Milton McCray v. Robert Burrell, Milton McCray v. Sergeant v. D. Smith (Badge No. 153) Md. Penitentiary, James E. X. Stokes v. Gerald McClellan Individually and in His Official Capacity as Warden of Themaryland Penitentiary, and the Mail Censor, Individually, and in His Officialcapacity as Mail Censor of the Maryland Department of Corrections, John Washington v. Dr. Harold M. Boslow, Director, Patuxent Institution, and Dr. Domingo c.sorongon, M.D., Patuxent InstitutionMilton McCray v. Robert Burrell, Milton McCray v. Sergeant v. D. Smith (Badge No. 153) Md. Penitentiary, James E. X. Stokes v. Gerald McClellan Individually and in His Official Capacity as Warden of Themaryland Penitentiary, and the Mail Censor, Individually, and in His Officialcapacity as Mail Censor of the Maryland Department of Corrections, John Washington v. Dr. Harold M. Boslow, Director, Patuxent Institution, and Dr. Domingo c.sorongon, M.D., Patuxent Institution
N. Frank Wiggins, National Legal Aid and Defender Association, Washington, D. C. (Robert Plotkin, National Legal Aid and Defender Association, Washington, D. C., on brief), for amicus curiae.
Barbara Gold, Baltimore, Md., American Civ. Liberties Union, Maryland Affiliate, on brief for amicus curiae.
Donald R. Stutman, Asst. Atty. Gen. of Maryland (Francis B. Burch, Atty. Gen. of Maryland, Clarence W. Sharp and Gilbert Rosenthal, Asst. Attys. Gen. of Maryland, on brief), for appellees.
WINTER, Circuit Judge:
These appeals present the common question of whether a prisoner, incarcerated under state process, is required to exhaust available state remedies before the district court may or should exercise jurisdiction in a suit under
In No. 74-1042 and No. 74-1043, plaintiff McCray, an inmate of the Maryland Penitentiary, sought relief under
In No. 74-1456, plaintiff Stokes, another inmate of the Maryland Penitentiary, filed a pro se civil rights complaint in the district court alleging that prison officials had violated his first and fourteenth amendment rights by denying him permission to receive and read two national political newspapers, the Gay Liberator and Akwesasne Notes. He sought declaratory relief, injunctive relief and damages, both compensatory and punitive. On defendant‘s motion, the district court summarily dismissed the complaint for failure to exhaust the available state administrative remedy, relying on the alternative holding in the two McCray cases.
In No. 74-1634, plaintiff Washington, an inmate of the Maryland Patuxent Institution, filed a pro se complaint under
We keenly appreciate the force of the factors identified by the district court in McCray and Washington as supporting a policy determination that exhaustion of available administrative remedies should be required of prisoners of correctional institutions in Maryland as a prerequisite to a suit under
Accordingly, we reverse in Nos. 74-1456 and 74-1634 and remand the cases for determination on the merits. In Nos. 74-1042 and 74-1043, we reach the merits and conclude for reasons hereafter stated that reversal and remand for further proceedings are indicated there also.
I.
We consider first the question common to all four appeals whether a prisoner must exhaust available state administrative remedies before a district court may exercise its jurisdiction under
The doctrine of exhaustion of federal administrative remedies has broad application in the law. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). Exhaustion of state administrative and judicial remedies is also a familiar doctrine. It is a part of the law of federal habeas corpus both by adjudication, Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 (1944), and cases cited therein, and by statute,
Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), is the seminal decision with respect to the need for exhaustion in actions brought under
It is no answer that the State has a law which if enforced would give relief. The federal remedy (
§ 1983 ) is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked. Hence the fact that Illinois by its constitution and laws outlaws unreasonable searches and seizures is no barrier to the present suit in the federal court. 365 U.S. at 183, 81 S.Ct. at 482.
