Case 2:06-cv-03229-RBS Document 1 Filed 07/24/2006 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE BOWERS; BRANDON BUCCI; :

DARIUS MCDOWELL; JAMES

:

WALKER, on behalf of themselves,

:

and all others similarly situated

:

Plaintiffs

:

v.

:

:

CITY OF PHILADELPHIA; LEON A. :

KING, II, individually and in his

:

official capacity as Commissioner,

:

Philadelphia Prisons; SYLVESTER :

JOHNSON, individually and in his

:

official capacity as Commissioner,

:

Philadelphia Police Department;

:

JOHN DOE and RICHARD

:

ROE, unknown Prison and Police

:

Officials and Officers, in their individual :

capacities,

:

Defendants

C.A. No.
CLASS ACTION Jury Trial Demanded

COMPLAINT

Introduction

1. This is a class action for injunctive and declaratory relief and for damages for the

named individual plaintiffs and the class they represent to secure relief from the pervasive and

chronic unconstitutional conditions of confinement that exist and which, absent judicial

intervention, will continue to persist at local police districts, the Police Administration Building

(“PAB”), and at intake units of the Philadelphia Prison System (“PPS”). Due to severe

overcrowding and the lack of adequate facilities in which to house inmates in the PPS, persons

who are arrested in Philadelphia and held in lieu of bail, post-preliminary arraignment, for

detention at PPS are held at police districts or the PAB for periods up to several days, and/or are

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held in the intake/admissions areas of the PPS for even longer periods of time. During this process, these inmates, nearly all of whom have only been charged with crimes and are presumed innocent, are held in dangerous, unsanitary, severely overcrowded, degrading, and cruel conditions of confinement. At the police districts, there is no access to counsel or family, and inmates are held in cells without beds and without access to showers and other necessary hygienic facilities. Thereafter, at the PPS, inmates are confined for days in holding cells before they receive medical screening. They have no access to counsel or family and are held in severely overcrowded conditions without beds or access to showers and other necessary hygienic facilities. It is not unusual for 25-30 persons to be confined, day after day, in cells of less than 175 square feet pending their transfer into general population. An increasing number of the plaintiff class are also denied their right to a timely preliminary hearing due to their inability to confer with counsel and the inability of the defendants to send them to court. In sum, the conditions are so harsh and degrading, and so dangerous to the health and safety of the inmates, as to constitute cruel and unusual punishment under the Eighth Amendment and a denial of liberty without due process of law under the Fourteenth Amendment.
Jurisdiction 2. This Court has federal question jurisdiction pursuant to 28 U.S.C. §§1331, 1343, 42 U.S.C.§§ 1983 and 1988, and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution. 3. This Court has supplemental jurisdiction pursuant to 28 U.S.C.§ 1367(a).
Parties 4. Plaintiffs Lee Bowers, Brandon Bucci, Darius McDowell, and James Walker are
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residents of the Commonwealth of Pennsylvania and are currently or were held in confinement, awaiting hearings or trials in police districts, the PAB, or in the intake/admissions areas of the PPS subject to the conditions of confinement that are alleged in this Complaint. The individual plaintiffs sue on behalf of themselves for damages that resulted from the practices and policies of the defendants, and they sue on behalf of themselves and on behalf of those who currently are or will in the future be subject to these unconstitutional conditions of confinement for injunctive and declaratory relief and for damages.
5. Defendant City of Philadelphia is a political subdivision of the Commonwealth of Pennsylvania and operates and funds the Philadelphia Police Department and the Philadelphia Prison System.
6. Defendant Leon A. King, II, is the Commissioner of the Philadelphia Prison System and is sued individually and in his official capacities.
7. Defendant Sylvester Johnson is the Commissioner of the Philadelphia Police Department and is sued individually and in his official capacities.
8. Defendants John Doe and Richard Roe are officials and officers of the Philadelphia Police Department and the Philadelphia Prison System who personally subjected the named plaintiffs to the conditions alleged in this Complaint.
9. At all relevant time, all defendants acted under color of state law. Factual Allegations
A. History of Unconstitutional Conditions at the Philadelphia Prisons 10. In two related civil rights actions, Jackson v. Hendrick, C.P. Philadelphia, February Term, 1971, No. 2437, and Harris v. City of Philadelphia, E.D. Pa., No. 82-1847, begun in 1971
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and 1982, respectively, state and federal courts ordered the Philadelphia Prison System to implement a series of measures to remedy conditions of confinement that violated the United States and Pennsylvania Constitutions. According to the findings of the three-judge Jackson court, which were sustained on appeal, and the allegations of the Harris Complaint, which supported a series of court-approved consent decrees, PPS inmates, the large majority of whom were awaiting trial, were subjected to unhealthy, unsafe, and degrading conditions of confinement due, in significant part, to the fact that the resources of the PPS, including housing, security staff, medical care, food, sanitation, and programming, were overwhelmed by the number of inmates in custody.
11. Between them, the Jackson and Harris courts mandated physical plant improvements, enhancements in medical care and sanitation, the construction of new jails and a courthouse to increase capacity and expedite dispositions, the adoption and implementation of physical and operational standards and policies and procedures affecting conditions of confinement, and the establishment of alternatives to incarceration, including diversion of inmates into drug treatment programs. The Harris Court also ordered a qualified moratorium on the admission of untried persons so long as the PPS population exceeded the inmate capacity, as determined by PPS.
12. The Harris litigation was terminated in 2000 with the entry of a final Settlement Agreement in which the City of Philadelphia agreed to fund for a period of two years the cost of independent consultants to monitor the PPS’s compliance with PPS Physical and Operational Standards and PPS Policies and Procedures governing all aspects of conditions of confinement. The City also agreed to implement specified physical improvements to the House of Correction
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on a prescribed schedule. At the time that the Harris litigation was terminated, the population of the PPS was approximately 7,000 inmates, and the Court’s approval of the parties’ settlement was qualified with the expression of concern that without judicial oversight, the population, which had nearly doubled over the life of the litigation, would continue to increase beyond the physical capacity of the PPS.
13. The Jackson litigation was terminated in 2001 following 30 years of court supervision that included repeated and specific findings of unconstitutional conditions, a progression of consent decrees, and the release of inmates.
14. In terminating Jackson, the City of Philadelphia agreed that upon the opening of a new Women’s Detention Facility and the Cambria Correctional Center, and as long as the population did not exceed 950 women and 6850 men (a total of 7800), the City would hold the population in the dormitories at Detention Center (“DC”) to 192, remove all inmates from the dayrooms and annex areas at DC, eliminate all triple celling, and would house no more than four inmates per multi-occupancy room at the Curran Fromhold Correctional Facility (“CFCF”).
15. In the five years following the termination of Harris and Jackson, the population of the PPS has steadily increased, and the increase in the number of inmates has far exceeded the additional housing capacity provided by a new women’s facility, the Riverview Correctional Facility. In June, 2006, the population reached 8,900 inmates, over 1,000 beyond the rated capacity of the PPS.
16. To house the current population, the prison defendants have instituted triple-celling in the House of Corrections, placed over 250 inmates in dormitory areas at the DC that are meant to hold no more than 192, and resorted to housing inmates in common spaces and recreation
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areas in other facilities which are now crowded well beyond their capacity. 17. Further, because the defendants have not provided a sufficient number of correctional
officers and other staff, they have resorted to “lock-downs” and “restricted movements” at each of the facilities on a regular basis. These practices have made conditions of confinement even more intolerable, as they deprive inmates of recreation, movement, and services. At the same time, these practices increase dangers to inmates and staff, including correctional officers, due to the significant increase in tension and disputes that result when inmates are deprived of movement, recreation, and exercise.
B. The Current Overcrowding Crisis 18. In 2006, the population at the PPS has ranged up to 8,900 inmates. Since 2000, the population has increased by 25%, without a commensurate increase in physical capacity, staffing, or other resources essential to constitutional conditions of confinement. 19. Based on the factors that contribute to the population size at PPS, the population will continue to expand at this rate in the coming months and years. Indeed, as an historical matter, yearly population peaks during the late summer months of August and September. 20. Even with triple-celling, the overuse of dormitory space at the DC, the use of common and recreation areas and restricted movements and lock-downs of the general population, the City has been unable to provide even deficient housing for all persons committed to the prisons. 21. In early 2006, as the PPS literally ran out of housing space, the PPS instituted a policy and practice of holding inmates at the intake/admissions area of the DC, the Philadelphia Industrial Correctional Center (“PICC”), and/or CFCF until a cell was available in medical
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quarantine or in the general population. 22. Pursuant to this official practice and policy, inmates have been held at these areas
well beyond the outside limits mandated by PPS Policies and Procedures and for periods up to six days, in conditions that are dangerous, degrading, threatening to life, safety and health, and which are in violation of the Sixth, Eighth and Fourteenth Amendments.
23. Specifically, the following conditions have been prevalent during the last several months:
(a) At the intake/admissions areas at DC and PICC, there is no admissions process in effect; rather, these areas (holding cells without beds, adequate toilets, access to showers, access to visits or to counsel) have been used as staging areas before transfer to the official intake/admissions unit at CFCF. Inmates held at DC or PICC awaiting intake processing, are provided no services, are not medically screened, and can sleep, if at all, on concrete floors. Defendant Commissioner of Corrections has disclaimed the use of these areas in the future, but there is no legal bar to the re-opening of these facilities.
(b) At the official intake/admissions area at CFCF, similar conditions prevail. In this area, there are several holding cells, with metal benches, but no beds and a single toilet/sink in each holding cell.
( c) The holding cells at CFCF were built and are operated to permit processing of new inmates into the system over a period of no more than three days. During this time, new inmates should be detained with no more than 5-10 others, as they are interviewed, screened by medical personnel, and given initial classifications. They should then placed in a medical quarantine until cleared by medical personnel for general population housing.
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(d) Due to the severe overcrowding, the capacity of the holding cells at CFCF is regularly exceeded, and up to 25-35 men are placed in these cells with no place to sit, sleep, or use toilet facilities with any privacy. Moreover, because of the high number of inmates, medical screening is delayed for up to a week and inmates with communicable diseases are in close proximity with others for up to 100 hours. At the same time, inmates with immediate medical needs (e.g., persons with diabetes and those in need of prescription medications) are not always able to receive timely issuance of medication, food, and drinks. Due to the long periods of confinement in areas with no room to move, exercise, shower, or even to brush one’s teeth, friction is a constant and fights inevitable. The more intense the overcrowding, the greater the potential for violence.
24. Due to the dangerous and degrading conditions in the PPS intake/admissions areas, as set forth supra, the defendant Commissioner of Corrections has instituted a policy of not accepting new inmates from the Police Department, post-preliminary arraignment, whenever the population exceeds 8,750.
25. As a result, persons who are unable to post bail after their preliminary arraignment have been held at police districts or the PAB under the authority of defendant Police Commissioner, for days, pending admission to the PPS. During this time period, they are provided emergency medical care only; they have no access to phones, family, or legal counsel; they are confined in holding cells with no showers, adequate toilet facilities or places to sleep; and they are subjected to random acts of violence by other inmates. These holding cells were not designed nor are they equipped or staffed to hold persons post-preliminary arraignment for the periods of time that plaintiff class members have been and will be held in the future, in the
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absence of judicial relief. 26. In a number of cases, persons held at the Police Department and thereafter at PPS
intake/admissions, under the authority of the defendant Police Commissioner, are unable to consult with legal counsel prior to the date of their preliminary hearings in state criminal proceedings. As a result, they are denied their right to counsel, to a timely preliminary hearing and, in cases where the Commonwealth would be unable to present probable cause to hold them for trial, to be discharged from custody. Indeed, delays in processing have been so acute, that inmates scheduled for preliminary hearings in their criminal case are not even transported to court.
27. The current crisis cannot be met by measures that simply shift the overcrowded conditions from holding cells at the PPS to holding cells at the Police Department. The holding facilities at the Police Department are, if anything, even more degrading, dangerous, and inadequate with respect to the provision and delivery of necessary services and protections to incarcerated persons. As of July 20, 2006, the PPS was not accepting new inmates and over 300 persons were awaiting admission to PPS, but are being held for days at police districts.
Allegations as to the Individual Plaintiffs 28. Plaintiff Lee Bowers was arrested on June 23, 2006 on a bench warrant from Family Court and immediately taken to CFCF, intake/admissions. He was held in this area as a detainee until his release from custody by court order on June 26, 2006, in conditions that were degrading, dangerous, and pervasively unconstitutional. He was in a holding cell with 25-30 other inmates, with a single toilet, no beds, no showers, no tooth brush or other personal hygiene materials, no access to medical care or medical screening, and no access to counsel or to phone calls.
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29. As a result of these conditions, plaintiff Bowers was forced to go 72 hours without sleep, and because of the overcrowded conditions had to fold his body under a steel bench, causing a blood clot in his leg. Upon release from CFCF, plaintiff Bowers was hospitalized for three days for the blood clot condition and will need continued medical care to treat this life threatening condition.
30. Plaintiff Brandon Bucci was held at CFCF from June 21-27, 2006 in the intake/admissions area. He was held as a detainee in this area until his release on bail on June 26, 2006, in conditions that were degrading, dangerous, and pervasively unconstitutional. He was in a holding cell with 25-30 other inmates, with a single toilet, no beds, no showers, no tooth brush or other personal hygiene materials, no access to medical care or medical screening, and no access to counsel or to phone calls.
31. Plaintiff Darius McDowell was arraigned on June 14, 2006 and held at the police district for two days. Upon arrival at CFCF on June 14, 2006 he was held in the intake/admissions area until June 20, 2006. He was held as a detainee in this area until his release on bail on June 21, 2006, in conditions that were degrading, dangerous, and pervasively unconstitutional. He was in a holding cell with 25-30 other inmates, with a single toilet, no beds, no showers, no tooth brush or other personal hygiene materials, no access to medical care or medical screening, and no access to counsel or to phone calls.
32. Plaintiff James Walker was held post-preliminary arraignment at the Police Department and is currently in an intake/admissions unit at PPS.
Class Action Allegations 33. Plaintiffs seek to represent a class of all persons on claims of declaratory and
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injunctive relief and for damages, who have been or will in the future be held in custody postpreliminary arraignment at the Philadelphia Police Department or PPS and who have been or will be subjected to the policies and practices alleged in this Complaint. The class is so numerous that joinder of their claims is impracticable.
34. Plaintiffs’ claims are typical of the claims of the class members, in that each member of the class has suffered the same harms as a result of the defendants’ acts and omissions. Plaintiffs will be adequate representatives of the class, in that they are represented by competent and skilled counsel whose interests are fully aligned with the interests of the class.
35. There are questions of law and fact common to the class, and specifically whether defendants’ practices and procedures, which force confinement of all members of the plaintiff class in the same overcrowded, unsanitary and dangerous conditions, violate the Eighth and Fourteenth Amendments to the U.S. Constitution. The policies and practices of the defendants and the resulting conditions of confinement are the same for all members of the plaintiff class.
36. The questions of fact and law that are common to the members of the class predominate over any questions affecting any individual members of the class. A class action is superior to other available methods for the fair and efficient adjudication of this controversy.
37. The defendants have acted, or refused to act, on grounds generally applicable to the class. Final injunctive and declaratory relief is appropriate with respect to all of the members of the class.
38. This action may properly be maintained under Fed.R.Civ.P. 23 (a), and (b)(1)(2) and (3).
Count I–Federal Constitutional Violations
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39. Plaintiffs incorporate by reference paragraphs 1-38, as if fully set forth in this paragraph.
40. The practices, policies, acts and omissions alleged in this Complaint are in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution in that they deprive plaintiffs and members of the plaintiff class their rights to be free from deprivations of liberty without due process of law, to access to counsel, to a speedy trial, to be free from cruel and unusual punishment, and to the provision of necessary medical care. If appropriate declaratory and injunctive relief that is necessary to correct the unconstitutional conditions of confinement is not granted, the harms suffered will be irreparable, as the unconstitutional policies, practices and conditions will continue to exist for the foreseeable future.
Count II-State Law Claims 41. Plaintiffs incorporate paragraphs 1-40 by reference as if fully set forth in this paragraph. 42. The policies, practices, and conditions alleged in this Complaint deprive plaintiffs of their rights under the Pennsylvania Constitution and the laws of the Commonwealth of Pennsylvania to be free of deprivations of liberty without due process of law, intentional infliction of emotional distress, negligence, and recklessness.
Relief Wherefore, plaintiffs request the following relief: 1. For the named plaintiffs and members of the plaintiff class, compensatory and punitive damages for the injuries and damages caused by the acts and omissions of the defendants; 2. For the named plaintiffs and the members of the plaintiff class, a declaratory judgment
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that the practices, policies, and conditions alleged in this Complaint are unconstitutional; 3. For the named plaintiffs and the plaintiff class, a permanent injunction prohibiting the
defendants from the implementation or application of the policies and practices alleged in this Complaint, and specifically an Order requiring the defendants to either provide the plaintiff class with constitutionally acceptable conditions of confinement, medical care, screening, and medication, access to legal counsel, placement in habitable cells, with adequate showers, toilets and other necessary personal hygiene, and protection from assaults or other dangers to their life or safety, or discharge the members of the class from custody.
4. Reasonable attorney’s fees and costs; 5. All other appropriate relief.
David Rudovsky, Esq. I.D. No. 15168 Jonathan H. Feinberg, Esq. I.D. No. 88227 KAIRYS, RUDOVSKY, MESSING & FEINBERG, LLP 718 Arch Street, Suite 501S Philadelphia, Pa. 19106 (215) 925-4400
Angus Love, Esq. I.D. No. 22392 Su Ming Yeh, Esq. I.D. No. 95111 Institutional Law Project 718 Arch Street, Suite 304S Philadelphia, PA 19106 Counsel for Plaintiffs
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 Case 2:06-cv-03229-RBS Document 94 Filed 01/25/2007 Page 1 of 76

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE BOWERS, et al.

:

:

:

v.

:

:

:

CITY OF PHILADELPHIA, et al.

:

CIVIL ACTION NO. 06-CV-3229

SURRICK, J.

JANUARY 25, 2007

MEMORANDUM & ORDER

In July 2006, Plaintiffs Lee Bowers, Brandon Bucci, Darius McDowell, and James

Walker filed a class action Complaint against the City of Philadelphia and City officials, seeking

injunctive and declaratory relief and damages. The Complaint alleges that the conditions of confinement at local Police Districts1, the Police Administration Building (“PAB”) and at the

intake unit of the Philadelphia Prison System (“PPS”) are “harsh and degrading, and so

dangerous to the health and safety of the inmates, as to constitute cruel and unusual punishment

under the Eighth Amendment and a denial of liberty without due process of law under the

Fourteenth Amendment.” (Doc. No. 1 at 2.) Presently before the Court is Plaintiffs’ Motion For

Preliminary Injunction (Doc. No. 2). An evidentiary hearing was held October 3, 2006 through

October 6, 2006. In addition, on December 12, 2006, we toured the intake unit at the Curran

Fromhold Correctional Facility (“CFCF”), the holding cells at the PAB, and the holding cells in

the 9th Police District. For the reasons that follow, Plaintiffs’ request for declaratory and

injunctive relief will be granted.

1 The parties have referred to the Police Districts as CCTV locations.

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I. BACKGROUND AND PROCEDURAL HISTORY This action commenced on July 24, 2006 with the filing of Plaintiffs’ Complaint against
Defendants City of Philadelphia, Leon A. King II, individually and in his official capacity as Commissioner of the Philadelphia Prisons, Sylvester Johnson, individually and in his official capacity as Commissioner of the Philadelphia Police Department, and John Doe and Richard Roe, unknown Prison and Police Officials and Officers, in their individual capacities. (Doc. No. 1.)2 At the same time, Plaintiffs filed the Motion for Preliminary Injunction seeking relief in the form of a judgment, declaring that the practices, policies, and conditions as alleged in the Complaint are unconstitutional, and an injunction prohibiting the implementation of such unconstitutional conditions. Plaintiffs request that Defendants be required to “either provide the plaintiff class with constitutionally acceptable conditions of confinement, medical care, screening, and medication, access to legal counsel, placement in habitable cells, with adequate showers, toilets and other necessary personal hygiene, and protection from assaults or other dangers to their life or safety, or discharge the members of the class from custody.” (Doc. No. 1 at 12-13.)
On August 17, 2006, District Attorney Lynne Abraham filed a Motion to Intervene. (Doc. No. 9.) The Motion was granted by Memorandum and Order dated September 8, 2006. (Doc. No. 20.) Plaintiffs filed a Motion For Leave to Amend the Complaint on September 6, 2006. (Doc. No.19.) This Motion was granted on September 13, 2006. (Doc. No. 33.) Plaintiffs’ Amended Complaint added nine named Plaintiffs to represent the interests of the
2 This case was originally assigned to the Honorable Legrome M. Davis. It was reassigned to this Judge on July 31, 2006 after Judge Davis recused. (Doc. No. 5.)
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plaintiff class.3 (Doc. No. 34.) On September 12, 2006, Plaintiffs filed a Motion for Class Certification. (Doc. No. 29.) On September 28, 2006, we certified a class for purposes of declaratory and injunctive relief consisting of:
All persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs’ Complaint. (Doc. No. 51 at 15.) On September 26, 2006, Defendants and District Attorney Abraham filed their Joint Motion to Dismiss under Rule 12(b)(1) and Rule 12(b)(6) or for Summary Judgment (Doc. No. 44), arguing first, that the Court lacks subject matter jurisdiction to adjudicate the injunctive relief claims, because Plaintiffs are no longer incarcerated in the short-term detention facilities at issue in the Complaint, and second, that the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq. (“PLRA”), precludes any civil action by these incarcerated Plaintiffs because of their failure to exhaust their administrative remedies.4 (Doc. No. 44 at 1-2.) Based upon the evidence and testimony presented at the evidentiary hearing, the tour on December 12, 2006, our assessment of the credibility of the witnesses, and after a thorough review of the applicable law, we make the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).
3 The additional nine named Plaintiffs are: Jerome Bullard, Jerome Hayes, Dennis Jones, Nathaniel Kennedy, Raymond Leventry, Michael Little, Gihad Topping, Timothy Weglicki, and Manuel Williams. (Doc. No. 34.)
4 City Defendants and District Attorney’s Joint Motion to Dismiss or for Summary Judgment will be addressed in this Memorandum.
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II. FINDINGS OF FACT A. Background of the Overcrowding Crisis Litigation against the City of Philadelphia over unconstitutional conditions in the PPS
has a long history. For more than thirty years, from 1971 through 2002, state and federal courts have wrestled with the problem. The state court litigation began in 1971 with the filing of the Jackson v. Hendrick case in which prisoners in the City’s prison system alleged that their conditions of confinement violated their constitutional and statutory rights. See Jackson v. Hendrick, 764 A.2d 1139, 1141 (Pa. Commw. Ct. 2001). In 1972, the trial court held that conditions in the prison amounted to cruel and unusual punishment and ordered the City to take immediate action to rectify the situation. Id. Over the next twenty years, the parties entered into a series of consent decrees that laid out specific measures that the City was obligated to take in order to provide constitutionally adequate conditions. Id. The final consent decree was approved in 1991. See Jackson v. Hendrick, No. 2437, slip op. at 3 (Phila. Ct. Com. Pl. July 1, 2002). Over the course of the litigation, the following remedial measures were taken either by court order or through negotiated agreements between the parties: identification of population capacities for the various prison facilities, issuance of proscriptions against housing inmates in uninhabitable cells, single cell occupancy mandates that were transformed into bans on triplecelling, implementation of pretrial bail release review mechanisms, qualified admissions moratoriums, limits on housing of state and out-of-county inmates at the PPS, and the extraction of promises to increase bed capacities. Id. at 5.
The Jackson litigation was terminated in 2002 with the approval of a final settlement agreement between the parties. Id. at 1. The settlement required the City to continue to monitor
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the PPS with regard to its policies and procedures on maintenance, environmental issues, social service to inmates, medical and mental health treatment of inmates, and use of force. Id. at App. A, p. 4 (Agreement and Memorandum of Understanding). In addition, the agreement mandated that the City would notify plaintiffs’ counsel of any triple-celling or use of non-housing areas for housing of inmates within twenty-four hours of such action. Id. at App. A, p. 6. The settlement indicated that if plaintiffs believed such housing to be in violation of the law, their remedy would be to commence a separate and independent lawsuit. Id. Finally, the City agreed to reduce its prison population through the opening of the new Women’s Detention Center and the Cambria Correctional Center but specified that if the population exceeded specific levels (950 female inmates and 6,850 male inmates) and the City was unable to reduce the population, the City and plaintiffs’ counsel would meet and discuss the issue of housing inmates. Id. at App. A, pp. 6-7.
Federal litigation involving conditions in the PPS began in 1982 with the filing of Harris v. City of Philadelphia, No. 82-1847 (E.D. Pa. 1982). In Harris, the inmates at the Holmesburg Prison filed a class action complaint against the City of Philadelphia and individual Philadelphia officials, alleging overcrowded conditions that violated the First, Eighth, Ninth, and Fourteenth Amendments. See Harris v. City of Phila., No. Civ. A. 82-1847, 2000 WL 1239948, at *1 (E.D. Pa. Aug. 30, 2000). That litigation led to court-approved consent decrees in 1986 and 1991 as well as a Ten-Year Plan approved by the court in 1996. Id. at *1-4. The litigation also resulted in a series of orders beginning in 1994 and ending in 1999 that approved over 250 policies and procedures in the prisons that were a product of negotiations between the City and the plaintiff class, under the supervision of a Special Master. Id. at *4. Throughout the eighteen-year litigation, the consent decrees and orders mandated various measures in an effort to address the
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crisis conditions that had developed. These measures included: construction of new detention centers and renovation of old facilities, contracts with private agencies for additional beds for work-release inmates and minimum security pretrial detainees, limitations on the number of inmates in PPS facilities, a qualified admissions moratorium on admitting additional inmates, implementation of a house arrest/electronic monitoring program for selected inmates, and ultimately, the release of certain non-violent inmates when the maximum allowable population was exceeded. Id. at *2-4. Between 1991 and 2000, the City paid a total of $864,000 in penalties for violating court orders. Id. at *5. In 2000, a final settlement was approved by the court, and federal supervision of the PPS came to an end. Id. at *11.
The instant action, like Jackson and Harris, deals with unconstitutional conditions in the prison system. It also deals with unconstitutional conditions in the Police Districts and at the PAB. Specifically, the Complaint alleges overcrowded and degrading conditions in the intake unit of the PPS, in the holding cells in local Police Districts, and at the PAB. The evidence presented by Plaintiffs at the hearing focused on the conditions that existed between May and September of 2006. However, it is clear that overcrowding and its consequences have plagued the PPS at-large and its intake units, in particular, for years. For example, during the course of the Harris litigation, the Court appointed a Special Master to oversee the City’s compliance with consent decrees. In January 1997, the Special Master presented his report to the Court on aspects of the City’s Compliance with the 1986 Consent Decree during the month of September 1996. (Doc. No. 74 at App. A.) The Court directed the Special Master to assess the City’s compliance with Paragraph 2(c) of the 1986 Consent Decree, which required that: (1) every inmate held in the receiving area overnight receive a mattress; (2) within twenty-four hours of
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arrival, each inmate receive a bed and mattress in intake housing; (3) every inmate be assigned to a long-term housing area within seventy-two hours of arrival at the prisons; and (4) areas including gymnasium space, corridors, bench areas, or any areas not set up for permanent housing would not be used for housing. (Id. at App. A, pp. 1-2.) After four visits during the month of September 1996, the Special Master reported that he did not once observe mattresses distributed to inmates in the receiving areas although many inmates were held in intake for longer than twenty-four hours. (Id. at App. A, p. 2.) In addition, a large portion of the male inmates observed by the Special Master were not assigned long-term housing within seventy-two hours, and many spent between two and six days in the receiving area at CFCF. (Id. at App. A, pp. 7-10.)
Despite policies mandated by the 1991 Consent Decree that inmates in intake were to be provided with soap, toothpaste, and toothbrushes, inmates testified in 1996 that they were deprived of basic personal hygiene items and sanitary conditions because of the large numbers of inmates. (Id. at App. A, pp. 25, 37-38.) Testimony from inmates and from the thenCommissioner of the PPS described overcrowding as a consistent problem in the intake unit in 1996. The Commissioner indicated that there were days when the intake population exceeded 150 inmates and, on occasion, exceeded 200 inmates. (Id. at App. A, p. 30.) An inmate testified that he was placed in the main holding cell at CFCF with seventy to eighty other detainees. (Id. at App. A, p. 36.) When asked if he slept, he reported that it was impossible because of the overcrowded conditions: “I mean everybody’s under the bench, on top of the bench, all zigzagged on the floor. . . . [Y]ou couldn’t move nowhere . . . everybody’s all over the place, there’s just not enough room.” (Id. at App. A, pp. 39-40.)
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Federal court supervision of the PPS terminated in 2000 with a final settlement agreement approved by the Court, in which the City promised to monitor compliance with a variety of PPS policies through independent and expert consultants and promised to make specific renovations to the PPS facilities to improve conditions.5 Harris, 2000 WL 1239948, at *18-19. Nevertheless, six years later, this case raises nearly identical claims of overcrowding, resulting in unsafe and unsanitary conditions. Since the termination of the Harris litigation, the prison population has continued to grow from roughly 7,000 inmates in 2000, see id. at *5, to nearly 9,000 inmates at this time.6 (Hr’g Ex. P-24; Tr. 3 at 106 (King).)7
B. The Arrest Process and Admission to the PPS in 2006 Because the instant action deals specifically with overcrowding conditions in the intake unit of the PPS, Police Districts, and the PAB, we received evidence regarding the arrest process and the way in which inmates enter the system. In general, when arrested, a detainee is initially taken to one of seven local Police Districts or to the police detention unit of the PAB. (Tr. 6 at
5 It is clear that the 2000 settlement was reluctantly approved and jurisdiction was relinquished after eighteen years of litigation not because the court was satisfied that the job had been successfully completed but rather because of the limitations imposed on the court by Congress with the enactment of the PLRA in 1996. Harris, 2000 WL 1239948, at *10.
6 See Hr’g Ex. P-42 (Graph of PPS Average Daily In-House Population 1999-2006). 7 We will refer to the hearing transcripts by numbers 1 through 7 as follows with the last name of the witness in parentheses following the citation: Tr. 1 - Oct. 3, 2006, A.M. Session (Doc. No. 67) Tr. 2 - Oct. 3, 2006, P.M. Session (Doc. No. 66) Tr. 3 - Oct. 4, 2006, A.M. Session (Doc. No. 65) Tr. 4 - Oct. 4, 2006, P.M. Session (Doc. No. 68) Tr. 5 - Oct. 5, 2006, A.M. Session (Doc. No. 69) Tr. 6 - Oct. 5, 2006, P.M. Session (Doc. No. 70) Tr. 7 - Oct. 6, 2006, A.M. Session (Doc. No. 71)
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88 (Johnson).) Following processing, detainees await their preliminary arraignments, which should ideally occur within twenty-four (24) to twenty-eight (28) hours of arrest. (Id.) The Public Defenders’ office sends a non-attorney representative to preliminary arraignments who tags cases assigned to that office so that files can be opened on those individuals who will be represented by the Public Defender. (Tr. 4 at 103 (Innes).) At the preliminary arraignment, bail is set. If it appears to the police that a detainee will be able to make bail, they will hold him in police custody for up to four hours to allow him to make bail before taking him to the prison. (Tr. 6 at 88-89 (Johnson).)
If a detainee is housed at the PAB, he or she is typically seen by a nurse within twentyfour (24) to thirty-six (36) hours of arrest. (Tr. 6 at 44 (Cohen).) The nurse asks questions about the detainee’s well-being and reviews a medical checklist. (Id.) The nurse can also distribute some medication and provide minimal medical care. (Id. at 91 (Johnson).) If a detainee is at a local Police District, he is asked a series of questions about his mental and physical health, and the questioner fills out a form detailing his or her observations of the detainee, including whether the person appears to be in pain, whether the person appears to be under the influence of alcohol or drugs, and whether the person is carrying medication. (Id. at 30-31 (Cohen).) In addition, if detainees at the local Police Districts require any medical attention, from distribution of medication to emergencies, they must be taken to the local hospital. The local Police Districts are not authorized to administer any medical treatment at all. (Id. at 90 (Johnson).)
If a detainee does not make bail within four hours after the preliminary arraignment, the Police Department sends the detainee to CFCF. Detainees should, in general, be in police custody for no more than twenty-four (24) to twenty-eight (28) hours. (Id. at 88 (Johnson).) As
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a result, the police detention facilities are designed for short-term holding purposes. (Id. at 89 (Johnson).) The police detention facilities are not equipped to provide detainees with warm water or soap to wash their hands. They do not provide detainees with showers and do not provide an opportunity for detainees to change clothes. (Id. at 90 (Johnson).)
Once a detainee is sent to the CFCF prison, he begins the intake process. Initially, detainees are placed in a main holding cell that is approximately 26-by-14 feet and should hold twenty-five to thirty inmates. (Id. at 122 (DiNubile); Tr. 1 at 19 (Bowers).) Detainees are then called out of the main cell individually, surrender their property, have their photographs taken, and then move through a series of up to fifteen smaller holding cells in the intake area. (Tr. 6 at 122 (DiNubile); Tr. 1 at 18, 21 (Bowers).) The smaller cells are approximately 9-by-13 feet in size and contain metal benches sufficient for twelve to fifteen people to sit. (Tr. 1 at 22, 25 (Bowers); Tr. 6 at 123 (DiNubile).) During this time, detainees wear the street clothes in which they were arrested. (Tr. 3 at 119 (King).) At the end of this process, each detainee has an opportunity to shower, undergoes a medical examination, is given bedding and a jumpsuit, and is then moved to the quarantine unit to await medical clearance and an assignment to a permanent housing location in the prison. (Tr. 1 at 31 (Bowers); Tr. 3 at 121 (King).) At that point, detainees are classified by the type of offense for which they have been arrested so they can be housed with other similar detainees. (Tr. 6 at 112 (DiNubile).) In general, the PPS goal is to move people through the intake process from admission to quarantine within seventy-two hours. (Id. at 119 (DiNubile).)
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C. Summer 2006 Overcrowding Crisis and Moratorium on Admissions In the summer of 2006, the PPS began to experience serious overcrowding problems. (Tr. 3 at 106 (King).) In May 2006, the population of the receiving room went above 100, a cause of concern to prison officials. (Tr. 6 at 120 (DiNubile).) In response, prison officials opened sixty beds in the garment shop at the Detention Center (“DC”) and added forty-eight more beds in the B Building at CFCF. (Id. at 124 (DiNubile); Hr’g Ex. P-5.) Nevertheless, the population of the receiving room continued to go beyond its capacity, reaching a high of 140 or 150.8 (Id. at 120 (DiNubile).) On June 28, 2006, Commissioner King sent a memo to the Honorable C. Darnell Jones II, President Judge of the Philadelphia Court of Common Pleas, the Honorable James J. Fitzgerald III, Trial Division Administrative Judge, and The Honorable Louis J. Presenza, President Judge of the Municipal Court of Philadelphia, in which he wrote: “Currently the population at the Prisons is 8877. We reached a high of 8897 on Saturday, June 24, 2006. The jails are full! The atmosphere at the Philadelphia Prison System is just too tense to allow the flow to increase.” (Hr’g Ex. P-1.) On that day in June 2006, the receiving room of CFCF intake was full. Inmates were refusing to eat, staff was refusing to come to work, and the atmosphere was becoming extremely tense. (Tr. 3 at 111 (King).) As a result of this overcrowding crisis, Commissioner King instituted a new policy called the Strategic Admissions Policy (the “OSA” or “Operation Strategic Admissions”). (Id. at 105 (King).) This policy involved a partial moratorium on admissions. (Hr’g Ex. P-1.) The PPS put a hold on the admission of new arrestees who were being held at the PAB and in the local Police
8 Commissioner King testified that early in his tenure as Prison Commissioner, the population in the receiving room reached 200. (Tr. 3 at 126-27 (King).)
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Districts. (Tr. 3 at 105 (King).) During this time, the prisons continued to accept juveniles,
female inmates, people picked up by the bench warrant unit, and people from the sheriff. (Id. at
104 (King).) However, under the OSA, the bulk of new inmates, those arriving from the Police
Department, were delayed and held in police custody in the Police Districts until the population decreased such that the prison had sufficient bed space to accept them.9 (Id. at 104-05 (King).)
Before implementing this policy, Commissioner King called Judge Presenza, Judge Fitzgerald,
Police Commissioner Johnson, and the City Managing Director. (Id. at 109 (King).) The
Managing Director acquiesced in Commissioner King’s decision to implement the OSA because
the Commissioner had indicated that this was necessary from a correctional standpoint. (Tr. 3 at
115-16 (King).)
9 It is particularly significant that similar problems occurred and were met with a similar solution in May through October 2005. Throughout those months, because of overcrowded conditions at the prisons, there were days when the prison informed the Police Department that it would have to delay admission of prisoners who were then held at the Police Districts until the prison was capable of accepting new arrestees. (Hr’g Tr. 6 at 62 (Keown); Hr’g Tr. 3 at 104 (King).) A memorandum from Lt. Gabriel Keown, written on July 19, 2006, indicated the following about the 2005 moratorium situation:
The prison closed around the same time last year (May 30[], 2005) and the problem continued until October of 2005. The volume and number for the backlog of prisoners awaiting transportation is approximately 3 times higher than the problem last year. A previous meeting was conducted with the prison in the fall of 2005, which was attended by Deputy Commissioner Gaittens, Chief Inspector Davis, Inspector Sykes, Captain Ryan, Lieutenant Keown, Lieutenant Clark, Deputy Commissioner Murphy, Prisons, and Major Dinuble [sic], Prisons, in which they stated that they had plans in place to correct the problem. As of this time, no updates to what has been done [have] been provided.
(Hr’g Ex. P-6.) Thus, the PPS was aware that overcrowding was a constant problem of increasing seriousness and that the summer months were particularly problematic. The lack of action by PPS over the course of a year to prevent this problem from re-occurring is evident.
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From a statistical perspective, the OSA had the effect of decreasing the average time it took the PPS to move detainees through the intake process. In the ten days before the OSA was implemented, the average processing time from arrival to quarantine was seventy-five (75) hours. (Tr. 7 at 141 (Heroex).) In the ten days that followed implementation of the OSA, the processing time dropped from seventy-five (75) hours to thirty-six (36) hours. (Id.) In August 2006, the average processing time decreased again to thirty (30) hours. (Id.)10
The OSA, while relieving the overcrowding pressure in the intake unit of the PPS, also had the effect of creating overcrowding, dangerous, and unacceptable conditions in the Police Districts and at the PAB. When the OSA was initially instituted, Commissioner King believed that inmates would be held only for a few more hours in police custody after their preliminary arraignments. (Tr. 6 at 93 (Johnson).) This would give the prison the needed additional time to properly process inmates through intake. (Id.) However, as the OSA continued, prisoners were held in police custody far longer than a few extra hours. Eventually, arrestees were held in police custody for days beyond the time when they should have been sent to the prison. (Id. at 95 (Johnson).) In fact, detainees were held for three to six days in holding cells in the Police Districts before they began the intake process at the prison. (Id.) In addition, some arrestees
10 Defendants’ statistician acknowledged that statistics distort reality because averages do not indicate the outliers—that is, the figure representing the average amount of time in the intake process does not make clear that numerous individuals in the sample spent far more or far less time in intake than the average. While the average processing time may have been thirty-six (36) hours after the OSA, that does not mean that some inmates were not being held in intake for seventy-five (75) hours or more. As was noted during the hearing, “[F]or the person who is an outlier, for example, who spent let’s say just hypothetically eight days instead of two, it’s no comfort to him, is it, that he was an outlier in your statistical study?” (Tr. 7 at 147 (Heroex).) Defendant’s statistician conceded that the study of statistics “does [not] take the human element into consideration.” (Id.)
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were transferred to several Police Districts within the division before being admitted to the prison.11 (Id. at 69-70 (Keown).) In July 2006, the Police Districts became so overcrowded that
the police were forced to send arrestees to the Criminal Justice Center (“CJC”) where they remained for several days before they could be sent to the prison.12 (Id. at 80-81 (Keown).) As a
result of the overcrowding crisis in the Police Districts, Police Commissioner Johnson decided to
discuss the problem with his supervisor, the City Managing Director, Pedro Ramos. As
Commissioner Johnson put it: “[I]t was a concern . . . that we had people inside the holding cells
of our districts that we [were not] really set up for.” (Id. at 96 (Johnson).) When Commissioner
Johnson spoke with the Managing Director, he informed the Managing Director that while the
Philadelphia Police Department was willing to work with the prison system to address the
overcrowding problem, “people should not be held in the police facilities, because [the Police
Department does not] have the facilities for showers, for bed[s] and for anything else like that.
11 On July 14, 2006, Lieutenant Gabriel Keown of the Police Department sent the following e-mail to Major James DiNubile of the PPS regarding the problems that the OSA was causing for the police:
We need to talk, yesterday we had [a] wagon from the PDU with 2 prisoners turned away. CCTV is working very hard to help coordinate the transportation of prisoners, we will run into safety issues if wagons are turned away. I thought we had an understanding this would not happen and if you have [a] problem with shipping or any other problems you would accept prisoners and we would work with you to correct the problem. We scheduled several prisoners to be shipped on Wednesday 7-12-06. The last group of prisoners that was shipped at 5 PM was rejected. We need to move more prisoners, some locations are at their maximum capacity.
(Hr’g Ex. P-2.) Despite the fact that such concerns were expressed as early as July 12, 2006, the OSA was not terminated for another two months. (Tr. 7 at 21-22 (Ramos).)
12 The District Attorney characterized Commissioner King’s OSA policy as a “genuine but misguided attempt[] to reduce the overall prison population.” (Doc. No. 79 ¶ 28.)
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[The police facility is] basically a holding cell.” (Id. at 96-97 (Johnson); see also id. at 70 (Keown) (asserting that the police holding cells are not designed to hold people beyond preliminary arraignment).)
On September 11, 2006, the City Managing Director, over the objection of Prison Commissioner King, ordered the termination of the OSA. (Tr. 7 at 21-22 (Ramos).) Ramos made this decision when it became clear to him that people were being held for days, and not hours, in police custody post-preliminary arraignment. (Id. at 21 (Ramos).) Ramos testified that the consequences of the OSA, the holding of arrestees for extended periods of time in police custody before they were admitted to the prisons, were “not what I had expressed support for a few months before.” (Id.) Coincidentally, the decision to terminate the OSA was made one week before the scheduled preliminary injunction hearing in this Court and on the same day that Defendants and intervenor filed a motion to continue the preliminary injunction hearing. (Doc. No. 26.) Ramos was aware that the preliminary injunction hearing was scheduled for the following week when he made the decision to terminate the OSA on September 11, 2006. (Tr. 7 at 27 (Ramos).)
Between June 2006 when the OSA was implemented and September 11, 2006 when it was terminated, very little had occurred to eliminate the overcrowding problem at the prisons. (Tr. 3 at 178-79 (King).) At some point, the City created a 24-Point Plan (discussed infra pp. 3334) that included steps that the City would consider in an attempt to reduce prison overcrowding. Moreover, the PPS contracted with a prison in Monmouth County, New Jersey for 100 prison beds in an effort to free some bed space at the PPS. (Id.) However, nothing had really changed in terms of the number of prisoners in the PPS. (Id.) In order to deal with the additional
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detainees who would be coming through intake when the OSA was lifted, the prison put an additional sixty (60) bunk beds in day room areas in the A Building at CFCF. (Id. at 179-80 (King).) The union of correctional officers and workers protested the additional bed space in the day rooms. (Id. at 180 (King).) As a result of discussions with the union, the prison decided to place 197 blue boats, or plastic cots that sit six inches off the floor, in the B Building of CFCF, creating cells holding three inmates, two in beds and one in a blue boat (triple-celling). (Id. at 181 (King).) The B Building of CFCF is the quarantine area of intake in the prison. (Id.) This triple-celling increased the quarantine area by at least 197 people. (Id.) Commissioner King, had considered this option in June prior to instituting the OSA but chose not to implement triplecelling at that time, because he made a correctional determination that “the cells are made for two people, not three people.”13 (Id. at 182 (King).) Nevertheless, King instituted triple-celling in September 2006 because the Managing Director ordered him to terminate the OSA and because he had to find beds for the influx of additional detainees who would be arriving at the prison. (Id. at 183-84 (King).) The effect of using the 197 blue boats was to triple-cell almost 600 inmates. (Tr. 6 at 133 (DiNubile).)
As of the time of the hearing in October 2006, the average time a detainee spends in police custody post-preliminary arraignment has decreased to normal levels, between four and six hours. (Tr. 6 at 107 (Johnson).) In addition, from a statistical perspective, the amount of time a detainee spends in the intake process at CFCF decreased in September to twenty-five
13 It is interesting to note that the settlement reached in the Jackson litigation in 2001 recognized the problems inherent in triple-celling. See supra pp. 4-5.
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hours.14 Prison officials testified that as of the date of the hearing, the average number of people in a cell in the intake area was ten. (Tr. 6 at 130 (DiNubile).)
D. Conditions in PPS Intake During Summer 2006 The City of Philadelphia prison population faces a yearly increase of three to four percent. This increase has occurred regularly for the last fifteen or twenty years. (Tr. 3 at 95 (King).) In 2006, the population at the PPS faced even more dramatic increases. (Hr’g Ex. P-5.) This higher population in the prison contributed to numerous troubling conditions in the intake unit between May and September 2006.
1. Length of Time in Intake and Cell Progression As previously described, detainees in the intake unit of the PPS are typically placed first in a main holding cell that is approximately 26-by-14 feet and should hold twenty-five (25) to thirty (30) inmates. (Id. at 122 (DiNubile); Tr. 1 at 19 (Bowers).) Detainees are then called out of the main cell individually, surrender their property, have their photographs taken, and then move through a series of up to fifteen smaller holding cells in the intake area. (Tr. 6 at 122 (DiNubile); Tr. 1 at 18, 21 (Bowers).) The smaller cells are approximately 9-by-13 feet in size and contain metal benches sufficient for twelve to fifteen people to sit. (Tr. 1 at 22, 25 (Bowers); Tr. 6 at 123 (DiNubile).) The process concludes with a shower and a medical examination. The detainee is then given bedding and a jumpsuit and is moved to the quarantine unit to await medical clearance and an assignment to a permanent housing location in the prison. (Tr. 1 at 31 (Bowers); Tr. 3 at 121 (King).) The PPS’s stated goal is to move detainees through
14 See supra note 9, addressing the admitted fact that the figure representing the average amount of time in the intake process does not make clear that numerous individuals in the sample spent far more or far less time in intake than the average.
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this intake process and into quarantine within seventy-two hours or three days of their arrival at the prison. (Tr. 6 at 119 (DiNubile).)
In the summer of 2006, however, overcrowding caused this system to break down. The data demonstrates that the prison was not able to adhere to its own policy of moving detainees through intake to quarantine within three days. Between May 1, 2006 and July 25, 2006, 1,226 detainees spent more than three but less than four days in intake. During that time, 456 detainees spent more than four but less than five days in the intake process. In addition, forty-seven detainees spent more than five but less than six days in intake and five spent greater than six days in intake. (Hr’g Ex. P-39.)
In addition to the length of time spent in intake, the proper progression of cells outlined by prison officials was not adhered to, and many detainees were placed back into holding cells after the shower and medical examination. For example, after his medical examination, Plaintiff Darius McDowell was placed in a holding cell used for inmates who were scheduled to appear in court the following day instead of going to the quarantine area. (Tr. 1 at 78-79 (McDowell).) McDowell spent the night in that holding cell with no bed, sleeping on the floor with only a blanket. (Id.) The following morning, McDowell was not taken to quarantine but was instead placed back in the initial main holding cell in which he started the intake process. (Id. at 79-80 (McDowell).) McDowell was held in that cell for six to eight more hours with over thirty-five other detainees who had also showered and undergone medical examination. (Id. at 80 (McDowell).) Following his time in the main holding cell, McDowell was placed in a storage room that held tables and chairs. (Id. at 83 (McDowell).) He was held there overnight again with no bed and was finally taken to quarantine the following morning. (Id.) Similarly, Plaintiff
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Nathaniel Kennedy, after making it through the shower and medical examination, was returned to several cells in the intake area and slept overnight there with no bed. (Tr. 2 at 22-23 (Kennedy).) Plaintiff Antonio Pedraza spent a day and night in a small room with chairs and no beds where he slept on the floor. This was after showering and going through medical clearance but before he was placed in the quarantine area. (Id. at 109-111 (Pedraza).) Finally, Plaintiff Jeffrey Jones spent approximately eight hours post medical clearance in a holding cell before he was moved to the quarantine area. (Id. at 134 (Jones).)
It is evident that overcrowding was so severe in the summer of 2006 that the intake process often lasted far longer than it should have. In addition, overcrowding conditions existed even in the quarantine area, a situation which resulted in prisoners being placed back in holding cells after they had completed the intake process.
2. Overcrowded Conditions in Holding Cells In addition to spending excessive amounts of time in intake, detainees were also packed into the intake holding cells in numbers that far exceeded the capacity of these cells. While the main holding cell at the beginning of the intake process is capable of holding twenty-five (25) to thirty (30) men, the smaller cells used in the remainder of the intake process were capable of holding only twelve (12) to fifteen (15) people. Nevertheless, during the summer of 2006, prisoners were consistently placed in these smaller cells with thirty or more other inmates. (Tr. 1 at 25 (Bowers); Id. at 69 (McDowell); Id. at 119 (Bucci); Tr. 2 at 97 (Pedraza).) The smaller cells were so crowded that there was not enough room for all of the men to sit down, even if they used the metal benches and every inch of the concrete floor. (Tr. 1 at 119 (Bucci).) As a result, detainees who were held in the intake unit for four or five days were forced to endure long
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periods of time standing and, if lucky, sitting or lying down overlapping with other men, under a bench, or huddled next to the toilet on the concrete floor. (Tr. 1 at 23-24 (Bowers) (describing inmates rotating sitting and standing positions); Tr. 1 at 64, 69 (McDowell) (describing lying on another inmate when tried to lie down); Tr. 1 at 117, 119 (Bucci) (“mostly it was standing”); Tr. 2 at 46-47 (Hayes); Tr. 2 at 97 (Pedraza) (describing rotating standing and sitting positions in an overcrowded cell); Tr. 4 at 91 (Bullard).)15
3. No Beds While held in the intake unit of the PPS, detainees are not provided with any beds or bedding. The PPS does not provide inmates with sheets, blankets, and pillows until they complete the intake process. In addition, while in intake, inmates are not provided with beds or mattresses and must sleep on metal benches or on the concrete floor. (Tr. 3 at 120 (King); Tr. 1 at 75 (McDowell) (testifying that he and others used their shirts and shoes in place of sheets and pillows); Tr. 1 at 26 (Bowers).) Because of the overcrowded conditions during the summer of
15 Significantly, the District Attorney acknowledged the existence of these conditions in her Proposed Findings of Fact, making the following statement with regard to the conditions at the intake facilities at the PPS, in the individual cells at the PAB, and in the Police Districts:
Plaintiffs have presented extensive evidence relating to crowding in individual cells at the Police Administration Building, various police districts, and the intake facilities at the Philadelphia Prison System. The evidence of these conditions was largely uncontested by the Defendants. The Plaintiffs’ evidence established that detainees were packed into cells far too small for the numbers of detainees. For example, the evidence showed that 30-35 inmates were crammed into a 9’ x 13’ cell. Often, there was insufficient room for the detainees to lie down and detainees were forced to maneuver for any available space to sit o[r] lie down. The Plaintiffs’ evidence also showed that detainees were housed in these conditions for several days. . . . (Doc. No. 79 ¶¶ 30-31 (emphasis supplied).)
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2006, detainees were forced to sleep overlapping one another and on every inch of the concrete floors. (Id. at 69 (McDowell).) Prisoners slept huddled with their heads next to the toilets because “that was the only place to be.” (Tr. 1 at 29 (Bowers); Id. at 69 (McDowell); Id. at 118 (Bucci).) In fact, a “good spot” for sleeping was apparently the small section of concrete floor under the metal bench “because no one’s gonna step on you” in that space. (Id. at 33 (Bowers); Id. at 126 (Bucci) (also describing underneath the bench as a “choice spot”); Tr. 2 at 97 (Pedraza).) In the summer of 2006, as a result of the overcrowded conditions, detainees spent three, four, five, or six days in the intake unit of the PPS without any bedding provisions, sleeping, if they could, on metal benches or directly on the concrete floors if there was room.
4. Lack of Hygiene and Bathroom Provisions While detainees are held in the intake area, they are not provided with any materials for personal hygiene. They have no access to warm water or soap for hand washing and no access to toothpaste or toothbrushes. (Tr. 1 at 26 (Bowers); Tr. 1 at 70 (McDowell); Tr. 1 at 119, 125 (Bucci); Tr. 2 at 70 (Jones); Tr. 2 at 95-96 (Pedraza); Tr. 4 at 70 (Scott); Tr. 4 at 95 (Bullard).) Consequently, during the summer months in 2006, inmates were held for up to six days with no soap, no warm water, no toothbrushes, and no toothpaste. They were provided with meals during this time but were given no opportunity to wash their hands before eating or after using the bathroom. The fact that there were large numbers of men packed together in these cells further exacerbated the hygiene problems. During this time, the detainees remained in their street clothes and were not provided a prison jumpsuit until the very end of the intake process. (Tr. 3 at 121 (King).)
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In addition to the lack of hygiene materials, detainees in the intake unit were forced to share unsanitary sinks and toilets with up to thirty other men. Toilets had urine and rotten food in them, and the sinks often did not work. (Tr. 1 at 30 (Bowers); Tr. 1 at 66, 71 (McDowell); Tr. 1 at 118, 125 (Bucci) (describing urine covering toilet and sink).) Correctional officers occasionally permitted detainees to use toilet facilities in private cells. (Tr. 2 at 47-48 (Hayes).) However, this luxury was not provided on a regular basis, and officers often denied inmate requests to use toilet facilities. (Tr. 1 at 28 (Bowers); Tr. 1 at 121-22, 133 (Bucci) (describing guards ignoring his requests to use a private toilet); Tr. 2 at 48 (Hayes).) As a result of these conditions, inmates frequently went days without moving their bowels. (Tr. 1 at 122 (Bucci) (did not move bowels for four days in intake because guards ignored his requests).) When inmates finally reached the end of the intake process and were permitted to shower, they encountered unsanitary conditions there as well. (Tr. 1 at 35-36 (Bowers) (describing “disgusting” shower that was “slimy” and “had a stink about it”); Tr. 1 at 76 (McDowell) (same); Tr. 1 at 125 (Bucci) (same); Tr. 2 at 106-07 (Pedraza) (describing use of foam plates from food wrapper as shower shoes).)
5. Denial of Medical Attention Detainees in the intake areas of the PPS were denied medical attention for major and minor problems. While medical staff are situated next to the intake area of CFCF and tour the area once per shift (Tr. 6 at 130 (DiNubile)), it is clear that medical concerns of detainees went untreated. For example, a detainee who was experiencing methadone withdrawal, despite repeated requests for assistance, was ignored by correctional staff for at least two to three hours. (Tr. 1 at 21-22 (Bowers).) Several older men asked for medical assistance and, in each instance,
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correctional officers responded that if it was not life threatening or there was no blood, there would be no assistance. (Tr. 1 at 73-74 (McDowell).) Plaintiff Jones, while in the PAB, developed a sore in the area where a toe had been amputated. Despite constant requests for medical attention, or even a band aid to cover the affected area, the reply from prison officials was that he should not have gotten himself locked up. (Tr. 2 at 70 (Jones).) An inmate who fainted and had trouble breathing could not get a response from correctional officers for hours. (Tr. 2 at 103-04 (Pedraza).)
E. Conditions in Police Districts and the PAB in Summer 2006 As a result of the OSA, overcrowding and unreasonably dangerous conditions developed at the Police Districts and the PAB as more arrestees were held in police custody for extended periods of time. The cells in the Police Districts and the PAB are designed to hold prisoners for no more than twenty-four to thirty hours. (Tr. 6 at 67 (Keown); Tr. 6 at 88 (Johnson); see also Tr. 6 at 96-97 (Johnson) (“[B]asically I think that people should not be held in the police facilities, because we don’t have the facilities for showers, for bed[s] and for anything else like that. We’re basically a holding cell.”); Tr. 5 at 24-27 (Benton) (facilities toured—the 9th and 24th/25th Districts and PAB—were designed to safely confine one detainee if used for more than 10 hours).)
1. Overcrowded Holding Cells Detainees were held in small holding cells in numbers that far exceeded the regular capacity of the cell. (Tr. 1 at 149-50 (Leventry) (10-to-12 people held in cell measuring 8 feet by 10 feet); Tr. 2 at 9 (Kennedy) (describing crowded conditions forcing him to sit on the floor); Tr. 2 at 64-65 (Jones) (four prisoners rotating between position on bench, under bench, and next
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to toilet on floor); Tr. 4 at 84-85 (Bullard); Tr. 5 at 25 (Benton) (stating that four inmates were held in cell measuring 6 x 7 feet at the PAB when he toured the facility on August 29, 2006).)
2. No Sleeping Provisions Even though prisoners were detained in police custody for days after the OSA was implemented, they were not provided with beds, sheets, blankets, mattresses, or pillows. Inmates slept on metal or wooden benches or on the concrete floor of the holding cells. (Tr. 1 at 151-52, 157-58 (Leventry); Tr. 2 at 10, 16, 19, 21 (Kennedy) (provided with one blanket at the CJC); Tr. 2 at 42, 44-45 (Hayes) (explaining that he used a shoe to cushion his hip that grew sore from sleeping on the floor); Tr. 2 at 60, 62 (Jones) (stating that he used a cold pack meal as a pillow); Tr. 2 at 91 (Pedraza); Tr. 2 at 126-27, 131 (Jones) (describing use of sneakers as a pillow).)
3. Unsanitary Conditions While detainees were held in police custody, they were provided with no materials for personal hygiene. They were not provided with soap or warm water for hand washing and had no access to toothbrushes or toothpaste. In addition, they remained in their street clothes and had no access to showers. While the OSA was in effect, detainees were held in police custody for days without access to personal hygiene materials. (Tr. 1 at 153, 156-57 (Leventry); Tr. 2 at 10, 12, 17, 20 (Kennedy); Tr. 2 at 59, 64, 66 (D. Jones); Tr. 2 at 91 (Pedraza); Tr. 2 at 127, 131 (J. Jones); Tr. 4 at 88 (Bullard).) In addition to a lack of personal hygiene materials, detainees were also held in cells with dirty and sometimes inoperable sinks and toilets. (Tr. 1 at 152, 157 (Leventry) (toilet and sink were filthy and inoperable); Tr. 2 at 12, 20 (Kennedy); Tr. 2 at 63, 66 (D. Jones); Tr. 2 at 43-44 (Hayes) (stating that toilet had dirt and food debris in it and that he did not flush the toilet for
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fear of it overflowing and flooding the floor on which he was forced to sleep); Tr. 2 at 125, 129 (J. Jones); Tr. 4 at 85 (Bullard) (attempt to draw water from sink resulted in appearance of little bugs).)
With regard to arrestees’ use of a private bathroom to move their bowels, arrestees were at the mercy of police officials who sometimes permitted trips to private bathrooms but often ignored prisoner requests. (Tr. 2 at 63-64 (D. Jones) (describing arrestee at PAB who “begged” to use a private bathroom, but was denied and defecated on himself); Tr. 2 at 90 (Pedraza) (requested opportunity to move his bowels without response from officers).)
4. Food Provisions While held in police custody, many detainees were provided minimal food and drink. They received one cheese sandwich and an 8-ounce container of water every eight to twelve hours. (Tr.1 at 59-60 (McDowell) (three times a day); Tr. 1 at 150-51, 156 (Leventry) (every ten hours at 24th/25th District and once in twenty-four hours at 26th District); Tr. 2 at 9, 20 (Kennedy); Tr. 2 at 41 (Hayes); Tr. 2 at 61, 65 (D. Jones) (cheese sandwich and water every twelve hours); Tr. 2 at 88-89 (Pedraza); Tr. 2 at 125-26, 129 (J. Jones). At some point during the OSA, as a result of a request by Lieutenant Gabe Keown of the Police Department, Major DiNubile from the PPS agreed to send cold package meals from the prison once a day to the Police Districts. (Tr. 6 at 129 (DiNubile).) Cold package meals include a salami sandwich, a sugar cookie, a piece of fruit, and a pint of iced tea. (Tr. 1 at 26 (Bowers).)
5. Length of Time in Police Custody The cells in the Police Districts and at the PAB were intended to hold arrestees for twenty-four to thirty hours. (Tr. 6 at 67 (Keown); Tr. 6 at 88 (Johnson).) During the OSA,
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detainees were held for two to seven days in police custody in the conditions described above before being transferred to the intake unit at the PPS. The following is a breakdown of inmates by total number of days in police custody.

