James E. SWEET, Appellant, v. SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, Director William D. Leeke, Appellee.
No. 74-1118.
United States Court of Appeals, Fourth Circuit.
Argued April 8, 1975. Decided Dec. 1, 1975.
529 F.2d 854
The majority, in the course of its opinion, recognizes other “specific articulable facts” but does not rely on them on p. 8 as supporting “reasonably warranted suspicion.” These are:
- close proximity (approximately 50 feet) from the border, see Patterson, 492 F.2d at 996;
- the experience of the agents that the use of a nearby load car was common modus operandi in smuggling female aliens, see Patterson at 997;
- Portillo-Reyes’ response that he was a citizen of El Salvador; and
- the agents’ prior knowledge that the three female aliens were El Salvadorian.
When these facts, albeit individually not suspicious, are combined with those identified in the next preceding paragraph, I conclude that “in the [district court‘s] decision as to reasonableness the fundamental—i. e., constitutional—criteria have been respected.” Ker, 374 U.S. at 34, 83 S.Ct. at 1630. I also conclude that here “a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.” Patterson, 492 F.2d at 997.
I would affirm.
Emmet H. Clair, Asst. Atty. Gen. of S. C. (Daniel R. McLeod, Atty. Gen., and Stephen T. Savitz, Asst. Atty. Gen. of S. C., on brief) for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER,
DONALD RUSSELL, Circuit Judge:
This action sought both injunctive and monetary relief under the provisions of
The plaintiff is serving a sentence imposed in 1967, following a plea of guilty to the crime of statutory rape. He had earlier served a sentence for a similar crime, i. e., assault of a “high and aggravated nature—attempt to ravish.” As a repeat sex offender, he was incarcerated in the Central Correctional Institution for service of his sentence, since it was the policy of the Department of Corrections not to place sex offenders in “any minimal security institutions.” After commitment, the plaintiff, according to the testimony of the prison authorities, was a “constant problem.” He had been placed on several occasions in administrative segregation in Cell Block 3, prior to being confined in Cell Block 2. The reasons for such segregation do not appear in the record. The difference between the conditions of confinement in the two Cell Blocks, as described by the plaintiff, is that the inmates in Cell Block 3 “gets [sic] to go in the general population” while those in Cell Block 2 may not. The plaintiff‘s transfer to Cell Block 2 occurred in April, 1968, and followed a prison riot at the Central Correctional Institution. The record is somewhat obscure on the plaintiff‘s connection with that riot. He testified at the trial in District Court that at that time he was in Cell Block 3 but, during the day, he had been detailed to cut grass in the prison compound yard. While the plaintiff was proceeding down a walkway between two fences for the purpose of putting up his lawnmower, he was apparently accosted by, or noticed some inmates with knives. Whether the plaintiff was threatened by these inmates or whether he merely reported his observation to the prison guards is unclear. In any event, according to the plaintiff, prison guards observed the incident and “they came in there, you know, and they got those guys * * *.” The punishment of “those guys” apparently inflamed the other inmates and a riot began, during which threats were freely made against the plaintiff. The reason for the threats, as stated by the plaintiff, was “[B]ecause [the other inmates] thought that [Sweet] told on them down there.” Earlier, in State Court proceedings, he gave a somewhat different story. He indicated that he may have been an informer in connection with the riot and that, as a result of actions taken against those involved in the riot, he was subjected to threats of serious bodily harm. At the trial in the District Court, as we have already noted, he gave no such account. Perhaps the reason for the difference in the two accounts was that, in the State Court proceedings, he was testifying in a closed, private