Petition — Smith v. McCray

vupivliie ee —_ °° §

FILED

AUG29 1980 ©

80-329

No. ok

| ICHAEL RODAK, JR., CLEF

In THE

Supreme Court of the United States

OcTorER TERM, 1980

SGT. B. D. SMITH,

Petitioner,

V.

MILTON McCRAY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEPHEN H. Sacus,

Attorney General

of Maryland,

Dona.p R. Sturman,

Assistant Attorney General,

One South Calvert Building,

Baltimore, Maryland 21202,

383-3737

For Petitioner.

The Daily Record Co., Baltimore, MD 21202 coca fi]

No.

In THE

Supreme Court of the United States

OctToBerR TERM, 1980

SGT. B. D. SMITH,

Petitioner,

Vv.

MILTON McCRAY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth

Circuit err when it held that Petitioner had not estab-

lished qualified immunity?

iil

PAGE

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .cccsccersscsssssevesnsesesevecsavseseseees 1

Opies Bes .cccciscsccmsmidins aii 1

JURISDICTION .....0cscaninstaneneaieeeeliatenebacss 2

ConsTITUTIONAL AND SratutorY Provisions In-

VOLVED ..1.c<0sccasuseeneeiaaeataaitaaeseeke 2

STATEMENT OF THE CASE ......cccccccccscccecssssesessesseees 3

ARGUMENT:

The United States Court of Appeals

for the Fourth Circuit erred when it

held that Petitioner did not establish

qualified immunity ...........ceeeeeeeees 6

CONCLUSIONS ..<1-:++cs0csscienaennannEienatepiesdvscnes 15

APPENDIX:

McCray v. Smith, —__ F.2d —__ (4th Cir.

19GB) ..cccenesiiscace neta ietebetcnees la

McCray v. Smith, N-72-234 (D. Md. 8/16/

17) ..<...«esesenalie Man tsaatinnens 8a

McCray v. Burrell, 516 F.2d 357 (1975) 24a

McCray v. Burrell, 367 F. Supp. 1191

CC eee 36a

Administrative Directive No. 12-70 ......... Sha

TABLE OF CITATIONS

Cases

Bianchini v. Humble Pipeline Co., 480 F.2d

251 (Sth Cin. S0URD ccccekns. 7

Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978) 9

Case v. Morrisette, 475 F.2d 1300 (4th Cir.

Lh) en ae 7

Daniels v. Hadley Memorial Hospital, 566 F.2d

7149 (D.C. Car. Tae aii eteieateensses 6,7

Dayton Board of Education v. Brinkman, —_

U.S. ——, 99 S. Ce. SOFT (IB TB) occc0ce05000s 6

PREVIOUS PAGE WAS BLANK 5

iv

Friend v. Leidinger, 558 F.2d 61 (4th Cir.

1978)

1973)

McCray v. Burrell, 426 U.S. 471 (1976)

McCray v. Burrell, 516 F.2d 357 (4th Cir.

1975)

McCray v. Smith, N-72-234 (D. Md. 8/16/77)

McCray v. Smith, —__ F.2d —_. (4th Cir.

1980)

North Central Airlines v. Continental Oil Co.,

574 F.2d 582 (D.C. Cir. 1978)

Pierson v. Ray, 386 U.S. 547 (1967) ................

Procunier v. Navarette, 434 U.S. 555 (1978)

Scheuer v. Rhodes, 416 U.S. 232 (1974)

Wood v. Strickland, 420 U.S. 308 (1975)

COCO EEE EEE E HEHEHE HEHEHE HEHEHE HEHEHE

SORE EEE E EEE

COO ROEOOOO EEE E HEHEHE HEHEHE EEE HEHE EEES

Constitutional Provisions

United States Constitution, Bill of Rights:

Eigth Amendment

Fourteenth Amendment

SOPOT HHH HHH HEHE EH ED

Statutory Provisions

United States Code:

Title 28,

CID sctensescnetscssasnneveniescnnsapsiannciaoseies

§ 1343(3) and (4)

Title 42,

COOP EEE HEHEHE HEHE EH EEEE

SOOO EEE HEEHE EEE HEHEE EEE EEHEEEEEEEEEEEEEEEEEE

Maryland Annotated Code, Article 41, § 204F

Rules

Maryland Rules of Civil Procedure, Rule 52(a)

1, passim

4, passiivi

2, passim

6

7

8, passim

7

7, passim

No.

