MARK A. KEARNEY, District Judge.
In 2010, Berks County announced its incarcerated residents classified as "Trusty" low risk inmates would be moved from its Jail to a Community Reentry Center to meet touted goals of reducing recidivism and promoting reentry to society. The Community Reentry Center provided these Trusty inmates increased mobility with unlocked cells, access to privileges, visitation rights, and, access to home furloughs aiding work release. But contrary to its 2010 goals for its residents, Berks County chose to house only male Trusty inmate residents in the Reentry Center. It decided to leave the women Trusty inmates in the Jail with substantially different conditions of incarceration. Even after we repeatedly held over the past year its policy is unconstitutional, Berks County vigorously defended its decision citing safety/security reasons and a logistical inability to provide the same rights to women as men although it classified both as "Trusty" inmates. Berks County opposed every effort by female Trusty inmates to ensure equal protection. It sought stays of our injunctions and eventually never implemented court-ordered compliance. It denied the female inmates's internal grievances and then successfully moved to dismiss cases when female inmates did not exhaust administrative remedies before their shorter-term Trusty status sentences expired. As late as October 2019, the Berks County Commissioners approved a six-figure contract to renovate the Community Reentry Center housing the male Trusty inmates. Berks County offered no sign of relenting in its view.
But on the business day before we started the jury trial on damages claims, Berks County told us it just moved all the male Trusty inmates out of the Reentry Center and into the Jail. It then immediately argued there is no more Equal Protection violation mooting a need for further prospective injunctive relief. The female inmates are not confident in the stability of this last-minute change by elected officials about to face a jury. In addition to damages awarded by the jury, a class of female Trusty inmates seek permanent injunctive relief believing Berks County's voluntary cessation of unconstitutional practices will not last without a permanent injunction Order.
After evaluating the credibility of witnesses in several hearings including three preliminary injunction hearings, four days of trial, and dozens of briefs leading to extensive opinions on motions to dismiss and summary judgment, we agree with the female Trusty inmates as to the need for a narrowly tailored permanent injunction to ensure Berks County does not change its mind once outside of our scrutiny. Given the timing of Berks County's reversal in policy and potential change absent contrary evidence, we may enter this prospective relief although we are not aware of a presently challenged violation of the Equal Protection Clause. Most of the requested relief is narrowly tailored, comports with the needs-narrowness-intrusive requirements of the Prison Litigation Reform Act, and otherwise satisfies the long-established elements necessary for permanent injunctive relief. Given today's specific findings and Berks County's apparent change of mind, we decline to enter declaratory relief to address past violations. Our accompanying Order denies declaratory relief but enters permanent injunctive relief narrowly tailored to the specific harms challenged by the female Trusty inmates.
After evaluating the credibility of several witnesses in three preliminary injunction hearings, a trial on prospective permanent relief, and studying the adduced evidence, we find:
1. In 2010, Berks County converted a juvenile detention center down the hill from its Jail into a "Community Reentry Center" managed by the same Berks County officials and correctional officers for the admitted "goal of reducing recidivism and assisting residents in reestablishing themselves as productive members of our community."
2. Berks County's goals for its Reentry Center did not distinguish between male and female residents.
3. After opening the Reentry Center, Berks County began housing its most trustworthy male and female inmates, termed "Trusty" inmates, in different facilities based on their sex: Trusty men lived in the Reentry Center and Trusty women lived in the F-Block of the Jail.
4. Male Trusty inmates living in the Reentry Center lived in unlocked cells with the freedom to access to a communal dayroom with microwaves, showers, and telephones for eighteen hours a day and received visitors in the Reentry Center's gymnasium without a glass partition.
5. On January 28, 2018, Theresa Victory entered the custody of the Berks County Jail System after being sentenced to one to five years' imprisonment. Three days later, the Jail classified her a Trusty inmate.
6. On November 30, 2018, Ms. Victory sued to challenge Berks County's Trusty inmate housing policies, claiming male Trusty inmates' more favorable living conditions in the Reentry Center violated her Equal Protection rights under the Fourteenth Amendment.
7. On December 11, 2018, Ms. Victory moved to preliminarily enjoin Berks County from denying female Trusty inmates housing in the Reentry Center on the basis of sex.
8. On December 28, 2018, Berks County argued Ms. Victory had no reasonable likelihood of success on the merits because its housing policy served the important government interest of ensuring female Trusty inmates' safety, and the housing policy reasonably related to the safety interest because housing women inmates in the Reentry Center would raise significant safety concerns.
9. On January 10, 2019, we held a full-day hearing on Ms. Victory's motion for a preliminary injunction where Ms. Victory, Warden Quigley, Deputy Warden Smith, Captain Miguel Castro, Lieutenant Robert Mugar, and Commissioner Kevin S. Barnhardt testified.
10. On January 15, 2019, we issued an Order and Memorandum with Findings of Fact granting Ms. Victory's motion for preliminary injunctive relief and ordered Berks County to implement a schedule providing Ms. Victory:
11. On January 17, 2019, Ms. Victory, joined by two additional plaintiffs—Amara Sanders and Samantha Huntington—filed an Amended Complaint.
12. On January 28, 2019, Warden Quigley swore to approval of a plan for compliance with our January 15, 2019 Order enjoining differential treatment.
13. Ms. Victory's one-year custodial sentence ended on January 28, 2019.
14. The same day, Berks County moved under Rule 60(b) of the Federal Rules of Civil Procedure for relief from the preliminary injunction after releasing Ms. Victory from custody.
15. We then dissolved the January 15 preliminary injunction and denied Mses, Sanders and Huntington's request for a preliminary injunction upon finding:
a. Mses. Victory and Huntington had been released from the custody of the Berks County Jail System; and,
b. Ms. Sanders had not exhausted her administrative remedies.
16. On April 5, 2019, we granted Berks County's Motion to dismiss the claims of Mses. Sanders and Huntington but denied the Motion to dismiss as to Ms. Victory, as she plead a claim for sex discrimination by alleging Berks County provided differential treatment to male Trusty inmates in the Community Reentry Center compared to female Trusty inmates in the Jail.
17. On April 22, 2019, Ms. Victory, joined by another female Trusty inmate, Alice Velazquez-Diaz, filed a Second Amended Complaint.
18. On April 24, 2019, Ms. Velazquez-Diaz moved for preliminary injunctive relief arguing she was "in all relevant respects similarly situated to Ms. Victory when the Court heard her motion for a preliminary injunction [in January 2019]."
19. On May 7, 2019, Berks County responded arguing substantially equivalent living conditions between male Trusty inmates housed in the Reentry Center and female Trusty inmates housed in the Jail. Berks County further argued even if not substantially similar, Berks County's government interests in "providing [female Trusty inmates] adequate segregated housing, ensuring [their] safety within [Berks County Jail System], and limiting overpopulation concerns are ... served by the policy of housing all female inmates in F-Block."
20. On May 15, 2019, we evaluated the credibility of witnesses and accepted evidence in support of Ms. Velazquez-Diaz's motion for a preliminary injunction.
