely in dormitories, it is apparent from the record of this case that protective custody dormitories at CIFM have not provided adequate protection. PX 374 summarizes thirty-four incidents of fights, assaults, threats, robberies and weapons findings involving East Module protective custody inmates from December 1, 1986 to January 16, 1987, ranging from fist fights to major incidents with substantial injury. The pattern of violence continued after the protective custody unit was moved from the East Module to 7 Upper and 8 Upper in mid-January 1987. In February 1987, twenty-one out of 126 reported incidents of violence at CIFM involved inmates from 7 Upper or 8 Upper, a ratio disproportionate to the ratio of the 7 Upper/8 Upper population compared to the institution’s total population. See PX 403 (injury reports for 2/87); PX 263A. These incidents included gang attacks, assaults on sleeping inmates, use of weapons and the infliction of serious injuries. D. The Amount of Inmate-Inmate Violence Although defendants did not begin to keep records of the total number of violent incidents occurring at CIFM until the trial started, plaintiffs have constructed their own records from injury to inmate reports, clinic injury logs and infraction logs produced to them by defendants. These records document increasing numbers of violent incidents at CIFM, starting with just under 900 in 1982 and rising to over 1300 in 1986, with almost 350 in the first three months of 1987. Plaintiffs also argue that there is a substantial amount of undocumented violence for two reasons. First, plaintiffs point to evidence that defendants regularly lose records of inmate violence, noting that the percentage of missing injury reports, as calculated from the clinic injury report logs, has gone up from eleven percent in 1984 to twenty-six percent in January-August 1986. See PX 418 (explaining calculations of missing injury reports). Second, plaintiffs argue that other incidents of violence go unreported or reported as accidents out of fear of reprisal because of the “snitches get stitches” phenomenon described above. Defendants criticize plaintiffs’ estimates of the amount of inmate-inmate violence at CIFM. Most important, they argue that plaintiffs have incorrectly included in their calculations of reported inmate-inmate violence incidents that defendants term “unsubstantiated,” such as claims of assault with a weapon where no weapon was found after a search, incidents of “horseplay,” and incidents of inmate violence which defendants argue could not be investigated because they were not reported to the authorities until too long after the fact. Defendants calculate that, of the incidents listed by the plaintiffs from December 1986 to March 1987, twenty-five percent did not result in documented injury. Of the rest, defendants calculate that over half resulted in injuries characterized as “minor,” such as bruises, cuts, scratches, swelling or tenderness, and eighteen percent resulted in “serious” injury. While these statistics do add perspective to an understanding of the impact of inmate-inmate violence at CIFM, it cannot be concluded that they provide an adequate defense or rebuttal to plaintiffs’ claims. First, even eliminating the twenty-five percent of incidents with no reported injury, plaintiffs have still established that there is a large amount of violence at CIFM. Furthermore, although “unsubstantiated” incidents may not merit the same weight as incidents where, for instance, use of a weapon is confirmed, it cannot be expected that in the circumstances at CIFM every weapon will be found, and the heavy volume of such incidents at CIFM is itself a significant indication of the scope of the problem. Finally, incidents such as fights that result in either minor injury or no defectible injury are not factually or legally irrelevant in this case, which, as discussed in Section V of this opinion, concerns the risk of violence faced by CIFM inmates, as well as the actual rate of violence. Even minor fights and horseplay have the potential to explode into violence under the crowded and flammable conditions at CIFM. Defendants also offered DX VVVV, la-belled “Violence Tracking,” to show what appears to be a slight reduction in violence from January-February 1986 to January-February 1987, based on the number of inmate infractions during this period. However, plaintiffs point to significant omissions in this chart and, more important, argue convincingly that infractions are not a reliable indicator of violence level because of the large number of cases in which infractions cannot be filed because the assailant is unknown. In sum, plaintiffs’ estimates of the amount of inmate-inmate violence at CIFM represent an impressive effort to reconstruct accurately a complex history of events and are as dependable as can be reasonably expected. It is impossible to make scientifically exact calculations in these situations, and any overinclusiveness on plaintiffs’ part is balanced by the phenomena of lost records on the part of CIFM and fear of reprisal on the part