hearing and in the trial in the District Court, on the other hand, he was publicly testifying. In the former case, he did not fear that his admission would be known publicly but in the latter case, such admission, if made, would be known publicly. Whatever may be the true version, however, it is clear that the plaintiff became the object of threats generally from his fellow inmates. Because of these threats the plaintiff requested that he be placed in segregated confinement in Cell Block 2. Nor does the plaintiff by this action seek release from segregated confinement in Cell Block 2. He freely concedes the propriety of his segregation from the general prison population; in fact, he expressly declares in his brief in this Court that he “does not suggest that he has been wronged by
To restate it, then, the issue presented by the plaintiff is not the constitutional validity of segregated confinement. As we have already observed, he is not objecting to being placed in segregated confinement in Cell Block 2; his complaint as he phrases it in his brief, was in being “subjected in administrative segregation to the same treatment as that of those punitively segregated.” And, in order to secure this different treatment, he sought certain additional privileges, or, to use his own words, to obtain “a little more privileges in CB-2.”4 And he specifically identified both in his testimony and in his brief in this Court, the additional privileges he sought and only sought by his action. He testified that what he sued to secure was “the opportunity to have more food and more exercise time, and at least three showers a week anyhow.” At another point in his testimony, he said that his complaint against the prison authorities was their failure to offer him “an opportunity to work and get more food and take more showers.” In his amended complaint, however, he had been more
In assessing the right of the plaintiff to these additional privileges, it must be kept firmly in mind that “[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system,” Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (quoting from Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948)), and that “[F]ederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). The problems of prison management have been properly described as “complex and intractable, * * * not readily susceptible of resolution by decree,” a fact which finds expression in “a broad hands-off attitude toward problems of prison administration” as adopted “[t]raditionally,” by “federal courts.” Procunier v. Martinez, 416 U.S. 396, 404, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). After all, “courts possess no expertise in the conduct and management of correctional institutions.” Finney v. Arkansas Board of Correction, 505 F.2d 194, 200 (8th Cir. 1974). Because of this want of judicial expertise, “prison officials must be accorded latitude in the administration of prison affairs,” Cruz v. Beto, supra, 405 U.S. at 321, 92 S.Ct. at 1081; Frazier v. Ciccone, 506 F.2d 1022, 1024 (8th Cir. 1974), and their judgments are entitled to “great weight,” Ross v. Blackledge, 477 F.2d 616, 618 (4th Cir. 1973); Gardner v. Joyce, 482 F.2d 283, 285 (5th Cir. 1973), cert. denied 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973); Burke v. Levi, 391 F.Supp. 186, 189 (E.D.Va. 1975). Particularly, “[W]here state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.” Procunier v. Martinez, supra, 416 U.S. at 405, 94 S.Ct. at 1807. Courts are accordingly limited in their exercise of power in this area to deprivations which represent constitutional abuses and they cannot prohibit a given condition or treatment in prison management unless it reaches the level of an unconstitutional deprivation. It has been well said that “[C]ourts encounter numerous cases in which the acts or conditions under attack are clearly undesirable and are condemned by penologists, but the courts are powerless to act because the practices are not so abusive as to violate a constitutional right.” Note, Decency and Fairness: An Emerging Judicial Role in Prison Reform, 72 Va.L.Rev. 841, 843 (1971).
