    09-0793-cv
    Benjamin v. Schriro


                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
R ULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUM M ARY ORDER FILED AFTER J ANUARY
1, 2007, IS PERM ITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’S L OCAL R ULE
32.1.1. W HEN CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT , A PARTY M UST CITE EITHER THE F EDERAL
A PPENDIX OF AN ELECTRONIC DATABASE (W ITH THE NOTATION “ SUM M ARY OR DER ”). A PARTY CITING A SUM M ARY ORDER M UST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


           At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Daniel P. Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 22 nd day of March, two thousand and ten.

    PRESENT:          BARRINGTON D. PARKER,
                      PETER W. HALL,
                      GERARD E. LYNCH,
                                                          Circuit Judges.
    --------------------------------------------------------------------x
    JAMES BENJAMIN, et al.,
                                                          Plaintiffs-Appellees,
             -v.-                                                                      No. 09-0793-cv

    DORA B. SCHRIRO 1, et al.,
                                                          Defendants-Appellants.
    -------------------------------------------------------------------x


    Appearing for the Appellants:              JULIAN L. KALKSTEIN (Larry A. Sonnenshein, Chlarens
                                               Orsland, on the brief), Assistant Corporation Counsel, for
                                               Michael A. Cardozo, Corporation Counsel of the City of
                                               New York, New York, New York.
    Appearing for the Appellees:               STEVEN BANKS (John Boston, Dale A. Wilker, Veronica
                                               Vela, on the brief), The Legal Aid Society, New York,
                                               New York.



             1
            Pursuant to Federal Rules of Appellate Procedure 43(c)(2), Commissioner of Correction
    Dr. Dora B. Schriro is automatically substituted for former Commissioner of Correction Martin
    Horn as appellee in this case.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Baer, J.). UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       The New York City Department of Correction, the City of New York, and various City

officials named as defendants (collectively, the “Department”) appeal from an order directing the

Department to comply with an earlier order of that court, entered April 26, 2001 (the “2001

Order”), by enacting a catalogue of reforms in the evaluation, repair, maintenance, and

monitoring of ventilation systems in New York City jails. Appellants assert that they were

already complying with the 2001 Order, and that the district court’s subsequent order violates the

need-narrowness-intrusiveness requirement of the Prison Litigation Reform Act (“PLRA”), 18

U.S.C. § 3236(b)(2). The Department argues that assuming arguendo a subsequent order is

appropriate, the district court’s wholesale adoption and imposition of a comprehensive plan the

Department itself proposed violates the PLRA’s requirement of tightly-conscripted remedies. We

assume the parties’ familiarity with the facts and procedural history of the case.

       The PLRA mandates that remedies imposed by courts to alleviate constitutional

violations within jails “extend no further than necessary to correct the violation of the Federal

right.” 18 U.S.C. § 3626(a)(1)(A). To issue prospective relief under the PLRA, a federal court

must make a written finding that the relief is “narrowly drawn, extends no further than necessary

to correct the violation of the Federal right, and is the least intrusive means necessary to correct

the violation of the Federal right.” Id. Although the need-narrowness-intrusiveness requirement

for prospective relief “might at first glance seem to equate permissible remedies with

constitutional minimums, a remedy may require more than the bare minimum the Constitution

                                                 2
would permit and yet still be necessary and narrowly drawn to correct the violation.” Benjamin

v. Fraser, 343 F.3d 35, 54 (2d Cir. 2003), (overruled on other grounds by Caiozzo v. Koreman,

581 F.3d 63, 70 (2d Cir. 2009)). Over-inclusive remedies are permissible when they provide

practicable “means of effectuati[on].” Handberry v. Thompson, 446 F.3d 335, 346 (2d Cir.

2006) (quoting Benjamin, 343 F.3d at 54 (alteration in original)). In an instance where the

Department argued that a court order was over-broad in instructing that all prison windows

designed to be opened must be operational, we found that while the Constitution would certainly

permit one or two broken windows in a prison, the impracticability of the court checking each

and every window rendered comprehensive repairs “a necessary and narrowly drawn means of

effectuating relief.” Benjamin, 343 F.3d at 54.

       Since the 2001 Order was entered, the record shows a troubling pattern of non-

compliance and misrepresentations on the part of the Department. The Department certified to

the district court that its facilities were in substantial compliance with the requirements of the

2001 Order in letters sent to Judge Baer in the springs of 2004 and 2005. In September 2005,

Lawless & Mangione, LLP (“L&M”), an architect and engineering firm hired by the Office of

Compliance Consultants (“OCC”)2 to investigate and report on the Department’s compliance

with the 2001 Order, published a finding that ventilation and cooling systems in a sample-set of

Department prisons failed to comply with the 2001 Order and that, inter alia, “[s]ignifigant

upgrades” were necessary for the facilities to satisfy constitutional requirements. In a letter sent

to Judge Baer in spring 2006 the Department represented that the majority of its facilities were in


       2
         The OCC was appointed by the district court to oversee the Department’s compliance
with the 2001 Order. See Benjamin, 343 F.3d at 39.