of inmates. E. CIFM’s Inmate-Inmate Violence Compared with Other Jails and Prisons Evidence presented at trial, chiefly through the testimony of both plaintiffs’ and defendants’ experts, established that the rate of violence at CIFM is substantially greater than that in comparable jails and prisons throughout the United States. Plaintiffs’ expert Toni, Bair testified that CIFM’s rate of violence “far exceeds ... the standards that professional administrators have adhered to,” basing his view on “[t]he seriousness of the incidents. The amount of weapons that are used. The serious injuries that the inmates receive from the violence, the frequency of the assaults.” T. 3969-70. Bair testified that he had compared data on inmate assaults and fighting in the Virginia prison system, of which he is á regional administrator, for fiscal year 1986 with similar data at CIFM from January-August 1986. Based on his review, he concluded that inmate violence at CIFM was approximately nine times as high as it was in the Virginia system, T. 3970, even though Virginia’s population is all-felon, with more serious criminal histories than CIFM inmates, T. 3976-77, only a quarter of whom have felony convictions, PX 96-98. Plaintiffs’ expert James Shoultz testified that the amount of inmate-inmate violence at CIFM was “very significant,” focussing on the number of incidents “that actually involved physical damage to people” as well as the number of incidents involving use of weapons. T. 3776-77. Shoultz estimated that the amount of violence at CIFM was eighty to eighty-five percent higher than would be expected given the nature of the population, which he concluded, after a review of a profile of CIFM inmates, was “very little” different from jail populations in other states, including Florida, where he has been director of corrections in several counties. T. 3777-78. In the Orange County, Florida jail which Shoultz directed from 1972-1981, with an inmate population of around 1000, there were only four or five violent incidents a month involving injury to inmates. T. 3779. Plaintiffs’ expert Verne Cox found a “relatively elevated level of violence” at CIFM, which he had expected based on CIFM’s extensive use of large, open dormitories and its high population levels. T. 4726. Cox compared data on violence at CIFM to similar data he was provided in another litigation, concerning Fishkill Correctional Facility, a medium security New York state prison, in which he testified as an expert. Cox, relying on the Fishkill superintendent’s testimony about the reporting standard and on Cox’ own inspection of the underlying reports, concluded that at Fishkill, any incident of inmate violence which involved “an injury of consequence” was reported as an unusual incident, including “relatively minor abrasions all the way through lethal injuries,” T. 4732-33. Hence, Cox compared the number of incidents at CIFM where injury was documented with the total number of reported inmate assaults or altercations at Fishkill. On that basis, he concluded that CIFM’s rate of inmate violence was eight to twelve times as high as that at Fishkill; See PX 425 (Cox comparative calculations). Based on a review of statistics, other documents and testimony, Cox also compared inmate-inmate violence at CIFM to inmate-inmate violence at the Los Angeles County jail system directed by defendants’ expert Chief Painter. He concluded that the rate of inmate-inmate violence at CIFM is over three times the rate of inmate violence at the Los Angeles County jail system. However, in at least one barracks-type Los Angeles jail, where inmates are housed in large dormitories similar to those at CIFM, the rate of violence approached that of CIFM. Defendants argue that no comparison is possible between CIFM and the Los Angeles jails, because of differences in physical structure and inmate profiles, and because CIFM reports incidents in which no injury occurs, whereas in Los Angeles, an inmate fight is not reported unless there is serious injury. However, on cross-examination, Painter acknowledged that the definition of inmate-inmate assaults in Los Angeles can extend to include scuffles and pushing matches as well as “a legitimate fight where blows were struck.” T. at 4620-21. Chief Painter himself testified that violence at CIFM is “higher than it needs td be [and] certainly higher than I am used to seeing in other institutions of that size ...,” T. 4576, although he added that he thought changes recently instituted at CIFM were starting to reduce the level of violence, T. 4577-78. Finally, Commissioner Koehler testified that it was his impression that the rate of inmate-inmate violence was higher at CIFM than at the Manhattan House of Detention and other celled borough houses of detention, even though pre-trial detainees are more difficult to manage and control than sentenced inmates. T. 3560-63. A July 1985 study by the National Institute of Corrections found that, during a one year period, there were no assaults with weapons or sexual assaults at the Manhattan House of Detention and