Inmates with 7+ days police custody
Inmates with more than 6, but fewer than 7 days police custody
Inmates with more than 5, but fewer than 6 days police custody
Inmates with more than 4, but fewer than 5 days police custody
Inmates with more than 3, but fewer than 4 days police custody
Inmates with more than 2, but fewer than 3 days police custody

6 12 49 209 563 1,235

(Hr’g Ex. P-38; Doc. No. 74 at 20.)16

Following is a list of named Plaintiffs and members of the plaintiff class who testified at

the hearing, or for whom stipulations were reached, and the number of days each arrestee spent

in custody.

Plaintiff

Number of Days in Custody Pre-Prison Housing or Release

16 This table was created by Plaintiffs and is based on data provided by Defendants. 26

Case 2:06-cv-03229-RBS Document 94 Filed 01/25/2007 Page 27 of 76

Jeffrey Jones (in police custody and prison intake)
Khayan Flemming (in police custody alone)
Dennis Jones (in police custody and prison intake)
Eric Scott (in prison intake alone)
Antonio Pedraza (in prison intake alone)
Terrance Maxwell (in prison intake alone)
Darius McDowell (arrest on 6/14/06) (in police custody and prison intake)
Raymond Leventry (in police custody and prison intake)
Jerome Hayes (in police custody and prison intake)
Jerome Bullard (in police custody and prison intake)
Darius McDowell (arrest on 5/9/06) (in police custody and prison intake)
Nathaniel Kennedy (in police custody and prison intake)
(Doc. No. 74 at 21-22.)17

10.00 (based on testimony) 7.21 6.92 6.70 6.02 5.90 5.38 5.17 5.13 5.13 3.67 3.63

F. Fire Safety Issues at the PAB and Police Districts

17 This list only includes plaintiffs who were held for three or more days either in prison intake areas or prison intake and police custody combined and was compiled by Plaintiffs based on data provided by Defendants.
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As described above, numerous arrestees spent lengthy periods of time at the PAB. The building itself presents fire safety issues as do the emergency evacuation procedures and the emergency plan. (Tr. 3 at 17 (Corbett).)
The holding cells in the PAB are, in their current condition, dangerous and unsafe from a fire safety perspective. First, the PAB cells have no automated central unlocking system and must be manually unlocked individually. (Id. at 19.) This is a significant problem, because time is of the essence during a fire. (Id.) Combustible materials are present in areas surrounding the holding cells and in the exit areas. (Id.) In addition, maintenance appears to be poor. (Id. at 20, 25.) Plaintiff’s fire safety expert observed no fire protection systems, including smoke detectors, automatic alarms, or sprinklers aside from manual fire alarm pull stations, and Defendants offered no testimony of the existence of such fire protection systems in the PAB. (Id. at 17-18.) In terms of the fire safety plan, the procedure for evacuation of detainees requires detainees to wait in a garage loading area until a police emergency patrol wagon arrives, causing delay during an emergency situation. (Id. at 20.) In addition, the emergency plan for the PAB requires semiannual fire drills. (Id. at 23.) However, it appears that fire drills are not conducted in accordance with the plan. (Tr. 7 at 154 (Healy).) Moreover, in the Police Districts where prisoners were held for days during the OSA, there appear to be no emergency plans at all. (Tr. 7 at 151-52 (Healy) (stating that he does not know if the Police Districts have fire safety plans); Tr. 3 at 28 (Corbett) (Defense counsel acknowledging that fire safety plans for the Police Districts have not been found).)
The City is beginning to take some action on fire safety issues as a result of this lawsuit. (Tr. 7 at 148-49 (Healy) (acknowledging that he did not know of fire safety issues until tour of
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facility with Plaintiffs’ counsel).) The Police Department has made arrangements to have inspections of the PAB and Police Districts performed by the Fire Department. (Id. at 149.) In addition, executives from the State Correctional Facility performed a walk-through of the PAB to help the Police Department in its effort to self-identify problematic situations in the areas of sanitation, fire safety, and security. (Id. at 149-50.) Finally, on October 13, 2006, the Police Department issued a memo concerning fire drills to be conducted at unspecified times at the Police Detention Unit. (Doc. No. 82 at Ex. 40.)
G. Medical Issues 1. Medically Troubling Conditions
In 2004, the PPS was accredited by the National Commission on Correctional Health Care as meeting the Commission’s standards for provision of medical services to inmates, training of staff, and maintenance of policies, rules, and regulations on health care and hygiene. (Tr. 7 at 116 (Healy).) The Commission performs site reviews every three years. (Id. at 117.) Following the prior litigation involving prison conditions, the prison retained the services of two physicians as outside consultants to monitor prison health services and provide quarterly reports to the prison. (Id. at 117-18.) The PPS responds to these reports with Corrective Action Plans. (Id.) Nevertheless, it is clear that the overcrowded conditions in the summer of 2006 created a situation in which detainees’ medical concerns were not being promptly addressed.18
Furthermore, the hygiene issues previously discussed, along with the general overcrowding conditions, create serious problems from a medical perspective. The PPS procedures call for routine hand-washing with soap and warm water, regular showers, and clean
18 See supra p. 22 for a detailed discussion. 29

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clothing and bedding as a means of preventing the spread of infectious diseases including Methicillin-Resistant Staphylococcus Aureus (MRSA), a disease that is prevalent in some prison populations. (Tr. 5 at 92-94 (Johnson); Hr’g Ex. P-44; Tr. 6 at 13-14 (Cohen) (describing tuberculosis, MRSA, and other diseases of concern in prisons).) However, in the intake unit of the PPS and in the PAB and Police Districts, these procedures were not adhered to in the summer of 2006.19
The mere fact that inmates were detained in large numbers in cells that were meant to hold far fewer people is a cause of concern from a medical perspective. The risk of spreading infectious diseases increases dramatically when people sleep within three feet of one another. (Tr. 6 at 24-25 (Cohen).) The overcrowded conditions at the Police Districts, the PAB, and the intake unit of CFCF led numerous detainees to spend several days in extremely close quarters, sometimes sleeping on top of one another because of a severe lack of space. In these circumstances, especially given the fact that detainees were not permitted to wash their hands, shower, or change clothes for days, the risk of diseases including E. coli infection, Hepatitis A, pneumococcal pneumonia, meningitis, shigella, salmonella, and diarrheal disease significantly increases. (Id.) In addition, triple-celling of inmates in the quarantine area, at a point in time when they have been tested for various diseases but have not yet received medical clearance is a problem. Triple-celling makes it very difficult to maintain a three-foot barrier between people when sleeping. As a result, triple-celling increases the likelihood of transmission of infectious diseases, particularly when it is inmates who have not yet been medically cleared who are held in triple cells. (Id. at 25-26 (Cohen).)
19 See supra pp. 21-22. 30

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2. Medical Injuries Suffered by Plaintiffs A number of arrestees who were detained in police custody or in the intake unit of CFCF for extended periods in the summer of 2006 developed medical problems or suffered exacerbation of already existing problems as a result of their detention. Plaintiff Bowers developed a blood clot in his leg as a result of being forced to sleep huddled under a bench on the concrete floor in the intake unit.20 (Tr. 1 at 33-34, 41-43 (Bowers).) After being released from custody, Bowers was hospitalized for four days for his condition and continues to take medication for it. (Id. at 41-43.) Plaintiff Bucci lost fifteen pounds during the five day period in which he was in custody and suffered dehydration and soreness from sleeping on a concrete floor. (Tr. 1 at 127 (Bucci).) Plaintiff Leventry, who suffers from AIDS and Parkinson’s Disease was denied medication with the exception of one dosage during the four days he spent in police custody before being transferred to CFCF. (Tr. 1 at 146-48, 153-55 (Leventry).) When Leventry was transported to the hospital on the one occasion during those four days to receive medication, the nurse informed the police who escorted him that it was crucial for him to take his medication every eight hours. (Tr. 1 at 155 (Leventry).) Despite this, Leventry was never taken back to the hospital and never again given his medication while in police custody. (Id.) In addition, Leventry developed a serious infection in his thumb that required surgery after he was
20 It is worth noting that Bowers was not even charged with a crime. He was picked up on a bench warrant issued in a domestic relations matter when he failed to appear because he was ill. Bowers has been gainfully employed for the last fifteen years and has never had any contact with the criminal justice system. He was subjected to the conditions at CFCF as described above from Friday until Monday when the bench warrant was lifted. (Tr. 1 at 16-17 (Bowers).)
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released from CFCF.21 (Id. at 160-65 (Leventry).) Plaintiff Dennis Jones has diabetes and had part of his toe amputated in 2005. (Tr. 2 at 56-57 (D. Jones).) He was arrested in July 2006 wearing bedroom slippers and was not provided with a change of shoes while in police custody. (Id. at 58-59.) He developed a sore on the partially amputated toe and an infection on the other foot. Jones requested medical attention but was met with the response: “You shouldn’t a been locked up, this is not a hotel.” (Tr. 2 at 66-68, 77-78 (D. Jones) (answering Defense counsel’s question that there was, in fact, red blood coming out of the sore on his foot).)
It is clear that both the prison and police department have policies and procedures for dealing with prisoner medical problems. Nevertheless, during the summer of 2006, the overcrowding and accompanying conditions resulted in the failure of both the prison and police to properly attend to the medical needs of those in their custody.
H. Grievance Procedures and Exhaustion of Administrative Remedies Throughout their time in police custody and in the intake unit of CFCF, detainees did not have meaningful access to a grievance procedure through which they could have objected to the conditions of their detention. There is no grievance procedure for persons held in the receiving areas at CFCF, DC, or PICC. (Tr. 1 at 142 (Bucci); Tr. 2 at 34 (Kennedy); Tr. 2 at 119-20 (Pedraza); Tr. 4 at 72-73 (Scott) (denied a grievance form when he asked for one in CFCF intake).) At the time of admission to the PPS, detainees must surrender their personal property, including any writing implements and/or paper. In addition, during the intake process, no
21 Leventry testified that he did see a nurse while in intake at CFCF and that he was given some treatment for his thumb while he was in the prison. He went to the hospital for surgery upon his release from CFCF. (Tr. 1 at 164-66 (Leventry).)
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writing implements or paper are made available to inmates to enable the preparation of written complaints concerning conditions in the intake area. (Tr. 1 at 141-42 (Bucci); Tr. 2 at 34 (Kennedy); Tr. 2 at 119-20 (Pedraza); Tr. 6 at 122 (DiNubile) (inmates surrender personal property when placed in main holding cell at intake).) Moreover, when inmates held in the PPS intake areas made complaints to correctional officers concerning the conditions in the intake areas, correctional officers either ignored the inmates or told the inmates that nothing could be done to address the complaints. (Tr. 1 at 31 (Bowers) (“They don’t really answer questions that the prisoners have for ‘em.”); Tr. 1 at 127, 133, 142 (Bucci) (“Anytime you asked the guards for anything, they would just walk right by or say no.”); Tr. 2 at 119-20 (Pedraza) (inmates in intake requesting grievance forms were ignored by correctional officers); Tr. 4 at 72-73 (Scott) (denied grievance form requested in intake area).) Finally, the grievance forms in the PPS are officially available only in the housing units, law libraries, and from social services, areas that are not available to persons in intake. (Grievance Procedure, Doc. No. 74 at App. A, p. 4.)
I. City’s Plans for Future of PPS In 1978, the City created the Criminal Justice Coordinating Committee (“CJCC”) to improve the local administration of criminal justice. (Tr. 7 at 68 (Diaz).) The CJCC is chaired by the City Solicitor and consists of numerous stakeholders in the criminal justice system in the City of Philadelphia. It includes the Managing Director’s office, the PPS, the Police Department, the Executive Branch of the City Government, the District Attorney’s office, the Defender Association of Philadelphia, the Probation office, the President Judge of the Municipal Court, the Administrative Judge of the Trial Division of the Court of Common Pleas, and the Administrative Office of the Courts. (Id. at 71; Tr. 6 at 98 (Johnson).) In May 2005, the CJCC
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began developing a systematic approach to dealing with the problem of a rising prison
population. (Tr. 7 at 69.) To that end, the CJCC employed the services of Professor John
Goldkamp from Temple University to conduct a study on the demographics of the prison
population, the reasons for its continued growth, and potential solutions to reduce the population
of pretrial and post-trial inmates. (Id. at 70, 72.) Goldkamp has been a consultant to the
Philadelphia courts for years and has previously issued reports as a consultant on prison
population problems. (Id. at 111-12.) This Goldkamp study commenced in October 2005 and
was due to be completed in October 2006.22 (Id. at 73.)
While awaiting the Goldkamp study, the CJCC created the 24-Point Plan to begin to
address population-related issues in the prison system.23 (Hr’g Ex. D-1.) This plan includes the
following proposals to help reduce the prison population:
(1) implement out of state placements; (2) increase prison social worker and public defender staff to facilitate early releases; (3) reduce pretrial population with bail set under $10,000 or non-violent charges; (4) reduce pretrial population by implementing non-financial release mechanisms; (5) reduce pretrial population with bench warrants; (6) accelerate Court of Common Pleas dispositions; (7) reduce pretrial population by consolidating multiple open cases; (8) implement alternative sentencing options; (9) implement alternative sentencing options for backtime and probation failure cases; (10) implement alternative sentencing options for solely probation detainers; (11) implement alternative sentencing options including electronic monitoring; (12) enhance clerk of quarter sessions; (13) reduce pretrial processing delay by including reduction of continuances and increasing personnel; (14) ensure police discovery is promptly
22 Even though several defense witnesses mentioned the Goldkamp study during the course of the testimony, either the study has not been completed or counsel did not deem the results of the study sufficiently significant to submit to this Court.
23 It is not at all clear when the 24-Point Plan was initiated. Police Commissioner Johnson testified that it was developed after the lawsuit was filed. (Tr. 6 at 100-02 (Johnson).) Defendants claim in their Proposed Findings of Fact that it was developed in October 2005 but cite to Commissioner King’s testimony, which does not support that assertion. (See Doc. No. 77 at 13 (citing Tr. 3 at 158 (King)).)
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provided; (15) plead more “intermediate punishment” cases in Track Program; (16) increase time in PDA to enable arrestees to make bail; (17) formalize OSA - consider increasing capacity at prisons and police; (18) aggregation of sentences for transfer to state facilities; (19) major case plea negotiation program; (20) federalize gun crimes; (21) implement alternative sentencing option for substance abuse cases; (22) expand PD indigent homicide representation; (23) hire additional probation officers; (24) revise pretrial guidelines.
(Hr’g Ex. D-1.)
Several of the proposals in the 24-Point Plan have been implemented. Judge Fitzgerald’s
accelerated trial disposition plan (No. 6 above) went into effect on September 11, 2006. (Tr. 7 at
80 (Diaz).) In September 2006, City officials also procured a contract with Monmouth County,
New Jersey for 100 beds at the Monmouth County Prison to house PPS prisoners. There are also
efforts being made, albeit unsuccessfully thus far, to find similar space in other prisons. (Tr. 3 at
157 (King).) One hundred sixty (160) additional electronic monitors have been purchased and
are now in use. (Id. at 160 (King); Tr. 7 at 79 (Diaz).) There are efforts being made to move
prisoners with aggregated state sentences into state facilities. (Tr. 6 at 141 (DiNubile).) Budget
decisions with regard to the hiring of additional probation and parole staff were also made in June 2006. (Tr. 7 at 82 (Diaz).)24
Although the City has implemented several of these proposals, it has done nothing to
increase the capacity of the prisons or to in any way significantly reduce the prison population.
24 The City has also begun to take some small steps to correct the sanitation and fire safety problems in the police holding cells. (See Doc. No. 83 at Ex. 40, Doc. No. 76 at Ex. 41.) A memorandum from October 13, 2006 demonstrates that the PAB is being scheduled for a fire drill at an unspecified time and requires all supervisors to review a copy of the emergency plan for the building. (Doc. No. 83 at Ex. 40.) A memorandum from October 19, 2006, written in response to inquiries from the City Solicitor’s office, describes the custodial workers at the PAB and Police Districts and, among other things, indicates that the Police Department has requested six additional custodial workers, one of whom will be assigned to work the midnight to 8:00 a.m. shift in the PAB detention area, which was previously unassigned. (Doc. No. 76 at Ex. 41.)
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The notion that there are twenty-four proposals in this plan is also misleading. A number of the proposals in the 24-Point Plan would provide reductions that overlap with other proposals on the list. (Hr’g Ex. D-1.) In addition, many of the proposals list “unknown” resources that would be required to achieve these initiatives and “unknown” population reductions that would result. (Id.) At least two of the proposals involve extending detention time in police custody, which is, of course, the subject of this litigation. (Hr’g Ex. D-1; see Nos. 16 and 17 above.) Several of the proposals involve long-term solutions that will not take effect anytime in the near future. (Id.) Moreover, the implementation of the proposals above-mentioned has not, thus far, reduced the prison population. Rather, the population has continued to grow. (Tr. 3 at 148 (King).)
In the face of obvious prison overcrowding, and with a prison population that has continued to grow at a rate of three to four percent every year for the last fifteen to twenty years (Tr. 3 at 95 (King)), the City failed to provide any evidence that additional space would be built or found to accommodate significant numbers of prisoners. Aside from 100 beds in Monmouth County, attempts to rent other prison space have not been successful.25 (Tr. 4 at 47 (King); Id. at 24 (King).) The City has no current final plans for the construction of additional prison facilities or for the development of additional space for holding PPS inmates. All of the plans described by City officials are theoretical in nature. (Tr. 3 at 98-99 (explaining that the City has not obtained funding for a proposed new juvenile facility); Tr. 4 at 13-17, 47-51 (King); Tr. 7 at 23-29 (Ramos) (acknowledging that no additional bed space was made available from June to September 2006).)
25 King testified that it will cost $5,000,000 out of a budget of $200,000,000 to house one percent of the PPS population in Monmouth County. Renting prison cells from counties in other jurisdictions does not appear to be a cost-effective way to solve this problem.
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Finally, the District Attorney presented evidence of proposed legislation at the state level that would facilitate the transfer of inmates from the PPS to the Pennsylvania Department of Corrections (“DOC”) facilities when the inmate has a maximum sentence of twelve months or more. (Hr’g Ex. D-154, Tr. 7 at 53-55 (O’Brien).) This proposed legislation was drafted in the summer of 2006, with the assistance of counsel for the District Attorney’s office, after this litigation had been filed. (Tr. 7 at 61-62 (O’Brien).) In addition, the legislation was introduced without a determination as to the positive or negative impact it would have on guilty plea negotiations, and, in turn, on the PPS inmate population. (Tr. 7 at 64-65 (O’Brien).) Moreover, this legislation would effectuate a transfer of persons from the county prisons to the State correctional institutions. There is no indication that the State Department of Corrections, the Governor, or the Legislature will support the bill.
III. LEGAL STANDARD A. Preliminary Injunction Standard “[A]n injunction is an extraordinary remedy, which should be granted only in limited
circumstances.” Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002) (citation omitted). To obtain an injunction, the moving party must establish: “(1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without relief.” Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002). If factors one and two are established, the court must then consider factors three and four: “(3) whether an injunction would harm the [defendant] more than denying relief would harm the plaintiffs and (4) whether granting relief would serve the public interest.” Id.
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B. Prison Litigation Reform Act Requirements and Restrictions
The PLRA establishes additional requirements for granting a preliminary injunction
involving prison conditions. The PLRA specifies that:
In any civil action with respect to prison conditions, to the extent otherwise authorized by law, the court may enter a temporary restraining order or an order for preliminary injunctive relief. Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity . . . in tailoring any preliminary relief. Preliminary injunctive relief shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required . . . for the entry of prospective relief and makes the order final before the expiration of the 90-day period.
18 U.S.C. § 3626(a)(2). The comity principles to which the Act refers include the following:
The court shall not order any prospective relief that requires or permits a government official to exceed his or her authority under State or local law or otherwise violates State or local law, unless--
(I) Federal law requires such relief to be ordered in violation of State or local law; (ii) the relief is necessary to correct the violation of a Federal right; and (iii) no other relief will correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1)(B).
C. Legal Standard for Pre-trial Detainees
On a number of occasions, the Supreme Court and the circuit courts have discussed the
appropriate standard when assessing civil rights actions filed by prisoners who are detained in a
pretrial context. Federal courts must be particularly careful in dealing with prison conditions
claims and should “be reluctant to interfere in matters relating to the internal administration of
the states’ correctional facilities.” Norris v. Frame, 585 F.2d 1183, 1187 (3d Cir. 1978).
Nevertheless, the Third Circuit has made it clear that “[i]f a prison practice offends a
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constitutional guarantee . . . no policy of judicial restraint can justify a failure to vindicate valid constitutional claims.” Id. Keeping in mind this prescription, courts have sought to determine whether the proper standard when dealing with prison conditions and pretrial detainees is the Eighth Amendment’s ban on cruel and unusual punishment or, instead, the Fourteenth Amendment’s guarantee that life, liberty, or property will not be deprived without due process of law. The Third Circuit in Norris v. Frame noted that while the Eighth Amendment may be a legitimate starting point, a pretrial detainee’s rights may not be limited to protection from cruel and unusual punishment because that constitutional provision is not truly applicable to an individual who has not been convicted of a crime and may not be punished at all. Id. The court concluded:
[A pretrial detainee] is entitled to such liberty as does not undermine the legitimate state interests related to his detention. The fourteenth amendment, therefore, must be read so as to recognize [his] distinct status . . . a citizen not yet convicted, yet at the same time not possessing the full range of freedoms of an unincarcerated citizen. Id. The court observed that the only legitimate state interest in detaining an individual accused of a crime is the need to guarantee his presence at trial. Id. As a result, due process guarantees require that pretrial detainees be subjected to “restrictions and privation” only when they are inherent to the confinement itself or when they are “justified by compelling necessities of jail administration.” Id. at 1188. The court was unequivocal in stating that “[t]his standard of compelling necessity is neither rhetoric nor dicta. . . . [D]eprivation of the rights of detainees cannot be justified by the cries of fiscal necessity, administrative convenience, or by the cold comfort that conditions in other jails are worse.” Id. The Norris court concluded that
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restrictions on pretrial detainees must be barred absent a showing of a “substantial relationship to a prison security interest.” Id.
In 1979, the Supreme Court directly addressed this issue in Bell v. Wolfish, 441 U.S. 520 (1979), and echoed much of what the Third Circuit had stated in Norris. The Court indicated that Eighth Amendment scrutiny is appropriate only for individuals who have been convicted of a crime and that the Due Process Clause of the Fourteenth Amendment is the proper constitutional guarantee for a pretrial detainee. Bell, 441 U.S. at 537. The Court provided the following guidance in determining whether a restriction accompanying pretrial detention violates the Due Process Clause:
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. . . . [I]f 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. Id. at 538-39. In addition, the Court noted that “the effective management of [a] detention facility . . . is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.” Id. at 540. The question of which standard applies to pretrial detainees is somewhat more confused in the context of medical care for prisoners. In 1993, the Third Circuit decided Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993), in which federal pretrial detainees brought a civil rights action claiming, among other things, that they were provided inadequate medical treatment. In addressing the medical treatment claims, the Court referred to the holding in Estelle v. Gamble, 429 U.S. 97 (1976), in which the Supreme Court found that “‘[a]cts or omissions sufficiently
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harmful to evidence deliberate indifference to serious medical needs’ constitute cruel and unusual punishment under the Constitution.” Kost, 1 F.3d at 188 (quoting Estelle, 429 U.S. at 106). However, because the court in Kost was dealing with pretrial detainees, to whom Eighth Amendment protections do not apply, the court noted that Due Process rights under the Fourteenth Amendment, which are applicable to pretrial detainees, are “at least as great as the Eighth Amendment protections available to a convicted prisoner” and as a result, “the protections of the Eighth Amendment would seem to establish a floor of sorts.” Id. at 188, 188 n.10. Having reached this conclusion, the Kost Court then opined that the deliberate indifference standard under the Eighth Amendment would also apply to pretrial detainees through the Due Process clause. Id. at 188. In order for a pretrial detainee to prove a constitutional violation in the context of medical care, he or she “must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of the minimal civilized measure of life’s necessities.” Id. (quotations and citations omitted). Ten years later, the Third Circuit in Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003), re-affirmed this conclusion, evaluating a pretrial detainee’s claim of inadequate medical care “under the standard used to evaluate similar claims brought under the Eighth Amendment” and requiring the plaintiff to show “(I) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Id. at 582.
More recently, the Third Circuit in Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005), clarified the standard for pretrial detainees’ civil rights claims, addressing the confusion caused by the opinions dealing with medical treatment. In Hubbard, the Third Circuit noted that the district court may have been confused by the opinion in Kost in which the court applied the
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deliberate indifference standard to pretrial detainees. Id. at 166-67. Hubbard cautioned that any
consideration of pretrial detention must be viewed in the context of the Bell v. Wolfish standard
that requires courts to consider whether conditions endured by pretrial detainees amount to
punishment, whether they are reasonably related to a legitimate purpose, and whether they are
excessive in relation to that purpose. Id. at 158. As the court in Yelardy v. Taylor, 2006 WL
680660 (D. Del. Mar. 14, 2006) recently summarized:
The Third Circuit has distilled the teachings of Bell v. Wolfish into a two-step test: (1) whether any legitimate purposes are served by the conditions imposed; and (2) whether the conditions are rationally related to the purposes. Further, [i]n assessing whether the conditions are reasonably related to the assigned purposes, the Third Circuit inquire[s] as to whether these conditions cause [inmates] to endure [such] genuine privations and hardship over an extended period of time, that the adverse conditions become excessive in relation to the purposes assigned to them.
Id. at *7 (citing Hubbard v. Taylor, 399 F.3d at 159; Union County Jail Inmates v. DiBuono, 713
F.2d 984, 992 (3d Cir. 1983) (internal quotations omitted)). We will address Plaintiffs’ claims with this inquiry in mind.26
IV. CONCLUSIONS OF LAW
Having determined the facts in this matter, we must now address the following questions:
(1) Were Plaintiffs’ constitutional rights violated by the conditions at the PPS, at the PAB, or in the Police Districts from May through September 2006?
26 The District Attorney suggests, and we agree, that in addition to the standard for assessing claims by pretrial detainees as delineated by this line of Third Circuit cases, courts must also consider two additional elements. The first is the requirement that to grant systemwide relief, such as that sought in this case, the court must identify widespread actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996). In addition, courts must be particularly careful to permit prison officials “an opportunity to correct the errors made in the internal administration of their prisons” and in so doing to respect the limits of their roles. Id. at 363 n.8 (citing Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)).
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(2) If the Plaintiffs’ rights were violated, which conditions violated those rights? (3) Are Plaintiffs entitled to declaratory or injunctive relief under the PLRA, § 1983,
and the Constitution? (4) Is this Court precluded from granting relief based upon Plaintiffs’ lack of
standing, the mootness doctrine, the failure to exhaust administrative remedies, or restrictions placed on prisoner release orders under the PLRA? (5) If Plaintiffs are entitled to relief, what relief is appropriate? A. Constitutionality of Prison Intake and Police Holding Cell Conditions The Supreme Court has repeatedly cautioned that in evaluating claims of unconstitutional prison conditions, courts must be careful not to interfere with legitimate policy choices of prison officials. See Vazquez v. Carver, 729 F. Supp. 1063, 1069 (E.D. Pa. 1989) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)). As a result, our focus will not be on whether the conditions of intake and police holding cells offend the Court’s personal sensibilities but rather on whether the record establishes conditions that have worked actual privations and hardships. Id. In assessing the constitutionality of conditions in the CFCF intake and in the various Police Department holding cells during the summer of 2006, our inquiry will not consider the conditions out of context but will instead “consider the totality of circumstances within an institution.” Hubbard, 399 F.3d at 160. As discussed above, the standard that applies to pretrial detainees and with which we evaluate the various conditions that we have found existed in CFCF intake, the PAB, and the holding cells during the summer of 2006, is that established by Bell v. Wolfish and applied in numerous Third Circuit cases since then.27 Applying this standard, we find that the following conditions are, in combination, “objectively unreasonable in light of both
27 See supra pp. 38-42 for detailed discussion. 43

