Zolnowski v. County of Erie (944 F. Supp. 1096, 1996)

DECISION AND ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned by order of the Hon. Richard J. Ar-cara entered May 15, 1996. A consent to proceed before the undersigned was filed July 12,1996.

BACKGROUND

This civil rights action was brought under 42 U.S.C. § 1988 initiated on September 9, 1995 when Plaintiff, Bernard J. Zolnowski, Jr., filed a pro se complaint on behalf of himself and all other persons similarly situated challenging conditions of confinement based on overcrowding at Defendants’ local jail, the Erie County Holding Center, located at 10 Delaware Avenue, Buffalo, New York operated by Defendant Thomas Higgins, the Sheriff of Erie County and Defendant John Dray, Superintendent of the Holding Center and the Erie County Correctional Facility located in Aden, New York operated by the County of Erie and supervised by Defendant Frederick Netzel, superintendent of the facility. Plaintiff also sued the New York State Commission of Corrections, a state agency responsible for the establishment and enforcement of minimum standards regulating the conditions of confinement for incarcerated persons in correctional facilities in the state. Plaintiffs seek money damages and injunctive relief based upon alleged violations of their right to due process under the Fourteenth Amendment and the protection against cruel and unusual punishments as guaranteed by the Eighth Amendment.

On October 4, 1995, Plaintiff Zolnowski, who had then been released from the jail, filed an amended complaint adding four other persons as plaintiffs, but signed only by himself, specifically alleging a class action for violation of these same constitutional rights. However, neither the complaint nor the amended complaint was served in accordance with Fed.R.Civ.P. 4(m). Later, on January 8, 1996, Zolnowski moved to certify the class as described in the amended complaint. The motion was opposed by Defendants by papers filed on June 17,1996.

Plaintiffs, represented by counsel, moved on July 16, 1996, pursuant to Fed.R.Civ.P. 65, for a preliminary injunction and an expedited hearing. Defendants opposed the motion by papers filed July 19,1996, and moved to dismiss for failure to state a claim and lack of personal jurisdiction based upon Plaintiffs’ failure to complete service. Specifically, Defendants asserted that Plaintiffs had failed to plead a constitutional violation and were without standing to request injunctive relief in their individual capacities or as representatives of the alleged class. Defendants further moved, pursuant to Fed.R.Civ.P. 19, to add, as necessary party defendants, the New York State Division of Parole and the New York State Division of Correctional Services. The New York State Division of Parole and Division of Correctional Services opposed the County defendants’ motion to add them as parties. By motion filed July 18, 1996, Defendant Commission of Corrections moved to dismiss as to itself on the ground that it was not a person subject to suit in this Section 1983 action.

In response to Defendants’ motion to dismiss under Rule 4, Plaintiffs’ moved on July 15, 1996 for leave, for good cause shown, to serve the complaint and amended complaint outside the prescribed 120 day period pursuant to Fed.R.Civ.P. 4(m). Plaintiffs further moved, on July 23, 1996, for leave to file a Second Amended Complaint adding as new plaintiffs two persons then being held at the jail.

At a hearing on Plaintiffs’ motion for preliminary injunction on July 22, 1996, the court granted Plaintiffs’ motion to serve the Complaint and First Amended Complaint beyond the 120 day period, granted the Defendant New York State Commission of Corrections’ motion to dismiss, and denied the county Defendants’ motion to add the New York State Division of Parole and Department of Correctional Services as parties. The court also denied the county Defendants’ motion to dismiss in so far as it had contended that the Complaint and First Amended Complaint failed to state a claim, reserving decision on the questions of Plaintiffs’ standing and Defendants’ alternative contention that the First Amended Complaint had not been properly executed by all plaintiffs when filed and therefore was subject to dismissal for failure to comply with Fed.R.Civ.P. 11(a).

On July 26, 1996, the court orally entered its decision on the record finding that Zol-nowski had standing to seek both money damages and injunctive relief as to the proposed class and that the Plaintiffs, who had not executed the First Amended Complaint, should be given an opportunity to do so. The court also held that the amended complaint was not subject to dismissal as to Plaintiff Zolnowski as he had timely executed the pleading when it was filed, and that the Defendants’ motion to dismiss was therefore denied in all respects. The court further found that Plaintiffs’ motion for leave to file a Second Amended Complaint should be granted provided the amended complaint was served not later than July 29, 1996, the scheduled date for the commencement of the hearing on Plaintiffs’ motion for a preliminary injunction.

The court also granted Plaintiffs’ motion for certification of a class finding that the First Amended Complaint and Second Amended Complaint satisfied the requirements of Fed.R.Civ.P. 23(b)(2), and that there was no necessity at that point to provide special notice pursuant to Fed.R.Civ.P. 23(d)(2). The class certified included persons, both pre-trial detainees and sentenced prisoners, who had been in custody at the Erie County Holding Center as of September 9,1995 and who may thereafter be in custody at the Holding Center. The court notes that its certification did not include persons confined at the Correctional Facility as Zolnow-ski was not at the time his complaint was filed confined in the Correctional Facility he would not have had standing to seek injunc-tive relief as to conditions at the Correctional Facility nor serve as a class representative for purposes for either an equitable remedy or money damages.

The hearing on the preliminary injunction was conducted over the next four days. Following the conclusion of testimony on August 2, 1996, with agreement of the parties, the court was given a tour of the Holding Center thereby enabling it to make observations of the conditions which had been described during the hearing.