21. On May 20, 2019, we granted Ms. Velazquez-Diaz's motion for preliminary injunctive relief.
22. In granting the preliminary injunction, we ordered "[o]n or before May 28, 2019, Berks County, through Warden Quigley, shall file a proposed plan to ensure compliance with the accompanying Memorandum allowing Ms. Velazquez-Diaz to have the freedom of movement provided to male Trusty inmates housed at the Community Reentry Center ...; and, visitation without glass partition as afforded to male trusty inmates."
23. On May 23, 2019, Berks County appealed our May 20, 2019 Order and sought a stay of implementing the Order pending appeal.
24. On June 3, 2019, Berks County moved for summary judgment again arguing substantially different treatment is justified by "[t]he important government interest of safety and security is served by housing female Trusty inmates on F-Unit [in the Jail]."
25. On June 4, 2019, Berks County, through Warden Quigley, responded to our May 20, 2019 Memorandum and Order swearing "[b]ased upon my experience in corrections, management of the safety and security needs and the physical facilities at [Berks County Jail System], I believe ... we are providing equal housing and services to all inmates ... within the operational parameters and using our best judgment to manage and operate the [Berks County Jail System]."
26. On June 4, 2019, Berks County moved for an emergency stay of the May 20, 2019 Order in our Court of Appeals.
27. On June 6, 2019, Ms. Velazquez-Diaz timely responded to Warden Quigley's June 4, 2019 affidavit arguing Defendants failed to provide a plan and even if we considered the renewed idea of moving the female Trusty inmates into the overflow unit, this transfer would not meet the terms of our May 20, 2019 Order.
28. On June 12, 2019, Mses. Victory and Velazquez-Diaz moved to enforce our preliminary injunction order and for contempt arguing Warden Quigley's affidavit did not propose a plan to comply with the preliminary injunction.
29. On June 14, 2019, Berks County responded with Warden Quigley swearing to safety and security concerns concerning visitation conditions at the Jail and the Community Reentry Center but again failed to propose a method for providing similar visitation conditions for male and female Trusty inmates.
30. On June 20, 2019, our Court of Appeals denied Berks County's emergency motion for a stay. We scheduled a hearing on the pending motion for contempt for July 9, 2019.
31. On July 1, 2019, Warden Quigley responded "Senior Staff at [Berks County Jail System] has routinely reviewed options to develop a Plan that would comply with this Court's Orders and have been continually reviewing all options to develop a Plan that would be as safe and secure as possible."
32. On July 8, 2019, we granted Berks County's Motion for summary judgment on all claims other than the Equal Protection claim. As to the Equal Protection claim, we found Mses. Victory and Velazquez-Diaz raised a genuine issue of material fact as to whether (1) female Trusty inmates were similarly situated to male Trusty inmates; (2) Berks Defendants provided substantially equivalent treatment to female Trusty inmates; and, (3) Berks County's differential treatment served important government objectives and the policy substantially related to the governmental objectives.
33. In our June 8, 2019 Order and Memorandum, we granted Mses. Victory's and Velazquez-Diaz's Motion for class certification, certifying a class under Rule 23(b)(2) of the Federal Rules of Civil Procedure of "[a]ll current and future female inmates committed to the Berks County Jail System who have the Trusty custody-level classification but denied assignment to the Community Reentry Center and denied access to the privileges and services available to men assigned to the [Community Reentry Center]."
34. Hours after we certified the Class, Mses. Victory and Velazquez-Diaz moved for a preliminary injunction on behalf of the Class.
35. Also on July 8, 2019, Warden Quigley amended her affidavit and attached a memorandum titled "Housing and Schedule Changes for Female Inmates Classified as `Trusty.'"
36. On July 9, 2019, we held a hearing to determine whether Berks County failed to comply with our May 20, 2019 Order. At the beginning of the hearing, we questioned counsel for Berks County about whether the way to address the Class claims for injunctive relief would be to move all male Trusty inmates to the Jail. Our inquiry appeared to be the first time Berks County considered this option:
37. We then heard testimony from Captain Miguel Castro who swore:
a. Before submitting the June 4, 2019 Affidavit, he and other Berks County Jail System officials, along with Warden Quigley and Berks County's counsel, discussed how to comply with our May 20, 2019 Order while still maintaining safety and security in the Jail System;
b. He talked to officers and lieutenants in the Jail System to determine a course of action;
c. Berks County officials believed they already provided similar conditions for female and male Trusty inmates before June 4, 2019, despite our May 20, 2019 Order and Findings detailing unequal treatment;
d. Berks County officials did not consider providing similar visitation conditions to female Trusty inmates in meetings leading up to Warden Quigley's June 4, 2019 Affidavit; and,
e. Although Warden Quigley swore she would be "prepared to move [Ms.] Velazquez-Diaz to the F-Unit Overflow Unit should it be so ordered," he admitted Berks County would need to make further adjustments to the overflow unit to comply with our May 20, 2019 Order, including adjustments to ensure the same freedom of movement offered to male Trusty inmates in the Community Reentry Center.
38. On July 11, 2019, we granted Ms. Velazquez-Diaz's Motion for contempt against Berks County and Warden Quigley imposing compensatory sanctions of $500.00 to Ms. Velazquez-Diaz and $6,571.20 to Ms. Velazquez-Diaz's counsel.
39. On July 16, 2019, Berks County appealed the contempt and implementation order to our Court of Appeals.
40. On July 30, 2019, Mses. Victory and Velazquez-Diaz filed a status memorandum seeking the same injunctive relief for the Class as previously ordered for the individual plaintiffs, arguing "[t]he record .... before the Court when it heard the prior preliminary injunction motions has amply demonstrated that Defendants are violating the rights of all female Trusty prisoners, not just those of Ms. Victory and Ms. Velazquez-Diaz."
41. On August 5, 2019, Berks County responded by arguing our implementation order (directing Berks County to move all female Trusty inmates to the quarantine unit consistent with the proposed plan) mooted the Class claim for injunctive relief. Even if ripe, Berks County argued the Class failed to meet four prerequisites of granting a preliminary injunction, incorporating arguments raised in earlier filings.
42. On August 7, 2019, we granted the Class Motion for a preliminary injunction but stayed implementation of the Order; we found "after three evidentiary hearings, the same likelihood of success and irreparable harm exist[ing] for female Trusty inmates as part of the Class as previously awarded to Plaintiff Alice Velazquez-Diaz under our May 20, 2019 Order."
43. On September 16, 2019, the parties cross-moved for summary judgment on the Equal Protection Clause claim, with both sides repeating the same arguments addressed earlier.
44. On October 11, 2019, our Court of Appeals dismissed Berks County's challenges to the January 15 and May 20 preliminary injunctions and July 15 implementation order as moot under the Prison Litigation Reform Act.
45. On October 17, 2019, we denied the summary judgment cross-motions finding genuine issues of material fact regarding access to furloughs, compensatory damages, and the scope of injunctive relief for the Class.
46. We set trial on remaining liability and damages questions for November 12 through 15, 2019. We granted Berks County's Motion to bifurcate the trial and ordered the trial to proceed in three parts by first presenting the remaining liability question on the constitutionality of Berks County's furlough policy, then Ms. Victory's case for compensatory damages, and finally on the scope of requested prospective relief under 18 U.S.C. § 3626(a)(1).
47. On November 8, 2019, the last business day before the first day of trial, Defendants filed a "Notice to the Court" to "advise that the Berks County Board of Commissioners decided to move the inmates that have been housed at the Berks County Community Reentry Center to the Berks County Jail."