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existing precedent and plain common sense.” Young v. Keohane, 809 F. Supp. 1185, 1195 (M.D. Pa. 1992) (also noting that common sense is “sometimes a rare commodity in a prison setting where overcrowding and lack of resources raise levels of frustration for staff and inmates alike.”). While we are aware that many of these conditions were caused by overcrowding, we can identify no legitimate institutional objective for these conditions and find that, at the very least, they are “quite excessive in relation to the legitimate purposes . . . that might be assigned for them.” Id.
Plaintiffs have demonstrated, and Defendants do not meaningfully rebut, the fact that the prison was experiencing severe overcrowding in May through September 2006. Prison Commissioner King has acknowledged that he was so concerned about the increasing population and resulting overcrowded conditions at the prison that he instituted the OSA, a partial moratorium on prison admissions, to alleviate the problem. As a result, overcrowded conditions developed in the PAB and in local Police Districts where arrestees were held for up to seven days pending their admission to the prison. In CFCF intake, detainees were held in numbers that far exceeded the appropriate capacity of each cell, which created standing-room-only conditions for some, while others slept underneath benches or on top of one another on the concrete floor. Similar conditions existed at the PAB and Police Districts. The Supreme Court has noted 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.” Bell, 441 U.S. at 542. Even if one were to somehow conclude that overcrowding was not itself a constitutional violation, in this instance, the overcrowding led to a series of other
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conditions including extended stays in holding cells without beds, showers, and hygiene materials along with neglect of medical issues and increasing sanitation problems. Considering the totality of circumstances created by the overcrowding, it is clear that constitutional violations occurred.
1. Lack of Bedding We have concluded that detainees in the intake unit of CFCF and in police custody were not provided with beds or bedding for three to ten days.28 As a result, detainees slept on metal benches and on concrete floors for extended periods of time. In addition, because of the overcrowding, numerous inmates were forced to sleep on the floor with their heads next to toilets. Numerous courts have concluded that the use of floor mattresses for pretrial detainees constitutes an unconstitutional condition of confinement. See Newkirk v. Sheers, 834 F. Supp. 772, 782 (E.D. Pa. 1993) (forcing plaintiffs to sleep on mattresses placed on floors of cells violated their rights under Due Process Clause of the Fourteenth Amendment) (citing Lyons v. Powell, 838 F.2d 28 (1st Cir. 1988) (allegation that pretrial detainee was forced to sleep on floor mattress sufficient to show deprivation of due process); Anela v. Wildwood, 790 F.2d 1063, 1069 (3d Cir. 1986) (absence of mattresses unconstitutional in light of prior precedents that use of floor mattresses is unconstitutional for pretrial detainees); Lareau v. Manson, 651 F.2d 96, 105 (2d Cir. 1981) (use of floor mattresses constituted punishment “without regard to the number of
28 See supra pp. 23-24 for tables showing the number of detainees held for various amounts of time and the number of combined days certain detainees were held in Police Districts and intake areas. Some detainees spent more than seven days in police custody alone before even arriving at CFCF intake and spending another several days in the intake process.
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days for which a prisoner is so confined”); Young v. Keohane, 809 F. Supp. 1185, 1195 (M.D. Pa. 1992) (overcrowded conditions, including being forced to sleep on cots placed on floor, amounted to punishment); Inmates of Allegheny County Jail v. Wecht, 565 F. Supp. 1278, 1285 (W.D. Pa. 1983), aff'd in rel. part, 754 F.2d 120 (3d Cir. 1985) (totality of conditions at prison resulting from overcrowding, including use of floor mattresses, rose to level of constitutional violation for both pretrial detainees and inmates)). The Third Circuit in Union County Jail Inmates v. Di Buono, 713 F.2d 984 (3d Cir. 1983), specifically noted that placing a mattress on the floor for an inmate was an “unsanitary and humiliating practice” that was unconstitutional. Id. at 994, 996. In addition, in Anela, the Third Circuit found that the denial of beds, food, and drinking water to female inmates overnight constituted privation and punishment in violation of the Fourteenth Amendment. Anela, 651 F.2d at 1069.
In the instant case, the detainees were not even given mattresses. They were required to sleep on the concrete floor itself. Moreover, they were packed into cells in such numbers that they were sleeping sitting up, lying on each other, or huddled under a bench. Under the circumstances, we are compelled to conclude that the denial of beds and bedding to pretrial detainees housed in CFCF intake and in police custody for days constituted a violation of their due process rights. The failure to provide beds, while resulting from severe overcrowding was not related to any legitimate purpose and was certainly a genuine privation and hardship lasting an extended period of time.29
29 In arguing against such a conclusion, Defendants cite cases from the District of Delaware in which the court found that “providing sleeping accommodations on the floor” was not arbitrary or purposeless and hence was not a constitutional violation. Hubbard v. Taylor, 2006 WL 2709619, at *8 (D. Del. Sept. 20, 2006); Brookins v. Williams, 402 F. Supp. 2d 508, 512-13 (D. Del. 2005). The court in Brookins found that the failure to provide a bed was not
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2. Unsanitary/Unavailable Toilets and Lack of Personal Hygiene Materials We have found that in the summer of 2006, detainees were forced to use unsanitary sinks and toilets and often had to share these facilities with over thirty men. Toilets often had urine and rotten food on them, and sinks were frequently inoperable. In addition, inmates had only infrequent access to a private bathroom in which to move their bowels, and officers regularly denied inmate requests to use a private toilet. Many courts have determined that a prison’s failure to provide access to an operable and sanitary toilet is a matter of grave concern from a constitutional perspective. In Benjamin v. Sielaff, 752 F. Supp. 140 (S.D.N.Y. 1990), the court observed that “confining detainees in receiving rooms . . . which lack operative toilets and requiring that inmates be escorted by correction officers to bathrooms violates the Fourteenth Amendment.” Id. at 141 n.3 (citing Flakes v. Percy, 511 F. Supp. 1325, 1329 (W.D. Wisc. 1981) (“However primitive and ordinary, the right to defecate and to urinate without awaiting the permission of the government . . . are rights close to the core of the liberty guaranteed by the due process clause.”). Courts have similarly held that failure to provide access to functioning bathroom facilities impinges on prisoners’ liberty interests. See Wolfish v. Levi, 439 F. Supp. 114, 157 (S.D.N.Y. 1977), aff’d in part and rev’d in part on other grounds, 573 F.2d 118, 133 n.31 (2d Cir. 1978), rev’d on other grounds sub nom. Bell v. Wolfish, 441 U.S. 520 (1979) (“[I]t
unconstitutional because it was not imposed for the purpose of punishment and because, “although it was less than comfortable, it served a legitimate governmental purpose”—the need to house inmates in an overcrowded situation. Brookins, 402 F. Supp. 2d at 512. We respectfully disagree. Dealing with an unacceptably overcrowded situation by forcing detainees to sleep on concrete floors, does not, in this Court’s view, serve any legitimate purpose. Even if there were a legitimate purpose, being forced to sleep on a concrete floor for periods of up to ten days clearly causes detainees “to endure [such] genuine privations and hardship . . . that the adverse condition[] [is] excessive in relation to the purposes assigned to [it].” Yelardy, 2006 WL 680660, at *7.
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falls today below an acceptable level of humaneness to confine a prisoner of any sex where he or she must solicit freedom to use a toilet.”); Young v. Keohane, 809 F. Supp. 1185, 1195 (M.D. Pa. 1992) (“Particularly distressing is Young’s unrefuted allegations that limited access to an outside toilet regularly required detainees to urinate in cups inside the fishtank.”); Vazquez, 729 F. Supp. at 1070 (discussing problematic practice of requiring 30 inmates to share single toilet and sink and to rely on availability of prison guards for access to private bathrooms). Clearly, the failure of the prison system to provide sanitary, operable, and readily accessible toilet facilities violated Plaintiffs’ due process rights under the Fourteenth Amendment.
In addition, we have found that while detainees were held in police custody and in CFCF intake, they were provided with no materials for personal hygiene such as soap, warm water, toothbrushes, or toothpaste. In addition, they remained in their street clothes and had no access to showers. While the OSA was in effect, detainees were frequently held in police custody and in prison intake for days without access to these hygiene materials. In light of the length of time that detainees were held in these conditions, the overcrowded nature of the holding cells in which they were detained, and the increased risk of disease transmission and infection created by these conditions, we are compelled to conclude that this failure to provide personal hygiene materials violated Plaintiffs’ due process rights under the Fourteenth Amendment. See Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980) (“[A] state must provide . . . reasonably adequate ventilation, sanitation, bedding, hygienic materials, and utilities. . . . In short, a state must provide an inmate with shelter which does not cause his degeneration or threaten his mental and physical well being.” (internal citations omitted)).
3. Medical Needs
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As discussed above, courts have concluded that the Fourteenth Amendment affords pretrial detainees protections that are “at least as great as the Eighth Amendment protections afforded to a convicted prisoner.” Natale, 318 F.3d at 581 (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)).30 As a result, when assessing medical claims by pretrial detainees, courts may apply the deliberate indifference standard established under the Eighth Amendment but must view the inquiry in the context of the Bell v. Wolfish standard, which applies Fourteenth Amendment due process principles and not the cruel and unusual punishment standard to pretrial detainees. See Hubbard, 399 F.3d at 165-66. The deliberate indifference standard requires a finding of: “(I) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Kost, 318 F.3d at 582. In this case, even applying the deliberate indifference standard, there is no doubt that constitutional violations occurred.
We have found that detainees were frequently denied needed medical care while they were held in custody in the Police Districts, the PAB, and in CFCF intake. A detainee experiencing methadone withdrawal was ignored by correctional officers for two to three hours. A detainee suffering from diabetes who developed an open sore on a partially amputated toe was ignored by officers in CFCF intake despite repeated requests for a bandage to keep the area covered. An arrestee suffering from HIV and Parkinson’s was taken to the hospital once in four days to receive medication despite his repeated requests and the hospital nurse’s instructions that
30 The Third Circuit in Natale declined to decide “whether the Due Process Clause provides additional protections to pretrial detainees beyond those provided by the Eighth Amendment to convicted prisoners.” Natale, 318 F.3d at 581 n.5. We need not address this question since the circumstances before us clearly evidence deliberate indifference, violating the Eighth Amendment.
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he receive his medication every eight hours. In addition, detainees developed medical problems such as severe weight loss, dehydration, a blood clot, and infections as a result of the conditions to which they were subjected for several days. Plaintiffs have demonstrated serious medical needs and the failure of prison officials to respond despite sincere requests for care, clearly establishing a deliberate indifference to detainees’ needs. While it is clear that this situation resulted from the overcrowded conditions and the prison and Police Department’s inability to handle the number of detainees in their care, this is no justification for a violation of such essential rights.
4. Fire Safety at the PAB and Police Districts Based on testimony from Plaintiffs’ fire expert and a visual tour of the facilities, we have concluded that unsafe conditions existed at the PAB and in the Police Districts. PAB cells require manual unlocking of each cell, a disturbingly lengthy process to go through during a fire emergency. Combustible materials are prevalent throughout the holding cell areas. There is no evidence of fire protection systems including smoke detectors, automatic alarms and sprinklers. While there is a fire emergency plan, it requires staff to gather detainees in a garage loading area until a police wagon arrives, a situation that could cause delay and force inmates and staff to remain inside an area that is vulnerable to smoke and fire. In addition, the PAB has not performed fire drills in the last several years. The Police Districts share similar conditions and have no emergency plan at all. Failure to provide fire protection systems, failure to maintain emergency plans, and failure to remove hazardous conditions place detainees in potentially life-threatening circumstances, a clear violation of both the Eighth and Fourteenth Amendments. See Carty v.
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Farrelly, 957 F. Supp. 727, 737 (D.V.I. 1997) (finding conditions to be life-threatening and violation of Eighth Amendment where automated cell-locking devices, manual alarm systems, smoke dampers, and heat detectors were inoperable); Alexander v. Boyd, 876 F. Supp. 773, 786 (D.S.C. 1995) (finding individual padlocks on cells to unreasonably infringe on plaintiffs’ safety interest); see also Tillery v. Owens, 907 F.2d 418, 424, 427-28 (3d Cir. 1990) (considering lack of fire safety protections—including lack of detection and fire-fighting systems, high concentration of combustible materials, and lack of master unlocking system for cells—in totality of circumstances making double-celling unconstitutional in that case). As one district court noted: “The Court does not have to wait for the Plaintiffs to be incinerated before it can order the Defendants to raise the level of fire safety at the [prison].” Women Prisoners of D.C. Dep’t of Corrs. v. District of Columbia, 877 F. Supp. 634, 669 (D.D.C. 1994), rev’d on other grounds, 93 F.3d 910, 932 (D.C. Cir. 1996).
B. City Defendants’ Responses to Overcrowding Crisis As stated above, plaintiffs seeking injunctive relief must show the following: “(1) that they are reasonably likely to prevail eventually in the litigation and (2) that they are likely to suffer irreparable injury without relief.” Tenafly Eruv Ass’n, 309 F.3d at 157. If these two showings are made, the court must then consider “whether an injunction would harm the [defendant] more than denying relief would harm the plaintiffs and whether granting relief would serve the public interest.” Id. Having found that conditions that were in existence in CFCF intake, at the PAB, and in the Police District holding cells in the summer of 2006 violated Plaintiffs’ constitutional rights, we must now consider whether Plaintiffs have shown that these conditions are likely to recur and that, as a result, Plaintiffs are likely to suffer irreparable injury.
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1. Harris and Jackson Cases Our consideration of the likelihood of recurrence must begin with the history of Philadelphia prison condition litigation in the federal and state courts. After concluding almost thirty years of litigation dealing with prison overcrowding and the unconstitutional conditions resulting therefrom, the courts in Harris and Jackson approved settlement agreements in 2000 and 2001 with the promise from the City that it would responsibly maintain constitutional conditions in its prisons without court supervision. The courts approved of these settlements because the City promised to limit the prison population and/or create additional housing space for an inevitably increasing population. In addition, these settlement agreements discussed specific conditions including population caps and avoidance of triple-celling. See Jackson v. Hendrick, No. 2437, slip op. at App. A. Between 2000, when the Harris case settled, and now, the prison population has increased from approximately 7,000 inmates to close to 9,000 inmates. This increase was completely predictable. Nevertheless, the City has taken no steps to substantially increase the inmate capacity of the PPS.
2. Current Solutions and Lack of Action While the City has taken a few small steps in addressing the prison overcrowding problem, these steps began only in 2005, and action in earnest began after the instant lawsuit was filed. The steps taken by the City since 2005 have been catalogued above. They include: (1) use of the CJCC to bring together the various stakeholders in the City’s criminal justice system to deal with the overcrowding crisis; (2) creation of the 24-Point Plan, which includes long and short-term proposals for alleviating the overcrowding problems; (3) commission of the Goldkamp Study to consider pretrial detainees, post-trial inmates, and solutions for population
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related concerns; and (4) implementation of several of the 24-Point Plan proposals, many of which focus on accelerated trial dispositions. As Plaintiffs point out, many of these steps could have been suggested and implemented years ago, and many of the proposals directed at accelerating trial dispositions will not necessarily have the desired effect on the prison population.
In addition to these policy solutions, the prison system has solved the immediate pretrial detainee overcrowding problem with one main solution—triple-celling in the quarantine unit of CFCF intake. Adding a third inmate to quarantine cells intended for two prisoners has allowed the prison to handle more inmates in its intake unit overall. We do not now decide whether triple-celling under the present circumstances constitutes a violation of the due process rights of pretrial detainees. However, we caution that even if triple-celling is permissible as a short-term emergency solution, it is not tenable as a permanent cure. See Tillery, 907 F.2d at 427-28 (affirming district court holding that under the totality of circumstances, double-celling violated the Eighth Amendment); see also French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985) (finding double-celling to be unconstitutional and affirming a ban on its use) (citing Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (injunction upheld against double celling where it “engender[s] violence, tension and psychological problems”). The addition of a third detainee into a small holding cell intended for two detainees creates a host of troubling and hazardous conditions. The spread of disease is more likely to occur when inmates are forced to sleep in such close proximity to one another. This is of even greater concern at CFCF where inmates are triple-celled while they are in the quarantine unit, before they have been medically cleared and while they may still be carrying infectious diseases. Furthermore, detainees have not been fully
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classified when they are in quarantine. As a result, detainees of different categories may be placed together in a small living space, a situation which can result in violence and injury. With two inmates on a bunk bed and the third on a blue boat on the floor, there is little space left for standing or moving around the cell. Such a situation is likely to cause tension and perhaps violence. Finally, the solution of triple-celling cannot withstand a new influx of prisoners. While it is a stop-gap for the current crisis, any new surge in the intake population will overcome this solution and force the prison back to the conditions that existed in the summers of 2005 and 2006. When that occurs—and the history of yearly summer increases demonstrates that it will occur—there is nothing in place to solve the problem.
The City’s approach to addressing this problem has been to place a band-aid on a wound that requires major surgery. The City offers no evidence of new building projects that could create substantial change by significantly increasing the capacity of the prisons. Aside from hypothetical plans and a list of sites under consideration for potential future projects, neither Commissioner King nor the City Managing Director mentioned any plans for expanding existing prison space in the near future. In addition, aside from one contract with Monmouth County, New Jersey, the City has pointed to no other contracts for bed space that have been formalized or that are even under active discussion. While Commissioner King noted that the rule of corrections is if you build new space, you will fill it, a steadily increasing prison population clearly demands an increase in space. (Hr’g Tr. 3 at 158 (King) (“As we say in corrections, ‘If you build them, they will come.’”).) New space is filled because there is a need. The City’s failure in this regard is shocking in light of the well-known fact that the prison population is constantly increasing even without the summer spikes. See supra n. 4 (describing PPS’s
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knowledge of the overcrowding problem, particularly in the summer months, and the lack of action even after summer 2005 brought a similar problem with a similar moratorium style solution).
3. Inevitable Recurrence Under the circumstances, we are compelled to conclude that recurrence of the unconstitutional conditions that were in existence in the summer of 2006 is inevitable. In fact, even after the preliminary injunction hearing in October, problems in the intake unit of CFCF continued. Inmates Jerome Hands and Richard Brown were transferred from Pennsylvania Department of Corrections custody to PPS custody on October 6, 2006. They remained in CFCF intake for five days without beds. Plaintiffs allege that these inmates had no access to hygiene materials including warm water, soap, toothbrushes, or toothpaste while Defendants contend that these inmates received a daily shower, a clean jumpsuit, a towel, a blanket, and hygiene materials. Defendants do not deny that Hands and Brown spent five days in intake, far longer than the PPS policy dictates and that they had no beds during this time. Defendants’ response is that these inmates are not pretrial detainees but are instead convicted prisoners who were temporarily transferred from state custody on a Writ. As such, they are not within the definition of the plaintiff class. Defendants also contend that Hands and Brown were housed in intake for five days due to an error by CFCF staff. It is, nevertheless, telling that even after the OSA was lifted on September 11, 2006, after triple-celling was instituted in the quarantine unit, and after the hearing on the Motion for Preliminary Injunction, there continued to be problems in CFCF intake such that several inmates were housed there for lengthy periods without beds. In light of
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this fact and of the City’s overwhelming inaction in the face of an ongoing overcrowding problem, we conclude that the unconstitutional conditions are likely to recur.
C. Preliminary Injunction Standard Met In light of the foregoing, Plaintiffs have clearly met the four-prong standard for obtaining injunctive relief. We have determined that many of the conditions in existence in CFCF intake, the PAB, and the Police District holding cells in May through October 2006 constituted constitutional violations. Plaintiffs have therefore demonstrated substantial likelihood of success on the merits. In addition, having concluded that the history of this litigation and the City’s current inaction in the face of the overcrowding problem suggest a strong likelihood that such unconstitutional conditions will recur, we conclude that Plaintiffs are likely to suffer irreparable injury without relief. Moreover, it is abundantly clear that an injunction requiring the City to meet basic constitutional standards for the detention of pretrial arrestees would not harm Defendants more than denying relief would harm Plaintiffs. The only harm to Defendants is the cost associated with providing conditions of detention that pass constitutional muster while the cost to Plaintiffs, denial of constitutional rights, is far greater. As the Third Circuit has observed, “deprivation of the rights of detainees cannot be justified by the cries of fiscal necessity . . . .” Norris, 585 F.2d at 1188. Finally, granting injunctive relief in this case would certainly serve the public interest. As has been noted in other prison conditions cases, “The degree of civilization in a society can be judged by entering its prisons.” Hadix v. Caruso, No. 4:92-CV-110, 2006 WL 3275865, *25 (W.D. Mich. Nov. 13, 2006) (citing Respectfully Quoted: A Dictionary of Quotations, no. 1527 (Suzy Platt, ed., Library of Congress 1989) (attributing quote to Feodor Mikhailovich Dostoyevsky)).
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D. Potential Legal Barriers to Relief 1. Standing
Defendants have raised the question of Plaintiffs’ standing and the court’s jurisdiction to hear this case in a number of pleadings over the relatively short course of this litigation. (See Doc. No. 25, Doc. No. 40, Doc. No. 44.) In granting Plaintiffs’ Motion for Class Certification, we addressed Defendants’ argument that Plaintiffs lacked a “personal stake” or individual standing, a flaw, they argued, that was fatal to jurisdiction and to the request for class certification. In rejecting that argument, we determined that this case falls into a narrow exception to the mootness doctrine that was formulated to address short-term harms that would otherwise evade judicial review. Citing Gerstein v. Pugh, 420 U.S. 103 (1975), and United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), we concluded that while the named Plaintiffs are no longer pretrial detainees enduring the conditions alleged in the Complaint, the fact that their custody in intake and in Police Department holding cells does not last much more than one week made it impossible for us to rule on class certification while the named Plaintiffs were actually enduring the unconstitutional conditions. We concluded:
Given that Plaintiffs allege severe prison overcrowding and dangerous, unhealthy, and degrading conditions and given that it is certain that other pretrial detainees are currently and will in the future be detained under the allegedly unconstitutional conditions, this case certainly belongs in the class of cases for which an exception to mootness must be made. Bowers v. City of Phila., Civ. A. No. 06-3229, 2006 WL 2818501, at *7 (E.D. Pa. Sept. 28, 2006). In their Proposed Findings of Fact and Conclusions of Law, Defendants have again raised this issue with a slightly different approach. Defendants now argue that Plaintiffs lack standing
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and the Court lacks jurisdiction because at the time the Complaint was filed, on July 24, 2006, no named plaintiff or class representative had a live claim in that no named plaintiff was in custody in either Police Department holding cells or CFCF intake at that time. Defendants point to Plaintiff James Walker who, the Complaint indicates, was held in intake on July 24, 2006. (Doc. No. 1 ¶ 32.) Defendants argue that while the Complaint was filed at 12:39 p.m. on July 24, 2006 (Doc. No. 76 at Ex. 35 (Exhibit 35 actually shows a filing time of 12:29 p.m.), prison records show that James Walker was transferred out of CFCF intake at 8:26 a.m. on that day. (Hr’g Ex. 39 at Row 1122.)31 Plaintiffs respond that James Walker was, in fact, held in a quarantine unit as part of intake/admissions at the time the lawsuit was filed. (Doc. No. 87 at 19.) Plaintiffs contend that quarantine units are part of intake because inmates who are in quarantine have not been medically cleared or assigned to permanent housing locations. In addition, the triplecelling discussed above was and is currently being employed in quarantine areas as a means of accommodating the large numbers of prisoners in intake. Plaintiffs contend that those held in quarantine are part of the plaintiff class, which is defined as:
All persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs’ Complaint.
31 We note that Defendants indicate that Walker was transferred at 8:32 a.m. and cite to row 5728 in Exhibit 39. These numbers are incorrect. We also note that throughout their Proposed Findings of Fact, Defendants consistently cite to page numbers in the Hearing Transcript that do not provide support or even make mention of the topic or statement asserted in the Brief.
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Bowers, 2006 WL 2818501, at *8. We agree that Walker’s presence in the quarantine unit at the time the Complaint was filed supports Plaintiffs’ argument that they had standing to pursue injunctive relief at the commencement of the lawsuit. Indeed, when the Court took a tour of the intake unit at CFCF, the B-Pod or quarantine unit was included in that tour. In addition, the lawsuit was commenced on July 24, 2006 as a class action. The fact that the formal Motion for Class Certification was filed on September 12, 2006 is not fatal to the court’s exercise of jurisdiction.32
Even if we were to conclude that Walker’s presence in quarantine did not give him standing to sue, there are two additional grounds upon which standing and jurisdiction properly rest in this case. Plaintiffs argue that under the circumstances, it would have been impossible to require Plaintiffs to file suit while they were held in CFCF pre-quarantine intake or police custody because they lacked access to counsel or the courts during this time. Defendants respond that the hearing testimony from Thomas Innes of the Defender Association of Philadelphia, Mr. Innes’s deposition testimony,33 Deputy Warden DiNubile’s testimony, and what they refer to as “the symbiotic relationship between the Defenders Association and the Law
32 This conclusion regarding Walker’s location and standing to sue on July 24, 2006 reaffirms our earlier finding that this case is a suitable exception to the mootness doctrine. There was a named Plaintiff with standing at the time the suit was filed, but his standing had expired by the time the court certified the class because of the inherently short duration of the alleged harm. See Gerstein, 420 U.S. at 111 n.11 (“At the time the complaint was filed, the named respondents were members of a class of persons detained without a judicial probable cause determination, but the record does not indicate whether any of them were still in custody awaiting trial when the District Court certified the class. Such a showing ordinarily would be required to avoid mootness under Sosna. But this case is a suitable exception to that requirement.”).
33 We precluded the use of the Innes deposition testimony in our Memorandum and Order of January 18, 2007. (Doc. No. 92.)
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Offices of Kairys, Rudovsky, Messing, and Feinberg” together demonstrate that counsel did have access to pretrial detainees during pre-quarantine intake and while held in police department custody. We have reviewed this evidence and are compelled to agree with Plaintiffs.
Defendants cite to numerous passages of Thomas Innes’s deposition testimony, which they claim demonstrate that the Defender Association had access to pretrial detainees during intake and while in police custody. While we have determined that Innes’s deposition transcript must be excluded because he was present and testified at the hearing, in the interest of fully considering the jurisdictional question, we have reviewed the deposition transcript. It contains no statements that would suggest that public defenders spoke with, met, or had any meaningful access to detainees while in police custody or intake. Defendants claim that Innes testified that after the preliminary arraignment, the Defender Association “opens a file and tracks the location of their clients at all times.” (Doc. No. 76 at 12.) A review of Innes’s testimony reveals that he actually testified that a non-attorney representative of the Defender Association is present at preliminary arraignments and that the office then “tag[s] [their] cases, and they are then sent to [the] office on a daily basis, and files are opened up.” (Hr’g Tr. 4 at 103 (Innes).) He mentioned nothing about tracking clients’ locations in the prison system.34 Defendants also argue that “in some cases, an arrestee can be interviewed by a member of the Defender’s office before the arraignment takes place.” (Doc. No. 76 at 12 (emphasis in original).) Again, this is not what Innes stated. When asked if interviews ever took place pre-arraignment, Innes actually responded: “There may be. I don’t know of any.” (Innes Dep. at 14.) Defendants next assert
34 In fact, Innes testified that he had developed a list of people who his office could not interview before preliminary arraignment because “we weren’t able to find them.” (Hr’g Tr. 4 at 126 (Innes).) Clearly, there was no tracking of detainees’ locations within the system.
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that meetings between public defenders and their clients “can take place before and after the preliminary arraignment, anywhere their clients may be located.” (Doc. No. 76 at 13 (emphasis in original).) Once again, Innes’s testimony does not support this assertion. He instead stated that public defenders meet with their pretrial detainee clients “[a]s soon as possible after the arraignment and after they are admitted into the facility.” (Innes Dep. at 14 (emphasis added).) At the hearing, Innes further testified that the only time he can see arrestees who are in police custody is at the preliminary arraignment when one attorney must handle thirty to forty cases. (Hr’g Tr. 4 at 105 (Innes).) He made clear that the Defender Association has no system in place to interview people who are in police custody. (Id.) Similarly, Innes testified that in terms of detainees held in CFCF intake, his office does not have access to them until they leave the initial intake area and go into the quarantine because the initial intake area “is not set up for any interaction between non-correction staff and the inmate. . . . There’s no place to interview, it’s not secure . . . for the attorneys, there’s a lot of question at what point they’re actually strip searched. They may be carrying . . . weapons and so on, and the chance of one of our attorneys being hurt is high. (Id. at 106-07.)35
It is clear from Innes’s testimony that public defenders had no access to their clients while they were in pre-quarantine intake or in police custody. In addition, having found that detainees in these areas were held in deplorable conditions for days at a time, had no access to a
35 Defendants also assert that Innes implied that during his tour of the CFCF intake unit, he could have spoken to the detainees if he had so requested. (Doc. No. 76 at 14.) In fact, Innes remarked only that because the walls of the cells were plexiglass he “didn’t need to go in [to the cells] unless [he] expected to talk to the inmates and [he] didn’t even ask for that.” (Hr’g Tr. 4 at 118.) This statement in no way implies that communication between counsel and detainees was commonplace.
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prison grievance process, and had their serious medical complaints and requests to use the bathroom routinely ignored, we have no difficulty concluding that these prisoners had no meaningful ability to request counsel visits or to demand the right to file a complaint in federal court. The lack of meaningful access to the courts certainly supports our prior conclusion that this Court had jurisdiction even if a named plaintiff was not in intake at the time the Complaint was filed.
In addition to the lack of access to the courts, Plaintiffs argue that this case presents a situation for which the traditional “capable of repetition, yet evading review” exception to mootness should apply. Under the Supreme Court’s holding in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), this doctrine “applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” Id. at 109 (citing Defunis v. Odegaard, 416 U.S. 312, 319 (1974)). The exception thus applies only when the plaintiff himself will suffer the alleged harm again in the future. While our Memorandum and Order granting class certification expressed doubt as to the applicability of this standard in this case, Plaintiffs have presented additional evidence that makes such a scenario more likely. While we are not convinced based on general recidivism rates alone that one of the named plaintiffs in this case will likely return to the PPS and be required to go through intake again, evidence of the criminal records of specific plaintiffs are convincing in this regard. Plaintiff McDowell’s record details eleven prior admissions to the PPS in the last eight years. Since the hearing in this case, he has been convicted of DUI and is scheduled to stand trial on theft and related charges. (Doc. No. 87 at 22, Ex. E.) Several other plaintiffs have lengthy criminal records as well: Plaintiff Bullard has two prior incarcerations in
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the PPS; Plaintiff Topping was arrested three times between November 2005 and June 2006; and Plaintiff Williams has a pending criminal case, at least three prior arrests and two prior incarcerations at CFCF. (Id. at Ex. D.) This evidence suggests that at least some of the plaintiffs will certainly be rearrested and reincarcerated, again enduring the intake process at CFCF. See Demery v. Arpaio, 378 F.3d 1020, 1027 (9th Cir. 2004) (basing finding of “capable of repetition” prong on fact that numerous named plaintiffs have been arrested and detained at subject facility in the past). Since we have already concluded that the conditions in police holding cells and at CFCF intake resulted from policies and practices of the PPS and the Police Department—namely the OSA and the lack of plans to handle known overcrowding problems—this case is also a good candidate for the traditional “likelihood of repetition, yet evading review” standard to apply. See Md. State Conference of NAACP Branches v. Md. Dept. of State, 72 F. Supp. 2d 560, 564-65 (D. Md. 1999) (distinguishing case from Lyons where pattern and practice evidence and likelihood of recurrence evidence is present); see also DeShawn v. Safir, 156 F.3d 340, 344-45 (2d Cir. 1998) (same); Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992) (distinguishing case from Lyons and noting that the “possibility of recurring injury ceases to be speculative when actual repeated incidents are documented”). For these reasons, we conclude that Plaintiffs have standing to pursue injunctive relief and that jurisdiction in this Court is proper.
2. Mootness and Voluntary Cessation
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Throughout the preliminary injunction hearing, Defendants consistently pointed to the fact that the conditions in existence in the summer of 2006 are no longer present at the police holding cells or in CFCF intake. The implication is that this case is moot because the conditions have been remedied. We do not agree. As the Court in Friends of the Earth, Inc. v. Laidlaw Envtl. Svcs., 528 U.S. 167 (2000) stated: “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be compelled to leave the defendant free to return to his old ways.” Id. at 189 (internal quotations and citations omitted). The Court therefore announced the following stringent standard: “‘A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Id. (citing United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968); see also United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953); United States v. Gov’t of the Virgin Islands, 363 F.3d 276, 285 (3d Cir. 2004). Furthermore, the “heavy burden” of convincing the court that the alleged conduct will not begin again lies with the party asserting mootness. Friends of the Earth, Inc., 528 U.S. at 189.
In this case, the City has not met this burden. The timing of the City’s termination of the OSA—one week prior to the hearing on the Motion for Preliminary Injunction and on the same day that it sought a continuance of the injunction hearing—strongly suggests that the cessation was connected in large part to the instant litigation, a circumstance that does not favor a finding that the conduct is unlikely to recur.36 See W.T. Grant Co., 345 U.S. at 632 n.5 (“It is the duty of
36 The connection between the instant litigation and the termination of the OSA was made even clearer by Commissioner King’s admission that nothing had changed in terms of the conditions at CFCF intake to make termination of the OSA possible. Instead, the Managing
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the courts to beware of efforts to defeat injunctive relief by protestations of repentance and
reform, especially when abandonment seems timed to anticipate suit, and there is probability of
resumption.” (quoting United States v. Or. State Med. Soc’y, 343 U.S. 326, 333 (1952))); Gov’t
of the Virgin Islands, 363 F.3d at 285 (“The timing of the contract termination—just five days
after the United States moved to invalidate it, and just two days before the District Court’s
hearing on the motion—strongly suggests that the impending litigation was the cause of the
termination.”). In addition, the City’s continued defense of the conditions as a legitimate
response to its overcrowding problems37 does not engender confidence that the PPS will not
revert to these conditions again when faced with the inevitable growth of the prison population
in the future. See Gov’t of the Virgin Islands, 363 F.3d at 285-86 (“[T]he GVI’s continued
defense of the validity and soundness of the contract prevents the mootness argument from
carrying much weight.”). Furthermore, the City’s history of constitutional violations in the area
Director terminated the OSA when overcrowding in the Police Department became a matter of concern. Commissioner King implemented triple-celling in the quarantine unit in order to handle the influx of prisoners in intake, a step he considered taking prior to instituting the OSA but chose not to take because of correctional concerns. (Hr’g Tr. 3 at 178-79, 182-83.)
In addition, the efforts of the CJCC were clearly related to the instant litigation. Several elements of the 24-Point Plan were implemented in the weeks before the hearing. In addition, the proposed state legislation that was presented as evidence of potential solutions to the overcrowding crisis was itself drafted only weeks before the hearing and with the assistance of the District Attorney’s representative. These factors only serve to bolster the notion that the City’s efforts to put an end to the unconstitutional conditions and to deal with the underlying overcrowding problem were undertaken in direct response to this litigation.
37 See Doc. No. 76 at 32-33 (“While the conditions at the Police Department’s CCTV locations and the PDU were not ideal during the summer months of 2006, the conditions were not designed to punish the arrestees. . . . The implementation of the OSA served a legitimate government purpose—to provide conditions of confinement at CFCF that met the constitutional standards set forth in Bell v. Wolfish.”). We have found the conditions in the summer of 2006 to be at best unconstitutional and at worst inhumane; their characterization as “not ideal” is drastically insufficient. The OSA in no way provided constitutional conditions of confinement.
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of prison overcrowding and its failure to make any substantial progress since the termination of the previous litigations suggest that the present voluntary cessation cannot be relied upon in the future. This is particularly true given that the intake unit has, in the past, become the site of severe and unconstitutional conditions when the prison facilities reach their absolute maximum capacity. See Gray v. Sanders, 372 U.S. 368, 376 (1963) (“[T]he voluntary abandonment of a practice does not relieve a court of adjudicating its legality, particularly where the practice is deeply rooted and long standing.”). Finally, the fact that the prison population continues to increase, with consistent yearly increases of three to four percent coupled with the lack of any formal plans for construction of additional housing space in the near future means that the conditions that caused the overcrowding crisis and concomitant unconstitutional conditions in the summer of 2006 are likely to recur. The City’s present cessation is no guarantee that it will not re-institute similar policies again. See W. T. Grant Co., 345 U.S. at 632 n.5 (“When defendants are shown to have settled into a continuing practice . . . courts will not assume that it has been abandoned without clear proof.”). For the foregoing reasons, we are compelled to conclude that the City’s voluntary cessation of the challenged conduct does not deprive the Court of jurisdiction over this case.38
38 The District Attorney argues that the PLRA’s requirements for preliminary injunctive relief coupled with the City’s voluntary cessation of the challenged conduct prevent the court from providing injunctive relief in this case. As noted above, the PLRA provides that a court may enter preliminary injunctive relief only when it is “narrowly drawn, extend[s] no further than necessary to correct the harm the court finds requires preliminary relief, and [is] the least intrusive means necessary to correct that harm. 18 U.S.C. § 3626(a)(2). We do not agree that the present termination of the OSA and the unconstitutional conditions which followed from it has created a situation in which there is no harm left to correct. As previously noted, recurrence of the conditions in existence in the summer of 2006 is virtually inevitable as is irreparable injury. While we intend the relief we order to be narrowly drawn in keeping with PLRA, we have no doubt that such relief is necessary to correct the harm.
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3. Exhaustion of Administrative Remedies Defendants have argued directly, in their Motion to Dismiss (Doc. No. 44) and by implication in their questioning of various Plaintiffs who testified at the hearing, that this case should be dismissed based on Plaintiffs’ failure to file grievances and exhaust their administrative remedies as is required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e et seq. (See Doc. No. 44 at 15.) The PLRA provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e. Under the PLRA, “Prisoners must now exhaust all available remedies, not just those that meet federal standards.” Woodford v. Ngo, 126 S. Ct. 2378, 2382 -83 (2006) (internal quotations omitted); see also Booth v. Churner, 532 U.S. 731, 736 (2001). Defendants argue that since none of the incarcerated Plaintiffs filed grievances challenging the conditions of their confinement in the intake unit or police holding cells, they have failed to exhaust their administrative remedies and the case must be dismissed. (Doc. No. 44 at 16.) We disagree. First, several plaintiffs were not incarcerated at the time the Complaint was filed and, as such, are not bound by the exhaustion requirements of the PLRA. See 42 U.S.C. § 1997e(a). In addition, we have concluded that throughout their time in police custody and in the intake unit of CFCF, detainees had no meaningful access to a grievance procedure through which they could have objected to the conditions of their detention. See supra pp. 29-30. When detainees are admitted to the PPS, they must surrender all personal property including writing implements and paper. These items are not provided to detainees while they are in the intake process. Moreover,
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when detainees attempted to verbally complain to correctional staff about the conditions in intake, they were consistently ignored or told that nothing could be done to address their complaints. Finally, the PPS Policies themselves indicate that grievance forms are not available in intake areas. Therefore, we are compelled to conclude that there was no grievance procedure available to detainees held in intake. As a result, the failure of plaintiffs who were prisoners to file grievances regarding their conditions in intake and police custody cannot act as a bar to this court’s adjudication of the matter under the PLRA.39
4. PLRA Restrictions The PLRA provides that courts may not enter a “prisoner release order” unless (1) the court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the federal right and (2) the defendant has had a reasonable amount of time to comply with the previous court orders. 18 U.S.C. § 3626(a)(3)(A). The PLRA defines a prisoner release order as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626(g)(4). Plaintiffs have acknowledged that they cannot and do not seek a prisoner release order at this stage of the litigation. However, the District Attorney argues that several provisions in Plaintiffs’ proposed preliminary injunction order would constitute prisoner release orders under the Act. (Doc. No. 85 at 2.) Specifically, the District Attorney contends that any order that limits the length of time detainees may be held in police custody and/or that limits the number of
39 Because Defendants’ Motion to Dismiss (Doc. No. 44) was premised on two arguments—standing and exhaustion of administrative remedies—which we have rejected, we will deny the Motion to Dismiss.
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people who can be detained in a particular cell would have the effect of limiting the population of prison facilities and thus would constitute a prisoner release order. (Doc. No. 85 at 2-3.)
In our Memorandum and Order of September 8, 2006, granting the District Attorney the right to intervene in this case, we considered the meaning of the term “prisoner release order” under the PLRA. After discussing several Fifth Circuit cases, we stated: “[I]t is clear that were this Court to engage in any action that either set population caps, ordered a reduction in population at particular prison facilities, or limited the admission of inmates to prisons, we would be engaging in a ‘prisoner release order’ as that term is defined by the statute.” Bowers v. City of Phila., Civ. A. No. 06-3229, 2006 WL 2601604, at *4 (E.D. Pa. Sept. 8, 2006) (citing Ruiz v. Estelle, 161 F.3d 814 (5th Cir. 1998); Castillo v. Cameron County, 238 F.3d 339 (5th Cir. 2001)). We do not believe, nor does the District Attorney offer any case law in support of, the notion that an order placing a limit on the number of prisoners that may be held in an individual cell or that limits the amount of time that prisoners may be held in police custody constitutes a prisoner release order under the Act. Were we to limit the amount of time that an arrestee may be held in police custody—a limit that would be based on the Police Commissioner’s own testimony about the Police Department’s holding cells and their intended use—such an order would actually have the effect of increasing the prison population because it would require the prison to immediately admit those individuals who had been held in police custody for the maximum amount of time.40 In addition, were we to limit the number of detainees that may be
40 The District Attorney seems to also imply that in limiting the amount of time that a detainee may be held in a police facility, we would be issuing a prisoner release order because we would be limiting the population of that facility. However, police holding cells are not prisons. The District Attorney has offered no authority, and we are aware of none, that suggests that police department holding cells are covered in the prisoner release order definition of the
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held in an individual cell, such an order would limit only the population of that cell and not of the facility overall. As has clearly been the practice of the PPS in the past, prisons can always move prisoners to other cells or other areas so that any such order would not necessarily reduce the population of a given prison.
For these reasons, we conclude that the issues raised by Defendants and the District Attorney with regard to standing, mootness, exhaustion of administrative remedies, and the PLRA do not prevent this Court from providing relief in this case. We have found constitutional violations in the form of conditions that clearly deprive detainees of their due process rights. We will provide relief that is narrowly drawn, that extends no further than necessary to correct the harm, and that is the least intrusive means necessary to correct that harm.
E. Appropriate Relief The conditions in existence in the summer of 2006 in the intake unit of the PPS, the PAB detention unit, and the Police District holding cells violated the Fourteenth Amendment. The conditions include unsanitary and unavailable toilet facilities, the lack of soap, warm water, and personal hygiene materials, the lack of beds and bedding, deliberate indifference to the medical needs of detainees, the lack of fire safety protection for detainees at the PAB and Police Districts, and the placing of class members in holding cells at the PAB, in the Police Districts, and at the intake unit at CFCF in numbers far exceeding the capacity of the cells. Accordingly, we will issue a declaratory judgment regarding these conditions.
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In addition, Plaintiffs are entitled to preliminary injunctive relief. We will order such relief to correct the constitutional violations.41 In particular, we will order the City to submit plans approved by the City’s Fire Marshall for fire protection at the PAB detention unit and the Police Districts to Plaintiffs and to the Court. The plans shall be subject to Court approval and shall include a schedule for implementation on penalty of contempt. In addition, we will enjoin the City from permitting the existence of the following unconstitutional conditions: (1) the using of the PAB, Police District holding cells, and the CJC for holding class members postpreliminary arraignment for more than ten (10) hours without court permission; (2) the placing of class members in holding cells at the PAB, the Police Districts, CFCF intake or other PPS intake units in numbers that exceed the reasonable capacity of the cell;42 (3) the failing to provide detainees with warm water, soap, and personal hygiene materials in the CFCF intake unit, the PAB, and the Police District holding cells; (4) the failing to provide detainees with sanitary sinks and toilets; (5) the failing to provide detainees with a blanket, mattress, and bed for sleeping within twenty-four (24) hours of entry into the CFCF intake area; (6) the failing to provide reasonably prompt medical attention for detainees suffering from emergent medical problems;
41 In ordering injunctive relief, we are mindful of the Supreme Court’s words of caution in Lewis v. Casey: “[T]he strong considerations of comity that require giving a state court system that has convicted a defendant the first opportunity to correct its own errors . . . also require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” Lewis, 518 U.S. at 362 (quoting Preiser v. Rodriguez, 411 U.S. 475, 492 (1973)). We will permit the City to formulate plans to correct the unconstitutional conditions.
42 We note that during the tour of the CFCF intake unit, it was apparent that the prison had placed signs above each of the holding cells that indicate the “legal capacity” of the cell.
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and (7) the failing to classify pretrial detainees prior to their placement in the medical quarantine units.
F. The Future of this Litigation Where this case goes from here is entirely up to the City. The City has been aware of the prison overcrowding problem for years and has failed to take the steps needed to provide for an ever-increasing prison population. The City is also aware that the prison population typically spikes during the summer months. (Hr’g Ex. P-5.) That circumstance will undoubtedly occur in May or June of this year. Considering the fact that the PPS is already at or near capacity, when the spike occurs, or perhaps even before, the options will be limited.43 As discussed above, the PLRA defines the term “prisoner release order” as “any order . . . that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” 18 U.S.C. § 3626. The PLRA provides that such an order may only be entered by a three-judge court and only if that court finds by clear and convincing evidence that “(I) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” Id. at § 3626(a)(3)(E). It is clear that overcrowding is at the root of the unsafe, unsanitary, and unconstitutional conditions that we have discussed. This problem can be remedied either by Defendants or by a prisoner release order from a threejudge court. Obviously, the most desirable course is for the City to responsibly address the problem and comply with the relief that we now order.
43 The total capacity of the PPS is 8,948. (Hr’g Ex. P-13.) Commissioner King, in his Memorandum dated June 28, 2006, indicated that the population had reached 8,877 and that the prisons were full. (Hr’g Ex. P-1.) A three percent increase—which is the expected minimum yearly increase in the prison population—would put the prison population at 9,143 inmates by June 2007, significantly above the 8,948 inmate capacity.
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LEE BOWERS, et al.