In their motion, Plaintiffs’ requested that the Defendants be restrained from exceeding the maximum capacities of the Erie County Correctional Facility which is 525 prisoners, and 610 prisoners for the Holding Center. Plaintiffs contend that as a result of incarcerating persons in excess of these maxima, Defendants have created a serious risk to the health and safety of members of the Plaintiff class constituting punishment for those class members who are pre-trial detainees while housed at either facility in violation of their right to due process of law under the Fourteenth Amendment, and, for those class members who are convicted persons, cruel and unusual punishment in violation of the Eighth Amendment. Although Plaintiffs’ motion for preliminary relief is directed to both the Holding Center and County Correctional Facility, the evidence at the hearing provided more of a comparison of the eondi-tions between the two facilities than a showing of any alleged inadequate conditions at the Correctional Facility. As noted, Zolnow-ski lacks standing to seek injunctive relief as to the Correctional Facility and none of the Plaintiffs in the Second Amended Complaint were alleged to be confined in that facility. Moreover, in plaintiffs’ post-hearing proposed findings of fact and conclusions of law filed August 9, 1996, Plaintiffs requested relief only as to the Holding Center. Plaintiffs’ Findings of Fact, Conclusions of Law and Preliminary Injunction filed August 9, 1996 at 13. Accordingly, the motion must be viewed as only directed against conditions in the Holding Center. Supplemental oral argument was conducted September 26, 1996. For the reasons which follow, Plaintiffs’ motion for a preliminary injunction is GRANTED in part, and DENIED in part.

FACTS

At the hearing, the court received testimony from Steve Brown, a reporter and newscaster with a local television station, Channel 7, WKBW-TV, who testified about his observation of conditions at the Holding Center during a tour conducted on June 27, 1996. A video tape recording of the tour was made at that time and a copy of the tape was admitted into evidence as Plaintiffs’ Exhibit A and played in court. In his testimony, and as confirmed by the video, Brown described the housing of prisoners in various areas within the Holding Center including several rooms located on the ground floor of the jail called “court hold rooms.” The areas, explained in the later testimony of Superintendent Dray, were originally designed to hold prisoners while they awaited transfer to court, but the rooms are presently being used to house prisoners for various lengths of time until an individual cell became available elsewhere within the jail. The rooms are of varied dimensions ranging in size from approximately eight feet by sixteen feet for the smallest room to twenty-four feet by thirty feet for the largest, court hold room #7. Brown testified that he saw fifteen male prisoners in court hold room # 7 lying on sleeping pads placed on the floor of the room leaving little space to move about the room a fact clearly observable on the video. The room has one toilet which is in a corner area with a bed sheet drawn across it to provide some privacy when in use. Another sequence in the video and as described by Brown shows an area, identified as the atrium, which is an area inside the jail in which both bunk beds and sleeping “mats” on the floor are used by female prisoners. In this area, about fifteen feet wide and forty-five feet long, approximately twelve bunk-beds were placed. The mats are made of coarse cotton stuffed inside of a vinyl-like material approximately two and one-half feet by four and one-half feet in size.

Brown also described the use of the jail’s gymnasium which is used as a living area to house about fifty prisoners by positioning one mat for each prisoner around one-half of the outer perimeter of the basketball court in the gymnasium. There was no recreational activity going on during Brown’s observations in the gym. The other one-half of the basketball court was being used as a common living area for tables and chairs where the prisoners could eat their meals, play board or card games or watch television and generally use this space for every day living. Brown testified that a deputy sheriff, who escorted Brown on the tour, told him that the observed overcrowded conditions created a difficult and stressful situation for both prisoners and staff. The deputy also told Brown that although the Holding Center staff would like to do more for the prisoners in providing better living arrangements, they were unable to do so.

The video also showed an area adjacent to one of the regular cell-blocks in which approximately thirteen persons were housed in a room measuring eighteen feet by twelve feet with about one-half of the occupants sleeping on mats; the others on bunk-beds. According to Brown, the deputy sheriff who escorted him also stated that as result of the overcrowding in the jail the prisoners’ access to recreation was limited. The deputy also told Brown that it was not unusual for prisoners to be housed at the jail for two or three days and that 848 prisoners were housed in the facility that day.

Bernard J. Zolnowski, the lead Plaintiff, also testified and described his experience at the Holding Center following his arrest on felony drunk driving charges on April 25, 1995. Zolnowski stated that after completing the standard booking procedure, he was held in one of the court hold rooms which he described as having dimensions of approximately ten feet by twenty-five feet along with fourteen other persons. Each prisoner was given one of the vinyl covered mats and a blanket for sleeping on the floor of the room. In the room there was one sink and toilet which lacked any modesty panels and was covered with a bed sheet held in place with plastic forks and spoons. According to Zol-nowski, during his confinement which lasted two or three days until his subsequent transfer to the Erie County Correctional Facility, Defendant Erie County’s penitentiary, the toilet in the court hold room was “filthy” and backed up at least once during his stay in the court hold room, the floor was dirty and covered with cigarette ashes, refuse from meals and dust from the blankets, and one of the other prisoners vomited in the toilet, which because of the confined area caused Zolnowski to become “physically ill.” Zol-nowski stated that because the benches in the room, which are attached to the walls, were themselves employed as make-shift beds by those prisoners who wished to use them in this way, the remaining prisoners had to eat their meals sitting on their sleeping mats on the floor.

Zolnowski testified that because of the lack of space in the court hold room, some of the sleeping mats had to be located approximately one foot from the toilet. Food wastes were discarded into a large plastic trash bag kept in the room which was not removed until the end of the guard’s shift, meanwhile attracting or generating numerous fruit flies. As Zolnowski also testified, the bugs, when added to the strong body odors caused by the sweaty prisoners in the room and the dirty toilet and residual effects of the vomiting, created an environment unfit for the day-to-day housing of human beings. Although Zolnowski did not say there were any other insects observed while he was in the court hold room, he did recall seeing a cockroach in a meal which was served to him when he was later assigned to a standard cell block area located elsewhere in the jail. Zol-nowski stated that the court hold room (both the prisoners and jail staff commonly refer to the court hold rooms as “bull-pens”) was inadequately ventilated and the prisoners were forced to sleep under bright security lights which were left on at all times. According to Zolnowski, the room lacked any outside windows, the only window being one in the hallway wall through which jail staff and other persons who may be passing through the hallway could observe the prisoners in the room.

