*1 option lessee an to demolish the build-
ing, but did not mandate it. Since the
trial court found as a matter of fact building
that had no fair market separate adjusted
value and hence no
basis, finding we hold to be not
clearly erroneous, it treated the issue as agree.
moot. We Even under the con- urged
struction law
taxpayers,9 there be no loss to de- would adjusted
duct since the building was to be zero. “A court found empowered ‘declare,
is not for the government cases, principles of future
or rules of which cannot law affect thing result as to the in issue in the Craighead,
ease before it’.” v. Caldwell 1970). 432 F.2d Cir.
Accordingly, judgment of the dis- appel-
trict court is affirmed. Costs
lee.
Grady al., Appellees, D. et KERSH BOUNDS,
V. Lee Commissioner of Cor- rections, al., Appellants. et
Nos. 73-1579.
United Appeals, States Court Fourth Circuit.
Argued Feb. 1974. July 25,
Decided
1974.
tually mandatory,
permit
regulato
but
nevertheless
take a more
view
restrictive
during
ry
ted
language,
tlie
holding
lessee
tlie term of tlie
the lessor
lease,
produced
split
has
in the
take
circuits.
the demolition loss where demolition
permitted
Seventh
mandatory
Circuit
Landerman
Com
lessee is
Revenue,
missioner of Internal
454 F.2d
under
the terms of the lease. As the issue
(1971),
Eighth
properly
us,
and Circuit
in Foltz v.
is not
we can not
before
take
States,
(1972),
position
proper
United
Greensboro, brief), for N. on lees. Judge, BRYAN, Before Senior Circuit WIDENER, Circuit
and BUTZNER Judges. Judge:
WIDENER, Circuit brought under 42 U.S.C. This suit was indigent three inmates § Department of Correc- against (Department) the Correc- tion Department and the tion Commissioner of the Board of Commissioners members Counties, and Polk North Car- Gaston alleged prisoners that the de- olina. The prisoners had treated in safe- fendants keeping safekeepers, status, called nor- mally prisons county county housed in regular expense, differently in- from the mates under Department and control of requests for insofar as elective, medical services non-essential They safekeep- say are concerned. ers had cruel and unusual thus suffered Eighth punishment in violation of the Amendment and that discrimination ran the Fourteenth Amendment afoul of Equal The case was Protection Clause. jury, tried, stipulations of without a concluding fact, the district court prove un- did not cruel and punishment, usual that the state had no rational for such classification basis among prisoners, Equal and violated the doing. The de- Protection Clause were ordered not to treat fendants safekeepers differently any generally, matter from other plaintiff and each was awarded $1.00 damages. Because we conclude nominal a rational for its that the state has action, Equal no Protec- and there was violation, Atty. Gen., tion we reverse. Safron, N. Asst. Jacob L. C., Morgan, Atty. Gen., N. (Robert C. safekeeper category of is a One C., Bowen, Rutherfordton, N. M. James oner to a term who has sentenced County defendants, Atty., for Polk longer thirty imprisonment for than Charlotte, C., III, Aycock, N. B. Frank appealed conviction, days, has defendants, County Atty., for Gaston pending has not on bail been released brief), appellants. safekeeper appeal. may also A pending Greensboro, held Such James, trial. N. C. J. David generally jails county and the Greensboro, held (Norman Smith, N. C. B. maintaining paid prisoner Smith, counsel], [Court-appointed prisoner Curtis, was where Carrington, Patterson, & Follín (on County, plaintiff pending appeal Price loan from Safekeepers held tried. may transferred, trial) ex- of Florida as a matter course, Department amined doctors on June in accordance slight and found have a other umbili- with N.C.G.S. § cal hernia. The county prisoner if may be transferred not, judgment, necessary safety did or to staff believe for his considered *3 any and, peace. necessary, treatment was at a N.C.G.S. § avoid a breach subsequent Depart- any event, examination on December the 153-189.1.1 expenses of no hernia was found. for the ment is not liable they maintaining have until convicts Kersh, safekeeping Plaintiff while on by Department authorities been received pending appeal, May 5, was examined on and, of the sentence since execution 1971 and found to have 20-25 vision. stayed pending appeal automatically un- He was found not to be in immediate 15-184, safekeepers are der N.C.G.S. § glasses given any. need of and was not serving regarded the in sentences again Kersh was 4, examined on November Department system appeals until perfect 1971 and was found to have county responsible is The are decided. (20/20) vision at time. by Department for the safe- the billed keepers Rogers safekeeper Plaintiff was a by Department for the held the pending appeal who, examination, on county. See also N.C.G.S. 148-4 §§ eyeglasses found was to need corrective stipulated parties that an The 148-29. (there allegation and false teeth is no he average of 140 North Carolina either). did not come to without custody safekeeping status in the are on request refused, His for same was given time, Department at eyeglasses he received both and false average stay person of a on and that the teeth in the fall of when convic- safekeeping is five months. status reg- tion was affirmed and he became a average stay felony prisoners in the of ular inmate. system slightly Department years, stipulated that, than four and one-half and misde- It was had these slightly regular pris- meanants more than ten months. oners been members of the population safekeeping other than in catego- Department medical staff physical status when these minor pairments im- being rizes inmate medical services as exist, they were found to emergency, routine, or elective. Emer- provided would have been with the medi- given gency and routine medical care is appliances, cal attention or corrective county prisoners, to all state and ing safekeepers, includ- complained lack of of. the which is (i. while elective e., that which to the safe- essential argued that effect It is the keeper’s poses immediate welfare and the order court has of the district been given limb) no threat to life or De- applicable to declare the partment expense only prisoners in unconstitutional, and that a statutes three-judge Department who are not have con court should safekeeping status. vened to hear the case. This contention plaintiffs The three were all on safe- only merit, has no for the here issue keeping status, Department held at a pattern practice of concerned the or prison, filed, at the time this suit was treating safekeeper state officials in subsequently regular and all became in- prisoners. prisoners different from other general custody mates under the allega It is well-settled that the when Department. control of the unconstitutionality goes the tion of safekeeping pending While on status result obtained use at statutes trial, being Department by unconstitutional, three-judge held the tacked as Superior g., order of required. Court of Gaston Turner court E. February 1, 1974,
1. Effective
N.C.G.S. 162-39.
