529 F.2d 854 | 4th Cir. | 1975
Lead Opinion
This action sought both injunctive and monetary relief under the provisions of § 1983, 42 U.S.C., by a State prisoner, who has been for almost five years in segregated confinement in what is known as Cell Block 2 at the South Carolina Central Correctional Institution. The defendants, sued both officially and individually, are the Director of the South Carolina Department of Corrections and the Warden of the Central Correctional Institution. After a trial without a jury, the District Court dismissed the action. The plaintiff has appealed. We affirm in part and remand in part.
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 “[Bjecause [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, ifc 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.”
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 (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (quoting from Price v. Johnston (1948) 384 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356), and that “[Fjederal courts sit not to supervise prisons but to enforce the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto (1972) 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263. 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 “[tjraditionally,” by “federal courts.” Procunier v. Martinez (1974) 416 U.S. 396, 404, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224. After all, “courts possess no expertise in the conduct and management of correctional institutions.” Fin-ney v. Arkansas Board of Correction (8th Cir. 1974) 505 F.2d 194, 200. 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 (8th Cir. 1974) 506 F.2d 1022, 1024, and their judgments are entitled to “great weight,” Ross v. Blackledge (4th Cir. 1973) 477 F.2d 616, 618; Gardner v. Joyce (5th Cir. 1973) 482 F.2d 283, 285, cert. denied 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973); Burke v. Levi (E.D.Va.1975) 391 F.Supp. 186, 189. Particularly, “[WJhere 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 “[Cjourts 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 Amendment
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 (1958) 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630. 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.
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.
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
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 (W.D.Mo.1971) 333 F.Supp. 1253 at 1254 and 1258; United States v. Pate (N.D.Ill.1964) 229 F.Supp. 818, 821. 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.
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.
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 offi-ciáis 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.
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.
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.
. Under proper conditions and for appropriate reasons, segregated confinement of prison inmates has been uniformly ruled as constitutional. For a collection of the cases, see Annotation, 18 A.L.R.Fed. 7, at 65, and Note, 51 A.L.R.3d 111 at 161.
. At page 99 of the transcript, the plaintiff, examined by the Court said:
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.
During argument, it was suggested that the prison authorities themselves, by testifying at a hearing in state court to the fact that the plaintiff had made reports to the authorities on the activities of his fellow inmates, had a heavy responsibility for the hostility experienced by the plaintiff at the hands of his fellow inmates and this fact, in turn, placed a heavy responsibility on the authorities to extend every possible consideration to the plaintiff. It must be noted, though, that the hostility on the part of his fellow inmates, as the plaintiff testified at the state hearing, developed before that hearing. Further, reporting by the plaintiff on his fellow inmates was apparently unsolicited, and any development of the fact occurred as a result of the cross-examination of the warden by the plaintiff’s own attorney, in an en camera hearing which was not available to the plaintiff’s fellow prisoners.
. Woodhous v. Commonwealth of Virginia (4th Cir. 1973) 487 F.2d 889, 890; McCray v. Sullivan (5th Cir. 1975) 509 F.2d 1332, 1334.
. We have used the term “privilege” because this is the term used by the parties at trial but we use it in its constitutional sense as synonymous with “right.” See Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484.
. Cruz v. Beto, supra; Jackson v. Bishop, supra; United States v. Smith (10th Cir. 1972) 464 F.2d 194, 196, cert. denied 409 U.S. 1066, 93 S.Ct. 566, 34 L.Ed.2d 519 (1972).
. Robinson v. California (1962) 370 U.S. 660, 675-78, 82 S.Ct. 1417, 8 L.Ed.2d 758, pet. for rehearing denied 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962); LaReau v. McDougall (2d
. See Cruz v. Beto, supra; Howard v. Smyth (4th Cir. 1966) 365 F.2d 428, cert. denied 385 U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449 (1966).
. The constitutional basis for review of prison conditions has been described as “mottled” by one court; it is plain, though, that due process, equal protection and the Eighth Amendment are implicated. See Newman v. State of Alabama (5th Cir. 1974) 503 F.2d 1320, 1328 (U.S.App. pending.)