Zolnowski further testified that on July 7, 1995, he was sentenced on a bad check charge and transferred to the Erie County Correctional Facility, as a sentenced prisoner, for seven days, at which point he was transferred back to the Holding Center as a pre-trial detainee on his original drunk driving charges, from which he was subsequently released on September 21 1995 Zolnowski compared his experience at the Holding Center to the Correctional Facility by stating that he was treated “better as a sentenced prisoner” at the Correctional Facility than he was as pretrial detainee at the Holding Center. Zolnowski was not cross-examined.

Frederick Netzel, superintendent of the Erie County Correctional Facility also testified. Netzel explained that the purpose of his facility was to incarcerate convicted persons for the service of their prescribed sentence involving less serious state felonies and local court misdemeanor convictions, and to provide temporary housing for pretrial detainees transferred from the Holding Center as well as convicted persons adjudicated as parole violators or parolees awaiting a hearing for an alleged parole violation.

Additionally, the Correctional Facility is required to provide temporary housing for persons convicted of more serious state felonies and who are awaiting transfer to a more secure state operated penitentiary. Persons awaiting such transfer, including adjudicated parole violators and convicted state felons are, according to Netzel, considered as “state ready” prisoners whom, under state law, are supposed to be transferred by the state within ten days of their arrival at the Correctional Facility. However, as Netzel also explained, because of overcrowding at New York state correctional facilities, the required timely transfers of such “state ready” prisoners is often delayed thereby contributing to the overcrowded conditions at both the Correctional Facility and Holding Center. Net-zel stated that as of the day of his testimony, July 30, 1996, his facility housed 133 state ready prisoners whom had been housed there for more than the maximum ten day period. According to Plaintiffs’ Exhibit 0, as of August 1,1996, of the sixty-four sentenced prisoners ready for transfer to a state prison, fifty-one had been housed at the Holding Center over ten days. Further, of the thirty-eight state parole violators held in the Holding Center as of that date, seven were over ten days.

Netzel also testified that the New York State Commission of Corrections (“the Commission”) has the authority under state law to establish minimum standards for the conditions of confinement of persons in correctional facilities located within the state. According to Netzel, the Commission requires a minimum of between fifty to seventy square feet per prisoner depending upon the design of the confinement space. Plaintiffs’ Exhibit D, which is a copy of the regulations as adopted by the Commission, states that the minimum living area required for an individual housing unit, ie., a jail cell designed for one person, is sixty square feet and, in the case of multiple housing, ie., areas in which individual cells are grouped around a common living area or “day room,” the minimum area is to be fifty square feet of living space in the inmate’s individual sleeping area or cell.

In the case of that portion of the Holding Center constructed after 1977, the original effective date of the regulations, in which the court hold rooms are located, such multiple housing areas are referred to podular units or “pods.” The older areas of the Holding Center contain individual cells with toilets and sinks but without access to common areas like the pods. These areas are the linear cell blocks or “linears.” The Commission’s regulations, according to Exhibit D, also require that each inmate housed in an individual cell shall have one bed and mattress, one functioning toilet and a sink. For inmates housed in a multiple living unit like the pods, the regulation requires a minimum of one toilet, shower, and sink for every eight inmates. There was no evidence presented that the linear cells or podular areas of the Holding Center are not in compliance with the Commission’s regulations.

While Netzel confirmed that the regulations apply to his facility, he also explained that as a result of occasional intake of prisoners in excess of the maximum capacity established for his facility by the Commission, it is necessary to assign prisoners to areas within the facility that were not designed for housing, such as hallways. However, Netzel also testified that such extraordinary housing must be approved by the Commission by applying. for and receiving a “variance” or permission from the Commission permitting the facility to deviate from an applicable regulation on a temporary basis. In such instances, Netzel assigns the affected prisoners a cot so that the prisoner is able to sleep off the floor and is more comfortable and able to “sleep better” than if required to sleep on a mat on the floor. Netzel stated that he found the practice of requiring prisoners sleep on mats placed on the floors of the court hold rooms at the Holding Center “troublesome.” Netzel elaborated on this opinion by explaining that when a prisoner is given a cot for temporary sleeping he is able to place his personal belongings under it thereby avoiding the likelihood that other prisoners will trip over the items which, according to Netzel, is a cause for arguments that may escalate into fights between prisoners. However, even in such overcrowded conditions as exist at the Correctional Facility, Netzel takes steps to assure that the affected prisoners are all assigned bunk beds or cots and are able to eat their meals using a table and chair and that the security lights in the sleeping areas are dimmed at night to facilitate sleep. Netzel agreed that at times the Correctional Facility is overcrowded in that it has a population of both incarcerated persons serving sentences and persons detained awaiting trial who are temporarily housed at his facility because of overcrowding at the Holding Center.

However, Netzel also stated that the Commission has granted “variances” permitting such additional housing arrangements in response to the need to house more prisoners than the facility was designed to accommodate and that the Commission regulates any additional housing of prisoners at the facility. For example, as of the day of his testimony, the facility had 634 prisoners with an approved maximum capacity of 660 including the variances granted by the Commission. In contrast, according to Netzel, the capacity of the Facility as originally designed, was 402 persons. As Netzel explained, penal institution administrators in New York state, like himself, “cannot arbitrarily move people around” to accommodate a particular need for additional housing at a facility, rather, they have a “duty to limit housing to within what [capacity and areas within the facility] the Commission allows” including variances which may be granted by the Commission. Such variances, according to Netzel, may be granted by the Commission on a monthly or even daily basis. Netzel believes that the Commission’s decision to grant variances to facilities for housing of prisoners in areas of a facility which were not originally designed for such housing on a regular basis, depends upon whether the proposed space for each prisoner to be so housed is “proper and functional” for such housing. These criteria in turn are based upon the Commission’s minimum standards governing conditions of confinement.

