McCray v. Burrell

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 42 U.S.C. § 1983 , in all deference, I cannot agree with its reversal of the district court on the merits of McCray’s cases. To my mind this action of the majority is an incredible and unjustified judicial intrusion upon the right of the Maryland authorities to take reasonable disciplinary measures to maintain some semblance of order in their penal institutions, and arbitrarily discards the well documented decision of the district judge which was reached after a full and complete evidentiary hearing. 1

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 “[cjlearly 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 *373 the cell scrubbed before returning him to the cell for another twenty-four hours. Under the circumstances, I hardly see how this or any other court could conclude that McCray had been treated in such a “base, inhuman and barbaric” manner that it violated his Eighth Amendment rights. 2

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 dis *374 turbed, the majority concludes that the failure of Smith and Burrell to call expert medical help within the period prese "ibed by the directive in itself violated McCray’s Eighth Amendment rights, and states that “if expert medical help is not forthcoming within a reasonable period of time, the deprivations, discomforts and suffering resulting from such confinement must be alleviated and less barbarous means of protection must be provided.”

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 merit-less.” 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 encour *375 age McCray and other prisoners of a similar disposition to flaunt prison authority, continue their disruptive conduct in the institution, and clog the docket of the district court with more frivolous litigation. In a prefatory observation in his opinion in these cases Judge Northrop noted that almost 31% of prisoner appeals filed nationwide were filed in the Fourth Circuit in fiscal 1972 and that this percentage increased to 36.1% during the first half of 1973. More importantly, he noted, such cases accounted for 38% of all cases filed with the Fourth Circuit in 1972 and for 45.3% for the first half of 1973. I discern something more than a mere coincidental correlation between these disturbing statistics and the philosophy of judicial lenity evidenced by the majority in these cases of McCray.

Circuit Judge DONALD RUSSELL authorizes me to say that he joins in this opinion.

. The majority cites this court’s opinion in Landman v. Peyton, 370 F.2d 135 (1966). In4 that case which involved the solitary confinement conditions in the Virginia State Penitentiary, the evidentiary hearing conducted by the district court disclosed, among other things, that the prisoners in such confinement subsisted on a diet of bread and water for two days, were deprived of all items for personal hygiene, and that'the authorities resorted to the use of tear gas twelve to fifteen times in the course of a year. The district court concluded that all of this was done in the legitimate exercise of disciplinary authority. Writing for this court, Judge Sobeloff was highly critical of the Virginia authorities. However, he concluded that since the case came to us on conflicting testimony, we were not prepared to say that the findings of the district judge were clearly erroneous. It occurs to me that the findings and conclusions of Judge Northrop in the present case should be accorded similar respect.

. With respect to the cell conditions the district court made the following observation:

“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.

. See, United States v. Heffner, 420 F.2d 809 (4 Cir. 1969).

. See Church v. Hegstrom, 416 F.2d 449 (2 Cir. 1969).