48. On November 12 and 13, 2019, we held the first phase of the trial relating to unequal access to furloughs between male and female Trusty inmates. The adduced evidence established:
a. The Jail's policy made male Trusty inmates (housed in the Reentry Center) and female Trusty inmates (housed in the Jail) eligible for the Partial Confinement Reentry Program upon being classified as Trusty;
b. The Partial Confinement Reentry Program (for both male and female Trusty inmates) had two main aspects: work release and furlough;
c. Work release enabled Trusty inmates to gain employment in the community while incarcerated
d. Berks County offered different types of furloughs to Trusty inmates; one furlough, called a "home furlough," allowed a Trusty inmate to leave the Jail for up to ten hours to spend time with family;
e. Berks County required certain conditions be met before a Trusty inmate could take a home furlough: (1) an Order from the inmate's sentencing judge (a Partial Confinement Reentry Order);
f. Mses. Victory and Velazquez-Diaz, on behalf of the Class, argued Berks County assisted male Trusty inmates obtain the Partial Confinement Reentry Order—a prerequisite for furlough—but did not similarly assist female Trusty inmates:
i. The Partial Confinement Order is a one-page document with certain information fields at the top, including: the applicant name, inmate number, charge, minimum sentence date, maximum sentence date, sentencing judge, and date initially eligible for program.
ii. When male inmates obtained Trusty status, the Jail would host an orientation in the Reentry Center;
iii. Typically, there would be ten to twenty male Trusty inmates in a given orientation;
iv. The orientation involved information about the Reentry Center's housing unit and about work release and obtaining furlough;
v. During this orientation, Berks County staff provided each male Trusty inmate a Partial Confinement Reentry Order with the information fields at the top of the Order, such as inmate name and number, already filled out by Berks County to be signed by the male inmate;
vi. After the orientation, the Reentry Center sent each Order to Warden Quigley and the sentencing judge for signatures;
vii. After the sentencing judge signed and returned the Order to the Reentry Center, Berks County provided the male Trusty a copy of the completed Order and he could use the Order to take a home furlough when the inmate became eligible for furlough;
viii. The Jail's "Work Release Coordinator," Joanna Brown, testified the Reentry Center provided completed forms to male Trusty inmates during orientation to be submitted to sentencing judges for "efficiency" explaining "I can review them all at once. I can get them all signed [all] at once. I can provide them to [Warden Quigley] at once. The Judges individually all at once;"
ix. The Jail did not host an orientation for female Trusty inmates, did not issue already filled-out Partial Confinement Reentry Orders to female Trusty inmates, nor did they advise female Trusty inmates they would need a Partial Confinement Reentry Order to take furlough unless the female Trusty inmate requested the Order.
g. Mses. Victory and Velazquez Diaz, on behalf of the Class, argued Berks County assisted male Trusty inmates obtain work release jobs—another prerequisite for furlough—but did not similarly assist female Trusty inmates:
i. Coordinator Brown "coordinate[d] the work that [was] brought to the table by an inmate or an employer directly" by ensuring all necessary paperwork was completed and the employer met program requirements;
ii. Coordinator Brown did not affirmatively seek jobs for male or female Trusty inmates;
iii. Instead, the work release job must have been "brought to [Coordinator Brown], the work either by an inmate directly because they had that job before they came in, or the inmate spen[t] their time while incarcerated ... job searching, or an employer would come to [Coordinator Brown] directly seeking out people";
iv. Coordinator Brown testified certain employers, such as Morgan Truck Body, contacted the Jail seeking work release employees;
v. When an employer called seeking work release employees, Coordinator Brown asked the employer if they were "interested in hiring male or females;"
vi. Once the employer indicated its hiring preference, Coordinator Brown would advertise job openings either to male Trusty inmates in the Reentry Center or female Trusty inmates in the Jail;
vii. Coordinator Brown testified no employer expressed interest in hiring female Trusty inmates until last October (right before our November trial) in which case she posted a job memorandum for female Trusty inmates in the F-Block;
viii. Male Trusty inmates regularly observed job memorandum and postings on the bulletin board in the Reentry Center.
49. The jury concluded Berks County violated the Equal Protection Clause by refusing to provide female Trusty inmates substantially equivalent access to furloughs as male Trusty inmates.
50. During the second phase of the trial, the jury evaluated the testimony of:
a. Ms. Victory who felt dehumanized and discriminated against after learning only male Trusty inmates lived in the Reentry Center;
b. Ms. Jean Eckroth, a counselling volunteer at the Jail, who met with Ms. Victory during her incarceration and testified to Ms. Victory's "stressed out" condition and about Ms. Victory's "hopelessness and despair";
c. Captain Castro, who testified to the day-to-day safety precautions and procedures as to the Jail permitting female Trusty inmates to leave the Jail for work release.
51. The jury found Berks County's Equal Protection Clause violation caused her to experience physical or emotional pain and awarded her $2,800 in compensatory damages.
52. We proceeded to the third and prospective relief phase of the trial. Warden Quigley and Deputy Warden Smith testified about the new housing policies at the Jail after closing the Community Reentry Center as of November 15, 2019:
a. There were approximately seventy-seven male Trusty inmates and thirteen female Trusty inmates;
b. Berks County no longer housed male Trusty inmates in the Reentry Center and had moved all male inmates housed in the Reentry Center to the A-Unit of the Jail;
c. Berks County still housed female Trusty inmates in the F-Unit of the Jail;
d. Berks County Commissioners decided to move male Trusty inmates to the Jail and Warden Quigley counselled the Commissioners on the "pros and cons and the feasibility" of the decision;
e. The Jail no longer issued pre-completed Partial Confinement Reentry Orders to male Trusty inmates but instead staff assisted Trusty inmates (male and female) to obtain orders once eligible to take furlough;
f. Warden Quigley was not aware of any steps taken by the Jail to dismiss a furlough Order held by a male Trusty prisoner;
g. Warden Quigley swore she has the authority to change the Inmate Handbook but typically presents proposed changes to the Berks County solicitor before a final decision.
53. Following testimony, Mses. Victory and Velazquez-Diaz argued the Berks County voluntarily ceased the constitutional violation and therefore Mses. Victory and Velazquez-Diaz "should be entitled to discovery to the process by which [the changed housing policy] happened, because the Supreme Court and the [Court of Appeals for the Third Circuit] have said that is relevant to determining whether [the constitutional violation] will recur."
54. After the evidence and arguments from counsel, we ordered: (1) Berks County to file a status report describing the change in housing and treatment of male Trusty inmates by December 2, 2019; (2) Plaintiffs to "move to withdraw the request for prospective relief or submit Memoranda ... describing how we may continue to entertain a request for prospective relief under the Prison Litigation Reform Act given the noticed changes in the treatment of male and female Trusty inmates in the Berks County Jail System with a responsive brief ... due no later than December 19, 2019."