Netzel also testified that in the Correctional Facility is free of pests. He agreed that a lack of adequate ventilation in a facility can contribute to the transmission of air-borne “diseases,” a problem which, according to Netzel, does not exist at his facility. Netzel also described his facility as providing adequate recreation and religious privileges, shower facilities, medical and library services, self-improvement and job training programs for all prisoners.

By letter to the court dated August 1, 1996, Plaintiffs’ Exhibit L, Netzel advised the court that, with the exception of sixty-four inmates held in the T building at the Correctional Facility, all of the inmates sleep on bunk-beds or cots and none are housed in any area which provides less than fifty-two square feet per inmate. The T building provides 39.8 square feet per inmate in an “open bay” area.

Scott Parker testified that he had been held in the Holding Center during the week preceding the hearing on harassment charges. According to Parker, he was taken from the jail intake holding cell to one of the court hold rooms for detention awaiting court disposition of his charges or bail. Parker, who admitted having used “speed,” a controlled substance the prior day nevertheless appeared credible as to the limited testimony he provided. Parker stated that the court hold room in which he was held was “overflowing” and “packed” with other male prisoners. The prisoners were given “mats” on which to sleep which, because of the large number of prisoners in the room, were placed on the floor one and one-half feet apart. The room, as described by Parker, was “filthy” with garbage on the floor of the room. The surfaces of the only toilet for the approximately eighteen persons who were then confined in the room was soiled with human waste. Although Parker’s confinement lasted less than a day and one-half, he also testified that when he was given an opportunity to shower, no clean towel was provided forcing him to dry off using his own clothes. Because smoking was permitted in the room, the residual tobacco smoke combined with strong human body odor made the room “smell” and caused him “gagging” and “coughing” and to feel generally “sick.” Also, as Parker testified, he was required to eat his meals on his mat which because of the crowded sleeping arrangements was located within about one foot of the toilet. Parker also complained about the temperature in the room as being as “cold as Alaska” and not being able to make a pay phone call because the phone was inoperable.

On cross-examination, Parker stated while in the court hold room he fell asleep but was awakened a couple of times by the noise of someone using the toilet and when another prisoner stepped on him. Parker agreed that he could have moved away from the toilet when someone was using it, that there were no disturbances in the room during his stay there, and that he did not formally complain about the conditions while at the jail.

John J. Dray, who has served as superintendent of the Holding Center since 1989, testified that overcrowding at the jail has been a problem since 1989. Dray explained that the maximum capacity of the jail was 541 in 1986 when the new addition to the jail, originally constructed in the 1930’s, was built. The jail had also been expanded in the 1950’s to provide additional housing for prisoners. This addition provided traditional individual cells adjacent to corridors or galleries, and are referred to as the “linears.” The 1986 addition provides individual cells for prisoners in a cluster or podular arrangement adjacent to common living areas or “day rooms” used by the prisoners for taking their meals seated at tables which may also be used for light recreational activity such as card or board games and watching television on permanently installed television monitors. The cells in the linear section measures approximately eight feet by nine feet or about seventy-two square feet per prisoner including a toilet and sink; in the podular areas, the cells measure roughly thirteen feet by seven feet or approximately ninety-one square feet, including space for a built in toilet and sink.

Dray described the areas of the Holding Center which had been converted to use for housing prisoners as a result of the increased intake of pre-trial detainees and persons convicted of state crimes awaiting removal to state correctional facilities. Dray described the seven rooms located on the ground floor of the Holding Center called court hold rooms or, as Dray stated, “bullpens.” These rooms range in size from eight feet by sixteen or eighteen feet to the largest room which measures approximately twenty-four by thirty feet. Each room has attached benches and a toilet. According to Dray, the court hold rooms were not designed for housing prisoners and, in total, now are used to house as many as fifty-six male prisoners. Prisoners are given individual mats to sleep and eat on during their stay in the court hold rooms while awaiting reassignment to less congested areas of the jail, or to an individual cell in either one of the newer podular units or an older cell in the linear areas. Dray estimated the time prisoners, who are all pretrial detainees, are housed in the court hold rooms to vary from as short a period as twenty-four hours to as long as one week with the typical stay of between seventy-two hours to five days. Although no statistics are compiled as to the number of prisoners and the lengths of time they are held in the court hold rooms or in any other area of the jail, Dray was confident that a period of one month of housing in a court hold room for any prisoner would be rare. Dray estimated that the space between the sleeping mats, which are either twenty-eight inches by fifty-four inches or sixty-two inches in size, given to the prisoners for sleeping on the floors of the court hold rooms, was about twelve inches. He also testified that the smaller court hold rooms are used to house five prisoners each allowing approximately twenty-nine square feet for each prisoner, and the largest one fifteen prisoners for about twenty-six square feet per prisoner.

Dray testified that additional makeshift housing for prisoners was created within the Holding Center by converting several areas, originally designed for other uses, for daily housing of prisoners. Some of these areas are referred to as “day rooms” or “dorms.” Other converted areas include the gymnasium, the atrium, the chapel and the resource room. On the first floor of the Holding Center (the Alpha level) in the linear section of the jail, two areas are so used. One area, the atrium, exclusively used to house female prisoners, is a light well or open space between the linear and podular sections of the jail. Another room at the end of the linear cell blocks, is a room originally designated intended to be a small inmate dining and day room. Both areas are irregular in shape but generally resemble a rectangular area truncated on an angle at one end. According to floor plans of the Holding Center prepared by the County Department of Public Works and submitted to the court by both parties as a post-hearing joint exhibit, the atrium, actually more like a corridor, measures approximately fifty-seven by fifteen feet or approximately 891 square feet. Plaintiffs’ Exhibit N indicates that, at the date of the hearing the atrium housed ten female prisoners. According to Exhibit J, this area may be used to house as many as fifteen prisoners. Superintendent Dray testified that all prisoners assigned to the atrium sleep on bunk beds. Prisoners are escorted by a guard upon request to a separate toilet room located some distance away as the atrium has no toilet within it. If all fifteen bunk beds were used, the area would provide fifty-nine square feet per prisoner.