a total of only twenty-one contraband weapons, at maximum, were found. PX 250 at 83. Defendants argue that none of plaintiffs’ experts had sufficient basis to make the comparisons of violence to which they testified, because of their unfamiliarity with CIFM, differences in reporting systems at the different institutions and the fact that none of plaintiffs’ correctional experts had directed an institution as large as CIFM. Defendants’ specific objections vary in strength. Overall, however, I conclude that all of plaintiffs’ experts were amply qualified to make the comparisons to which they testified and gave reasoned bases for their conclusions. Of course it is difficult to compare different institutions with different populations and reporting systems in different parts of the country. But these comparisons, even allowing for variations in reporting systems, still show that the rate of inmate-inmate violence at CIFM is significantly higher than that at other basically similar institutions. The amount of violence at CIFM is also significantly higher than Professor Cox and three seasoned correctional experts — Bair, Shoultz and Painter — would have expected. III. Staff-Inmate Violence at CIFM: The Problem of Excessive Force Plaintiffs have established that the use of excessive force by staff against inmates at CIFM is significant and widespread. CIFM is certainly not a jail where sadistic guards regularly torture inmates without cause, and clearly many of the guards who testified at trial appeared to be decent, well-meaning people. However, the evidence does demonstrate that CIFM is an institution where guards, because they are often undertrained, overworkéd and frustrated, resort too often to excessive and unnecessary force in dealings with inmates, often causing substantial injuries. Even when these incidents are prompted by an inmate’s goading behavior, the use of force is often out of proportion to the force required, if any. Even more disturbing, testimony was heard about incidents where there appeared to be absolutely no reason for the use of force on a particular inmate, except that he was in the wrong place at the wrong time. A. Eyewitness Testimony Fourteen inmate witnesses testified about several incidents of excessive force which the witness either experienced or witnessed. What follows summarizes only a sampling of the credible record in this case on excessive force. As a preliminary issue, defendants make the general point that the credibility of all the inmate witnesses is impaired because each of them had been convicted of crimes, whereas none of the defendants’ witnesses had. While inmate testimony about their keepers clearly may be prone to bias and exaggeration, and some of plaintiffs’ witnesses were less credible than others, much of the inmate testimony on this topic was credible and sincere, and supported in significant part by documentary evidence. Hence, no blanket finding of incredibility can be made. The evidence concerning excessive force has been examined with the goal of determining whether plaintiffs have established a pattern and practice of excessive force at CIFM. Each incident described below constitutes a credible instance of misuse of force, and hence a strand of the pattern which I find. However, no attempt has been made to resolve or reach final conclusions as to liability in any particular incident, as would be necessary in the case of an individual claim under 42 U.S.C. § 1983. For instance, a number of the incidents about which testimony was heard followed this pattern: first, an officer was challenged by an inmate, possibly legitimizing the initial use of a controlled amount of force, but then the incident deteriorated into the unnecessary beating and kicking of an already subdued inmate. In such instances, disputes as to the exact circumstances which gave rise to the beating, or the exact details of the beating, are not as important as the extent of the beating and the extent of the injury, a) James Kenny: Kenny testified as to numerous incidents of misuse of force against him, the most serious of which occurred in August 1986. At that time, the inmates of dormitory 8 Upper were required to line up after some were accused of misconduct. Kenny asked Officer Tilleli why they had to continue to stand; Officer Tilleli then asked Kenny for his ID card, and Kenny replied that he did not have it with him. Kenny testified that several officers then grabbed him, pushed him against a rail, and told him to go beyond the B gate. When he refused, the officers dragged him out of the dormitory, one by his feet and another by his neck. Then they began punching him; one kept punching him in the side while Tilleli punched him in the face. They handcuffed him, took him into the next dormitory, continued to hit him, threw him on the floor and kicked him. Kenny reported that as a result of this beating, his right thumb and elbow were sprained, his groin was swollen, and his face was lumpy and scratched. T. 247-54; PX 10. He was given an infraction for assaulting an officer, but found guilty