*2
WEIS,
Bеfore
HIGGINBOTHAM and
ROSENN,
Judges.
Circuit
THE
OPINION OF
COURT
ROSENN,
Judge.
Circuit
plaintiff,
Riley,
appeal by the
James
This
judgment of the district court
is from a
pro
rights complaint1
dismissing his
se civil
concerning conditions of confinement
The com-
state correctional institution.
policy
plaint alleged that
defendants’
keys
possess and use
allowing inmates to
violated his federal
to cell door lock bars
rights.2
and fourteenth
sought
damages,
to
addition
the district
injunctive relief.3 We affirm
dismissing plaintiff’s
judgment
сourt’s
claims, but vacate
fourteenth amendment
it dismissed the
judgment
insofar as
claim.
eighth amendment
he
his
filed
the com-
3. Plaintiff
1. The defendants moved
dismiss
appeals,
complaints
and ex-
pursuant
administrative
plaint
Federal Rule
Civil Proce-
remedies,
12(b)(6).
granted
all reasonable administrative
hausted
dure
The district
dismiss,
they
inadequate to
summary judg-
but that
were
entered
motion to
but
rights.
his first set
He also filed
for the
ment
defendant.
Septem-
interrogatories
to the defendants
day
filed
defendants
the same
ber
jurisdiction pursuant to
district
2. court had
district court
timely
dismiss. The
motion to
court has
§§
U.S.C.
and 1343. This
on the mo-
stayed discovery
it
ruled
until
had
judg-
jurisdiction
court’s final
over the district
tion
dismiss.
§
under 28 U.S.C. 1291.
ment
Martinez,
I.
cunier v.
amendment of the
Plaintiff,
inmate at the State Correc-
prohibits any punish
federal constitution
Huntingdon, Pennsyl-
tional Institution
ment which violates civilized standards and
complaint pur-
(Huntingdon), filed his
vania
concepts
humanity
decenсy,
Estelle
1983 and
suant to 42 U.S.C. §
97, 102-03,
his cell was robbed
in March 1984
*3
285, 296,
“any
and
inmate. Plaintiff asserted this rob-
fellow
punishment
repugnant
which is
to the con
fights and
as numerous
as-
bery, as well
science of mankind.” Louisiana ex rel.
among prisoners, resulted from de-
saults
Resweber,
459, 471,
Francis v.
329 U.S.
67
giving security
practice of
lock
fendants’
374, 380,
(1947) (Frank
422
S.Ct.
91 L.Ed.
allowing dangerous
inmates and
keys to
J.,
furter,
concurring), quoted in Estelle v.
possession
control and
inmates to have
Gamble,
105,
We are sensitive to kind of in this plains complex mattеrs the federal courts by cell almost at will to his with access control, administration, pertaining to the inmates, compelled to live he is aggressive penal operation by fear, the states of their anxiety, and tension. in constant tradi- systems promote their an area confinement of his conditions tionally their domain. Procuni- is enhanced safety within See which personal lack of 404-05, indifference,” 94 Martinez, alleged “deliberatе er v. (1974); 97 S.Ct. 1800, 1807, 224 429 at 40 L.Ed.2d U.S. Estelle v. 491-92, personnel supervisory 411 Rodriguez, Preiser v. In Hudson interests. prisoner’s protected L.Ed.2d 439 36 93 S.Ct. U.S. —, 82 Palmer, judicial restraint cannot policy v. “But (1984), the observed cognizance 398 any failure to take L.Ed.2d encompass “are under prison administrators whether aris- claims of valid constitutional reasonable measures to take obligation Pro- ing state institution.” in a federal or 146 (all celled) upon sepa- them double located
guarаntee
two
The Seventh Circuit Court
rate
entire
sides of the
block area. Para.
selves.”
recently held that
Appeals
complaint.
11 of
He further avers: “One
“[deliberate
part
officials
completely
indifference
cell block area is
cut
from
off
and sexual assaults
attacks
vision,
violent
the central desk
observation and
proscribed by
other inmates
view;
high-
while most of the other side on
761 F.2d
Cady,
Benson
amendment.”
(each
high
er tier
is three
levels
side
tiers
Cir.1985).
See Ramos
approximately
yards length)
is also
(10th Cir.1980),
Lamm,
F.2d
security supervision.”
blocked from
Para.
denied,
cert.
