John Doe v. District of Columbia

my hope jury verdict. It conduct the new trial court will district DOE, et al. John be- expressed the concerns eye with an low. COLUMBIA, et OF DISTRICT al., Appellants. prison brought by all A class action No. 80-2171. Complex Security ers in the Maximum Appeals,

United States Court Re at the District of Columbia (Maximum) Circuit. District of Columbia Lorton, (Lorton) Virginia formatory at municipal 1981. of Columbia against Nov. the District Argued (officials) who ad reformatory officials and 11, 1983. Opinion Jan. institution,1 resulted in a penal minister the Jan. Separate Statements damages to the awarding money judgment injunction. Defend granting an class and capacities official ants were sued in their required case theory plaintiffs’ and the defendants prove D.C. them Counsel, Schwab, Corp. Edward E. Asst. resulting from liable because of acts were D.C., whom Judith W. Washington, with Monell v. New York policy. Cf. official Reischel, Counsel, L. Rogers, Corp. Charles Services, 436 U.S. Department of Social Zielinski, Corp. and Michael Deputy Counsel 2035-36, 56 L.Ed.2d 98 S.Ct. D.C., Counsel, were Corp. Washington, Asst. damages and jury award of Sutton, brief, appellants. on for David P. granted relief injunctive order of the court D.C., Counsel, also Corp. Washington, Asst. (1) were for to the class of appearance appellants. entered an for of “cruel by infliction the officials alleged D.C., Nickles, Washington, Peter J. (a constitutional punishment” and unusual Bass, and Joseph whom Ellen M. Fisher officials tort)2 by the District of Columbia Kolb, D.C., Washington, Charles E.M. of Maxi responsible for the administration brief, for appellees. on alleged negligent fail (2) and for the mum opinion Court, For provide see 697 officials to the defendant ure of inmate assault. against adequate protection complaint is counts of the Each of the six separate statements following are violence, i.e., “failure the officials’ based on EDWARDS, and Cir- filed MacKINNON security protection provide adequate ROBB, Circuit Senior Judges cuit exposed pain plaintiffs to be has caused Judge. like the constant risk and suffering by ” MacKINNON, Separate Statement Amended violence .... physical lihood of Judge: Circuit H90, added). (emphasis JA 33 Complaint as all in The class was certified For the reasons set forth questions and the “common court, of the district side Maximum judgment for the rights of affecting fact of law and case remanded court is vacated and the to be free out, right] stated as the inmates point a new trial. I am moved [was violence threatened inmate from actual and however, in the court’s acquiesce harm.” Amended pervasive risk of have not only decision because defendants added). ¶7, (emphasis Complaint JA court’s decision appealed from the district reformatory appeal officials I The n.o.v. D.C. deny judgment their motion for procedural variety judgment grave harbor doubts whether a new trial. seek remand for bases and evidence to have adduced sufficient prohibits Reformatory the inflic- Amendment 2. The 1. Lorton is administered punishment.” city employees District of tion of “cruel and unusual officials and Columbia, operates rule under a home which charter.

949 find, money damages far as can Basically my complete review trial me finding paid record left unconvinced never an entire of prison- been class negligence by of a constitutional tort and despite ers several cases of very egregious supported by was the officials substantial prison conditions. And evidentiary rec- magnitude evidence of sufficient ord here indicates that conditions at Lorton a class It was also a action. matter of approach do not even the conditions that damages concern me that in a substantial Sarver, in cases present like Holt v. $500,000 amount, interest, excluding over F.Supp. (E.D.Ark.1970), aff’d, class, i.e., paid prison were to be to the all (8th Cir.1971), involving F.2d 304 the Ar- in plaintiff prisoners, ers Maximum. The Penitentiary System; kansas State v. Gates class, who claim to be representative Collier, Cir.1974), 1291 (5th F.2d involv- following are confined for the offenses: Parchman, ing Penitentiary the State at murder; Two for degree first one for mur Mississippi; or the prisons Alabama which der, kidnapping robbery; and armed two subject were the in Pugh decisions murder; degree one for second for second Locke, F.Supp. (M.D.Ala.1976), degree murder bank one robbery; and for aff’d sub as modified nom. Newman v. Ala- for manslaughter; robbery; six armed one bama, (5th Cir.1977), in rev’d robbery attempted rape; for armed and one part sub nom. Alabama v. Pugh, for dangerous weapon; assault 98 S.Ct. (1978) L.Ed.2d 1114 Complaint one grand larceny. for Amended (per curiam), where injunctions were issued ¶ JA 16-18. ¶ to correct penitentiaries. conditions in It is incongruous pay money damages court, pris- Judge Edwards’ for the pages 953-956, who causing oners the violence points out the error conditions, unhygienic who adhere to a the court’s instruction led to code the mone- silence, tary award. also and who refuse to significant report It is that the viola- (Tr. cooperate 287-89) class all the tions or amelio- prisoners included who were creating rating the conditions they the conditions of which com- about which com- plained. Appellants plain. have correctly noted

on the record that Typical conditions in the prisons in- [p]laintiffs were ... both assailants and cases, volved in the above cited where com- victims, weapon possessors, violators of plainants relief, injunctive were limited to rules, security always men to take ready were the conditions in the Arkansas State advantage of one another violent Penitentiary System. The Circuit totally unwilling