This does not mean that courts must never intervene in prison administration. Recent decisions have repeatedly affirmed that a prison inmate is not stripped of all rights during incarceration. Subject to the legitimate requirements of prison discipline and security, he retains his constitutional rights to due process, to equal protection and to protection against “cruel and unusual punishment,” as guaranteed by the Eighth Amendment5—rights which are binding on the states.6 In particular, a prison
Applying these principles, both courts and prison administrators have established standards to be observed in segregated confinement such as that of the plaintiff, if constitutional requirements are to be met. Both recognize that the conditions of solitary or segregated confinement must be measured against what the Supreme Court has termed “the evolving standards of decency that mark the progress of a maturing society” and that the orthodox terms in this area of the law, such as “barbarous” and “shocking to the conscience“, must take into account and be given effect in the light of the changing concepts of civilized conduct and treatment. Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). The conditions, so established, will inevitably represent some reasonable balancing of the legitimate rights of the prisoner and the necessary concern and responsibility of the prison authorities for security and order.9 In meeting these standards and in achieving this balance, the United States Bureau of Prisons “require[s] that ‘the quarters used for segregation shall be well ventilated, adequately lighted, appropriately heated and maintained in a sanitary condition at all times‘.”10 Court decisions are somewhat more specific in their exposition of these “evolving standards“, as they apply to segregated confinement. As summarized in a comment on Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), which is the leading case in this area, the Courts have declared that while the conditions of segregated confinement “may be harsh and unpleasant,” they must meet “basic sanitation and nutrition” requirements.11 The commentator adds that “[I]nadequate lighting, ventilation, heating, cleaning, bedding, nutrition, medical care, or opportunities to wash are all factors which bear on a
Turning from these principles and considering the plaintiff‘s specific claims, it will be observed that nowhere, either in his complaint or in his testimony, does the plaintiff claim that his cell failed to meet reasonable sanitary standards, was inadequately heated, was not provided with proper lighting or ventilation; nor does he complain that he is denied proper bedding or that he has been subjected to any cruel treatment at the hands of the prison officials. Conditions in “strip cells” or in the “hole,” as those terms are used in the prison context, are irrelevant to this case. We are not concerned with such conditions and the plaintiff, by the silence of his claims on such point, concedes this. As a matter of fact, some of the complaints he actually specified in his complaint he apparently conceded were too unimportant to be pressed and he did not refer to them in his testimony at trial. He did not testify, for instance, as to any denial of a right to “professional legal counsel” at disciplinary hearings or as to any physical discomfort experienced when mace or gas was used to quell disturbances in the cell block. More important, many of the complaints actually testified to by the plaintiff were without any real basis in fact.
Like all the other prisoners in the Institution, the plaintiff was served three hot meals each day.18 He did not assert they were of the “poorest quality” or “improperly prepared.”19 He did not contend they were different from the diet given all the hundreds of other inmates of the Institution. He did not say, as did the prisoner in Krist v. Smith, supra, that the food was “terrible, the diet unbalanced” consisting of “far too much of a nauseous herb called turnip greens.” He did intimate the diet was inadequate, though. He did not specify in what way it was inadequate or deficient. He made no attempt to show any calorie deficiency or anything of that character. The only support he offered for this claim of an inadequate diet was that his weight, when he entered prison, was 210 pounds and that, since confinement, it had dropped some fifty pounds. The prison records, on the other hand, established that, when imprisoned, he weighed not 210 pounds, but just under 165 pounds. Actually, the petitioner‘s complaint as to food related not so much to the diet itself, either its composition or quantity, as to the fact that he claimed the prisoners who delivered the food would give to some prisoners extra food out of the food allowance left over after each inmate in the cell had been given his food allowance. He complained that he was never given any such extras.20 He admitted this was not at the instance or of with the knowledge of the prison officials, whose instructions were that any extra food should be made available to any prisoner requesting it. It is but to be expected that every rule for treatment will not be uniformly followed. Novak v. Beto, supra. That the prisoners assigned to deliver the food and to allocate it among the prisoners occasionally violated these instructions for equal rights on the part of all inmates to extras while available, would, however, give rise to no constitutional
The plaintiff asserted in his complaint and sought to sustain with his testimony the claim that his religious rights were unconstitutionally restricted. The right to exercise one‘s religion, though entitled to a “preferred” position in the catalogue of constitutional rights,21 even in the prison context, is not an absolute right. As Justice (then Circuit Judge) Blackmun put it in Sharp v. Sigler, 408 F.2d 966, 970 (8th Cir. 1969), “[w]hile freedom to believe is absolute, the exercise of religion is not.” Prison authorities accordingly may adopt any regulations dealing with the exercise by an inmate of his religion that may be reasonably and substantially justified by considerations of prison discipline and order. So long as the prison authorities provide the inmate with a reasonable opportunity for the exercise of his religious tenets in a form that is substantially warranted by the requirements of prison safety and order, there is no violation of the inmate‘s constitutional rights.22 The plaintiff‘s claim of a violation of his constitutional religious rights must be examined in the light of these principles. As the Court said in Proffitt v. Ciccone, 506 F.2d 1020, 1021 (8th Cir. 1974), “a person, in or out of prison, may not, in the name of religion, become a law unto himself” but must accommodate himself to reasonable regulations.
