457 F.2d 578 | 4th Cir. | 1972
Lead Opinion
Petitioner was a Virginia State prisoner. Claiming threats of bodily harm, he was transferred at his own request from the general prison population to maximum security.
We affirm.
It is arguable that petitioner’s claims for relief — certainly all not covered by his prayer for damages — are moot. He is no longer in maximum security or subject to any of the deprivations that attach to such confinement and of which he complains. Burns v. Swenson (8th Cir. 1970) 430 F.2d 771, 776; Kostal v. Tinsley (10th Cir. 1964) 337 F.2d 845, 847, cert. den. 380 U.S. 985, 85 S.Ct. 1354, 14 L.Ed.2d 277. We would not, however, rest our conclusions on this point. The dismissal of the petition was clearly appropriate on the admitted facts as set forth in the petitioner’s own complaint, and as established by the defendant’s showing.
While modern authority has considerably broadened prisoner’s rights,
The deprivations of which the petitioner complains here do not assume constitutional dimensions; they are neither arbitrary nor capricious. Under petitioner’s own claim, they are the usual and accepted regulations imposed in maximum security. They “neither amount to cruel and unusual punishment or denials of equal protection of the laws.”
“Solitary confinement in and of itself does not violate Eighth Amendment prohibitions, and the temporary inconveniences and discomforts incident thereto cannot be regarded as a basis for judicial relief.”
See, also, to the same effect: Krist v. Smith (5th Cir. 1971) 439 F.2d 146,
The judgment of the District Court is affirmed.
Affirmed.
. See Smith v. Swenson (D.C.Mo.1971) 333 F.Supp. 1258, 1260-1261:
“Maximum security confinement ‘is permissible where its object is protection of the general prison population or the personnel, protection of the prisoner himself, for disobedience of orders or for prevention of his escape.’ ”
. Petitioner described his proceeding as one for a writ of mandamus. On this appeal, his counsel states his action as one under Section 1983, 42 U.S.C. See, Rivers v. Royster (4th Cir. 1966) 360 F.2d 592, 594.
. Coffin v. Reichard (6thCir. 1944) 143 F.2d 443, 445, 155 A.L.R. 143, cert. den. 325 U.S. 887, 65 S.Ct. 1568, 89 L.Ed. 2001; Sewell v. Pegelow (4th Cir. 1961) 291 F.2d 196, 198 ; 9 W. & M. L. Rev. 178 (1967).
. Roberts v. Pegelow (4th Cir. 1963) 313 F.2d 548, 551. The reason is plain:
“ * * * the necessity for effective disciplinary controls is so impelling that judicial review of them is highly impractical and wholly unwarranted.” McCloskey v. State of Maryland (4th Cir. 1964) 337 F.2d 72, 74.
. Cf., Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 874, 31 L.Ed.2d 36, decided February 23, 1972, “But the Constitution does not provide judicial remedies for every social and economic ill.”
. Roberts v. Pegelow, supra, 313 F.2d at p. 550.
. Edwards v. Duncan (4th Cir. 1966) 355 F.2d 993, 994.
. Carey v. Settle (8th Cir.) 351 F.2d 483, at p. 485.
. Graham v. Willingham (10th Cir. 1967) 384 F.2d 367, 368; Brooks v. Wainwright (5th Cir. 1970) 428 F.2d 652, 653.
. Smith v. Swenson, 333 F.Supp. 1253, at p. 1258.
. The prisoner’s complaint in this case dealt with “the prison menu; censorship of his mail; lack of medical care; the infrequency of shower facilities; lack of exercise; and lack of access to legal materials, library, and religious services.” (439 F.2d p. 147)
Dissenting Opinion
(dissenting) :
Nine-tenths of Breeden’s complaints have been undercut but not mooted, as the majority seems to concede, by his release from maximum security and parole from the system. I am not much interested in his prayer for damages — because it would seem unfair to allow a substantial damage award to stand against individual prison administrators who until now have had no warning that deprivation of a prisoner’s normal privileges is not a perfectly proper way to protect him from the violence of other inmates.
But the possibility that parole can be revoked and his entitlement to nominal damages leaves us with a live case. Breeden may have to go back to the State Farm. He can die there.
I would remand to the district court for an evidentiary hearing. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1971); Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). What we do not know about this case is much more than what we do know. Why is it not possible to identify and separate the violence-prone ? If this approach is impractical and Breeden must himself be segregated, why must he suffer the alleged deprivations? What are the reasons, compelling or otherwise, that justify denying him possession of his personal belongings, curtailing his visitors and even his food and sanitation? Could Breeden have been protected by transfer to another prison?
In short, why must he choose between a reasonably safe life more miserable than that of other well-behaved prisoners and the risk of serious physical injury and death ? I do not believe the state may constitutionally put such a choice to a prisoner, but, instead, must assume its responsibility to provide a reasonably safe place of imprisonment. To abdicate control of prisons to the rule of terror of the inmate “bulls” is, to me, to allow cruel and unusual punishment in violation of the Eighth Amendment. On the other hand, to subject a well-behaved prisoner to deprivations imposed as punishment upon unruly prisoners seems to me arbitrary and capricious action in violation of the due process clause of the Fourteenth Amendment.
An evidentiary hearing might show that involved here is “institutional treatment of such character or consequences as to shock general conscience or to be intolerable in fundamental fairness,” Lee v. Tahash, 352 F.2d 970, 972 (8th Cir. 1965), justifying judicial interference in the administration of this prison.
I would remand for an evidentiary hearing.
ORDER DENYING REHEARING
It is ordered, That rehearing en banc is denied because the prisoner’s release on parole and the unavailability of equitable relief have made the ease inappropriate for en banc consideration.
. Knifing Fatal To Convict, 21
A prisoner at the State Farm in Powhatan County was stabbed to death as he and other inmates were returning to their cells after supper last night.
Z. V. Saunders, a state police investigator identified the prisoner as Julius V. Netties, 21, who was serving time from Portsmouth on a statutory burglary conviction.
Saunders said the victim was stabbed in the chest.
He was carried to St. Mary’s Hospital, where he was pronounced dead.
Saunders said no arrests had been made last night.
Richmond Times-Dispatch, Feb. 10, 1972, at 6-B, col. 1.
. The deprivations in maximum security are alleged to be:
1. no exercise,
2. only two meals a day of leftovers,
*582 3. only one shower and one shave a week in cold water,
4. only one visitor a month, and
5. no personal belongings.
. Smith v. Swenson, 333 F.Supp. 1258 (W.D.Mo.1971), relied upon by the majority, should be read in conjunction with the companion case of the same name reported at 333 F.Supp. 1253. At page 1257 the court stated the rationale of decision in these words: “that he is ' currently charged . . . with the stabbing of another inmate warrants his continued confinement in maximum security.