Morales-Feliciano, et al v. Fortuno-Burset, et al

Filing 9862

OPINION AND ORDER. Signed by Judge Juan M Perez-Gimenez on 12/2/2010.(ASJ)

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO
CARLOS MORALES FELICIANO, et al, Plaintiffs, v. LUIS FORTUÑO BURSET, et al, Defendants.

Civil No. 79-4(PG)

OPINION AND ORDER
"[I]t is impossible for a written opinion to convey the pernicious ordinary conditions inmates and the within pain and degradation which

suffer

[unconstitutionally

operated

prisons]. . . . For those who are incarcerated within [such prisons], these conditions and experiences form the content and essence of daily existence. It is to these conditions that each

inmate must wake every morning; it is with the painful knowledge of their existence that each inmate must try to sleep at night. But these iniquitous and distressing circumstances are

prohibited by the great constitutional principles that no human being, regardless of how disfavored by society, shall be

subjected to cruel and unusual punishment or be deprived of the due process of the law within the United States of America. Regrettably, state officials have not upheld their

responsibility to enforce these principles. 1

In the wake of

Civil No. 79-4 (PG) their default, the United States Constitution must be enforced . . . by court decree." (S.D. Tex. 1980). INTRODUCTION & BACKGROUND Deficiencies in Administration of Corrections' (hereinafter "AOC") food service, food storage, food sanitation and food Ruiz v. Estelle, 503 F.Supp. 1265, 1391

safety have existed since the inception of this case.

Morales

Feliciano v. Romero Barceló, 497 F. Supp. 14, 30-34 (D. Puerto Rico 1980). food At that time, the Court entered orders relating to and the provision of special diets when

sanitation

medically necessary. In 1986, the

Id. at 84-86. Court found that conditions in the AOC's

prison system continued to violate the U.S. Constitution (Docket No. 868), and entered an order appointing Court Monitors to assess Defendants' compliance with the Court's order of 1980 and to propose a detailed remedial order to correct unconstitutional conditions in AOC prisons (Docket No. 869). Under a stipulation

between the parties entered into (Docket No. 981) and approved by the Court in 1987 (Docket No. 1044), the Defendants agreed to file various of plans designed to remedy the unconstitutional system,

conditions

confinement

within

correctional

including a plan pertaining to general environmental health and sanitation. (Id.). 2

Civil No. 79-4 (PG) Defendants filed such a plan, in which they committed

themselves to the development and maintenance of certain minimum standards in the area of environmental health and sanitation, including food service and safety. (Docket No. 1102, Ex. 10).

This Environmental Health and Maintenance Plan, as it later came to be known, was revised with the input of experts consulted by the Court Monitor and agency administrators; agency personnel were identified and appointed by the AOC and trained to carry out the plan; and the plan was ultimately approved by the Court and incorporated into the orders in this case on 30 March 1990. (Docket No. 1786, 2137). The requirements of the plan were fairly specific. With

respect to food service, the ultimately approved Environmental Health and Maintenance Plan required, among others, that menu plans meeting minimum nutritional requirements should be

approved by a licensed dietitian, that inmates who suffer from medical conditions requiring dietary restrictions be provided appropriate special meals; that food storage areas be hygienic and temperature controlled, that food temperature be properly maintained to avoid the growth of bacteria and other pathogens, that food storage and serving containers, food utensils be in and good

temperature

control

food

transport

equipment

condition, access to hot water in food preparation and cleaning 3

Civil No. 79-4 (PG) areas, the maintenance of thermometers in order to monitor the adequacy of temperatures in all areas of food service (storage, cooking, serving and cleaning), and that food services comply with all applicable present and future regulations of the Puerto Rico Department of Health. labeled Sections 24.0-32.0). In 1997, after determining that the record in this case required updating, the Court appointed an expert witness under F.R.E. 706. The Court selected Vincent M. Nathan, who at that (Docket No. 1786, Article 15 (also

time had been designated by the parties as a "Joint Compliance Consultant", see Order Granting Joint Motion Requesting Vacation of Order of Reference, etc. (Docket No. 6234). The Court

directed Mr. Nathan to produce two reports, the first to assess the current state of affairs with respect to correctional health care, and the second to report on the status of conditions of confinement in the areas of crowding and population control, environmental rehabilitation conditions, program, fire safety, the facilities personnel

security,

staffing,

management, inmate discipline, use of force, classification, and "inmate management." This second report was filed on 15 July Mr. Nathan, in his report, concluded

1997 (Docket No. 6604).

that the Administration of Correction still was not providing constitutional conditions of 4 confinement to its penal

Civil No. 79-4 (PG) population. Memorializing widespread violations in virtually

every area of correctional operations, Mr. Nathan concluded that only the appointment of a receiver to oversee and run the

Administration of Correction would be sufficient to remedy the deficiencies he found. Lengthy areas of hearings (Id.) on Mr. Nathan's Report place concerning beginning all in

correctional

operations,

took

January 1999, and evidence was presented, inter alia, that the AOC was still doing an unsatisfactory job with food preparation including, improper storage of food leading to spoiled food in storage cleaning areas, of inadequate service temperature trays and maintenance, a improper to

food

utensils,

failure

provide special diets for inmates with medical conditions, and unavailability After the of hot and of clean this type water. evidence, of remedy (Docket both to No. 7478). made

presentation regarding

parties be

proposals

the

entered.

Plaintiffs proposed the appointment of a technical advisor to assist the Court in providing a comprehensive and long term plan to achieve administrative and operational efficiency at the AOC and to clarify the remedial structure in this case. Nos. 7339, 7341, 7451, 7513). (Docket

Rejecting Defendants' proposals

at the time as unviable and viewing Plaintiffs proposal as a less intrusive alternative to the receivership recommended by 5

Civil No. 79-4 (PG) the Court's expert, Vince Nathan, the Court adopted Plaintiffs proposed remedy in July of 2000. A little more than a year (Docket Nos. later, in 7478, 7661). December of 2001,

Plaintiffs filed a Motion for Prospective Injunctive Relief for failure to deliver adequate food services to members of the Plaintiff Class in Violation of their Constitutional Rights.

(Docket No. 8110, 8116). (Docket Nos.

This motion was opposed by Defendants. The Court later

8133, 8137, 8139, 8156, 8161).

granted Plaintiffs' "urgent" motion to consolidate hearings on the food services issue with other pending hearings in the case. (Docket No. 8203). Plaintiffs and Defendants engaged in

negotiations to attempt to resolve these issues without the need for a hearing. The (Docket No. 8270). later filed a joint compliance plan which

parties

addressed, among others, the food services issue. 8271).

(Docket No.

With respect to food services the joint plan provided

that the AOC would outsource the provision of "complete food services for inmates," which should provide special diets as medically prescribed. (Id.). The AOC would also develop a new

Manual of Rules and Procedures for the Food Services Program. (Id.). A report evaluating the AOC's food service and

distribution facilities would be submitted to the Court within

6

Civil No. 79-4 (PG) 45 days of the approval of the compliance plan. 8278). In approving the plan in August of 2002, the Court noted that "the joint are Compliance at Plan this offers time to a new hope the that long of (Docket No.

Defendants overdue

prepared of

undertake

task

providing

constitutional

conditions

confinement to members of the plaintiff class, at least in the areas of environmental health and food services." 8283). In October of 2002, the Court's technical advisor rendered a detailed system wide assessment of the areas of correctional operations relevant to this case. (Docket No. 8321). In its (Docket No.