:

:

:

v.

:

:

:

CITY OF PHILADELPHIA, et al.

:

CIVIL ACTION NO. 06-CV-3229

ORDER AND NOW, this 25th day of January, 2007, upon consideration of Plaintiffs’ Motion

For Preliminary Injunction (Doc. No. 2), City Defendants And District Attorney’s Joint Motion

To Dismiss Under Rule 12(b)(1) And Rule 12(b)(6) Or For Summary Judgment (Doc. No. 44),

and all papers submitted in support thereof and in opposition thereto, and after hearing, it is

ORDERED as follows:

1. City Defendants and District Attorney’s Joint Motion to Dismiss Under Rule

12(b)(1) and Rule 12(b)(6) or for Summary Judgment (Doc. No. 44) is DENIED.

2. Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 2) is GRANTED.

3. It is DECLARED that the conditions that existed in the intake unit at CFCF, in

the detention unit of the PAB, and in the holding cells in the Philadelphia Police

Districts during the summer of 2006, violated the constitutional rights of the

Plaintiffs and members of the Plaintiff class as provided under the Fourteenth

Amendment of the United States Constitution. The unconstitutional conditions

included the holding of post-arraignment detainees for days in holding cells at the

intake unit of CFCF, in the detention unit of the PAB, and in the holding cells in

the Police Districts in numbers that far exceeded the capacity of the cells, and

Case 2:06-cv-03229-RBS Document 94 Filed 01/25/2007 Page 75 of 76
which required detainees to sit and sleep on concrete floors and on top of each other. The conditions also included the failure to provide beds and bedding, the failure to provide materials for personal hygiene including soap, warm water, toothpaste, toothbrushes, and shower facilities, unsanitary and unavailable toilet facilities, the failure to provide for the medical needs of detainees, the failure to timely classify detainees in the intake unit at CFCF, and the lack of fire safety protection at the PAB and in the Police Districts. 4. The City is ORDERED to immediately take affirmative steps to redress the unconstitutional conditions by ensuring that detainees are held in the detention unit of the PAB, and in the Police District holding cells for no more than six (6) hours post-arraignment; by ensuring that post-arraignment detainees are placed in holding cells in the PAB, the Police Districts, and the CFCF intake unit in numbers that do not exceed the capacity of the cells; by providing postarraignment detainees at the CFCF intake unit, the PAB detention unit, and the Police District holding cells with materials for personal hygiene; by making sanitary toilets and sinks available to detainees; by providing detainees with beds and bedding within twenty-four (24) hours of entry into the CFCF intake area; by providing prompt medical attention for detainees suffering from emergent medical problems; and by classifying pretrial detainees before their placement into the medical quarantine unit. 5. The City is further directed to submit plans approved by the City’s Fire Marshal for fire protection at the PAB detention unit and the Police Districts to Plaintiffs

Case 2:06-cv-03229-RBS Document 94 Filed 01/25/2007 Page 76 of 76
and to the Court within thirty (30) days of the date of this Order. The plans shall be subject to Court approval and shall include a schedule for implementation. 6. The parties shall meet and agree on terms and conditions for the monitoring of the provisions of this Order and shall inform the Court of such terms and conditions within fifteen (15) days of the date of this Order. IT IS SO ORDERED.
BY THE COURT:
______________________ R. Barclay Surrick, Judge

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, et al. v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-CV-3229.
Sept. 28, 2006.
Angus R. Love, David Richman, Michael C. Chase, Pepper Hamilton LLP, David Rudovsky, Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg, Philadelphia, PA, for Plaintiffs.
Donald C. Marino, City of Philadelphia, Law Dept., Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner, Lynne A. Sitarski, City Of Philadephia Law Department, Chief Deputy City Solicitor, Philadelphia, PA, for Defendants.
MEMORANDUM & ORDER
SURRICK, J.
*1 Presently before the Court is Plaintiffs' Motion For Class Certification (Doc. No. 29), City Defendants and District Attorney's Response in opposition (Doc. No. 40), and Plaintiffs' Reply (Doc. No. 42). For the following reasons, the Motion will be granted.
I. BACKGROUND
This case involves allegations by pre-trial detainees in the Philadelphia Prison System (“PPS”) of severe prison overcrowding and concomitant dangerous, unhealthy, and degrading conditions. Plaintiffs allege that these conditions and the policies and practices of Defendants violate the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that they are pre-trial detainees who, due to severe overcrowding and lack of adequate facilities, are held at police districts, the Police Administration Building, or at intake units of the PPS.
Plaintiffs allege that the Philadelphia Prison System faces severe overcrowding problems which have led to a host of unconstitutional conditions. They contend that the overall prison population is now at “8,900

inmates, over 1,000 beyond the rated capacity of the PPS.” (Doc. No. 1 at 5.) Plaintiffs further allege that as a result of the overcrowding, “the PPS literally ran out of housing space” and has instituted a policy and practice of holding inmates at the intake/admissions area of the Detention Center (“DC”), the Philadelphia Industrial Correctional Center (“PICC”), and the Curran Fromhold Correctional Facility (“CFCF”) until a cell becomes available. They contend that inmates have been held in these areas for up to six days in dangerous and unhealthy conditions. (Id. at 67.)
In particular, Plaintiffs allege that conditions at these facilities include the following: (1) inmates at DC and PICC are held in cells without beds, adequate toilets, or access to showers, are not medically screened, and have no access to counsel; (2) inmates at CFCF are regularly held in cells with up to 25-35 men despite the cell's capacity to hold 5-10 inmates; (3) because of the overwhelmingly large number of detainees, inmates at CFCF often do not receive medical screenings for a week, and inmates with communicable diseases are held in close proximity with others for up to 100 hours; (4) the overcrowding and resulting conditions have made fighting among detainees inevitable. (Id. at 7-8.)
Because of these conditions in the PPS intake/admissions areas of the DC, PICC, and CFCF facilities, Plaintiffs allege that the Commissioner of Corrections has instituted a policy of not accepting new inmates from the Police Department, postpreliminary arraignment, when the population of the PPS exceeds 8,750. (Id. at 8.) As a result, people who are unable to post bail after their preliminary arraignment are now held at police districts or the Police Administration Building (“PAB”) for days while they await admission to the PPS. While being held at the police districts and the PAB, detainees receive only emergency medical care, have no access to phones, family, or legal counsel, no showers, inadequate toilet facilities and inadequate places to sleep. (Id.) Plaintiffs claim that “as of July 20, 2006, the PPS was not accepting new inmates and over 300 persons were awaiting admission to PPS, but are being held for days at police districts.”(Id. at 9.)
*2 Plaintiffs claim that the above-described conditions amount to violations of the Sixth, Eighth, and Fourteenth Amendments in that they are deprived

of their rights to counsel, to a speedy trial, to be free from cruel and unusual punishment, to the provision of medical care, and to the right not to be deprived of liberty without due process of law. (Id. at 12.)Plaintiffs seek certification of a class that includes:
All persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs' Complaint.
(Doc. No. 29 at 1.) They seek certification of this class for purposes of declaratory and injunctive relief only.
II. LEGAL STANDARD
The prerequisites for maintaining a class action are set forth in Federal Rule of Civil Procedure 23. To be certified, a class must satisfy the four prerequisites in Rule 23(a), and must fit within at least one of the three categories of class actions in Rule 23(b). Fed.R.Civ.P. 23; Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613-14 (1997).Rule 23(a) requires that the movant demonstrate the following for certification:
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed.R.Civ.P. 23(a).Rule 23(b)(2) permits certification when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”Fed.R.Civ.P. 23(b)(2).FN1
FN1. Plaintiffs rely on Rule 23(b)(2) and do not discuss Rule 23(b)(1) or 23(b)(3) as

potential grounds for class certification. (Doc. No. 29 at 7.)
Plaintiffs bear the burden of proof to show that the requirements in Rules 23(a) and (b) are met. Davis v. Romney, 490 F.2d 1360, 1366 (3d Cir.1974).“A class certification decision requires a thorough examination of the factual and legal allegations.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 166 (3d Cir.2001). When faced with “potentially cumbersome or frivolous” classes, Rule 23 grants district courts broad power and discretion in determining whether to certify a class and how to manage a certified class. Reiter v. Sonotone Corp., 442 U.S. 330, 345 (1979).
III. DISCUSSION
Plaintiffs assert that the class they seek to have certified meets all of the requirements of Rule 23(a) and 23(b)(2). Defendants contend that we should deny class certification for two reasons. First, they claim that the named plaintiffs lack standing to raise claims for injunctive and declaratory relief because they have alleged only past harm as pre-trial detainees. Defendants argue that this deficiency is fatal to the request for class certification. (Doc. No. 40 at 3.) In addition, Defendants argue that because the named plaintiffs do not have standing, they do not meet the “typicality” requirement of Rule 23(a)(3).(Id. at 11.)Defendants raise only these two objections to Plaintiffs' Motion for Class Certification and thus impliedly concede that Plaintiffs have met the other elements of Rule 23(a) and (b).
A. Uncontested Elements of Rule 23
*3 Plaintiffs contend-and Defendants do not challenge-that they satisfy the numerosity, commonality, and adequacy of representation requirements of Rule 23(a). We agree. Plaintiffs undoubtedly satisfy Rule 23(a)(1)'s requirement of numerosity. They allege that in the last two and a half months alone, over 300 people have been subjected to the conditions described in the Amended Complaint while being held at the intake/admissions areas of the DC, the PICC, and the CFCF. (Doc. No. 29 at 8.) In addition, as the class that Plaintiffs seek to have certified includes future detainees, the number will undoubtedly be far larger, making joinder impractical. See Mawson v. Wideman, 84

F.R.D. 116, 118 ((M.D.Pa.1979) finding joinder impractical and numerosity requirement met when class includes 147 current inmates in addition to future inmates). Accordingly, since the class in this case may include thousands of detainees, Plaintiffs clearly satisfy the numerosity requirement.
Similarly, Plaintiffs satisfy the commonality requirement. “Rule 23 does not require that the representative plaintiff have endured precisely the same injuries that have been sustained by the class members, only that the harm complained of be common to the class.” Hassine v. Jeffes, 846 F.2d 169, 177 (3d Cir.1988). In this case, all class members are or will be subject to the conditions alleged in the Amended Complaint, all of which result from the overall claim of unconstitutional overcrowding. Moreover, all members of the class raise common questions of law-whether the practices, policies, and resulting conditions alleged constitute violations of the United States and Pennsylvania Constitutions and the laws of the Commonwealth of Pennsylvania. As a result, Plaintiffs clearly satisfy Rule 23(a)'s commonality requirement. See id.(finding commonality in prison conditions litigation).
Plaintiffs also satisfy Rule 23(a)'s adequacy of representation requirement. “Adequate representation depends on two factors: (a) the plaintiff's attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class .” Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 247 (3d Cir.1975) (citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir.1968)). In this case, Plaintiffs' attorneys are, without question, qualified to handle this litigation. They have vast experience, having litigated the two prior class actions involving prison conditions at the PPS. (Doc. No. 29 at 12.) In addition, Plaintiffs' interests in this case coincide with those of the potential class members in that the named Plaintiffs seek a declaration that the practices, policies, and conditions complained of in the Amended Complaint are unconstitutional and seek injunctive relief prohibiting the continuation of those conditions. (Id. at 13.)
Finally, Plaintiffs have met the requirements of Rule 23(b)(2), that “the party opposing the class has acted or refused to act on grounds generally applicable to

the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”Fed.R.Civ.P. 23(b)(2). Courts have noted that Rule 23(b)(2) is “an especially appropriate vehicle for civil rights actions seeking ... declaratory relief ‘for prison and hospital reform.’ “ Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir.1980) (quoting 3B J. Moore & J. Kennedy, Moore's Federal Practice ¶ 23.40(1) (1980)); see also Santiago v. City of Phila., 72 F.R.D. 619, 625-26 (E.D.Pa.1976) (“This subsection has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities.”(citing Martinez Rodriquez v. Jimenez, 409 F.Supp. 582 (D.P.R.1976); Woe v. Mathews, 408 F.Supp. 419 (E.D.N.Y.1976); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976); King v. Carey, 405 F.Supp. 41 (W.D.N .Y.1975))).“The essential consideration is whether the complaint alleges that the plaintiffs have been injured by defendants' conduct which is based on policies and practices applicable to the entire class.” Santiago, 72 F.R.D. at 626.In this case, Plaintiffs allege policies and practices that have created dangerous, unhealthy, and generally degrading conditions throughout various units of the PPS and Police Districts. They seek relief that will terminate such practices. These allegations and the relief sought clearly satisfy Rule 23(b)(2)'s requirements.
B. Standing of Named Plaintiffs
*4 Defendants challenge Plaintiffs' Motion for Class Certification primarily on the ground that the named Plaintiffs do not have individual standing to seek injunctive and declaratory relief, a flaw that Defendants argue is fatal to the request for class certification. Federal-court jurisdiction is limited by Article III of the Constitution to “cases” and “controversies.” U.S. Const. art. III, § 2, cl.1; United States Parole Comm'n v. Geraghty, 445 U.S. 388, 395 (1980). In addition, the mootness doctrine limits the jurisdiction of the federal courts in two circumstances: “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Geraghty, 445 U.S. at 396 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The Supreme Court has referred to the second aspect of mootness, the notion of standing, as “the personal stake requirement.” Id. (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 755 (1976);

Baker v. Carr, 369 U.S. 186, 204 (1962)).
While the principles of mootness are applicable to every case before the federal courts, the Supreme Court has made clear that there are a number of exceptions to the doctrine of mootness. Defendants are correct that, as pointed out by Newberg on Class Actions,“threshold individual standing is a prerequisite for all actions, including class actions.”1 Herbert B. Newberg, Newberg on Class Actions § 2.05 (2d ed.1985). However, as the Supreme Court observed in Sosna v. Iowa, 419 U.S. 393 (1975), when a court certifies a class action, the class of unnamed individuals takes on a separate legal status from that of the named plaintiffs and “this factor significantly affects the mootness determination.”Id. at 557.The Sosna Court addressed a case in which a woman sought to represent a class of Iowa residents in challenging the constitutionality of an Iowa durational residency requirement for divorce proceedings. However, the named plaintiff had satisfied the residency requirements by the time her case reached the Supreme Court, leading the Court to address the question of mootness in the context of her class action litigation. Id. at 397-98.The Court concluded that for such a case to proceed, the named plaintiff must have a live case or controversy at the time the complaint is filed and at the time the district court certifies the class.Id. at 402.However, while there must, in addition, be a live controversy at the time the Court reviews the case, “[t]he controversy may exist ... between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.”Id. The court explained its rationale as follows:
This view draws strength from the practical demands of time. A blanket rule under which a class action challenge to a short durational residency requirement would be dismissed upon the intervening mootness of the named representative's dispute would permit a significant class of federal claims to remain unredressed for want of a spokesman who could retain a personal adversary position throughout the course of the litigation.
*5 Id. at 402 n. 9. Thus, the Court recognized an exception to mootness so that the resolution of the controversy as to the named plaintiff, so long as it occurs after the class is certified, does not render the

action moot as to the entire class. Id. at 401.
In addition to this class action exception to mootness, the Court has also recognized that there is a category of cases “that are deemed not moot despite the litigant's loss of personal stake, that is, those ‘capable of repetition, yet evading review.’ “ Geraghty, 445 U.S. at 398 n. 6 (citing S. Pac. Terminal Co. v.. ICC, 219 U.S. 498, 515 (1911)). The Court again recognized an example of this exception to mootness in the landmark case, Roe v. Wade, 410 U.S. 113 (1973):
[W]hen, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.”
Id. at 125 (citing S. Pac. Terminal Co., 219 U.S. at 515; Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. President and Comm'rs of Princess Anne, 393 U.S. 175, 178-79 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953)). In a more recent civil rights action in which the plaintiff sought injunctive relief against the City of Los Angeles, the Court clarified the “capable of repetition, yet evading review” doctrine. The Court in City of Los Angeles v. Lyons, 461 U.S. 95 (1983), explained that the doctrine “applies only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” Id. at 109 (citing Defunis v. Odegaard, 416 U.S. 312, 319 (1974)). The exception thus applies only when the plaintiff himself will suffer the alleged harm again in the future.
Defendants contend that neither of these exceptions to mootness apply to Plaintiffs in this case. We agree. With regard to the class action exception recognized in Sosna, it is clear that for this exception to apply, the court must have certified the class prior to the

expiration of the named plaintiff's personal stake. In this case, Plaintiffs allege past harm but are no longer pre-trial detainees. Defendants are correct that in the formal sense, Plaintiffs no longer have a personal stake in injunctive relief. As the Court in Oshea v. Littleton, 414 U.S. 488 (1974), observed: “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” Id. at 495-96;see also id. at 494 (“[I]f none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.”). Because the class was not certified before Plaintiffs' live controversy expired, the exception described in Sosna cannot apply.
*6 In addition, Defendants are correct that application of the “capable of repetition, yet evading review” doctrine is technically problematic in this case as well. The Lyons Court made clear that for the doctrine to apply, the plaintiff must demonstrate more than mere speculation that he will again experience the alleged injury if the practice is continued. Lyons, 461 U.S. at 109;see also id. at 108 (“We cannot agree that the ‘odds' that Lyons would not only again be stopped for a traffic violation but would also be subjected to a chokehold without any provocation whatsoever are sufficient to make out a federal case for equitable relief.”). In this case, Plaintiffs cannot offer more than speculation that they will face reincarceration in the PPS short-term detention facilities.FN2As a result, the “capable of repetition, yet evading review” doctrine, cannot, as it has traditionally been used, apply as an exception to mootness in this case.
FN2. Plaintiffs would have to assert that they will be re-arrested and incarcerated again as pre-trial detainees under the same conditions that they allege currently exist in the intake units of the PPS. Such a scenario is unlikely.
However, while we agree with Defendants that neither of the above-described exceptions applies in this case, Defendants have inexplicably failed to discuss several Supreme Court opinions that create a third type of exception to the mootness doctrine-an exception that clearly applies in this case.FN3In

Gerstein v. Pugh, 420 U.S. 103 (1975), the Court dealt with a class action suit brought by prisoners held in pretrial detention. In considering the mootness question, the Court noted that it was not clear whether any of the plaintiffs were still in pretrial custody when the District Court certified the class. Id. at 111 n. 11.The Court observed that under Sosna, a showing that the Plaintiffs had a personal stake when the class was certified would be necessary to avoid mootness. Id. However, the Court found that “this case is a suitable exception to that requirement.”Id. In a lengthy footnote, the Court observed that pretrial detention creates a unique situation by virtue of the transitory nature of the harm:
FN3. Zealous advocacy and intellectual honesty are not mutually exclusive.
The length of pretrial custody cannot be ascertained at the outset, and it may be ended at any time by release on recognizance, dismissal of the charges, or a guilty plea, as well as by acquittal or conviction after trial. It is by no means certain that any given individual, named as plaintiff, would be in pretrial custody long enough for a district judge to certify the class. Moreover, in this case the constant existence of a class of persons suffering the deprivation is certain.
Id. (internal citations omitted). The Court, in essence, recognized that while neither the Sosna class action exception nor the “capable of repetition, yet evading review” doctrine technically applied in these unique circumstances, an additional exception to mootness must exist to address shortterm harms that would otherwise truly evade judicial review. The Court explained:
This case belongs ... to that narrow class of cases in which the termination of a class representative's claim does not moot the claims of the unnamed members of the class. Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly “capable of repetition, yet evading review.”

*7 Id. (internal citations omitted). The Court referred to its decision in Gerstein several years later in United States Parole Commission v. Geraghty, 445 U.S. 388 (1980), observing that “[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.” Id. at 399.Numerous courts have since cited Gerstein and its exception to mootness for inherently transitory claims. See County of Riverside v. McLaughlin, 500 U .S. 44, 52 (1991) (referencing Gerstein's holding on inherently transitory claims and observing: “[t]hat the class was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction.”); Rocky v. King, 900 F.2d 864, 869-70 (5th Cir.1990) (referencing narrow exception in Gerstein for inherently transitory claims); see also Mawson, 84 F.R.D. at 120 (“[W]hen conditions challenged are common to the entire population, where there is such a turnover of inmates that the question of mootness stands as a possible barrier to adjudication, where Plaintiffs have retained experienced counsel, and where there is no response from the Defendants, then the cause is well suited for certification as a class action.”). In cases where this exception applies, “the ‘relation back’ doctrine is properly invoked to preserve the merits of the case for judicial resolution.” McLaughlin, 500 U.S. at 52 (citing Swisher v. Brady, 438 U.S. 204, 213-14 n. 11 (1978); Sosna, 419 U.S. at 402 n. 11).
The case before us is clearly just such a case. While Plaintiffs are no longer pre-trial detainees enduring the conditions alleged in the Complaint, the duration of pre-trial custody does not last much more than a week. It is impossible in this case for us to rule on class certification before any of the named Plaintiffs' personal stakes in injunctive relief expires. Were we to deny class certification or dismiss the case for lack of standing by the named Plaintiffs, the alleged harm would never receive judicial review. Given that Plaintiffs allege severe prison overcrowding and dangerous, unhealthy, and degrading conditions and given that it is certain that other pre-trial detainees are currently and will in the future be detained under the allegedly unconstitutional conditions, this case certainly belongs in the class of cases for which an

exception to mootness must be made. Accordingly, we find that Plaintiffs have standing to bring this class action for injunctive and declaratory relief.FN4
FN4. We note that Defendants have now put forth this meritless argument on standing in three separate pleadings in this case: Defendants' Response in Opposition to Plaintiffs' Motion for Preliminary Injunction (Doc. No. 25), the instant Response in Opposition to Plaintiffs' Motion for Class Certification (Doc. No. 40), and the recently filed Motion to Dismiss or for Summary Judgment (Doc. No. 44).
C. Typicality under Rule 23(a)
In addition to arguing that Plaintiffs do not have standing to seek injunctive and declaratory relief, Defendants also contend, based on the standing argument, that the class fails to meet the “typicality” requirements of Federal Rule of Civil Procedure 23(a). (Doc. No. 40 at 11.) Rule 23(a) requires that for a class to be certified, the movant must show that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.”Fed.R.Civ.P. 23(a).“[A] plaintiff's claim is typical if it arises from the same event or course of conduct that gives rise to the claims of other class members and is based on the same legal theory.” Zeffiro v. First Pa. Banking & Trust Co., 96 F.R.D. 567, 569 (E.D.Pa.1983).
*8 Defendants argue that “the named Plaintiffs, as past detainees, do not have injunctive and declaratory relief claims at all, let alone ones that are ‘typical’ “ because of their argued lack of individual standing. (Doc. No. 40 at 11.) In presenting this challenge to the “typicality” element of class certification, Defendants simply recast their argument on standing and re-state it as a challenge to Plaintiffs' satisfaction of Rule 23(a)'s requirements. However, we have already decided that an exception to mootness applies in this case because of the transitory nature of the harm involved in pre-trial detention. Were we to decide that despite this exception, the technical lack of standing made the named Plaintiffs' claims atypical of those they seek to represent, class certification would be impossible in any case involving pre-trial detention or other harms of short duration. We are unwilling to reach such a

conclusion. Accordingly, Plaintiffs' Motion for Class Certification will be granted.
An appropriate Order follows.
ORDER
AND NOW, this ___ day of September, 2006, upon consideration Plaintiffs' Motion For Class Certification (Doc. No. 29) and all papers filed in support thereof and in opposition thereto, it is ORDERED that the Motion is GRANTED. This action is hereby certified as a class action for purposes of injunctive and declaratory relief pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), on behalf of the following class:
All persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs' Complaint.
It is further ORDERED that plaintiffs Lee Bowers, Brandon Bucci, Darius Mcdowell, James Walker, Jerome Bullard, Jerome Hayes, Dennis Jones, Nathaniel Kennedy, Raymond Leventry, Michael Little, Gihad Topping, Timothy Weglicki, and Manuel Williams are hereby designated as the representatives of the class. David Rudovsky and the law firm of Kairys, Rudovsky, Messing & Feinberg LLP; Angus R. Love and the Institutional Law Project; and David Richman and the law firm of Pepper Hamilton LLP shall serve as class counsel.
IT IS SO ORDERED.
E.D.Pa.,2006. Bowers v. City of Philadelphia Not Reported in F.Supp.2d, 2006 WL 2818501 (E.D.Pa.)
END OF DOCUMENT

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, et al. v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-CV-3229.
Jan. 18, 2007.
Angus R. Love, Su Ming Yeh, Institutional Law Project, David Richman, Michael C. Chase, Pepper Hamilton LLP, David Rudovsky, Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg, Philadelphia, PA, for Lee Bowers, Brandon Bucci, Darius McDowell, James Walker, Jerome Bullard, Jerome Hayes, Dennis Jones, Nathaniel Kennedy, Raymond Leventry, Michael Little, Gihad Topping, Timothy Weglicki and Manuel Williams.
Donald C. Marino, Lynne A. Sitarski, Chief Deputy City Solicitor, City of Philadelphia, Law Department, Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner P.C., Philadelphia, PA, for City of Philadelphia, Leon A. King, II and Sylvester Johnson.
MEMORANDUM & ORDER
SURRICK, J.
*1 Presently before the Court are two evidentiary Motions filed by Plaintiffs: (1) Plaintiffs' Motion To Admit New Evidence (Doc. No. 73), and Defendants' Response thereto (Doc. No. 80), which also seeks admission of additional evidence, and (2) Plaintiffs' Motion to Strike Exhibit From Proposed Findings Of Fact, Conclusions Of Law And Memorandum Of Law Of Defendants City Of Philadelphia, And Commissioners King And Johnson (Doc. No. 81), Defendants' Response in opposition thereto (Doc. No. 83), and Plaintiffs' Reply (Doc. No. 84).
I. BACKGROUNDFN1
FN1. The background of this case has been more fully summarized in our previous Memoranda and Orders dated September 8, 2006 and September 28, 2006. See Bowers v. City of Phila., Civ. A. No. 06-3229, 2006 WL 2601604 (E.D.Pa. Sept. 8, 2006);

Bowers v. City of Phila., Civ. A. No. 063229, 2006 WL 2818501 (E.D.Pa. Sept. 28, 2006).
This case involves allegations by pre-trial detainees in the Philadelphia Prison System (“PPS”) of severe prison overcrowding and concomitant dangerous, unhealthy, and degrading conditions. Plaintiffs allege that these conditions and the policies and practices of Defendants violate the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
An evidentiary hearing was held October 3, 2006 through October 6, 2006 on Plaintiffs' Motion for Preliminary Injunction. On October 20, 2006, two weeks after the conclusion of the hearing on the Motion for Preliminary Injunction, Plaintiffs filed a Motion to Admit New Evidence. (Doc. No. 73.) On October 26, 2006, Plaintiffs filed a Motion to Strike, seeking to strike certain evidence presented in Defendants' Proposed Findings of Fact and Conclusions of Law. (Doc. No. 81.) We address these pending evidentiary motions prior to issuing our decision on Plaintiffs' Motion for Preliminary Injunction, since the evidentiary motions impact on the evidence that we will consider in reaching our ultimate conclusions in this case.
II. DISCUSSION
A. Motion to Admit New Evidence
Plaintiffs' Motion to Admit New Evidence (Doc. No. 73) seeks admission of evidence that shows that in the days immediately after the hearing, inmates were still being held in the intake areas of the Curran Fromhold Correctional Facility (“CFCF”) for multiple days. (Doc. No. 73 at 2.) During the hearing, Defendants presented evidence that as of October 4, 2006, the PPS was processing inmates through intake from the time they arrived at the door until the time they received a bed in the quarantine unit at an average rate of nineteen (19) hours per inmate. (Tr. 4 at 12 (King).) Plaintiffs seek admission of the Declarations of Jerome Hands and Richard Brown, inmates who were transferred to the PPS from state custody and were held in CFCF intake for five days, from October 6, 2006 through October 11, 2006. (Doc. No. 73 at 2.) In these Declarations, Hands and Brown state that they spent five days in CFCF intake, during which time they were not provided with beds,

had no opportunity to shower, and were given no access to hygiene materials such as soap, warm water, toothbrushes, and toothpaste. (Doc. No. 73 at Exs. 1, 2.)
In response to this Motion, Defendants acknowledge that inmates Hands and Brown were in CFCF intake for five days and state that this situation occurred because of a staff error. (Doc. No. 80 at 2-3.) In addition, Defendants state that Hands and Brown received clean jumpsuits, a blanket, daily showers, and daily use of hygiene materials including soap, shampoo, deodorant, toothbrushes, and toothpaste. (Id. at 3.) Moreover, Defendants note that the PPS uses different procedures for admitting state prisoners than it does for new pre-trial detainees. (Id. at 4.) Finally, Defendants claim that seventeen (17) of the nineteen (19) state prisoners who came into the PPS on October 6, 2006 were housed in general population within 72 hours of their arrival, pursuant to policy. (Id. at 3.) Defendants seek the admission of the Declarations of Deputy Warden James DiNubile (Id. at Ex. A), Sergeant Timothy Pearson (Id. at Ex. B), and pictures of the various hygiene materials (Id. at Ex. C).
*2 “It is well established that ‘a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits.’ “ Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 718 (3d Cir.2004) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)). As a result, courts receive affidavits and other hearsay material in preliminary injunction proceedings. Id. (citing Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir.1986); Ty, Inc. v. GMA Accessories, Inc., 132 F.3d 1167, 1171 (7th Cir.1997); Levi Strauss & Co. v. Sunrise Int'l Trading, Inc., 51 F.3d 982, 985 (11th Cir.1995); Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir.1993); Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir.1984)). Defendants do not oppose the admission of Plaintiffs' new evidence. Rather, Defendants request only that we admit additional declarations from Defendants as well. Under the circumstances, we will grant Plaintiffs' Motion to Admit New Evidence and grant Defendants' request to admit their new evidence.
B. Motion to Strike

On October 26, 2006, Plaintiffs filed a Motion to Strike Exhibit From Proposed Findings of Fact, Conclusions of Law and Memorandum of Law of Defendants City of Philadelphia and Commissioners King and Johnson. (Doc. No. 81.) Plaintiffs noted that the City Defendants had included four exhibits as attachments to their Memorandum of Law that were not admitted into evidence during the four-day hearing. (See Doc. No. 76 at Exs. 1-4.) Defendants also made reference to these exhibits in their proposed Findings of Fact and Conclusions of Law. (Doc. Nos.77, 78.)These new exhibits include: (1) excerpts from the deposition of Public Defender Thomas Innes (Ex. D-25); (2) the receipt from the filing of the Complaint in this case (Ex. D-35); (3) a memorandum from the Commanding Officer of the Police Detention Unit regarding fire safety at the facility FN2 (Ex. D-40); and (4) a memorandum regarding sanitation at the Police Department detention areas (Ex. D-41). (Doc. No. 76 at Exs. 25, 35, 40, 41.) Plaintiffs do not object to the use of exhibit D-35, because it is a public record in this case. Plaintiffs argue that exhibits D-40 and D-41 are hearsay, since they are memoranda from City officials that post-date the hearing. However, Plaintiffs do not object to the use of these exhibits because they do not believe them to have any probative value on the issues before the court. (Doc. No. 81 at 1-2.) Plaintiffs object only to the use of exhibit D-25, excerpts from the deposition of Thomas Innes and argue that it is inadmissible hearsay and that defendants had a full opportunity to crossexamine Mr. Innes at the hearing and to use his deposition for purposes of impeachment. (Id. at 2.)
FN2. This was not the memorandum originally submitted as exhibit D-40. However, Defendants subsequently filed a Motion to Substitute City Exhibit “40” (Doc. No. 82), noting that the exhibit originally submitted dealt with transportation of prisoners and had been submitted as exhibit D-40 in error. We will grant the Motion to Substitute and will refer to exhibit D-40 as the memorandum on fire safety at the PDU.
Defendants respond that Innes's deposition is admissible for several reasons. First, Defendants suggest that it is admissible because it is being used

as part of a “factual attack” on the subject matter jurisdiction of the court, citing case law that indicates that matters outside of the pleadings, including testimony and affidavits may be considered. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.1980). Next, Defendants argue, without explanation, that the deposition is admissible under Federal Rule of Civil Procedure 32(a), which, in certain circumstances, allows for use of depositions at trial or upon the hearing of a motion or at an interlocutory proceeding.Fed.R.Civ.P. 32(a). Defendants also argue, albeit without any elaboration, that the deposition is admissible under Federal Rule of Evidence 807. Finally, Defendants argue that Innes is counsel to Plaintiff Walker and that, as a result, the deposition is admissible as the statement of a party-opponent pursuant to Rule 801(d)(2) of the Federal Rules of Evidence.
*3 We find Defendants' arguments unpersuasive. First, Defendants provide no support or explanation for their argument that the deposition is admissible under Rule 32(a) or Rule 807 and do not even specify to which subsection of Rule 32(a) they are referring. We find nothing in either of these rules to support admission. In addition, while the Public Defender's office (and not Thomas Innes personally) represents Plaintiff Walker in his criminal case, this fact in no way makes Thomas Innes a party-opponent in the context of this civil rights action. Finally, while courts may consider matters outside of the pleadings in deciding the issue of subject matter jurisdiction, Defendants had ample opportunity to present this evidence and to question Innes on matters relevant to the court's subject matter jurisdiction at the time of Mr. Innes's testimony at the four-day hearing and to use his deposition testimony to impeach him if they saw fit.FN3We see no reasonable justification for the admission of this deposition testimony now and will grant Plaintiff's Motion to Strike exhibit D-25. We will permit the use of exhibits D-40 and D-41.
FN3. We address Defendants' argument that the court lacks subject matter jurisdiction in our Memorandum disposing of Plaintiffs' Motion For Preliminary Injunction. However, it is important to note at this point that we have reviewed the Innes deposition testimony, and we find that it does not support Defendants' argument on the issue of subject matter jurisdiction.