While Monroe v. Pape constituted no radical departure from the preexisting doctrine of exhaustion of state judicial remedies, it was applied two years later in McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), as authority for the proposition that in suits under
If McNeese, as a result of the dual basis of decision, failed to resolve fully the question of prior exhaustion of administrative remedies in
The next year, the Court again touched on the question before us. In Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam), a district court‘s dismissal of a prisoner‘s
Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972) (per curiam), and Metcalf v. Swank, 406 U.S. 914, 92 S.Ct. 1778, 32 L.Ed.2d 1113 (1972) (mem. op.), are chronologically next in the line of authority. Both were
In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), Mr. Justice Brennan, writing for the Court, treated the law as settled in stating that “(w)hen federal claims are premised on
From this survey of the pertinent authorities, the law would appear overwhelming that exhaustion of available state administrative remedies is not a prerequisite to maintaining a
The only authority suggested by the state, but not vigorously pressed, to support the proposition that exhaustion may be required is Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). That was a suit under
In reaching this result, the Court considered first the correctness of the district court‘s decision that it was not required to withhold relief until the license revocation proceedings had been concluded under the normal rule of exhaustion
In the instant case the matter of exhaustion of administrative remedies need not detain us long. Normally when a State has instituted administrative proceedings against an individual who then seeks an injunction in federal court, the exhaustion doctrine would require the court to delay action until the administrative phase of the state proceedings is terminated, at least where coverage or liability is contested and administrative expertise, discretion, or factfinding is involved. But this Court has expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under
42 U.S.C. § 1983 (42 U.S.C.A. § 1983 ). McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967). Whether this is invariably the case even where, as here, a license revocation proceeding has been brought by the State and is pending before one of its own agencies and where the individual charged is to be deprived of nothing until the completion of that proceeding, is a question we need not now decide; . . . (footnote eliminated) 411 U.S. at 574-75, 93 S.Ct. at 1695-96.
The Court then concluded, on this point, that since plaintiffs claimed that the administrative proceedings denied them due process of law, so that the remedy was ineffective, adjudication of this claim really required decision of plaintiffs’ suit on its merits; therefore, exhaustion would not be required.
The possible significance of the Court‘s disposition of the exhaustion issue in this manner was pointed up by the separate concurring opinion of Justices Marshall and Brennan in which they joined the Court‘s opinion “except insofar as it suggests that the question remains open whether plaintiffs in some suits . . . (under
We do not think that Gibson provides a sufficient precedent to depart from the apparent scope and the literal language of the other Supreme Court cases. The majority opinion recognizes and does not purport to overrule McNeese and Damico. At most, the statement is a mere introduction to an alternative ground of decision; but, more importantly, it relates to facts quite dissimilar from those in the instant cases. Gibson proceeds on the premise that “the individual charged is to be deprived of nothing until the completion of (the state administrative) proceeding” (411 U.S. at 574-75, 93 S.Ct. at 1696) in short, in Gibson the possible harm was in futuro. Gibson, therefore, is unlike the instant cases where the alleged deprivation of civil right has occurred and may be continuing. Although decided before Gibson, Whitner v. Davis, 410 F.2d 24, 28-29 (9 Cir. 1969), recognizes and supports this distinction, as does Toney v. Reagan, 467 F.2d 953, 956-57 (9 Cir. 1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 951, 35 L.Ed.2d 263 (1973). See also Raper v. Lucey, 488 F.2d 748, 751 at n. 3 (1 Cir. 1973); Polk v. State Bar of Texas, 480 F.2d 998, 1003-04 (5 Cir. 1973); Stevenson v. Board of Education, 426 F.2d 1154, 1157 (5 Cir. 1970), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970). The rationale of this distinction which we need not adopt or reject to decide the cases before us is that exhaustion may be necessary only when it assures that a decision of state officials depriving plaintiff of a civil right is final, so that the case is ripe for adjudication.
On balance, therefore, we have repeated expressions by the Supreme Court that exhaustion is not required in cases like the instant ones, and only an indirect expression that exhaustion may be required in certain cases unlike the
The plaintiffs argue also that the Maryland Inmate Grievance Commission Act does not provide an effective administrative remedy for their claims. They point out, for example, that the Secretary of Public Safety and Correctional Services is apparently neither bound by the record nor the findings and recommendations of the Inmate Grievance Commission in making final disposition of certain grievances,
Our conclusions require us to reverse in Nos. 74-1456 and 74-1634 and remand these cases for further proceedings. We turn to the merits in Nos. 74-1042 and 74-1043.
II.