The day room dorm on the Alpha level houses fifteen prisoners, ten on bunk beds and five on floor mats. Exhibit J. A small area within the room, approximately eleven by nine feet at the end of the room, has a low partition which provides some privacy while prisoners in the day room use the toilet which is located in that space. The floor space available in the day room for sleeping and eating by the inmates measures about seventeen by thirty-one feet or 532 square feet allowing approximately thirty-five feet per prisoner. The door to this linear day room is secured at all times. Stipulation dated September 9,1996.

The gymnasium is located on the second floor (Bravo level) of the Holding Center which, as noted, houses as many as fifty prisoners on mats laid on the floor, around half of the room’s perimeter an area approximately forty-three by fifty-eight feet. An area originally designated as a special projects room now referred to as a resource room, has been also converted into another dorm is also located in this level. This irregular shaped room provides about 594 square feet, allowing about fifty-nine square feet for each of the ten inmates housed in it, Exhibit N, who sleep on the bunk beds in this room. Fifteen inmates are similarly housed in another dorm or day room on this level, which was originally designated also as an inmate dining and day room. This dorm provides approximately 655 square feet, forty-three square feet for each prisoner, and is located adjacent to the linear gallery of cells on this level. A third area on Bravo level, designed for conducting religious services, referred to as the chapel, is an open area measuring approximately twenty feet by thirty feet or 600 square feet, allowing forty square feet for each of the fifteen prisoners who are assigned to sleep on floor mats in that area.

While not entirely clear from the Joint Exhibit floor plans, prisoners in the gymnasium, chapel and resource room all share two toilets in separate lavatory rooms, located within one hundred feet of the chapel and resource room, which are accessed by prisoners on an escorted basis. Prisoners in the atrium use a separate toilet room. According to a Joint Stipulation dated September 26,1996, doors to the resource room, gymnasium, and chapel are locked at all times unless a guard is present to supervise and authorize movement of a prisoner. The door to the atrium is not locked except during general facility lock-down periods and when the guard assigned to this area is not present.

Temporary housing for prisoners similar to the Bravo day room or dorm is provided on the third floor of the Holding Center’s linear section, or Charlie level. This room has dimensions, toilet facilities and prisoner occupancy identical to the Bravo day room and also houses fifteen prisoners, ten in bunk beds and five on mats. As a linear section day room, prisoners housed in it are locked in at all times.

On the fifth floor of the Holding Center (Echo level) at issue are two similar areas used for dorm housing. Both rooms are converted exercise areas, each measuring approximately nineteen feet by fifteen and one-half feet or approximately 238 square feet. Each houses as many as fifteen prisoners, ten on bunk beds, five on mats, providing approximately sixteen feet per prisoner. This latter area has access to a toilet facility in an adjacent single prisoner cell which was made available by removing the wall between the two rooms. As day rooms located in the podular section, all are locked down on the same schedule as individual cells — 11:30 P.M. — 5:30 A.M.; 6:30 — 7:40 A.M.; 12N— 1:00 P.M.; 3:00 P.M. — 3:40 P.M., or about eight hours each day.

On the sixth floor of the Holding Center, the Foxtrot and Mezzanine levels located in the new podular section of the jail, one room at one end of the gallery (Foxtrot South Day Room) provides housing for ten inmates (Exhibit N) in approximately 430 square feet or forty-three feet per prisoner. A single toilet area is located at one end of the room behind a low privacy wall. Two other rooms on this level, both originally designated for exercise, one on a lower level and one on an upper level, each provide approximately 238 square feet and are used as a dorm room for ten prisoners or twenty-four square feet, with five assigned to bunk beds and five to floor mats.

On the seventh, or Golf floor level, in the podular section, a converted area like that described in connection with the fifth (Echo) floor provides a housing arrangement similar to the Foxtrot South day room described above.

By comparison, the regulations promulgated by the Commission require a sleeping area of a minimum of sixty square feet per inmate confined in a single cell with one bed and mattress, one functioning toilet and sink. For inmates assigned to multiple occupancy units, limited to a maximum of sixty inmates, the regulations require fifty square feet per inmate for sleeping space, one toilet, shower and sink for each eight inmates and day room space adjacent to the sleeping area. Exhibit D.

The prisoners also are required to eat their meals in these rooms and prisoners in the day rooms adjacent to the linear sections of the jail — the Alpha, Bravo and Charlie levels — are in a locked down or secure mode at all times. Stipulation dated September 11, 1996.

Although Dray had advised the Commission of the necessity of using these areas for housing prisoners, Dray was not certain whether the Commission had granted formal permission to do so in a variance from Commission standards for housing prisoners. Dray stated that both the court hold and the day-rooms were not suitable for permanent housing and that he would not request such permission from the Commission as to these areas. According to Exhibit L2, a letter dated June 13, 1995 requesting additional variances for these areas from Superintendent Dray to the Commission, sixty prisoners were then housed in nine day rooms, as described, but because of an increase in the number of “commitments” or prisoner intake obligations imposed on the Holding Center which caused the Holding Center to be “severely overcrowded” permission to house an additional thirty-three prisoners in these day rooms was sought by Dray. In his request, Dray specifically informed the commission that these thirty-three prisoners “will have to sleep on mattresses on the floor as no beds are available.” As to the court hold rooms, the June, 1995 request informed the Commission that as many as seventy-three prisoners have been held in these rooms which Dray referred to as “bullpen[s]” explaining to the Commission that “[t]hey [the prisoners] are packed in” in these areas for seventy-two hours to one week. Plaintiffs Exhibit L2 at 2. Although at the hearing Dray was of the belief that the Commission had granted a variance for this increased level of housing in the day rooms, in a post-hearing stipulation dated August 2, 1996, Dray stated that while the Commission was “aware” of the June, 1995 request, it had, to date, not granted the requested variance.