An appropriate Order follows.
ORDER
AND NOW, this 18th day of January, 2007, upon consideration of Defendants' Motion To Substitute City Exhibit “40” (Doc. No. 82), Plaintiffs' Motion To Admit New Evidence (Doc. No. 73), Plaintiffs' Motion To Strike Exhibit From Proposed Findings Of Fact, Conclusions Of Law And Memorandum Of Law Of Defendants City Of Philadelphia, And Commissioners King And Johnson (Doc. No. 81), and all papers submitted in support thereof and in opposition thereto, it is ORDERED as follows:
1. Defendants' Motion to Substitute City Exhibit “40” (Doc. No. 82) is GRANTED.
2. Plaintiffs' Motion to Admit New Evidence (Doc. No. 73) is GRANTED. We will admit the evidence referred to in Plaintiffs' Motion along with the Declarations of Deputy Warden James DiNubile and Sergeant Timothy Pearson as well as pictures of the various hygiene materials, as requested by Defendants in their Response (Doc. No. 80).
3. Plaintiff's Motion to Strike (Doc. No. 81) is GRANTED. Exhibit D-25 to Defendants' Proposed Findings of Fact and Conclusions of Law is stricken.
IT IS SO ORDERED.
E.D.Pa.,2007. Bowers v. City Of Philadelphia Not Reported in F.Supp.2d, 2007 WL 172373 (E.D.Pa.)
END OF DOCUMENT

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, et al. v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-CV-3229.
Oct. 10, 2007.
Angus R. Love, Su Ming Yeh, PA Institutional Law Project, David Richman, Michael C. Chase, Pepper Hamilton & Scheetz, David Rudovsky, Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg, Philadelphia, PA, for Plaintiff.
Donald C. Marino, Lynne A. Sitarski, City of Philadephia Law Department, Chief Deputy City Solicitor, Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner P.C., Philadelphia, PA, for Defendant.
Christopher P. Mallios, Priya M. Travassos, Philadelphia District Attorney‘s Office, Sarah V. Hart, District Attorney's Office, Corner of Juniper and S. Penn, Philadelphia, PA, for Intervenor Defendant.
MEMORANDUM & ORDER
SURRICK, J.
*1 Presently before the Court is the Joint Motion of Plaintiffs and the City Defendants to Terminate Preliminary Injunction (Doc. No. 148). For the following reason, the Joint Motion will be granted.
I. BACKGROUND
This action commenced on July 24, 2006 with the filing of Plaintiffs' Complaint against Defendants City of Philadelphia, Leon A. King II, individually and in his official capacity as Commissioner of the Philadelphia Prisons, Sylvester Johnson, individually and in his official capacity as Commissioner of the Philadelphia Police Department, and John Doe and Richard Roe, unknown Prison and Police Officials and Officers, in their individual capacities. (Doc. No. 1.) At the same time, Plaintiffs filed the Motion for Preliminary Injunction seeking relief in the form of a judgment, declaring that the practices, policies, and

conditions as alleged in the Complaint are unconstitutional, and an injunction prohibiting the implementation of such unconstitutional conditions. Plaintiffs requested that Defendants be required to “either provide the plaintiff class with constitutionally acceptable conditions of confinement, medical care, screening, and medication, access to legal counsel, placement in habitable cells, with adequate showers, toilets and other necessary personal hygiene, and protection from assaults or other dangers to their life or safety, or discharge the members of the class from custody.”(Doc. No. 1 at 12-13.)
On August 17, 2006, District Attorney Lynne Abraham filed a Motion to Intervene. (Doc. No. 9.) The Motion was granted by Memorandum and Order dated September 8, 2006. (Doc. No. 20.) Plaintiffs filed a Motion for Leave to Amend the Complaint on September 6, 2006. (Doc. No. 19.) This Motion was granted on September 13, 2006. (Doc. No. 33.) Plaintiffs' Amended Complaint added nine named Plaintiffs to represent the interests of the plaintiff class. (Doc. No. 34.) On September 12, 2006, Plaintiffs filed a Motion for Class Certification. (Doc. No. 29.) On September 28, 2006, we certified a class for purposes of declaratory and injunctive relief consisting of:
All persons who have been or will in the future be held post-preliminary arraignment in the custody of the Philadelphia Police Department, including its districts or the Police Administration Building, or anywhere in the Philadelphia Prison System, pending intake/admissions processing, at the Philadelphia Prison System, who have been or will in the future be subjected to the conditions of confinement as set forth in Plaintiffs' Complaint.
(Doc. No. 51 at 15.) On September 26, 2006, Defendants and District Attorney Abraham filed their Joint Motion to Dismiss under Rule 12(b)(1) and Rule 12(b)(6) or for Summary Judgment (Doc. No. 44), arguing first, that the Court lacks subject matter jurisdiction to adjudicate the injunctive relief claims, because Plaintiffs are no longer incarcerated in the short-term detention facilities at issue in the Complaint, and second, that the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq. (“PLRA”), precludes any civil action by these incarcerated Plaintiffs because of their failure to exhaust their

administrative remedies. (Doc. No. 44 at 1-2.) This Motion was denied. (Doc. No. 94.)
*2 An evidentiary hearing on prison conditions was held October 3, 2006 through October 6, 2006. (See Doc. No. 94 at 8 n. 7.) The Plaintiffs presented evidence at the hearing that focused upon conditions that existed between May and September of 2006. (Id. at 6.) In addition, on December 12, 2006, we toured the intake unit at the Curran Fromhold Correctional Facility (“CFCF”), the holding cells at the PAB, and the holding cells in the 9th Police District. (Id. at 1.)
On January 25, 2007, we entered a Preliminary Injunction. (See Doc. No. 94.) We made extensive findings of fact based upon evidence and testimony from the evidentiary hearing as well as the December 12, 2006 tours. (Id. at 3.) In the Order, we stated:
It is DECLARED that the conditions that existed in the intake unit at CFCF, in the detention unit of the PAB, and in the holding cells in the Philadelphia Police Districts during the summer of 2006, violated the constitutional rights of the Plaintiffs and members of the Plaintiff class as provided under the Fourteenth Amendment of the United States Constitution.
(Doc. No. 94.) Furthermore, the Order detailed the unconstitutional conditions that we found: The unconstitutional conditions included the holding
of post-arraignment detainees for days in holding cells at the intake unit of CFCF, in the detention unit of the PAB, and in the holding cells in the Police Districts in numbers that far exceeded the capacity of the cells, and which required detainees to sit and sleep on concrete floors and on top of each other. The conditions also included the failure to provide beds and bedding, the failure to provide materials for personal hygiene including soap, warm water, toothpaste, toothbrushes, and shower facilities, unsanitary and unavailable toilet facilities, the failure to provide for the medical needs of detainees, the failure to timely classify detainees in the intake unit at CFCF, and the lack of fire safety protection at the PAB and in the Police Districts.
(Id.) Finally, we ordered the City to take immediate affirmative steps to redress these conditions. (Id.)

On February 8, 2007, the City Defendants filed a Motion to Amend the Judgment Pursuant to Rule 59(e). (See Doc. No. 100.) On April 5, 2007, Plaintiffs filed a Motion to Extend Preliminary Injunction. (Doc. No. 117.) We held a hearing on April 12, 2007. (See Doc. No. 120.) On April 23, 2007, we amended Paragraph 4 of the January 25, 2007 Order. (Doc. No. 123.) We also extended the preliminary injunction for a 90-day period from April 25, 2007 through July 24, 2007. (Doc. No. 123 at 2; see also18 U.S.C. § 3626(a)(2).) We stated that “the extension of the preliminary injunction is necessary to correct and prevent the harms that were addressed in our Memorandum of January 25, 2007, and that the Order is narrowly drawn, is the least intrusive means, and extends no further than necessary to correct those harms.”(Doc. No. 123 at 2 .)
*3 On July 23, 2007, prior to the expiration of the 90day period, the Plaintiffs filed a Second Motion to Extend Preliminary Injunction. (Doc. No. 132.) We granted this motion (Doc. No. 134), incorporating by reference the Memorandum of January 25, 2007 and the Order of April 23, 2007. The July 23rd Order extended the preliminary injunction for a period of 90 days, from July 24, 2007 to and through October 22, 2007. (Doc. No. 134 at 1.)
Plaintiffs and the City Defendants have advised that they have reached a private settlement agreement. This agreement will continue the monitoring of the prisons without federal court supervision.
II. DISCUSSION
Plaintiffs and the City Defendants are in agreement that the Court should terminate the preliminary injunction entered on July 23, 2007. (See Doc. No. 148 at 1.) The District Attorney has notified the Court that she does not oppose the proposal of the Plaintiffs and City Defendants to have the preliminary injunction terminated and to enter into the private settlement agreement described in their joint motion.FN1(Doc. No. 149 at 2.)
FN1. The District Attorney filed appeals from the Orders of January 25, 2007, April 23, 2007, and July 23, 2007. (See Doc. Nos. 95, 127, 136.)The District Attorney has informed the Court that “[s]hould this Court

grant the parties' joint motion, the District Attorney will seek to withdraw the three consolidated appeals relating to this case that she filed with the Third Circuit.”(Doc. No. 149 at 3.) The District Attorney also advised that she “reserves all rights (under state and Federal law) to the extent that Plaintiffs or others seek to use this private settlement agreement in a manner that would interfere with the District Attorney's right to compel the incarceration of prisoners.”(Id.)
The Prison Litigation reform Act, 42 U.S.C. § 1997e et seq. (2000) ( “PLRA”), provides the following with regard to private settlement agreements:
Nothing in this section shall preclude parties from entering into a private settlement agreement that does not comply with the limitations on relief set forth in subsection (a), if the terms of that agreement are not subject to court enforcement other than the reinstatement of the civil proceeding that the agreement settled.
18 U.S.C. § 3626(c)(2)(A). The PLRA defines a “private settlement agreement” as “an agreement entered into among the parties that is not subject to judicial enforcement other than the reinstatement of the civil proceeding that the agreement was settled .”18 U.S.C. § 3626(g)(6).
In this case, the preliminary injunction entered into on July 23, 2007 will terminate in a matter of weeks. Under the PLRA, a court cannot extend a preliminary injunction for an additional 90-day period without first having a hearing and finding that the relief is narrowly drawn and the least intrusive means necessary to correct the violations. Both sides have agreed that terminating the preliminary injunction immediately and entering into a private settlement agreement is the best method, under the circumstances, to continue on the path to resolving the current dispute. (See Doc. No. 148 at 2.) The private settlement agreement between the Plaintiffs and the City Defendants, a copy of which is attached hereto, incorporates the “substantive obligations and commitments” of the April 23, 2007 preliminary injunction. (Id.; see Doc. No. 148 Ex. A (“Settlement Agreement”).) The settlement agreement will take effect immediately upon termination of the preliminary injunction instituted on July 23, 2007.

(Doc. No. 148 at 2.)
We are satisfied that the termination of the preliminary injunction and implementation of the private settlement agreement will not prejudice the Plaintiff class. As the Joint Motion stated: “Inasmuch as the City Defendants' obligations to the class are unchanged, the July 23rd preliminary injunction had a short remaining life-span, and the action itself remains pending as a vehicle for potential relief should circumstances warrant, the change in the character of the parties' agreement is of marginal substantive significance.”(Doc. No. 148 at 6.)
*4 Were we to deny the Joint Motion, in order to extend the preliminary injunction again, we would have to hold hearings to determine whether such relief was still required and satisfied PLRA standards. See18 U.S.C. §§ 3626(a)(1)(A), (a)(2). As the Plaintiffs and City Defendants explain, the private settlement agreement provides “substantive relief” that is “essentially coextensive with that which would be achieved if Plaintiffs were to prevail at a hearing on a contested motion to extend the current injunction.”(Doc. No. 148 at 7.)
Moreover, the Plaintiffs will still have access to the courts if future disputes arise. The Joint Motion states that “[n]o one questions the proposition that if the City provably engages in an action that would otherwise have been prohibited by the July 23 (or earlier) injunctive orders the plaintiffs will ultimately be entitled to relief in a court.”(Id. at 6; see also18 U.S.C. § 3626(c)(2)(B) (“Nothing in this section shall preclude any party claiming that a private settlement agreement has been breached from seeking in State court any remedy available under State law.”).)
Finally, Plaintiffs and the City Defendants have advised that the City is taking steps to redress the conditions that led to the Order of January 25, 2007 and the subsequent Orders.FN2
FN2. There has been some suggestion that the City is using triple-celling to alleviate the general prison over-crowding problem. In the Memorandum of January 25, 2007, we discussed triple-celling and observed that “even if triple-celling is permissible as a short-term emergency solution, it is not tenable as a permanent cure .”(Doc. No. 94

at 53.) That observation was made in the context of pretrial detainees and the intake units of the prison. It would certainly apply to the general population as well.
We are satisfied that termination of the preliminary injunction and implementation of the settlement agreement under these circumstances is appropriate. Accordingly, we will grant the Plaintiffs' and City Defendants' joint motion to terminate the preliminary injunction.
An appropriate Order follows.
ORDER
AND NOW, this 10th day of October, 2007, upon consideration of the Joint Motion of Plaintiffs and the City Defendants to Terminate Preliminary Injunction (Doc. No. 148), and all papers filed in support thereof and in opposition thereto, it is ORDERED that the Motion is GRANTED.
IT IS SO ORDERED.
E.D.Pa.,2007. Bowers v. City Of Philadelphia Not Reported in F.Supp.2d, 2007 WL 2972556 (E.D.Pa.)
END OF DOCUMENT

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-3229.
Dec. 12, 2008.
David Rudovsky, Jonathan H. Feinberg, Kairys, Rudovsky, Messing & Feinberg, Michael C. Chase, Pepper, Hamilton & Scheetz, Su Ming Yeh, Angus R. Love, Philadelphia, PA, for Lee Bowers.
Donald C. Marino, Craig M. Straw, City of Philadelphia Law Dept., Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner, Philadelphia, PA, Kerri E. Chewning, Archer & Greiner, Haddonfield, NJ, for City of Philadelphia, et al.
MEMORANDUM & ORDER
SURRICK, District Judge.
*1 Presently before the Court is the City's Motion for Summary Judgment. (Doc. No. 164). For the following reasons, the Motion will be granted in part and denied in part.
I. INTRODUCTION
Plaintiff Lee Bowers (“Plaintiff”) alleges overcrowding and unconstitutional conditions of confinement in the Philadelphia Prison System (the “PPS”). The City of Philadelphia (the “City”) has been dealing with the overcrowding conditions in the PPS for decades. In a Memorandum Opinion, dated January 25, 2007, we noted that “it is clear that overcrowding and its consequences have plagued the PPS at-large and its intake units, in particular, for years.”(Doc. No. 94 at 6.) We recounted the long history of court involvement in the overcrowding crisis in Philadelphia's prisons that began in 1971, continued through the 1980s, and did not end until a court-approved final settlement agreement in 2000. The settlement was approved because the City promised to limit the prison population and/or create additional housing space for an inevitably increasing population. See Harris v. City of Phila., No. 82-1847,

2000 WL 1239948, at *18-19 (E.D.Pa. Aug.30, 2000). Six years after the settlement and the City's promises to take action, the Complaint was filed in this case raising nearly identical claims of unsafe and unsanitary conditions resulting from overcrowding. The prison population has continued its pattern of growth from roughly 7,000 inmates in 2000, see id. at *5, to nearly 9,000 inmates in January of 2007 when we issued the Memorandum. (See Doc. No. 94.) The total capacity of the PPS is 8,948. (Prelim. Hr'g Ex. P-13.) There is an expected minimum yearly increase in the prison population of three percent, and every summer between the months of May and October there is a spike in the prison population. (Prelim. Hr'g Ex. P-5; Prelim. Hr'g Tr., Oct. 4, 2006, morning session, at 95.) The growth in the prison population and the annual spikes in the population have been entirely predictable. Nevertheless, as we noted in the Memorandum, the City appears to have taken no steps to substantially increase the inmate capacity of the prison system.
Most recently, in April of this year another lawsuit was filed alleging unconstitutional conditions at the PPS. See Williams v. City of Phila., No. 08-1979 (E.D.Pa. Apr. 28, 2008). The Complaint in Williams alleges that the prison population is now more than 9,300 inmates and that as a result of the overcrowded conditions inmates are being subjected to dangerous, unsanitary, degrading, and cruel conditions of confinement. The Complaint further alleges that prison authorities are attempting to alleviate some of the problems caused by overcrowding by “triplecelling” inmates, that is, placing three inmates in a jail cell that was designed for only two. In the January 25, 2007 Memorandum, we discussed the practice of triple-celling and warned that the practice was problematic and certainly was not a permanent solution to the overcrowding problem. (See Doc. No. 94 at 53.)
II. FACTUAL BACKGROUND
*2 Plaintiff alleges that he suffered injury at the PPS as a result of the overcrowded conditions in the intake center from June 23, 2006, through June 26, 2006. (Doc. No. 34 ¶¶ 21-24, 26-28.) On July 24, 2006, Plaintiff and others filed a class action Complaint against Defendants City of Philadelphia; Leon A. King, II, individually and in his official capacity as Commissioner of the Philadelphia

Prisons; Sylvester Johnson, individually and in his official capacity as Commissioner of the Philadelphia Police Department; and John Doe and Richard Roe, unknown Prison and Police Officials and Officers, in their individual capacities. (Doc. No. 1 .) At the same time, Plaintiffs filed a motion for a preliminary injunction seeking to correct conditions at the Philadelphia Police Administration Building (“PAB”), the intake unit of the PPS, and at the Curran-Fromhold Correctional Facility (“CFCF”). (Doc. No. 2.) Plaintiffs sought relief in the form of a judgment declaring that the practices, policies, and conditions as alleged in the Complaint are unconstitutional, and a permanent injunction prohibiting the continuation of such unconstitutional conditions. (Id.) Plaintiffs also sought compensatory and punitive damages. (Id.)
On September 13, 2006, Plaintiffs filed an amended Complaint. (Doc. No. 34.) The amended Complaint contains two counts. Count I alleges violations of the Sixth, Eighth, and Fourteenth Amendment right “to be free from deprivations of liberty without due process of law, to access to counsel, to a speedy trial, to be free from cruel and unusual punishment, and to the provision of necessary medical care.”(Id. ¶ 49.)Count II alleges violations of the right to be free of deprivations of liberty without due process of law under the Pennsylvania Constitution. (Id. ¶ 51.)In addition, Count II alleges state law claims of intentional infliction of emotional distress, negligence, and recklessness. (Id.)
On January 25, 2007, we entered a Preliminary Injunction. (Doc. No. 94.) We made findings of fact and conclusions of law based upon the evidence and testimony presented at the evidentiary hearing as well as tours that we conducted of the prison facilities. (Id. at 3.) We stated that the conditions that existed in the intake unit at CFCF, in the detention unit of the PAB, and in the holding cells in the Philadelphia Police Districts during the summer of 2006 violated Plaintiffs' constitutional rights. (Doc. No. 94.) We issued an Order detailing the unconstitutional conditions that we found, which included the holding of post-arraignment detainees for days in holding cells in numbers that far exceeded the capacity of the cells, the failure to provide beds and bedding, the failure to provide materials for personal hygiene, the failure to provide for the medical needs of detainees, the failure to timely classify detainees in the intake

unit at the CFCF, and the lack of fire safety protection at the PAB and in the Police Districts. (Id.) We ordered the City to take immediate affirmative steps to redress these conditions. (Id.)
*3 On August 30, 2007, Plaintiffs and Defendants moved jointly to terminate the preliminary injunction so that the parties could enter into a private settlement agreement that would continue the monitoring of the prisons without federal court supervision. (Doc. No. 148.) On October 10, 2007, we granted that joint motion, terminated the preliminary injunction, and dismissed the class claims. (Doc. No. 151.) After the October 10, 2007 Order, the only claims remaining were the § 1983 damages claims and the state law claims of the individual Plaintiffs. At this point, the only claims that remain are the § 1983 claims and the state law claims asserted by Plaintiff Lee Bowers against Defendants City of Philadelphia and Commissioner King in his official capacity.FN1 (Doc. No. 165 at 1 .) Plaintiff seeks money damages under 42 U.S.C. § 1983 for the unconstitutional conditions in the intake center of the PPS that caused him to suffer a blood clot in his left leg. (See Doc. No. 1; Doc. No. 34 ¶ 29; Doc. No. 164 at 1.) Defendants have moved for summary judgment on Plaintiff's amended Complaint in its entirety. (Doc. No. 164.) Defendants argue that Plaintiff has failed to identify an official policy of the City that caused detainees in the prison system to be subjected to unconstitutional conditions. Defendants argue that Plaintiff cannot identify a custom, policy, or practice of the City that violated Plaintiff's constitutional rights or to which the City was deliberately indifferent. Defendants argue that there is no basis upon which to impose municipal liability on the City.
FN1.“Claims asserted against governmental officials in their official capacities are, in essence, claims brought against the municipality of which the official is an agent.” Cruz v. City of Phila., No. 07-0493, 2007 WL 4190690, at *4 (E.D.Pa. Nov.21, 2007) (citations omitted); see also Brown v. Montgomery County, No. 04-5729, 2005 WL 1283577, at *4 (E.D.Pa. May 26, 2005) (noting that “official capacity actions represent another way to sue the municipality of which the officer is an agent” and that “an action brought against

both the entity and the public official in his or her official capacity is redundant” (citations omitted)).“Suits brought against government officials in their official capacities are ... treated as suits brought against the governmental unit of which they are officials.” Mitros v. Borough of Glenolden, 170 F.Supp.2d 504, 506 (E.D.Pa.2001) (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).
III. LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (explaining that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”).“The nonmoving party ...‘cannot rely merely upon bare assertions, conclusory allegations or suspicions' to support its claim.” Townes v. City of Phila., No. 000138, 2001 WL 503400, at *2 (E.D.Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir.1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, we must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express,

Inc., 54 F.3d 1125, 1127 (3d Cir.1995). However, we must not resolve factual disputes or make credibility determinations. Siegel Transfer, 54 F.3d at 1127.
IV. DISCUSSION
*4 Plaintiff alleges a federal constitutional claim under Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Plaintiff also alleges state law claims under the Pennsylvania Constitution and under theories of intentional infliction of emotional distress, negligence, and recklessness.
A. Municipal Liability under Monell
The parties correctly view Plaintiff's federal constitutional claim through the lens of Monell and its progeny. See Monell, 436 U.S. at 694. Under Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees. See id.Rather, “it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”Id. There must be a “direct causal link between a municipal policy or custom and the alleged constitutional deprivation” to ground municipal liability. Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 250 (3d Cir.2007) (citing City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
The Court of Appeals for the Third Circuit has observed that there are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983:
The first is where the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy. The second occurs where no rule has been announced as policy but federal law has been violated by an act of the policymaker itself. Finally, a policy or custom may also exist where the policymaker has failed to act affirmatively at all, [though] the need to take some action to control the agents of the

government is so obvious, and the inadequacy of existing practice so likely to result in the violation of constitutional rights, that the policymaker can reasonably be said to have been deliberately indifferent to the need.
Id. (citing Natale v. Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir.2003) (internal quotation marks and citations omitted)).
A government policy or custom “can be established in two ways.”Id. (citing Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir.1990)). Plaintiff may establish a government policy by showing that a “decisionmaker possess[ing] final authority to establish municipal policy with respect to the action” issued an official statement of policy. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Plaintiff may establish that a course of conduct constitutes a “custom” when, though not authorized by law, “such practices of state officials [are] so permanent and well settled” that they operate as law. Jiminez, 503 F.3d at 250 (citing Monell, 436 U.S. at 690). Plaintiff has the burden of showing that a government policymaker is responsible by action or acquiescence for the policy or custom. Id. (citing Andrews, 895 F.2d at 1480). At a minimum, “the government must act with deliberate indifference to the purported constitutional deprivation in order to ground liability.”Id. (citing San Filippo v. Bongiovanni, 30 F.3d 424,445 (3d Cir.1994)).
*5 Plaintiff asserts that “[t]he record in this case provides compelling evidence that the City's policies, practices, and customs caused the unconstitutional conditions to which Plaintiff was subjected in June, 2006 and that the City acted with deliberate indifference to Plaintiff's due process rights.”(Doc. No. 166 at 2.) Plaintiff proffers evidence that Defendants had knowledge of the overcrowding problem in the PPS-including overcrowding in the Intake Unit where Plaintiff was confined-in the years prior to Plaintiff's incarceration in 2006.FN2(Prelim. Hr'g Tr., Oct. 4, 2006, morning session, at 92, 94.) For instance, at the preliminary injunction hearing Commissioner King testified that he was aware in 2002 that various courts had expressed concern about the conditions of confinement in the PPS. (Id.)Plaintiff points to the Jackson v. Hendrick litigation in the Pennsylvania state courts that began

in 1971 and continued for more than twenty-five years. (Doc. No. 166 at 3.) In Jackson, inmates in the City's prison system alleged that their conditions of confinement violated their constitutional and statutory rights. See 764 A.2d 1139, 1141 (Pa.Commw.Ct.2000) (reciting case history). Plaintiff also points the Harris v. City of Philadelphia litigation in federal court that began in 1982 and continued for eighteen years. See Harris, No. 821847, 2000 WL 1239948, at *1 (E.D.Pa. Aug.30, 2000). The inmates in Harris made similar allegations of overcrowding and unconstitutional conditions of confinement. Plaintiff contends that this history of overcrowding-and the consent decrees that ensued in the Harris and Jackson cases-undermines the City's argument “that the oppressive and unconstitutional conditions that existed in June, 2006 at the CFCF Intake Unit somehow emerged without warning or notice.”(Doc. No. 166 at 1.)
FN2. Defendants concede that “it is helpful to look at the conditions ... prior to June of 2006,” even though Plaintiff's amended Complaint is “strictly limited” to a later time period. (Doc. No. 164 at 19-20.)
Plaintiff proffers evidence that Commissioner King was aware of overcrowding conditions in the years preceding Plaintiff's incarceration. For instance, Commissioner King knew of steep rises in the inmate population at the PPS-indeed, the population “always went up”-and knew of his duty to provide that population with constitutional conditions of confinement regardless of the number of inmates. (Id. at 95-97, 100.)Commissioner King testified that beginning in May, 2005, and ending sometime in the Fall of 2005, an overflow of prisoners in the PPS was so bad that he had to implement an admissions moratorium for several months. (Id. at 106-110.)In October, 2005, the City developed a “24 Point Plan” to reduce the prison population. (Id. at 150152.)Plaintiff asked Commissioner King about the “24 Point Plan” during direct examination at the preliminary injunction hearing:
Q: Okay, so this was a plan or initiative that was started just this summer.
A: No, this was a plan or initiative that actually was started in October of '05.

Q: All right, and that was because even as early as October of '05 you, the prison system, and the City knew there was a problem with the population of the prisons, that at some point the jails would be full, there'd be no beds, and you'd have a crisis.
*6 A: Yes.
Q: Isn't that correct?
A: Yes.
(Id. at 152-53.)Commissioner King testified that the plan “was just another thing along in that continual process over the past four or five years, where we all sat down and said, ‘you know, we need to see if we can't pick up the pace of what we're trying to do here.’ “ (Id. at 153.)The evidence and testimony presented at the preliminary injunction hearing clearly established that Commissioner King and other City officials were painfully aware that at least for “the past four or five years” they needed to “pick up the pace” to avert a “crisis.”
By June, 2006, the jails were “full” and the atmosphere in the PPS was “just too tense to allow the flow to increase.”(Id. at 108.)Thus, the PPS again implemented an admissions moratorium because of overcrowding. (Id.) The admissions moratorium in 2006 was similar to the 2005 moratorium. (Id. at 10910.)Commissioner King testified that the prison population continued to increase even after Defendants initiated a plan to deal with overcrowding.(Id. at 150-51.)It is interesting to note that the plan was not implemented until after Plaintiff brought the instant lawsuit. (Id. at 14950.)Meanwhile, from 2004 to 2006, there were “no other plans” to provide additional prison space except for plans to build a new juvenile facility that would house “about 120” inmates.FN3(Id. at 100101.)Defendants made plans to build the facility but obtained no funding for it at any time before Plaintiff's incarceration. (Id. at 98-99.)Defendants also made plans for creating more space for inmates, but by October, 2006, none of those plans had come to fruition. (Prelim. Hr'g Tr., Oct. 4, 2006, afternoon session, at 13-17, 47-51.)
FN3. In contrast, the prison population had risen from fewer than 6,700 inmates in 2003 to nearly 9,000 inmates in 2006. (Prelim.

Hr'g Tr., Oct. 4, 2006, morning session, at 97-99.) King testified that he knew that the prison population had increased by three to five percent per year since he became Commissioner in 2002. (Id. at 92, 100.)
Based upon the evidence and testimony presented at the preliminary injunction hearing, as set forth in the findings of fact in the January 25, 2007 Memorandum, Plaintiff clearly presents genuine issues of material fact for a jury's consideration. SeeFed.R.Civ.P. 56(e). A reasonable jury could easily find that Defendants were aware of prison overcrowding in the PPS that has existed for many years. Defendants had knowledge of the Harris and Jackson litigation that spanned nearly three decades. Commissioner King was aware (1) that the prison population continued to increase every year, (2) that he had a duty to provide constitutional conditions of confinement regardless of the number of inmates in the prison population, and (3) that the prison population “always went up,” especially in the summer. The City had a prison overcrowding crisis that resulted in unconstitutional conditions. Yet the only concrete plan for additional prison space was a juvenile facility that would hold only 120 inmates. In 2005 and 2006, overcrowding in the PPS was so bad that Commissioner King closed the doors and refused to take additional inmates. It was during the 2006 moratorium on admissions that Plaintiff was incarcerated in the PPS facility. Plaintiff testified that he was placed in a holding cell “packed” with inmates and “people laying [sic] on the floor,” and then moved to smaller and smaller cells that were so “cramped” that “you couldn't even breathe in them.”(Pl.'s Dep. at 30, 36, 74.) The toilet was “filthy” and “disgusting,” and the sink was “pretty much like the toilet.” (Id. at 75.)The heat was easily “a hundred degrees,” and was so stifling that “[w]hen they opened the door, it was ... a treat.”(Id. at 76.)Plaintiff slept on the concrete floor under a bench in a position where he “couldn't stretch” his leg, because if he had done so he “would have kicked somebody.” (Id. at 78.)The conditions as described by Plaintiff were deplorable. A reasonable jury could certainly find that Defendants-though aware of the overcrowding problem in the PPS-failed to take appropriate action, and that Defendants' failure to do so amounted to deliberate indifference. See Jiminez, 503 F.3d at 250;see also Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir.1986) (holding that the city could be held liable under Monell for the

conditions of plaintiffs' confinement, where “[e]ven if the practices with respect to jail conditions ... were followed without formal city action, it appears that they were the norm”).
B. State Law Claims
*7 Plaintiff does not dispute Defendants' assertion that “all state tort claims” alleged in the amended Complaint-which include intentional infliction of emotional distress, negligence, and recklessness-are barred by the Political Subdivision Tort Claims Act (the “PSTCA”), 42 Pa. Cons.Stat. Ann. §§ 8541-8542 (West 2008). (Doc. No. 164 at 25.) Plaintiff also does not dispute Defendants' assertion that “there is no private cause of action for money damages under the Pennsylvania Constitution.”(Id.)
1. Political Subdivision Tort Claims Act
The PSTCA provides an absolute defense that limits the exposure of political subdivisions to tort liability. See City of Phila. v. Gray, 534 Pa. 467, 633 A.2d 1090, 1093 (Pa.1993) (noting that “the defense of governmental immunity is an absolute defense”); Pa. Turnpike Com'n v. Nationwide Trucking Servs., Inc., 319 F.Supp.2d 569, 575 (W.D.Pa.2004) (applying Pennsylvania law) (noting that “governmental immunity is ‘an absolute defense’ that cannot be waived”) (citing In re Upset Sale of Properties, 522 Pa. 230, 560 A.2d 1388, 1389 (Pa.1989)). The PSTCA provides that, “[e]xcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”42 Pa. Cons.Stat. Ann. § 8541 (West 2008). There are eight categories of exceptions to the PSTCA's grant of governmental immunity. See id.§ 8542(b) (listing categories that may result in the imposition of liability on a local agency); see also Reid v. City of Phila., 957 A.2d 232, 234 (Pa.2008) (noting that § 8542 provides local agencies governmental immunity from liability for any damages they cause to a person or property and noting exceptions); Sameric Corp. v. City of Phila., 142 F.3d 582, 600 (3d Cir.1998) (noting same). The eight categories of exceptions are: (1) the operation of motor vehicles; (2) the care, custody, or control of personal property; (3) the care, custody, or control of real property; (4) trees, traffic controls, and street

lighting; (5) utility service facilities; (6) streets; (7) sidewalks; and (8) the care, custody, or control of animals. 42 Pa. Cons.Stat. Ann. § 8542(b). The exceptions to governmental immunity apply only to “negligent acts,” and not to “acts or conduct which constitute[ ] a crime, actual fraud, actual malice or willful misconduct.”Id. § 8542(a); see also City of Phila. v. Glim, 149 Pa.Cmwlth. 491, 613 A.2d 613, 617 (Pa.Commw.Ct.1992) (emphasizing that the statutory exceptions apply only to negligent acts).
We agree with Defendants' undisputed assertion that “Plaintiff's claim of negligence does not fit under one of the eight exceptions to governmental immunity set forth in [the statute].” (Doc. No. 164 at 27.) The only exception that could possibly apply is the exception for the care, custody, or control of real property. The real property exception is not applicable, however, since Plaintiff does not allege that a defect in the prison building itself caused Plaintiff's injuries or that the prison building was “unsafe for activities for which it is regularly used, intended to be used, or reasonably foreseen to be used.” Bradley v. Franklin County Prison, 674 A.2d 363, 366 (Pa.Commw.Ct.1996); see also Gaylord v. Morris Twp. Fire Dep't, 853 A.2d 1112, 1118 (Pa.Commw.Ct.2004), appeal denied, 581 Pa. 701, 864 A.2d 1205 (Pa.2004) (citing Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118, 1124 (Pa.1987)) (holding that real estate exception applies only to cases where artificial condition of land itself causes injury, not when it facilitates injury by the acts of others). The prison building was merely the setting in which the City's negligence is alleged to have occurred. See Bradley, 674 A.2d at 365 (noting that “the real property exception is narrowly construed”). Plaintiff does not allege a design deficiency with the prison building, and indeed, but for the City's overcrowding problem, there appears to be nothing wrong with the building itself or its maintenance. See id. at 366.Rather, Plaintiff alleges a policy or practice of the City in which the City housed more inmates in the prison building than its design intended. See, e.g., Harding v. Galyias, 117 Pa.Cmwlth. 371, 544 A.2d 1060, 1065 (Pa.Commw.Ct.1988), appeal denied, 521 Pa. 625, 557 A.2d 727 (Pa.1989) (holding that conditions in prison facilities may have made it easier for inmates to hang themselves, but the conditions did not cause inmate's death to fall within real estate exception); King v. City of Phila., 107 Pa.Cmwlth. 126, 527 A.2d 1102, 1104 (Pa.Commw.Ct.1987), appeal denied, 522 Pa. 621, 563 A.2d 889 (Pa.1989)

(holding that inmate did not allege defective condition of real property so as to bring claim within the real estate exception when he alleged that the City's policy and procedure of handcuffing inmates to their crutches caused him injury on prison steps). Plaintiff's allegations do not relate to the City's care of the existing prison building and instead relate to the City's indifference to the need to expand inmate capacity or somehow reduce the population at the prison. Thus, governmental immunity attaches, and Plaintiff's negligence claim against the City fails as a matter of law. See 42 Pa. Const. Stat. Ann. § 8541; see also, Zernhelt v. Lehigh County Office of Children and Youth Servs., 659 A.2d 89, 91 (Pa.Commw.Ct.1995) (holding that plaintiff failed to state a claim against local agency for negligent conduct that did not qualify under one of the exceptions); Burton v. City of Phila., 121 F.Supp.2d 810, (E.D.Pa.2000) (applying Pennsylvania law) (holding that City was immune from liability under the PSTCA from common law claims for injuries that inmate sustained as a result failure to adequately treat abscessed tooth); Schwartz v. County of Montgomery, 843 F.Supp. 962, 972 (E.D.Pa.1994), aff'd, 37 F.3d 1488 (3d Cir.1994) (applying Pennsylvania law) (holding that county correctional facility and its employees were immune from negligence claims of an inmate nearly strangled by another prisoner, since claims were not within any of the eight enumerated exceptions to governmental immunity).
*8 Governmental immunity also attaches to Plaintiff's claims of intentional infliction of emotional distress and recklessness. The negligence exceptions do not apply to intentional conduct. See Weaver v. Franklin County, 918 A.2d 194, 200 (Pa.Commw.Ct.2007), appeal denied, 593 Pa. 751, 931 A.2d 660 (Pa.2007) (holding that county was immune from liability for inmate's claim of intentional infliction of emotional distress); Wakshul v. City of Phila., 998 F.Supp. 585, 588 (E.D.Pa.1998) (applying Pennsylvania law) (granting summary judgment since intentional infliction of emotional distress did not fall within enumerated exceptions to immunity); Zernhelt, 659 A.2d at 91 (holding that plaintiff failed to state a claim for intentional infliction of emotional distress, and noting that § 8542 does not provide exceptions for intentional conduct); Tyree v. City of Phila., 669 A.2d 487, 491 (Pa.Commw.Ct.1995) (noting that “reckless” connotes intentional conduct) (citing Gaul v. Cons.Rail Corp., 383 Pa.Super. 250, 556 A.2d 892, 898 (Pa.Super.Ct.1989), appeal denied, 524 Pa. 621,

571 A.2d 383 (Pa.1989)).
2. Private Cause ofAction under the Pennsylvania Constitution
“To date, neither Pennsylvania statutory authority nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution.” Dillon v. Homeowner's Select, 957 A.2d 772, 780 n. 11 (Pa.Super.Ct.2008) (quoting Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa.Commw.Ct.2006), appeal denied, 589 Pa. 741, 909 A.2d 1291 (Pa.2006)). Accordingly, we agree with Defendants' undisputed assertion that Plaintiff's claims for damages under the Pennsylvania Constitution fail as a matter of law. See Stockham Interests, LLC v. Borough of Morrisville, No. 083431, 2008 WL 4889023, at *10 (E.D.Pa. Nov.12, 2008) (holding that “there is no private cause of action for damages arising from violations of the Pennsylvania Constitution,” and granting defendant's request “to deny any monetary relief arising out of violations of the Pennsylvania Constitution”) (citations omitted); Alvarez v. City of Phila., No. 070493, 2008 WL 4347529, at *13 (E.D.Pa. Sept.23, 2008) (granting summary judgment in favor of defendant since “Pennsylvania does not recognize a private right of action for monetary damages for violation of the Pennsylvania Constitution”); Douris v. Schwieker, 229 F.Supp.2d 391, 405 (E.D.Pa.2002) (explaining that although Pennsylvania courts have not yet addressed the issue, federal courts have consistently held that no private cause of action for damages is available under the Pennsylvania Constitution); Kelleher v. City of Reading, No. 013386, 2001 WL 1132401, at *3 (E.D.Pa. Sept.24, 2001) (noting that “the federal courts in this Circuit ... have concluded that there is no such private cause of action for damages under the Pennsylvania Constitution,” and citing cases); Pendrell v. Chatham Coll., 386 F.Supp. 341, 344 (W.D.Pa.1974) (rejecting Pennsylvania constitutional claim for damages and noting that plaintiff could cite no authority that implies such a cause of action).
V. CONCLUSION
*9 For these reasons, we will grant in part and deny in part Defendants' Motion for Summary Judgment.
An appropriate Order follows.