His initial complaint in this area is that he was denied the right to attend regular chapel services along with the general prison population. He expressed the opinion that he could safely attend if protected at all times by a prison guard. Whether he was serious in this assertion we cannot be certain. He had already testified that his mere presence in the general prison population had practically precipitated a riot and that his life was thereby put in jeopardy. In that sort of an atmosphere it would seem foolhardy, if not downright gross negligence for the prison authorities to assume that a single guard could adequately protect the plaintiff while attending chapel services with the general prison population. This same claim has been often asserted by prisoners in segregated confinement for protective reasons. The uniform answer, as given by the Courts, has been that the refusal of the prison authorities to allow such attendance represents “a reasonable judgment” which the Courts will not disturb. LaReau v. McDougall, supra, 473 F.2d at 979; Sharp v. Sigler, supra, 408 F.2d at 971; Diamond v. Thompson, supra, 364 F.Supp. at 667, n. 7; Smith v. Swenson, 333 F.Supp. 1253 at 1254 and 1258 (W.D.Mo. 1971); United States v. Pate, 229 F.Supp. 818, 821 (N.D.Ill. 1964). We find this answer adequate.
The prison authorities, though, offered another and a practical objection to this application of the plaintiff to attend chapel services. If this right were extended the plaintiff, they asserted they would be obligated to provide the same services for any one of the other 25 inmates in protective custody in Cell Block 2. With normally only 3 guards and never more than 4 on duty in the Cell Block, this would have been impossible. The plaintiff countered, however, with the suggestion that regular religious services might be conducted in the corridor of the Cell Block.23 To this suggestion, the prison officials rejoined that there were about 100 prisoners in the Cell Block. They included persons of many religious faiths as well as persons
The medical service in the prison, as testified to, was adequate by any standards. Three times each day, two medical technicians visited the cell block to receive any complaints from the inmates and to provide any medication that might be requested or would appear appropriate. If a prisoner had any substantial complaint, though, that fact was reported to the prison medical staff, who would then provide such service as the condition complained of might require.25 The plaintiff claimed that, despite this program of medical service, he was denied adequate medical attention. The official records in the medical office of the Institution showed, however, that the plaintiff had received some form of medical services on more than forty occasions.26 The plaintiff conceded he had been relatively free of any sickness during his confinement. He testified to only three occasions when he had required or asked for medical attention. One of those involved the correction of a knee disability which had been with the plaintiff since childhood. An operation to correct this disability was scheduled by the prison orthopedist for the week of the trial in this case but had to be delayed for that reason. On the other occasions, the plaintiff had received satisfactory medical attention. On this record, the District Court found that neither in its treatment of the plaintiff nor in its general medical program had the Institution failed to meet its constitutional obligation for providing adequate medical services. We agree.
It is inconceivable that the plaintiff seriously claims that he has been denied writing material. The record suggests that he assumed the role of an unofficial ombudsman, complaining in writing of other prisoners and of prison officials alike. Indeed, one of his complaints, as stated in his complaint,
The plaintiff alleges he was denied any reading material. In making this claim, he was not referring to school books and other material with which he could further his education. He admitted an educational officer at the Institution visited him, apparently reviewed with him his educational background, and worked out a course of study for him. This officer later supplied him with “school books” in connection with this proposed program of study but the plaintiff said, “I‘ve not been to school in so long, its difficult for me to get started in my school books; and I give them to another inmate that could get started, because he was going to school * * *.” His complaint must relate to general reading material, the character of which the plaintiff does not indicate. He testified that during his confinement in the cell block only one box of magazines was made available, though the prison authorities testified that the Jaycee chapter for the prison regularly visited the block and made available to all inmates requesting it reading material. Also, through the chaplain‘s office, reading material was made available when requested. The District Judge chose to credit the testimony of the prison officials and we have no reason to fault his findings on this point.