means and to share decision found that fraught to be knowledge weapons or assaults with conditions, with cruel and unusual includ- prison personnel ....3 alia, ing, the following: Ninety-nine inter percent of security force at one of the prisoners damages demanded and in- prisons comprised “trusty was of so-called junctive relief from pris- D.C. officials and inmates” or privileged inmates alleged administrators for violence that “trusties” — over, abused, tortured, beat, who lorded report (Tr. refused to 297, 322, 338, occasionally even 349, 375). murdered fellow inmates More significantly, Sarver, charge. this case under represent supra, would the first case in their Holt diligent America that research could at 373-76. With to the respect find system, where an award of money damages “trusty” “just to a court noted upheld. every system class of had been about abuse which the is capa- Individ- produced ual had been ble of has previously producing awarded been torts, money damages for individual but so being practiced Id. at 374. State.” 3. Memorandum of Points and Authorities text statement describes Support Judgment monetary of Motion of Defendants for who would be the beneficiaries of the or, Notwithstanding provided jury the Verdict the Alterna- for award verdict and the tive, or, Rehearing judgment for a New Trial and of the District Court. Alternative, Remittitur; R. 187 unavailable. Id. at 380. subpar largely inmate qualified the lack of Because of in the kitchen were “de- 1,000 Sanitary in- conditions housing facility supervision —one sum, Id. these conditions plorable.” guards eight had noninmate mates —vio- world,” evil id. at “a dark and exhibited un- completely inmates went among lence pale. the constitutional beyond far true in the particularly checked. This tolerable the Ar- constitutionally “However dormitories, upwards where “open barrack” may have been in former system kansas assigned barrack were per of 100 inmates not as the simply today will do years, but rank and regard anything “without goes eighth into Century Twentieth [its] of Stabbings in the dead race.” Id. at 376. Id. at 381. decade.” “creepers”4 were “crawlers” and night by by the and often condoned commonplace un finding prison Other cases conditions “ themselves, ‘in who were often “trusties” a concatenation of constitutional address ” (quoting Holt, Id. league with the assailants.’ those condemned in factors similar to 825, 830 (Holt I), F.Supp. 300 Gates, Usually, Holt v. Sarver a substantial Pugh.5 Gang were fre- (E.D.Ark.1969)). rapes coalesce in deplorable number of factors “lookftng] on often with “trusties” violation has quent, prisons where a constitutional Id. at single or satisfaction.” a only indifference been found. Where —as here — confinement, the so barrack-style alleged 377. Of this is must be factor —violence—it said, inflic pervasive systemic as to constitute a court in sum: tion, action. It is particularly in a class assaults, fights, stabbings Sexual ac judgment that a in a class elementary some inmates in such put in the barracks harm to the proof tion must be based on of them to fear that it is not unusual for case, is insuffi present class. In the there come to the front of the barracks and light evidence viewed in the most cient night. practice, the bars all That cling to from which a rea favorable to the verdict which is of doubtful value is called “com- juror could infer that the official sonable ing “grabbing to the bars” or the bars.” system the defendants caused a policies of Clearly, clung a man who has to the bars to an unreason exposure atic class condition work the night poor all is harm. physical able risk next day. “overcrowded, statement ex Judge separate Id. Isolation cells Edwards’ pages misconstruing Id. at 378. In- its first nine filthy, unsanitary.” pends paragraph, thereby setting up a given foregoing mates in isolation were unsuitable impose “strong would a among food and were forced to live rats. straw man who must show that general, presumption Id. For the inmates in there was have been brutalized not one but a program any no rehabilitation kind. Id. condi ‘substantial number* of inhumane at 378-79. Medical and dental care ed, (1st Cir.1979) (sanitation, lights, “Creepers” 17 and “crawlers” are inmates who 599 F.2d ventilation, noise, idleness, dormitory sleep- heating, slither across floors to attack fear and ing dormitory. parts violence, inadequacy programs “enemies” in other absence or classification, education, recreation, and voca See, Estelle, (5th e.g., George, training). Ruiz v. 679 F.2d 1115 v. tional See also Villanueva Cir.), part part, (8th Cir.1981) (en banc) (pre amended and vacated 688 659 F.2d (5th 1982) (overcrowding, detainee) (“[Our F.2d 266 Cir. under- trial is ... based decision] classification, sanitation, care, staffing, medical ”); upon totality of the circumstances .... physical safety, segregation, isolation and reha (7th Madyun Thompson, v. bilitation); Lamm, Ramos v. 639 F.2d 559 Cir.1981) (“We essence of are aware that sanitation, food, 1980) (shelter, Cir. overcrowd Eighth Amendment violation consists ing, safety, understaffing, inmate health and totality the conditions confinement.” psychiatric care), cert. Edwards, added)); (emphasis su Williams Williams (“Totality pra, 547 at 1211 of conditions Edwards, (5th Cir.1977) (vio 547 F.2d 1206 (emphasis Eighth Amendment." violate (270 stabbings, years), in three lence deaths Saxbe, F.Supp. original)); Bono v. safety overcrowding, understaffing, fire and Gabriel, (S.D.Ill.1981); Heitman v. care, hazards, sanitation); Palmigiano v. health (W.D.Mo.1981). F.Supp. Garrahy, (D.R.I.1977), remand dence, tions are before entitled to rélief under viewed most does favorably, not con- Amendment,” (emphasis p. 960 proof. My stitute such colleague asserts single added). my opinion But is adequately states “a court prepared 950; sufficient, supra thorough ctoi’" undertake examination of the fa require support evidence jury it does not “a substantial number verdict. That statement inhumane conditions.” So to assert erroneous. The court is not .6 only adequately gross single systemic prepared misstatement A re- thoroughly evidence, support can class action. view but that duty. condition is its And aas result of such review find it insuffi- actions, pages as discussed Class cient to verdict. separate opinion, my colleague’s 964 of Prisoners in Maximum are to confined designed necessity to eliminate because, gether of all in the insti bringing multiplicity “a identical cases.” tution, they have demonstrated their de- But class actions were intended or conduct, prior in or of prison, out that proof of signed reduce the standard present the maximum risk of or violence or single required one case to substitute escape. setting is, best, “Prison at tense. of large smoke screen facts for concise It is sometimes explosive, and always poten required of basic proof elements tially dangerous.” McCune, Marchesani v. prove alleged. practically the case That is 459, Cir.), I here in of happening what see the failure 846, 429 U.S. 97 S.Ct. alia, plaintiffs prove, any inter (1976). The of existence some violence in caused proximately official conduct even unavoidable, prisons is given the character allege. one of them the harm This society place must behind prove in addition to their failure to under- bars. staffing, excessive violence or overcrowd- As Justice Powell noted in Rhodes v. discussion, ing. See infra. Chapman, 452 U.S. 101 S.Ct. (1981) added) L.Ed.2d 59 (emphasis I. Violence (footnote omitted): prisoners complain Maximum of vio- proceed This Court must cautiously However, lence. this court other making courts judgment Amendment because, it, have held that the existence of a of number unless we reverse deci- “[a] in a given per given assaults is not se punishment sion that a is impermis- common by negligence “unreasonable” law under the Eighth sible Amendment can- States, Murphy standards. v. United not be reversed short of a constitutional (D.C.Cir.1981). F.2d 637 we amendment,” As noted in and thus cannot “[revisions Murphy, en- unfortunately made in the light experi- further “[violence er, demic to here the American class, prisons must .... prove] [A ... prison- ence.” [96 Gregg v. Georgia, 428 U.S. 49 L.Ed.2d ^[153] 859], numbers in question] assaults were In assessing claims that conditions [the] [of range normally unusual, outside the of violence asso- of confinement are cruel and type penal institution, ciated with this courts must bear in mind that their in- any subset of suffered from quiries “spring from re- (em- an unusual risk of attack.” at 642 quirements judicial Id. and that answers to added) phasis (footnote omitted). Here them must reflect that fact rather than a required prove court’s operate idea how best clearly range assaults exceeded the vio- Wolfish, detention Bell facility.” lence normally associated with groups ^[520] [99 violence-prone the most felons. Their evi- L.Ed.2d 447].7 Fano, 215, 229, merely 6. Other misstatements will leave to also Meachum v. 427 U.S. 2532, 2540, judgment (1976) 96 S.Ct. the reader. L.Ed.2d (“[F]ederal supervise courts do not sit to state First, Maxi- decided cases. the assaults in wanting more is even jury expertise And substantially lower than in very Powell mum are expertise. Justice judicial than case, Holt, and the rest. In this Pugh, Procunier v. quote Rhodes to went on in (13.866) as- average while an of fourteen 396, 404-05, Martinez, 94 S.Ct. inmates on other inmates per year by (footnote saults (1974) 40 L.Ed.2d year the seven-and-a-half reported omitted): 1980,8 July one period only from 1973 in America are prisons problems “[T]he occurred, may have and the evidence death intractable, and, more to the complex within the is inconclusive that occurred readily susceptible of point, they are not (Tr. 348). complaint. covered period require Most ex- resolution decree. causing injury place. mass took No riots and the pertise, comprehensive planning, “trusty” system, was no with its at- There resources, all of which are commitment of ill-effects, operation. Murphy tendant leg- province within the peculiarly States, supra, which involved United executive branches islative housing Lorton Youth about 560 Center — reasons, For all of those government. court decidedly less violent inmates —this equipped are ill to deal with courts twenty ruled that inmate assaults increasingly urgent problems year calendar six of which occurred in rec- and reform. Judicial administration dormitory housing youths, a hundred reflects no more ognition of that fact court as high were “not so as to strike this than a sense of realism.” healthy 653 F.2d at 642 n. 19 per se unreasonable.” Chapman, supra, at 351 added). prece- In view of that (emphasis n. at 2401 n. 16. deal, dent, my colleague with which fails to vio- Though Maximum does some average I cannot conclude that an of four- lence, by statistics offered per year teen or fifteen assaults average only at trial show an fifteen security facility maximum at issue in this inmates on other in- per year by assaults case—which houses 400 inmates —is suffi- 1980. JA 154-58. mates from to Such support finding cient to that the number support a low level of assaults does not unreasonable, of assaults was excessive or claim of the infliction of cruel and unusual protection. indicative of insufficient punishment upon plaintiffs under their own population nature of the Maximum alone or under our decision in expert testimony, anyone expect greater would lead risk by which should control vir- Murphy, population of assault than would here — precedential tue of its value and its reason- facility Youth Correction that was involved Comparative ableness. statistics were not A Murphy. comparison of the assault introduced into evidence and so we are left statistics for Lorton’s Maximum with those such statistics as we can from glean complex Youth is set in Lorton’s Correction Martinez, Carson, prisons ”); comparison, Procunier v. in Miller v. 563 F.2d .... 396, 404-05, (5th Cir.1977), percent in- 40 L.Ed.2d some year question. (1974) (“[T]he problems prisons mates were assaulted intractable, complex If last the assault record at Lorton for the half America are and ... readily susceptible of 1980 were assumed to continue at the same are not of resolution during year, decree.”); rate as first half of the Dept. Sweet v. South Carolina average per year Corrections, (4th Cir.1975) would be increased to 15 (14.875) per year eight year period. (en for the banc) (“Because judicial of this want of expertise, ‘prison average figure period officials must be accorded An assault over affairs,’ represents approach latitude in the administration of most reliable to evalu- conditions, [citing judgments ating appellees seeking and their are entitled since cases] cases].”). ‘great weight’ [citing damages period; damages over the could not period violence be awarded for a of time when i.e., unreasonable, per year allegedly 8. That there were 14 assaults indicates was not before slightly percent my colleague’s separate opinion that less than 4 of the inmate as would population By p. Maximum assaulted. 966 n. 30. do. See assaults, margin.9 gravamen forth in the Since .total number of as discussed elsewhere, vio- prisoners’ is excessive complaint fully Judge not excessive. As lence, their proof Oliver, their does not Merhige in Penn v. stated their complaint and claim that incidence (E.D.Va.1972): with- of assaults was cannot unreasonable fantasy It would be believe that even Murphy. stand our decision in enlightened prison most op- officials erating On the issue what amount of violence with unlimited resources could may reasonably expected, sig- be is also prevent all acts of violence within the Miller, Eugene plaintiffs’ that Moreover, nificant prison. even if a offi- witness, penological expert own testified through negligence pre- cial fails his per that twenty twelve to inmate assaults violence, vent an act of a violation of year expected range Maximum was right necessity is not Thus, by of such JA 243—44. assaults. stated. standard, plaintiffs’ average own an complaint That case involved an individual year, per falling fourteen fifteen assaults under 42 the principle U.S.C. § range below expected within even more to a applicable class action case. we Murphy, found to be reasonable in can- My colleague’s opinion naively ignores the not be held to constitute sufficient evidence expressed Merhige. wisdom by Judge It of the official defendants infliction pointed prison- should also be out that the punishment cruel and unusual on the class. testimony ers’ specificity violence lacked Prisoners with the most extreme records parties as to the involved and the dates. propensities violent and violent crimes greatest But the defect in their testimony expect cannot life in a maximum se- lies in the failure to establish a nexus be- curity prison, where their classification re- unspecific tween assaults the offi- housed, quires them be will devoid of cial policies of District officials —a failure all expectation violence. Such is plainly to prove proxi- policy official unreasonable, except high- even more complained mate cause the harm of. ly All structured environment.10 the While the as testimony to the assaults had prisoners right reasonably had a to demand the ring prison such truth for a as Maxi- was that violence Their not excessive. mum, much of the as to testimony causation own evidence demonstrates that it is not. had self-serving defect. the general On statement, issue of separate