55. Defendants timely filed its status report December 2, 2019 and filed a supplemental status report on December 9, 2019.
a. Both female and male Trusty inmates: "are living in cells (A-Unit for males and F-Unit for females) with two beds, a toilet, a sink and a desk;" "receive 6 [h]ours of [d]aily [r]ecreation;" "have access to the dayroom which includes telephones, showers, microwaves, and television" during indoor recreation periods; "have three designated visitation days per week;" "may receive two visits per week from no more than three visitors at one time;" "use visitation areas that have a glass partition between them and their visitor;" "carry their tray to their cell and eat their meal in the cell;" and, "will be eligible for furlough."
b. Concerning the Jail's furlough policy, Berks County attested:
i. "Between November 25 and November 27, 2019 [the Berks County Jail System's] Treatment Department Staff provided information regarding general rules for Trusty inmates and information regarding furloughs and work release. The information provided included the presentation of slides 5, 10, and 11 of the former Orientation given to male Trusty inmates" before November 8, 2018;
ii. Berks County Jail System "submitted a Partial Confinement Reentry Order to the sentencing judge" for all agreeable female Trusty inmates;
iii. After November 11, 2019, "a Partial Confinement Reentry Order will be submitted to the sentencing judge on a case by case basis after a given [T]rusty inmate meets the criteria for and requests a home furlough;"
iv. Once "a male or female inmate is classified as a Trusty, they are advised of that classification by being provided a Review for Trusty Status Memorandum from Treatment Staff at [Berks County Jail System]."
c. Defendants also modified the Inmate Handbook "to exclude all references to the former Community Reentry Center."
56. In its supplemental status report, Defendants stated they "modified its work release program to allow male and female inmates to work on the same shift with the same employer" and they "placed bulletin boards in [] the A-Unit and F-Unit [] where all job opportunities that come to the Jail from outside employers are placed."
57. On December 9, 2019, Plaintiffs filed a memorandum expressing they still seek a permanent injunction despite the reported changes claiming such changes are only a "voluntary cessation" of the adjudged unconstitutional conduct. The Plaintiffs' memorandum addresses the availability of the requested prospective relief under the Prison Litigation Reform Act (18 U.S.C. § 3626(a)(1)(A)).
a. "Provide the same amount of time each day during which cell doors are unlocked and prisoners are permitted to access the dayroom for all Trusty women and men, unless there is a unit-wide lockdown or individual disciplinary action."
b. "Provide equal access to phones, microwaves, and showers to all Trusty women and men, allowing both Trusty women and men to access those amenities during all time periods when their cell doors are unlocked, unless there is a unit-wide lockdown or individual disciplinary action."
c. "Provide substantially equivalent visitation conditions for Trusty women and men, including the length of visits, the frequency of visits, and the presence or absence of a physical barrier between prisoners and their visitors."
d. "Update the [Berks County Jail System] Inmate Handbook to reflect the current internal furlough policy, including a list of the eligibility requirements for each type of furlough."
e. "Provide a completed Partial Confinement Reentry Order (i.e. furlough order) (except for the prisoner's and judge's signatures) to all male and female Trusty prisoners upon their attaining the Trusty classification, and send the proposed furlough orders to the appropriate court or sentencing judge."
f. "Provide a written notice to all potential employers that contact [Berks County Jail System] to seek work release employees that [Berks County Jail System] has both male and female Trusty prisoners on work release who are available for employment."
g. "Provide written notice, either individually or through public postings, to all male and female Trusty prisoners about all work release job opportunities that [Berks County Jail System] becomes aware of and meet [Berks County Jail System's] requirements."
h. "File written status reports with the Court once every six months for two years, updating the Court and Class Members on the treatment of Trusty men and Trusty women in [Berks County Jail System] with respect to freedom of mobility, access to privileges, visitation conditions, and access to furloughs (including the number of men and women who have been approved for furloughs)."
58. Mses. Victory and Velazquez-Diaz added evidence:
a. An October 3, 2019 Commissioners' Board Meeting Minutes "[a]dopting a resolution authorizing the award and the Director of Contracts & Procurement to execute as a result of Invitation to Bid #19-21-GR, two (2) contracts for the [Community Reentry Center] Elevator Modernization Project as identified herein"
b. A November 10, 2019 Reading Eagle article, entitled "Berks County officials close reentry center prior to federal trial," stating
i. "County solicitor Christine M. Sadler said Saturday that the county [C]ommissioners' decision to shut down the [Community Reentry Center] had been a topic of discussion long before the lawsuit was filed. She said the facility, which was opened in 2010, was a source of concern because it is considered inefficient and oversized;"
ii. "She said the decision was made now largely due to financial factors;"
iii. "[Solicitor] Sadler said the county received notification in late summer that the state was terminating its contract to use the Berks County Prison to house state prisoners with technical parole violations — a significant loss in revenue to the county. That change would also free up [fifty] beds and [fifty] spots in programs to help inmates reestablish themselves back into the community;"
iv. "[Solicitor] Sadler said the county's action is based on an October court order;"
v. "[Solicitor] Sadler said the county was precluded from making changes to the program while the lawsuit was working its way through the court system based on an order by U.S. District Judge Mark A. Kearney. But, she said, that order was overturned on [October 11, 2019];"
vi. "When that happened, [Berks County's] Chief Financial Officer Robert J. Patrizio brought a proposal to the [C]ommissioners. Sadler said he found that closing the [Community Reentry Center] would save the county $1.4 million to $1.9 million in costs for maintenance, needed equipment upgrades and personnel costs over the next two years."
c. A November 21, 2019 Reading Eagle article stating: The Berks County Commissioners "defended to [Berks County resident Jane Palmer] their decision to close the Community Reentry Center and move the reentry program to the Jail. Commissioner Christian Y. Leinbach said the facility needed work on its elevators, HVAC system, and cameras, and those costs would be avoided with the decision. He added the reentry program would remain the same."
59. On December 19, 2019, Defendants responded to Plaintiffs' memorandum contesting the Plaintiffs' ability to seek prospective relief under 18 U.S.C. § 3626(a)(1)(A) and traditional equitable principles given the changes to the housing policy and arguing the changes render the request moot. Even if the request is not moot, Defendants argue the terms of the proposed permanent injunction fail to meet the requirements of a permanent injunction under 18 U.S.C. § 3626(a)(1)(A).
60. Congress, through the Prison Litigation Reform Act, does not bar prospective relief after Berks County moved the male Trusty inmates to the Jail and took steps to address Plaintiffs' specific challenges to its treatment of male and female Trusty inmates in substantially equivalent manner after our multiple Orders.
61. Berks County's last-minute changes do not moot Plaintiffs' request for permanent injunctive relief.
62. Plaintiffs meet their burden of establishing the four elements for permanent injunctive relief.
63. Plaintiffs' proposed prospective relief, in large part, satisfies the needs-narrowness-intrusiveness requirements of the Prison Litigation Reform Act.
64. After carefully evaluating the substantial weight we afford to an adverse impact on public safety and the operations of the criminal justice system by the entry of proposed prospective relief, we enter permanent prospective relief under the Prison Litigation Reform Act.
65. Plaintiffs fail to show a basis for declaratory relief.
Our remaining issue is whether Mses. Victory and Velazquez-Diaz may obtain prospective relief under the Prison Litigation Reform Act (18 U.S.C. § 3626(a)(1)(A)) and traditional principles of our equitable powers.
We first consider whether the Prison Litigation Reform Act bars the Class claim for prospective relief because Berks County recent decisions to cure the constitutional violation. After careful evaluation, we hold the Prison Litigation Reform Act does not bar entry of prospective relief for the Class against the Defendants under the unique last-minute political decisions at issue in this case.