In his testimony, Dray described the general conditions in the court hold rooms as “inhumane,” a term which he said he had also applied to the same areas in the Holding Center a year ago. When asked to explain the basis for his opinion, Dray responded that he has “trouble with people eating, sleeping, and defecating in the same area.” Dray maintained, however, that both the court hold rooms and the day rooms or dorms nevertheless complied with state and local fire safety requirements, and that the prisoners were given the same shower and recreational program opportunities as those individually housed in the linear and podular cell areas of the jail. Dray stated that unlike the court hold rooms, prisoners assigned to the gymnasium for housing actually “liked” being in that area. He also testified that while no staff provided cleaning service is provided for the court hold rooms or the day rooms, prisoners in these areas are given mops and buckets of cleaning solution with which to clean the floors of the rooms. Dray also stated that in the case of the court hold rooms the prisoners need only request immediate assistance for cleaning equipment in the event that a prisoner gets sick or may vomit on the floor of the room and cleaning equipment will be provided.

Dray further testified that while the current overcrowding at the Holding Center places additional stress on the guards as well as prisoners, that the level of security within the jail has remained adequate. Dray agreed that it is generally true that such overcrowding carries the potential for increased occurrences of altercations and violence among prisoners but maintained that the frequency of such incidents at the Holding Center has remained low. No specifics were provided by the parties regarding the frequency of assaults and fights among prisoners at the Holding Center. Dray further explained that the high costs associated with transporting and housing fees for prisoners which would be incurred if prisoners were sent from the Holding Center to other jail facilities within the state made it too expensive for the county to reduce the prisoner population at the Holding Center by arranging for such temporary housing elsewhere, which even if implemented, would also increase the logistical difficulty of bringing prisoners to scheduled court appearances. Therefore, as Dray testified, it is more cost effective for the eounty to pay for the additional overtime for the existing guards needed at the Holding Center to provide adequate security for the recent increases in the number of prisoners housed in the Holding Center under the described conditions.

Dray agreed that because of budget limitations on hiring more staff and the higher level of intake to the Holding Center, there could be delays in classifying prisoners immediately following their arrival at the jail based upon their physical and mental conditions and behavioral problems. This delay results in some prisoners who should be placed in more secure housing being housed with other pretrial detainees in the court hold rooms for periods longer than appropriate until these prisoners are properly classified and reassigned to a housing area within the jail where special medical or psychiatric attention can be given. Dray agreed that because of the effects of overcrowding and budget limitations that it was difficult to provide prisoners clean laundry and blankets as frequently as he or the prisoners would prefer and that similar factors made it likely that prisoners assigned to the court hold rooms may not be able to take showers on schedule.

Joshua Rachuna testified that during his stay as a pre-trial detainee at the jail between July 28, 1996 and August 15, 1996 he was held in one of the court hold rooms for ten days and while there was assaulted by another larger prisoner who demanded Ra-chuna’s food. Rachuna testified as a result of this confrontation that his nose was broken but that no action was taken by the guards to whom the assault was reported. Rachuna described the conditions in the court hold rooms as “unsanitary” and stated that the room “stank” from the odor of “rotting garbage.” Rachuna said he became “nauseated” as a result of the bad odors and the congested conditions which required someone to sleep near the only toilet in the room which was used while prisoners were sleeping and eating. Rachuna also testified that the prisoners did attempt to clean the floor but that this was accomplished only every other day. Other than Rachuna’s undocumented assault. Plaintiffs offered no other evidence of any major breakdown in security affecting the well being of prisoners as a result of the overcrowded conditions at the Holding Center.

Dr. Joseph Liebergall, a licensed psychologist for the past twenty-six years and Executive Director of Forensic Services at the Erie County Medical Center, testified. Dr. Lie-bergall provides mental health services for the local courts and mental health examinations and treatment to prisoners at the Holding Center, and has done so in over a thousand cases. Dr. Liebergall described the living conditions for prisoners in the court hold rooms at the jail as “toxic” and “unpleasant” as prisoners are forced to eat and sleep on the floors among strangers with no outside ventilation. According to Dr. Lieber-gall, other areas of the jail are “cleaner” and “less crowded” and thus “less degrading.” Liebergall stated that the difference between the housing conditions for prisoners in the court hold rooms and other areas of the jail is like “night and day” and that the living conditions in the court hold rooms are so poor that prisoners held in the rooms will feign suicidal behavior in order to effect a transfer to one of the mental health observation areas within the jail in order to avoid further confinement in the court hold rooms even though such transfer means that the prisoner may be required to remain nude while undergoing an extended period of observation and evaluation. Dr. Liebergall estimated that, of the 2100 referrals for mental health evaluation within the jail to his unit, as many as 20 per cent of the prisoners appear to him to claim to be suicidal “because of the conditions” in the court hold rooms. Lieber-gall estimated that over the past year, six to ten prisoners per week sought transfer from the court hold area to the suicide observation area of the jail to get out of these rooms.

Dr. Liebergall also testified that psychological research relating to confinement of prisoners indicates that there is a positive relationship between the ratio of the square footage of allocated living space per prisoner in a jail and the frequency of prisoner misbehavior as greater degrees of physical confinement correlate with heightened levels of prisoner anger and feelings of being victimized for relatively minor offenses. Dr. Liebergall stated that the constant dealing with prisoners in overcrowded conditions and “squalor” causes guards to become “callous” and indifferent to such conditions. According to Dr. Liebergall, the conditions for prisoners in the court hold rooms of the jail were so degrading that if the local SPCA maintained such conditions for the animals in its care, “it would be cited.” Dr. Liebergall was not cross-examined by Defendants.