Assessment of Administration of Corrections Ancillary Services, the technical advisor documented the following observations,

findings and recommendations regarding the food services offered by the AOC's existing fifteen (15) kitchens, among others: · kitchens built to feed a fairly small number of

inmates now routinely prepare meals for as many as ten times that number; · with little or no use made of recipes in preparing meals, limited supervision of meal preparation by qualified

supervisors;

7

Civil No. 79-4 (PG) · inadequate medical diets food service personnel

generally provide low-salt, low-fat fare as the "special" diet for all prescriptions; · little or no regard for portion control, to ensure

that inmates receive adequate amounts of food; · pots and pans rinsed with a hose and without detergent

because dishwashers are either broken or were never installed; · unsanitary containers and vehicles used to transport

meals from kitchens to inmates; · containers that do not maintain adequate temperature

control, possibly exposing inmates and staff to bacteria or food poisoning; · deteriorated facilities that make proper sanitation

and safe food handling all but impossible. · generally unsanitary conditions in kitchens during

food preparation; · containers used to transport meals that emanated foul

smells and did not hold food temperatures effectively; · vehicles transporting meals that were infested with

cockroaches; · kitchen facilities not only infested with roaches but

also with flies;

8

Civil No. 79-4 (PG) · AOC should adopt and follow industry standards for all

aspects of its food service operations; · the director of Food Service and Nutrition has only

one employee to help her oversee a food service operation that prepares meals for about 17,000 inmates and 8,500 corrections workers three times a day, 365 days a year. · The Director of Food Service and Nutrition and a

regional dietitian make up the central program staff, although only the director is located in the central office. The

regional dietitian is located in the southern region but works under the director's supervision. · resources operation. unit Central needed Food to Service Staff a simply complex do and not have the

manage

such

decentralized

AOC's kitchen supervisors should be accountable to for operating kitchens in line with adopted

wardens

industry standards.

The director of Food Services and Nutrition

would continue to oversee AOC's overall food service operations, but her role would change somewhat. a contract manager for the The director would serve as resulting from AOC's

arrangement

effort to outsource the management of its facility food service operations. nutritionally She also should continue working . . .to prepare sound menus and ensure that special diets

prescribed by medical personnel meet the appropriate guidelines. 9

Civil No. 79-4 (PG) Finally, the director would be charged with ensuring that all AOC kitchens prepare food based on the nutritional guidelines required by industry standards. · One of the biggest hurdles facing the Food Service and

Nutrition Program is its inability to control its own budget. . . . [I]f program personnel wish to make a decision that involves an expenditure, they must make a request through the director, who forwards it to AOC's Budget Office. The program must then

wait, often for months, for an answer to its request, and the eventual answer often is "no." · Food Services and Nutrition does not have a planning This

process for its equipment, budgetary or facilities needs. is a recipe for disaster. inadequate environment. or broken

It has saddled the program with and an unsafe, unsanitary

equipment

AOC should . . . . plan for future budget and

equipment needs. After rendering and its detailed the assessment technical on the AOC's was

Infrastructure

Management,

advisor

released from duty.

(Docket No. 8322).

In January of 2003, Defendants requested that the Court fund the technical advisor in a new capacity, as a management consultant to the AOC for the implementation of its

recommendations.

(Docket 8368). 10

Upon Plaintiffs' acquiescence

Civil No. 79-4 (PG) (Docket 8369) the Court acceded to this request (Docket 8382, 9052, 9068). That arrangement has since been terminated. All

the efforts described, which were meant to be comprehensive, apparently never had any noticeable effect on the provision of food services, as can be seen below. A few months after the technical advisor in this case

became a management consultant to the AOC, in December of 2003, Plaintiffs filed a Motion for Order to Show Cause why Defendants should not be held in contempt for failure to comply with the compliance services. plan regarding the delivery of adequate food

(Docket No. 8582).

This Motion was not opposed by

Defendants and evidentiary hearings were held on the matter. (Docket No. 8715-21, 8726-28, 8744-47, 8752.) In October 2004, the Court found that unconstitutionally inadequate food services continued to be the norm at the AOC. (Docket No. 8764.) At the hearing, the Secretary of Corrections

had testified before the Court that four attempts to outsource the delivery of food services through the state's bidding

process had been unsuccessful and an emergency order had to be issued in order to execute a contract between the AOC and

Canteen Correctional Services, a private food service provider. (Id.) before The contract between Canteen and the AOC was completed the Court entered an order 11 of the matter, and as a

Civil No. 79-4 (PG) result, the Court did not hold the Secretary in contempt

regarding that issue but required the he submit a report within 30 days on the progress with respect to the delivery of adequate food services as well as a report establishing an oversight and supervision program regarding the services provided by Canteen. (Id.). It was not long before Plaintiffs had filed a Motion to Order Defendant Secretary of Corrections Hon. Miguel Pereira

Castillo to Show Cause Why He Should Not Be Held in Contempt of Court arguing that unconstitutional conditions still prevailed in the area of food service and safety at AOC institutions

(Docket No. 8790, 8816, 8819).

Since the AOC was then in the

process of making the transition to a contracted food service provider, Defendants requested that the Court's consideration of the contempt motion be held in abeyance (Docket No. 8816), and the matter was never litigated before the Court. On 8 February 2010, plaintiffs filed a Motion to Order Defendant Hon. Carlos Molina Rodríguez to Show Cause Why He Should Not Be Held in Contempt for Failure to Comply With the Court's Orders Regarding Food Services (Docket No. 9720)

(hereinafter "Motion for Contempt,") which is the subject of this Opinion and Order. continued deficiencies In that motion Plaintiffs denounced the in food 12 services, averring that food

Civil No. 79-4 (PG) service at the AOC did not pass constitutional muster. Court set the matter for a hearing (Docket No. 9729). This Despite

requesting (Docket No. 9726) and being granted (Docket No. 9732) an enlargement of time in which to file their response to

Plaintiffs Motion for Contempt, Defendants later purposefully opted to not file any response (Docket No. 9740) a move which was opposed by Plaintiffs (Docket No. 9741). paralysis in mounting any kind of serious This generalized defense to the

contempt motion continued throughout the hearing (Tr. Day 5 at 87-90) which overwhelmingly established the unconstitutional

conditions complained of. Prior to the hearing the parties attempted to reach a

negotiated stipulation which would address the various area of noncompliance. unsuccessful. (Docket No. 9777). These negotiations were

(Tr. Day 1).

Evidence was thus heard on the At these hearings,

matter on May 4, 5, 6, 7 and 10, 2010.