In THE

Supreme Court of the United States

OctTosBerR Term, 1980

SGT. B. D. SMITH,

Petitioner,

Vv.

MILTON McCRAY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth

Circuit err when it held that Petitioner had not estab-

lished qualified immunity?

OPINIONS BELOW

The first Opinion of the United States District Court for

the District of Maryland is McCray v. Burrell, 367 F. Supp.

1191 (D. Md. 1973). On appeal, the same was reversed in

McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975). [Herein-

after McCray I]. Certiorari was granted by this Court and

2

subsequently dismissed as improvidently granted in

McCray v. Burrell, 426 U.S. 471 (1976). On remand, the

Opinion of the United States District Court in McCray v.

Smith was filed on August 16, 1977 and appears in the

Appendix to this Brief. On appeal, the Opinion of the

United States Court of Appeals for the Fourth Circuit was

filed on June 4, 1980 in McCray v. Smith, F.2d (4th Cir.

(1980), and is set out in the Appendix [Hereafter McCray

IT}.

JURISDICTION

The Opinion and Judgment of the United States Court

of Appeals for the Fourth Circuit was filed on June 4,

1980. Petitioner invokes the jurisdiction of this Court

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment Eight, United States Constitution:

“Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.”

Amendment Fourteen,'Section 1 and Section 5, United

States Constitution, in pertinent part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws... .

The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.”

United States Code, Title 42, § 1983:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

3

or Territory, or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law suit

in equity, or other proper proceeding for redress.”

STATEMENT OF THE CASE

The complaint in this case invoked the jurisdiction of

the United States District Court pursuant to 28 U.S.C.

§ 1343(3) and (4) U.S.C. § 1983 and the Constitution of the

United States.

Respondent sought relief for alleged deprivations of

liberty without due process of law and for alleged imposi-

tion of cruel and unusual punishment arising out of an

incident which occurred at the Maryland Penitentiary in

November, 1971 in which he was initially placed, without

clothes, in an isolation cell for approximately 48 hours as a

result of his disruptive behavior. The United States

District Court in McCray v. Burrell, 367 F. Supp. 1191 (D.

Md. 1973) found no constitutional violation on the part of

Petitioner and found that he had acted in accordance with

standard operating procedures which were not violative of

Respondent’s civil rights. The District Court further found

that Respondent was required to exhaust his State

administrative remedies provided in Article 41, § 204F,

Annotated Code o: Maryland.

This case, along with others consolidated for purposes of

appeal were heard before a three judge panel of the United

States Court of Appeals for the Fourth Circuit on June 6,

1974. Following argument, the Fourth Circuit, on June 27,

4

1974, ordered the cases to be heard en banc on October 1,

1974.

On April 10, 1975, the Fourth Circuit held that

exhaustion of State administrative remedies was not

required prior to invoking Federal jurisdiction, reversed

the judgment of the District Court and remanded this case

for further proceedings in accordance with its finding that

Respondent was denied his rights under the Eighth and

Fourteenth Amendments to the United States Constitu-

tion.

A petition for the issuance of the writ of certiorari was

timely filed and by Order of November 3, 1975, this Court

granted the writ of certiorari and after briefing and

argument, dismissed the writ of certiorari as improvident-

ly granted in McCray v. Burrell, 426 U.S. 471 (1976).

On remand, the District Court entered judgment for

Petitioner on August 16, 1977 in McCray v. Smith, No.

N-72-234 (D. Md. 8/16/77) following its determination that

Petitioner had established his good faith defense to the

complaint.

On appeal to the Fourth Circuit, the Court reversed that

part of the decision of the District Court relating to

Petitioner herein and remanded the same in McCray v.

Smith, ___. F.2d ____ (4th Cir., June 4, 1980). From that

decision, Petitioner has filed the instant petition for a writ

of certiorari to review the Opinion and Judgment of the

United States Court of Appeals for the Fourth Circuit.

On November 20, 1971, Respondent was confined in the

segregation section of the Maryland Penitentiary where he

created a substantial disturbance in his cell. Petitioner,

who worked the 8 a.m. — 4 p.m. shift at the Maryland

Penitentiary and was in charge of the segregation section,

had Respondent confined to an isolation cell (hereinafter

5

IC) for a cooling off period. An Administrative Directive

issued by the Division of Correction of Maryland allowed

use of the isolation cells for inmates who were either

emotionally disruptive or mentally disturbed. (The Admi-

nistrative Directive, No. 12-70, is set out in the Appendix).