McCray‘s suits against Sergeant Smith, a prison guard at the Maryland Penitentiary, and Captain Burrell, the duty captain in charge of all guards at the Maryland Penitentiary, who described himself as responsible for the entire institution including control and security (but not medical care) of the hospital, arose out of incidents occurring at those institutions on or about November 20, 1971, and January 1, 1972, respectively. The testimony with regard to both incidents was largely conflicting. The district court made extensive findings of fact, resolving questions of credibility, and we accept those findings. We disagree, however, with the legal conclusions to be drawn therefrom. The facts need not be restated in great detail in view of the district court‘s detailed recitations in its opinion. See McCray v. Burrell, 367 F.Supp. 1191, 1210 et seq.
A. No. 74-1043 McCray v. Smith
On or about November 20, 1971, McCray was moved from his regular cell because of his complaints about unsanitary conditions. Sergeant Smith, who had never met McCray before, ordered his removal, had him showered and deloused and placed him in another cell on a different tier. The warden instructed Smith to provide McCray with his law books and legal materials which were kept in his regular cell. When they were not provided to him at once, McCray began a substantial vocal disturbance. Additionally, the screaming McCray tore a locker off the cell wall and banged it repeatedly against the wall.
Sergeant Smith determined that McCray should be removed from this cell and placed in the isolated confinement (I.C.) area, cell No. 5. As found by the district court, “this measure was taken to avoid the possibility of causing a greater disturbance among the other inmates.” 367 F.Supp. at 1211. While McCray was being removed, again, as found by the district court, he “began shouting insults and threatening to do bodily harm to himself.” Id. Smith, treating these threats as an indication of mental and emotional instability, directed that McCray be placed in isolated confinement without any clothes or bedding. This was done to protect McCray from harming himself.
McCray was placed nude in the cell about 11:30 a. m., November 20. The cell, itself, was quite long and narrow with a high ceiling. The walls, ceiling and floor were all concrete and there was a one-foot high concrete slab, six to eight feet long and three feet wide, which was McCray‘s bed. Although, initially, McCray was furnished no blankets
The cell contained a toilet and a sink. The record does not show whether the cell had a window, but evidence was offered that there was a light bulb recessed in the rear wall. The cell had two doors the inner one composed of bars, and the outer one made of solid wood but not closed. McCray was given no materials with which to clean himself or the cell, and he was fed in plastic cups. He was deprived of reading and writing materials.
The next morning Sergeant Smith returned to check on McCray and found that he had defecated into a cup and smeared feces over himself and the cell wall. Accordingly Smith decided not to return him to his former cell. Instead, he had McCray bathed and the cell scrubbed, and then returned McCray to I.C. cell No. 5 for another twenty-four hours. It was not until that time that Smith caused notice to be given to a psychologist or psychiatrist in accordance with the applicable written administrative directive which had become effective August 10, 1970. The directive stated that “an inmate who is displaying mentally disturbed behavior may be placed in an isolation cell for the inmate‘s own safety, or that of the inmate population, until the psychologist/psychiatrist is notified . . .” and directed that the “psychologist/psychiatrist should be contacted immediately after the confinement of the inmate, and the inmate should be evaluated within a twenty-four (24) hour period.” (Emphasis added.) By its terms, the directive permitted the placing of inmates displaying mentally disturbed behavior in a punitive or isolation cell when the institution lacks a mental observation cell and a psychologist or a psychiatrist approves the lodging of such an inmate in an isolation cell.
The next day, November 22, McCray, according to Smith, “started acting alright.” He was then returned to his regular cell on the third tier. We infer that McCray‘s clothes were not returned to him until this time. The record on appeal does not show that he was ever evaluated by a psychologist or a psychiatrist.2
B. No. 74-1042 McCray v. Burrell
On or about January 1, 1972, McCray was again removed to another cell. A fire broke out in McCray‘s cell, according to McCray, accidentally, but in the belief of Captain Burrell, by design. In either event, McCray was burned. Not without difficulty, the guards extinguished the fire and conveyed McCray to the dispensary where, despite McCray‘s resistance, the nurse on duty treated his burns. The nurse suggested that McCray remain in a locked cell in the hospital. At a later date, McCray was disciplined for setting fire to his cell.