Richard Watroba testified that he spent three days in court hold room # 5 at the Holding Center while awaiting sentence on a violation of state probation charge. Watroba described the living conditions in the court hold room as “rough” and “real bad,” and that he “wouldn’t want a dog to live there.” Watroba stated that, in court hold room # 5, he was forced to live with twelve persons in an area measuring about ten feet by ten feet. After being moved to court hold # 7, Watroba was forced to live with twenty other persons with one toilet which resulted that the prisoner who was required to sleep closest to the toilet being occasionally urinated upon by another prisoner attempting to use the toilet. Further, according to Watroba, who was a very credible witness, prisoners frequently got sick from drug withdrawals while in the court hold rooms with some vomiting on the floor, and that prisoners were constantly being stepped upon during their attempts to sleep on the floor mats because of the crowded living arrangements. When a prisoner got sick, cleaning supplies were provided to the other prisoners to effect the clean up. Watroba, who also worked in the jail laundry, also stated that there were insufficient clean towels available to prisoners in the court holds because of inadequate supplies and that as a result some prisoners actually felt cleaner not taking showers rather to have to dry off using their soiled clothing from living on the dirty floors of the court hold rooms. Watroba stated that prisoners assigned to the regular cell areas within the jail got “better stuff.” Watroba further testified that because of other “stinky” and “sick” prisoners constantly “yelling for drugs” and vomiting on the floor almost daily, other prisoners, like himself, “didn’t want to sleep,” while housed in the court hold rooms.

Anthony Lee, who had been convicted of armed robbery and was awaiting transfer to a state penal facility, testified that he recently spent two weeks in one of the court hold rooms at the jail. Lee testified that he was also required to sleep on the floor on a mat and that showers were not regularly provided or made available so early in the morning that many prisoners were still asleep making it difficult to wake up and shower. Lee also described the room as so full of “bugs” that prisoners constantly became sick. Lee stated that the odor in the “bull pens” was so bad that “it was like a dead body” and that with the room temperature being so cold he “could not sleep but only tossed and turned.” Lee was subsequently transferred to a cell in one of the podular areas which he described as more clean and comfortable.” Lee further testified that while in the podular unit a jail guard threatened him with being sent back to the “bull pen” if he failed to comply with an order.

Deputy Sheriff Richard Canazzi, who is one of the guards regularly assigned to the court hold rooms, testified that all prisoners in the court hold rooms are given daily the chance to shower and that, while clean towels are not always available thereby requiring the prisoners to use bed sheets and t-shirts to dry off, no prisoner is forced to use their clothes for drying. Canazzi also stated that the area experienced only a “few” fights among prisoners in a given month and that the garbage bag in the rooms is removed and replaced twice each day. Further, the deputy-explained that if the toilets in the rooms should for any reason become plugged, upon this problem being brought to the attention of the guards by the prisoners, the condition is promptly fixed. He also stated that the toilets in the court hold rooms are cleaned daily. Canazzi could not recall receiving any complaints that prisoners were being urinated upon while sleeping in the court hold rooms. Canazzi also estimated that a new prisoner would stay in the court hold rooms for one to five nights as an average, with about ten percent or less staying two-three weeks, and only rarely for one month or longer. Canazzi also explained that as a prisoner goes to court, he will be given a fresh change of clothes and upon returning a fresh bed sheet and a pillow case, however, pillows are not assigned.

Mr. Don Colpoys testified that he has served as recreation director for the Holding Center for ten years and that the prisoners in the court hold rooms like the prisoners throughout the jail are given the opportunity for scheduled recreational activity on a regular basis in either of two areas within the jail, one on the seventh floor and the other on the roof. These areas have exercise equipment and a volley ball court. In cold weather, prisoners are supplied with jackets although the number of prisoners using the outdoor recreational area during the winter months is much lower than the warmer months. The Holding Center’s gymnasium, Colpoys explained, is not presently available for recreation as it is presently used, as noted, for prisoner housing.

DISCUSSION

For a court to issue a preliminary injunction pursuant to Fed.R.Civ.P. 65, the moving party must demonstrate, by a preponderance of the evidence, (1) irreparable harm should the injunction not be granted, and (2) either (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking injunc-tive relief. Spear, Leeds & Kellogg v. Central Life Assurance Co., 85 F.3d 21, 25 (2d Cir.1996); Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir.1991).

In an application seeking to change prison conditions, “ ‘appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief,’ particularly when it comes to requesting a state’s administration of its own facilities, including it schools and prisons.” Dean v. Coughlin, 804 F.2d 207, 213 (2d Cir.1986) (quoting Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598, 608, 46 L.Ed.2d 561 (1976)). Therefore, out of deference to the state’s judgment on how to administer its prisons, an application of the less rigorous standard is inappropriate. Davidson v. Scully, 914 F.Supp. 1011, 1014 (S.D.N.Y.1996). Thus, before the court can consider granting an injunction, the plaintiffs must demonstrate irreparable harm and a likelihood of success on the merits. It is well settled that an allegation of a violation of a constitutional right under the Eight Amendment challenging conditions of confinement in a prison creates a presumption of irreparable harm potentially justifying equitable relief. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir.1996); Covino v. Patrissi 967 F.2d 73, 77 (2d Cir.1992); Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Pinckney v. Board of Education, 920 F.Supp. 393, 400 (E.D.N.Y.1996).

In this case, Plaintiffs, on behalf of themselves and the certified class claim violations of both the Eighth Amendment prohibition against cruel and unusual punishments and their right, as unconvicted persons, to be free of any punishment without due process of law, guaranteed by the Fourteenth Amendment, in the form of a conviction and sentence by a court. If, therefore, the court finds that plaintiffs have met their burden for preliminary relief as to any of the challenged conditions at the Erie County Holding Center on the alleged Eighth Amendment claim it will have also found a viable claim under the Fourteenth Amendment due process clause. If the court were to find an insufficient basis for the Eighth Amendment claim it would nevertheless be required to determine whether the conditions at issue constituted a punishment as to unconvicted detainees. Thus, while the ultimate issues in this case are closely related they are not identical.