According to the Administrative Directive, inmates who

were emotionally disruptive or exhibited acting out be-

havior could be placed in the IC cell for a cooling off

period. Inmates who were mentally disturbed could be

placed in an IC cell but there was a further requirement

that a psychologist/psychiatrist should be contacted im-

mediately and the inmate evaluated within 24 hours.

Respondent was placed in the IC cell without clothes or

articles of personal hygiene, because Petitioner did not

want Respondent harming himself and because weapons

or other devices can be made out of almost anything.

Petitioner further indicated that Respondent’s clothes

were removed as Respondent said he was going to kill

himself and under such circumstances, the removal of

clothing was standard operating procedure at the Mary-

land Penitentiary. Petitioner felt, however, that although

Respondent had threatened to kill himself, disruptive

inmates normally make such threats and Petitioner took

precautions to be sure that Respondent did not harm

himself or others. A psychiatrist or psychologist was not

called when Respondent was initially placed in IC because

Petitioner did not feel he was mentally disturbed.

Although Respondent threatened many things, he did not

do anything physically to himself to indicate he would

attempt to harm himself. The only thing Respondent did

was talk.

Respondent was placed in the IC cell due to his acting

out behavior and the need to prevent him from causing a

disturbance in the rest of the cell house area. Petitioner

immediately notified his superior of his actions. At shift

6

change, Petitioner told his relief to watch Respondent and

if he had calmed down, he was to get back his clothes and

personal hygiene items.

When Petitioner returned to work the next day at 8

a.m., he found that Respondent had smeared feces in the

cell and he immediately called the institutional psycho-

logist. He had Respondent taken out of his cell, showered

and had the cell scrubbed down and disinfected. Later that

day, Respondent received his clothes, personal papers and

other personal items after he had stopped acting out. The

psychologist arrived sometime thereafter to examine Re-

spondent. Petitioner did not feel, when he first placed

Respondent in the IC cell, that he was other than

emotionally disruptive, that is, acting out, and did not feel

he needed professional help until the following morning

after he had seen what Respondent had done in the cell.

Prior to this incident, Petitioner had had no previous

contact with Respondent. .

ARGUMENT

THE UNITED STATES COURT OF APPEALS FOR THE FOURTH

CIRCUIT ERRED WHEN IT HELD THAT PETITIONER DID NOT

ESTABLISH QUALIFIED IMMUNITY.

A. Standard of Review:

Rule 52(a), Federal Rules of Civil Procedure, states that

in an action tried without a jury “[F]indings of fact shall

not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge

of the credibility of the witnesses.” See Dayton Board of

Education v.. Brinkman, _— U.S. ——, 99 S.Ct. 2971,

2977 (1979); Friend v. Leidinger, 558 F.2d 61 (4th Cir.

1978), North Central Airlines v. Continental Oil Co., 574

F.2d 582 (D.C. Cir. 1978) and Daniels v. Hadley Memorial

Hospital, 566 F.2d 749 (D.C. Cir. 1977).

7

In Bianchini v. Humble Pipeline Co., 480 F.2d 251, 253

(5th Cir. 1973) that Court stated:

“The question is not simply whether the reviewing

court would have found otherwise but whether the

trial court could permissibly find as it did. The

reviewing court should upset a finding only when it

“is convinced on the whole record that the finding

does not reflect the truth and right of the case.”

Wright, Federal Courts §96, at 432.’” See also

Daniels, supra, at 756 and Case v. Morrisette, 475 F.2d

1300, 1307-8 (4th Cir. 1973).

B. Qualified Immunity:

The modern doctrine of qualified immunity had its

inception with this Court’s decision in Pierson v. Ray, 386

U.S. 547, 555 (1967), where immunity excused Defendant

from liability “. . : for acting under a statute that he

reasonably believed to be valid but that was later held

unconstitutional on its face or as applied.” In Scheuer v.

Rhodes, 416 U.S. 232, 247 (1974), this Court limited

immunity under 42 U.S.C. §1983 to less than that

enjoyed at common law by State officials and adopted a

rule which provided that “... in varying scope, a

qualified immunity is available to officers of the executive

branch of government, the variation being dependent upon

the scope of discretion and responsibilities of the office and

all the circumstances as they reasonably appeared at the

time of the action on which liability is sought to be based.”

Qualified immunity would therefore be afforded to officials

who acted in good faith and with a belief for which there

were reasonable grounds, in light of all the circumstances,

at the time that belief was formed.