Plaintiffs presented the testimony of 13 witnesses, including inmates currently in the custody of the Administration of

Corrections, Luis Quiñones Santiago, Alex Agosto Perez, Carmen Iris Alicea Rivera, Luis Rivera Rivera, Carlos Martes Morales, María Noriega Hostos, Emilio Fuentes Santana, Peter Jiménez

Hernández, the Secretary of the Corrections Department, Carlos Molina Rodríguez, the Administration of Corrections' Director of 13

Civil No. 79-4 (PG) Food Services, Frances Cruz bid Rosado, two members of the and

Correction

Department's

board,

María

Marcano

Guerra

Esdras Vélez Rodríguez, and an expert in nutrition, diets and food security, Elba López Pérez, and the submitted extent of voluminous Defendants'

documentary

exhibits

demonstrating

violations of this Court's orders, and their knowledge of and deliberate indifference to constitutional violations in the

areas of food services and safety. Defendants presented two witnesses, Carmen Ortiz Luna, the Administration of Corrections' Dietician Services Coordinator, and José Luis Mercado Valle, a monitor of the Administration of Corrections' Office of Compliance and Operational Review. THE CURRENT STATE OF FOOD SERVICES AND SAFETY AT THE ADMINISTRATION OF CORRECTIONS In spite of the detailed orders, stipulations, plans,

programs, manuals, systems, trainings, policies, procedures and timetables implemented throughout the thirty year history of

this case, adequate food is still not supplied to the Plaintiff Class and food service continues to represent an unreasonable risk to the health of its members. (Tr. Day 5 at 85-86). One

of the reasons for this is that, despite investing in the time and effort to create a Food Services Manual, a comprehensive manual which was designed by the AOC pursuant to the orders of

14

Civil No. 79-4 (PG) this Court (Docket No. 8271, 8278), the AOC does not bother to follow it (Ex. 7 & 37, Tr. Day 4 at 80-81). The AOC also does

not comply with its Evaluation and Compliance Plan (Ex. 1, Tr. Day 2, 89-96, 108-110, 128-129, Day 4 80-81), also designed pursuant to the orders of this Court (Docket No. 8764), which would allow it to effectively supervise compliance with the food service contract between the AOC and Canteen. In reaching these conclusions the Court relies heavily on the report and testimony of Plaintiffs expert, Ms. Elba López Pérez, a nutritionist who was qualified as an expert in

nutrition, diets and food security. bachelors education degree in nutrition in food

Ms. Elba López Pérez has a and has additional food

dietetics

experience

service

training,

hospital

service and clinical nutrition from Puerto Rico's Department of Health, and over twenty years of experience as a nutritionist and dietitian. from the (Ex. 36, Tr. Day 4 at 45-46). board for health She has a license of the She

examining

professionals

Commonwealth of Puerto Rico.

(Ex. 36, Tr. Day 4 at 45).

has ample experience in food service in institutional settings, specifically hospitals, and in the development of food service procedures, guidelines, protocols and regulations. Day 4 at 46-56, Ex. 36). (Ex. 36, Tr.

She also holds a private practice (Ex. 36).

since 1999 up to the present day. 15

Civil No. 79-4 (PG) Ms. López' inspections of AOC kitchens were carried out between October of 2008 and June of 2009. Despite the

Secretary's protestations that food service has significantly improved during his tenure (Tr. Day 2 at 32, 53, 68), Ms. López Perez's findings during visits made in June 2009 were

essentially consistent with her findings months in late 2008 (Ex. 37). Moreover, based on her evaluation of the testimony

presented at the contempt hearings, Ms. López Pérez opined that the conditions which she found when she visited AOC institutions were still present. (Tr. Day 4 at 104). She further opined

that said conditions, existing both at the time of her visits and at the time of the contempt hearings, jeopardize inmate health (Tr. Day 4 at 81-82, Day 5 at 85-86). Ms. López Pérez' testimony in this regard was essentially uncontested.1 assertions to Other than making some generalized and conclusory the contrary, Defendants presented no expert

testimony and no other evidence that the state of affairs was anything other than consistent with the picture painted by Ms. López Pérez. all. In fact, Defendants barely mounted any Defense at Defendants did present evidence that in the

(Tr. Day 6).

Defendants presented the testimony of AOC nutritionist Ms. Carmen Ortiz Luna to oppose some conclusions of the Plaintiffs Class' expert nutritionist. Ms. Ortiz, however, was not qualified as an expert by the Court. Her testimony, therefore, cannot be given any relevant weight as an opposition to the well founded expert opinions of Ms. Elba López Pérez.

1

16

Civil No. 79-4 (PG) weeks preceding the hearing they had made a large purchase of new serving equipment for AOC's food service operations and some repairs (Tr. Day 2 at 23-24, 87-88, Day 6 at 67-78, Ex. C), evidence which is discussed and considered below. are not insignificant the only developments, "defense" that recent was While these is the

improvement for

essentially

presented

Court's consideration.

The Defendants intimated that they had

developed a remedial plan to address food service deficiencies. No evidence of this remedial plan was presented and its

existence was only referred to in the most oblique and general terms. Court (Tr. Day 2 at 69-70, Day 5 at 89-90). cannot conclude that the supposed As a result, this in any way

"plan"

mitigates the findings made here. purchase of serving equipment

We are left then, with the and some recent repairs as

defendants' only defense.

As will be seen below, serving a

penal population of over 12,000 inmates involves many aspects other than equipment. Defendants fell very short of opposing

the Plaintiff Class' evidence pinpointing deficiencies in all areas of correctional food service. Food Receipt and Storage: Beginning with each institution's receipt of food, no procedure is in place for inspecting food received, ensuring that it is delivered to the AOC at adequate temperatures, cataloguing it and labeling it to reduce the risk 17

Civil No. 79-4 (PG) of inadvertent spoilage or passing of expiration dates. 37, Tr. Day 4 at 91-94, Day 5 at 6, 23-25). foods are not appropriately labeled to (Ex.

Almost uniformly, expiration

identify

dates, and so, when the food is used there is no way to know if the food has expired (Ex. 33, 37, Tr. Day 4 at 79). At times

the food stored in AOC's food storage areas is already expired (Tr. Day 2 at 31-32, 37-38, Ex. 2, 33, 37) and in one case, Plaintiff's expert witness discovered that the institution

actually received the food after it had expired. (Ex. 37, Tr. Day 4 at 79, 97-98). Food storage is itself inadequate, as refrigerators,

freezers and dry storage areas are in disrepair and fail to comply with temperature and humidity requirements. (Ex. 30(2-

4)(8), 31(14)(21-24), 33, 37, Tr. Day 4 at 79, Day 5 at 20-23).2 This has the potential to spoil or reduce the useful life of food. (Ex. 28(15), 37, Tr. Day 4 at 83). Dry foods are stored

on wooden platforms, which are prohibited by the AOC's own Food Services Manual since those platforms encourage infestation with insects spoil. and the growth of bacteria which can cause food to

(Ex. 28(25), 37).

The parties stipulated the photos taken by the Plaintiff Class to reflect conditions as of October 2009.

2

18

Civil No. 79-4 (PG) Food is placed in storage areas without rhyme or reason, often contributing to the ruining of food. (Ex. 27(26),

31(26)(28)(29)).

Once stored, there is no system in place to

ensure that food is used within a reasonable period of time in order to avoid food spoilage or deterioration prior to use. (Tr. Day 4, 79, 94, Day 5 at 24-26, 86). quality and nutritional value of the food. This lowers the

(Tr. Day 5 at 6).

All of the above would be a less serious problem if it merely resulted in waste, but spoiled foods actually reach the inmate population for consumption: moldy bread and cheese,

"greenish" chicken, ham and hot dogs, fermented canned fruits and apple sauce, and foul smelling meats are actually served to the penal population. (Ex. 37, Tr. Day 3 at 71). The Secretary

of Corrections himself testified that he had observed food with expired dates being served to inmates at AOC institutions he had visited. (Tr. Day 2 at 31-32, 37-38, Ex. 2).