In Part the amount of violence II.C. his staffing my colleague required, colleague’s separate my refers to some of the evidence opinion asserting violence at Maximum. While these inci- view my by misstates it to horrendous, dents are the character be my “average conditions” might violence does not exceed what one will invariably pass constitutional muster. expect security prison, in a my is, maximum and But that is not which opinion, stated capacity 9. Lorton’s Maximum of 400 and had Center, according Lorton’s Youth Correction data, Department of Corrections had an aver- age population inmate of 562 for the calendar 22, year Report 1976. Annual 26. The sta- by plaintiffs tistics introduced include the fol- lowing comparative “Assault Information” for Youth Correction and Maximum for the fiscal years year overlapped calendar Plaintiffs’ Exhibit JA 154:

954

rather, lacking specificity. much better than Plaintiffs’ evidence that conditions fact, than understaffing, those on on which it bears the average better,— Murphy found reasonable proof, obviously court burden of insufficient. expert not find Moreover, which witness did plaintiffs’ prisoners neither the nor col- my insufficient to be unreasonable —were what league proven have the minimum finding of a constitutional viola- support a is, merely calling standard Maximum tion. “understaffed” does not make it so. 24-442, the District of Under D.C.Code § Staffing II. prisoners duty Columbia owes the identical staffing also contend protection of “reasonable care in the a cause inadequate thereby was and was them safekeeping” principles owed under my violence. view the negligence. common law Gaither v. Dis discharged prove by their burden to Columbia, (D.C.App. trict of 333 A.2d staffing of the evidence that preponderance not, however, 1975). personnel Prison inadequate. Understaffing has been safety. insurers of an inmate’s Matthews in several cases. The extensively discussed Columbia, (D.C. v. District of 387 A.2d 731 average guards national of inmates to Thus, App.1978). the fact that an inmate is prisons United is 5 to 1. Ruiz v. States not, injuries assaulted and sustains does Estelle, (S.D.Texas F.Supp. itself, liability. establish District of Colum 1980), part part, aff’d in and rev’d in Davis, (D.C.App. bia v. 386 A.2d (5th Cir.), part F.2d 1115 amended in 1978). “The must establish [inmates] (5th Cir.1982). part, vacated in 688 F.2d 266 care; competent evidence a standard of Any figure appreciably above that ratio has violated that stan defendants] contributory been held to cruel and unusual dard; and that such violation proximately Estelle, supra, conditions. In Ruiz v. Hughes caused to the injury v. [inmates].” example, 679 F.2d at the Fifth Columbia, District of 425 A.2d prisons Circuit determined that Texas state (D.C.App.1981). The prisoners’ evidence is high inmate-to-guard had an unacceptably insufficient to this standard. satisfy Locke, ratio 12.45 In Pugh supra, the ratio was duty imposed requires defendants 9.3 to grossly inadequate. 1—still “the ordinary diligence exercise of to keep prisoners safe from and free harm.” Jones At Lorton there were 122 guards at Max- States, (5th Cir.), United charge prisoners. imum in of some 400 JA inmate-to-guard 151. The ratio was thus L.Ed.2d 586 antisocial Some behav 3.27 to 1. This is much better than the expected ior is to be in a environ average national of 5 to not to mention ment; accordingly, government is not Pugh. ratios Ruiz and As a matter id.; safety prisoner, an insurer of the of a law, therefore, such a ratio was not States, Fleishour v. 244 F.Supp. United or “woefully inadequate” “impermissibly so (N.D.Ill.1965), aff’d, 365 F.2d 126 high” as to constitute sufficient evidence denied, (7th Cir.), cert. 385 87 U.S. S.Ct. that constitutional standards were violated. (1966), here, 17 L.Ed.2d colleague seeks to My argu- term this an prisoners class of all in Maximum. “The standard,” ment “industry for an with its defect, government’s liability ultimately depends fig- well-known but the Maximum upon ure whether the risks it took were reason percent is 34 better than what he would industry term the standard. And col- able or unreasonable.” Cowart v. United my league suggest States, (5th Cir.) does not any (empha ratio he would acceptable. argument added), find His is sis totally U.S. implicit present This indicates that the assault ratio in Maxi- 10. The calculated risk condi- plaintiffs’ mum was even less favorable to con- tions is discussed infra. tentions. (1980).11 To im- exist —the would probably S.Ct. eventual solution pose liability on District its officials be to increase greatly prison- restrictions on requires also their actions were proof ers’ by creating freedom of movement a cause of the proximate foreseeable more Locking controlled environment. above, alleged injuries. Id. As stated prisoners in their for greater periods cells case not necessary element of the has been might Also, time be one solution. their proved. ability to prisoners associate other might substantially be curtailed. Such (or readily negligence Courts will not find practices might impede also rehabilitation. the official infliction of cruel and unusual punishment) presence from the Would a remedy some welcome risk, as is required indicated the so-called “calcu- them to confined to their cells be lated risks” test first articulated in Fleish- time, periods more substantial There, recognized our. the court that it is have their freedom to associate with other restricted, severely more or to practice