In Wood v. Strickland, 420 U.S. 308 (1975), qualified

immunity available to State officials was fashioned into a

clear and specific test. As set forth in Wood, the qualified

immunity for public officials under §1983 involved a

8

two-prong test. Liability is avoided if (1) the official did

not know or should not have known that the action he took

within his sphere of official responsibility would violate

the clearly established constitutional rights of the person

affected (objective prong) and (2) the official must act

sincerely and with a belief that he is doing right (absence

of malice or improper motivation) (subjective prong). The

qualified immunity established in Wood has been ex-

tended to prison officials. See Procunier v. Navarette, 434

U.S. 555 (1978).

In Wood, this Court in discussing the objective prong of

qualified immunity indicated that the before liability

would attach a defendant must violate the “. . . unques-

tioned constitutional rights of his charges. . . .”, and that

the law must be “. . . settled, indisputable iaw . . .” and

that the school board members in Wood were not

“‘charged with predicting the course of constitutional

law.’” Wood, supra, at 321-322. Discussing the objective

prong of Wood in Procunier, this Court stated:

“Under the first part of the Wood v. Strickland rule,

the immunity defense would be unavailing to peti-

tioners if the constitutional right allegedly infringed

by them was clearly established at the time of their

challenged conduct, if they knew or should have

known of that right and if they knew or should have

known that their conduct violated the constitutional

norm... . Whether the state of the law is evaluated

by reference to the opinions of this Court, of a Court

of Appeals, or of the local District Court, there was no

‘clearly established’ First and Fourteenth Amend-

ment right with respect to the correspondence of

convicted prisoners in 1971-1972.” Procunier, supra,

at 562, 565.

In Procunier, this Court, while not considering the

subjective ground of malicious intention, stated:

“To the extent that a malicious intent to harm is a

ground for denying immunity, that consideration is

9

clearly not implicated by the negligence claim now

before us.” 434 U.S. at 566.

Similarly, in Wood, this Court spoke of “impermissible

motivation” when discussing the subjective intent neces-

sary to avoid a qualified immunity defense. Wood, supra,

at 322. Therefore, with respect to immunity, an official’s

inadvertent failure to take some precaution not previously

required by the courts would be insufficient to constitute

the malicious intention which forfeits his qualified good

faith immunity. See Bogard v. Cook, 586 F.2d 399, 411-12

(5th Cir. 1978). In the absence of subjective bad faith,

when an act does not violate settled, indisputable law,

there is no liability.

C. Misapplication of Qualified Immunity in this Case:

The Fourth Circuit in McCray I did not hold that

conditions in the IC cell violated Respondent’s Eighth

Amendment rights, but posited several questions to be

answered on remand in order for Petitioner to avail

himself of the good faith defense. Smith had to establish:

“(1) an explanation for his decision to confine plain-

tiff in an isolaved cell rather than a mental observa-

tion cell; and

(2) A reasonable understanding that his notification

of the psychologist approximately 24 hours after

plaintiff entered the isolation cell complied with

requirements of the administrative directive.”

McCray v. Smith, supra at App. 10a-1la. [Footnote

omitted]

The District Court found that Administrative Directive

No. 12-70 covered two distinct factual situations. “Para-

graph one permitted isolation of inmates who were

emotionally disturbed in the isolation cells and did not

require notification of a psychologist. Paragraph three

permitted isolation of inmates who were mentally dis-

turbed in the mental observation cells but required that a

psychologist be notified immediately and that the inmate

10

be evaluated within 24 hours.” McCray v. Smith, supra, at

App. 13a. This classification in the Administrative Direc-

tive of two different groups of individuals was acknow-

ledged by all of Petitioner’s witness and a witness called

by Respondent. Under these circumstances, individuals

classified as emotionally disruptive did not trigger the

requirement that a psychologist or psychiatrist be called

for examination. Respondent was placed in the cell

without clothes or personal hygiene articles because

Petitioner did not want Respondent harming himself or

others and although Respondent indicated he was going to

kill himself, Petitioner still felt that Respondent was only

emotionally disruptive and did not call the psychiatrist/

psychologist. Although Respondent threatened to harm

himself, he did nothing except talk and these threats were

common from disruptive inmates. The precautions taken

by Petitioner were standard operating procedures for

disruptive inmates at the Maryland Penitentiary.

Following Respondent’s assignment to the IC cell for a

cooling off period, Petitioner notified his supervisor and

informed his relief at shift change to watch Respondent

and give him back his personal items if he calmed down.