Adequate Temperatures: There is no monitoring of cooking temperatures (Tr. Day 4 at 78, 84-85), so food often arrives to the penal population frozen, raw or undercooked. (Tr. Day 3 at In the

58-59, Day 4 at 15, Day 5 at 10-11, Ex. 11, 16, 17, 37).

case of raw or undercooked animal products this is considered potentially hazardous since adequate cooking temperatures are required in order to kill or 19 eliminate viruses, bacteria,

Civil No. 79-4 (PG) parasites and other toxins which can cause food borne illnesses. (Ex. 37, Tr. Day 3 at 69-72, 81-83) Hot food items should be maintained at 135 F or more and cold food items should be maintained at 41 F or less up to the time that they are actually served for consumption in order to destroy and inhibit the growth of microorganisms which cause food borne illness.3 (Ex. 33, 37, Tr. Day 3 at 69-72, 81-82, Day The AOC's Food Services

4 at 82-83, Day 5 at 9-10, 50-51).

Manual requires that the AOC's food service adhere to the Food Code of the Food and Drug Administration which contains this requirement, and independently requires that hot food items be maintained at 135 F or more and cold food items should be (Ex. 7, Tr. Day 6, 52-56). However,

maintained at 41 F or less

the AOC does not actually measure the temperature of food at the time it is served to the consumer and those temperature

requirements, in fact, are not complied with. 4 at 11-13, 78, 95-97, Day 5 at 58-62, 64-78).

(Ex. 37, Tr. Day

One of the reasons that temperature requirements are not complied with is that equipment which is used to maintain food temperatures such as thermoses, insulated trays, thermal carts,

One of Defendants' witnesses, Ms. Carmen Ortiz Luna, who, as mentioned, was not qualified as an expert, argued that it was acceptable to serve foods within four hours of having been at these required temperatures but provided no evidence to support this contention. (Tr. Day 6, 38-46, 52-56)

3

20

Civil No. 79-4 (PG) and steam tables have been either unavailable or damaged so that food is not maintained at adequate temperatures. Tr. Day 4 at 94-95, 98-99, Day 5 at 29-40). (Ex. 33, 37,

This was true until

a very recent purchase of such equipment by the Secretary of Corrections. in this (Tr. Day 2, 23-5, 87-88). follows a typical The sequence of events pattern: A particular

matter

longstanding problem is suddenly acknowledged and the Defendants make some grand gesture which is superficially directed at the problem but which does not comprehensively and squarely address it. Such efforts often come at the eleventh hour, in an effort

to avoid liability under a contempt motion made by Plaintiffs. Despite stating that the sad state of affairs in AOC food service was a priority to him (Tr. Day 2 at 23), the Secretary of Corrections who was appointed in January of 2009 (Tr. Day 2 at 22) did not undertake to replace this equipment until almost a year later (Tr. Day 2 at 23-24, 26, 87-89), in spite of the fact that the lack of appropriate equipment has been an enduring problem4 which predates his tenure as Secretary of Corrections. (Tr. Day 2 at 122-123, 125-128, Ex. 5B, 5C, 9A, 37). no mistake that the purchase of the new It may be roughly

equipment

The evidence on record establishes that, prior to this purchase, the need to replace and repair food service equipment and implements were understood and reported to the AOC's central office for years without any help being forthcoming. (Ex. 37, Tr. Day 2 at 122-123, 125-128).

4

21

Civil No. 79-4 (PG) coincides with the filing of Plaintiffs contempt motion. (Tr. Day 2 at 22-28, 87-89, 123, Day 3 at 89). As mentioned, the lack of such properly functioning

equipment prevents the maintenance of safe food temperatures and increases sanitation. the risk (Ex. of 37, contamination Tr. Day 5 at and lack of adequate this

40-43).

Without

properly functioning equipment, thermal carts are tied with rope because their latches do not close properly. at 79). (Ex. 37, Tr. Day 4

Insulated trays without covers get covered with the

bottom of another tray so that a stack of trays is formed with only one cover on top. (Ex. 37, Tr. Day 5 at 40-44). In some

cases the trays, carts and thermoses have been so deteriorated that their insulation is exposed and becomes polluted with food residue, dirt and humidity, which, aside from making them foul smelling, increases the likelihood of contaminating the foods and beverages placed in them. at 79-80). cups (Ex. (Ex. 15, 17, 25-31, 37, Tr. Day 4

The lack of sufficient utensils, insulated trays and 33) being provided to inmates results in such

implements being shared amongst several people, cleaned only by rinsing in the showers of the living areas between uses, without soap or adequate sanitizing cleanser. Tr. Day 4 at 28-30). (Ex. 37, Tr. Day 3 at 91,

The Secretary of Corrections' observation

that this type of equipment was "not in the best of conditions, 22

Civil No. 79-4 (PG) that the cleaning of that equipment was not the best" (Tr. Day 2 at 23, 78-79) is clearly a colossal understatement. Even at the time of hearing, the AOC had still not received all of the equipment it had ordered, specifically the insulated trays, in anticipation of managing the food services issue even though this type of equipment is usually received within six to eight weeks after being ordered. 89). (Tr. Day 2, 24-25, 27-28, 87-

Moreover, the AOC failed to purchase any new steam tables

(Tr. Day 5, 84-85) which were identified at hearing as crucial for maintaining adequate food temperatures. at 79, Day 5 at 29-31, 40-43, 66, 69-70). no plan to purchase these. (Ex. 37, Tr. Day 4 Apparently there is

(Tr. Day 2 at 142-143).

Although the recent purchase of new equipment should assist the AOC in ameliorating some of the problems with food service, the replacement of these damaged items can be only part of the solution. (Tr. Day 4 at 22-23). In the first place, the AOC's

inability to maintain adequate food temperatures is not solely attributable to the lack of proper equipment. even when it is in good working order, must Such equipment, also be used (Tr.

properly to maintain adequate temperatures, and it is not. Day 5 at 40-44, 52-53, 67-68). Moreover, the inability to maintain proper

food

temperatures is also caused by the fact that only a handful of 23

Civil No. 79-4 (PG) kitchens, now fourteen (14) in total, service all AOC penal institutions (Tr. Day 6 at 7), with over 12,000 prisoners. Day 2 at 66, Day 4 at 22-23). (Tr.

Food must be taken from kitchens

to many different dining areas and inmate living areas (Ex. 37, Tr. Day 3 at 47-48, 66, 78, 87, 92-93, Day 4 at 25-26, Day 5 at 52-53). Due to this and to poor planning, as well as the lack

of proper equipment, long delays between the time that food is prepared and the time the food actually reaches the inmates' hands contribute to the inadequate maintenance of food

temperatures.

(Ex. 37).