The Prison Litigation Reform Act identifies the particular findings we must make before granting or approving certain remedies in actions challenging prison conditions:
As defined by Congress, "the term `prospective relief' means all relief other than compensatory monetary damages."
The Act mandates courts to terminate prospective relief "upon the motion of any party or intervener" two years after relief is entered (or one year after a previous attempt to terminate prospective relief) unless "the court makes written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right, extends no further than necessary to correct the violation of the Federal right, and that the prospective relief is narrowly drawn and the least intrusive means to correct the violation."
The question is whether we may enter an injunction under Section 3626(a)(1)(A) against Berks County and its officers after this Court and a jury adjudged them to have violated the constitutional rights of prisoners but Berks County then took steps to cure the unconstitutional conditions before entry of prospective relief. As it appears from the parties' briefing and our research, our Court of Appeals has not yet issued an opinion on this issue. But the parties direct us to a split of authority among circuit courts of appeals who considered the interplay between the mootness doctrine and entering prospective relief under the Prison Litigation Reform Act. The circuit split stems from divergent interpretations of the phrase "necessary to correct the violation of a Federal right" and whether Congress requires finding an ongoing violation of a Federal right before entry of prospective relief.
The earlier approach, taken in 2002 by the Court of Appeals for the Ninth Circuit in Hallett v. Morgan
The prisoners appealed, arguing the district court applied the wrong standard by requiring proof of a "current and ongoing" violation—language used by Congress in the Act's termination provision—when entry of prospective relief under Section 3626(a)(1)(A) does not require a plaintiff to show a "current and ongoing" violation. The court of appeals denied the prisoners' argument, observing "[t]he quoted standard for termination does not differ materially from the standard to be applied in deciding whether prospective relief is proper" and Section 3626(a)(1)(A)—through stating relief must be "necessary to correct"— "requires the existence of constitutional `violation' in need of correction."
We compare this 2002 interpretation to the 2019 approach adopted by the Court of Appeals for the Fourth Circuit in Porter v. Clarke
The Court of Appeals for the Fourth Circuit affirmed the district court, relying on three main points in its reasoning. First, the court of appeals agreed Congress omitting "current and ongoing" from the entry of initial prospective relief is "strong evidence `that Congress did not intend for the `current and ongoing' standard to apply outside of termination.'"
Judge Niemeyer dissented in Porter, drawing on the Court of Appeals for the Ninth Circuit's decision in Hallett by interpreting the phrase "necessary to correct the violation of a Federal right" as requiring an ongoing violation.
Mses. Victory and Velazquez-Diaz argue we should adopt the 2019 reasoning of the Court of Appeals for the Fourth Circuit in Porter, and Berks County argues we should apply the 2002 reasoning of the Court of Appeals for the Ninth Circuit's Hallett decision. Reviewing the arguments on how to best interpret "necessary to correct the violation of a Federal right" in Section 3626(a)(1)(A), we conclude the Porter analysis accurately reflects Congress's purpose of not requiring an active violation of a Federal right to enter prospective relief.
We agree with the Porter majority's textual reading. Congress's use of "current and ongoing" in the termination provision but not in the entry of initial relief indicates Congress did not seek to mandate a party to show an ongoing violation before entry of prospective relief under Section 3626(a)(1)(A). This reading makes practical sense. A party seeking prospective relief under Section 3626(a)(1)(A) has likely only recently proven a defendant violated their Federal rights. Why should the plaintiff have to prove the violation again to be awarded prospective relief?
We are also persuaded the phrase relief "shall extend no further than necessary to correct the violation of the Federal right" cannot mean a "current and ongoing violation" when looking to the termination provision which includes both phrases. As the Court of Appeals for the Fourth Circuit reasoned, reading the "necessary to correct the violation" phrase to mean a "current and ongoing violation" would make one phrase redundant of the other. Also, the termination provision requires a court to issue "written findings based on the record that prospective relief remains necessary to correct a current and ongoing violation of the Federal right [and] extends no further than necessary to correct the violation of the Federal right"
We also find convincing the separation of powers principle relied upon by the Court of Appeals for the Fourth Circuit: if Congress wants to strip the court of its equitable powers, it must do so expressly. There is no express language stripping our equitable powers in Section 3626(a)(1)(A).
Our reading also has a pragmatic benefit: it precludes a defendant who defends the constitutionality of a practice all the way through trial from avoiding the entry of prospective relief by changing the questioned policy (maybe even only on a temporary basis) before prospective relief can be entered. We cannot imagine the Prison Litigation Reform Act—enacted to address frivolous litigation filed by prisoners and to limit indefinite federal court involvement in prison litigation
We find these reasons more persuasive than the reasoning in Hallett. The Court of Appeals for the Ninth Circuit in Hallett found "[Section 3626(a)(1)(A)], too, requires the existence of a constitutional violation in need of correction."
Finding the Prison Litigation Reform Act does not bar Plaintiffs from requesting a permanent injunction, we must then consider whether Berks County's changes to its prison policies moots Plaintiffs' claim under traditional principles of equity. Berks County, citing their decision to move male Trusty inmates back to the Jail on the last business day before trial and other assurances of remedying adjudged constitutional violations in two status reports, argue the request for injunctive relief is moot under traditional principles of equity. We do not agree.
Article III of the U.S. Constitution provides the "judicial Power shall extend to ... Cases ... [and] to Controversies."
Generally, "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot."
Our Court of Appeals decision in DeJohn v. Temple University is useful for evaluating whether a defendant meets the heavy burden of proving an injunction request is moot.
Our Court of Appeals, looking at "the posture of this case," felt "no assurance" the university "would not reimplement its [earlier sexual harassment], absent an injunction, after th[e] litigation ha[d] concluded" and ruled the case was live.
As Judge Smith reviewed the university's assurances in DeJohn, we now review the assurances from Berks County as to whether it will resort to the adjudged unconstitutional policies. We look at the timing of the change and whether the Berks County defended the constitutionality and need for the former policy.
We look first to the timing of Berks County's changes. Ms. Victory sued Berks County in December 2018 alleging the County's policy of housing male Trusty inmates in the Reentry Center and female Trusty inmates in the Jail violated the Equal Protection Clause. Ms. Victory promptly moved for preliminary injunction. Berks County responded by defending its housing policy. We held a full-day hearing in January 2019. Berks County again defended its housing policy at the hearing, arguing male and female Trusty inmates are similarly confined to a limited space. We issued a preliminary injunction one year ago ordering Berks County to provide "the same liberty and freedom of movement provided to male Trusty inmates housed at the Community Reentry Center."
On May 20, 2019, we granted Ms. Velazquez-Diaz's motion for a preliminary injunction ordering Berks County to submit a plan providing her the "the freedom of movement provided to male Trusty inmates at the Community Reentry Center."
If Berks County's counsel discussed this policy with the Commissioners before the November Notice, it was not presented on the record. Berks County instead continued to represent it could redesign the Jail's quarantine unit into a housing unit for female Trusty inmates with substantially equivalent living conditions to male Trusty inmates despite Warden Quigley and Captain Castro repeatedly expressing security concerns with this approach. In briefing cross-motions for summary judgment, Berks County listed the significant security concerns if it created a female housing unit either in the Reentry Center or in the Jail. Berks County did not address moving male inmates out of the Reentry Center. On October 17, 2019, we ruled the totality of differences in the housing policy between male and female Trusty inmates violated the Equal Protection Clause as a matter of law with regards to freedom of movement, access to showers, telephones, microwaves and dayroom, and visitation.
