*2 RUSSELL, аnd Cir- Before CRAVEN CHAPMAN, Judges, District cuit and Judge. Judge:
RUSSELL, Circuit Virginia Petitioner was Claiming prisoner. threats harm, bodily at his he was transferred general prison request own from the security.1 Since population to maximum request, by his own his transfer was no authorities found since the petitioner threat, verification He, security. maximum free leave however, filed to remain but chose petition for “Per his the District Court 2 complain emptory Writ of Mandamus” ing that represented in maximum him inhibited and unusual cruel claiming Eighth Amendment depriva on account of dep single exception, With a tions. incidents were the usual rivations confinement mental or abuse There were no claims punishment. corporal Holt v. Sarv (D.C.Ark.1969) er pro further affirmed remanded Cir.) ceedings, F.2d 304. inju allegations physical “of makes disciplinary con suffered while ries (1971) Kerner as in Haines v. finement” (D.C.Mo.1971) proceeding 1. See Smith v. as one Swenson 2. Petitioner described appeal, 1260-1261: writ On of mandamus. “Maximum as one under ‘is his action his counsel states permissible object protec- where its Rivers 42 U.S.C. Section prison population Royster general tion of the 360 F.2d personnel, protection or the himself, oner for disobedience of orders ” prevention escape.’ or 771, 776; L.Ed.2d Cir. 1970) S.Ct. 430 F.2d Kostal v. Tinsley heat not denied 652. Petitioner was floor, 847, sleep on a concrete forced to nude cert. den. Wright not, v. McMann L.Ed.2d 277. We would Avery however, and Hancock rest our on this conclusions *3 786, point. (D.C.Tenn.1969) petition 789. 301 The of the dismissal clearly appropriate complaints, for the one His be on save the admitted facts noted, specially petitioner’s recrеa- related to limited as set forth the own com- opportunities, plaint, by the and as tional exercise the defend- or established shaving showing. on menu and restricted ant’s bathing privileges. unusual The solе authority While modern has that, petition con- is while claim in his considerably prisoner’s broadened security at own fined in maximum rights,3 prison discipline still remains request disciplinary rea- not for largely pris within the of the discretion any oppor- sons, suffered a denial of he on authorities will in and federal courts contention, tunity parole. how- This for only paramount terfere where federal undisputed еver, contrary to the is statutory rights constitutional or disregarded. may The record and be may prison It that the intervene.4 establishing that an affidavit State filed case ar authorities could have request prisoners their own confined at ranged provide petitioner the with preju- not were in maximum less onerous of conditions confinement. parole of their the consideration diced in guise protecting Under the of constitu applications; and, this state- to clinch rights, however, tional do federal courts emphasized petitioner ment, has the it power to, not have the and must be сare parole. District The been released on to, usurp responsibility ful not that the of the un- Court concluded the basis the for the rests executive branch regula- the disputed that record itself management prisons. It is when of administration, prison’s the tions of deprivations prison covering challenged petitioner, impose onerous of such conditions bur voluntarily in maxi- persons confined dens to be of constitutional dimen as security, arbitrary or un- not were mum prison that sions courts intervene petition. reasonable and dismissed long management.5 as the rules of So management We affirm. so are “not unrea as vindic sonable as to be characterized arguable petitioner’s claims It that is tive, inhuman,” long they or as cruel so certainly all not covered for relief— necessary concomi “are or reasonable prayer moot. —are long imprisonment”,7 so as tants regulations longer or sub- no in maximum punishment or do not involve any deprivations that at- ject to of the in fundamental restraints “intolerable which to such confinement tach fairness,” long not as the rules are so (8th complains. Burns v. Swenson Normet, Cf., Lindsey 56, 5. 1944) (6th 3. Coffin Reichard 36, 31 L.Ed.2d dec S.Ct. 445, 443, 143, den. 155 A.L.R. cert. 1972, February 23, “But Con ided 89 L.Ed. prоvide judicial reme does not 1961) stitution 2001; (4th Pegelow Sewell every ill.” social and economic dies ; 9 W. & M. Rev. L. supra, Pegelow, F.2d at 6. Roberts v. Pegelow p. 4. Roberts plain: reason is 551. The “ * ** necessity dis effeсtive v. Duncan Edwards ju ciplinary impelling controls is so imprac highly dicial review them is Cir.) wholly Carey McClos v. Settle tical and unwarranted.” key Maryland (4th p. “in 45-46, exercised such manner to consti- 2 L.Ed.2d capricе”,9 tute clear arbitrariness it must be dismissed for failure to state infringed. rights, constitutional jurisdiction.” a claim are within federal (333 1258.) F.Supp. p. peti- The of which the complains judgment tioner assume here do not оf the District Court is dimensions; they are nei- constitutional affirmed. arbitrary capricious. ther nor Under Affirmed. petitioner’s claim, they are the own CRAVEN, Judge (dissent- accepted regulations Circuit usual and ing) They “neither : amount to cruel and unusual complaints Breeden’s Nine-tenths equal protection or denials of mooted, been undercut but have They manifestly within laws.”10 are *4 concede, by majority to his re- seems the discretionary authority prison the security parole and lease from maximum They none of administration. involved system. I inter- am not much from the deprivations the inhuman noted in Han- damages prayer in his ested —be- Avery, supra. regulations cock These v. to allow a it seem unfair cause would complained of in are to those similar damage stand award to substantial Managers v. Jer- Ford Bоard of of New prison against administrators individual sey 1969) Prison State warning had no that until now have who 937, 940, where the Court said : privi- prisoner’s deprivation normal of a way proper leges perfectly tо a is not “Solitary in of it- confinement and protect of other him from the violence Eighth Amend- violate self does not inmates. temporary prohibitions, the and ment parole possibility can that be But the inci- discomforts and inconveniences nominal his entitlement to and revoked regarded as a dent thereto cannot be with a case. leaves us live judicial relief.” basis go the may to hаve to back Breeden v. Krist also, effect: same think to the there.1 I Farm. He can die 146,11 clearly to to enunciate time has come Smith the 497; Gra affirming (D.C.) re prison it is their that administrators supra; they v. Willingham, Kostal protect v. life and that sponsibility ham to Swenson, supra; su Tinsley, protection v. on re Smith condition language the privileges. of prison Applying the pra. of linquishment earned case, to this my cаse that important to brothers in the last-cited It seems light complaint the “Viewing the maximum Breeden asked knowing plaintiff accordance its attendant of favorable to most Gibson, the alternative Conley privileges.2 Since v. loss rule of the police Saunders, Willingham (10th investi- state Z. V. 9. Graham Wainwright prisoner 367, 368; gator V. as Julius Brooks identified serving Netties, 21, from was time who statutory burglary con- on a Portsmouth Swenson, Smith viсtion. p. 1258. at victim was stabbed said Saunders complaint prisoner’s case this 1 1. The in the chest. censorship menu; “the dealt with Hospital, Mary’s to St. was carried care; mail; of medical lack pronounced dead. he was where facilities; infrequency lack of shower made legal had been said no arrests exercise; ma to Saunders and lack access night. religious terials, library, and services.” last Times-Dispatch, Feb. p. 147) (439 Richmond 6-B, col. Convict, Knifing Fatal To are prisoner Pow- Farm in A at the State County alleged to be: stabbed death to hatan was exercise, returning 1. no to he inmatеs were and other leftovers, day night. supper meals two last their cells after consequences alleged personal injury ment of such character and general given or to be consсience death, as to shock possible I think he was fairness,” in fundamental intolerable choice. real Tahash, Lee v. court to the district I remand would judicial 1965), justifying interfer- evidentiary hearing. Haines fоr an of this ence in administration Kerner, on. Sain, (1971); Townsend L.Ed.2d 652 evidentiary I remand for an would L.Ed.2d 770 hearing. not know about do What we do more than what we is this case much REHEARING ORDER DENYING identify possible Why is it not know. rehearing ordered, en It is That banc If violence-prone ? separate prisoner’s release is denied because the approach impractical Breeden unavailability parole equi- why segregated, must himself be inappro- table relief have made the ease e alleged deprivations? suffer th priate for en banc consideration. reasons, compelling or oth are the What denying posses justify him erwise, belongings, personal curtail
sion of his
ing food and his visitors and even *5 been Breeden have Could sanitation? pris
protected to another transfer
on? CARMICAL, Richard L. Petitioner- short, why he choose between In must Appellant, reasonably life more miserable a safe prison- that of other well-behaved than CRAVEN, Warden, Walter E. inju- California physical of serious ers and the risk Folsom, Respondent- State Prison at ry not believe I do and death ? Appellee. put constitutionally state Nо. 26236. instead, but, prisoner, choice to a provide a responsibility to its assume Appeals, United States imprisonment. reasonably place of safe Ninth Circuit. prisons to the To control abdiсate Nov. is, “bulls” rule of terror of the inmate May 10, Rehearing Denied pun- me, to allow cruel and unusual Eighth ishment violation hand, to sub- Amendment. On the other depriva- ject prisoner a well-behaved upon un- tiоns arbitrary ruly prisoners to me seems capricious in violation action process Fourteenth
due clause of
Amendment.3 might hearing evidentiary show
An treat- “institutional involved here is page At only and one shave one shower of decision thе rationale court stated water, in cold week ' currently “that month, these words: one visitor a stabbing charged with the . . belongings. . personal 5. no his continued inmate another warrants (W. Swenson, Smith v. majority, upon D.Mo.1971), relied conjunction be read should reported companion name the same case of