Carmen Ortiz Luna, the AOC Dietitian

Services Coordinator testified that the goal is that food be delivered "as fast as possible," specifying that food should be delivered within two and three hours from the time it is served. (Tr. Day 6 at 35-36). This goal, however, is based on the

assumption that the food does not actually have to be maintained at adequate temperatures during this time (Tr. Day 6 at 38-40), which is contrary to the expert evidence presented in the case. (Ex. 37). More to the point, the onetime purchase of new equipment, like the one time repair of refrigeration or other equipment (Tr. Day 6 at 76), does nothing to prevent this issue from arising again in the not so distant future. The evidence in

this case is that much of the shortage of equipment and damage 24

Civil No. 79-4 (PG) to the equipment has been longstanding (Tr. Day 2 at 123, Ex. 5B, 5C, 9A, 37) and that the recent purchases of new equipment were undertaken in anticipation of litigation on the issue by the Plaintiffs (Tr. Day 2 at 22-28, 87-89, 123, Day 3 at 89). The Court was particularly struck by the testimony of the AOC Director of Food Services when she thanked God in open Court that, finally new equipment "could" be purchased. 128). Based on the history of this case and even on the very evidence presented at the hearing, this Court finds that the problem of hopelessly damaged equipment going unaddressed is (Tr. Day 2 at

highly likely if not inevitable without Court action.

The new

equipment will doubtless suffer wear and tear, especially if it is not handled properly. In particular, the Court is mindful of

the fact that several of the dishwashing machines in the AOC kitchens do not work or do not work properly. (Ex. 9A, 37).

If, as has been done in the past, the AOC resorts to cleaning these items "however they can" on the floor with a water hose, or worse, requiring inmates to clean them in showers (Ex. 37, Tr. Day 4 at 28-30), they are sure to deteriorate more quickly (Ex. 25(5)(9), 27(25), Tr. Day 3 at 72-73, 88-91, Tr. Day 4 at 4-5). Without any system in place to ensure that damaged or

missing equipment is replaced on a regular basis, it is almost 25

Civil No. 79-4 (PG) inevitable that the same thing will happen again after a period of time. Cleaning: unacceptably The conditions the already of food described borne would

increase

likelihood

illnesses

even under clean conditions. 98-102, Ex. 37) Kitchens themselves and

Clean they are not.

(Tr. Day 4 at

food

storage

areas

are

unclean.

(Ex. 27(14)(15), 28(9), 30(1), Tr. Day 5 at 4-5). water is not available for proper hand

Hot running for food

washing

handlers.

(Tr. Day 5 at 79-80).

Without adequate access to hot

running water or adequate dishwashing equipment (Tr. Day 4 at 98-101, Day 5 at 78-81) AOC kitchens resort to "cleaning,"

really rinsing, their wares with water hoses between uses, which inadequately sanitizes them for use. 73, 88-89, 101, Day 4 at 100). (Ex. 37, Tr. Day 3 at 68-

Employees are not aware of how

to take apart the component pieces of certain equipment for washing, resulting in residue remaining in parts of this

equipment which are exposed to food. 98-99). insulation carts As in already damaged the mentioned thermoses, to

(Ex. 17, 37, Tr. Day 4 at cracks trays become smelly and and exposed thermos

above,

insulated

causes

trays

essentially to remain

permanently and unclean, (Ex.

contaminated,

causing

these

increasing the risk of contamination and bacterial growth. 26

Civil No. 79-4 (PG) 37, Tr. Day 4 at 98-99). At any given mealtime, food residues

from the previous meal can be found in the trays, demonstrating the lack of appropriate dishwashing and sanitation. 17, 19JJ-19LL, 37, Tr. Day 3 at 68, Day 4 at 99). Vehicles used to transport food are not properly cleaned, sanitized or fumigated. 18-19). (Ex. 37, Tr. Day 4 at 80, 101, Day 5 at (Ex. 15,

They are also not appropriate for transporting food,

since they are not fitted with belts to stabilize thermal food carts. (Ex. 37, Tr. Day 4 at 101-102). As a result food

becomes mixed and spills into the carts or on the floor of the vehicle, increasing the risk of future contamination as well as the likelihood of infestation by rodents and insects. Tr. Day 4 at 4-5, 102). (Ex. 37,

On occasion, food containers are placed

directly on the dirty, rusty floor of the vehicle also causing food to be spilled unsanitary with the attendant increasing risk the of making this of

equipment infestation.

and

likelihood

(Ex. 37, Tr. Day 4 at 4-5, 80, 102).

As a result of all of the conditions described above flies, cockroaches and worms might be found near food serving areas and equipment or actually in food served to inmates. (Tr. Day 3 at

96, Day 4 at 12, 15, 101-102, Day 5 at 4, 19, Ex. 5B, 17, 19, 37). by This problem is clearly exacerbated when long periods go adequate fumigation. 27 (Ex. 33). The increased

without

Civil No. 79-4 (PG) likelihood of contamination also leads to pieces of glass, wire and paper being found in food. (Ex. 37). Faced with inadequate

food, members of the prison population can either eat it as is or go hungry. (Tr. Day 3 at 96).

Portions & Nutrition: Even above and beyond the inmates who, despite their hunger, cannot find it in themselves to eat spoiled or contaminated food (Tr. Day 3 at 96), the Court

specifically finds that the AOC is systematically underfeeding the inmate population. (Ex. 33, 37). The lack of proper

guidance from the central office in the form of standardized, uniform recipes and training regarding portion control results in noncompliance with the portion requirements established by the AOC's own food cycle. (Ex. 37, Tr. Day 4 at 79). The

failure to provide adequate portions is particularly true about protein sources and there seems to be some consensus that

certain kinds of foods, are particularly susceptible to this problem, such as menus containing chicken parts, which contain more chicken bones than chicken meat and different types of soups, which contains more broth than actual pieces of food. (Ex. 37). bones in In fact, the quantity of small and sharp chicken food is so extreme as to a be considered food physical security

contamination, problem.

which

constitutes

potential

(Ex. 37, Tr. Day 4 at 85). 28

Civil No. 79-4 (PG) Commercially hamburger patties prepared and hot single dogs do portion not foods with such the as food

comply

portions established in the AOC's menu cycle (Ex. 37, Tr. Day 4 at 85), so that every time these foods are served, those who consume them are shortchanged. Other foods such as rice, stew

and vegetables are prepared in insufficient quantities resulting in significantly smaller portions being served (Tr. Day 4 at 8587, Ex. 17) and leaving the last group to be served to simply go without food because there is not enough to go around. Tr. Day 4 at 15, 24-25, 26-27, 79, 87-88). confirmed officers. by kitchen personnel as well (Ex. 37,

This information was as by correctional

(Ex. 37, Tr. Day 4 at 87-88).

Some correctional

officers even reported that they felt obligated to share their food with the inmates who were left without a meal. (Ex. 37).

The menu cycle established in the AOC's own Food Service Manual is meant to comply with minimum nutritional standards. (Ex. 7, Tr. Day 6, 8-12). The consistent failure to comply with

the quantities stipulated in the menu cycle, means that these minimum requirements are not being met. Going without

sufficient food for a day or two can be quite painful, but when this goes on for months or years, malnutrition must become a serious concern. See generally, Hutto v. Finney, 437 U.S. 678,

686-87 (1978) ("[T]he length of confinement cannot be ignored in 29

Civil No. 79-4 (PG) deciding whether the confinement meets constitutional standards. A filthy, overcrowded cell and a diet of 'grue' [providing 1000 calories a day] might be tolerable for a few days and

intolerably cruel for weeks or months.") Menu changes are not documented and are made without the adequate supervision of dietitians. 121). (Ex. 37, Tr. Day 2 at 118-

In particular, the menu changes observed by Plaintiffs'

expert tended to lessen the amounts of vegetable portions and to generally lessen the variety of the food served, undercutting the nutritional adequacy of the food provided over time. (Ex. 37). Moreover the observed practice of overcooking food (Tr.