. See Pell v. Procunier, supra, 417 U.S. at 827, 94 S.Ct. 2800; Graham v. Willingham (10th Cir. 1967) 384 F.2d 367, 368; Burke v. Levi, supra, 391 F.Supp. at 191-2.
. Quoted in Wright v. McMann (2d Cir. 1967) 387 F.2d 519, 526. For further elaboration of the federal rules as to administrative and punitive confinement, see Novak v. Beto (5th Cir. 1971) 453 F.2d 661, 666, n. 2.
.The Court has correctly noted in Battle v. Anderson (E.D.Okl.1974) 376 F.Supp. 402, 423:
“ * * * In most of the cases in which the conditions in solitary confinement have been condemned, the inmates were held in dark cells where personal hygiene was impossible due to the lack of materials necessary for personal sanitation and/or the inability to properly dispose of body waste.”
A recent illustration of the type of conditions in solitary confinement found to offend constitutional standards is provided by Gates v. Collier (5th Cir. 1974) 501 F.2d 1291, 1305, where the cell of the complaining inmate had “no lights, commode, sink or other furnishings.”
. See, also, Collins v. Schoonfield (D.C.Md.1972) 344 F.Supp. 257, 268; Wright v. McMann, supra, at 526; Jordan v. Fitzharris (D.C.Cal.1966) 257 F.Supp. 674, 680.
But, cf., Ford v. Board of Managers of New Jersey State Prison (3d Cir. 1969) 407 F.2d 937, 939, where a short period of solitary confinement for a flagrant breach of discipline in a cell without “wash bowlfs],” “running water,” or “water for sanitary purposes” and filled with a “pervasive stench” and where the prisoner’s diet was limited to “4 slices of bread and a pint of water 3 times daily,” with “one ‘full’ meal every third day” was found not to be “cruel and unusual punishment.” (Emphasis in opinion).
. Johnson v. Anderson (D.C.Del.1974) 370 F.Supp. 1373, 1387.
. Johnson v. Anderson, supra, 370 F.Supp. at 1387.
. See O’Brien v. Moriarty (1st Cir. 1974) 489 F.2d 941, 944.
. Jackson v. Indiana (1972) 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435.
If the segregated confinement is punitive, it has been held that it should not be continued indefinitely and for a prolonged period without some periodic review of the continued reasonableness of the confinement. Adams v. Carlson (7th Cir. 1973) 488 F.2d 619, 634-5; Morales v. Turman (E.D.Tex.1973) 364 F.Supp. 166, 174. Of course, this reasoning would not apply where the confinement is at the request of the inmate himself and solely for protective purposes. In this case, for instance, the inmate’s continuance in segregated confinement is by his choice and, the defendant testified, is terminable at any time by him.
. See Sostra v. McGinnis, supra, 442 F.2d at 193.
For a critique of this case and its finding that prolonged segregated confinement, under proper circumstances, is not invalid, see Schwartz, A Comment on Sostre v. McGinnis, 21 Buffalo L.Rev. 775, 783-4 (1972); Comment, Prison Rights, 21 Buffalo L.Rev. 539, 548 (1972); Comment, 46 St. Johns’ L.Rev. 474, 480-2 (1972); Comment, 1972 Wash.U.L. Rev. 347, 350-1.
Sostre was reaffirmed in LaReau v. McDougall, supra, 473 F.2d at 978-79, n. 7:
“In Sostre v. McGinnis, 442 F.2d 178 (2 Cir. 1971) (en banc), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049 [92 S.Ct. 719, 30 L.Ed.2d 740] (1972), we held that segregated confinement for long periods is not violative of the Eighth Amendment when the following conditions exist: basic implements of personal hygiene, opportunity for exercise, reading matter, communication with other prisoners * * *
In Sostre and Graham v. Willingham, the prison inmates had been in segregated confine
.This represented a definite contrast with the food allowance made in punitive segregation in “strip cells”, as described in many cases. Cf., Krist v. Smith (D.C.Ga.1970) 309 F.Supp. 497, 499, affd. (5 Cir.) 439 F.2d 146 (in solitary confinement “one meal a day”); Novak v. Beto, supra (a “bread and water diet.”)