only of refusing to produce his ID card; the assault charge was dismissed based on “inconsistent reports on how and where Co. Tilleli was punched.” PX 11; PX 152. Defendants called no witnesses to refute this testimony. However, they point out that on cross-examination Kenny stated that he didn’t complain about any groin injury immediately after the incident, T. 301, and point to the investigating officer’s statement in the unusual incident that Kenny pushed the officer first and that the inmates disliked Tilleli, so it would be “ridiculous” to credit the inmate allegations against him. PX 152 (unusual incident report 21MM89). Regardless of who pushed whom first, this incident can reasonably be considered as one where an initial use of force spiralled out of control, causing fairly extensive injury, in a situation that could have been handled without any use of force. b) Rory Hartley: Inmate Rory Hartley was convicted of possession of controlled substances. At the time of his testimony at trial, he had been incarcerated at CIFM for over a year. Hartley testified to. the following incident, among others: On February 22, 1986, Hartley was assigned to night sanitation duty. While he was working outside the dormitory the inmates in his dormitory, 5 Lower, were warned that if the inmates continued to make noise, the riot squad would be called. Hartley arrived back at 5 Lower at about 3:10 a.m. and went to bed. Almost immediately, he felt the covers being pulled off him, and saw Captain Chesaniuk, Assistant Deputy Warden DeCanditis and ten correction officers in the dormitory, throwing inmates out of bed and ordering them to the front of the dormitory. As Hartley walked to the front, Officer Henry hit him in the face, Officer Bland grabbed him from the back, and Officer Fisher punched him in the back of the head and kicked him. Fisher also hit two other inmates. When Hartley got to the front of the dormitory, he asked Captain Chesaniuk if he could go to the infirmary. Chesaniuk said that if Hartley would state that he received his injury from a fall, he would not get an infraction. Hartley refused to do this and was given an infraction for disobeying a direct order to stop talking after lights out. The infraction was dismissed at the disciplinary hearing on the basis of the testimony of Hartley and two other inmate witnesses. T. 206-215; PX 20-21. Hartley’s medical records show that he sustained a laceration of the right cheek and was given three sutures. He went to Kings County Hospital for x-rays and was diagnosed as having a fracture of the right cheek. He had persistent pain and blurry vision and spent a week in the infirmary. PX 23. Defendants called no witnesses to refute this testimony. CIFM personnel failed to report this occurrence as an unusual incident. See PX 158 (unusual incident reports for February 1986); PX 262 (24-hour reports for January-August 1986). Hartley, however, complained to the Warden and the Inspector General. As a result, several of the officers involved were charged with excessive force, making false statements and other violations. As of the completion of the Fisher trial, almost a year and a half after the incident, no action had been taken on these charges. Chesaniuk, who was charged with submitting a false report, failure to investigate an incident and failure to discharge his duties, was promoted a few months after the incident to Captain of Security. T. 2939-40 (Garvey). On July 22,1987, Chesaniuk pled guilty to failure to investigate and nolo contendere to the other charges: he was given probationary status for one year and forfeited ten days vacation. On July 29, 1987, DeCanditis pled guilty, was placed on probationary status for six months and forfeited thirty vacation days. Bland resigned on July 15, 1987, and the charges were administratively filed. Koehler Supp. Aff. at 118(d). Officer Fisher was never charged in this incident, although defendants argue that-this was appropriate because his participation was never sufficiently established. This incident is a shocking example of excessive force which seems to have been inflicted on Hartley with no justification, as if at random. c) Keith Beattie: Keith Beattie has been incarcerated at CIFM twice; at the time of his testimony he had served about five months of a sentence for grand larceny. Beattie testified to the following incident that occurred on August 15, 1986. According to Beattie, he was working at his job collecting garbage cans, when Officer Young of dormitory 12 Main became angry at him for failing to take out his dormitory’s garbage. Young and three other officers gathered around Beattie, backing him against the wall. Beattie sat down on the floor to avoid conflict. Young then threw the trash can on him and ordered Beattie to pick up the garbage. Beattie refused and stood up. Young and Officer Gaylord then hit Beattie and knocked him down. Young punched Beattie again in the eye and stomped on Beattie’s stomach. Beattie was then ordered to pick up the garbage. After doing so, Beattie bolted down the corridor. Two