Captain Burrell, who was present when McCray was treated, not unreasonably believed that McCray had set the fire. Since he concluded that McCray was mentally unstable, he decided, despite the nurse‘s suggestion, to place McCray in a mental observation (M.O.) cell, again without clothes or a mattress or other bedding. McCray was placed in the M.O. cell at about 9:45 a. m., January 1, and released about 8:00 a. m., January 3. At about the time he was treated in the dispensary, the nurse, purportedly acting in accordance with the written directive to which reference has been made, contacted a physician and informed him that McCray was placed in M.O. The physician told her to communicate
The M.O. cell in which McCray was placed was described by Captain Burrell as a bare cell. The windows were covered with sheet metal, but the cell had an electric light. The cell had concrete walls, a concrete ceiling, and a tile floor. There was no sink, and the only sanitary facility was an “oriental toilet” a hole in the floor, six to eight inches across, covered by a removable metal grate which was encrusted with the excrement of previous occupants. The “toilet” flushed automatically once every three to five minutes. McCray was not permitted to bathe, shave or have or use articles of personal hygiene, including toilet paper. He was not afforded reading or writing materials. He claimed that during the forty-six hours he spent in this confinement “it was impossible to sleep . . . I stood up most of that (first) night, the floor was cold.”
III.
The district court held that plaintiff‘s confinement “in both cases for forty-eight hours was not an unreasonable period when one considers the surrounding circumstances in each case,” 367 F.Supp. at 1215, and that “the defendant‘s actions were not excessive exercises of authority beyond the limits of civilized standards of decency . . . they (were not) intended as punishment for the plaintiff‘s conduct . . . they were employed as precautionary measures . . . the removals . . . to isolated cells were not pointless impositions of suffering . . . there (was not) a less severe alternative that would have achieved the purposes for which the confinement was imposed,” 367 F.Supp. at 1216. While we accept the district court‘s findings that McCray‘s confinements in isolated cells were not intended as punishment but for mental observation and as a precaution against a not unreasonable fear that McCray might harm himself, we are constrained to conclude that McCray‘s eighth amendment right not to be subjected to “cruel and unusual punishments” was violated.
As articulated in Trop v. Dulles, 356 U.S. 86, 100-01, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1958), “(t)he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” therefore the punishment imposed must be justified in light of the “evolving standards of decency that mark the progress of a maturing society.” The eighth amendment is, of course, made applicable to the states through the fourteenth amendment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947).
It may be argued that, if the findings of the district court are accepted, McCray‘s claims do not raise eighth amendment questions, because McCray was isolated not for purposes of punishment but for the more humane and not unreasonable purpose of protecting him from self-harm, until an expert evaluation of his mental condition could be made and proper therapeutic steps taken if they were indicated. But the answer is that isolation of McCray occurred within a prison context. His jailers had the power to isolate him because he had been committed to their custody as punishment imposed pursuant to a judicial determination that he had engaged in criminal conduct. His confinement, in whole and in part, was punishment for his misdeeds. Thus, all of his confinement was subject to the restrictions of the eighth amendment. Cf. Howard v. Smyth, 365 F.2d 428, 429-30 (4 Cir. 1966), cert. denied 385 U.S. 988, 87 S.Ct. 599, 17 L.Ed.2d 449 (1966). If anything, the fact that McCray was isolated within the prison for nonpunitive purposes strengthens his case because special disciplinary reasons may not be offered in possible justification for the conditions in which he was kept.
A. In McCray‘s suit against Smith, we think that a violation of the
What is clear, however, is that if McCray‘s mental condition was reasonably believed to be so suspect as to justify the conditions we have described, then it was such as to warrant, if not the actual ministrations of professional personnel, an immediate effort to gain him prompt medical evaluation and necessary treatment. The written directive for operation of the place of confinement states specifically that when an “inmate who is displaying mentally disturbed behavior” is “placed in an isolation cell for the inmate‘s own safety, or that of the inmate population,” the “psychologist/psychiatrist should be contacted immediately after confinement of the inmate, and the inmate should be evaluated within a twenty-four (24) hour period” (emphasis added). Evidently McCray was never examined during this confinement, but Sgt. Smith can hardly be held as a guarantor that the psychologist/psychiatrist whom he does not command will carry out his duties under the directive. Sgt. Smith, however, is accountable for his duty to notify, or to cause to be notified, the psychologist/psychiatrist immediately after McCray‘s isolation. By his own admission, Smith did not seek expert professional help until nearly twenty-four hours after he isolated and stripped McCray.