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compliance with the 2001 Order, but that it was in the process of hiring a ventilation consultant

to remedy some of the issues highlighted by the September 2005 report of L&M. L&M

published a second, more comprehensive, report (the “L&M Report”) in September 2006, which

found substantial shortcomings and deficiencies throughout the Department’s facilities and

identified a litany of mechanical, structural and electrical upgrades necessary to bring the

facilities into compliance with the 2001 Order. Appellees wrote to Judge Baer requesting that

the Department explain their failure to disclose the deficiencies in its 2006 certification, alleging

that the Department’s certifications to date “appear to be substantially false,” and pleading for a

plan to “ensure the accuracy of all future certifications.” Writing to the parties on October 23,

2006, Judge Baer stated that “[he] too should like some answers.”

       The Department hired its own ventilation consultant, Daghler Engineering (“Daghler”),

which published a study of the Department facilities (“Daghler Study”) in February 2007,

confirming the findings of the L&M Report. Based upon the findings of the Daghler study, as

well as those of the L&M Report, the Department crafted a comprehensive remediation plan (the

“Department Plan”), and presented it to the district court and the plaintiffs in September 2007.

Reviewing the plan in May 2008, L&M concluded that the Department Plan was “very

comprehensive” and designed “to encompass all the requirements of [the L&M Report],” but it

warned that the plan was dangerously self-certifying considering that “the same individuals who

are responsible for implementing the plan are also evaluating whether the implemented measures

are actually working.” Two months later appellees moved for the district court to embody the

Department Plan in an order.




                                                  4
       On February 11, 2009, Judge Baer, citing the 2001 Order and recognizing that “more

than seven years later many parts of the jails’ ventilation systems are not in working order and/or

require repair or replacement, leaving constitutional violations uncorrected,” ordered that the

Department implement the reforms embodied in the Department Plan and that an independent

monitor be appointed to insure that the Department Plan was not self-certifying (the “2009

Order”). 3

       “Reviewing the questions of law de novo, the questions of fact for clear error, and the

matters of discretion for abuse of discretion,” we affirm the order of the district court. Benjamin

v. Fraser, 264 F.3d 175, 184 (2d Cir. 2001) (internal citation omitted). The district court did not

abuse its discretion in issuing a supplementary order to the 2001 Order. The needs-narrowness-

intrusiveness requirement of the PLRA notwithstanding, we find that nearly a half-decade of

untruthfulness, non-compliance and inaction constitutes sufficient justification for the

intrusiveness of a subsequent order to compel compliance with an original order entered

pursuant to the PLRA that has been ignored.

       The Department claims, in the alternative, that the requirements of the order are broader

than necessary to achieve constitutionally adequate ventilation in Department facilities and to

bring the Department into compliance with the 2001 Order. Whether or not we agree, “[a]

remedy may be deemed to be properly drawn if it provides a practicable ‘means of

effectuat[ion]’ even if such relief is over-inclusive.” Handberry, 446 F.3d at 346 (quoting


       3
         In addition to the reforms outlined in the Department Plan, the 2009 Order also includes
some minor amendments suggested by appellees. The Department not has raised any significant
objection to these individual amendments that is severable from its objection to the imposition of
the Department Plan as a whole.

                                                 5
Benjamin, 343 F.3d at 54). The plan to which the Department objects is essentially the very plan

that the Department itself proposed. Cf. Lewis v. Casey, 518 U.S. 343, 362 (1996)

(“[R]ecognizing that determining the appropriate relief to be ordered . . . presents a difficult

problem, the court charged the Department of Correction with the task of devising a

Constitutionally sound program to assure inmate access to the courts.”(quotation marks

omitted)). The Department Plan necessarily must provide a practicable means of effectuating its

objectives, otherwise, it stands to reason, the Department Plan would not have been proffered to

Judge Baer and the appellees in the first instance. Cf., Dean v. Coughlin, 804 F.2d 207, 215 (2d

Cir. 1986) (“[I]t was an abuse of discretion for the district court not to use the State’s carefully

and conscientiously formulated remedial plan as the basis for relief, with such modifications as

might appear essential to assure compliance with minimum constitutional requirements.”).

Accordingly, while the Department Plan might be more narrowly drawn and still remedy

constitutional ventilation failures in Department facilities, incorporating the plan as a whole and

ensuring oversight of the implementation of that plan is a remedy that puts in place a practicable

‘means of effectuation’ -- the lack of which, for many years has resulted in ongoing and

unremedied constitutional violations in City jails. See, e.g., Benjamin, 343 F.3d at 53-54 (“[I]t is

ironic that the City . . . invokes the PLRA, . . . intended in part to prevent judicial micro-

management . . .. Given the impracticability of the court examining each window, ordering

comprehensive repairs was a . . . narrowly drawn means of effectuating relief - even though the

Constitution would certainly permit a broken window or two.”).

       The Department also argues that the district court erred in failing to cite any “specific,

fact-based findings supporting the need for an additional order.” Def. Rep. Br. at 6. This is a

                                                   6
fanciful claim considering that (i) the 2009 Order states explicitly that “more than seven years

later many parts of the jails’ ventilation systems are not in working order,” and (ii) the 2009

Order is modeled upon the Department Plan -- a document which we view as an outright

admission by the Department that it has been substantially unable to comply with the 2001

Order. See Special Appx. at 223 (“The goal of the ventilation plan is to have all ventilation

systems in the agency repaired and in working condition within an estimated three year time

frame . . ..”).

        We have considered the remainder of the Department’s arguments and found them to be

without merit. For the foregoing reasons the order of the district court is AFFIRMED.



                                                      FOR THE COURT:

                                                      Catherine O’Hagan Wolfe, Clerk




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