ORDER
AND NOW, this 12th day of December, 2008, upon consideration of Defendants' Motion for Summary Judgment (Doc. No. 164), and Plaintiff's response thereto, it is ORDERED as follows:
1. Defendants' Motion is DENIED with respect to Plaintiff's federal constitutional claims; and
2. Defendants' Motion is GRANTED with respect to Plaintiff's state constitutional claim and state law claims for negligence, recklessness, and intentional infliction of emotional distress.
IT IS SO ORDERED.
E.D.Pa.,2008. Bowers v. City Of Philadelphia Slip Copy, 2008 WL 5210256 (E.D.Pa.)
END OF DOCUMENT

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-3229.
Dec. 12, 2008.
David Rudovsky, V., Kairys, Rudovsky, Messing & Feinberg, Michael C. Chase, Pepper, Hamilton & Scheetz, Su Ming Yeh, Angus R. Love, Philadelphia, PA, for Lee Bowers.
Donald C. Marino, Craig M. Straw, City of Philadelphia Law Dept., Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner, Philadelphia, PA, Kerri E. Chewning, Archer & Greiner, Haddonfield, NJ, for City of Philadelphia, et al.
MEMORANDUM & ORDER
SURRICK, District Judge.
*1 Presently before the Court is Plaintiff's Motion for Partial Summary Judgment. (Doc. No. 165.) For the following reasons, the Motion will be denied.
I. BACKGROUND
On July 24, 2006, Plaintiff Lee Bowers (“Plaintiff”) filed a class action Complaint against Defendants City of Philadelphia; Leon A. King, II, individually and in his official capacity as Commissioner of the Philadelphia Prisons; Sylvester Johnson, individually and in his official capacity as Commissioner of the Philadelphia Police Department; and John Doe and Richard Roe, unknown Prison and Police Officials and Officers, in their individual capacities. (Doc. No. 1.) Plaintiffs demanded a jury trial. (See id.)At the same time, Plaintiffs filed a motion for a preliminary injunction seeking to correct conditions at the Philadelphia Police Administration Building (“PAB”), at the intake unit of the Philadelphia Prison System (“PPS”), and at the Curran-Fromhold Correctional Facility (“CFCF”). (Doc. No. 2.) Plaintiffs sought relief in the form of a judgment declaring that the practices, policies, and conditions alleged in the Complaint are unconstitutional, and a

permanent injunction prohibiting the continuation of such unconstitutional conditions.(Id.) Plaintiffs also sought compensatory and punitive damages. (Id.)
We held a four-day evidentiary hearing on prison conditions from October 3, 2006, through October 6, 2006. (See Doc. No. 94 at 8 n. 7.) We also toured the intake unit at CFCF, the holding cells at the PAB, and the holding cells in the 9th Police District. (Id. at 1.) Based on the evidence and testimony presented at the preliminary injunction hearing and on our tour of the prison facilities, we entered a Preliminary Injunction. (Doc. No. 94.) In a 73-page Memorandum and Order, dated January 25, 2007, we made extensive findings of fact and conclusions of law. (Id. at 3.) We stated that the conditions that existed in the intake unit at CFCF, in the detention unit of the PAB, and in the holding cells in the Philadelphia Police Districts during the summer of 2006 violated Plaintiffs' constitutional rights. (Doc. No. 94.) We issued an Order detailing the unconstitutional conditions that we found, which included the holding of post-arraignment detainees for days in holding cells in numbers that far exceeded the capacity of the cells, the failure to provide beds and bedding, the failure to provide materials for personal hygiene, the failure to provide for the medical needs of detainees, the failure to timely classify detainees in the intake unit at the CFCF, and the lack of fire safety protection at the PAB and in the Police Districts. (Id.) We ordered the City to take immediate affirmative steps to redress these conditions. (Id.) The City did not appeal our grant of preliminary injunctive relief.
On August 30, 2007, Plaintiffs and Defendants moved jointly to terminate the preliminary injunction so that the parties could enter into a private settlement agreement. (Doc. No. 148.) On October 10, 2007, we granted that joint motion, terminated the preliminary injunction, and dismissed the class claims. (Doc. No. 151.) After the October 10, 2007 Order, the only claims remaining were the § 1983 damages claims and the state law claims of the individual Plaintiffs. At this point, the only claims that remain are the § 1983 claims and the state law claims asserted by Plaintiff Lee Bowers against Defendants City of Philadelphia and Commissioner King in his official capacity (collectively, the “City”).FN1 (Doc. No. 165 at 1.) Plaintiff seeks money damages under 42 U.S.C. § 1983 for the unconstitutional conditions in the intake unit at the

PPS that he was required to endure and that caused him to suffer a blood clot in his left leg. (See Doc. No. 1; Doc. No. 34 ¶ 29; Doc. No. 164 at 1.)
FN1.“Claims asserted against governmental officials in their official capacities are, in essence, claims brought against the municipality of which the official is an agent.” Cruz v. City of Phila., No. 07-0493, 2007 WL 4190690, at *4 (E.D.Pa. Nov.21, 2007) (citations omitted); see also Brown v. Montgomery County, No. 04-5729, 2005 WL 1283577, at *4 (E.D.Pa. May 26, 2005) (noting that “official capacity actions represent another way to sue the municipality of which the officer is an agent” and that “an action brought against both the entity and the public official in his or her official capacity is redundant” (citations omitted)).“Suits brought against government officials in their official capacities are ... treated as suits brought against the governmental unit of which they are officials.” Mitros v. Borough of Glenolden, 170 F.Supp.2d 504, 506 (E.D.Pa.2001) (citing Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985)).
*2 Plaintiff has filed the instant Motion for Partial Summary Judgment based upon the doctrine of issue preclusion. Plaintiff contends that in the January 25, 2007 Memorandum and Order, this Court determined that the conditions at the intake unit of the PPS during the period of Plaintiff's incarceration in June of 2006 were unconstitutional and that Defendants were responsible for those conditions. Plaintiff seeks partial summary judgment against Defendants on these liability issues.
II. LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). A genuine issue of material fact exists only when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the nonmoving party's legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party carries this initial burden, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (explaining that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”).“The nonmoving party ...‘cannot rely merely upon bare assertions, conclusory allegations or suspicions' to support its claim.” Townes v. City of Phila., No. 000138, 2001 WL 503400, at *2 (E.D.Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir.1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, we must view facts and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir.1995). However, we must not resolve factual disputes or make credibility determinations. Siegel Transfer, 54 F.3d at 1127.
III. DISCUSSION
A. Preclusion Doctrines
Plaintiff maintains that he is entitled to partial summary judgment based on issue preclusion. Issue preclusion can occur in two ways: (1) through the application of collateral estoppel; and (2) through the law-of-the-case doctrine. Issue preclusion, or collateral estoppel, “requires separate actions.” United States v. Sherman, 912 F.2d 907, 909 (7th Cir.1990); see also Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (“Under collateral estoppel, once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.”).“Or as the Supreme Court put it in Ashe v. Swenson, ‘when a[n]

issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.’ “ Sherman, 912 F.2d at 907 (citing Ashe, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)); see also Reazzonico v. H & R Block, Inc., 182 F.3d 144, 148 (2d Cir.1999) (noting that “[r]es judicata [including its ‘issue preclusion prong’] does not speak to direct attacks in the same case, but rather has application [only] in subsequent actions.”); Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F.2d 128, 131 (5th Cir.1983) (holding that “issue preclusion is applicable only in subsequent actions, not within the same action”).
*3 The law-of-the-case doctrine is the framework that “applies in subsequent proceedings of the same case.” Hutchins v. U.P.S., Inc., No. 01-1462, 2005 WL 1793719, at *3 (D.N.J. July 26, 2005) (citation omitted). Similar to issue preclusion, “[t]he law-ofthe-case doctrine limits re-litigation of an issue once it has been decided in an earlier stage of the same litigation.” Hamilton v. Leavy, 322 F.3d 776, 787 (3d Cir.2003) (citation omitted); see also ACLU v. Mukasey, 534 F.3d 181, 187 (3d Cir.2008) (“Under the law-of-the-case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”) (citations omitted). The law-of-the-case doctrine does not apply if “extraordinary circumstances” warrant reconsideration of an issue decided earlier in the course of litigation. Pub. Interest Research Group of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116-17 (3d Cir.1997). Extraordinary circumstances include: (1) the availability of new evidence; (2) the announcement of a supervening new law; and (3) a clearly erroneous decision that would create manifest injustice. Id. at 117;see also McDufy v. Marsico, No. 00-0938, 2008 WL 3925167, at *3 (D.Del. Aug.21, 2008) (noting same factors).
Plaintiff does not assert that our preliminary injunction findings are conclusive “in a subsequent action” between the parties, consistent with collateral estoppel. See Nat'l R.R. Passenger Corp., 288 F.3d at 525. Rather, Plaintiff asserts that the preliminary injunction findings are conclusive “in an earlier stage of the same litigation,” consistent with the law-ofthe-case doctrine. See Hamilton, 322 F.3d at 787. The law-of-the-case doctrine is the appropriate framework

for deciding the instant motion. See Casilla v. N.J. State Prison, No. 05-4590, 2008 WL 4003664, at *8 n. 5 (D.N.J. Aug.22, 2008) (noting that since the defendant sought preclusion “based on this Court's ruling in an earlier stage of the same case, [the defendant's] argument probably should have been framed under ‘the law of the case’ doctrine”).
B. Preclusive Effect of Preliminary Injunction Findings
Plaintiff contends that our preliminary injunction findings should have preclusive effect at the trial of this case on the merits. However, “the general rule [is] that issue preclusion attaches only when an issue of fact or law is actually litigated and determined by a valid and final judgment.”Nat'l Ass'n of Letter Carriers, AFL-CIO v. U.S.P.S., 272 F.3d 182,189 (3d Cir.2001) (quoting Arizona v. California, 530 U.S. 392, 414, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000)). The granting or denial of a preliminary injunction is not a “valid and final judgment,” because it “does not involve a final determination on the merits.” Evans v. Buchanan, 555 F.2d 373, 387 (3d Cir.1977) (citations omitted); see also Berne Corp. v. Virgin Islands, 105 Fed. App'x 324, 328 n. 4 (3d Cir.2004) (unpublished opinion) (noting that a preliminary injunction is an interlocutory order, while a permanent injunction after a trial on the merits is a final order). Thus, “[c]ourts generally do not apply the law-of-the-case doctrine to matters decided in the context of a motion for a preliminary injunction.” Latuszewski v. Valic Fin. Advisors, Inc., No. 03-0540, 2007 WL 3356056, at *1 (W.D.Pa. Nov.11, 2007).
*4 Preliminary injunction findings may have preclusive effect “if the circumstances make it likely that the findings are ‘sufficiently firm’ to persuade the court that there is no compelling reason for permitting them to be litigated again.” Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 474 n. 11 (3d Cir.1997). The plaintiffs in Hawksbill, landowners in the U.S. Virgin Islands, brought suit against FEMA to enjoin construction of an emergency housing facility on grounds that the construction threatened the habitats of tropical snakes and sea turtles and violated the Endangered Species Act. Id. at 463.The district court gave preclusive effect to findings the court made in denying a preliminary injunction in an earlier, similar case involving the tropical snakes. Id. at 464.The plaintiffs argued that “because a

preliminary injunction proceeding is not ‘final,’ findings made in the course of such a proceeding are not entitled to preclusive effect.”Id. The Court of Appeals for the Third Circuit, although reversing the district court's application of issue preclusion on other grounds, addressed the plaintiffs' argument in a footnote:
[P]laintiffs rely on several cases holding that orders granting preliminary injunctions are generally not accorded preclusive effect in litigation on the merits in the same or different proceeding. See Univ. of Tex. v. Camenisch, 451 U.S. 390, 396-98, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) (no preclusive effect in litigation on merits of same case); Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1350 (9th Cir.1982) (refusing to apply collateral estoppel to state court finding made in preliminary injunction proceeding in trial on merits of plaintiff's § 1983 claim); Cmty. Nutrition Inst. v. Block, 749 F.2d 50, 56 (D.C.Cir.1984) (refusing to accord preclusive effect to determination made in granting of preliminary injunction in final hearing on the merits in a different case); Zenith Radio Corp. v. Matsushita Elec. Ind. Co., 505 F.Supp. 1125, 1185 (E.D.Pa.1980) (Judge's findings, “which are addressed to the preliminary motion to dismiss, are not ‘the law of the case [,]’ ... do not control the issues ... upcoming in connection with the motions for summary judgment.”). But findings made in granting or denying preliminary injunctions can have preclusive effect if the circumstances make it likely that the findings are “sufficiently firm” to persuade the court that there is no compelling reason for permitting them to be litigated again. Dyndul v. Dyndul, 620 F.2d 409, 411-12 (3d Cir.1980); accord Commodity Futures Trading Comm'n v. Bd. of Trade, 701 F.2d 653, 657 (7th Cir.1983) (findings made in preliminary injunction decisions have preclusive effect “if the circumstances make it likely that the findings are accurate [and] reliable”); 18 Wright, Miller & Cooper §§ 4434,4445; 1 Restatement of Judgments (Second) § 13, illus. 1 at 136-37 (1982).
Hawksbill, 126 F.3d at 474 n. 11;see also Pa. Public Interest Research Group, Inc. v. P.H. Glatfelter Co., 128 F.Supp.2d 747, 756 (M.D.Pa.2001) (recognizing the “Third Circuit's unequivocal statement” in the Hawksbill footnote that “findings made in granting or denying preliminary injunctions can have preclusive

effect”).
*5 Whether the findings are “sufficiently firm” to merit preclusive effect “turns on a variety of factors, including ‘whether the parties were fully heard, whether the court filed a reasoned opinion, and whether that decision could have been, or actually was appealed.’ “ Hawksbill, 126 F.3d at 474 n. 11 (citing In re Brown, 951 F.2d 564, 569 (3d Cir.1991)). “Preclusion would seem to be particularly appropriate in a second action seeking the same injunctive relief.” Id. (citing Lyon Ford, Inc. v. Ford Mktg. Corp., 337 F.Supp. 691, 695 (E.D.N.Y.1971)); see also Naser Jewelers, Inc. v. City of Concord, 538 F.3d 17, 20 (1st Cir.2008) (holding that law-of-thecase doctrine applies to findings from a preliminary injunction motion when the record was “sufficiently developed and facts necessary to shape the proper legal matrix we [re] sufficiently clear”).
Our preliminary injunction findings were sufficiently “firm” to warrant the application of issue preclusion. See Hawksbill, 126 F.3d at 474 n. 11. We heard four days of testimony and evidence presented at the preliminary injunction hearing. The parties were given ample time to prepare their respective cases, and they presented more than twenty witnesses and thirty exhibits at the hearing. The record was welldeveloped, and the parties were fully-heard. We also toured the prison facilities. Based on all of the evidence, we issued an exhaustive 73-page Memorandum Opinion in which we noted that the City did not “meaningfully rebut the fact that the prison was experiencing severe overcrowding in May through September 2006.”(Doc. No. 94 at 44.) The City did not appeal. See Hawksbill, 126 F.3d at 474 n. 11. We believe that our findings of fact and conclusions of law are sufficiently “firm” to justify application of the law-of-the-case doctrine. See Naser, 538 F.3d at 20; Wolstein v. Docteroff, 133 F.3d 210, 216 (3d Cir.1997) (affirming issue preclusion where “the record establishes that the ... court adequately considered all the relevant issues” and the court “wrote a thorough and thoughtful opinion”); In re Brown, 951 F.2d 564, 569-70 (3d Cir.1991) (judgment sufficiently final if parties are heard, a reasoned opinion is filed, and finality is sufficiently firm and reliable).Cf. Glatfelter, 128 F.Supp.2d at 756 (refusing to grant preclusive effect to findings in a supersedeas order where it “was clear that [the] decision was rendered in a hasty manner

under urgent conditions,” and “[t]here is no explanation ... regarding what evidence or testimony from the hearing supported [the] findings, nor what legal principles [the court] relied upon”).
Nevertheless, the City has a constitutional right under the Seventh Amendment of the United States Constitution to a jury trial. SeeU.S. Const. amend. VII. That right is compelling. Notwithstanding the firmness of our findings, we conclude that Defendants' right to have a jury reconsider our findings is paramount. “It is well established” that the right to a jury trial of legal issues remains even in cases involving both legal and equitable claims. EEOC v. Corry Jamestown Corp., 719 F.2d 1219, 1224 (E.D.Pa.1983) (citing Dairy Queen Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). In such cases, “the right to jury trial on the legal claim, including all issues common to both claims, remains intact.” Lytle v. Household Mfg., Inc., 494 U.S. 545, 550, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) (citing Curtis v. Loether, 415 U.S. 189, 196, n. 11, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974)). The fact that a judge has decided the equitable issues first does not foreclose the party's Seventh Amendment right to have the legal issues tried to a jury in the same action. See Ross v. Bernhard, 396 U.S. 531, 537-38, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). In Ross, the Supreme Court held that stockholders in a derivative action were entitled to a jury trial on the corporation's legal claim notwithstanding the stockholders' right to sue as an equitable matter. Id. The Supreme Court noted that:
*6 where equitable and legal claims are joined in the same action, there is a right to [a] jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims.
Id.; see also Beacon, 359 U.S. 500, 510-11, 79 S.Ct. 948, 3 L.Ed.2d 988 (“[O]nly under the most imperative circumstances ... can the right to a jury trial of legal issues be lost through prior determination of equitable claims.”). The preliminary injunction findings that we made in this case must not abridge the City's Seventh Amendment right to a “jury trial on the legal claim, including all issues

common to both claims.” Lytle, 494 U.S. at 550. That right “remains intact” notwithstanding our preliminary injunction findings. See id.; see also Dairy Queen, 369 U.S. at 469. The fact that we decided equitable issues first does not foreclose the City's Seventh Amendment right to have the legal issues tried to a jury in the same action. See Ross, 396 U.S. at 537-38.
We reject Plaintiff's argument that “the failure of the City to request a jury determination ... acts as a waiver of any objection to the preclusive effect of the findings on issues resolved in the equitable proceedings....” (Doc. No. 165 at 9.) Although it was Plaintiffs who made the jury demand, their jury demand “operate[s] as a demand” by Defendants. See Yates v. Dann, 223 F.2d 64, 66 (3d Cir.1955).Federal Rule of Civil Procedure 38(d) requires consent of the parties before a jury demand may effectively be withdrawn. SeeFed.R.Civ.P. 38(d).“The consent requirement contained in Rule 38 ensures that one party may rely on another's jury demand.” Resnick v. Resnick, 763 F.Supp. 760, 764 n. 4 (S.D.N.Y.1991) (citing Rosen v. Dick, 639 F.2d 82, 91 (2d Cir.1980)). The parties have not consented to withdraw the jury demand. Defendants expressly “have not waived their right to a jury trial on the merits of Plaintiff's claim.”(Doc. No. 167 at 17.) The right to a jury trial of legal issues can be lost through prior determination of equitable claims “only under the most imperative circumstances.” Beacon, 359 U.S. 500, 510-11, 79 S.Ct. 948, 3 L.Ed.2d 988. We find no such circumstances here.
IV. CONCLUSION
For these reasons, we will deny Plaintiff's Motion for Partial Summary Judgment.
An appropriate Order follows.
ORDER
AND NOW, this 12th day of December, 2008, upon consideration of Plaintiff's Motion for Partial Summary Judgment (Doc. No. 165), and all documents submitted in support thereof and in opposition thereto, it is ORDERED that the Motion is DENIED.

IT IS SO ORDERED.
E.D.Pa.,2008. Bowers v. City of Philadelphia Slip Copy, 2008 WL 5234357 (E.D.Pa.)
END OF DOCUMENT

 
 Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

2006 WL 2601604 Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.
Lee BOWERS, et al. v.
CITY OF PHILADELPHIA, et al.
Civil Action No. 06-CV-3229. | Sept. 8, 2006.
Attorneys and Law Firms
Angus R. Love, Institutional Law Project, David Rudovsky, Kairys Rudovsky Messing & Feinberg, Philadelphia, PA, for Lee Bowers, Brandon Bucci, Darius McDowell and James Walker.
Lynne A. Sitarski, City of Philadelphia, Law Department, Chief Deputy City Solicitor, Philadelphia, PA, for City of Philadelphia, Leon A. King, II and Sylvester Johnson.
Opinion

MEMORANDUM & ORDER

SURRICK, J.
*1 Presently before the Court is District Attorney Lynne Abraham’s Motion To Intervene Pursuant To The Prison Litigation Reform Act (Doc. No. 9), Plaintiffs’ Memorandum of Law in Opposition (Doc. No. 10), and Defendants’ Response to the District Attorney’s Motion (Doc. No. 14).1 For the following reasons, the Motion to Intervene will be granted.

1

Defendants’ Response advises that Defendants have no

objection to the District Attorney’s intervention.

I. FACTUAL BACKGROUND This case involves allegations by pre-trial detainees in the Philadelphia Prison System (“PPS”) of severe prison overcrowding and concomitant dangerous, unhealthy, and degrading conditions. Plaintiffs allege that these conditions and the policies and practices of Defendants violate the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. Plaintiffs allege that they are pre-trial detainees who, due to severe overcrowding and lack of adequate facilities, are held at police districts, the Police Administration Building, or at intake units of

the PPS.
Federal litigation involving conditions in the PPS has a long and troubling history. The federal litigation commenced in1982 with the filing of Harris v. City of Philadelphia, No. 82-1847 (E.D.Pa.1982).2 In Harris, the inmates at the Holmesburg Prison filed a class action complaint against the City of Philadelphia and individual Philadelphia officials, alleging overcrowded conditions that violated the First, Eighth, Ninth, and Fourteenth Amendments. See Harris v. City of Phila., No. Civ. A. 82-1847, 2000 WL 1239948, at *1 (E.D.Pa. Aug. 30, 2000). That litigation led to court-approved consent decrees in 1986 and 1991 as well as a Ten-Year Plan approved by the court in 1996. Id. at * 1-4. The litigation also resulted in a series of orders beginning in 1994 and ending in 1999 that approved over 250 policies and procedures in the prisons that were a product of negotiations between the City and the plaintiff class, under the supervision of a Special Master. Id. at *4. Throughout the eighteen-year litigation, the various consent decrees and orders mandated various measures in an effort to address the crisis conditions that had developed. These measures included: construction of new detention centers and renovation of old facilities, contracts with private agencies for additional beds for work-release inmates and minimum security pretrial detainees, limitations on the number of inmates in Philadelphia Prison System facilities, a qualified admissions moratorium on admitting additional inmates, implementation of a house arrest/electronic monitoring program for selected inmates, and ultimately, the release of certain non-violent inmates when the maximum allowable population was exceeded. Id. at *2-4. In addition, between 1991 and 2000, the City paid a total of $864,000 in penalties for violating court orders. Id. at *5. In 2000, a final settlement was approved and federal court supervision of the PPS came to an end. Id. at *11.

2

Prison conditions litigation against the City of

Philadelphia actually began in the state courts in 1971

with the filing of the Jackson v. Hendricks case. See

Jackson v. Hendricks, 764 A.2d 1139, 1141

(Pa.Commw.Ct.2001).

Despite this long history of federal court supervision of the PPS, this case, filed only six years after the settlement in Harris, has once again raised the issue of prison overcrowding and unconstitutional conditions. The Complaint asserts that conditions in the PPS have worsened, particularly for pre-trial detainees. When the Harris litigation commenced in 1982, the prison population had reached approximately 4,300 inmates. Id. at *5. In 2000, when the Harris litigation concluded, the prison population exceeded 7,000. Id. Plaintiffs allege that
1

Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

in the six years since that litigation concluded, the prison population has grown to “8,900 inmates, over 1,000 beyond the rated capacity of the PPS.” (Doc. No. 1 at 5.) Plaintiffs further allege that as a result of the overcrowding, “the PPS literally ran out of housing space” and has instituted a policy and practice of holding inmates at the intake/admissions area of the Detention Center (“DC”), the Philadelphia Industrial Correctional Center (“PICC”), and the Curran Fromhold Correctional Facility (“CFCF”) until a cell becomes available. They contend that inmates have been held in these areas for up to six days in dangerous and unhealthy conditions. (Id. at 6-7.) In particular, Plaintiffs allege that conditions at these facilities include the following: (1) inmates at DC and PICC are held in cells without beds, adequate toilets, or access to showers, are not medically screened, and have no access to counsel; (2) inmates at CFCF are regularly held in cells with up to 25-35 men despite the cell’s capacity to hold 5-10 inmates; (3) because of the overwhelmingly large number of detainees, inmates at CFCF often do not receive medical screenings for a week, and inmates with communicable diseases are held in close proximity with others for up to 100 hours; (4) the overcrowding and resulting conditions have made fighting among detainees inevitable. (Id. at 7-8.)
*2 Because of these conditions in the PPS intake/admissions areas of the DC, PICC, and CFCF facilities, Plaintiffs allege that the Commissioner of Corrections has instituted a policy of not accepting new inmates from the Police Department, post-preliminary arraignment, when the population of the PPS exceeds 8,750. (Id. at 8.) As a result, people who are unable to post bail after their preliminary arraignment are now held at police districts or the Police Administration Building (“PAB”) for days while they await admission to the PPS. While being held at the police districts and the PAB, detainees receive only emergency medical care, have no access to phones, family, or legal counsel, no showers, inadequate toilet facilities and inadequate places to sleep. (Id.) Plaintiffs claim that “as of July 20, 2006, the PPS was not accepting new inmates and over 300 persons were awaiting admission to PPS, but are being held for days at police districts.” (Id. at 9.)
Plaintiffs claim that the above-described conditions amount to violations of the Sixth, Eighth, and Fourteenth Amendments in that they are deprived of their rights to counsel, to a speedy trial, to be free from cruel and unusual punishment, to the provision of medical care, and to the right not to be deprived of liberty without due process of law. (Id. at 12.) Plaintiffs seek relief in a number of forms. They seek compensatory and punitive damages for their injuries; a declaratory judgment that the practices, policies, and conditions alleged are unconstitutional; a permanent injunction prohibiting the further implementation of these policies and an order requiring Defendants to either provide constitutionally

acceptable conditions of confinement or discharge members of the class from custody; and attorneys’ fees and costs. (Id. at 12-13.)
II. LEGAL ANALYSIS
A. Standard for Intervention District Attorney Lynne Abraham seeks to intervene as of right pursuant to Federal Rule of Civil Procedure 24. Rule 24(a)(1) provides: “Upon timely application anyone shall be permitted to intervene in an action ... when a statute of the United States confers an unconditional right to intervene.” Fed.R.Civ.P. 24(a)(1). The District Attorney premises her Motion to Intervene on the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626 which provides:
Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.
18 U.S.C. § 3626(a)(3)(F) (emphasis added). The right to intervene in this instance turns on whether the proceedings currently before this Court relate to prisoner release orders as those terms are defined by the PLRA.
B. PLRA Interpretation *3 District Attorney Abraham argues that she is entitled to intervene as of right because the Complaint and Motion for Preliminary Injunction seek injunctive relief in the form of an order that would require implementation of constitutional conditions in the PPS or the discharge of members of the Plaintiff class from custody. Abraham maintains that the district attorney’s “jurisdiction or function” in Philadelphia includes the prosecution of individuals who may be released or not admitted to a prison pursuant to a prisoner release order. (Doc. No. 9 at 5-6.) Pennsylvania law provides that “[t]he district attorney shall sign all bills of indictment and conduct in court all criminal and other prosecutions, in the name of the Commonwealth, or, when the Commonwealth is a party, which arise in the county for which he is elected.”
2

Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

16 Pa. Cons.Stat. § 1402(a). Abraham maintains that because the named Plaintiffs and potential Plaintiff class members are or were at the time of their detention subject to criminal prosecution by the Philadelphia District Attorney, she qualifies as a government official whose function includes “the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order.” 18 U.S.C. § 3626(a)(3)(F).
In contrast, Plaintiffs argue that the District Attorney’s intervention would be premature at this time. (Doc. No. 10 at 5-7.) Plaintiffs suggest that the PLRA envisions a two-stage process for federal court intervention in prison overcrowding cases. (Id. at 5.) The first stage, they contend, involves the Court’s evaluation of the constitutionality of the prison conditions at issue and court-ordered relief that is “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). In the event that such relief is not effective in correcting the violation, the PLRA permits courts to enter a “prisoner release order,” defined as “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. § 3626(g)(4). Prisoner release orders may only be entered, however, when “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A). Plaintiffs contend that the District Attorney’s intervention is not appropriate at this time because they are not seeking relief that would effectuate the release of any prisoner. Rather, in keeping with PLRA requirements, Plaintiffs contend that at this time they seek only an Order that would require Defendants to provide constitutional conditions including adequate housing, access to counsel, medical care, and health and safety protections for all pre-trial detainees. (Doc. No. 10 at 2.) Plaintiffs point out that under the PLRA, a prisoner release order may only be entered by a three-judge panel and hence, this Court is not even capable of ordering such relief. See 18 U.S.C. § 3626(a)(3)(B).

two opinions. In Ruiz v. Estelle, 161 F.3d 814 (5th Cir.1998), the court addressed an attempt by two Texas state legislators to intervene in a twenty-five year-old litigation involving Texas prison conditions. As part of its analysis, the court in Ruiz assessed whether the final judgment agreed to by the parties, which terminated the federal court’s jurisdiction except in several areas including prison population and overcrowding, constituted a prisoner release order under the PLRA. Id. at 821-27. Because the final judgment contained population caps on the number of prisoners allowed to be housed in various prison units, the court found that the judgment had “the purpose or effect of reducing or limiting the prison population” and thus that it was a prisoner release order within the meaning of the PLRA. Id . at 826-27. The two Texas state legislators in Ruiz sought to intervene in the district court to oppose the final judgment. The Fifth Circuit held that § 3626(a)(3)(F) applied, and the legislators were entitled to intervention as of right under that statute.5 Id. at 827.

3

We note that principles of statutory interpretation

dictate that “[t]he starting point is the language of the

statute. If the meaning of the text is clear, ‘there is no

need to ... consult the purpose of [the statute] at all.’ “

United States v. E.I. Dupont De Nemours & Co., Inc.,

432 F.3d 161, 169 (3d Cir.2005) (quoting Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 (2004)).

However, the subsection of the PLRA at issue in this

case is not clear on its face. As a result, in addition to

the text itself, we look to prior caselaw to illuminate the

context in which the statute was enacted and the

legislative history to offer insight into congressional

intent. See id. (“Where a statute’s text is ambiguous,

relevant legislative history, along with consideration of

the statutory objectives, can be useful in illuminating its

meaning.”).

4

The 1997 amendment changed the text of the PLRA

only slightly. Only two changes were made to the

subsection on government official intervention: (1) the

amendment added the words “including a legislator” in

the list of those officials who may intervene-making

clear that individual legislators could intervene under

this statute-and (2) the amendment changed the phrase

“program facilities” to “prison facilities.” H.R. Conf.

Rep. No. 105-405, at 32 (1997), reprinted in 1997

U.S.C.C.A.N. 2941.

C. PLRA Caselaw *4 In making a determination in this case, we must consider the caselaw, legislative history, and statutory text of the PLRA.3 The PLRA took effect in April 1996 and was amended in November 1997.4 Id. Since that time, the provision allowing for government officials to intervene has been addressed only by the Fifth Circuit and only in

5

A primary issue in the Ruiz case was whether the

PLRA, as amended in 1997, intended individual

legislators to have a right to intervene in prison

overcrowding cases. The Fifth Circuit considered the

express language of the amended PLRA-which, as

previously noted, added the words “including

legislators” to the list of government officials who

could intervene-and recognized that the amendment

3

Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

was enacted as a response to the lower court’s denial of the right to intervene to these same legislators. The Fifth Circuit concluded that the statute, as amended, clearly grants individual legislators the right to intervene. Ruiz, 161 F.3d at 818-19. While this particular issue is not before us, we note that the PLRA, in this amendment and, as will be discussed infra, in its entirety, was constructed as a response to federal court decisions.
The Fifth Circuit again interpreted § 3626(a)(3)(F) of the PLRA in Castillo v. Cameron County, 238 F.3d 339 (5th Cir.2001). In Castillo, the court determined that a court order that continued prior injunctive relief including prison population caps was a prisoner release order within the meaning of the PLRA. As a result, the court permitted the state, which was no longer a party to the action, to appeal the court’s order pursuant to § 3626(a)(3)(F)’s grant of standing to “[a]ny state or local official ... whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities ... to oppose the imposition or continuation in effect of [prisoner release orders].” § 3626(a)(3)(F).
The Fifth Circuit’s jurisprudence on this matter is instructive on a number of issues. It emphasizes the broad meaning attributed to prisoner release orders under the statute to include any action by the court ordering or approving of a reduction or limitation on the population of a prison. With this in mind, the Fifth Circuit readily granted individual legislators and the state the right to intervene in cases involving such court actions. Considering these cases and the text of the PLRA itself, it is clear that were this Court to engage in any action that either set population caps, ordered a reduction in population at particular prison facilities, or limited the admission of inmates to prisons, we would be engaging in a “prisoner release order” as that term is defined by the statute, and government official intervention would be appropriate.
*5 However, these Fifth Circuit cases offer little insight into the particular problem that we address in the instant Motion, that is, whether the right to intervene becomes operative even before the court has taken any action that could be construed as a “prisoner release order.” The case before us, while it comes with a long history in this court, is new. We have taken no action in this matter at this point other than to schedule a hearing on the pending Motion for Preliminary Injunction filed by Plaintiffs. At issue here is the appropriate timing of government official intervention in a case in which various kinds of relief are sought but which at base alleges severe overcrowding that has lead to other unconstitutional conditions. Because the case law provides little help in deciding this issue, we next look to legislative history and a close textual reading

of the statute to inform our decision.

D. Legislative History Like the caselaw, the legislative history is limited on this particular subsection of the PLRA. What is clear is that the PLRA subsection providing for government officials to intervene in prison overcrowding cases was enacted as a direct response to two Third Circuit opinions in the Harris litigation that denied the district attorney the right to intervene.6 In Harris v. Pernsley, 820 F.2d 592 (3d Cir.1987), the Third Circuit concluded that the district attorney was not entitled to intervene as of right in the prison litigation. The court held that under Federal Rule of Civil Procedure 24(a)(2) the district attorney’s statutory duties under Pennsylvania law did not create a sufficient legal interest in the litigation to require intervention as of right. Id. at 601-602 (“[W]e decline to equate the District Attorney’s function as the spokesperson for Pennsylvania’s interest in criminal prosecutions with the responsibility for policing the entire criminal justice system.”). In response to this decision, Pennsylvania enacted a statute in 1988 that “purport[ed] to confer automatic standing on the district attorney in prison litigation under which prisoners might be released or not admitted.”7 Harris v. Reeves, 946 F.2d 214, 217 (3d Cir.1991). Thereafter, the district attorney again attempted to intervene in the prison overcrowding litigation based upon this new Pennsylvania statute. In Harris v. Reeves, the Third Circuit again rejected this second attempt finding: (1) that intervention as of right exists under Rule 24(a)(1) when a statute of the United States confers such a right and not when a state statute does and (2) that the Pennsylvania statute’s attempt to confer automatic standing did not alter the powers and duties of the district attorney so that the reasoning of Harris v. Pernsley still applied to preclude intervention. Id. at 222-24. It is apparent that Congress, by enacting § 3626(a)(3)(F) of the PLRA, sought to ensure intervention as of right for certain government officials in prison overcrowding cases by creating a federal statute that could be relied upon under Rule 24(a)(1).

6

In describing this section of the PLRA, the House

Report, citing the Third Circuit’s opinion in Harris v.

Pernsley, states:

Courts, particularly federal courts, have excluded some

state officials, such as district attorneys, from having

any say about the disposition of such cases by

concluding that these officials have no right to

intervene as parties under the current law embodied in

Federal Rule of Civil Procedure 24(a)(2), which

requires that the intervenor have an “interest” in the

case. But completely apart from the “interest” rationale,

Federal Rule of Civil Procedure 24(a)(1) requires that a

party be allowed to intervene if he has been granted

such a right by statute. Subsection (d) establishes such

4

Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

an explicit right to intervene for affected law enforcement officials. H.R.Rep. No. 104-21, at 27 (1995), 1995 WL 56410.

7

The statute provides:

The district attorney shall receive written notice of, and

shall have automatic standing and a legal interest in,

any proceeding which may involve the release or

nonadmission of county prisoners, delinquents or

detainees due to the fact, duration or other conditions of

custody. In addition to the district attorney’s rights in

such a proceeding, the district attorney may seek any

equitable relief necessary to protect the district

attorney’s interest in the continued institutional custody

and admission of county prisoners, delinquents or

detainees.

18 Pa. Cons.Stat. § 1108.

*6 In addition to making clear that this subsection of the PLRA was in direct response to cases like those in the Third Circuit, Congress also made clear its intent to have this subsection broadly interpreted and applied by the courts. House Report No. 104-21 explains the rationale for allowing certain government officials to intervene in prison overcrowding cases. “Law enforcement officials who arrest, prosecute, or incarcerate criminals are permitted, under this new provision, to challenge any relief that would affect their localities, asserting the significant public safety concerns arising from such relief.” H.R.Rep. No. 104-21, at 27 (1995), 1995 WL 56410. In addition, the Report indicates that “[t]he provisions of this subsection should be construed liberally so as to grant standing to a member of Congress, a governor, a member of a state legislature, or a member of a local unit of government, whose representative constituency is affected by such court-ordered relief .” Id. (emphasis added). In addition to this indication of congressional intent, an early version of the statute, also included in House Report No. 104-21, included similar language in the subsection on government official intervention: “Standing shall be liberally conferred under this subsection so as to effectuate the remedial purposes of this section.” Id. at 53. Thus, Congress made it clear that it was enacting § 3626(a)(3)(F) in direct response to federal courts who had denied intervention in the past and that it intended this statute to alleviate the problem and be liberally construed by future courts.

text of § 3626(a)(3)(F) does not specify the timing of the intervention. Rather, it indicates that certain government officials “shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.” 18 U.S.C. § 3626(a)(3)(F). Because the District Attorney is seeking to intervene in this case prior to a hearing on Plaintiffs’ Motion for Preliminary Injunction and not in response to a specific order of the Court, we will focus on the final portion of the subsection, providing the right to intervene in proceedings “relating to such relief.”
Clearly, given the context of the standing provision in the section on prisoner release orders, the “relief” referenced in the final sentence is a “prisoner release order.” We note again that this term is broadly defined by the statute itself to include “any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison.” Id. at § 3626(g)(4). Moreover, as mentioned above, the Fifth Circuit cases on this subsection have determined that consent decrees and orders continuing prior injunctive relief that includes prison population caps are “prisoner release orders” within the meaning of the PLRA. See supra pp. 7-8.
*7 In addition, the phrase “any proceeding relating to” is expansive in nature. In dealing with the Employment Retirement Income Security Act (ERISA) and determination of laws which are preempted by it, many courts, including the Supreme Court, have assessed the meaning of the phrase “relates to” or “relating to.” See, e.g., Shaw v. Delta Airlines, Inc., 463 U.S. 85, 96-97 (1983); McMahon v. McDowell, 794 F.2d 100, 106 (3d Cir.1986). In Shaw, an ERISA action, the Court explained that “[a] law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.”8 Id. at 96-97 (emphasis added). In explaining the phrase “relates to,” the Court referred to the Black’s Law Dictionary definition of the term: “Relate. To stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Id. at 98 n. 16 (citing Black’s Law Dictionary 1158 (5th ed.1979)).9 In addition, the Court noted that it was appropriate to give effect to the plain language meaning of the phrase “unless there is good reason to believe Congress intended the language to have some more restrictive meaning.” Id. at 97.

E. Statutory Interpretation In addition to the legislative history on the PLRA, the language of the statute itself and particularly the subsection at issue in this Motion suggests that district attorney intervention is to be permitted at all stages of a litigation that truly deal with prison overcrowding. The

8

We note that in recent years, the Supreme Court has

backtracked somewhat on its liberal interpretation of

this phrase for ERISA purposes. See Cal. Div. of Labor

Standards Enforcement v. Dillingham Const., N.A.,

Inc., 519 U.S. 316, 335 (1997) (Scalia, J. concurring)

(“[A]pplying the ‘relate to’ provision according to its

5

Bowers v. City of Philadelphia, Not Reported in F.Supp.2d (2006)

terms was a project doomed to failure, since, as many a curbstone philosopher has observed, everything is related to everything else.”). While the common sense definition of the phrase may no longer be appropriate for ERISA because of the potential for limitless application of that law that might result from a liberal interpretation, in the PLRA context, we face no such concerns since a liberal interpretation will, at most, mean the grant of standing to certain government officials throughout a prison overcrowding litigation and cannot be expanded beyond that.