On this record, we conclude that McCray‘s conditions of confinement per se do not mount up to a denial of his rights under the eighth amendment. We have do doubt that a prisoner evidencing mental derangement in a form suggestive of self-harm or harm to others may and should be removed from the general prison population until his true condition can be assayed by those competent to evaluate him; and, until his examination and the formulation of an expert opinion, he may be subjected to protective measures. In permitting such confinements, the prison directive comports with the eighth amendment. But, when the protective measures take the form of isolation, nude, in I.C. cell No. 5, we believe also that the administrative directive states the constitutional minimum in requiring that a “psychologist/psychiatrist . . . be contacted immediately after the confinement of the inmate, and the inmate . . . evaluated within a twenty-four (24) hour
B. In McCray‘s suit against Burrell, we perceive two violations of the eighth amendment. First, the record reveals that the conditions of confinement in the mental observation (M.O.) cell in which McCray was kept fall far short of the current standards of decency of present-day society. McCray was kept naked in a barren cell without blanket or mattress and with nowhere to sit, lie or lean except against bare concrete or bare tile. He had no sink or running water; his only toilet was a hole in the floor, the cover of which was encrusted with human excrement. He was denied all articles of personal hygiene.4 Society would hardly tolerate such confinement for a suspected mental patient, not convicted of crime; we cannot conceive that decent society would tolerate it even for a suspected mental patient who had been convicted of crime. The conditions of this confinement constitute a per se violation of the eighth amendment. See Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971).
The second violation is identical to the violation in McCray‘s case against Smith noncompliance with the constitutionally minimum requirements of the written directive concerning isolation of mentally disturbed inmates. As found by the district court, Captain Burrell took steps to comply with the institution‘s written directive to obtain promptly the services of an expert to evaluate McCray‘s condition at or about the time that he ordered McCray‘s special confinement. Like Sergeant Smith, Captain Burrell was not a guarantor that the expert attention would be immediately forthcoming, and it may well be that, as suggested by the district court, the directive was not fully carried out because McCray‘s second confinement occurred over the New Year‘s Day holiday. But Captain Burrell was not just a prison guard; he was captain of the guards. Even if we assume that the conditions of isolated confinement were constitutionally permissible, it was incumbent on Captain Burrell, if expert medical attention was not forthcoming in a reasonable period of time, to devise and employ means to protect McCray from injury to himself other than continued isolation with deprivation of clothing and elements of personal hygiene.
IV.
Although in the McCray cases we conclude that the treatment afforded McCray amounted to a denial of his rights under the eighth amendment, it does not necessarily follow that McCray is entitled to damages and injunctive relief against Smith or that he is entitled to an award of damages against Burrell. The district court held that “since the defendants, as shown from all the facts, acted in good faith in exercising their discretion . . . they are immune from suit under
Most important, defendants may not avail themselves of the defense until they have proved that they had a good-faith belief in the legality of what they did. Since what is sought to be proved is a matter of defense, the burden of proof is upon them. In order to sustain that burden, we perceive certain subsidiary facts that must be established.
A. In the case of Smith, first, a satisfactory explanation must be offered of his directions that McCray be isolated in the I.C. area, rather than an M.O. cell. It is true that the written directive permitted a disturbed prisoner to be isolated in an I.C. cell in an institution which was lacking M.O. facilities, but it appears that McCray‘s subsequent isolation by Burrell was in an M.O. cell, albeit one more primitive than the I.C. cell in which Smith placed McCray, so that it can be inferred that the Maryland penitentiary was not an institution lacking in M.O. facilities.