officers chased him to the next gate and forced him back, punching him. Young then said, “I’m not finished with him,” and Gaylord kicked him in the stomach. Beattie fell to the ground, having trouble breathing. Twenty minutes later, Officer Cubano arrived and sent Beat-tie to the clinic. T. 330-342. The clinic reports document that Beattie sustained swelling to his left forehead, an irritated left eye and abdominal sounds. PX 51. Officer Young testified at trial. He stated that he confronted Beattie because his dormitory’s garbage can had not been emptied. He stated that Beattie swung at him, he tackled Beattie, and they both fell to the ground. T. 1286-90. He testified that he punched Beattie while they were both on the ground, and- that “of course” Beattie physically resisted before he punched him. In his deposition, however, Young testified that neither he nor Beattie did “anything physical” after being brought to the floor. T. 1370-71. Young denied that any other officer hit Beattie. Officer Arenella and Captain Cubano also testified about this incident. Arenella testified that he did not witness or hear the argument leading to the fight, but that he heard “scuffling of feet” from his post, which was about thirty feet away, T. 1292, saw Young on the floor with Beattie, separated them, and then returned to his post. T. 1472, 1479. Captain Cubano testified about the investigation that he conducted, in which he concluded that the force used by Beattie was “necessary and minimal,” PX 51. Cubano stated that he stayed at least five hours after his second tour of duty to investigate the incident. However, in some respects the investigation was not thorough. Cubano made no inquiry as to the participation of other officers in the incident alleged by Beattie, because, he explained, Beattie did not raise this allegation until about an hour after his trip to the clinic, when he submitted his written statement. Cubano did question some inmates in the dormitory, and received a written statement, allegedly from inmate Godfrey Frith, which states that an unidentified inmate swung at “my CO.” The handwriting on the report shifts midway from an illiterate style to one very similar to Officer Young’s. PX 51; T. 1384-87 (Young); T. 2447-48 (Cubano). Beattie struck the court as a hot-tempered character but his testimony seemed sincere. Young’s testimony also appeared to be credible in large part, but aspects of his story were confused, and the change in handwriting on the inmate statement was striking. In sum, while this incident was difficult to assess, it appears to have been one in which Beattie was subjected to excessive force by one or more officers. While Beattie’s provocative behavior may have goaded Officer Young, that need not have led to an incident of this nature, d) Karen DeCarlos: Inmate Karen DeCarlos, who is male, has been incarcerated numerous times at CIFM. At the time of his testimony, he was being held as a parole violator on prostitution charges. DeCarlos testified that he had been assaulted by CIFM officers five to seven times. In one of these, Captain Warshawsky came to the North Module to give DeCarlos an infraction and to take him to the clinic. DeCarlos said that nothing was wrong with him and that he would not go. Warshawsky grabbed him by his left armpit and squeezed it hard enough to leave fingernail marks. DeCarlos cursed at him and tried to pull away. Warshawsky then pushed him down, kneed him in the face, blacked his eye and busted his lip. T. 390-92; PX 24. Defendants, however, point to evidence that DeCarlos refused medical treatment after the incident and didn’t report the black eye until 24 hours after the incident. DX P, Q; PX 24. Warshawsky testified that, as he was taking DeCarlos to the clinic, DeCarlos pushed him in the chest and “took a fighting stance.” T. 2068. Warshawsky then punched him twice in the head. T. 2093-94. Although he is 6'3" and DeCarlos is 5'2", Warshawsky indicated that there were no alternative methods to restrain DeCarlos. T. 2071-72. Warshawsky was given a corrective interview for failing to exercise options when dealing with a recalcitrant inmate. He testified that in retrospect he would not have handled this situation differently. T. 2073. e) Michael Palmer: Palmer testified that on October 29, 1985, an officer attacked him with a riot stick and broke his arm. Palmer had been sent to Kings County Hospital for tests for a persistent wrist complaint. On returning to CIFM at about 11:00 p.m., he was placed with new admissions in the receiving room and complained about this. Officer Tilleli called him a “wise guy” and told him to “come out of the bullpen, he got something for [him].” T. 547. Palmer refused, and Tilleli came back with a riot stick and hit Palmer on his left knee. Officer Fisher then ran into the pen and hit Palmer in the chest several times. Palmer fell and Tilleli hit him several more times with the stick. He tried to hit Palmer in the head but Palmer blocked the blow with his arm. Finally, Officer Long told the officers to stop. Then Officers Tilleli