standard penal modern institu- have their movements otherwise hobbled? tions to take calculated risks in various lawsuit, If they prevail may in their such life, work, aspects housing, rec- the result. reation, others, worship religious so Considering evidence, my all is learn to get along view that the choices Lorton made with other as persons part the rehabili- prisoners’ reasonable and were made in the process. is, tation The result that from interests. result has been uncrowded time, time to episode there occurs an such conditions, living commendable freedom as that here gamble involved in which the unacceptable a incidence as- injured. is lost and another prisoner is saults. Prison .officials do not 244 F.Supp. at 767. also Williams v. luxury selecting their clientele. There States, supra, United at 584. will always danger be a of assaults when Thus, Fleishour, housing a number of dangerous most and violent criminals room, big inmates in a one room which single confined of a prison section wall, there was a fire extinguisher on the facility, as must pris- be. But unless constituted a rehabilitative program that up ons lock such prisoners in individual cells involved a calculated risk that excusably greatly their restrict freedom of move- backfired. finding negligence No was ment within the facility, as once the warranted —even in a involving case a sin- practice, such institutions must be permit- gle individual. view, ted to take calculated In my risks. It obvious from the record that evidence here insufficient to support here, extent, rep- conditions to some finding the risks in Maximum ex- resent a calculated risk by preferring taken ceeded what was reasonable or that to allow more freedom rather than closer “ conditions Lorton the unnec- ‘involve[d] negligent, confinement. Were the officials ” essary pain.’ and wanton infliction of or inflicting cruel and punishment, unusual Chapman, supra, 452 U.S. at in allowing the inmates at Maximum the (quoting Gregg Georgia, freedom of movement they enjoyed? 153, 173, If of allowing prisoners the result such (1976) (Stewart, Powell, L.Ed.2d Ste- (with freedom no overcrowding, more vens, JJ.)). adequate than ratio staffing of 3.27 to I not also have unacceptable prisoner difficulty agreeing a av- some to a assault of erage fourteen or new A year) fifteen were to trial. new trial will not the change be that District must taxpayers pay average over a facts that assaults were only four- half a million dollars the prisoners— year, staffing to teen or fifteen the of many problems whom cause the or ratio was 3.27 to that 400 inmates in Prosser, generally, 1971). 11. Law of Torts ed. the overcrowding. above that made a case in do not

Maximum establish Court, com- theory plaintiffs’ acquiesces of the but Ed- Judge Under District unchangeable these facts substan- plaint, for opinion wards’ the Court. for their