On November 8, 2019, the last business day before beginning the three phase trial, Berks County filed a one-page Notice to "advise that the Berks County Board of Commissioners decided to move the inmates that have been housed at the Berks Reentry Center to the Berks County Jail."
While for slightly different reasons than DeJohn, we find the timing of Berks County's change does not assure us the violation will not recur. In contrast to DeJohn, where the university changed its policy three weeks before the dispositive motion deadline, Berks County changed its housing policy after we found the housing policy violated the Constitution as a matter of law. We cannot disparage Berks County for attempting to comply with the Constitution after we found its housing policy was unconstitutional as a matter of law. But we also cannot consider these changes are permanent when Berks County litigated the case for almost a year without proposing moving male inmates from the Reentry Center to the Jail and then moved male inmates out of the Reentry Center on the last business day before trial on the remaining issues. Berks County did not notify opposing counsel before filing the Notice.
Our Court of Appeals next directs us whether Berks County defended and continues to defend the constitutionality of its earlier housing policy and the need for the housing policy. As addressed above, Berks County defended the constitutionality of its housing and furlough policies throughout the case—through three separate preliminary injunctions, a contempt hearing, multiple appeals to our Court of Appeals, two affirmative motions for summary judgment, defending a motion for summary judgment, and at trial. Berks County submitted affidavits defending the constitutionality of the policy after we issued a preliminary injunction making extensive findings the housing policy violated the Equal Protection Clause.
Berks County, after the change, says it no longer needs to house male inmates in the Reentry Center to ensure safety and security.
Berks County argues this situation is unlike DeJohn and relies on the Court of Appeals for the Eleventh Circuit's decision in Jews for Jesus to argue injunctive relief is moot because it occurred only after Berks County's "substantial deliberation."
We are not bound to follow the Court of Appeals for the Eleventh Circuit in Jews for Jesus. But even under the factors looked to by the Court of Appeals for the Eleventh Circuit, Berks County fails to meet its burden to show mootness. It adduced no evidence of substantial deliberation. Berks County argues "whether to make improvement[s] to the facility or shut the [Reentry Center] was a topic of discussion long before the litigation began."
We are also persuaded by evidence submitted in the present briefing disproving substantial deliberation. Mses. Victory and Velazquez-Diaz attach a Commissioners' Board Meeting Minutes from October 3, 2019 where the Commissioners adopted a resolution authorizing the award of two contracts (for a combined value of $204,476) for the Community Reentry Center "Elevator Modernization Project."
Berks County must prove mootness. Berks County elected not to support its briefing with affidavits of the Commissioners or the County Solicitor describing the deliberations leading to closing the Reentry Center. It instead relies on bare assertions in the briefing. Its say-so is insufficient to meet a heavy burden.
Even if Berks County showed substantial deliberation, the court of appeals in Jews for Jesus also considered whether the policy has been consistently applied. Our record reveals Berks County has attempted to cure the adjudged constitutional violations through changes made in November and December and continues to act in accordance with the changes. But, unlike in Jews for Jesus, Berks County only changed its policies within the past two months and did not swiftly change the challenged policies as the airport did.
Berks County argues we must also consider the presumption of good faith afforded to government entities and officials even if we find it fails to meet its burden of proving mootness. We note although "`government officials are presumed to act in good faith,' courts have concluded that government actors must make a showing that they are entitled to such a presumption when they voluntarily cease allegedly unlawful conduct."
We are persuaded to apply this guidance from other courts of appeals to determine whether Berks County is entitled to a good faith presumption. We just considered the first two factors. For the reasons already stated, neither weighs in favor of granting a good faith presumption to Berks County. We are not convinced Berks County substantially deliberated in closing the Community Reentry Center and the policy has only been applied since November.
We next consider whether the policy changes are broad in scope and unequivocal in tone. The policy changes are rather broad: Berks County closed the Reentry Center, moved all male inmates to the Jail, and changed various facets of its furlough policies. Berks County submitted status reports detailing male Trusty inmates are now housed in similar living conditions to female Trusty inmates in the Jail. The status reports detail changes to the furlough program, including ceasing a male only orientation where Berks County staff provided male Trusty inmates with pre-filled Partial Confinement Reentry Orders. The status reports are detailed. But we do not see an unequivocal tone the policy will continue. We are mindful Commissioners made the decision to move male Trusty inmates,
We next consider whether the policy changes could be easily abandoned or altered in the future. This review is two-fold: we must consider the housing policy changes and the changes to the Jail's furlough policy. First, as demonstrated by the November 8, 2019 Notice to the Court, Berks County can rather easily move prisoners between the Jail and Reentry Center. The November decision did not seem subject to public input or extensive review by Jail personnel; Warden Quigley only counselled the Commissioners on the "pros and cons" and "feasibility" of moving prisoners.
The fifth factor—whether defendant unambiguously terminated the unlawful conduct—is contested by the parties. Berks County argues their changes address adjudged constitutional violations; Mses. Victory and Velazquez-Diaz argue the changes give rise to new constitutional concerns. Our review of the status reports and the November 15, 2019 permanent injunction transcript reveals the adjudged constitutional violations have been addressed but cannot say, based on the current record, Berks County has unambiguously terminated the unlawful conduct. Sixth, we look to sworn statements. We have no affidavit from Berks County swearing to continue the new policy beyond this litigation.
The balance of these factors compel our finding Berks County is not entitled to a good faith presumption. Berks County staunchly defended its housing policy throughout this case. In doing so, it did not propose closing the Community Reentry Center as a male housing unit, despite us raising this distinct possibility during a July 2019 hearing. Berks County appealed each injunction ruling to our Court of Appeals and did not change its housing policy until the last business day before our four-day trial. After over 300 docket entries, a four-day trial, and multiple injunction hearings, we cannot award a good faith presumption to Berks County for changing policies only after the policies were adjudged to be unconstitutional as matter of law.
Mses. Victory and Velazquez-Diaz argue a permanent injunction is warranted to ensure Berks County does not resume its unconstitutionally discriminatory treatment of members of the Class by affording better treatment to Trusty men than Trusty women housed in the Jail. Berks County argues we should not enter an injunction because it is "an extraordinary remedy, which should be granted only in limited instances."
In assessing whether injunctive relief is appropriate, we must consider whether:
We review each element to determine whether Mses. Victory and Velazquez-Diaz meet their burden to prove the requirements of a permanent injunction.
The first element is whether Mses. Victory and Velazquez-Diaz can prove actual success on the merits. Mses. Victory and Velazquez-Diaz argue they proved constitutional violations as a matter of law on summary judgment and to a jury on the issue of access to furlough. Berks County concedes, for the purposes of this Motion only, Mses. Victory and Velazquez-Diaz succeeded on the merits. Mses. Victory and Velazquez-Diaz meet this element.