12 of complaint.
.
(1981)
68 L.Ed.2d
The complaint further
that the
generally
Plaintiffs
defendants, Sergeant Lear and Sergeant
fights between inmates and
“many
Schaefer,
personally
act
as A-block
both
*4
while
cell
inmate
stabbing occured [sic]
supervisors
personally have
and
instructed
It
open.”
also
that
lеft
doors were
permitted prison
possess
and
inmates to
by
opened
an inmate and
his cell was
keys
open
and use
cell door
to
lock bars
22,1984, and
inmates
March
that
robbed on
doing anything
“are
to adequately
and
not
6:30
given keys “from
A.M. until 8:30
are
protect plaintiff and other
from
inmates
adequate
reasonable nor
P.M. without
[sic]
highly aggressive
type
other
and assaultive
often
cor-
supervision and
times no
security
Lear
inmates
and neither
nor
...
Schaeffer
is around
near
nor
rectional officer
[sic]
up
tiers
high
are
on the
level
and cannot
keys
inmates use the
to
cell
when
areas
adequately see nor have clear
to
vision
14
cells.” Paras. 5 and
open
inmates’
other
happening.”
observe
Para. 2 of
what
practice,
prison
The
complaint.
they are
complaint.
alleges
totally
He
in-
“easy
to
avers,
other inmates
acсess
allows
welfare,
safety,
plaintiff’s
different toward
sleeping”
he is
and as
plaintiff’s cell while
well-being.
result,
past
a
“for the
six months
extremely dangerous con-
had
to live
defendants,
Wicker,
Fulcomer,
As for the
life-threatening nature,
robber-
ditions
Morder, plaintiff alleges
Zumpetta, and
activities,
ies, assaults, thefts, homosexual
they
“high” prison
having
officials
2
com-
fights, stabbings.” Paras.
and 15 of
duty to
responsibility
take affirma-
plaint.
action,
each has shоwn
tive corrective
but
problem.
to the
Plain-
“total indifference”
maximum, medium, and
Huntingdon is a
An-
tiff asserts that Emanuel Wilkes and
facility
capacity
minimum
with normal
Superintendents
thony Zumpetta, Deputy
1,370.5
1984,the State
As of December
personally
Huntingdon,
at
both
aware
walls,
were
1,950 male felons within its
confined
threatening
“daily
life
situation”
Plain-
percent
capacity.6
142
of its normal
complaint.
there.
16 of
Plaintiff
Para.
in the “A”
tiff
block
charges
the defendants hаve acted
assigned,
prison
he is
there are
to which
willfully
intentionally
violation of
inmates
approximately
cells and 360
180
connection,
during
Court,
system
there
pris-
federal
4.
in the
examined
in this
homicides,
magnitude
problem of
as-
were
359 inmate
on statistics on the
11 inmate
noting:
inmates,
in our nation’s
227
violent crime
inmate assaults
saults on other
staff,
were
10 suicides. There
During
there
on
and the first half of
1981
by
system
fellow
murdered
in 1981 and 1982 over
were over 120
in the samе
prisons.
num-
and federal
A
inmates in state
over
on other inmates and
inmate assaults
prison personnel were
personnel.
ber of
prisoners during
murdered
assaults
inmate
period.
riots or
this
Over 29
U.S. at —,
reported in these
disturbances were
similar
Corrections,
there
for the same time frame. And
facilities
Department of
Pennsylvania
125 suicides
these institutions.
were over
Report 8.
Annual Statistical
Compendi-
Violence 7 Corrections
See Prison
1983).
(Mar.
Additionally, informal sta-
um
Id.
from the U.S. Bureau
Prisons show
tistics
Brewer,
Cir.1973).
See Walsh v.
rights
eighth
amendment
733 F.2d
punishment.
against
(7th
cruel and unusual
Cir.1984).
relief,
To obtain
pervasive
inmate must
“a
show
risk of
concluded that
The district
court
prisoners,”
harm to inmates
from other
Riley
from which
mere fear of assault
suf-
Virginia,
Woodhous v.
487 F.2d at
cruel and
fers did not constitute
unusual
prisoner
punishment.
displayed
Even after
has
and that
officials have
assaulted, a section 1983 action does
been
danger.