tially principal undercut the basis result, as a ED- Separate that the class was harmed Statement of HARRY T. claims WARDS, cruel and pervasive negligence Judge: of Circuit officially inflicted punishment unusual Though Opin- concurs the foregoing he to me that appears on the class. It thus Court, has Judge ion for the MacKinnon unchangeable evidence vital elements as to separately,1 expressing written his individu- plaintiffs’ their complaint disproves ade- al view that there not have been difficulty I also have considerable claims. presented at trial quate evidence to money dam- supporting a conclusion that Though, rendered. before verdicts can ages be awarded to a class Court, appellants routinely moved District who many prisoners in mass that includes verdict, judgment notwithstanding for complained causing are the conditions argued ques- appeal have not cooperate help will not correct to In sufficiency tion of the of the evidence. them.12 circumstances, only it these seems to me not re- summary I close with a statement but unnecessary unwise for this court opinion. garding my colleague’s separate adequacy evidentiary discuss of the available, He attacks what statistics but foundation for the decisions reached below. nothing in their He ex- place. substitutes inquiry My engage reluctance such an violence, aggerates understates overcome, however, by my sense of the staffing, misstates and deems my opinion, allowing of not importance some of to reward a inmates for proper class of Concurring Opinion statements causing level alleged violence whose I, therefore, my pass uncontested. offer on un- substantially upon speculation based separate prevent own statement in order to reported assaults. The definite number any misimpressions regard- the creation that were actually assaults recounted ing legal gov- of the content doctrines does not up trial add to a constitutional erning permissible conditions of incarcera- violation; to hold that it trivial- does would dispel any tion and doubts concerning colleague’s ize My constitutional violations. sufficiency of the evidence adduced below. assaults, and upon unreported reliance he assumes after assaults were committed I. Prison Conditions As “Cruel lawsuit, period covered consti- by the Unusual Punishment” a tacit admission evidence of tutes that the view, the my most serious misstate- to sup- assaults the record is insufficient Concurring Opinion ments of law port verdict. concern liability standards under However, above, reasons as stated for set Eighth aspects Amendment. Four of its Judge forth in for the Edwards’ presentation the constitutional doctrine court, judgment I vacating concur in problematic: are especially explication its new trial. remanding the case for a test; “totality of the circumstances” statement, permissible he separate As indicates in his its discussion levels of violence; Judge expressed analysis Robb shares the doubts con- its effect on scrutinizing fact-finding negligence 12. A committee Maxi- official or a for tort problems in 1979 sanitation re- mum found which the District Columbia should be hygiene pris- compensate quired to the were attributable the inmates. The Consti- require recom- in- oners themselves. The committee tution does to service required mended that inmates mates’ cells. “[a]ll [should] subject daily clean to disciplinary their cells on a basis noncompliance.” action JA convenience, my 1. For the sake of I will refer to neglect agree cannot that such their separate colleague’s statement as the “Concur- own cells and the constitute condition it creates ring Opinion.” Hitherto, stitutional norms of of the the “totality invocation class of the circum procedure; action and its assessment of always stances” test has been used as short significance “average” prison conditions for or insights. First, hand one both of two determining what constitutes “cruel and separate prison conditions that exacerbate unusual dis- punishment.” These issues are must, course, one another be considered cussed in order below. together to determine whether their impact cumulative is sufficient to violate “Totality A. The of the Circumstances” the ban on “cruel punishment.” and unusual Test Thus, a particular procedure when or form One arguments of the principal used treatment, punitive such as or solitary Concurring into Opinion question call confinement, challenged, one must exam sufficiency ap- of the evidence is that all ine of the aspects constituent of that pellees’ allegations of constitutional in- whether, form of incarceration determine fringement limited, for the most part, combination, they run afoul of the Con one aspect dimension their incarcer- 678, stitution. Hutto Finney, v. 437 U.S. Concurring Opinion ation. The insists 685-88, S.Ct. 57 L.Ed.2d alleged only the inmates they were Mason, Maxwell v. 668 F.2d exposed to excessive risk of assault and Cir.1981). & (8th n. 8 princi The same (caused or sexual abuse aggravated by vari- ple applies when assessing one is the consti conditions), ous and that appellees failed tutional of prison status as a whole. Inso show or even assert that other conditions at far as ‘touchstone’ of the Eighth “[t]he care, Maximum —such as health food ser- Amendment inquiry upon is ‘the effect vice and rehabilitative and pro- recreational ” v. imprisoned,’ Chapman, Rhodes 452 U.S. grams below constitutional standards. —fell 337, 366,101 2392, 2409, S.Ct. 69 L.Ed.2d 59 Concurring that, Opinion suggests thus (1981) (Brennan, J., concurring) (quoting complaint because appellees’ was so narrow- Helgemoe, Laaman v. focused, ly they were not entitled to relief (D.N.H.1977)),3 it is not sufficient to con unless could show that conditions sider, seriatim, the prison influence on the the identified unusually dimension were ers each of arbitrarily designated various brutal. (health care, food, dimensions of life In advancing argument, the Concur- safety, etc.). inmate Conditions each of ring Opinion to rely legal intends on a theo- combination; these areas “exist in af each ry adopted judicial has been in many other; together fects and taken opinions construing Eighth Amend- [may] impact a cumulative on the in ment —a theory referred as frequently ” Sarver, mates .... Holt 309 F.Supp. v. “totality of the circumstances” test.2 (E.D.Ark.1970), aff’d, 442 F.2d 304 .373 The suggestion Concurring in the Opinion Cir.1971). (8th if no single “Even condition that one “totality must consider the of confinement would unconstitutional itself, given prison, by circumstances” at a itself, ‘exposure to the cumulative effect Rather, surely objectionable. is not what is may subject conditions inmates here apparent troublesome is the construc- ” punishment.’ cruel and unusual tion “totality circumstances” 363, 101 Chapman, test 452 U.S. at at 2407 Concurring Opinion offered —a (Brennan, J., construction that I judi- concurring) find odds with (quoting Laaman precedent. cial Helgemoe, 322-23)4 v. 437 F.Supp. at See, Miller, e.g., Clay (discussed rights”) Opinion v. 626 F.2d tutional for (4th Cir.1980) curiam). (per Court, IV.). Part 247, 254, Carey Piphus, Sullivan, 3. Cf. also Smith v. F.2d (1978) (reaf- (5th Cir.1977); Edwards, Williams v. 547 F.2d firming principle purpose (5th Cir.1977). Hop that the of consti- But see persons compensate Ray, tutional tort “to actions is towit v. Cir. injuries Rushen, deprivation 1982); Wright caused of consti- 1132- colleague extent that means to my the “to- To the insight embodied in The second test consists these tality insights, of the refer to two his invocation of circumstances” and a of the unusual structure recognition “totality of the test the circumstances” terms of challenging suits purpose of most in But the manner which unexceptionable. Eighth on the the incarceration basis of distinguishes Concurring Opinion the the belong to Such controversies Amendment. prior action from some cases involv- instant that litigation a has special category spectra of viola- ing broader constitutional enforce- “complex been denominated be suggests may that more intended. tions Among atypical ment.” the features appear Concurring Opin- It would from the sort, suits two the of this are relevant “totality ion that attention to the of the First, present wrong the attacked context. implies prison that a must circumstances” transgression is not discrete on the single, a brutality with be rife before defendant, part system of the but argued is thus barriers breached. It behavior, “practice” engaged related “deplorable one or a few factors” rare- that Second, over time entire by an institution.6 ly enough; usually will inmates must (on plain- willingness part of both “a of out- demonstrate substantial number” court) systemic tiff to mount such a rageous get conditions before can re- vision,” a “transformative attack reflects insights of the lief.9 Neither two discussed illegality conviction real source of that this any support suggestion. above lends organization is the of the institution That two more exacer- conditions question, the delicts of its individual not bate one another does mean that a not officials, should and that law can and condition, enough, if single serious cannot and, if dig deep necessary, substantially Eighth violate the Amendment. And that that reorder that institution to ensure its adjudicator enlarge often must his field society’s conduct is consistent with the fun- to include all of an aspects vision institu- applied Eighth As damental norms.7 does imply tion’s structure and behavior suits, Amendment both of these features that must be one he blind to vicious or attention imply parties that the of the practice. degrading adjudicator ought to be directed at the view, conduct In my proposed structure and of the as a test whole, separate Concurring Opinion not at facets or conditions.8 is also inconsistent with Cir.1981) (both holding relatively Only recently Eighth that condi- 8. has begun systemic tions in various dimensions of life Amendment to be used way. 1960s, independently). principally must be evaluated Without Before the used approving holdings Hoptowit individual, judicially-imposed to evaluate sen- Note, Persons, Wright, noting Creatures, it is worth are incom- See tences. Pris- patible my colleague’s Evaluating conclusion Under oners: Prison Conditions deplor- Amendment, “a coalescence of substantial number 55 S.Cal.L.Rev. necessary give (1982). usage pro- able factors” is rise to cruel modern however, punishment. vision, firmly and unusual is now established and imprimatur Supreme has received the Chapman, Note, Complex Court. 452 U.S. at 5. See Unconsti- Enforcement: Conditions, 101 S.Ct. at 2398-99. tutional Prison Harv.L.Rev. Sargentich, Complex (1981); L. Enforce- that, (March 1978) (unpublished manuscript) fairness, points, ment 9. I would at a few note (on Library). Concurring Opinion appears file at Harvard Law School to concede special litigation single might give Other of this studies kind of that “a factor” rise to a con- pervasive Chayes, Judge include The Role of the in Public if “so stitutional violation —at least Litigation, systemic Law Ei- as to constitute a To the infliction.” Harv.L.Rev. 1281 Yeazell, senberg Ordinary represent the Extra- & extent these ac- concessions knowledgments ordinary Litigation, “totality in Institutional condi- 93 Harv.L. (and nothing nothing test tions” does more Rev. 465 less) embody insights just describ- than the two ed, quarrel aspect my I cease with this Sargentich, supra note at 9-22. colleague’s opinion. To the extent incomplete, my objection retreat stands. Id. at 77-85. body opin- an enormous of law. case Court reaffirmed the holdings of Estelle v. legion unaccepta- ions are that indicate Gamble and v. Finney, that Hutto that either the denial of by ble in medical care itself or conditions even one of the dimensions the of kind multifaceted inhumanity that char- by Concurring identified the will Opinion the prisons acterized Arkansas would con- Moreover, run afoul of the Constitution.10 stitute “cruel punishment.” and unusual the in the courts most of cases have that 347, 452 U.S. at 101 S.Ct. at 2399. The deplora- involved “a number substantial of then say: Court went on to ble the thereby factors” stated rules Conditions than other those in Gamble violated as independent re- Hutto, combination, and alone or in may clear quirements making it — deprive inmates of the minimal civilized condemning and identifying sep- series of measure of life’s necessities. Such condi- violations, Eighth arate any Amendment tions could be cruel and unusual under one of which alone would constitute “cruel the standard contemporary decency of punishment.”11 unusual the Finally, we recognized in Gamble. by Concurring standard advocated (emphasis Id. added).12 Opinion is Supreme inconsistent Eighth Court’s recent of analysis Amend- test Concurring elaborated ment doctrine. Chapman, Opinion appears especially implausible See, Gamble, 97, e.g., amendments”); Kirby 10. Blackledge, Estelle v. 429 U.S. fourteenth v. 103-04, 285, 290-91, 97 583, S.Ct. 50 251 (4th 1976) L.Ed.2d (holding F.2d 530 587 Cir. (1976) (dicta) (medical care); son, v. Maxwell Ma alleged by combination of conditions “[t]he (conditions solitary F.2d at 668 363-65 ... have the cumulative effect of confinement); Levine, 158, Withers v. 615 F.2d being punishment.. cruel unusual .. (4th Cir.) (threat 161 sexual of assault from Many of the circumstances taken alone reach 849, inmates), denied, fellow cert. 449 U.S. 101 punishment, of the level cruel unusual such 136, (1980); S.Ct. 66 L.Ed.2d 59 Leonardo v. cell, inadequate as the Chinese exercise and Moran, 397, (1st Cir.1979) 611 F.2d 398-99 treatment, inadequate heating medical tilation, and ven (dicta) (threat inmates); from violence other prison and lack of access to the li Teasdale, 59, (8th Burks v. 603 F.2d 62-63 Correction, brary.”); Finney v. Arkansas Bd. of Ward, Cir.1979) (overcrowding); Todaro v. 565 194, (8th Cir.1974); 505 F.2d 200-09 Gates v. (2d 1977) (medical care); F.2d 52-53 Cir. Collier, (5th Cir.1974) 501 F.2d 1301-10 Walker, (7th Little v. 552 F.2d 197 Cir. (applying theory the cumulation to various fac 1977) (exposure to violence and sexual abuse affecting safety holding tors inmate but by inmates), other proved independent had constitution S.Ct. Woodhous hygiene, al violations in care, areas of health Virginia, v. Commonwealth of 487 F.2d confinement, solitary corporal punish (4th 1973) curiam) (per (threat Cir. of vio ment, upon “trusty” guards); and reliance inmates); lence and sexual assault from other Jimenez, Rodriguez F.Supp. Martinez 582, v. Rhodes, F.Supp. Stewart v. (S.D.Ohio, aff'd, (D.P.R.1976), (1st 551 F.2d 877 E.D.1979) (prolonged, punitive use 1977). Sarver, “four-way” physical Cir. But see Holt v. of Eighth restraints violates holding at Amendment to the unrelated [a finding segrega court’s additional that racial tion of violates Fourteenth Brennan, joined by 12. Justice Justice Blackmun Amendment]), dismissed, appeal 661 F.2d 934 concurrence, more stress did laid than Milwaukee, (6th Cir.1981); County Kish v. totality majority on the need consider the (E.D.Wis.1969) (expo 48 F.R.D. 103-04 prison conditions. 452 U.S. at sure to violence inmates), subsequent disposition other and sexual abuse recognized 2407. But he too that a aff'd, 441 F.2d incarceration, single circumstance of inconsist- (7th Cir.1971). decency, contemporary ent with standards of would violate Thus he ob- the Constitution. See, e.g., Ray, Hoptowit v. 682 F.2d at 1246- served, case, if," single given “no “[e]ven 47, 1250, 1252-53, 1257-58, 1259; Wright v. condition confinement would be unconstitu- Rushen, (dicta); Campbell 642 F.2d at 1133 itself,” prison tional the combined effect Cauthron, 1980); Cir. conditions violate the Amend- Edwards, (after Williams at 1219 clearly leaving open possibility that affirming judgment of the trial court that ment — single might, degrading it- a self, circumstance totality “the conditions” punishment. unconstitutional, amount to cruel unusual appeals court went added). that, (emphasis by itself, Id. at at 2407 “the hold level of medical eighth care” at the “violated tional rights prisoners.14 when to the of this case. As- applied Every facts modern poor diet or inade- suming, arguendo, in the field has affirmed as much. more, quate clothing, without cannot rise to Thus, immediately following the language violation, the level it is of a constitutional Concurring Opinion Rhodes that same can be difficult to see how the said of telling, finds so the Supreme Court makes it prevalence Many members violence. plain that: beaten, have been appellee class certainly responsibility Courts have a raped.13 stabbed or The remainder live in to of cruel scrutinize claims and unusual assaults. constant fear of such Undoubted- confinement, and conditions in a number ly or physically psychologi- several will be ones, of prisons, especially older cally maimed when —and leave the if— as justly “deplorable” been described and that, prison. coupled unless suggestion “sordid.” When conditions of confine- inhumanity, prolonged with other forms of ment amount and pun- to cruel unusual subjection and to such harms risks cannot ishment, “federal will discharge courts punishment” constitute unusual “cruel and their duty protect to impossible to fathom. rights.” short, Concurring Opinion appears the (footnote at 2401 U.S. 101 S.Ct. concept to seize of the upon “totality the omitted).15 and citations circumstances,” ignore the its well-estab- foundations, meaning legitimate lished Exposure B. to as a Form Violence strong and transform presumption it into Punishment must show that they have Possibly the weak underpin- because of been brutalized one but “a by not substan- nings “totality of its variant of the tial number” of conditions inhumane before standard, circumstances” the Concurring they are Eighth entitled to relief under the Opinion weight does not all of its on place only suggestions Amendment. The in the goes opinion stanchion. The on to Concurring Opinion why as such a drastic regarding sketch the state of law per- the doctrinal reform be warranted might missible levels of inmate violence under the the judicial language references to counsel- Eighth Amendment. thrust of the ing caution and when assessing restraint that, analysis appears to even if we prison admonitions, conditions. Those how- issue, consider only appel- violence ever, provide no for the proposal lees have failed to show that advanced in Concurring Opinion. While exposed sufficiently to a serious risk of it is federal certainly true that courts must stringent harm satisfy requirements accord legislators prison officials some for making out a constitutional violation. latitude in designing testing solutions The Concurring Opinion purport does not “to perplexing sociological problems any legal concerning state clear standard how goals best to achieve of the penal how prevalent prison violence must be be- justice function in the system,” criminal fore the Constitution offended. How- Chapman, U.S. ever, equally S.Ct. at it is true that various comments —re- courts have duty protect garding “unavoidability” frequent constitu- rights. 13. See Part II.C. infra. United States Carolene Prods. Co., 304 U.S. 153 n. 58 S.Ct. 784 n. Indeed, special Ely, place (1938); in our J. Democracy L.Ed. 1234 society dependent judicial 135-36, makes them more Distrust protection any perhaps group. than other Few insular,” minorities are so “discrete so lit- Wolfish, 520, 562, See also Bell v. through partic- tle able to defend their interests 1861, 1886, (1979); L.Ed.2d 447 ipation political process, so vulnerable to Martinez, Procunier 416 U.S. oppression by unsympathetic majority. 1800, 1807-06, 5.Ct. special responsibility Federal courts have a Beto, Cruz v. ensure the members of such defenseless curiam). (1972) (per 31 L.Ed.2d groups deprived are not of their constitutional assaults, congenital peals viciousness maxi- was concerned phrase that a used in inmates, mum-security and the legitimacy prior its decision in Woodhous to describe taking officials “calculated risks” conditions at the question16 had —give general impression nothing improperly been construed as a statement short of open among prisoners, warfare of the threshold of liability. The court cor- countenanced guards and adminis- the misinterpretation rected in the follow- trators, will state a claim ing under the terms:

Amendment. pervasive A risk of harm may not ordi- be shown narily by pointing to single expose To the fallacy inherent in this incidents, incident isolated but it may conception law, state of the one be established by much less than proof of only quote needs a few leading a reign of violence and terror in the par- opinions the field. The central norm in ticular institution. The defendants seized that, this area is upon that explanatory phrase from prisoner right, has a secured [a] Woodhous to something contend that ap- amendments, eighth and fourteenth to be proaching must anarchy proven be before reasonably protected from constant a cause of action under Woodhous may be threat of violence and sexual assault by out, made but conditions need not deteri- inmates, his fellow and he need not wait orate to that extent before the constitu- until he is assaulted actually to obtain right tional to protection arises. It is relief. enough that violence and sexual assaults Virginia, Woodhous v. Commonwealth of occur on the idle tier at MHC with suffi- (4th Cir.1973) 487 F.2d 890 (per curiam) frequency cient that the younger prison- (citation omitted). Lamm, Accord Ramos v. ers, particularly built, those slightly are (10th Cir.1980), 639 F.2d 572 cert. de put in reasonable fear for their safety nied, 450 U.S. S.Ct. and to reasonably apprise prison officials Levine, (1981); L.Ed.2d 239 Withers v. problem existence of the and the denied, (4th Cir.), F.2d cert. protective need for measures. 66 L.Ed.2d 59 615 F.2d at 161. Walker, (1980); Little v. (7th Cir.1977), sum, In the Concurring Opinion ap- holds Doe v. pellees to an unduly high standard of liabili- Lally, (D.Md. ty concerning impermissible levels of vio- 1979). correspond Prison officials have a lence. To be entitled to relief under the ing duty “to exercise reasonable care to Amendment, appellees only need prevent prisoners intentionally from inflict have shown that violence and sexual as- ing creating harm or unreasonable risks of saults occurred at sufficiently Maximum of- harm prisoners.” to other Withers v. Le ten prisoners reasonably to induce to fear vine, 615 F.2d at 161. Accord Woodhous v. for their safety to make the 890; Virginia, Lally, 487 F.2d at Doe v. 467 officials aware of the problem, and that Or, F.Supp. at 1354. as the Ninth Circuit those officials failed to take reasonable it, recently put “[p]rison has officials have a steps protect to the inmates.

duty steps to take reasonable protect to C. Constitutional Norms and Class Actions physical Hoptowit

inmates from abuse.” 1237,1250 Ray, (9th Cir.1982) (cita The to Concurring Opinion attempts but- omitted). tion applica- tress its novel formulations of the opinion The of the Fourth liability by attributing Circuit ble standards of un- persuasively significance Withers v. Levine elaborates usual to the fact that the case general principles. Ap- brought these The Court of at bar was as a class action. The actionable.”). Virginia, reign 16. See Woodhous v. 487 F.2d at 890 terror is (“[C]onfinement in a where violence and appel- may with references to be procedurally is riddled bifurcated in the fash- indicated, point as a “class” but at does but brought lees’ status no ion that suits on seemingly irrele- class clearly why subjected indicate behalf of a should be to it important. so Various more substantive lia- stringent vant circumstance is standards of opinion suggest bility sugges- hints in an adherence than individual actions. This is unsupported insupportable. one or both of two theories. The first tion is Opinion points is plausible germane; Concurring but the second is to no case law or or commentary adopting indefensible. such advocating extraordinary theory. argu- And no Concurring points, Opinion At a few ments, logic or policy, based favor such a to refer to the class action appears fact that conception of the differences between monetary suits which seek litigation. two forms of civil damages deprivation of their are sometimes in two the notion rights Certainly conducted individual In the stages. stage, governed first the issue class actions different (j.e., question liability liability defendant’s standards of makes no when sense some applied whether defendant has breached facts of the case at bar. statutory duty appellees’ owes to heart of claim is that class) adjudi- plaintiff all members of the is exposed been and continue to be stage, cated. the second which ensues risk assault or seri- rape, murder —a risk established, the only liability give if such rem- ous rise enough to a constitutional plaintiff edy awarded each individual violation. All at Maximum have This phase exposed determined. second been and still are dan- the same entails ger; suit often the submission evalu- of them any brought one could have relating, of additional ation for action challenging individual the condi- evidence — example, question whether the de- tions of his confinement. The fact that and, fendant’s misconduct was a cause “but-for” inmates have combined their efforts injury by Court, sustained each claimant.17 with permission of the District is by If this the scenario envisioned my presented their claims in the form of a it;18 I have colleague, quarrel no with how- bearing class action has no conceivable on ever, fail to see the ques- its relevance to their allegations. merits of appellants tion whether their obli- breached theory proposed Nor does the Con- subject not to cruel gation appellees to find curring Opinion any support in the that, punishment. unusual under fact case law dealing Eighth voluminous conceivable procedure processing some for challenges to Amendment conditions. case, finding might a be liability unquestioned hitherto courts’ belief by followed the adducement of additional liability that the are same standards pertaining evidence to the relief be procedural in the two contexts is manifest- no granted signifi- individual is of by ed the fact that treat citations to in the present cance context. opinions involve class cita- that actions and language Concurring Opin-