§
n.
alike and
Fouche,
353-354
alike,
opinion
(1970).
treated
we are of
there is
532, L.Ed.2d 567
90 S.Ct.
equal protection violation. The
no
fact
viewed
issue
court
The district
county
that some
any justi-
being
there is
whether
here as
Department prisons is not of constitu-
being treated to
for inmates
fication
significance nor
the fact that
tional
care be-
of medical
different standards
expense
to bear
continues
being paid for
those services
cause
by
prisoners.
of those
govern-
divisions
different
assuming,
county,
however,
the dis
Even
safekeepers
ment,
holding
plain-
court
correct
found that
trict
its
It
the state.
others
Department of
proved
and unusual
Carolina
cruel
that the North
had not
tiffs
punishment,
constitutionality
category
only
only
Correction
prisoners,
practice
maintained the
all
which must include
physical custody
Department,
of medical
two standards
*4
Equal
court
Protection
prisoners
would still be no
considered
there
here.
argu-
impressed
that disci
State’s
violation. “There is no doubt
with the
safekeeping
only
pline
deten
lasted
and
of state
status
administration
ment that
They
time,
require providing of
are state functions.
to
tion facilities
a
and
short
only
authority
subject
a nui-
care would be
are
to federal
elective medical
sance,
inconvenience,
paramount
and
federal constitutional
where
administrative
statutory rights supervene.”
money. The or
Johnson
would
the state
Avery,
747,
483, 486,
distinction between v.
89
said
393 U.S.
S.Ct.
court
that this
(1969).
prisoners,
749,
instru-
The consti
based on which state
589
did
cal
concerned
both reasonable
not have
care is
this unessential
were,
free
from constitution
neverthe-
rational
it outside the
infirmity.
less,
al
their crimes un-
able
commit
inconveniences,
hindered
nothing
sum,
find
we can
arbi
average,
which,
would have to
on the
trary, capricious or
in this
irrational
only
for treatment.
five months
wait
procedure.
Supreme
state
As
Court
Maryland,
Carolina has
stated in
366 U.S.
think that North
McGowan v.
We
1101, 1105,
providing
L.Ed.
law
S.Ct.
rational
for
(1961),
upkeep
pay
2d 393
constitutional safe
shall
for
“[t]he
counties
only
guard
if
offended
the classifica
prisoners
of confinement
terms
whose
grounds wholly
tion
irrelevant
and have not
rests
are uncertain
become
objec
fixed,
subject
re-
achievement
State’s
to immediate
who are
County
tive.”
This
such a
case.
turn to
Sheriff
Although
context,
physical
ordinarily
in a
we
set
different
in the
custo-
who are
county.
language
think the
Ross
dy
court
of a
see
Sheriff
Moffitt,
600, 611,
nothing
pay-
94 S.Ct.
the State
irrational about
(1974),
care,
ing
L.Ed.2d
in its
and coun-
care,
persuasive:
“Despite
tendency
of all
paying
in their
ties
rights
although
‘to declare themselves absolute
such latter
logical extreme,’
obvious
temporary
there are
ly
beyond
protec
equal
limits
which the
basis.
analysis may
pressed
tion
not be
without
*5
admittedly
plaintiffs
note that the
doing
principles recognized
to
violence
both routine
have been furnished with
in
decisions of this
other
Court.
emergency
to
care. Failure
and
medical
Amendment
not
re
Fourteenth
‘does
elective
furnish
other and additional
quire
equality
equal
precisely
or
absolute
care,
not
to
is
essential
advantages’.
Nor
[Citation omitted]
the immediate welfare
require
‘equalize
it
does
the State
eco
to
poses no
to
lack which
threat
and the
of
And, referring
nomic
to
conditions’.”
limb,
think is
do not
irration
life or
we
equal protection
question
the
there
seriously
may
contended
al.
It
not be
attorneys
presented (State appointed
any prisoner
for however
detained
indigents
appeals),
discretionary
in
the
period
to have all his
entitled
short
is
question
not
court continued:
“The
performed
needed
elective
degrees.”
absolutes,
of
but one of
custody,
it
in
not
612,
prisoner erroneously has been for a new
he or remanded released which the the medical care trial without during provide his refused to state prop-
wrongful If he was incarceration. erly convicted, the care to receives he entitled
which he would have been appealed. place
first had he prisoner de
I would hold that
prived process of law 'when due poli pursues legitimate state otherwise cies in a manner that is calculated right unnecessarily appeal.
burden
Furthermore, there is no rational nexus right of this
between exercise prisoners for classification of state’s purposes. on a
medical right Encumbrances important appeal must trifling
justified than
and administrative inconvenience shown I would affirm also record. opin the reasons stated the excellent judge.
ion of the district Kersh v. *6 (W.D.N.C. F.Supp.
Bounds,
1973). DUBA, Appellant,
Edwin al., Appellees. et
W. Don McINTYRE
No. 73-1724. Appeals, Court of
United States Eighth Circuit. March
Submitted 1974. July 18,
Decided 1974. 1969) (refusal 1971) (refusal incar to credit Cir. to credit time served Cir. sentence). pending appeal pending appeal ceration commutation of life towards sentence) ; Carolina, North 419 F.2d Cole v.