The difficulty experienced by the plaintiff in conversing with other inmates, as suggested by his own testimony, is that he “gets too loud” and is so contentious that some restraint must be placed on him. Indeed, a fellow inmate, called by the plaintiff in support of his claims, did not deny that the plaintiff was over-loud and contentious; he did seek to justify this conduct by testifying that he thought the plaintiff was provoked. Whether provoked or not, the plaintiff, in his relations with others in the cell block, was loud and boisterous. It was but natural that the guards would request him to be quieter. We perceive no clear error in the District Court‘s finding in this regard.
We are concerned, however, with the prisoner‘s claim that he is denied adequate exercise time. “Cruel and unusual punishment,” as used in the Eighth Amendment, is a term that cannot be defined in vacuo. It does not draw its meaning simply from the type of punishment or deprivation imposed; it is often intimately concerned with the time covered by the punishment or deprivation and the reasonable limits of prison supervision.27 As we have seen, confinement in the “strip cell” has often been found inoffensive under the constitutional provision if the confinement is for a short duration but invalid under the “cruel and unusual” provision of the Eighth Amendment if long extended. The Courts, however, in measuring the deprivation by constitutional standards of “cruel and unusual” cannot, as we have already observed, be blind to the practical difficulties of prison management. We repeat that Courts, just as the prison authorities themselves, must be reasonable in their requirements and must always remember that the primary responsibility for prison management lies with the prison authorities.28 The prison
We would add that under the facts as developed, we are satisfied that a monetary recovery against the defendants individually would not be justified. Additionally, a money judgment against them officially would represent a judgment against the State and would thus be invalid.33 The dismissal of the claim for a money judgment is accordingly affirmed.
Except for the remand for further consideration of plaintiff‘s request for additional exercise time and for enlargement of his shower privileges, the judgment of the District Court is affirmed.
BUTZNER, Circuit Judge (specially concurring):
I concur in the judgment based on Judge Russell‘s majority opinion because the limited remedy it affords the prisoner is more consistent with the Constitution than the district court‘s dismissal of this action. Although the judgment is a
Because other convicts endanger his life, James E. Sweet has been confined since October 1968 in a 9’ x 12’ segregated cell with only two one-hour periods a week for exercise followed by a shower. The reason why the convicts dislike Sweet is disputed. Whether their animosity is unfounded is of no consequence, for the prison officials know the threat to his life is real.1 Nevertheless, the warden maintains that Sweet‘s segregated confinement is voluntary and that he may return to the prison population at any time. The district court, accepting the warden‘s argument, dismissed the complaint.
Sweet‘s predicament is not unique.2 The record discloses that more than a score of prisoners in the same institution are confined under similarly harsh conditions because they too are threatened, not because they are being punished for any wrong. Other prisoners’ complaints of assault and rape have previously come to our attention.3 We therefore convened the court en banc to examine the constitutional issues of this pervasive aspect of prison life. This required us to reconsider Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972), in which a divided court held that guarding a prisoner from harm by detaining him in maximum security at his own request was not cruel and unusual punishment, even though the conditions of his confinement were identical to those imposed on wrongdoers.
In Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973), we held, “A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief.” Accord, Finney v. Arkansas Board of Correction, 505 F.2d 194, 201 (8th Cir. 1974). This salutary principle is not disputed. Therefore, the only issue in this case is the constitutionality of the means employed by the state to provide protection. As the citations in the majority opinion disclose, many cases hold that solitary confinement for a limited time to punish the infraction of prison rules is not unconstitutional. These cases do not, however, answer the critical issue before us, which is the constitutionality of using solitary confinement for an indefinite time to guard a prisoner who has violated no rules. Moreover, cases sanctioning punishment by solitary confinement rest on the premise that the warden‘s discipline of unruly prisoners must be upheld to enable him to govern the prison effectively. See Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971). But these cases are inapplicable when the proof shows that unrestrained prisoners dominate other inmates through terror. Then, discipline is not promoted by placing the victims in solitary confinement while those who threaten them enjoy the privileges of prisoners at large.
It is now settled that a prisoner is not shorn of all constitutional rights. Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Among those which he retains is immunity from
A prisoner charged with a breach of discipline is entitled to notice and a hearing to determine the validity of the charges before he can be placed in solitary confinement for an appreciable length of time. Haines v. Kerner, supra; Wolff v. McDonnell, supra, 418 U.S. at 556, 94 S.Ct. 2963 (dictum). The procedures required by these cases are not intended to be empty rituals. On the contrary, they are designed to insure that an innocent prisoner shall not be subjected to punitive confinement. When a prisoner has not broken any rules, the state has an obligation to provide an explanation for treating him as though he had. Threats against a prisoner‘s life establish a rational explanation for protecting him, but not for punishing him. Though Sweet‘s assignment to a punitive cell is labeled administrative or segregative, his treatment is tantamount to punishment. Confining him as though he has breached prison rules, when in fact he has not, is so arbitrary and capricious that it deprives him of due process of law. And placing him in the same class as lawless prisoners, though he is not lawless, denies him the equal protection of the law.
It is also settled that the fourteenth amendment makes applicable to the states the eighth amendment‘s prohibition of cruel and unusual punishment. Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Several tests have been articulated to determine whether punishment is cruel and unusual. Among these is whether the punishment is disproportionate to the offense. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). Sweet is a victim of prison lawlessness, not a perpetrator of prison crime. Even if his years of solitary confinement were considered in the abstract to be neither cruel nor unusual punishment for one who broke a prison rule,5 Sweet‘s confinement cannot be viewed in the abstract. Robinson v. California, supra, 370 U.S. at 667, 82 S.Ct. 1417. Measured by the prison‘s own standards of punishment, his solitary confinement is clearly disproportionate to his conduct and therefore constitutes cruel and unusual punishment in violation of the eighth amendment.
Since the district court ruled that Sweet had suffered no constitutional
Judge WINTER and Judge CRAVEN concur in this opinion.
Notes
Q: He is maximum security then?
Warden: Yes.
Q: Is he considered dangerous to the population then?
Warden: No, he is not considered dangerous to the population. I think—and I am not being facetious—the population is dangerous to him.
Q: I understand that but he is not a dangerous individual?
Warden: From my personal knowledge, I don‘t feel Mr. Sweet is dangerous, no.
The Court: Have you ever asked to be released from Cell Block 2?
The Witness: I think it would be—
The Court: I didn‘t ask you if you think. I asked have you asked?
The Witness: It wouldn‘t be safe.
The Court: So, you have not asked?
The Witness: No, sir.
The Court: So, you think that you need to be segregated from the general population?
The Witness: Yes, sir.
Later, in answer to questions by counsel for the defendant, the plaintiff testified: (p. 94)
Q. * * * even today, you do not want to get out of Cell Block 2?
A. That‘s correct.
Again, he testified: (pp. 90 and 91)
Q. You would simply like a little more privileges in CB-2? Is that the basis of your—
A. Yes, sir.
Q. —Complaint?
A. Yes, sir.
See generally Toal, Recent Developments in Correctional Case Law, 1 Resolution of Correctional Problems and Issues 55 (S.C.Dept. of Corrections 1975).