Day 4 at 84-85, Ex. 16, 17, 19, 37), not to mention the serving of spoiled food, affects its nutritional content (Tr. Day 5 at 6) as well the palatability of the food provided to those

confined in AOC institutions.

(Ex. 37).

Even the Secretary of

Corrections recognized on one of his visits that the quality of the food that he observed was so poor, that he authorized the food to be sent back. (Tr. Day 2 at 37, 39).

Medically Ordered Diets: The food which is available for the provision of medically ordered diets is not adequate to meet medical orders. (Ex. 33 at 25). The line personnel who prepare

modified diets clearly do not have the knowhow to follow medical orders with respect to special diets. 30 (Ex. 5C, 9A, 37, Tr. Day

Civil No. 79-4 (PG) 3 at 69-72, 79-84, Day 4 at 6-7, 79-80, 88-89, Day 5 at 15-16). This is particularly true with respect to diabetic and renal diets in which portion control is a key issue. 4 at 88-90, 104, Day 5 at 15-17). (Ex. 37, Tr. Day

Moreover, medically ordered

diets are not promptly made available to inmates who need them and often do not reach the inmate correctly prepared which often results in the patient going without food for that meal. 33, Tr. Day 3 at 71-72, 80-81, Day 4 at 6-7, 32-33). failure patients (Ex. 37). On the other hand, it appears that in order to save time, AOC's correctional kitchens follow a one size fits all to at follow such diets risk of places these types of (Ex. The

medical

increased

serious

health

complications.

specialized diet menu where there is one low fat, low sodium, no irritant meal which is given to all inmates with a medical diet order. (Ex.37, Tr. Day 4 at 32-33, Day 5 at 12-13)

Other special diets, such as diets designed to accommodate religious dietary restrictions are also not provided. (Tr. Day 4 at 32-33). A Muslim prisoner testified regarding his experience Muslims do not eat pork. restriction to This would seem a Upon

with food service. simple enough

dietary

accommodate.

referring the matter to the AOC, he was served a low sodium, low fat diet. On attempting to correct the situation, he was taken 31

Civil No. 79-4 (PG) off the "special diet," and now receives the same food as all other members of the penal population, even when pork is on the menu. For those meals, he must simply make do with what he can (Tr. Day 4 at 32-33). inflexible quality of This the

from the other items on the menu. is emblematic of the robotic and

problem solving ability of the AOC.

It may also be a symptom of

an overburdened kitchen which simply does not have the capacity to meet even the most basic food service needs of the huge population that it serves. 108). At the end of 2008, upon the initiative of the AOC's (Tr. Day 4 at 32-24, Tr. Day 2 at

Dietitian Services Coordinator, a pilot program was begun at one AOC institution to ensure that medically ordered diets were This

properly complied with. (Tr. Day 2, 112-115,

Ex. 5A).

commendable effort apparently enjoyed some success, and it was planned that it should be implemented at other institutions

within the AOC.

However, no credible evidence regarding the

continued utilization of that program or its implementation at other institutions was presented by Defendants. (Tr. Day 2,

112-118, 130-132, Ex. 5B, Tr. Day 4 at 88-89, Day 5, 29-31).

32

Civil No. 79-4 (PG) Employees are poorly trained5 if they are trained at all and are given inadequate guidance and supervision from the central office. not (Ex. 5C, 37, Tr. Day 4 at 80-81, 89-91, 105). receive and store food, prepare They do

correctly

sufficient

quantities, ensure that they are serving appropriate quantities, clean (Id.). Prison line personnel are either utterly dismissive or food equipment, or prepare medically ordered diets.

openly hostile to prisoners' complaints and grievances regarding food service matters. (Ex. 11C, 11E, 11I, 11L, 14C, 15O, 17E, One inmate was

Tr. Day 3 at 96-100, Day 4 at 15-16, 24-25).

told that he was not in a luxury hotel in response to his grievance that he had received undercooked (still frozen) meat. (Ex. 11L). In another case an inmate was placed in segregation (Tr.

for repeatedly filing grievances relating to food service. Day 3 at 62-63). Another inmate submitted a

grievance

complaining that food trays used to serve food were filthy and was told to talk to his fellow inmates who were the ones who were charged with cleaning trays. (Tr. Day 3 at 68-69). In

another instance an inmate in charge of distributing food was
With respect to training and training materials, Plaintiffs expert was advised by kitchen personnel that employees participate in monthly "chats". From the materials she was able to review none of these cover topics germane to the quality of the food service or to food safety. For example, one of the monthly topics was how to answer telephone calls correctly, and another was related to employee motivation. (Ex. 37).
5

33

Civil No. 79-4 (PG) disciplined because his fellow inmates refused to accept trays to be washed in living area showers and reused for food service. (Tr. Day 4 at 28-29, Ex. 35). The Court is hesitant to

attribute such spiteful responses to cruelty or sadism; rather, these responses reveal what must be unmitigated frustration and desperation in dealing with the same incessant complaints and situations, over and over again, several times a day, every day of the week, for months on end, without receiving any kind of useful support from the prison officials with the capacity to bring about a solution. It was brought to the Court's attention during the hearing that recent government layoffs left AOC kitchens without

adequate supervisory personnel, and although it has already been recommended that personnel be trained to take over those

supervisory duties, that recommendation has yet to be accepted. (Day 2 at105-108, 139-140). This is a recent development, (Id.)

postdating Plaintiffs' expert inspection of the kitchens.

Should this problem remain unresolved, it is likely that the lack of appropriate kitchen supervision will further aggravate the AOC's food service operations. The Defendant Actions Carlos of the Secretary of Corrections: appears to While have

Molina

Rodríguez

initially

taken some preliminary steps to address the abysmal state of 34

Civil No. 79-4 (PG) food service in the AOC by informing himself on the state of AOC food service and investing in some new equipment and repairs, his efforts fall short of the type of categorical action that the situation truly requires considering the considerable health risk posed by the food services conditions at the AOC. Although the Secretary pays lip service to a great urgency and concern regarding the state of food service (Tr. Day 2 at 23-24, 38-40, Ex. 2), upon closer examination he seems decidedly disengaged from the problem. For example, the Secretary, who is

also the Administrator of Corrections, is not familiar and has little contact with the AOC staff involved in the agency's food service operations, including the AOC's Food Services Director. (Tr. Day 2 at 29-31, 74-77). report be generated In fact, after requesting that a food service throughout AOC

evaluating

institutions (Tr. Day 2 at 33-40, 71-74), he did not forward the report resulting from that exercise to the Director of Food Services,6 who was never even made aware that the evaluation had taken place until she heard testimony about it in open Court in the course of these hearings (Tr. Day 2 at 86-87). The results

of that evaluation were also not forwarded to the AOC Dietitian
At time the Director of Food Services herself seems decidedly uninterested in the challenges presented by food service at the AOC. For example when asked, she was not aware of how many inmates were served by several of the AOC kitchens. (Tr. Day 2 at 107). She also testified that there were thirteen functioning AOC kitchens although all other witnesses agreed that there were fourteen. (Tr. Day 2 at 105).
6

35

Civil No. 79-4 (PG) Services Coordinator. two dietitians in (Tr. Day 6 at 61). employ of the These are the only agency for a

the

entire

population of over twelve thousand inmates. 87, 132-133).