Second, the written directive, purportedly followed by Smith, explicitly stated that the “psychologist/psychiatrist should be contacted immediately after confinement of the inmate, and the inmate should be evaluated within a twenty-four (24) hour period” (emphasis added). As we have said, Smith cannot be held to the requirement of evaluation within twenty-four hours, but this provision gives meaning to the use of the word “immediately” in the preceding clause, and the record is clear that Smith took no steps to notify a psychologist or psychiatrist until the initial twenty-four hours of confinement had almost expired. In order to avail himself of the defense, it will therefore be incumbent on Smith to present proof which establishes by a preponderance of the evidence that the time within which he gave the notice complied with his reasonable understanding of the administrative direction of “immediately.”5 In this connection, the district court found that prison procedures required Smith to notify his superior immediately after isolating an inmate and that Smith was not shown to have failed to notify his superior. The district court misplaced the burden of proof. The immunity defense is for Smith to prove, not McCray to disprove.
B. In Burrell‘s case, we have held that the conditions of the M.O. cell in which McCray was confined were per se such as to violate the eighth amendment. But this is not to say that if Burrell had a good-faith belief that he was acting legally in placing McCray in the M.O.
We have also held that the eighth amendment was violated when the administrative directive was not followed. But Burrell may not be responsible for this noncompliance. The district court must examine the scope of Burrell‘s duties and the extent of his responsibilities and determine that they were fully met before liability may be excused. This will include a consideration of the following, among others: Did Burrell have a continuing duty toward McCray after placing him in an M.O. cell? If so, did he have a duty to determine that a psychiatrist or psychologist had in fact been summoned? What duty, if any, did Burrell have when a psychiatrist or a psychologist failed to respond in a reasonable period? Were there other, more humane facilities to which McCray could have been transferred when a psychiatrist or psychologist failed to respond?
V.
Finally, we consider McCray‘s contention that he was improperly denied a jury trial in his suits against Smith and Burrell. We perceive no error.
McCray made no demand for a jury trial when he filed his pro se complaints on January 19, 1972, and February 9, 1972, in No. 74-1042, and on March 7, 1972, in No. 74-1043. Counsel was appointed to represent him in March 1972 and substitute counsel was appointed on or about December 8, 1972. The first request by McCray for a jury trial was made orally in open court on June 11, 1973.
McCray‘s request was both untimely and not in writing as required by
Accordingly, in Nos. 74-1042 and 74-1043, we reverse the judgments of the district court and remand the cases for further proceedings in accordance with the views expressed herein.
Reversed and remanded.
Addendum
Since the preparation of the majority opinion, the Supreme Court has decided Wood v. Strickland, --- U.S. ---, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). Wood v.
43 L.Ed.2d 214 (1975), a case having relevance to Part IV of our opinion dealing with the defense of official immunity. Wood concerned the immunity of school officials to suits for damages under
The official must himself be acting sincerely and with a belief that he is doing right, but an act violating a student‘s constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice. To be entitled to a special exemption from the categorical remedial language of
We think that what is said on the subject in the main opinion is consistent with Wood, and that Wood constitutes additional authority for the conclusions reached therein.
FIELD, Circuit Judge (concurring and dissenting):
While I cannot quarrel with the conclusion of the majority that on the present state of the law we have no alternative but to hold that exhaustion may not be required in a suit under
It occurs to me that far from intruding upon the Eighth Amendment rights of McCray, Smith and Burrell conducted themselves in a reasonable manner and with admirable restraint under the circumstances. As the majority notes, the genesis of the Smith incident was McCray‘s request that he be moved from his regular cell because of its unsanitary condition. Sergeant Smith acceded to the request and had McCray showered and deloused and placed in another cell. When Smith did not immediately comply with McCray‘s imperious demand that his law books and legal materials be brought to his new cell, McCray created a substantial disturbance, screaming and tearing a locker off the wall and banging it repeatedly against the cell wall. It was then that Smith decided to remove McCray from the South Wing and place him in the isolated cell area, and the district judge specifically found that “(c)learly this measure was taken to avoid the possibility of causing a greater disturbance among the other inmates.” Assuredly, this was not an unreasonable step on Smith‘s part nor was his decision to strip McCray and remove the mattress from the I.C. cell unreasonable in the light of McCray‘s shouted threats to do bodily harm to himself. On the following morning when Smith discovered that McCray had smeared himself and his cell with his own fecal matter, Smith did not leave him in this deplorable condition but dutifully had McCray showered and
In the Burrell case McCray had set his cell on fire, intentionally or otherwise, and thereafter used a metal cabinet to first break the sink and then the toilet in what the district court characterized as an “alleged effort to allow the water to flow more freely.” The guards extinguished the fire and took McCray to the dispensary where his burns were treated by a nurse despite McCray‘s abusive resistance. Burrell, not unreasonably, viewed McCray‘s conduct as evidence of mental instability and, accordingly, placed him in a mental observation cell after removing his clothes and mattress to protect him from possible self-injury. As stated by the majority, McCray was allowed to remain in the M.O. cell for approximately forty-eight hours before being returned to his regular cell.