Other tions to that involve opinions individual suggest Indeed, ion seems to class actions interchangeable.19 any that suits as for See, Mason, e.g., Sugar (8th Baxter v. Savannah Ref. well 668 F.2d Cir. 364-65 Cir.), Corp., 1981), distinguished 495 F.2d cert. Circuit the deci Beto, 419 42 U.S. L.Ed.2d sion of the Fifth Circuit Novak v. (1971), reh’g denied, F.2d 661 denied, 409 93 S.Ct. Indeed, procedure propriety a of such (1972), partly ground L.Ed.2d that recently See Mil confirmed this court. a class action in “Novak was system which the entire (D.C.Cir. Weinberger, ton v. solitary confinement of the Texas 1982) (dicta). Department challenged as of Corrections was unconstitutional.” 668 F.2d at 365. But single opinion might arguably 19. The con immediately thereafter court made clear out, upon exception stitute an examination, to this rule turns discounting principal rele- its reason for ambiguous to be at best. Max field, significant point of law in this one promulgated, can expressly provides comparable authority find in class action rules shall not abridge, enlarge or “[s]uch ” cases and in brought by eases individuals.20 modify any right substantive .... Moreover, 2072 (1976). U.S.C. § it is set- The argument suggested in the Concur- tled that Rule 23 sufficiently confined to ring Opinion appears fragile even more questions “procedure” applicable to be when one takes into account the principles diversity actions without transgressing the upon which class actions are founded. requirement federal disagree Scholars continue to over the best courts defer to state “substantive” law in way explain and justify binding ef- Wright such situations. See 7 C. & A. fect of judgments ignorant such cases on Miller, Federal Practice and Procedure or involuntary class members and the tend- Glickman, Briskin v. § ency the class action device to facilitate 603-05 (S.D.N.Y.1967).23 In suits;21 the initiation of certain kinds of short, “Rule 23 is procedural considered a however, agree all the essence rule, rather than one that affects the sub- procedure class action is that provides “[i]t stance or the litigation.” merits of H. New- which, a means by large group where a (1977) (footnote berg, § Class Actions persons matter, interested one or omitted). more sue or sued as representatives be of the class without needing join every Finally, consideration of the practical ef- words, member of the class.”22 In other fect of the doctrine intimated in the Con- class action does not involve claims differ- curring Opinion makes its senselessness ent in substance from those involved in an even apparent. more Were proposed individual action. It merely a mechanism theory widely adopted, to be allowing group people, case, all of whom in every future aware that they would have suffered or are suffering the same be confronted with elevated standards of wrong, join together to seek redress. if liability they brought action, a class likely would instead bring a series of indi- This conclusion is reinforced considera- vidual suits. The court consequently would tion of the status and function Fed.R. compelled to hear and evaluate a multi- Civ.P. the provision on which class ac- plicity cases, of essential identical rather tions in brought the federal courts are single than a consolidated action. The re- based. Both origins of Rule 23 and its sultant waste of energy precise- time and is interpretation in other contexts indicate what ly designed Rule 23 was to avoid. that successful invocation of the provision trigger does not applicable sum, shift in the In the apparent suggestion in the substantive standards of liability. En- Concurring Opinion appellees, that be- Act, abling pursuant to which the rule they brought was cause their suit in the form of thereby infringed vanee independent of Novak was that the latter involved a tional norms as prisoners kept solitary requirements, situation in which in six involved class actions and provided clothing confinement (at were with stage development two least at the at prisoner blankets whereas the in the case be- being considered) which involved given only fore it had been undershorts and a individual suits. point mattress. 668 F.2d at 365. At no did the Eighth suggest inappo- Circuit that Novak was Note, Developments 21. in the Law —Class solely site because it involved a class action Actions, 1318, 1337-43, 89 Harv.L.Rev. rather than an individual suit. (1976) (discussing currently that theories plausible). seem most Thus, example, 20. of the ten cases cited in 10, supra, support principle note of the that Wright, of the Law C. Handbook of Federal unacceptable conditions in even one of the di- Courts 345 majority mensions delineated violate the Constitution, four involved class actions and pendent, diversity juris- 23. Briskin involved not Similarly, six involved individual suits. diction, princi- but the court held that the same eight supra, cases cited note ples apply in the two contexts. 267 at proposition addressing multifar- courts ious violations most often state the constitu- action, tests, strin- set its own satisfy specially may persuasive must however class unprecedented Courts gent liability, usages. say standards is be its must in the end required; there precautions and untenable. what are that even imperative so their universal National D. Prison “Cruel Standards will not disregard excuse their omission. and Unusual Punishment” Hooper, Cir.) (2d The T.J. significant hypothetical portion omitted) A (citations (dicta), Opinion Concurring evaluation (1932).24 53 S.Ct. L.Ed. 571 U.S. of com- appellees’ evidence takes the form of analysis The mode employed in Thus, parative analysis. assessing appel- Opinion is Concurring equally inappropriate the prison lees’ claim that the situation at to the applied when Amendment. aggravated by understaffing, the Con- Whatever have been the original curring Opinion the inmate- observes that the constitutional meaning provision,25 better to-guard ratio at Maximum was than established is now well the ban average. considering national In punishment” “cruel and unusual is defined violence, stresses prevalence opinion reference, not prevailing penal to prac frequently assaults occurred less at tices, evolving “the de but to standards of than at other where prisons Maximum cency progress maturing that mark the of a Eighth Amendment violations have been Gamble, Estelle v. society.” Moreover, notes, found. (1976) S.Ct. the range incidence violence was within Dulles, Trop 86,101, v. (quoting U.S. figures that an had expert witness testi- 2 L.Ed.2d (1958)). was to be “expected” fied like given whether a vio determining condition The Concurring Opinion Maximum. insists amendment, juries lates the courts and these observations be fatal should look, circumstances common appellees’ Eighth Amendment cause of ac- but to prisons, public other “the attitude tion. Unless inmates can show Chap toward a sanction.” given conditions of their are worse confinement man, 13,101 at 349 n. U.S. S.Ct. at 2400 average, it cannot make argues, they than (1981) (quoting Gregg Georgia, n. 13 subjected out a claim that have been 153, 173,96 2909, 2925,49 L.Ed.2d “cruel punishment.” and unusual (1976) (joint opinion)). The touchstone general public “what the would consider Concurring applies When the Opinion Hoptowit Ray, decent.” 682 F.2d at 1246 comparative appellees’ kind of analysis (citation omitted). claims, negligence patent it falls into error. long It has been hornbook that con- law public Although large may formity industry standards is insufficient truth, eyes times close its to the sad it is Judge to establish due care. Learned As that conditions in the undeniable nation’s put once it: Hand prisons extraordinarily are often brutal prudence Indeed in most cases It degrading.26 reasonable would thus not be surpris- in fact common but prudence; strictly aspects “industry is if ing many current measure; is never calling it its a whole below general standards” fell “what the the unduly lagged adoption case, public consider In any would decent.” new and available It never devices. it is erroneous to assume that “aver- clearly Behymer, Ry. generally Chapman, See also Texas & P. Co. v. 26. U.S. 24. J., (Brennan, 23 S.Ct. L.Ed. 905 at 101 S.Ct. at 2403-04 City Advisory Morrison v. Kansas Coca-Cola concurring); Commission National Co., Bottling P.2d Kan. Standards Criminal Correc- Goals, Justice Trial, (1953). (1973); Gettinger, Accreditation On tions 7; Mag., Feb. at Corrections Andersen^ For?, Sept. What Are Prisons Granucci, "Nor and Unusual Pun- Cruel 25. See Time, Original Meaning, 38. ishments Infíicted:" The Calif.L.Rev. age” over invariably pass evidence; conditions will the sufficiency consti- the tutional muster. surely concluded, however, could not be