(Tr. Day 2 at 85-

The Secretary was keen on sharing with the Court that he had imparted particular "instructions" to unidentified AOC

personnel regarding various food service related matters (Tr. Day 2 at 24-25, 32-34), yet there was no evidence of how these instructions were given, when or to whom, nor of how the

Secretary planned to follow up on those instructions to ensure their implementation. As this Court has previously recognized,

there is no doubt that in an agency the size of the AOC matters should be delegated, but this sort of delegation cannot function properly without accountability and clear standards and

procedures. The privatization of food service: In August 2004, Canteen Correctional Services Corporation was contracted to deliver food services for the Administration of Corrections in the hopes that food service this would change thereby has not be improved. the (Docket quality 8816). of food

Clearly,

improved

services in the correctional system. that a new food services contract, or

The Secretary declares either with with Canteen service

Correctional

Services

Corporation 36

another

Civil No. 79-4 (PG) provider, service. include should be put to in the place in order the to improve food to an

According controls to

Secretary, compliance

agency

wants

ensure

through

sanctions,

inspector who can carry out inspections within the system, a requirement that more dietitians be involved in food service and the inclusion of preventive maintenance to equipment in the

contract.

(Tr. Day 2 at 33, 41, 45-46, 68, 72, 80).

But the Secretary's desire to execute a new food services contract clearly predates his assessment of the state of the AOC's food services. (Ex. 21, 2). Moreover, his subsequent

actions, as they relate to this goal, have not been directed to improving the quality of food service to the inmate population. The Secretary's first request for proposals relating to

food service, RFP-09-0001 was issued in March of 2009 (Ex. 21), just a month after his confirmation as Secretary of the

Commonwealth's Department of Corrections and Administrator of Corrections, (Tr. Day 2 at 22). In August of 2009, the

Secretary issued a letter to the bids office explaining that based on his visits to AOC kitchens, he had concluded that there was an "urgent need to make substantial changes in the providing of the food services," and stating that "substantial changes" would be made to ensure that the administration's public policy

37

Civil No. 79-4 (PG) is complied with. (Ex. 2). RFP 09-0001, was therefore

canceled. During this time, however, Canteen's contract with the AOC was slated to automatically renew for another year in March of 2010. (Ex. 22). The Secretary could easily have notified

Canteen in writing of its intent to terminate the contract with it 90 days prior to March 31, 2010 for the purpose of opening the contract to other bidders according to the terms of the contract, (Tr. Day 2 at 46-47, Ex. 22). so (Tr. Day as 2 at to 44, the 47-52), legal He did not, however, do creating of tremendous the

thereby

uncertainty

feasibility

terminating

contract with Canteen7 in order to be able to contract with another party. 55). As mentioned RFP 09-0001, was cancelled, presumably on the basis that there were going to be major revisions to the RFP directed to improving the quality of food service. (Id.) (Tr. Day 1 at 6-12, 15-20, Tr. Day 2 at 41, 52-

Nevertheless the RFP issued by the Department of Corrections in December 2009, RFP 09-0042, is virtually identical to RFP 090001 (Ex. 22, 23) even to the point that the latter mistakenly

Although the Secretary sustains that Canteen has participated in the new requests for proposals as evidence that they were aware of the AOC's intent to refuse to renew the contract (Tr. Day 2 at 81), this fact does not in any way guarantee that Canteen will not contest the legality of the AOC's termination of its contractual obligations.

7

38

Civil No. 79-4 (PG) contains dates corresponding to the former. 17, Ex. 21, 22, 23). (Tr. Day 3 at 13-

The new RFP did not contain any changes

designed to address existing food service deficiencies as the Secretary claims. The revised into RFP did, however, to allow divide AOC correctional contracts to

institution

regions,

several

different bidders to be awarded to different regions.

(Ex. 22).

This last bid was adjudicated in March 2010 (Tr. Day 3 at 28-9, Ex. 3) and later cancelled in April 2010 because the budget for the contract was not complete. 23, 34). (Tr. Day 3 at 19-20, 24-27, Ex.

No one thought to wait to adjudicate the bid until

budget was approved because those involved understood that there was "time pressure" (Tr. Day 3 at 26), presumably the pending motion for contempt filed by Plaintiffs. In a matter of days,

the Secretary declared a state of emergency which permits him to bypass the bid process altogether in awarding another contract. (Tr. Day 3 at 37-39, Ex. 24). The proposition that a new contract is necessary or would even be helpful in attaining food a sustainable was not level of

constitutionally

adequate

service

properly

substantiated by any evidence and is a self-serving assertion on the part of Defendants. The AOC has a perfectly good Food

Services Manual which is comprehensive, covering many if not all 39

Civil No. 79-4 (PG) of the basic food standards which were set out at the hearing. (Ex. 7). This Manual adopts explicitly and by reference

industry standards such as the American Correctional Association standards governing food service, the National Research Council of the Food and Nutrition Board of the National Academy of

Sciences, as well as the Food Code promulgated by the Food and Drug Administration Department (which has as also a been adopted by Puerto food

Rico's

of

Health

regulation (Ex. 7).

governing

service operations on the island).

The Manual also

incorporates by reference many of the orders of this Court. (Id.). Canteen Correctional Services Corporation is required to

abide by the Food Services Manual. (Ex. 7). Moreover, the AOC has an Evaluation and Contract Compliance Plan which sets forth in detail the manner in which the AOC supervises Canteen and ensures contract compliance. (Ex. 1).

The AOC already has an "inspector," who is supposed to regularly visit AOC kitchens in order to demand compliance with Canteen's contractual obligations and with the minimum standards set out in the Food Services Manual; it is the Director of Food

Services.

(Ex. 1).

Canteen is already required to repair most (Ex. 1 & 7). The problem is not Canteen's

kitchen equipment.

contractual obligations with the AOC, it is the AOC's utter failure to enforce those obligations. 40

Civil No. 79-4 (PG) The Director of Food Services apparently disavows any

responsibility for visiting AOC kitchens, meeting with Canteen personnel, scrutinizing menu changes, requiring daily

inspections, etc. as set out in the Compliance Plan (Ex. 1, Tr. Day 2 at 108-110, 114-122, 128-129). Likewise, the requirements

of the Food Services Manual are not taken seriously by the AOC such as requiring adequate dishwashing equipment, sanitation and cleaning, adherence to food temperature requirements and

observance of the food cycle menu and food service schedules. (Tr. Day 2 at 102, 141-142, 144-145, Tr. Day 3 at 52-55, 61, Day 4 80-81, 110, Ex 7, 33, 37). The Court finds that the Secretary's efforts to change the currently existing food service contract at this time are

largely peripheral to the issue of providing constitutionally adequate food service. Neither evidence nor arguments have

been presented by Defendants to show that the currently existing structure, including the current contract with Canteen

Correctional Services, cannot generate the changes necessary to create constitutional conditions of food service or are

otherwise unworkable in some concrete way.

If the AOC feels

that it will somehow serve its needs to change the currently existing food service contract, it is its prerogative to make such a change, and that prerogative must be exercised with due 41

Civil No. 79-4 (PG) consideration of its contractual and other legal obligations and of the significant expenditures of time, money and effort

attendant on such changes.