The Eighth Amendment provides in relevant part that “cruel and unusual punishments [shall not be] inflicted.” The Supreme Court has held that the prohibition is to be interpreted in a “flexible and dynamic manner” and that although a particular punishment to be prohibited need not be considered as “physically barbarous” it must nevertheless “involve the unnecessary and wanton infliction of pain” or be “grossly disproportionate” to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 345-46, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981) (citations and internal quotation marks omitted). The court considers as unnecessary and wanton those inflictions of pain which are “totally without penological justification.” Rhodes, supra, at 346, 101 S.Ct. at 2399 (citing Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929-30, 49 L.Ed.2d 859 (1976)). No “static test” exists for the determination of whether a challenged punishment is cruel and unusual, rather, the courts “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Rhodes, supra, 452 U.S. at 346, 101 S.Ct. at 2399 (quoting Trap v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958) (plurality opinion)).

However, the Eighth Amendment does not “mandate comfortable prisons,” Rhodes 452 U.S. at 349, 101 S.Ct. at 2400, and “only those deprivations denying ‘the minimal civilized measure of life’s necessities,’ are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson v. Setter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (quoting Rhodes v. Chapman, 452 U.S. at 347, 101 S.Ct. at 2399-2400). Thus, courts “must proceed cautiously in making an Eighth Amendment judgment because, unless reversed by the Court, ‘[a] decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment’ ” and thus “ ‘Revisions cannot be made in the light of further experience.’ ” Rhodes, supra, at 351, 101 S.Ct. at 2401 (quoting Gregg v. Georgia, supra, 428 U.S. at 176, 96 S.Ct. at 2926-27).

Further, “[i]n assessing claims that conditions of confinement are cruel and unusual, courts must bear in mind that their inquiries ‘spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.’” Rhodes, supra, 452 U.S. at 351, 101 S.Ct. at 2401 (quoting Bell v. Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874). Applying these criteria, the Court in Rhodes found no violation of the Eighth Amendment where the challenged confinement condition was that two prisoners were forced to share, as a result of serious overcrowding, a single cell provided sixty-three square feet of living space in a correctional facility that otherwise provided adequate living conditions.

In Wilson, supra, the Supreme Court held that in addition to showing a serious violation of minimum standards of daily living requirements, an objective standard, an Eighth Amendment claimant must also establish that the prison officials acted with the knowledge and intent, a subjective requirement, that the challenged condition, not imposed as part of the sentence of punishment, inflicted pain on a prisoner so as to constitute a wanton infliction of pain. Wilson, supra, 501 U.S. at 300-301, 111 S.Ct. at 2325-2326. In Wilson, the Court specifically held that in order for responsible officials to be found to have been guilty of wanton infliction of pain through the maintaining of inadequate conditions of confinement, the officials must be shown to have acted with “deliberate indifference” to the conditions claimed to be “inhumane.” Wilson, at 303, 111 S.Ct. at 2326-2327.

Further, in scrutinizing the challenged condition, a court is “under an obligation to examine the actual effect of challenged conditions upon the well-being of the prisoners.” Rhodes, 452 U.S. at 367, 101 S.Ct. at 2410 (concurring opinion of Brennan, Blackman and Stevens, JJ.) (emphasis in original). “In determining when prison conditions pass beyond legitimate punishment and become cruel and unusual, the ‘touchstone is the effect upon the imprisoned.’” Id. at 364, 101 S.Ct. at 2408 (quoting Laaman v. Helgemoe, 437 F.Supp. 269, 323 (D.C.N.H.1977)). However, in assessing whether the responsible officials may be found to have acted with the required subjective element of wantonness, the effect upon the prisoner is not controlling, rather, the question “depends upon the constraints facing the official” Wilson, supra, 501 U.S. at 303, 111 S.Ct. at 2326.

The Supreme Court recently held that to find that a prison official acted with deliberate indifference to a challenged condition of confinement under the Eighth Amendment, it must be shown that the official had knowledge of and disregarded “an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1979, 128 L.Ed.2d 811 (1994). While financial constraints may not in themselves immunize an official from an Eighth Amendment violation, Albro v. Onondaga County, 681 F.Supp. 991, 996 (N.D.N.Y.1988) (“economic factors may not be cited as basis for continued imposition of hardships and privations” upon prisoners), fiscal constraints beyond the control of responsible officials may be relevant to the issue of the intent required for a constitutional violation, if asserted as defense.- Wilson, supra, 501 U.S. at 301-302, 111 S.Ct. at 2325-2326.

Under the Due Process Clause of the Fourteenth Amendment, a pre-trial detainee held in state custody has no right to be “free from discomfort” but does enjoy the right to be free from being subjected to conditions of confinement while awaiting trial which “amount to punishment,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979), as “[ujnder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Id. In assessing whether a challenged nature or condition can be considered as inflicting punishment the Court in Wolfish stated

Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to “punishment.” Conversely, if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.

Wolfish, supra, at 539, 99 S.Ct. at 1874.

In Wolfish, the Court, in rejecting the notion that due process included a “one-man, one-cell principle,” also pointed out that

... confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process clause as to whether those conditions amounted to punishment. ...

Wolfish, supra, at 542, 99 S.Ct. at 1875-76.

However, the Court found no federal due process violation where two pretrial detainees were locked in a cell, between 11 P.M. and 6:30 A.M. and during brief periods for the day for headcounts, having a total space of approximately seventy-five square feet with two bunk beds, an uncovered toilet and a wash basin, and where during the rest of the day they were allowed to move about their rooms and common areas.

In Wolfish, the detainees were nearly all released within a sixty day period. As the Court said, “[w]e simply do not believe tha