We next look to whether Mses. Victory and Velazquez-Diaz can show irreparable injury. Mses. Victory and Velazquez-Diaz, on behalf of the Class, established the pre-November 8, 2019 housing conditions and the pre-December 2, 2019 policies regarding access to furloughs violated the Equal Protection Clause and, as such, made a clear showing of irreparable harm if the conditions returned in whole or in part.
Discrimination on the basis of sex demonstrates irreparable injury:
"Deprivation of constitutional right alone constitutes irreparable harm as a matter of law, and no further showing of irreparable harm is necessary."
Berks County argues, because of the changes made since being adjudged to have violated the Equal Protection Clause, Mses. Victory and Velazquez-Diaz can no longer show the Class suffers irreparable harm. We extensively analyzed this argument above by finding Berks County fails to show no reasonable probability of recurrence. We incorporate our analysis in finding Mses. Victory and Velazquez-Diaz show a reasonable probability the constitutional violations could recur. Given the possibility of recurrence, we conclude Mses. Victory and Velazquez-Diaz show irreparable injury.
We next consider whether Mses. Victory and Velazquez-Diaz can show the balance of the hardships weigh in favor of awarding injunctive relief. Mses. Victory and Velazquez-Diaz argue deprivations of their constitutional rights outweigh harm alleged by Berks County.
The entered injunction does not compel Berks County to change the purported status quo. Berks County will not need to conduct new security evaluations. The injunction only prevents Berks County from returning to the pre-change conditions. We only order Berks County to remedy adjudged constitutional violations by providing substantially equivalent treatment. We also do not see why Berks County would have to propose any change to us; it would only have to bring to our attention any changes affecting the minimally intrusive injunction. While the injunction may impose minimal hardship to Berks County, female Trusty inmates would suffer great hardship if Berks County returned to adjudged unconstitutional living conditions. We find Mses. Victory and Velazquez-Diaz meet this element.
The fourth element is whether the public interest is disserved by an injunction. Mses. Victory and Velazquez-Diaz argue the public interest "clearly favors the protection of constitutional rights."
Mses. Victory and Velazquez-Diaz seek a permanent injunction governed by the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A). Our Court of Appeals instructs we "cannot `grant or approve any prospective relief unless [we] make the needs-narrowness-intrusiveness findings."
We first consider whether the terms of the injunction proposed by Mses. Victory and Velazquez-Diaz meet the needs-narrowness-intrusiveness requirements. We then give substantial weight to any adverse impact on public safety or the operations a criminal justice system caused by any considered relief.
Mses. Victory and Velazquez-Diaz propose an injunction containing eight different terms. The proposed terms address:
We must make findings as to the needs-narrowness-intrusive for each term of the proposed injunction.
The first two terms of the permanent injunction proposed by Mses. Victory and Velazquez-Diaz request we order Berks County to:
Mses. Victory and Velazquez-Diaz make similar arguments for why these two proposed terms meet the needs-narrowness-intrusiveness test, arguing the terms are: (1) necessary because our October 17, 2019 Memorandum found unconstitutional differences in the amount of time male Trusty inmates enjoyed out of their cell with access to privileges such as phones, microwaves, and showers compared to female Trusty inmates; (2) narrowly drawn because they are limiting the proposed term to the core unconstitutional findings; and, (3) the least intrusive means because the terms do not order Berks County to do anything beyond what they already say they are doing in its status reports. Berks County argues these terms are not the least intrusive means necessary because they require identical treatment rather than substantially equivalent treatment.
As we explained throughout this litigation, Berks County does not need to treat male and female Trusty inmates identically.
We must make needs-narrowness-intrusiveness findings based on the extensive record before us. In other words, we cannot be blind to the reality of living conditions at the Berks County Jail when making these findings. The Berks County Jail consists of—or at least formerly consisted of—two facilities: the Reentry Center and the Jail. The Reentry Center, as currently constructed, requires inmate cells to remain unlocked for eighteen hours because of communal bathrooms. The unlocked cells also enable inmates to access the dayroom, phones, microwaves, and showers. Male Trusty inmates, however, no longer reside in the Community Reentry Center. Both male and female inmates reside in the Jail. Male and female Trusty inmates living conditions in the Jail are very similar, at least according to Berks County's status report. Our parity calculation is based on a situation where male and female Trusty inmates are similarly housed.
Based on this context, we agree with Berks County the language in proposed terms (a) and (b) are overly intrusive and not necessary to correct the violation of the female Trusty inmates Federal rights. If we were to require the "same amount of time each day" or "equal access," we would be ordering more than the Equal Protection Clause requires. We can only order substantial equivalence.
But we find if we replace "same amount of time each day" and "equal access" with "substantially equivalent," then the proposed terms meet the needs-narrowness-intrusiveness findings.
Berks County's only specific objection to these proposed terms is language requiring identical treatment. We agree with this objection, but we find these proposed terms otherwise meet the Prison Litigation Reform Act's needs-narrowness-intrusiveness requirements. We enter prospective relief under 18 U.S.C. § 3626(a)(1)(A) on these proposed grounds, with slight modifications, in the accompanying Order.
Mses. Victory and Velazquez-Diaz's proposed third term of the permanent injunction reads Berks County shall:
Mses. Victory and Velazquez-Diaz argue this term meets the Prison Litigation Reform Act's needs-narrowness-intrusiveness standard because: (1) it is necessary to correct the unconstitutional differences in visitation conditions found as a matter of law in our October 17, 2019 Memorandum; (2) it is narrowly drawn to address the findings we made in ruling visitation conditions violated the rights of female Trusty inmates; and, (3) it is the least intrusive means because it does not order Berks County to do anything beyond what they are already doing. Berks County responds arguing this injunction addresses conditions of visitation, such as the "length of visits" and "frequency of visits," not part of this litigation.
We again observe prospective relief must be "necessary to correct the violation of the Federal right."
Otherwise omitting these conditions from the proposed term on visitation, we find the proposed term meets the needs-narrowness-intrusiveness requirement required for entry of prospective relief. The proposed term—mandating substantially equivalent visitation conditions—is necessary as a matter of law because of the adjudged violation of female Trusty inmates' constitutional rights. It is narrowly drawn. It only affects visitation conditions and specifically addresses physical barriers. It is the least intrusive means. Berks County states it is already offering substantially equivalent visitation conditions for male and female Trusty inmates. While we must omit the conditions "the length of visits" and "the frequency of visits," we find this term otherwise meets the needs-narrowness-intrusiveness findings of the Prison Litigation Reform Act and include the term in our accompanying Order.
Mses. Victory and Velazquez-Diaz propose four terms addressing the unconstitutional access to furlough found by the jury during our November 2019 trial. The difficulty with determining the needs-narrowness-intrusiveness of these proposed terms is the jury decided the unconstitutionality of Berks County's access to furloughs. Of course, they did not issue specific findings as to why they reached this verdict. Nevertheless, we attempted to summarize the elicited facts during trial and determine whether the adduced evidence supports the proposed terms for the permanent injunction.
Mses. Victory and Velazquez-Diaz first propose Berks County shall:
Mses. Victory and Velazquez-Diaz argue this term is: (1) necessary to correct a violation of federal rights regarding access to furloughs; (2) narrowly drawn because it is based on evidence presented at trial showing unequal information about furloughs; and, (3) minimally intrusive because Berks County is already revising the Inmate Handbook. Berks County argues this is not minimally intrusive because it requires Berks County to insert its furlough policy into the Inmate Handbook so, if there is ever a change to furlough, it will need to change, reprint, and redistribute many copies of the Inmate Handbook. We agree with Berks County this term is overly intrusive and decline to compel Berks County to revise the Inmate Handbook in this way.