Only when Petitioner returned to work the next morning

and found what Respondent had done in his cell did he feel

that Respondent was, at this point, mentally disturbed and

immediately notified the institutional psychologist, had

Respondent showered and the cell scrubbed down aii’

disinfected. Later that day, when Respondent had calmed

down, he was given his personal items. Petitioner further

indicated that there were no less restrictive means at his

disposal when he placed Respondent in the IC cell.

The District Court found as a fact that Respondent was

emotionally disruptive and not mentally disturbed at the

time he was placed in the IC cell and had his personal

effects removed pursuant to standard operating proce-

1]

dures. When first placed in the IC cell, the District Court

found that the precautions taken “. . . were not premised

on the conclusion that plaintiff was mentally disturbed.”

McCray v. Smith, supra, at App. 13a. “Having reached this

conclusion [that Respondent was emotionally disruptive

but not mentally disturbed], Sergeant Smith interpreted

the administrative directive as not requiring that he

notify a psychologist.” McCray v. Smith, supra, at App.

13a. The District Court further found that Petitioner had

acted in good faith when he determined Respondent was

emotionally disruptive and did not call a psychologist.

“His [Petitioner’s] failure to notify the psychologist on

the first day of plaintiffs isolation was premised on

his good faith belief that plaintiff was not mentally

disturbed and that therefore paragraph three, requir-

ing notification of a psychologist after isolating

inmates displaying mentally disturbed behavior, was

not applicable.” McCray v. Smith, supra at App. 14a.

The District Court concluded that Petitioner’s belief that

Respondent was not mentally disturbed was reasonable

and that the Administrative Directive provided no guide-

lines for determining such behavior. McCray v. Smith,

supra at App. 14a-15a. Petitioner’s explanation of his

removal of Respondent’s personal articles was consistent

with his belief that Respondent came within Paragraph 1

of the Administrative Directive and that he acted

cautiously. McCray v. Smith, supra at App. 15a. The

District Court also found that Petitioner acted in accord-

ance with a reasonable belief in the legality of his actions

and concluded that the Administrative Directive did not

require notification of a psychologist whenever removal of

an inmates clothing was ordered. “Thus, Sergeant Smith’s

failure to notify the psychologist on November 20th did

not violate the directive. Nor could the Court discover

Judicial decisions before 1972 endowing prisoners with an

‘unquestioned’ constitutional right to have a psychologist

notified immediately whenever they are placed in an

isolation cell without clothing, mattress or arlicles of

12

personal hygiene. McCray v. Smith, supra at App. 16a.

[Emphasis supplied, Footnote omitted]

Petitioner, under these circumstances, clearly and suc-

cinctly answered the questions posed by the Fourth Circuit

in McCray I, that is: (1) Respondent was confined in an

isolation cell rather than a mental observation cell

because he appeared to be emotionally disruptive and not

mentally disturbed, the latter category calling for the

notification of a psychologist/psychiatrist and (2) Petition-

er’s uncontroverted testimony corroborated fully in the

hearing before the District Court, that he did not have to

call a psychologist/psychiatrist until he had an indication

that Respondent was mentally disturbed.

The Fourth Circuit, in its Opinion, felt that Respon-

dent’s confinement in IC could be justified only “. . . if

they were reasonably believed necessary for the protection

of the prisoner, and if a psychologist or psychiatrist was

immediately notified.” McCray IJ, supra at App. 3a. The

Fourth Circuit had posited in McCray I, supra at 368-69

[App. 30a-33a] that the Administrative Directive stated

the “constitutional minimum” for such a confinement,

“clearly establishing” that requirement in 1975. See

Procunier, supra. Noting in McCray II, supra, at App. 4a

that the Administrative Directive drew a sharp distinction

between an inmate who was emotionally disruptive from

one who was mentally disturbed, the Fourth Circuit

nonetheless disregarded that distinction and placed Peti-

tioner in the position where he would be required to guess

at the future development of constitutional law. Wood,

supra and Procunier, supra. Disregarding the fact that

Respondent’s confinement in this case took place in 1971

and the constitutional minimum was not established until

1975, the Fourth Circuit held that:

“On remand, Smith simply did not meet the possible

conditions of showing a good faith defense which we

13

envisioned in McCray I. He made no claim of

compliance with a reasonable understanding of the

psychologist notification rule. He simply shifted his

position to say that he thought McCray was less

seriously disturbed, that no psychologist or psychia-

trist was needed and that no notice by him on the 20th

was required. This is simply insufficient for a finding

of qualified immunity based upon a good faith belief

that what he did was lawful and in compliance with

prison directives. McCray II supra at App. 5a.