. Cf., Lunsford v. Reynolds (D.C.Va.1974) 376 F.Supp. 526, 527.
. In Sostre, too, the petitioner complained that he was not given extras in his food allowance but the claim was disallowed. (442 F.2d at 186)
. Brown v. Peyton (4th Cir. 1971) 437 F.2d 1228, 1231.
. Sharp v. Sigler, supra, 408 F.2d at 971.
. A similar demand was made in Sharp v. Sigler (D.Neb.1967) 277 F.Supp. 963 and denied. The denial was affirmed in 408 F.2d at 971-2.
. In Diamond v. Thompson, supra, 364 F.Supp. at 667, n. 7, Judge Johnson dealt with the situation where prison inmates in segregation were denied participation in any “group” religious services but did “receive religious materials and visits by the Chaplain or other minister of their choosing.” He concluded:
“ * * * The Court finds that the restriction on attending religious services applied to inmates in segregation and isolation is reasonable in light of the need for security and of the alternative provisions made to ensure the religious well-being of the inmates.”
. This specific form of medical service was found adequate in McCray v. Sullivan (5th Cir. 1975) 509 F.2d 1332, 1335.
. See Blanks v. Cunningham (4th Cir. 1969) 409 F.2d 220, 221:
“ * * * Usually the propriety of an evidential [sic] hearing on this issue [of a prisoner’s right to reasonable medical attention] can be determined by examining the prisoner’s allegations in the light of the prison’s medical records.”
. See Notes 15 and 16, supra.
. As we recently stated in United States v. Hillick (4th Cir. 1975), (decided August 25, 1975), “the courts will not interfere with the administration and management of prisons absent a showing of arbitrary punishment of a c’orttetitutional magnitude.” (Slip opinion p. 6)
. See Remington, State Prisoner Litigation and the Federal Courts, 1974, Ariz.St.L.J. 549, 553, n. 13.
. In Sostre v. McGinnis (2d Cir. 1971) 442 F.2d 178, the Court dealt with the effect of the deprivation to which the prisoner was subjected in terms of “his physical or mental health." It stated the question thus:
“ * * * The question, rather, is a general one: whether the Eighth Amendment absolutely forbids a state to use a means of discipline when there is no evidence of any physical or psychological injury to the health of the prisoner who complains of the measure, and also when the opinions of the experts as to the effects of the type of discipline are in conflict.” (442 F.2d at 193, n. 24). (Emphasis in opinion)
. In Sostre, supra, the right to shower and shave under prison regulations, was granted on a weekly basis but exercise rights were on a daily basis. 442 F.2d at 186. These regulations for prisoners in segregative security were sustained.
. See Lake v. Lee (S.D.Ala.1971) 329 F.Supp. 196, 199, re-affirmed on this point in McCray v. Sullivan, supra, 509 F.2d at 1335 (twice a week); Krist v. Smith, supra, 309 F.Supp. at 498 (two showers a week); Howard v. Smyth, supra, 365 F.2d at 429 (once a week).
. Edelman v. Jordan (1974) 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662.
Concurrence Opinion
(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.
Sweet’s predicament is not unique.
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,
Since the district court ruled that Sweet had suffered no constitutional
.The warden testified:
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.
. See generally Toal, Recent Developments in Correctional Case Law, 1 Resolution of Correctional Problems and Issues 55 (S.C.Dept. of Corrections 1975).
. See, e. g., Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973); Breeden v. Jackson, 457 F.2d 578 (4th Cir. 1972).
. In 1969 Sweet was disciplined by being placed in maximum detention on limited rations for twenty-eight days after he cursed and threatened a correctional officer. His present confinement, however, does not arise out of any rule violations.
. It has been suggested- that solitary confinement for unlimited duration constitutes cruel and unusual punishment per se, either because it endangers sanity or because of the inherent excessiveness of unlimited isolation. Cf. O’Brien v. Moriarty, 489 F.2d 941, 944 (1st Cir. 1974) (dictum); Sostre v. McGinnis, 442 F.2d 178, 207-09 (2d Cir. 1971) (Feinberg, J., dissenting). The disposition of Sweet’s case that I favor makes consideration of this question unnecessary.