and Fisher dragged Palmer to an empty bullpen, where Officer Tilleli kicked him in the side several times. Eventually, Palmer was taken to the clinic and found to have a broken arm. T. 544-57. An unusual incident report was filed concluding that Officer Tilleli used unnecessary force and poor judgment and recommended disciplinary charges against him for unnecessary force. PX 162 (report 18MM148). No action was taken on these charges, however, and Tilleli resigned in fall of 1986. DX XXX at ¶ 11. Palmer was given an infraction for assaulting an officer, but the hearing officer found no evidence to support the charge and dismissed it. PX 29. Defendants called no witnesses to refute Palmer’s testimony. They point out, however, that Palmer testified on direct examination that he had only three prior convictions, while on cross-examination he admitted to eight prior convictions, arguing that this casts doubt on the credibility of Palmer’s account. In addition, defendants argue that the broken arm could have been the result of a prior injury, that Palmer lied about the repetitious blows and kicks, and that there is no evidence to confirm that Fisher was involved or that Long witnessed the incident. However, Palmer’s account was fundamentally credible overall and was even supported in significant part by defendants’ own investigation and conclusion that Officer Tilleli had used unnecessary force. f) Roger Ramsey: Ramsey was convicted of possession of a weapon and possession of fraudulent instruments. He was incarcerated at CIFM from September 1985 to June 1986. He testified about witnessing several incidents of excessive force that occurred to other inmates and recounted the following incident that happened to him: On November 12, 1985, at 4:30 p.m., Ramsey was in his dormitory, 6 Lower, waiting for permission to go to school. Officer Yvette Johnson was on duty. Ramsey heard the phone in the officer’s station ring and heard Officer Johnson tell the person that there was no problem in the dormitory and that the alarm must have gone off by mistake. Then Ramsey saw ten to fifteen officers outside the gate responding to what they thought was an alarm. Officer Johnson stepped out of her station, saying “no, its a false alarm,” but the officers pushed past her and rushed into the dormitory. Ramsey panicked, ran into the dormitory and backed himself onto the lower bunk of a bunk bed. The officers jumped on Ramsey and began hitting and kicking him. Six officers hit him, but he only recognized one, Officer Vanderpool. Vanderpool grabbed Ramsey by the collar, snatched him off the bunk, swung him against the iron rail on the bed and punched him in the face. Finally, Captain DeCicco ordered the officers to stop. T. 935-43. Ramsey’s medical report confirms his injuries, including swelling and tenderness of the left face, laceration of the left upper lip, abrasions on the lower back, pain and tenderness of the thigh. He was given four sutures for the laceration, an ice pack and motrin. PX 14. The facility investigation led to an unusual incident report that failed to resolve how Ramsey received his injuries or the extent of the force used against him. PX 13. Defendants argue that the evidence indicates that Ramsey attempted to hide under the bunk bed, not on the lower bunk, and that his injuries occurred when he was pulled out from under the bunk, rather than from a beating. Ramsey’s account was credible, however, and his injuries consistent with punches to the face. Defendants also point out that Vanderpool later resigned, DX XXX at ¶ 11, and that, after this incident, mock alarm drills were held to train the officers on proper procedures, g) The October 1986 Disturbances: Jose Vasquez and Ross Bennett: In October 1986 Vasquez and Bennett were both “state inmates” who were held at CIFM on parole violations, as well as on pending charges. They testified about the infamous incidents that occurred at CIFM and elsewhere on Rikers Island from October 13 through October 17, 1986. The April 1987 report of the State Commission of Correction, Inquiry into Disturbances on Rikers Island, October 1986, is also in evidence as PX 95. Testimony from Vasquez and documentary evidence described the following events: On Monday, October 13th, the inmates in 5 Main began to act up, breaking up beds. T. 3631-41. The inmate dispute was resolved peacefully later in the day with the signature of a memorandum of understanding concerning several aspects of treatment of state inmates at CIFM. T. 3645-50, PX 19, PX 89. On October 14th, the officers on the 4:00 p.m. tour refused to report to their posts “as a result of existing poor working conditions and prior unattended grievances,” PX 94; PX 95 at 71-72. The matter was not resolved until midnight and the 8:00 a.m. to 4:00 p.m. shift had to be held overtime. Id. On October 16th, parole violators in the East Module barricaded their housing unit because of grievances and negotiations were held. PX 93; PX 95 at 73-74. On Friday, October 17th, there was a disturbance in the CIFM mess hall, which began when an