In its Opinion, the Fourth Circuit emasculated the

objective standard of Wood and Procunier by its require-

ment that Petitioner guess at the future development of

constitutional law. The testimony of Petitioner at both

hearings cl arly indicates that he did not feel Respondent

was mentally disturbed and for that reason did not notify

a psychologist/psychiatrist. The requirement of such noti-

fication was not present in the Administrative Directive

nor was it clearly established as a constitutional minimum

until the Fourth Circuit’s decision in McCray J. Petitioner,

acting in good faith reliance upon standard operating

procedures and in conformity with the Administrative

Directive, is now told that he acted improperly when no

guidance had been previously given him by any judicial

decision of which he was aware or should have been aware

of at the time he acted. His testimony is consistent with

his understanding of the Administrative Directive and

under Procunier and Wood, Petitioner was not required to

guess at his peril that what he did in 1971 would be

construed as improper in 1975. Coupled with the absence

of any testimony indicating a bad faith or malicious

motive on Petitioner’s part, he established the qualified

immunity provided him in Wood and Procunier. Absent an

affirmative finding by the Fourth Circuit that the District

Court was clearly erroneous, it should not substitute its

judgment for that of the trier of fact.

14

Although the Fourth Circuit assumed, in its decision in

McCray I, that Respondent was displaying mentally

disturbed behavior, the District Court found that Respon-

dent was not displaying mentally disturbed behavior but

was rather “acting out” or emotionally disruptive.

“Although Sergeant Smith provided an explanation

for his decision even assuming that plaintiff was

acting mentally disturbed, his conclusion that plain-

tiff was not acting mentally disturbed undermines the

basis for the appellate inquiry, since the directive

permitted confinement in the isolation cells for in-

mates who were not acting mentally disturbed.

Similarly, Sergeant Smith’s understanding of the

requirement that a psychologist be notified im-

mediately has no relevance in light of the Court’s

finding that Sergeant Smith reasonably believed that

plaintiff was not displaying mentally disturbed be-

havior. The requirement of immediate notification of

a psychologist applies only if the inmate is believed to

be displaying that behavior.” McCray v. Smith, supra

at App. 16a-17a [Footnote committed].

15

CONCLUSION

The decision of the Fourth Circuit in this case has so

clearly departed from this Court’s decisions in Procunier

and Wood, that liability will not attach in the absence of

the violation of a “clearly established” constitutional right,

as to render the doctrine of qualified immunity meaning-

less. There was no finding by the Fourth Circuit that the

District Court’s findings of fact were clearly erroneous but

was simply a matter of the application of a subsequent

rule established by them in 1975 to conduct which took

place in 1974.

For these reasons, Petitioner prays that the Petition for

a Writ of Certiorari to review the Opinion and Judgment

of the United States Court of Appeals for the Fourth

Circuit be issued.

Respectfully submitted,

STEPHEN H. Sacus,

Attorney General

of Maryland,

Dona_p R: StruTMAN,

Assistant Attorney General,

One South Calvert Building,

Baltimore, Maryland 21202,

383-3737

For Petitioner.

la

APPENDIX

United States Court of Appeals

For The Fourth Circuit

No. 77-2267

Milton McCray,

v.

Appellant,

Robert Burrell,

: Appellee.

No. 77-2268

Milton McCray,

v.

Appellant,

Sergeant B. D. Smith

(Badge No. 153) Maryland Penitentiary,

Appellee.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Edward S. Northrop,

District Judge

Argued February 5, 1980 Decided June 4, 1980

2a

Before HAYNSWORTH, Chief Judge, WINTER

and BUTZNER, Circuit Judges

Richard G. Fishman, Keystone Legal Services, Inc.

(Richard L. North, Legal Aid Bureau, Inc. on brief) for

Appellant; Donald R. Stutman, Assistant Atto ney General

(Stephen H. Sachs, Attorney General of Maryland on brief)

for Appellees.

Haynswortu, Chief Judge:

In these § 1983 actions, McCray, a prisoner, contends

that he was twice subjected to cruel and unusual punish-

ment when on two separate occasions he was placed in

solitary confinement without clothing or articles of person-

al hygiene. The details of McCray’s treatment are fully set

forth in a previous opinion by this court, McCray uv.

