Charles Thomas v. Warden Frank J. Pate, Luther W. Miller v. Illinois Dept. Of Correction, Illinois State Penitentiary, Warden Frank j.pate

ON PETITION FOR REHEARING

In seeking rehearing, defendants rely, with respect to the issue decided in Part 1 of the opinion, Racial Discrimination in Composition of Cells, on O’Shea v. Littleton, 414 U.S. 488 , 94 S.Ct. 669 , 38 L.Ed.2d 674 (1974) decided by the Supreme Court after our decision in this case.

Defendants claim that here, as in O’Shea , the complaint failed to allege an actual case or controversy with respect to this issue.

The complaints here did allege that the defendants have practiced racial discrimination by requiring plaintiffs to occupy cells with other black inmates and have refused to integrate such cells thereby depriving plaintiffs of their civil rights and equal protection. We not only treated the complaints as alleging an intentional practice of racial segregation, but concluded that the plaintiffs had established a prima facie case and that the burden shifted to defendants.

Defendants’ present point, seeking to rely on O’Shea , is that a black inmate’s allegation that the prison officers intentionally practice racial segregation in making cell assignments does not fulfill the “real injury,” case or controversy, requirement of Article III of the Constitution. They suggest that it is essential for a black inmate specifically to allege that he had been refused permission to cell with a person of another race, or had suffered some other “specific” injury.

In O’Shea , plaintiffs were black citizens and white citizens of Cairo, I11L nois. The complaint alleged that defendants, a magistrate and judge, were administering the criminal justice system in a racially discriminatory manner with respect to sentencing and other matters. Although some of plaintiffs had formerly been defendants and allegedly subjected to the discriminatory practices, none was currently so, and “the prospect of future injury rests on the likelihood that [plaintiffs] will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.”

The Court held that “the threat of injury from the alleged course of conduct they attack is simply too remote to satisfy the ‘case or controversy’ requirement and permit adjudication by a federal court.” At 498, 94 S.Ct. at 677 .

We conclude that the O’Shea holding does not preclude jurisdiction of a claim by a black inmate of a prison, currently living in a racially segregated cell, that defendant prison officials intentionally maintain racially segregated cells. Placing and keeping him in that cell for that purpose is the present injury which was lacking in O’Shea . There is nothing remote about the impact of intentional segregation on plaintiffs, if that policy exists, for they are compelled to live from day to day and night to night in the assigned places.

That there is a present injury to an inmate, intentionally segregated because of his race, is particularly clear if the inmate is black. Because of the relatively small size of the prison community, its closed nature, and the numerous facets of prison life subject to regulation, any racially discriminatory action by prison officials is likely more effectively to create a badge of inferiority for black inmates than would necessarily attach to minority residents of a city as the result of discriminatory action outside prison walls. Indeed plaintiff Miller’s pro se complaint explicitly alleged that the maintenance of a segregated institution “foster [s] an atmosphere of racial inferiority ... to the detriment of the Negro inmate.”

*164 Defendants point to certain testimony by Miller and seem to suggest that it refutes his claim of injury. As we read it, the testimony was that it would not make any difference to Miller whether his cellmates were white or black. We do not view this testimony as ■inconsistent with a claim that he was injured by enforced and intentional racial segregation.

Similarly, while the fact that plaintiffs appear not to have made a request to be assigned to an integrated cell may, in the course of trial, have some bearing, negatively, on the proof of the existence of an intentional policy of racial segregation, we think it does not destroy their claim that they are injured by such policy if it is shown to exist.

The petitions for rehearing, both on the part of defendants and of plaintiff Thomas, are denied.