Upon the evidence relative to these two incidents the district court specifically concluded that McCray had been placed in isolation “to avoid the possibility of continued disruptions that might involve substantial portions of the South Wing.” The court further stated:
“It is important to bear in mind that the Maryland Correctional System, like many others, has been plagued by considerable prisoner unrest. While this Court is not absolving the prisons of all responsibility for this problem, it is clear that a prison correctional officer must be concerned with avoiding situations which could ignite a riot. This was the principal factor considered by the defendants in placing the plaintiff in an isolated cell.” (Emphasis added) 367 F.Supp. at 1213-1214.
The district judge found that none of these events constituted an arbitrary and capricious punishment of McCray, and the majority concedes that he applied the appropriate criteria to the evidence when he observed:
“The Court concludes that the defendants’ actions were not excessive exercises of authority beyond the limits of civilized standards of decency. See Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Nor were they intended as punishment for the plaintiff‘s conduct, but as has been repeatedly stated, they were employed as precautionary measures. The removals of the plaintiff from his cell on the South Wing to isolated cells were not pointless impositions of suffering, nor was there a less severe alternative that would have achieved the purposes for which the confinement was imposed. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 2747, 33 L.Ed.2d 346 (1972).” 367 F.Supp. at 1216.
To bolster its position in both cases, however, the majority has seized upon an institutional directive which stated that “an inmate who is displaying mentally disturbed behavior may be placed in an isolation cell for the inmate‘s own safety, or that of the inmate population, until the psychologist/psychiatrist is notified * * * ” and directed that the “psychologist/psychiatrist should be contacted immediately after the confinement of the inmate, and the inmate should be evaluated within a twenty-four (24) hour period.” Since, to some degree at least, the treatment accorded McCray was based upon the apprehension that he might be mentally disturbed,
First of all, this somewhat novel constitutional pronouncement utterly ignores the finding of the district judge that the principal reason for McCray‘s isolation was to insulate the other inmates of the South Wing from the potentially dangerous and disruptive consequences of McCray‘s outrageous and flagrant misconduct, including what the district judge found was his attempt “to burn his cell, and possibly the entire South Wing.” Concededly, an agency must comply with its own regulations,3 and had McCray sustained any injury as a result of the failure to provide timely medical care, arguably the directive might have furnished a basis for a negligence action by him.4 The fact is, however, he required no such medical attention, and I am unaware of any constitutional principle which requires or justifies the incorporation of such an institutional directive into the Bill of Rights.
We are not dealing here with the arbitrary and pervasive pattern of conduct which Judge Merhige found in the Virginia penal system, Landman v. Royster, 354 F.Supp. 1302 (E.D.Va.1973); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); nor are the facts of this case at all similar to the prolonged confinement in the “strip cells” of Dannemora which confronted the Second Circuit in Wright v. McMann, 387 F.2d 519 (1967). There is not even a suggestion that McCray was being arbitrarily punished for attempting to exercise any of his constitutional rights, cf. Howard v. Smyth, 365 F.2d 428 (4 Cir. 1966). Regrettably, it appears to me that when the decision of the majority is read in the light of the record in this case, it is tantamount to a declaration that in this circuit the Eighth Amendment proscribes any substantial disciplinary action by prison authorities no matter how extreme and disruptive the misconduct of the inmate may be. In my opinion we would better serve the interests of justice and orderly prison administration by heeding the admonition of Judge Kaufman in Sostre v. McGinnis, 442 F.2d 178, 190-191 (2 Cir. 1971):
“For a federal court, however, to place a punishment beyond the power of a state to impose on an inmate is a drastic interference with the state‘s free political and administrative processes. It is not only that we, trained as judges, lack expertise in prison administration. Even a lifetime of study in prison administration and several advanced degrees in the field would not qualify us as a federal court to command state officials to shun a policy that they have decided is suitable because to us the choice may seem unsound or personally repugnant.” (Emphasis in original.)