Burrell, 516 F.2d 357 (4th Cir. 1974) (en banc) (McCray J),

and in a published opinion by the district court, McCray v.

Burrell, 367 F. Supp. 1191 (D. Md. 1973). The defendants

are Sergeant Smith, a prison guard, and Captain Burrell,

a duty captain in charge of guards.

In McCray I, this court held that McCray’s Eighth

Amendment rights had been violated on both occasions of

isolated confinement. The cases were remanded to the

district court, however, to determine whether the defen-

dants were entitled to a qualified official immunity from

an assessment of damages. On remand, an evidentiary

hearing was held, after which the district court concluded

that Smith and Burrell had both established good faith

defenses to these constitutional violations. The sole issue

on this appeal is the propriety of that ruling.

I.

On November 20, 1971, McCray was transferred by

Sergeant Smith from a regular cell to an isolation cell. The

3a

initial purpose of the transfer was to put an end to a

substantial vocal disturbance which McCray had insti-

gated. On the way to the isolation area, McCray’s behavior

led Smith to conclude that McCray had the potential of

inflicting serious bodily harm upon himself. As a precau-

tion, Smith placed McCray in the isolation cell stripped of

all clothing and without items of personal hygiene. Smith

testified at the initial trial that he was concerned that

McCray might hang himself.

Smith did not notify a psychiatrist or psychologist until

the next morning, some twenty hours later. He did send

such a notice then, being prompted by McCray’s apparent

self-abuse in soiling himself. The record does not indicate

whether a psychologist ever saw McCray, but it does

appear that McCray was released from the isolation

confinement on November 22 when he appeared to be “all

right.”

In McCray I we held that the conditions of McCray’s

confinement in isolation were so severe as to border upon a

per se violation of the proscription against cruel and

unusual punishment. They could be justified only if they

were reasonably believed necessary for the protection of

the prisoner, and if a psychologist or psychiatrist were

immediately notified. We said:

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 ministra-

tions 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 be-

havior” 1s “placed in an isolation cell for the inmate’s

own safety, or that of the inmate population,” the

“psychologist/psychiatrist should be contacted im-

mediately after confinement of the inmate, and the

inmate should be evaluated within a twenty-four (24)

hour period.”

4a

. . . 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 ~equiring that a “psychologist/psychia-

trist . . . be contacted immediately after the confine-

ment of the inmate, and the inmate. . . evaluated

within a twenty-four (24) hour period.” (emphasis

added).

516 F.2d at 368-69.

When McCray I was decided, we knew that Smith had

not notified a psychologist or psychiatrist until twenty

hours had elapsed. Nevertheless, we thought that he

might establish good faith immunity if he could prove that

he reasonably understood that the administrative direc-

tion of immediate action was satisfied by action within

twenty hours.

On remand, however, Smith changed his direction. He

testified that he did not call a psychologist “immediately”

because he did not think that McCray was mentally

disturbed. He thought he was only emotionally disruptive.

The administrative regulations make a sharp distinction

between one who is emotionally disruptive and one who is

mentally disturbed. One who is being emotionally disrup-

tive is threatening the peace and security of the prison but

is not thought to be a threat to himself. Confinement cf

such a prisoner in an isolation cell is authorized for a

cooling off period, which might be as much as one hour or

such longer time as it takes the prisoner to calm down.

Punitive use of an isolation cell upon such a person,

however, is authorized. A mentally disturbed individual,

on the other hand, may reasonably be thought a threat to

himself. Removal and retention of the clothing and other

possessions of such an individual may be reasonable

insurance that they are not misused for self-inflicted

injury. If a mentally disturbed individual is so confined,

5a

however, as McCray was, the immediate notice to a

psychologist or psychiatrist is required.

In McCray I we accepted Smith’s testimony that McCray

was threatening harm to himself and was acting in a

severely disturbed manner. If that were true, we were of

the opinion that removal of his clothing and the depriva-

tion of effects was an .appropriate measure for the

prisoner’s own protection. .We were further of the view

that his confinement in the isolation cell would not have

been in violation of the Constitution if the requirement of

immediate notification to a psychologist or psychiatrist

had been satisfied.

The underpinning of our reasoning in McCray I was

completely dissolved during the hearing on remand,

however, when Smith testified that he had considered

McCray only as emotionally disruptive, that McCray was

placed in the isolation cell for the cooling off period and

that he thought he was not required to give the notice

which is required when the isolated prisoner is thought to

be mentally disturbed. The conditions under which Smith

confined McCray were those appropriate for a mentally

disturbed individual, but without the precaution of send-

ing for professional assistance. The result was that

McCray suffered all the deprivations of the harsher

confinement with no chance of early relief through

professional assistance.