9

We note that the Sixth Edition of Black’s Law

Dictionary includes the same definition. See Black’s

Law Dictionary 1288 (6th ed.1990). However, this term

was not included in the Seventh and Eighth Editions of

the Black’s Law Dictionary.

Therefore, in assessing the meaning of “proceedings relating to [prisoner release orders],” in the PLRA, we will give the phrase “relating to” to its common sense meaning. In this case, Congress did not express any intention for the phrase to have a more restrictive meaning. In fact, the opposite is true. The legislative history suggests that Congress intended this subsection to be liberally interpreted and, indeed, in this case, such a reading is both “true to the ordinary meaning of ‘relate to,’ and ... gives effect to the ‘deliberately expansive’ language chosen by Congress.” District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125, 129 (1992) (citations omitted) (discussing the common sense definition of “relates to” in ERISA). Accordingly, we conclude that proceedings relating to prisoner release orders include proceedings that have bearing on or have some association with that form of relief.

time. (Doc. No. 2 at 5.) As Plaintiffs point out, the Supreme Court has noted 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.” Bell v. Wolfish, 441 U.S. 520, 542 (1979). While Plaintiffs maintain that they do not, at this point, seek relief that would constitute a prisoner release order under the PLRA, if proven, these allegations would certainly have a bearing on and could lead to the certification of a three-judge panel to provide relief that orders the reduction or limitation of the prison population. In light of the nearly twenty-five year history of this litigation in the federal court and the alleged failure of the City to take steps to alleviate the problem, we seriously question whether a court order requiring implementation of constitutionally acceptable conditions would have any potential to put an end to the matter. Given the common sense meaning of the phrase “relates to,” the legislative history indicating Congress’s intent for broad, liberal interpretation of the standing provision of the PLRA, the history of prison overcrowding litigation in this City and in this District, and the serious nature of Plaintiffs’ allegations in this case, we are compelled to conclude not only that the District Attorney has a right to intervene in this matter at this stage but that such intervention is prudent. We are prepared to deal expeditiously with this case and see no reason to exclude a party at this stage of the litigation when she may very well play an active role in its resolution. Accordingly, we will grant the District Attorney’s Motion to Intervene.
*8 An appropriate Order follows.

F. Application to the Instant Litigation In this case, we are compelled to conclude that the District Attorney is entitled to intervene as of right even at this early stage of the litigation. The Complaint and Motion for Preliminary Injunction detail allegations of inhumane conditions that are a direct result of overcrowding in the prison intake units. In addition, the overcrowding is itself alleged to be an unconstitutional condition given that prisoners are held in numbers that far exceed the maximum capacity of the holding cells, precluding many from sitting or sleeping for 72 hours at a

ORDER
AND NOW, this 8th day of September, 2006, upon consideration of District Attorney Lynne Abraham’s Motion To Intervene Pursuant To The Prison Litigation Reform Act (Doc. No. 9), it is ORDERED that the Motion is GRANTED.
IT IS SO ORDERED.
	  

6

 
 CLOSED, SPECIAL
United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:06−cv−03229−RBS

BOWERS v. CITY OF PHILADELPHIA et al Assigned to: HONORABLE R. BARCLAY SURRICK Case in other court: USCA for the 3rd Circuit, 07−01351
USCA Court of Appeals for Third Circuit, 07−02553
USCA, 07−03303 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 07/24/2006 Date Terminated: 01/07/2009 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

LEE BOWERS TERMINATED: 12/19/2008

represented by ANGUS R. LOVE INSTITUTIONAL LAW PROJECT 718 ARCH ST., STE 304S PHILADELPHIA , PA 19106 Email: alove@pailp.org TERMINATED: 12/19/2008 LEAD ATTORNEY

DAVID RICHMAN PEPPER HAMILTON LLP 3000 TWO LOGAN SQ 18TH &ARCH STREETS PHILADELPHIA , PA 19103−2799 215−981−4412 Fax: 215−981−4750 Email: richmand@pepperlaw.com TERMINATED: 05/06/2008 LEAD ATTORNEY

DAVID RUDOVSKY KAIRYS RUDOVSKY MESSING &FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA , PA 19106 215−925−4400 Fax: 215−925−5365 Email: drudovsky@krlawphila.com TERMINATED: 12/19/2008 LEAD ATTORNEY

JONATHAN H. FEINBERG KAIRYS RUDOVSKY MESSING &FEINBERG THE CAST IRON BUILDING SUITE 501 SOUTH 718 ARCH STREET PHILADELPHIA , PA 19106 215−925−4400 Fax: 215−925−5365 Email: jfeinberg@krlawphila.com TERMINATED: 12/19/2008 LEAD ATTORNEY

MICHAEL C. CHASE PEPPER HAMILTON &SCHEETZ 3000 TWO LOGAN SQUARE

Plaintiff BRANDON BUCCI
Plaintiff DARIUS MCDOWELL

18TH &ARCH STS. PHILADELPHIA , PA 19103−2799 215−981−4000 TERMINATED: 12/19/2008 LEAD ATTORNEY
SU MING YEH PA INSTITUTIONAL LAW PROJECT 718 ARCH ST. CAST IRON BLDG SUITE 304 SOUTH PHILADELPHIA , PA 19106 215−925−2966 Fax: 215−925−5337 Email: smyeh@pailp.org TERMINATED: 12/19/2008 LEAD ATTORNEY
represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL C. CHASE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff JAMES WALKER on behalf of themselves and all others similarly situated
Plaintiff JEROME BULLARD

JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL C. CHASE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ANGUS R. LOVE (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
DAVID RUDOVSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
MICHAEL C. CHASE (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE

Plaintiff JEROME HAYES
Plaintiff DENNIS JONES
Plaintiff NATHANIEL KENNEDY

(See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address)

Plaintiff RAYMOND LEVENTRY TERMINATED: 06/04/2008
Plaintiff MICHAEL LITTLE

LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED

Plaintiff GIHAD TOPPING
Plaintiff TIMOTHY WEGLICKI
Plaintiff MANUEL WILLIAMS ON BEHALF OF THEMSELVES, AND ALL OTHERS SIMILARLY SITUATED

represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DAVID RICHMAN (See above for address) TERMINATED: 05/06/2008 LEAD ATTORNEY
JONATHAN H. FEINBERG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
SU MING YEH (See above for address) LEAD ATTORNEY

V. Defendant CITY OF PHILADELPHIA

ATTORNEY TO BE NOTICED
ANGUS R. LOVE (See above for address) ATTORNEY TO BE NOTICED
DAVID RUDOVSKY (See above for address) ATTORNEY TO BE NOTICED
represented by DONALD C. MARINO CITY OF PHILADELPHIA LAW DEPT 1515 ARCH ST., 17TH FL PHILADELPHIA , PA 19106 215−683−5014 Fax: 215−683−5296 LEAD ATTORNEY ATTORNEY TO BE NOTICED
JEFFREY M. KOLANSKY ARCHER &GREINER ONE LIBERTY PL 32ND FL 1650 MARKET ST. PHILADELPHIA , PA 19103−7393 215−963−3300 Email: jkolansky@archerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
LYNNE A. SITARSKI CITY OF PHILADEPHIA LAW DEPARTMENT CHIEF DEPUTY CITY SOLICITOR 1515 ARCH STREET 14TH FLOOR PHILADELPHIA , PA 19102 215−683−5442 TERMINATED: 09/27/2007 LEAD ATTORNEY
CRAIG M. STRAW CITY OF PHILADELPHIA LAW DEPARTMENT 1515 ARCH STREET 14TH FLOOR PHILA , PA 19102 215−683−5447 Email: craig.straw@phila.gov ATTORNEY TO BE NOTICED
JEFFREY M. SCOTT ARCHER &GREINER ONE LIBERTY PL 32ND FL 1650 MARKET ST. PHILADELPHIA , PA 19103−7393 215−963−3300 Email: jscott@archerlaw.com ATTORNEY TO BE NOTICED
KERRI E. CHEWNING ARCHER &GREINER

Defendant LEON A. KING, II individually and in his official capacity as Commissioner, Philadelphia Prisons
Defendant SYLVESTER JOHNSON individually and in his offical capacity as Commissioner, Philadelphia Police Department

ONE CENTENNIAL SQUARE HADDONFIELD , NJ 08033 856−616−2685 Email: kchewning@archerlaw.com ATTORNEY TO BE NOTICED
RICHARD G. TUTTLE ARCHER &GREINER P.C. ONE LIBERTY PL 32ND FL 1650 MARKET ST PHILADELPHIA , PA 19103−7393 215−963−3300 Email: rtuttle@archerlaw.com ATTORNEY TO BE NOTICED
represented by JEFFREY M. KOLANSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LYNNE A. SITARSKI (See above for address) TERMINATED: 09/27/2007 LEAD ATTORNEY
CRAIG M. STRAW (See above for address) ATTORNEY TO BE NOTICED
JEFFREY M. SCOTT (See above for address) ATTORNEY TO BE NOTICED
KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED
RICHARD G. TUTTLE (See above for address) ATTORNEY TO BE NOTICED
represented by JEFFREY M. KOLANSKY (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
LYNNE A. SITARSKI (See above for address) TERMINATED: 09/27/2007 LEAD ATTORNEY
CRAIG M. STRAW (See above for address) ATTORNEY TO BE NOTICED
JEFFREY M. SCOTT (See above for address) ATTORNEY TO BE NOTICED
KERRI E. CHEWNING (See above for address) ATTORNEY TO BE NOTICED

Defendant JOHN DOE
Defendant RICHARD ROE unknown Prison and Police Officials and Officers, in their individual capacities

RICHARD G. TUTTLE (See above for address) ATTORNEY TO BE NOTICED

V.
Intervenor Defendant
LYNNE ABRAHAM DISTRICT ATTORNEY

represented by CHRISTOPHER P. MALLIOS DISTRICT ATTORNEY'S OFFICE 3 SOUTH PENN SQUARE PHILADELPHIA , PA 19107 215−686−5742 Email: christopher.mallios@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
PRIYA M. TRAVASSOS PHILADELPHIA DISTRICT ATTORNEY'S OFFICE 3 SOUTH PENN SQUARE PHILADELPHIA , PA 19107 215−686−5755 Fax: 215−686−9929 Email: Priya.Travassos@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
SARAH V. HART DISTRICT ATTORNEY'S OFFICE THREE SOUTH PENN SQUARE CORNER OF JUNIPER AND S. PENN PHILADELPHIA , PA 19107−3499 215−686−9607 Fax: 215−686−9929 Email: sarah.hart@phila.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/24/2006
07/24/2006
07/24/2006 07/24/2006

# Docket Text
1 COMPLAINT against all defendants ( Filing fee $ 350 receipt number 930868.), filed by LEE BOWERS, BRANDON BUCCI; DARIUS MCDOWELL; JAMES WALKER.(ks, ) Modified on 7/24/2006 (ks, ). (Entered: 07/24/2006)
4 Original Summons Issued as to CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, RICHARD ROE. Forwarded To: Counsel on 7/24/06 (ks, ) (Entered: 07/24/2006)
DEMAND for Trial by Jury by LEE BOWERS,BRANDON BUCCI; DARIUS MCDOWELL; JAMES WALKER. (ks, ). (Entered: 07/24/2006)
2 MOTION for Preliminary Injunction filed by LEE BOWERS,BRANDON BUCCI; DARIUS MCDOWELL; JAMES WALKER..(ks, ) Additional attachment(s) added

07/24/2006 07/24/2006 07/31/2006
07/31/2006 08/04/2006
08/04/2006 08/07/2006 08/17/2006 08/31/2006 08/31/2006 09/01/2006
09/01/2006 09/01/2006 09/05/2006

on 7/24/2006 (ks, ). (Entered: 07/24/2006)
3 MOTION to Expedite filed by LEE BOWERS, BRANDON BUCCI; DARIUS MCDOWELL; JAMES WALKER.Certificate of Service.(ks, ). (Entered: 07/24/2006)
4 NOTICE of Appearance by LYNNE A. SITARSKI on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON (SITARSKI, LYNNE) (Entered: 07/24/2006)
5 ORDER THAT THIS CASE IS REASSIGNED FROM JUDGE LEGROME D. DAVIS TO JUDGE R. BARCLAY SURRICK FOR ALL FURTHER PROCEEDINGS. SIGNED BY CLERK OF COURT MICHAEL E. KUNZ ON 7/31/06. 7/31/06 ENTERED AND COPIES E−MAILED.(afm, ) (Entered: 07/31/2006)
6 ORDER THAT STATUS CONFERENCE WILL BE HELD ON 8/4/2006 AT 11:30 AM IN CHAMBERS ROMM 8614. SIGNED BY JUDGE R. BARCLAY SURRICK ON 7/31/06. 7/31/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 7/31/06.(afm, ) (Entered: 07/31/2006)
7 ORDER THAT DEFENDANTS SHALL RESPOND TO INITIAL DISCOVERY REQUESTS BY 8/18/06; ALL DISCOVERY DUE 8/31/06; A HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION WILL BE HELD ON 9/18/2006 AT 10:30 AM IN COURTROOM 8A. SIGNED BY JUDGE R. BARCLAY SURRICK ON 8/4/06. 8/7/06 ENTERED AND COPIES E−MAILED.(afm, ) (Entered: 08/07/2006)
Set/Reset Deadlines: DISCOVERY DUE BY 8/31/2006. (afm, ) (Entered: 08/07/2006)
8 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Pretrial Conference held on 8/4/06 (afm, ) (Entered: 08/07/2006)
9 MOTION FILED BY LYNNE ABRAHAM TO INTERVENE PURSUANT TO THE PRISON LITIGATION REFORM ACT, MEMORANDUM, CERTIFICATE OF SERVICE. (ANSWER TO COMPLAINT ATTACHED)(md) (Entered: 08/18/2006)
10 Memorandum of Law in Opposition re 9 MOTION to Intervene filed by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, Certificate of Service. (FEINBERG, JONATHAN) Modified on 9/1/2006 (np). (Entered: 08/31/2006)
11 NOTICE of Appearance by MICHAEL C. CHASE, DAVID RICHMAN on behalf of BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS with CERTIFICATE OF SERVICE. (afm, ) (Entered: 09/01/2006)
12 ORDER THAT ON OR BEFORE 9/11/06, COUNSEL FOR EACH PARTY SHALL SUBMIT TO THE COURT AND OPPOSING COUNSEL THE FOLLOWING: A LIST OF ALL FACT WITNESSES WHO WILL BE CALLED TO TESTIFY AT THE HEARING, INCLUDING A BRIEF STATEMENT INDICATING THE NATURE OF THE TESTIMONY TO BE OFFERED BY THE WITNESSES. A LIST OF ALL EXPERT WITNESSES WHO WILL BE CALLED TO TESTIFY AT THE HEARING; ETC.. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/1/06. 9/1/06 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 09/01/2006)
13 ANSWER to Complaint with Affirmative Defenses by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, Certificate of Service. (SITARSKI, LYNNE) Modified on 9/5/2006 (np). (Entered: 09/01/2006)
14 RESPONSE to Motion re 9 MOTION to Intervene filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, Certificate of Service. (SITARSKI, LYNNE) Modified on 9/5/2006 (np). (Entered: 09/01/2006)
15 NOTICE of Appearance by JEFFREY M. KOLANSKY on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON with Certificate of

09/05/2006 09/05/2006 09/05/2006 09/06/2006 09/08/2006 09/08/2006 09/08/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/11/2006 09/12/2006 09/12/2006

Service (KOLANSKY, JEFFREY) (Entered: 09/05/2006)
16 NOTICE of Appearance by RICHARD G. TUTTLE on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON with Certificate of Service (TUTTLE, RICHARD) (Entered: 09/05/2006)
17 NOTICE of Appearance by JEFFREY M. SCOTT on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON with Certificate of Service (SCOTT, JEFFREY) (Entered: 09/05/2006)
18 REPLY to Response to Motion re 9 MOTION to Intervene filed by LYNNE ABRAHAM, Certificate of Service. (HART, SARAH) Modified on 9/6/2006 (np). (Entered: 09/05/2006)
19 MOTION to Amend/Correct 1 Complaint filed by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A − Proposed Amended Complaint# 2 Exhibit B − Letter to Counsel)(FEINBERG, JONATHAN) (Entered: 09/06/2006)
20 MEMORANDUM AND ORDER THAT LYNN ABRAHAM'S MOTION TO INTERVENE IS GRANTED . SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/8/06.9/11/06 ENTERED AND COPIES MAILED AND E−MAILED. (afm, ) (Entered: 09/11/2006)
21 ANSWER to Complaint by LYNNE ABRAHAM, CERTIFICATE OF SERVICE (see paper #9 for pdf).(afm, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 09/11/2006)
22 ORDER THAT A STATUS CONFERENCE WILL BE HELD ON 9/13/2006 AT 03:00 PM IN CHAMBER, ROOM 8614. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/8/06. 9/11/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 9/8/06.(afm, ) (Entered: 09/11/2006)
23 RESPONSE to Motion re 19 MOTION to Amend/Correct 1 Complaint DA's Statement of Non−Opposition to Plaintiffs' Motion to File Amended Complaint filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 09/11/2006)
24 NOTICE by LYNNE ABRAHAM re 12 Order, DA's Statement Relating to Proposed Fact and Expert Witnesses, Certificate of Service. (HART, SARAH) Modified on 9/13/2006 (np). (Entered: 09/11/2006)
25 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction DA &City Joint Response to Preliminary Injunction Motion filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 09/11/2006)
26 Joint MOTION to Continue Preliminary Injunction Hearing or, in the Alternative, Motion in Limine filed by LYNNE ABRAHAM.Memorandum &Certificate of Service. (Attachments: # 1 Appendix Joint Response to Preliminary Injunction Motion)(HART, SARAH) (Entered: 09/11/2006)
27 TRIAL BRIEF (Witness List) by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. Certificate of Service (SCOTT, JEFFREY) (Entered: 09/11/2006)
28 Witness List by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (Attachments: # 1 Supplement Cohen Report, CV# 2 Supplement Benton Report, Part 1 of 2# 3 Supplement Benton Report, Part 2 of 2# 4 Supplement Benton CV)(FEINBERG, JONATHAN) (Entered: 09/11/2006)
29 MOTION to Certify Class filed by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service. (Attachments: # 1 Memorandum of Law# 2 Text of Proposed Order)(FEINBERG, JONATHAN) (Entered: 09/12/2006)
30 MOTION for Discovery and for Sanctions filed by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A−H)(FEINBERG, JONATHAN) (Entered: 09/12/2006)

09/13/2006
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09/26/2006

31 Memorandum of Law re 2 MOTION for Preliminary Injunction, 26 Joint MOTION to Continue Preliminary Injunction Hearing or, in the Alternative, Motion in Limine in Reply to Defendants' Response to Motion for Preliminary Injunction and in Response to Joint Motion for Continuance by BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 09/13/2006)
32 ORDER THAT A HEARING ON PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION IS CONTINUED TO 10/3/2006 AT 09:00 AM IN COURTROOM 8A; DEFENDANT'S SHALL RESPOND TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION BY 9/20/06. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/13/06. 9/14/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 9/13/06.(afm, ) (Entered: 09/14/2006)
33 ORDER THAT PLAINTIFF'S MOTION TO AMEND THE COMPLAINT IS GRANTED . SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/13/06.9/14/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 9/13/06. (afm, ) (Entered: 09/14/2006)
34 AMENDED COMPLAINT with JURY DEMAND against CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, JOHN DOE, RICHARD ROE , filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS (SEE PAPER # 19 FOR PDF).(afm, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 09/14/2006)
35 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Pretrial Conference held on 9/13/06 (afm, ) (Entered: 09/14/2006)
36 NOTICE of Appearance by DONALD C. MARINO on behalf of CITY OF PHILADELPHIA (afm, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 09/15/2006)
37 NOTICE of Appearance by CHRISTOPHER P. MALLIOS on behalf of LYNNE ABRAHAM with CERTIFICATE OF SERVICE. (afm, ) Additional attachment(s) added on 10/3/2006 (afm, ). (Entered: 09/15/2006)
38 STIPULATION re 32 Order,, Set Motion and RRDeadlines/Hearings,, 29 MOTION to Certify Class Stipulation Re: Class Certification Filing Deadlines by LYNNE ABRAHAM. (HART, SARAH) (FILED IN ERROR BY ATTORNEY; COPY FORWARDED TO JUDGE FOR APPROVAL) Modified on 9/21/2006 (np). (Entered: 09/19/2006)
39 STIPULATION AND ORDER THAT DEFENDANTS' RESPONSE TO MOTION FOR CLASS CERTIFICATION IS EXTENDED BY 1 DAY TO 9/21/2006; PLAINTIFF'S REPLY IS EXTENDED BY 2 BUSINESS DAYS TO 9/26/06.. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/19/06. 9/20/06 ENTERED. COPIES FAXED BY CHAMBERS 9/19/06.(afm, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 09/20/2006)
40 RESPONSE in Opposition re 29 MOTION to Certify Class City Defendants' and District Attorney's Joint Response to Plaintiffs' Motion for Class Certification filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 09/21/2006)
41 Witness List by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. Certificate of Service (Attachments: # 1 Exhibit Dr. Robert Cohen Report − Addendum# 2 Exhibit Corbett Report, CV)(FEINBERG, JONATHAN) (Entered: 09/26/2006)
42 REPLY to Response to Motion re 29 MOTION to Certify Class filed by JEROME BULLARD, JEROME HAYES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (Attachments: # 1 Exhibit A − J)(FEINBERG,

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JONATHAN) (Entered: 09/26/2006)
43 Witness List by CITY OF PHILADELPHIA, LYNNE ABRAHAM, LEON A. KING, II, SYLVESTER JOHNSON. Certificate of Service (SCOTT, JEFFREY) (Entered: 09/26/2006)
44 MOTION to Dismiss Under Rule 12(B)1 and Rule 12(B)(6) or for Summary Judgment, jointly filed by CITY OF PHILADELPHIA, LYNNE ABRAHAM, LEON A. KING, II, SYLVESTER JOHNSON.Certificate of Service. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Text of Proposed Order)(KOLANSKY, JEFFREY) (Entered: 09/26/2006)
45 MOTION for Protective Order filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS..(FEINBERG, JONATHAN) (Entered: 09/27/2006)
46 Memorandum of Law in Opposition re 45 MOTION for Protective Order filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, Certificate of Service. (SCOTT, JEFFREY) Modified on 10/2/2006 (np). (Entered: 09/28/2006)
47 ORDER THAT A TELEPHONE CONFERENCE WILL BE HELD ON 9/28/2006 AT 10:15 AM, CHAMBERS WILL INITIATE THE CALL. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/28/06. 9/28/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 9/28/06.(afm, ) (Entered: 09/28/2006)
48 ORDER THAT DEPOSITIONS FOR DIN, FLEMMINGS, JONES, MAXWELL, PEDRAZA, SCOTT AND WILLIAMS SHALL TAKE PLACE ON 9/29/06 AT 9:00 AM, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/28/06. 9/28/06 FAXED BY CHAMBERS. 9/29/06 ENTERED AND COPIES E−MAILED.(jmp, ) (Entered: 09/29/2006)
49 ORDER THAT PLFFS' MOTION FOR PROTECTIVE ORDER (DOC. NO. 45) IS GRANTED IN PART AND DENIED IN PART AS FOLLOWS: DEFT MAY DEPOSE PLFFS' SEVEN ADDITIONAL WITNESSES ON SEPT. 29, 2006, ETC. PLFF'S FIRE EXPERT, MR. CORBETT, MAY TOUR THE PAB PRIOR TO THE HEARING ON MOTION FOR PREL.INJUNCT. SCHEDULED FOR 10/3/06. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/28/06. 9/28/06 FAXED BY CHAMBERS.9/29/06 ENTERED AND COPIES E−MAILED. (jmp, ) (Entered: 09/29/2006)
50 Minute Entry/Report of Pretrial Conference for proceedings held before Judge R. BARCLAY SURRICK : Pretrial Conference held on 9/28/06. (pr, ) (Entered: 09/29/2006)
51 MEMORANDUM AND ORDER THAT PLFFS' MOTION FOR CLASS CERTIFICATION IS GRANTED. THIS ACTION IS HEREBY CERTIFIED AS A CLASS ACTION FOR PURPOSES OF INJUNCTIVE &DECLARATORY RELIEF PURSUANT TO F.R.C.P. 23(a) &(b)(2), ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/28/06. 9/29/06 ENTERED AND COPIES E−MAILED: COPIES FAXED BY CHAMBERS ON 9/28/06.(kw, ) (Entered: 09/29/2006)
52 ORDER THAT THE WARDEN OF THE DETENTION CENTER PRODUCE BEFORE THIS COURT TERRANCE MAXWELL PP. 748862 ON 10/4/06 AT 9:00 A.M. FOR A PRELIMINARY INJUNCTION HEARING IN THE ABOVE CAPTIONED MATTER; ETC.. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/29/06. 9/29/06 ENTERED AND E−MAILED AND FAXED BY CHAMBERS.(jl, ) (Entered: 09/29/2006)
53 ORDER THAT THE WARDEN OF PICC PRODUCE BEFORE THIS COURT DENNIS JONES, ON TUESDAY, OCTOBER 3, 2006, AT 9:00 A.M. BEFORE THE HONORABLE R. BARCLAY SURRICK TO APPEAR FOR A PRELIMINARY INJUNCTION HEARING, ETC.. SIGNED BY JUDGE R.

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BARCLAY SURRICK ON 09/29/06. 09/29/06 ENTERED AND COPIES MAILED. COPIES FAXED BY CHAMBERS.(ac, ) (Entered: 09/29/2006)
54 ORDER THAT THE WARDEN OF THE HOUSE OF CORRECTOINS PRODUCE BEFORE THIS COURT JEROME BULLARD PP NO. 927369, KHAYAN FLEMMINGS PP NO. 941115, ERIC SCOTT PP NO. 709860 ON 10/4/06 AT 9:00 A.M. BEFORE THE HON. R. BARCLAY SURRICK TO APPEAR FOR A PRELIMINARY INJUNCTION HEARING IN THE ABOVE−CAPTIONED MATTER, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/29/06. 9/29/06 ENTERED AND COPIES E−MAILED: COPIES FAXED BY CHAMBERS.(kw, ) (Entered: 09/29/2006)
55 ORDER THAT THE WARDEN OF CFCF PRODUCE BEFORE THIS COURT NATHANIEL KENNEDY, MICHAEL LITTLE, AND JEFFREY JONES, ON TUESDAY, OCTOBER 3, 2006, AT 9:00 A.M. BEFORE THE HONORABLE R. BARCLAY SURRICK TO APPEAR FOR A PRELIMINARY INJUNCTION HEARING, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/29/06. 9/29/06 ENTERED AND COPIES E−MAILED, AND FAXED BY CHAMBERS.(md) (Entered: 09/29/2006)
56 ORDER THAT THE WARDEN OF THE DETENTION CENTER PRODUCE BEFORE THIS COURT JEROME HAYES PP NO. 558700 ON 10/3/06 AT 9;00 A.M. BEFORE THE HONORABLE R, BARCLAY SURRICK TO APPEAR FOR A PRELIMINARY INJUCTION HEARING IN THE ABOVE CAPTIONED MATTER AND THAT IMMEDIATELY UPON TERMINATION OF THE SAID PROCEEDINGS, HE/SHE BE DELIVERED INTO THE CUSTODY OF THE SAID SUPERINTENDENT OF THE SAID INSTITUTION. SIGNED BY JUDGE R. BARCLAY SURRICK ON 9/29/06. 9/29/06 ENTERED AND COPIES FAXED FROM CHAMBERS. (jpd) (Entered: 09/29/2006)
57 RESPONSE in Opposition re 44 MOTION to Dismiss Under Rule 12(B)1 and Rule 12(B)(6) or for Summary Judgment, jointly filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 09/29/2006)
59 ORDER THAT THE WARDEN OF PICC PRODUCE ANTONIO PEDRAZA PP NO. 960746 ON 10/4/06 AT 9:00 A.M. TO APPEAR FOR PRELIMINARY INJUNCTION HEARING AND THAT IMMEDIATELY UPON TERMINATION OF SAID PROCEEDING HE/SHE BE DELIVERED INTO THE CUSTODY OF SAID SUPERINTENDENT OF SAID INSTITUTION. SIGNED BY JUDGE R. BARCLAY SURRICK ON 10/2/06. 10/3/06 ENTERED AND COPIES E−MAILED. FAXED BY CHAMBERS 10/2/06.(afm, ) (Entered: 10/03/2006)
58 Exhibits A and B RE: RESPONSE in Opposition re 44 MOTION to Dismiss Under Rule 12(B)1 and Rule 12(B)(6) or for Summary Judgment, jointly filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) Modified on 10/4/2006 (np). (Entered: 10/03/2006)
60 NOTICE of Appearance by SU MING YEH on behalf of JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (afm, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 10/03/2006)
61 Minute Entry for proceedings/Preliminary Injunction Hearing held before Judge R. BARCLAY SURRICK on 10/3/06 (DAY 1). (afm, ) (Entered: 10/04/2006)
62 Minute Entry for proceedings/PRELIMINARY INJUNCTION HEARING held before Judge R. BARCLAY SURRICK ON 10−4−06 (DAY 2). (afm, ) (Entered: 10/05/2006)

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10/23/2006

63 Minute Entry for proceedings/PRELIMINARY INJUNCTION HEARING (DAY 3) held before Judge R. BARCLAY SURRICK ON 10/5/06 (afm, ) (Entered: 10/06/2006)
64 Minute Entry for proceedings/PRELIMINARY INJUNCTION HEARING (DAY 4) held before Judge R. BARCLAY SURRICK ON 10/6/06. (afm, ) (Entered: 10/06/2006)
65 TRANSCRIPT of Proceedings held on 10/4/06 before Judge SURRICK. 10/4/06 JURY TRIAL (jl, ) (Entered: 10/11/2006)
66 TRANSCRIPT of Proceedings held on 10/3/06 before Judge SURRICK. Court Reporter: INNA GOLDSHTEYN. TRIAL, AFTERNOON SESSION (jl, ) (Entered: 10/11/2006)
67 TRANSCRIPT of Proceedings held on 10/3/06 before Judge SURRICK. Court Reporter: INNA GOLDSHTEYN. HEARING ON PRELIMINARY INJUNCTION MORNING SESSION (jl, ) (Entered: 10/11/2006)
68 TRANSCRIPT of Proceedings/Hearing held on 10/4/06 before Judge HONORABLE R. BARCLAY SURRICK. Court Reporter: ESR. (afm, ) (Entered: 10/11/2006)
69 TRANSCRIPT of Proceedings/NON−JURY TRIAL held on 10/5/06, Morning Session before Judge HONORABLE R. BARCLAY SURRICK. Court Reporter: ESR. (afm, ) (Entered: 10/11/2006)
70 TRANSCRIPT of Proceedings/PRELIMINARY INJUNCTION HEARING held on 10/5/06, AFTERNOON SESSION before Judge R. BARCLAY SURRICK. Court Reporter: ESR. (afm, ) (Entered: 10/11/2006)
71 TRANSCRIPT of Proceedings/HEARING held on 10/6/06 before Judge R. BARCLAY SURRICK. Court Reporter: ESR. (afm, ) (Entered: 10/11/2006)
72 REPLY to Response to Motion re 44 MOTION to Dismiss Under Rule 12(B)1 and Rule 12(B)(6) or for Summary Judgment, jointly The District Attorney's Reply Brief in Support of the Motion to Dismiss, or for Summary Judgment filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 10/13/2006)
73 MOTION TO ADMIT NEW EVIDENCE FILED BY JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, CERTIFICATE OF SERVICE. (Attachments: # 1 Exhibit Declaration of Richard Brown# 2 Exhibit Declaration of Jerome Hands)(FEINBERG, JONATHAN) Modified on 10/26/2006 (cdd, ). (Entered: 10/20/2006)
74 Proposed Findings of Fact and Conclusions of Law by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (Conclusions of Law filed separately), Certificate of Service (Attachments: # 1 Appendix A)(FEINBERG, JONATHAN) (Entered: 10/23/2006)
75 Memorandum of Law, Post Hearing re 2 MOTION for Preliminary Injunction filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 10/23/2006)
76 Memorandum of Law In Support of Conclusions of Law and Findings of Fact re 2 MOTION for Preliminary Injunction filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (Attachments: # 1 Exhibit City Exhibit 25−Dep. of T. Innes# 2 Exhibit # 3 Exhibit # 4 Exhibit # 5)(SCOTT, JEFFREY) (Entered: 10/23/2006)

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77 Proposed Findings of Fact and Conclusions of Law by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. Certificate of Service (SCOTT, JEFFREY) (Entered: 10/23/2006)
78 Proposed Findings of Fact and Conclusions of Law by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. Certificate of Service (SCOTT, JEFFREY) (Entered: 10/23/2006)
79 Proposed Findings of Fact and Conclusions of Law by LYNNE ABRAHAM. Certificate of Service (HART, SARAH) (Entered: 10/23/2006)
80 RESPONSE to Motion re 73 MOTION to Permit Admission of New Evidence filed by District Attorney, Intervenor and filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (SCOTT, JEFFREY) (Entered: 10/25/2006)
81 MOTION to Strike Exhibit from Proposed Findings of Fact, Conclusions of Law and Memorandum of Law of Defendants City of Philadelphia, and Commissioners King and Johnson filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Certificate of Service.(FEINBERG, JONATHAN) (Entered: 10/26/2006)
82 NOTICE by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON to Substitute City Exhibit "40" attached to City Defendants' Proposed Findings of Fact, Proposed Conclusions of Law and Memorandum of Law (SCOTT, JEFFREY) Modified on 11/2/2006 (md) (MOTION FILED IN ERROR BY ATTY AS NOTICE) (Entered: 10/31/2006)
83 RESPONSE in Opposition re 81 MOTION to Strike Exhibit from Proposed Findings of Fact, Conclusions of Law and Memorandum of Law of Defendants City of Philadelphia, and Commissioners King and Johnson filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (SCOTT, JEFFREY) (Entered: 10/31/2006)
84 REPLY to Response to Motion re 81 MOTION to Strike Exhibit from Proposed Findings of Fact, Conclusions of Law and Memorandum of Law of Defendants City of Philadelphia, and Commissioners King and Johnson filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, Certificate of Service. (FEINBERG, JONATHAN) Modified on 11/7/2006 (cdd, ). (Entered: 11/03/2006)
85 Memorandum in Opposition re 2 MOTION for Preliminary Injunction , in the nature of a CONSOLIDATED RESPONSE TO PLAINTIFFS' PROPOSED FINDINGS OF FACT, POST HEARING MEMORANDUM OF LAW, AND LETTER OF NOVEMBER 1, 2006 filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 11/06/2006)
86 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction in reply to Consolidated Response of District Attorney filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, Certificate of Service. (FEINBERG, JONATHAN) Modified on 11/13/2006 (cdd, ). (Entered: 11/09/2006)
87 Memorandum of Law on Standing by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (Attachments: # 1 Exhibit A−E) (FEINBERG, JONATHAN) (Entered: 11/17/2006)
88 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction Joint Reply filed by District Attorney and filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (SCOTT, JEFFREY) (Entered: 11/21/2006)

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89 Memorandum of Law in Reply to Defendants' Joint Reply Memorandum on Standing by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 11/21/2006)
90 ORDER THAT PLAINTIFF'S MOTION FOR DISCOVERY AND FOR SANCTIONS IS DISMISSED AS MOOT. SIGNED BY JUDGE R. BARCLAY SURRICK ON 1/18/07.1/19/07 ENTERED AND COPIES E−MAILED AND FAXED. (stb, ) (Entered: 01/19/2007)
91 ORDER THAT THE MOTION TO EXPEDITE IS DISMISSED AS MOOT. SIGNED BY JUDGE R. BARCLAY SURRICK ON 1/18/07.1/19/07 ENTERED AND COPIES E−MAILED AND FAXED. (stb, ) (Entered: 01/19/2007)
92 MEMORANDUM AND ORDER THAT DEFTS' MOTION TO SUBSTITUTE CITY EXH 40 (DOC. NO. 82) IS GRANTED. PLFFS' MOTION TO ADMIT NEW EVIDENCE (DOC. NO. 73) IS GRANTED, ETC. PLFF'S MOTION TO STRIKE (DOC. NO. 81) IS GRANTED, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 1/18/07. 1/18/07 FAXED BY CHAMBERS. 1/19/07 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(jmp, ) (Entered: 01/19/2007)
93 NOTICE by LYNNE ABRAHAM Notice Of Legal Authority (Relating to Documents 44 and 72) (Attachments: # 1 Exhibit Jones v. Bock Opinion)(HART, SARAH) (Entered: 01/22/2007)
94 MEMORANDUM AND ORDER THAT CITY DEFENDANTS AND DISTRICT ATTORNEY'S JOINT MOTION TO DISMISS OR FOR SUMMARY JUDGMENT IS DENIED. PLAINTIFFS' MOTION FOR PREMLIMINARY INJUNCTION IS GRANTED.SIGNED BY JUDGE R. BARCLAY SURRICK ON 1/25/07.1/26/07 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS. (stb, ) (Entered: 01/26/2007)
95 NOTICE OF APPEAL by LYNNE ABRAHAM. Filing fee $ 455, receipt number 936449. Copies to Judge, Clerk USCA, Appeals Clerk and all counsel. (jmp, ) Additional attachment(s) added on 10/11/2007 (mk, ). (Entered: 02/02/2007)
96 Clerk's Notice to USCA re 95 Notice of Appeal: (jmp, ) (Entered: 02/02/2007)
NOTICE of Docketing Record on Appeal from USCA re 95 Notice of Appeal filed by LYNNE ABRAHAM. USCA Case Number 07−1351. (mjo, ) (Entered: 02/05/2007)
97 MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service.(FEINBERG, JONATHAN) (Entered: 02/06/2007)
98 MOTION for Attorney Fees filed by JEROME BULLARD, JEROME HAYES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A−G)(FEINBERG, JONATHAN) (Entered: 02/08/2007)
99 ANSWER to Amended Complaint WITH AFFIRMATIVE DEFENSES by LYNNE ABRAHAM, CERTIFICATE OF SERVICE.(HART, SARAH) Modified on 2/9/2007 (afm, ). (Entered: 02/08/2007)
100 MOTION to Amend/Correct the Judgment Pursuant to Rule 59(e) filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.Memorandum, Certificate of Service.(SCOTT, JEFFREY) (Entered: 02/08/2007)

02/09/2007 02/14/2007 02/14/2007 02/14/2007 02/16/2007 02/20/2007
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02/21/2007
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03/08/2007

101 ORDER THAT DEFENDANTS SHALL FILE A RESPONSE TO PLAINTIFFS' MOTION TO CONVERT PRELIMINARY INJUNCTION TO PERMANENT INJUNCTION ON OR BEFORE 2/14/2007. SIGNED BY JUDGE R. BARCLAY SURRICK ON 2/9/2007. 2/12/2007 ENTERED AND COPIES E−MAILED AND FAXED.(mbh, ) (Entered: 02/12/2007)
102 RESPONSE in Opposition re 97 MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (SCOTT, JEFFREY) (Entered: 02/14/2007)
103 ANSWER to Amended Complaint by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.(SCOTT, JEFFREY) (Entered: 02/14/2007)
104 RESPONSE in Opposition re 97 MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 02/14/2007)
105 Copy of TPO Form re 95 Notice of Appeal. (mbh, ) (Entered: 02/20/2007)
106 Report Of Plaintiffs' Monitoring Proposal by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, CERTIFICATE OF SERVICE. (FEINBERG, JONATHAN) Modified on 2/21/2007 (afm, ). (Entered: 02/20/2007)
107 PROPOSED TERMS AND CONDITIONS OF COMPLIANCE WITH PARA SIX OF COURT'S JAN. 25, 2007 ORDER by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, CERTIFICATE OF SERVICE. (SCOTT, JEFFREY) Modified on 2/22/2007 (afm, ). (Entered: 02/20/2007)
108 REPLY to Response to Motion re 97 MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) MOTION for Permanent Injunction (to convert Preliminary Injunction to Permanent Injunction) filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, CERTIFICATE OF SERVICE. (FEINBERG, JONATHAN) Modified on 2/22/2007 (afm, ). (Entered: 02/21/2007)
109 RESPONSE to Motion re 100 MOTION to Amend/Correct the Judgment Pursuant to Rule 59(e) filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, CERTIFICATE OF SERVICE. (FEINBERG, JONATHAN) Modified on 2/22/2007 (afm, ). (Entered: 02/21/2007)
110 RESPONSE in Opposition re 98 MOTION for Attorney Fees filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, MEMORANDUM, CERTIFICATE OF SERVICE. (SCOTT, JEFFREY) Modified on 2/23/2007 (afm, ). (Entered: 02/22/2007)
111 RESPONSE to Motion re 98 MOTION for Attorney Fees filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 02/23/2007)
112 REPLY to Response to Motion re 98 MOTION for Attorney Fees filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 02/28/2007)
113 ORDER THAT A STATUS CONFERENCE IS SET FOR 3/23/2007 03:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK.