inmate and an officer got into a verbal dispute. Although Vasquez testified that the inmate offered no physical resistance, the situation deteriorated into violence, and the inmate was beaten up by numerous officers. Other inmates were beaten too; Vasquez was beaten as he tried to leave the mess hall, and was further beaten as he waited outside the clinic for treatment. He sustained two black eyes, a swollen face, abrasions to his back and shoulders and lacerations of the head and wrist requiring stitches. T. 3651-3666; PX 91. He was never given any infraction or criminal charge in connection with the mess hall incident. Inmate Ross Bennett also witnessed part of this sequence of events: he was outside the mess hall and witnessed another inmate being stomped, kicked and beaten. T. 3727-29. A number of officers were also injured by inmates in this incident. Bennett testified that, after the mess hall incident, there were continuing threats from officers, along the lines of “it ain’t over yet.” T. 3729. At 9:30 p.m., a captain and a deputy came to Bennett’s dormitory and told the inmates to pack their property. They were then taken to the House of Detention for Men (“HDM”) by bus. Outside the bus were two rows of officers, with fourteen officers in each row, dressed in riot gear. The inmates, who were handcuffed to each other, were led into HDM through the two rows of officers, and the officers punched them and struck them with sticks. Bennett was hit in his head, back and thighs. T. 3730-36. The State Commission of Correction concluded that the inmates were forced to run a gauntlet of baton-wielding officers from the CERT team, and that “the use of excessive and unnecessary force during the move from CIFM to HDM” resulted in thirty-four injury reports, twenty-four actual injuries, and eight “serious” injuries, including head and scalp lacerations, one loss of consciousness, contusions, abrasions, bruises, swellings and a possible rib fracture. PX 95 at 83-86. Defendants argue that this testimony is irrelevant because 1) even plaintiffs do not allege that these events were typical; 2) the running of the gauntlet did not itself occur at CIFM, and plaintiffs did not establish that CIFM officers were involved; 3) to the extent CIFM officers might have been involved, it would have been in their capacity as members of the now-substantially revised Correction Emergency Response Team (“CERT”), and not in their capacity as CIFM staff and 4) at the time the inmates went through the gauntlet they were no longer Fisher class members because they had physically left CIFM. Defendants also argue that they were unable to put on a defense to the testimony of Bennett and Vasquez because, at the time of their testimony, there were ongoing departmental, state and federal investigations, and counsel could not interview or call individual officers as witnesses because of uncertainty as to what charges would be filed against whom. I conclude, as I stated at trial, that it was appropriate to hear testimony and receive evidence on the October 1986 disturbances, because “the subject matter seems to [be] at the heart of what the whole purpose of this trial is, and to ignore it is unrealistic,” T. 3621, and would be irresponsible. Although defendants may have been circumscribed in their response to the inmate testimony by ongoing investigations, it cannot be concluded that they were unfairly prejudiced. Testimony about the gauntlet itself, which took place outside CIFM, should be set aside in deciding the issue of staff-inmate violence. However, it is appropriate to consider the evidence about the other events that took place at CIFM during this time period, and this evidence is consistent with and supports the other evidence about excessive force in this ease. Finally, the October 1986 disturbances are an indication of the tensions brewing below the surface at CIFM that could erupt again, if steps are not taken to prevent use of excessive force in the future. h) Defendants’ Witnesses: Plaintiffs argue that some of defendants’ own witnesses supported plaintiffs’ claims of misuse of force. Two incidents were brought out that seem especially telling. First, Officer Robert Murray testified that he was involved in a violent incident with inmate John Beatty in June 1986. Murray testified that he and Officer Saglimbene grabbed Beatty and wrestled him to the floor after the inmate “swung his arms at me in a threatening manner.” T. 1160. The captain who investigated the incident wrote that, “[i]n conclusion I find that this is another case of lack of common sense. I feel that according to the reports submitted by Officer Murray and Saglimbene the entire situation was avoidable and the assault on staff was actually provoked by staff.” He also noted that Officer Murray has “been involved with at least five compensation eases involving the use of force” in the last year. PX 154 (unusual incident report 20MM136) (emphasis in original). The captain recommended that Saglimbene be given a corrective interview on the proper use of force and that Murray be