McCray is no stranger to the district court of Maryland, having filed thirty-six suits in that forum in the three years prior to the cases here in question. Additionally, the records of our clerk reflect that fourteen appeals by McCray have been placed on the regular docket of this court during the past three years. The only conclusion that can reasonably be drawn from McCray‘s litigious history is that he is a chronic troublemaker and malcontent who is engaged “in a ceaseless barrage of frivolous civil suits at public expense based upon allegations that have been repeatedly found meritless.” Daye v. Bounds, 509 F.2d 66 at 69 (1975). We can rest assured that if it accomplishes nothing else, the decision of the majority in these cases will encourage
Circuit Judge DONALD RUSSELL authorizes me to say that he joins in this opinion.
WIDENER, Circuit Judge (concurring and dissenting):
With deference to the majority, I agree with the opinion of Judge Field and I would add a few words.
I
Although the majority opinion recites that it accepts the findings of fact of the district judge, it promptly discards the inferences made by him which are as much a part of his findings as the naked facts themselves. This I do not believe an appellate court has the authority to do, much less ought to do.
II
With respect to the question of exhaustion of administrative remedies, I concur in the result solely because of Part II of Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), and not for the reasons given by the majority.
As the majority properly recognizes, Monroe dealt with state judicial, and not administrative, remedies. In McNeese, there was an administrative procedure but no real administrative remedy. As the court stated, “The Superintendent himself apparently has no power to order corrective action. In other words, his ‘only function . . . is to investigate, recommend and report. . . . (He) can give no remedy. . . .‘” 373 U.S. at 675, 83 S.Ct. at 1437.
In Damico, the court apparently moved away from the more narrow ruling of McNeese and construed that case to hold that administrative remedies in suits under
But the Houghton decision was based on the reasoning that “state prisoners are not held to any stricter standard of exhaustion than other civil rights plaintiffs.” 404 U.S. at 251, 92 S.Ct. at 409. And the opinion noted the “probable futility” of administrative remedies in Houghton, 404 U.S. at 252, 92 S.Ct. 407.
Wolfe v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), however, held, rather than recited, that the rights of a state prisoner under
Further erosion of the absolute rule which some consider to have existed is shown by the concurring opinion of Mr. Justice Marshall in Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1974), in which he stated that he joined the opinion of the court “except insofar as (the suggestions) that the question remains open whether plaintiffs in some suits brought under
Thus, Gibson v. Berryhill may be read to hold that the question of exhaustion of administrative remedies is at least a partially open question.
Further erosion of the exhaustion rule is found in the very recent case of Huffman v. Pursue, --- U.S. ---, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). That case held, in a suit brought in a district court to enjoin a common nuisance proceeding in a State court, where judgment had been entered in the State court but the losing party had not appealed in the State system, rather going directly to the federal district court, that “a party in appellee‘s posture must exhaust his state appellate remedies before seeking relief in the District Court, unless he can bring himself in one of the exceptions specified in Younger (v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669).” at ---, 95 S.Ct. at 1210. The importance of the ruling is that it shows definitely that the all embracing rule of non-exhaustion in all
Although not decided under
There is assuredly no policy reason for the courts not to apply the customary and general law of requiring exhaustion of administrative remedies merely because a case is brought under
It follows that I would affirm other than on account of that part of part II of Wilwording which has not been modified.
Circuit Judge DONALD RUSSELL authorizes me to say that he joins in this opinion.
Notes
“The physical aspects of the cells in the isolated cell area and the mental observation area (which are substantially the same) are primitive at best. However, it is significant that the plaintiff candidly admitted on several occasions he had requested to be placed in the I.C. area because it was more conducive to preparation of legal papers. While it is true that he was fully clothed on these latter visits to I.C., it does indicate that the conditions of the cells were not intolerable.” 367 F.Supp. at 1216.