We do, however, accept Mses. Victory and Velazquez-Diaz's argument the evidence presented at trial showed male Trusty inmates received greater access to information about furlough than female Trusty inmates. We agree Berks County must be compelled to provide substantially equal information to both sexes. Berks County states in its status report:
We inspect whether this proposal meets the needs-narrowness-intrusiveness requirements to determine whether to compel Berks County to continue to follow this system. We find it is necessary to correct the violation of a Federal right. The evidence adduced at trial established female Trusty inmates received less information about rights once obtaining Trusty status than male Trusty inmates living in the Reentry Center. The term is narrowly drawn. It addresses the demonstrated imbalance by compelling Berks County provide each Trusty inmate with a uniform Memorandum. It also minimally intrusive. We are mindful the adjudged constitutional violation stemmed from unequal access to furlough. We cannot compel Berks County to offer furlough to inmates. We can only compel Berks County, if it decides to continue to offer furlough, to provide both sexes similar information about privileges within the Jail. This system notifies Trusty inmates "they may also be eligible for work release and furloughs" and places the onus on the inmate to discuss those privileges with the unit counselor.
Mses. Victory and Velazquez-Diaz next seek to compel Berks County to:
Mses. Victory and Velazquez-Diaz argue this term is: (1) necessary because the jury found Berks County provided unequal access to furlough; (2) narrowly drawn because it is based on evidence at trial showing Berks County assisted male Trusty inmates complete the Reentry Order but did not similarly assist female Trusty inmates; (3) minimally intrusive because Berks County would only have to collect orders and submit to the correct sentencing judge for the judge's signature. Berks County argues this requirement is very intrusive. We agree with Berks County.
We find the minimally intrusive method of addressing this violation is again proposed in Berks County's status report stating: "As of November 11, 201[9], a [Partial Confinement Reentry Order] will be submitted to the sentencing judge on a case by case basis after a given [T]rusty inmate meets the criteria for and requests a home furlough."
Mses. Victory and Velazquez also propose Berks County shall:
Mses. Victory and Velazquez-Diaz argue these terms are: (1) necessary because the jury found Berks County provided unequal access to furlough; (2) narrowly drawn because of evidence demonstrating a work release job is a prerequisite for a furlough and Trusty men were given more information about potential job opportunities than Trusty women; and, (3) minimally intrusive because it does not require Berks County do anything more than they are already doing. Berks County responds these policies are not necessary because the evidence adduced at trial showed Berks County already did both of these things before this litigation. We agree with Berks County. The purpose of the injunction is to compel Berks County to remedy previously unconstitutional conditions of confinement, not to compel Berks County to continue policies treating the sexes substantially equivalent. We decline to enter either terms in the accompanying Order.
The eighth proposed term in Mses. Victory and Velazquez-Diaz's request states:
Mses. Victory and Velazquez-Diaz do not support this proposed term with the needs-narrowness-intrusiveness in their briefing. Berks County argues this term does not correct the violation of a Federal right and is not narrowly drawn because it requires Berks County inform us of continued compliance.
We agree with Berks County. This reporting requirement does not directly remedy any of the adjudged constitutional violations. It is not necessary. It is also intrusive as it mandates Berks County keep track of approval for each Trusty inmate. The ordered injunction allows the Trusty inmate to pursue a furlough after receiving substantially equivalent information. We decline to order Berks County to comply with this intrusive requirement.
As addressed above, we find the following injunction meets the needs-narrowness-intrusiveness requirements to enter prospective relief under the Prison Litigation Reform Act:
Berks County and each Defendant shall:
But we cannot enter this permanent injunction until we "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief."
Today's Order poses no adverse impact on public safety or the operation of Berks County's criminal justice system. In this injunction, we do not order Berks County to adopt a policy which it has significant public safety concerns, such as the expressed concerns with moving female Trusty inmates into the Reentry Center or repurposing the Jail's quarantine unit into a female Trusty housing unit. Throughout the litigation, Berks County argued the Jail is the most secure facility for female Trusty inmates. It now also houses male Trusty inmates in the Jail under similar conditions and is compelled to continue to offer substantially equivalent freedoms. Berks County does not alert us to safety concerns—i.e., overcrowding—with the new policies. The ordered furlough requirements are all based on Berks County's status report. Berks County expressed no security concerns with these already enacted policies. We also do not see significant adverse impact on the operation of the Berks County Jail.
We only compel Berks County to follow policies already in place. These policies, while potentially offering less freedoms to certain inmates than before this litigation began, do not adversely impact the operation of Berks County's criminal justice system.
Mses. Victory and Velazquez-Diaz seek a declaratory judgment to discourage Berks County from reenacting similarly discriminatory practices relating to freedom of mobility, access to privileges and furlough, and visitation conditions. Berks County argues we should not enter a declaratory judgment because declaratory relief is prospective in nature and our declaration would be based on past prison conditions already found (by this Court or by a jury) to violate the Constitution.
Our Court of Appeals instructs because "a declaratory judgment is to declare the rights of litigants, it is `by definition prospective in nature.'"
Despite Berks County reporting significant changes in the manner in which it houses male Trusty inmates, Mses. Victory and Velazquez-Diaz are concerned, after over a year of contentious litigation, Berks County will resume deemed unconstitutional policies treating male Trusty inmates more favorably unless we enter a permanent injunction against the County. We consider whether the significant changes mooted Mses. Victory and Velazquez-Diaz's claim for a permanent injunction under the Prison Litigation Reform Act and traditional principles of equity. We find the Prison Litigation Reform Act does not require an active or ongoing constitutional violation to enter prospective relief, and we rule the claim is live under traditional principles of equity because of a reasonable probability of recurrence. We find Mses. Victory and Velazquez-Diaz meet the four traditional requirements of a permanent injunction. We considered whether their requested injunction meets the needs-narrowness-intrusive requirements of entering prospective relief under the Prison Litigation Reform Act and hold certain proposed terms, with slight modifications, meet the needs-narrowness-intrusive requirements while others did not. We weighed whether terms meeting the needs-narrowness-intrusive requirements place any adverse impact on Berks County's public safety or the operations of its criminal justice system and find none. We deny Mses. Victory and Velazquez-Diaz's request for a declaratory judgment as our October 17, 2019 Memorandum and the jury's November 14, 2019 verdict already declare female Trusty inmates rights as matter of law. In the accompanying Order, we enter a permanent injunction against Berks County.
Id. Senator Abraham later stated: "Our bill forbids courts from entering orders for prospective relief (such as regulating food temperatures) unless the order is necessary to correct violations of individual plaintiffs' Federal rights. It also requires that the relief be narrowly drawn and be the least intrusive means of protecting the Federal rights. And it directs courts to give substantial weight to any adverse impact on public safety or the operation of the criminal justice system caused by the relief." Senator Abraham concluded: "This is a balanced bill that allows the courts to step in where they are needed, but puts an end to unnecessary judicial intervention and micromanagement." Id. (emphasis added).