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05/11/2007

SIGNED BY JUDGE R. BARCLAY SURRICK ON 3/8/07. 3/9/07 ENTERED AND COPIES E−MAILED AND FAXED.(stb, ) (Entered: 03/09/2007)
114 NOTICE of Entry of Appearance by PRIYA M. TRAVASSOS on behalf of LYNNE ABRAHAM with CERTIFICATE OF SERVICE(mas, ) Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 03/26/2007)
115 ORDER THAT A STATUS CONFERENCE IS SET FOR 4/5/2007 AT 2:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK; AND A HEARING ON PLFFS' MOTION TO CONVERT PRELIMINARY INJUNCTION TO PERMANENT INJUNCTION IS SET FOR 4/12/07 AT 11:00 AM IN COURTROOM 8A; ON OR BEFORE 3/30/07, EACH PARTY SHALL SUBMIT TO THE COURT THE INFORMATION AS OUTLINED HEREIN. SIGNED BY JUDGE R. BARCLAY SURRICK ON 3/23/07. 3/26/07 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(md) (Entered: 03/26/2007)
116 ORDER THAT THE PARTIES SHALL HAVE UNTIL APRIL 3, 2007 TO SUBMIT THE INFORMATION TO THE COURT THAT IS REQUIRED BY THE ORDER OF MARCH 23, 2007. SIGNED BY JUDGE R. BARCLAY SURRICK ON 3/26/2007. 3/27/2007 ENTERED AND COPIES EMAILED AND FAXED BY CHAMBERS ON 3/26/2007.(nda, ) (Entered: 03/27/2007)
117 MOTION to Extend Preliminary Injunction filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Proposed Order, Certificate of service .(FEINBERG, JONATHAN) Modified on 4/6/2007 (afm, ). (Entered: 04/05/2007)
118 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Status Conference held on 4/5/07. (mas, ) (Entered: 04/06/2007)
119 RESPONSE in Opposition re 117 MOTION for Preliminary Injunction to Extend Preliminary Injunction filed by LYNNE ABRAHAM, MEMORANDUM, DECLARATION, CERTIFICATE OF SERVICE. (Attachments: # 1 Affidavit Offer of Proof−−Charles Ehrlich# 2 Exhibit 4/3/07 Letter from Plaintiffs' Counsel to Court)(HART, SARAH) Modified on 4/12/2007 (afm, ). (Entered: 04/11/2007)
120 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Motion Hearing held on 4/12/07 re 117 MOTION for Preliminary Injunction to Extend Preliminary Injunction filed by JEROME BULLARD, MANUEL WILLIAMS, MICHAEL LITTLE, RAYMOND LEVENTRY, GIHAD TOPPING, JAMES WALKER, DARIUS MCDOWELL, TIMOTHY WEGLICKI, DENNIS JONES, BRANDON BUCCI, JEROME HAYES, LEE BOWERS, NATHANIEL KENNEDY (jl, ) (Entered: 04/13/2007)
121 TRANSCRIPT of Proceedings held on 4/12/07 before Judge SURRICK. Court Reporter: ANN FUHRMAN. MOTION HEARING (jl, ) (Entered: 04/13/2007)
122 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION TO CONVERT PRELIMINARY INJUNCTION TO PERMANENT INJUNCTION (DOC. NO. 97), IT IS ORDERED THAT THE MOTION IS WITHDRAWN WITHOUT PREJUDICE. SIGNED BY JUDGE R. BARCLAY SURRICK ON 4/23/07. 4/24/07 ENTERED AND COPIES FAXED BY CHAMBERS.(gs) (Entered: 04/24/2007)
123 ORDER THAT UPON CONSIDERATION OF DEFENDANTS' MOTION TO AMEND THE JUDGMENT (DOC. NO. 100), PLAINTIFFS' MOTION TO EXTEND PRELIMINARY INJUNCTION (DOC. NO. 117), IT IS ORDERED THAT PARAGRAPH 4 OF THIS COURT'S ORDER DATED 1/25/07 IS AMENDED. PLAINTIFFS' MOTION TO EXTEND IS GRANTED. SIGNED BY JUDGE R. BARCLAY SURRICK ON 4/23/07. 4/24/07 ENTERED AND COPIES FAXED BY CHAMBERS.(gs) (Entered: 04/24/2007)
124 ORDER THAT A STATUS CONFERENCE IS SCHEDULED FOR 5/15/2007 AT 1:30 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY

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07/30/2007

SURRICK.SIGNED BY JUDGE R. BARCLAY SURRICK ON 5/11/2007. 5/14/2007 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS ON 5/11/2007.(nda) (Entered: 05/14/2007)
125 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Status Conference held on 5/15/2007. (nda) (Entered: 05/16/2007)
126 ORDER THAT PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS IS DISMISSED AS MOOT, ETC.SIGNED BY JUDGE R. BARCLAY SURRICK ON 5/15/2007. 5/16/2007 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS ON 5/15/2007.(nda) (Entered: 05/16/2007)
127 NOTICE OF APPEAL as to 123 Order,, Terminate Motions, by LYNNE ABRAHAM. Filing fee $ 455, receipt number 400939533, Certificate of Service.. Copies to Judge, Clerk USCA, Appeals Clerk and SARAH V. HART (HART, SARAH) Modified on 5/22/2007 (fh, ). (Entered: 05/21/2007)
128 NOTICE OF APPEAL as to 123 Order, Terminate Motions, by LYNNE ABRAHAM. Filing fee $ 455, receipt number 939533. Copies to Judge, Clerk USCA, Appeals Clerk and Counsel. (nda)(DUPLICATE OF #127) Modified on 5/22/2007 (rs, ). Additional attachment(s) added on 7/31/2007 (nda, ). (Entered: 05/22/2007)
129 Clerk's Notice to USCA re 128 Notice of Appeal. (nda) (Entered: 05/22/2007)
NOTICE of Docketing Record on Appeal from USCA re 127 Notice of Appeal, filed by LYNNE ABRAHAM. USCA Case Number 07−2553. (nda) (Entered: 05/23/2007)
130 Copy of TPO Form re 128 Notice of Appeal. (nda) (Entered: 06/06/2007)
131 ORDER THAT PLAINTIFFS' COUNSEL MAY CONDUCT INSPECTION TOURS OF THE INTAKE AND QUARANTINE UNITS OF THE CFCF AND THE RIVERSIDE WOMEN'S FACILITY OF THE PHILADELPHIA PRISON SYSTEMS ON 6/13/2007, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 6/12/2007. 6/13/2007 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS ON 6/12/2007.(nda) (Entered: 06/13/2007)
132 MOTION for Preliminary Injunction (to Extend) filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS..(FEINBERG, JONATHAN) (Entered: 07/17/2007)
133 RESPONSE in Opposition re 132 MOTION for Preliminary Injunction (to Extend) MOTION for Preliminary Injunction (to Extend) filed by LYNNE ABRAHAM, MEMORANDUM AND CERTIFICATE OF SERVICE. (HART, SARAH) Modified on 7/23/2007 (afm, ). (Entered: 07/20/2007)
134 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION TO EXTEND PRELIMINARY INJUNCTION (DOC. NO. 132), IT IS ORDERED THAT THE MOTION IS GRANTED. THE PRELIMINARY INJUNCTION IS EXTENDED FOR A PERIOD OF NINETY (90) DAYS FROM 7/24/07 TO AND THROUGH 10/22/07. SIGNED BY JUDGE R. BARCLAY SURRICK ON 7/23/07. 7/24/07 ENTERED AND COPIES MAILED FAXED BY CHAMBERS.(gs) (Entered: 07/24/2007)
135 MOTION to Modify Order of April 23, 2007 With Respect to Monitoring filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.. (Attachments: # 1 Exhibit A)(FEINBERG, JONATHAN) (Entered: 07/30/2007)
136 Notice of Appeal as to 134 Order filed by LYNNE ABRAHAM. Filing fee $ 455, receipt number 941150. Copies to Judge, Clerk USCA, Appeals Clerk and Counsel. (nda) (Entered: 07/31/2007)

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137 Clerk's Notice to USCA re 136 Notice of Appeal. (nda) (Entered: 07/31/2007)
138 RESPONSE in Opposition re 135 MOTION to Modify Order of April 23, 2007 With Respect to Monitoring filed by LYNNE ABRAHAM, memorandum and Certificate of service. (HART, SARAH) Modified on 8/2/2007 (afm, ). (Entered: 08/01/2007)
139 RESPONSE in Opposition re 135 MOTION to Modify Order of April 23, 2007 With Respect to Monitoring filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON, Memorandum and Certificate of service. (SCOTT, JEFFREY) Modified on 8/2/2007 (afm, ). (Entered: 08/01/2007)
140 MOTION for Extension of Time to File Response/Reply as to 135 MOTION to Modify Order of April 23, 2007 With Respect to Monitoring filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.Memorandum, Certificate of Service.(SCOTT, JEFFREY) (Entered: 08/01/2007)
Notice of Docketing Record on Appeal from USCA re 136 Notice of Appeal filed by LYNNE ABRAHAM. USCA Case Number 07−3303. (nda) (Entered: 08/02/2007)
141 REPLY to Response to Motion re 135 MOTION to Modify Order of April 23, 2007 With Respect to Monitoring filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 08/02/2007)
142 ORDER THAT A STATUS CONFERENCE IS SCHEDULED FOR 8/9/2007 AT 4:00 PM IN CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY JUDGE R. BARCLAY SURRICK ON 08/03/2007. 08/06/2007 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS ON 08/03/2007.(nda) (Entered: 08/06/2007)
143 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Status Conference held on 8/9/2007. (ap, ) (Entered: 08/13/2007)
144 ORDER THAT A STATUS CONFERENCE IS SET FOR 8/14/2007 04:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY JUDGE R. BARCLAY SURRICK ON 8/10/07. 8/13/07 ENTERED AND COPIES E−MAILED AND FAXED.(stb, ) (Entered: 08/13/2007)
145 Copy of TPO Form re 136 Notice of Appeal. (nda) (Entered: 08/14/2007)
146 Joint MOTION to Amend/Correct 134 Order,, Terminate Motions, filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.Certificate of Service. (Attachments: # 1 Memorandum of Law# 2 Proposed Order)(RICHMAN, DAVID) (Entered: 08/14/2007)
147 Minute Entry for proceedings held before Judge R. BARCLAY SURRICK : Status Conference held on 08/14/2007. (nda) (Entered: 08/15/2007)
Record Complete for Purposes of Appeal re 136 Notice of Appeal (om, ) (Entered: 08/28/2007)
148 Joint MOTION to Terminate Preliminary Injunction filed by CITY OF PHILADELPHIA.Memorandum, Certificate of Service. (Attachments: # 1 Joint Memorandum of Law# 2 Exh A − Private Settlement Agmt.# 3 Proposed Order)(TUTTLE, RICHARD) (Entered: 08/30/2007)
149 RESPONSE to Motion re 148 Joint MOTION to Terminate Preliminary Injunction filed by LYNNE ABRAHAM. (HART, SARAH) (Entered: 09/06/2007)
150 NOTICE of Withdrawal of Appearance by LYNNE A. SITARSKI on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON(SITARSKI, LYNNE) (Entered: 09/27/2007)

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151 MEMORANDUM AND ORDER THAT THE JOINT MOTION OF PLAINTIFFS AND THE CITY DEFENDANTS TO TERMINATE PRELIMINARY INJUNCTION IS GRANTED, ETC. SIGNED BY JUDGE R. BARCLAY SURRICK ON 10/10/2007. 10/10/2007 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS ON 10/10/2007.(nda) (Entered: 10/11/2007)
152 ORDER OF USCA THAT WITH THE AGREEMENT OF THE PARTIES IN THE ABOVE ENTITLED CASE, IT IS ENTERED DISMISSED BY THE CLERK UNDER RULE 42(b).(rf, ) (Entered: 10/18/2007)
153 MOTION for Attorney Fees filed by JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS.Memorandum, Certificate of Service.(FEINBERG, JONATHAN) (Entered: 10/24/2007)
154 SCHEDULING ORDER THAT ALL DISCOVERY IS DUE BY 7/31/2008. MOTIONS IN LIMINE SHALL BE FILED BY 11/12/2008. A TRIAL DATE IS SET FOR 12/15/2008 AT 9:30 AM IN COURTROOM 8−A BEFORE HONORABLE R. BARCLAY SURRICK. A FINAL PRETRIAL CONFERENCE IS SET FOR 12/11/2008 AT 3:00 PM IN JUDGE'S CHAMBERS BEFORE HONORABLE R. BARCLAY SURRICK.SIGNED BY HONORABLE R. BARCLAY SURRICK ON 4/25/08. 4/28/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(ah) (Entered: 04/28/2008)
155 NOTICE of Withdrawal of Appearance by MATTHEW D. JANSSEN on behalf of JEROME BULLARD, JEROME HAYES, DENNIS JONES, NATHANIEL KENNEDY, RAYMOND LEVENTRY, MICHAEL LITTLE, GIHAD TOPPING, TIMOTHY WEGLICKI, MANUEL WILLIAMS, BRANDON BUCCI, DARIUS MCDOWELL, JAMES WALKER, LEE BOWERS, Certificate of Service.(ah) (Entered: 04/30/2008)
156 NOTICE of Withdrawal of Appearance by DAVID RICHMAN on behalf of all plaintiffs, CERTIFICATE OF SERVICE. (RICHMAN, DAVID) Modified on 5/8/2008 (afm, ). (Entered: 05/06/2008)
157 ORDER REFERRING CASE TO MAGISTRATE JUDGE L. FELIPE RESTREPO FOR A SETTLEMENT CONFERENCE ON AUGUST 21, 2008 AT 2:00 PM. SIGNED BY HONORABLE R. BARCLAY SURRICK. 5/8/08 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(sc, ) (Entered: 05/08/2008)
158 ORDER THAT A SETTLEMENT CONFERENCE WILL BE HELD ON THURSDAY, AUGUST 21, 2008 AT 10:00 AM IN COURTROOM 3I, ETC., COUNSEL ARE DIRECTED TO COMPLETE THE ENCLOSED SETTLEMENT CONFERENCE SUMMARY TO BE DELIVERED TO CHAMBERS ON AUGUST 14, 2008. SIGNED BY MAGISTRATE JUDGE L. FELIPE RESTREPO. 5/9/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(sc, ) (Entered: 05/09/2008)
159 ORDER THAT PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS IS DISMISSED AS MOOT. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 5/28/08. 5/28/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(ah) (Entered: 05/29/2008)
160 ORDER THAT THE ISSUES BETWEEN RAYMOND LEVENTRY AND DEFENDANTS ARE DISMISSED WITH PREJUDICE PURSUANT TO LOCAL RULE 41.1(b).SIGNED BY HONORABLE R. BARCLAY SURRICK ON 6/3/08. 6/4/08 ENTERED AND COPIES MAILED, EMAILED AND FAXED.(ah) (Entered: 06/04/2008)
161 ORDER THAT THE SETTLEMENT CONFERENCE SCHEDULED FOR 8/21/08 HAS BEEN RESCHEDULED FOR 9/3/2008 AT 2:00 PM BEFORE MAGISTRATE JUDGE L. FELIPE RESTREPO.SIGNED BY MAGISTRATE JUDGE L. FELIPE RESTREPO ON 6/4/08. 6/4/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(ah) (Entered: 06/04/2008)

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162 NOTICE of Appearance by CRAIG M. STRAW on behalf of CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON (STRAW, CRAIG) (Entered: 06/11/2008)
163 Minute Entry for proceedings held before MAGISTRATE JUDGE L. FELIPE RESTREPO: Settlement Conference held on 9/3/08. (ah) (Entered: 09/04/2008)
164 MOTION for Summary Judgment filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A−Amended Complaint, # 2 Exhibit B−L. Bowers Dep Part I, # 3 Exhibit B−L Bowers Dep Part II, # 4 Exhibit C− L Bowers Prelim Hearing Testimony, # 5 Exhibit D− L. King Hearing Testimony Part I, # 6 Exhibit D− L. King Hearing Testimony Part II, # 7 Exhibit E− Memo from G.K. PPD, # 8 Exhibit F− Bowers Medical and Court Records, # 9 Exhibit G−PPS Policies, # 10 Exhibit H− E−mails 2005 PPD, # 11 Exhibit I− Goldkamp Progress Report, # 12 Exhibit J− E−Mails PPD, # 13 Exhibit K− Memo from King to FJD, # 14 Exhibit L− DiNubile Memo, # 15 Exhibit M− Daily Complaint Summaries, # 16 Exhibit N− Testimony P. Ramos)(SCOTT, JEFFREY) (Entered: 09/16/2008)
165 MOTION for Partial Summary Judgment filed by LEE BOWERS.Memorandum, Certificate of Service. (Attachments: # 1 Exhibit A)(FEINBERG, JONATHAN) (Entered: 09/16/2008)
166 RESPONSE in Opposition re 164 MOTION for Summary Judgment filed by LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 10/01/2008)
167 RESPONSE in Opposition re 165 MOTION for Partial Summary Judgment filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON. (Attachments: # 1 Text of Proposed Order Denying Plaintiff's Motion, # 2 Certificate of Service)(CHEWNING, KERRI) (Entered: 10/01/2008)
168 REPLY to Response to Motion re 165 MOTION for Partial Summary Judgment filed by LEE BOWERS. (FEINBERG, JONATHAN) (Entered: 10/08/2008)
169 ORDER THAT UPON REQUEST OF COUNSEL THE TRIAL SCHEDULED FOR 12/15/08 IS CONTINUED TO 1/5/2009 AT 10:00 AM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 10/10/08. 10/14/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXXED BY CHAMBERS.(lisad, ) (Entered: 10/14/2008)
170 MOTION in Limine preclude reference to, or evidence of, any past consent decrees or orders of contempt involving the Philadelphia Prison System; and evidence of the extension of the preliminary injunction and private settlement agreement related to the injunctive relief claims brought by Mr. Bowers filed by CITY OF PHILADELPHIA, LEON A. KING, II, SYLVESTER JOHNSON.Memorandum, Certificate of Service.(SCOTT, JEFFREY) (Entered: 11/11/2008)
171 RESPONSE to Motion re 170 MOTION in Limine preclude reference to, or evidence of, any past consent decrees or orders of contempt involving the Philadelphia Prison System; and evidence of the extension of the preliminary injunction and private settlement agreement related to filed by LEE BOWERS. (RUDOVSKY, DAVID) (Entered: 11/18/2008)
172 ORDER THAT THE FINAL PRETRIAL CONFERENCE SCHEDULED FOR 12/11/08 IS CONTINUED TO 12/16/2008 AT 3:00 PM BEFORE HONORABLE R. BARCLAY SURRICK. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 11/21/08. 11/21/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(ah) (Entered: 11/21/2008)
173 Proposed Jury Instructions by CITY OF PHILADELPHIA. Certificate of Service (SCOTT, JEFFREY) (Entered: 12/04/2008)
174 ORDER THAT FINAL PRETRIAL CONFERENCE SET FOR 12/16/2008 04:30 PM BEFORE HONORABLE R. BARCLAY SURRICK.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/5/08. 12/8/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED.(bc, ) (Entered: 12/08/2008)

12/12/2008
12/12/2008
12/15/2008 12/15/2008 12/19/2008

175 MEMORANDUM AND ORDER THAT DEFENDANTS' MOTION IS DENIED WITH RESPECT TO PLAINTIFF'S FEDERAL CONSTITUTIONAL CLAIMS; AND DEFENDANTS' MOTION IS GRANTED WITH RESPECT TO PLAINTIFF'S STATE CONSTITUTIONAL CLAIM AND STATE LAW CLAIMS FOR NEGLIGENCE, RECKLESNESS, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/12/08. 12/12/08 ENTERED AND COPIES E−MAILED AND FAXED BY CHAMBERS.(ah) (Entered: 12/12/2008)
176 MEMORANDUM AND ORDER THAT DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM REFERENCING CONSENT DECREES AND ORDERS OF CONTEMPT IN HARRIS AND JACKSON IS DENIED. DEFENDANTS' MOTION IN LIMINE TO PRECLUDE PLAINTIFF FROM REFERENCING EXTENSION OF THE PRELIMINARY INJUNCTION AND THE PRIVATE SETTLEMENT AGREEMENT IN THIS MATTER IS GRANTED AS OUTLINED HEREIN. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/12/08. 12/15/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(ah) (Entered: 12/15/2008)
177 MEMORANDUM AND ORDER THAT PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT IS DENIED. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/12/08. 12/15/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(ah) (Entered: 12/15/2008)
178 Minute Entry for proceedings held before MAGISTRATE JUDGE L. FELIPE RESTREPO: Settlement Conference held on 12/15/08. (ah) (Entered: 12/15/2008)
179 ORDER THAT THE CLAIMS OF PLAINTIFF LEE BOWERS ARE DISMISSED WITH PREJUDICE, PURSUANT TO RULE 41.1(b). SIGNED BY HONORABLE R. BARCLAY SURRICK ON 12/18/08. 12/19/08 ENTERED AND COPIES MAILED, E−MAILED AND FAXED BY CHAMBERS.(ah) (Entered: 12/19/2008)

 
 United States District Court, E.D. Pennsylvania. Lee BOWERS, v.
CITY OF PHILADELPHIA, et al. Civil Action No. 06-3229.
Dec. 12, 2008.
Angus R. Love, David Rudovsky, Jonathan H. Feinberg, Kairys Rudovsky Messing & Feinberg, Michael C. Chase, Pepper Hamilton & Scheetz, Su Ming Yeh, Philadelphia, PA for Lee Bowers.
Donald C. Marino, City of Philadelphia Law Dept., Jeffrey M. Kolansky, Jeffrey M. Scott, Richard G. Tuttle, Archer & Greiner, Craig M. Straw, City of Philadelphia Law Department, Philadelphia, PA, Kerri E. Chewning, Archer & Greiner, Haddonfield, NJ, for City of Philadelphia, et al.
MEMORANDUM & ORDER
SURRICK, District Judge.
*1 Presently before the Court is Defendants' Motion in Limine to Preclude Reference to, or Evidence of, any Past Consent Decrees or Orders of Contempt Involving the Philadelphia Prison System (Doc. No. 170). For the following reasons, the Motion will be granted in part and denied in part.
I. BACKGROUND
Plaintiff Lee Bowers (“Plaintiff”) alleges that he was subjected to unconstitutional conditions of confinement at the intake unit of the Philadelphia Prison System (the “PPS”) as a result of overcrowding from June 23, 2006, through June 26, 2006. (Doc. No. 34 ¶¶ 21-24, 26-28.) FN1Plaintiff is not the first to allege unconstitutional conditions in the PPS. As we have noted in past opinions in this case, state and federal courts have grappled with the issue of prison overcrowding in the PPS for more than thirty years. State court litigation began in 1971 with the filing of Jackson v. Hendrick, in which inmates in the City's prison system alleged that their conditions of confinement violated their constitutional and statutory rights. See 764 A.2d 1139, 1141 (Pa.Commw.Ct.2000) (reciting history).

In 1972, the trial court held that conditions in the prison amounted to cruel and unusual punishment and ordered the City to take immediate action to rectify the situation. Id. Over the next twenty years, the parties entered into a series of consent decrees that laid out specific measures that the City was obligated to take in order to provide constitutionally adequate conditions. Id. The final consent decree was not approved until 1991. See Jackson v. Hendrick, No. 2437, slip op. at 3 (Phila.Ct.Com.Pl. July 1, 2002). In 1996, the trial court in Jackson noted that Philadelphia's prisons “remain dangerously overcrowded, while conditions remain, in many respects, cruel, disgusting and degrading.” 764 A.2d at 1145.
FN1. Our recitation of the facts is brief and limited to the issues at bar. A more exhaustive recitation of the facts can be found in the Court's January 25, 2007 Memorandum Opinion. (Doc. No. 94.)
Federal litigation involving conditions in the PPS began in 1982 with the filing of Harris v. City ofPhiladelphia, No. 82-1847 (E .D. Pa.1982). The plaintiffs in Harris, inmates at the Holmesburg Prison, filed a class action complaint against the City of Philadelphia and individual Philadelphia officials alleging overcrowded conditions that violated the First, Eighth, Ninth, and Fourteenth Amendments. See Harris v. City of Phila., No. 82-1847, 2000 WL 1239948, at *1 (E.D.Pa. Aug.30, 2000). That litigation led to court-approved consent decrees in 1986 and 1991, as well as a Ten-Year Plan approved by the court in 1996. Id. at * 1-4.The litigation also resulted in a series of orders beginning in 1994 and ending in 1999 that approved over 250 policies and procedures in the prisons that were a product of negotiations between the City and the plaintiff class. Id. at *4. Throughout the eighteen-year litigation, the consent decrees and orders mandated various reform measures in an effort to address the crisis conditions that existed at the PPS. In 2000, the court approved a final settlement, and federal supervision of the PPS came to an end. Id. at * 11.
*2 On July 24, 2006, Plaintiff brought the instant lawsuit alleging that unconstitutional conditions in the intake unit of the PPS caused him to suffer a blood clot in his left leg. (See Doc. No. 1; Doc. No. 34 ¶ 29.) Plaintiff originally brought the Complaint as

a class action in which he was a named plaintiff. On January 25, 2007, we entered a Preliminary Injunction in the class action. (See Doc. No. 94.) We made findings of fact based upon evidence and testimony presented at an evidentiary hearing as well as an on-site tour of the prison facilities. (Id. at 3.) In the Order, we stated:
It is DECLARED that the conditions that existed in the intake unit at [the Curran-Fromhold Correctional Facility (“CFCF”) ], in the detention unit of the [Philadelphia Police Administration Building (“PAB”) ], and in the holding cells in the Philadelphia Police Districts during the summer of 2006, violated the constitutional rights of the Plaintiffs and members of the Plaintiff class as provided under the Fourteenth Amendment of the United States Constitution.
(Doc. No. 94.) Furthermore, the Order detailed the unconstitutional conditions that we found: The unconstitutional conditions included the holding
of post-arraignment detainees for days in holding cells at the intake unit of CFCF, in the detention unit of the PAB, and in the holding cells in the Police Districts in numbers that far exceeded the capacity of the cells, and which required detainees to sit and sleep on concrete floors and on top of each other. The conditions also included the failure to provide beds and bedding, the failure to provide materials for personal hygiene including soap, warm water, toothpaste, toothbrushes, and shower facilities, unsanitary and unavailable toilet facilities, the failure to provide for the medical needs of detainees, the failure to timely classify detainees in the intake unit at CFCF, and the lack of fire safety protection at the PAB and in the Police Districts.
(Id.) We ordered Defendants to take immediate affirmative steps to redress these conditions. (Id.) Defendants consented to extensions of the preliminary injunction through October 22, 2007. (See Doc. No. 123.)
On August 30, 2007, Plaintiffs and Defendants jointly moved to terminate the preliminary injunction so that the parties could enter into a private settlement agreement that would continue the monitoring of the prisons without federal court supervision. (Doc. No. 148.) On October 10, 2007,

we granted that joint motion, terminated the preliminary injunction, and dismissed the class claims. (Doc. No. 151.) The only claims now remaining in the case are those asserted by Plaintiff in his individual capacity. Plaintiff proceeds only against Defendants City of Philadelphia and King, in his official capacity. (Doc. No. 165 at 1.) Trial in this matter is scheduled to begin on January 5, 2009.
Defendants have filed the instant motion in limine seeking to preclude Plaintiff from making reference to (1) Jackson and Harris, the consent decrees entered in those cases, and the contempt orders issued in those cases; and (2) the extension of the January 25, 2007, preliminary injunction in this case and the private settlement agreement related to Plaintiff's injunctive relief claims. Defendants contend that the evidence is not admissible because it lacks relevance, is unfairly prejudicial, qualifies as hearsay, and constitutes evidence of compromise negotiations.
II. LEGAL STANDARD
A. Relevance
*3 Federal Rule of Evidence 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”Fed.R.Evid. 401. Federal Rule of Evidence 402 then provides that “all relevant evidence is admissible.” Fed.R.Evid. 402. The Third Circuit has stated that “ ‘Rule 401 does not raise a high standard,’ ” Hurley v. Atl. City Police Dep't, 174 F.3d 95, 109-10 (3d Cir.1999) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 782-83 (3d Cir.1994)), observing that:
As noted in the Advisory Committee's Note to Rule 401, “relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.”Because the rule makes evidence relevant “if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact.”
Blancha v. RaymarkIndus., 972 F.2d 507, 514 (3d Cir.1992) (quoting Charles A. Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure § 5166, at 74 n. 47 (1978)).
B. Unfair Prejudice
Federal Rule of Evidence 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”Fed.R.Evid. 403. The Third Circuit has defined prejudice under Rule 403 as follows:
[T]he ... prejudice against which the law guards [is] ... unfair prejudice ... prejudice of the sort which clouds impartial scrutiny and reasoned evaluation of the facts, which inhibits neutral application of principles of law to the facts as found. Prejudice does not simply mean damage to the opponent's cause. If it did, most relevant evidence would be deemed “prejudicial.” However, the fact that probative evidence helps one side prove its case obviously is not ground for excluding it under Rule 403. Excluded evidence must be unfairly prejudicial, not just prejudicial.
Goodman v. Pa. Tpk. Comm'n, 293 F.3d 665, 670 (3d Cir.2002) (citations omitted).
C. Hearsay
Federal Rule of Evidence 801 provides that hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”Fed.R.Evid. 801(c).“Hearsay is not admissible except as provided by [the Federal Rules of Evidence] or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress.”Fed.R.Evid. 802. Certain types of statements are admissible in court as non-hearsay. SeeFed.R.Evid. 801. For instance, Federal Rule of Evidence 801(d) (2)(A) provides that a statement is not hearsay if it “is offered against a party and is the party's own statement.”Fed.R.Evid. 801(d)(2)(A).
D. Evidence of Compromise Negotiations
*4 Federal Rule of Evidence 408 makes conduct or

statements made in compromise negotiations regarding the claim inadmissible to prove liability.Fed.R.Evid. 408. The Rule provides:
Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish-or accepting or offering or promising to accept-a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
Fed.R.Evid. 408. “[I]f application of Rule 408 exclusion is doubtful, [the] better practice is to exclude evidence of compromise negotiations.” Affiliated Mfg., Inc. v. Aluminum Co. ofAm., 56 F.3d 521, 526 (3d Cir.1995) (citing Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1364 (10th Cir.1987)).
III. LEGAL ANALYSIS
A. Relevance
Defendants contend that introduction of material related to the consent decrees in Harris and Jackson are not relevant, because “it will not tend to prove that [Plaintiff] was subjected to unconstitutional conditions of confinement in June 2006.”(Doc. No. 170 at 9.) To support this argument, Defendants note that “there was no finding by the Harris or Jackson Courts that the intake center of CFCF was overcrowded and unconstitutional,” and the evidence “is just too remote in time to prove that the City of Philadelphia was deliberately indifferent to the constitutional rights of [Plaintiff].” (Doc. No. 170 at 9.) Plaintiff asserts that Harris and Jackson and the consent decrees resulting therefrom “could not be more relevant,” because a “central issue in this case

is whether the conditions that existed in June, 2006, in the intake unit at PPS were the result of deliberate indifference to the history of overcrowding and other unconstitutional conditions of confinement at PPS.” (Doc. No. 171 at 3-4.) Plaintiff further asserts that “[t]he issue of deliberate indifference cannot be litigated in a factual vacuum.”(Id. at 4.)
We agree that the consent decrees from Harris and Jackson are relevant. The existence of those decreesand the extensive litigation over unconstitutional conditions of confinement in the PPS-makes it “more probable ... than it would be without the evidence” that Defendants were deliberately indifferent to Plaintiff's constitutional rights. SeeFed.R.Evid. 401. This is so, because, as Plaintiff argues, “[t]he issue of deliberate indifference, by definition, requires consideration of the City's knowledge of the conditions and problems that led to the constitutional injury and the City's response or lack of response to this knowledge and notice.”(Doc. No. 171 at 3.) See Anela v. City of Wildwood, 790 F.2d 1063, 1069 (3d Cir.1986) (holding that district court erred in granting summary judgment for the city where “[t]he description of the cells revealed a long-standing condition that had become an acceptable standard and practice for the City”). The existence of the Harris and the Jackson litigation make it more likely than not that Defendants had knowledge of overcrowding as a “long-standing condition.” See id.Those cases, and their attendant consent decrees, also make it more likely that Defendants acted with deliberate indifference to Plaintiff's constitutional rights. Under these circumstances, and given that “Rule 401 does not raise a high standard,” Hurley, 174 F.3d at 10910, we cannot say that the Harris and Jackson litigations “ha [ve] no tendency to prove” a consequential fact, Blancha, 972 F.2d at 514; see also, e.g., Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 136 (2d Cir.2008) (“A consent decree may properly be admitted to demonstrate that a defendant was aware of its legal obligations.”) (citing United States v. Gilbert, 668 F.2d 94, 97 (2d Cir.1981)); Johnson v. Hugo's Skateway, 974 F.2d 1408, 1413 (4th Cir.1992) (affirming district court's admission of consent decree into evidence to show motive and intent).
B. Unfair Prejudice
*5 Defendants next contend that “the consent decrees

in Harris and Jackson are inadmissible under Federal Rule of Evidence 403 because “the probative value is substantially outweighed by the danger of unfair prejudice.”(Doc. No. 170 at 11.) Defendants make this one-sentence assertion at the end of a paragraph about hearsay under Rule 801. Defendants do not support the assertion with any argument. Plaintiff contends that “the balance plainly mandates admission ... with limiting instructions and the overwhelming relevance of this evidence.”(Doc. No. 171 at 5 n. 1.)
We agree that the consent decrees in Harris and Jackson are prejudicial to Defendants in that they are not helpful to Defendants' cause. However, we must determine whether the consent decrees present “unfair prejudice [that] clouds impartial scrutiny and reasoned evaluation of the facts.”Goodman, 293 F.3d at 670. The consent decrees offer evidence of longstanding conditions in the prison system that relate to Plaintiff's claim of deliberate indifference. Thus, they have probative value. The probative value is not outweighed by the danger of unfair prejudice. The consent decrees will not affect “reasoned evaluation of the facts,” see id., since Plaintiff intends to introduce the consent decrees into evidence only to show “knowledge of the conditions and problems that led to the constitutional injury,” (Doc. No. 171 at 3). Defendants may, of course, introduce evidence that the consent decrees are “too remote in time” to prove deliberate indifference. (Doc. No. 170 at 9.) We will also permit Defendants to submit a limiting instruction prior to trial to minimize any risk of misleading the jury. Defendants may also raise additional objections at trial if Plaintiff attempts to introduce evidence about the consent decrees beyond what is reasonably necessary. See, e.g., Wiles v. Dep't ofEduc., No. 04-0442, 2008 WL 4198506, at *1 (D.Haw. Sept.11, 2008) (admitting into evidence consent decree from prior action as “relevant to the central issue in this case: whether Defendant acted with deliberate indifference,” and finding no unfair prejudice, but allowing the defendant to propose a limiting instruction).Cf. Geslak v. Suffolk County, No. 06-0251, 2008 WL 4693336, at *3 (E.D.N.Y. Oct.23, 2008) (excluding from evidence a twenty-four year old consent decree in an employment discrimination case not involving a claim of deliberate indifference).
C. Hearsay

Defendants contend that Plaintiff will attempt to offer the consent decrees in Jackson and Harris as admissions by a party opponent under Federal Rule of Evidence 801(d)(2). (See Doc. No. 170 at 9.) Defendants assert that the consent decrees are not admissions under the Rule, because they “did not contain admissions of liability” and “consent decrees, by their very nature, are not statements of admissions and therefore do not fall under the exception to the hearsay rule.”(Id. at 10.)Plaintiff disavows any intent to introduce the consent decrees as party admissions, noting that “these court rulings are simply not statements of a party.”(Doc. No. 171 at 5.) Plaintiff states that “the evidence regarding contempt findings [is] offered only to prove notice to the City of the constitutional perils of overcrowding and the City's direct knowledge of the problematic conditions of confinement [.]”(Id. at 4.) Plaintiff therefore contends that there is no hearsay issue.
*6 Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”Fed.R.Evid. 801(c). Plaintiff is not offering the consent decrees “to prove the truth of the matter asserted.”See id.Plaintiff instead seeks to offer the consent decrees to show that Defendants had knowledge of overcrowding and other conditions, and that Defendants took steps to remedy those conditions. The consent decrees are therefore not hearsay. SeeFed.R.Evid. 801(c). Moreover, we agree with Plaintiff that the court rulings are not statements of a party. The hearsay exception that provides for admissions by party opponents does not apply.
D. Evidence of Compromise Negotiations
Defendants assert that Federal Rule of Evidence 408 bars the introduction of evidence related to the consent decree litigation, since “[t]he policies underlying Rule 408 would be undermined by permitting Plaintiff to introduce the consent decrees or any evidence related to the consent decrees.”(See Doc. No. 170 at 12-13.) Those policies include the encouragement of settlements and compromises of disputed claims. (Id. at 12.)Defendants rely in part on Bowers v. NCAA, 563 F.Supp.2d 508, 538 (D.N.J.2008), for the proposition that “Rule 408's exclusionary provision is not limited to settlements between private parties, but also applies to civil consent decrees between private parties and

government agencies.” (Id. at 12-13.)Plaintiff concedes that Rule 408 justifies excluding consent decrees from evidence when they are “entered into by the same parties in the same case on injunctive issues.”(Doc. No. 171 at 5 n. 2.) However, Plaintiff asserts that Rule 408 does not justify excluding consent decrees from evidence when they are from prior actions and are offered to show notice and knowledge that, coupled with evidence of neglect, demonstrates Defendants' deliberate indifference. (Id.)
Defendants correctly interpret Rule 408 and the rule in Bowers v. NCAA that precludes admission of certain consent decrees. See 563 F.Supp.2d at 538. However, Rule 408 does not stretch so far as to encompass evidence of consent decrees from prior actions offered to show notice-not wrongdoing-in a case involving allegations of deliberate indifference. The Advisory Committee's Notes to the 2006 Amendments make clear that Rule 408 is inapplicable when evidence of the compromise is offered to prove notice. SeeFed.R.Evid. 408 Advisory Committee's Notes (citing United States v. Austin, 54 F.3d 394 (7th Cir.1995) (no error to admit evidence of the defendant's settlement with the FTC, because it was offered to prove that the defendant was on notice that subsequent similar conduct was wrongful); Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987) (in a civil rights action alleging that an officer used excessive force, a prior settlement by the City of another brutality claim was properly admitted to prove that the City was on notice of aggressive behavior by police officers)). Plaintiff seeks to introduce evidence of the past consent decrees from Harris and Jackson to do just that. Plaintiff's introduction of the consent decrees to show notice is consistent with Austin and Spell, on which the Advisory Committee relied, and is also consistent with Rule 408's well-established exception that the rule “does not require exclusion if the evidence is offered for purposes not [otherwise] prohibited.”Fed.R.Evid. 408; see also Hugo's Skateway, 949 F.2d at 1346 (affirming district court's admission of consent decree into evidence “for the sole purpose of any bearing it may have, if any, on the motive or intent with respect to the acts that are in issue in [the] suit”). Accordingly, Federal Rule of Evidence 408 does not bar Plaintiff from introducing the Harris and Jackson consent decrees to show that Defendants had notice and knowledge on the issue of deliberate indifference.

E. Evidence of Preliminary Injunction and Settlement Agreement
*7 Finally, Defendants seek to preclude Plaintiff from making reference to the extension of the preliminary injunction in this matter and the parties' private settlement agreement. Defendants contend that this evidence is not admissible under Federal Rule of Evidence 408, as it constitutes “conduct or statements made in compromise negotiations.”(Doc. No. 170 at 12 n. 3.) Plaintiff does not appear to dispute this contention. We agree that any reference to the extension of the preliminary injunction and the private settlement agreement in this matter is not admissible under Rule 408. SeeFed.R.Evid. 408. Exclusion of this evidence advances the policy of encouraging settlement of disputed claims. See, e.g., Trout v. Milton S. Hershey Med. Ctr., 572 F.Supp.2d 591, 599 (M.D.Pa.2008) (“It is well established that statements made for purposes of settlement negotiations are inadmissible.”) (citing Young v. Verson Allsteel Press Co., 539 F.Supp. 193, 196 (E.D.Pa.1982)). Accordingly, Defendants' motion in limine will be granted insofar as it precludes Plaintiff from referencing the earlier settlement agreement and the parties' consent to extend the preliminary injunction in this case.
IV. CONCLUSION
For these reasons, Defendants' Motion will be granted in part and denied in part.
An appropriate Order follows.
ORDER
AND NOW, this 12th day of December, 2008, upon consideration of Defendants' Motion in Limine (Doc. No. 170), and all documents submitted in support thereof and in opposition thereto, it is ORDERED as follows:
1. Defendants' Motion in Limine to Preclude Plaintiff from Referencing Consent Decrees and Orders of Contempt in Harris and Jackson is DENIED.
2. Defendants' Motion in Limine to Preclude Plaintiff from Referencing Extension of the Preliminary

Injunction and the Private Settlement Agreement in this matter is GRANTED. Plaintiff is precluded from making reference to, or otherwise introducing into evidence, the parties' consent to extend the January 25, 2007 preliminary injunction in this matter and the private settlement agreement related to Plaintiff's claims for injunctive relief, unless Defendants open the door to admitting this evidence.
IT IS SO ORDERED.
E.D.Pa.,2008. Bowers v. City of Philadelphia Slip Copy, 2008 WL 5234318 (E.D.Pa.), 78 Fed. R. Evid. Serv. 114
END OF DOCUMENT