It should not, however, use its

obligations under the U.S. Constitution and in this case as a pretext for making such changes. CONCLUSIONS OF LAW The State has an affirmative duty to adequately provide for the basic human needs of inmates: When the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e.g. food, clothing, shelter, medical care and reasonable safety - it transgresses the substantive limits on state action set by the Eighth Amendment. DeShaney v. Winnebago County Dept. Of Social Services, 489 U.S. 189 (1989); see also Helling v. McKinney, 509 U.S. 25, 32 (1993) ("When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon him a corresponding duty to assume some responsibility for his safety and general well-being. . . . Contemporary standards of decency require no less."); Estelle v. Gamble, 429 U.S. 97, 102-104 (1976) ("The infliction with of . . . unnecessary of suffering decency is as

inconsistent

contemporary

standards

manifested in modern legislation codifying the common law view that 'it is but just that the public be required to care for the 42

Civil No. 79-4 (PG) prisoner, who cannot, by reason of the deprivation of his

liberty, care for himself.'") (citations omitted). Various conditions of confinement may establish an Eighth Amendment violation even when each would not do so alone, when they have a mutually enforcing effect that produces the

deprivation of a single, identifiable human need, such as food. Wilson v. Seiter, 501 U.S. 294, 304 (1991); Rhodes v. Chapman, 452 U.S. 337, 346-7 (1981) ("Conditions . . ., alone or in combination, may deprive inmates of the minimal civilized

measure of life's necessities.'"). Under the circumstances proven in these hearings, this

Court concludes that the conditions described, taken together, produce the deprivation of adequate food to the Plaintiff Class. It has long been established law that "[T]he State must provide an inmate with a healthy habitable environment [which] includes providing nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it. French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985);

Robles v. Coughlin, 725 F. 2d 12, 15 (2d Cir. 1983); Ramos v. Lamm, 639 F.2d 559, 570 (10th Cir. 1980), cert. denied 450 U.S. 1041 (1981).

43

Civil No. 79-4 (PG) The findings of fact outlined above demonstrate that the food being provided to the Plaintiff Class is not nutritionally

adequate because it is not provided in sufficient quantities: The sustained deprivation of food can be cruel and unusual punishment when it results in pain without any penological purpose. . . . [I]nmates rely on prison officials to provide them with adequate sustenance on a daily basis. The repeated and unjustified failure to do so amounts to a serious depravation. Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2008) (citations omitted). quantity Amendment. 2002) A systematic failure to provide food in sufficient to maintain normal health violates the Eighth

See Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. alleged he had been placed on nutritionally

(inmate

inadequate restricted diet for fourteen days); Reed v. McBride, 178 F.3d 849, 853-56 (7th Cir. 1999) (alleged deprivation of food was sufficiently serious and prison officials' deliberate indifference was obvious); Simmons v. Cook, 154 F.3d 805, 807-09 (8th Cir. 1998) (inmates were deprived of four consecutive

meals); Robles v. Coughlin, 725 F.2d 12, 15-16 (2nd Cir. 1983) (deprivation of meals for twelve days during a fifty-three day period); Cunningham v. Jones, 567 F.2d 653, 660 (6th Cir. 1977) (remanding for consideration of whether one meal per day which was provided was nutritionally adequate to maintain normal

health); Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 44

Civil No. 79-4 (PG) 1970) (refusal to provide food during a fifty and a half hour period). Moreover, this Court notes that menu substitutions and

inadequate portion measurement result in inmates receiving less quantities of certain particular types of aliments, specifically vegetables and proteins, than required. (Ex. 33, 37). This

Court finds that the resulting failure to provide sufficient quantities results Antonelli in v. of a those foods over a sustained diet. 1432 (7th period of time e.g., 1996)

nutritionally Sheahan, 81

inadequate 1422,

See Cir.

F.3d

(prisoner stated a cause of action under the Eighth Amendment by claiming "not just 'ransid food' [sic], but also a

'nutritionally deficient' diet"); Rust v. Grammer, 858 F.2d 411, 414 (8th Cir. 1988) (diet without fruits and vegetables might violate Eighth Amendment if it were regular prison diet);

LeMaire v. Maass, 12 F.3d 1444, 1455 (9th Cir. 1993) (evaluating nutritional content of food provided); Cunningham v. Jones, 567 F.2d 653, 657 (6th Cir. 1997) (taking in consideration

nutritional content in finding an Eighth Amendment violation). In addition, "[f]ood served to inmates is deficient under constitutional standards, even when nutritionally complete, if it is prepared under conditions so unsanitary as to make it unwholesome and a threat to the health of inmates who consume 45

Civil No. 79-4 (PG) it." Toussaint the v. McCarthy, 597 F.Supp. AOC 1388 food (1984). is In

evaluating

conditions

under

which

stored,

prepared and served, this Court has considered the applicable Food Code standards pointed out by Plaintiffs' expert, as well as the AOC's own Food Service Manual. Such codes, while not

establishing "constitutional minima" are relevant in making a finding regarding the constitutionality of existing conditions." Ramos v. Lamm, 639 F.2d 559, 570 (10th Cir. 1980), cert. denied 450 U.S. 1041 (1981). The storage, preparation and service of food at the AOC are sufficiently unsanitary as to implicate the Eighth Amendment. Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996) ("Food that is spoiled and water that is foul would be inadequate to

maintain health."); French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985) (finding unsanitary kitchens and food storage areas to be unconstitutional); Ramos v. Lamm, 639 F.2d 559, 570 (10th Cir. 1980), cert. denied 450 U.S. 1041 (1981) (noting that the failure to adequately store foods and maintain adequate food temperatures contributes to conditions that constitute Eighth Amendment violation.); Lightfoot v. Walker, 486 F.Supp. 504, 524 (S.D. Ill. 1980) (improper food storage, inadequate dishwashers, untrained personnel, the failure to provide a special diet for those who need it found to be unconstitutional). 46

Civil No. 79-4 (PG) Moreover, the AOC deprives inmates with special medical

conditions of proper medically ordered diets in violation of the Eighth Amendment, placing these inmates at very grave risk of serious medical complications. Byrd v. Wilson, 701 F.2d 592,

594-95 (6th Cir. 1983) (low sodium, high protein diet); Massey v. Hutto, 545 F.2d 45 (8th Cir. 1976) (stomach ulcers); Woulard v. Food Service, 294 F.Supp.2d 596 (D.Del. 2003) (diabetes and Crohn's disease); Kyle v. Allen, 732 F.Supp. 1157 (S.D. Fla 1990) (ulcers); Balla v. Idaho State Bd. Of Corrections, 595 F.Supp 1558 (D.Idaho 1984) (diabetes & Crohn's disease) ("There is simply no penological justification for depriving inmates

with serious medical problems of their duly prescribed diets"); see generally, Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) ("[a] medical need is serious if it is one that has been diagnosed by a physician as mandating treatment . . ."); Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990) (same). The failure to maintain any consistent program for

providing special diets also causes the failure to honor diet restrictions imposed by an inmate's religion implicating Kahane v. ("[P]rison

Plaintiffs' First Amendment free exercise rights. Carlson, 527 F.2d 492, 495-6 (2nd Cir. 1975)

47

Civil No. 79-4 (PG) authorities must accommodate the right of prisoners to receive diets consistent with their religious scruples.") In order to establish liability under the Eighth Amendment a prison official must "know[] of and disregard[] an excessive risk to inmate health or saf