“deliberate
indifference”
officials,
against prison
the district
not
lie
Estelle v.
held, unless it can be established that
court
In construing
eighth
292.8
amend
they
knowledge
or constructive
had actual
the Benson court noted: “The
ment,
place.
would take
that such an attack
articulated in Estelle duty
granted
thereupon
the defendants’
elementary
not been limited to
services nec
Riley’s
amend-
motion to dismiss
essary
proteсt
inmates’ health.
district court
claim. What the
over-
ment
duty
state also has a
looked, however,
plaintiff,
was that
physical
injury.”
from unwarranted
alleged he had to live
prisoner,
confined
“A pervasive
F.2d at 339.
risk
harm
day
very
out with a
real and
day in and
may
ordinarily
by pointing
be shown
personal
injury
persistent
fear of
from con-
single
incidents,
incident or isolated
but it
and sexual assault
stant
threats of violence
may
be established
much less than
inmates,
frоm other
and the
his cell
proof
reign
of a
violence
terror.”
totally indifferent
to his
defendants were
White,
Shrader v.
761 F.2d
*5
safety.7
Levine,
quoting Withers v.
Cir.1985),
615
right
protected
An inmate’s
to be
158,
(4th Cir.1980).
F.2d
161
and sexu
from constant
threats of violence
allegations
plain-
We believe
the
of
other
inmates does not
al assault
from
complaint,
liberally
light
tiff’s
construed
actually
require that he wait until he is
Kerner,
Haines v.
519,
of
404
92
relief. Ramos
U.S.
obtaining
before
assaulted
Lamm,
594,
(1972),
Wood
572,
v.
plaintiff has
doors,
possess keys to cell
and that this
from other
to inmates
harm
policy
deprived
therefore caused him to
failed to exer-
be
officials have
property
process.
without due
dis-
necessary care
cise
plaintiff’s
trict court concluded that
claim
inmates.
cognizable
42
was not
under U.S.C. §
Charleroi,
Bоrough
Rotolo v.
provides
post-depriva-
because state law
Cir.1976),
(3d
this court
held
F.2d
remedy.
Taylor,
tion
Parratt v.
pleading alleges specif-
proa
se
that where
527, 544,
1908, 1917,
101 S.Ct.
68 L.Ed.2d
facts,
not be dismissed unless it
ic
it should
“beyond
that the
appears
doubt
Court held in Parratt
support
of facts in
of his
prove
can
no set
money damages
a cause
of action for
him
claim which would entitle
to relief.”
against prison
depriva
inmate
officials for
Kerner,
Id, quoting Haines v.
404 U.S. at
property
tion of
under color of state law
hand,
the other
if
92 S.Ct.
On
occurring as a result of random and unau
plaintiff presents only vague and conclu-
thorized acts
lie
will not
where the state
allegations,
complaint
should
sory
post-deprivation remedy
law affords a
for
Rotolo,
Plaintiff’s fourteenth amendment the Due Process Clause apparently claim is on a contention claim under based fourteenth amendment. robbery that the of his cell resulted from ty supporting pleaded, opportuni- evidence.” to offer are sufficient to call for sumably permitted to designat- III. are to mоve prison. ed areas within judgment the district Accordingly the as it dis- affirmed insofar court will be eighth standpoint, From an amendment I damages under plaintiff’s claim for missed no complaint see difference between the judgment The amendment. fourteenth plaintiff makes and the here situation court will be vacated with of the district opened during day- where all cells are to claim under respect plaintiff’s light The to hours. decision leave cells will bе remanded amendment and cause day open during the to allow limited or proceedings for further to the district court access certain inmates is matter of opinion. not with this inconsistent prob- internal The traffic administration. security lems and concerns involved in the WEIS, dissenting. Judge, Circuit 1,000 movement and control of more than is inmates in a limited area prisoner obviously contends he are plaintiff by inmates who details within the discretion of offi- bеing assaulted fearful Bell v. Wolfish, See daylight cials. during cell to his have access He, however, hours, p.m. to 8:30 6:30 a.m. he assaulted not has been addition, he has actually
or threatened. unfortunately Violence is too in common prop- deprivation to a subjected not been times justifi- and at one incident when cell erty, except for however, ably apprehensive; such condi- robbed, he was ab- apparently when was tions do not themselves establish mental sent. distress will cruel and un- which constitute punishment. mere to usual If the fear or that "access pulling threat assault sufficient raise through the inmates cells is violation, every then federal pulled opens lock which once cell-door bar exit) every prison jail inmate this coun- (entry or every cell for access door try a viable would have range.” plaintiff’s alle- the entire tier clear, claim. аpparently gations are not but keys designated do have O’Lone, (3d F.2d 817 Davidson It that certain individual cell doors. seems banc), granted sub (in cert. Cir.1984), “cell given to a door prisoners are access nom., Cannon, Davidson v. U.S. —,