that “no man reasonable could reach a ver- dict in appellees. favor of” Only by Sufficiency II. The miscon? the Evidence struing statistical evidence and ignoring! a outset, As I indicated at the this court plethora incriminating testimonial evi- should not adequately pre- not-—indeed is below, dence adduced is the Concurring pared thorough to—undertake a examina- Opinion able to suggest the matter is tion of the of the evidence to sufficiency even worthy of discussion. support The jury’s following verdict. section does not to conduct such purport

comprehensive of the review record. Its B. The Treatment Statistical Evidence purpose highlight merely to most trial, Numerical presented evidence survey serious errors in testimo- particularly relating to levels of vio- ny attempted in Concurring Opinion. lence, is Concurring misused in the Opinion First, ways. contrasts, three the opinion A. The Review Standard of somewhat carelessly, statistics relating The rule governing appellate review of to the incidence of assaults at Maximum the sufficiency of the evidence to figures gathered at other institutions verdict jury is both strict and well estab- regard with only selective for the compara- lished. requires That standard that “the bility of respective reporting systems evidence, along with all inferences reason- and prison populations. When a reference ably therefrom, to be drawn ... [be] advantageous, to comparability is it is incor- viewed light in the most favorable to” the porated in the discussion. But when such party whose favor verdict was ren- available, favorable are not references dered. Hospital, Alden v. Providence Concurring does not Opinion hesitate to 163,165 (D.C.Cir.1967). Moreover, F.2d un- evaluate violence statistics without any appellate less an court can determine that background information whatsoever.28 “no reasonable reach a man could verdict in This skewed treatment the data only prevailing party, favor of” the the jury’s compounds problems created reliance verdict must be allowed stand.27 upon analysis such comparative the first Application foregoing standard of place.29 case, review to the instant facts of the even Second, Concurring Opinion makes adopting Concurring Opinion’s inflated average much of the fact incidence theories, only one liability yields conceivable reported at Maximum is “only assaults conclusion: we required uphold would be fifteen” But per year. figure most strength verdict if of its evidentiary relevant to the claims is appellees’ not the foundation were an issue before us. The average over the appellants’ preceding most that could be level of violence said favor might disagree “reasonable men” seven and a half but the years, incidence of See, See, e.g., Daly, e.g., to the Muldrow v. references incidence of (D.C.Cir.1964). “brutality” adopt- County Several hundred cases and “assault” Duval Jail, Jacksonville, ing Concurring Florida. the same in 5A test are cited J. Moore & J. Opinion reporting whether the fails to consider nn. 50.02[1] Lucas, Moore’s Federal Practice systems comparable and (2d 1982). Concurring whether the sta Opinion ed. question minor tistics in include points suggest altercations. appears at a few (The drawn, the from which data is appeal verdict should be on if it overturned 835, Carson, F.Supp. (M.D. Miller v. supported by To “substantial evidence.” minimum, 1975), suggests, strongly Fla. at a suggestions the extent that those are intended figures to more the relate than serious stringent to dilute “reasonable the man” stan- assaults, Concurring Opinion implies.) as the dard, they no find voluminous case law. discussed in Part 29. Those difficulties are I.D. supra. When at the time of the sault and abuse violence suit.30 sexual to which record, the that statistic is extracted from exposed. the absence of sta- Given reliable the is revealed much more risk, situation to be of that fact tistical indices the trier of than the would Concurring Opinion serious would had to of rely upon descriptions have us believe. In six preceding the danger by the level of inmates and reported months there had been fifteen as- officials. The record is such replete with at of average thirty saults Maximum —an Witness after testimony. witness described had per year the level of violence stabbings, beatings fights. 264- App. —and 157- steadily rising App. been since 1978. 294-97, 312,315,349,359, Sev- 362. 58, 176. eral that they testified had observed homo- 291-93, rapes. App. 286-87, sexual even An more serious concerns problem 338, 373. The more detailed in- accounts of the no question, value statistics in descriptions cluded of: stabbing construed, assessing matter how area, App. 274-75, 284-85, shower at- an prison. testimony conditions at the As knife, stabbing tempted with a butcher evident, few very the trial makes of the 251-52, area, App. beatings in the shower rapes assaults homosexual committed 322-323, App. burnings, App. cell way at Maximum ever find into the their an his “bleeding profusely inmate from reprisal, record books. Fear of desire not to stomach,” thought an App. inmate and, be known as a “snitch” in the case of “snitch,” picking to be a up himself off attacks, identify homosexual reluctance floor, nose, bleeding from the mouth and as “easy oneself mark” victims deter 266-69, a App. bleeding stabbed inmate reporting from such Under the incidents.31 chest, App. from the of circumstances, and the death the fact that has resulting eight of an inmate from seven or “only” records an inmate of assault rate heart, per year Indeed, stab wounds near his To thirty proves given App. little. 348. man, no situation, suggest would seem reasonable dynamics presented that, evidence, as likely pris- the level of and the with this could violence conclude that reprisal increase, of danger percentage per- oners at Maximum were exposed to a decrease, reported of thus incidents would vasive of harm contempt risk reflects both compounding problem. for the judgment the trier of fact32 appellees’ callousness toward the plight. C. The Profusion of Testimonial Evidence III. Conclusion factor, crucial purpose The for the discussion, assessing the appellees’ Eighth light foregoing ap- Amendment claim, is the risk of as- pellants’ seriousness of the decision not to raise appeal Certainly, Indeed, purposes determining grave security problem. 30. for the with this violation, just ago, burning the existence of a constitutional four weeks a cell occurred 2; relevant variable is the violence at incidence of in cellblock fire was so intense and the scope or the time the suit. The measure complete so inmate’s destruction remedy individually to which the typewriter melted. inmates — collectively par- turn entitled well App. 265-69, App. See also —are 321-23. factors, tially on other such fluctuations as report reluctance incidents— of violence in the course of their incidence even when under oath at from trial —is evident periods ques- of incarceration. But the latter testimony Davenport. App. of Mr. is not tion before us. 295-99. Similar conditions are documented 49; Lally, F.Supp. Doe Withers 1348— Jones, 31. The affidavit of a correction- Deborah Levine, (D.Md.1978), officer, dramatically al illustrates state of 'd, Cir.), de aff affairs: nied, 66 L.Ed.2d emphasize must that most inmate assaults go unreported realis- because of the inmates’ Concurring Opinion’s fear of inmates. disdain for tic Burning retaliation other increasingly ability trier evi- cells is an common of fact to evaluate the Understaffing prevents form retaliation. dence further manifested its reference effectively dealing “jury paucity expertise.” the correctional staff from the evidence question sufficiency of readily understandable. When evi- below, dispassionate-

dence adduced viewed through applicable the lens of the

ly appellate review, is measured

standard

against well-established substantive stan- of liability

dards under the Amend-

ment, it jury’s becomes clear ver- is not vulnerable

dict to reasoned criticism. ROBB,

Separate Statement of Senior Cir- Judge:

cuit

Although I Judge share MacKinnon’s

doubts made a case in Court, District Judge acquiesce

Edwards’ for the Court. BLAKEMORE,

Milton et al. COLEMAN, B.

John Fairfax d/b/a Jockey Club, Appellant.

and the

No. 82-1187. Appeals,

United Court of States

District of Columbia Circuit.

Argued Nov.

Decided March

Case Details

Case Name: John Doe v. District of Columbia

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 28, 1983

Citation: 701 F.2d 948

Docket Number: 80-2171

Court Abbreviation: D.C. Cir.