bar,” lock or unlock pulled can which when pre L.Ed.2d 692 “A” tier.1 all cells on the block sented a somewhat similar issue. In that case, inmate filed a 1983 ac brief, us that one § In his tells against prison tion officials for negligently he broken when was inmate’s nose was failing steps to take reasonable In the follow- cell assaulted in his *7 prisoner. him from another In discussing two teeth ing year prisoner had another prison the responsibility of officials under Plaintiff, however, does not knocked out. that liability we stated could be im by § caused argue were the assaults posed the “even when assault has been com incidents were prison conditions or the by prisoner, mitted another if thеre was occurred in which any different from those conduct, intentional deliberate or reckless i.e., halls, prison, mess parts the other prisoner’s safety, indifference or cal short, In area, library. shops, and exercise disregard prison lous on the part of offi claim is plaintiff’s eighth amendment Id. cials.” We thus reviewed the fear for generalized on a based officials’ conduct under the deliberate indif kept locked dur- the cеlls not because ference applicable standard care to an pre- daylight hours when ing pro se mat- Particularly, in complaint. in problems again the This illustrates once case this, by be aided would courts ters such presented by for dismissal defense motions present would which 12(b)(6), factual information requires which under Fed.R.Civ.P. proper perspective. in a allegations these cases to assume the truth the courts by as articulаted claim amendment eighth conclusion that fear of attack must “result in Estelle v. Supreme Court significant pain mental of constitu- 50 L.Ed.2d 97 S.Ct. 429 U.S. tional dimensions.” Id. at 979. O’Lone, F.2d at 829 n. 9. (1976). See Shrader, In the court also noted the in- Chapman, In v. evitability by Rhodes of violence inmates and the L.Ed.2d 59 101 S.Ct. difficulty prevention. of its The court fur- alleged eighth an rejected Court ther observed that the methods used stemming from the amendment violation protect prisoners administrators tо celling. The Court use of noted double from one another are often condemned as is no evidence that double cell- that “there cruel and unusual the same inmates circumstances either in- ing under these complain pro- who later about the lack of unnecessary pain or wanton or is flicts tection. The in Shrader also severity grossly disproportionate to the complained cell about locks but the court wаrranting punishment.” Id. at crimes stating, “Any dismissed that contention at 2400. The Court cau- locking system pro- for a cell will federal courts “bear tioned lower complaints might duce from inmates who inquiries ‘spring mind that their from con- prefer something different.” Id. at 982. judicial requirements and that stitutional Although complaint may, in this case must reflect that fact answers to them perhaps, procedure have described that is rather a court’s idea of how best to thаn negligent, undesirable or I even am con- ” facility.’ operate a detention Id. at presented vinced that it has not a claim 2401, quoting Wolfish, Bell v. 101 S.Ct. at required that rises to the level establish addi- 1874. In I violation. would tion, prison’s noted that “a inter- affirm the order of the district court. security peculiarly normally nal a matter left to the discretion of administra-
tors.” 452 at 349 n. 101 S.Ct. at
2400 n. 14. in the case at hand does satisfy requirements for an set
amendment violation forth Rhodes v.
Chapman,
Wolfish,
Bell v.
and Davidson
a cаuse
v. O’Lone. Whether
has
HOLLAND, Appellant,
Claude
statutory
of action
state
or common
presented
law
not been
here.
ATTORNEY GENERAL OF
Rhodes,
In the wake of
the Court of
JERSEY.
NEW
Appeals for the Fourth
has mod-
Circuit
84-5895.
(4th
No.
Levine,
ified
adopted a more restrictive standard, appeals said
ment the court of prohibits punish-
“The unnecessary and
ments which involve pain.”
wanton infliction of Id. at
Hence, approved the trial court’s