On remand, Smith simply did not meet the possible

conditions of showing a good faith defense which we

envisioned in McCray I. He made no claim of compliance

with a reasonable understanding of the psychologist

notification rule. He simply shifted his position to say that

he thought McCray less seriously disturbed, that no

psychologist or psychiatrist was needed and that no notice

by him on the 20th was required. This is simply insuffi-

cient for a finding of qualified immunity based upon a

good faith belief that what he did was lawful and in

compliance with prison directives.

6a

Il.

On the other occasion of isolation of McCray, Captain

Burrell ordered him confined in a “mental observation”

cell after McCray had set his mattress afire. There was

fear that McCray would injure himself.

In McCray I we held that this confinement violated

McCray’s constitutional rights in two respects. The condi-

tions in the mental observation cell were so stark that any

confinement in it was held to be a per se violation of

McCray’s constitutional right. His right was further

violated because there was no prompt notification of a

psychologist or psychiatrist.

On remand, the district court found that Captain

Burrell was entitled to a good faith immunity defense.

The mental observation cell is in the medical wing of the

prison and is under the charge and supervision of the

medical staff. Captain Burrell was not responsible for the

conditions of the cell, and he had been informed that the

cleaning procedures in such cells in the hospital wing were

better than they appeared to be when we decided McCray

I. Moreover, the directives requiring staff notification of a

psychologist or psychiatrist clearly apply only when a

mentally disturbed prisoner is isolated in an isolation cell.

That directive does not apply to the general prison staff

when a prisoner is transferred to the hospital wing to be

placed in a mental observation cell. The omission is

reasonable for, upon the transfer, McCray was removed

from Captain Burrell’s general supervision and authority.

Responsibility for McCray’s treatment and the conditions

of his confinement were then in the medical staff. At that

time, there was a reasonable basis for Captain Burrell’s

belief that the person or persons on duty in the medical

wing, confining McCray in a mental observation cell,

would immediately notify a psychologist or psychiatrist

and arrange the mental observation which the transfer

was intended to procure. After McCray’s confinement for a

period of forty-six hours without having been seen or

7a

observed by a psychologist or psychiatrist, Captain Burrell

now may have reason to doubt that the medical staff will

perform responsibly in confining, observing and treating a

person transferred to a mental observation cell, but this

record discloses no reason for any such doubt on Captain

Burrell’s part at the time of McCray’s transfer.

For these reasons, there is adequate support in the

record for the district court’s finding and conclusion that

Captain Burrell acted responsibly and in a good faith

belief that the transfer he ordered was not in violation of

any of McCray’s constitutional rights. He is not responsi-

ble in damages for the later neglect and conduct of the

medical staff. Cf. Monell v. Department of Social Services,

436 U.S. 658, 691-95 (1978).

III.

The judgment of the district court is affirmed in part

and reversed in part and the case remanded for an

assessment and an award of appropriate damages for the

harm suffered by McCray during the twenty-hour period of

his confinement by Smith in an isolation cell before

notification to a psychologist. They may be determined on

this record and, if determined on this record, they need not

be substantial in amount, but some award against Smith

is necessary and appropriate. See Cary v. Piphus, 435 U.S.

247, 266 (1978).

Affirmed in part:

Reversed in part:

Remanded.

8a

In The United States District Court

For The District of Maryland

Civil Action No. N-72-68

Civil Action No. N-72-234

Milton McCray,

v.

Robert Burrell

Milton McCray,

v.

Sergeant V. D. Smith

Filed: August 16, 1977.

Charles F. Morgan, Esquire and Richard Fishman, Es-

quire, of Legal Aid Bureau, Inc., of Baltimore, Maryland,

for the plaintiff in both cases.

Francis B. Burch, Esquire, Attorney General of Maryland,

and Donald R. Stutman, Esquire, Assistant Attorney

General, for the defendants in both cases.

Northrop, Chief Judge.

INTRODUCTION

Plaintiif, Milton McCray, filed these actions pursuant to

42 U.S.C. § 1983, alleging that defendants violated his

9a

eighth and fourteenth amendment rights. Specifically, he

alleged inter alia that by confining him in an isolation cell

without clothing, bedding or articles of personal hygiene,

defendant, Sergeant Bernard D. Smith (incorrectly sued as

Sergeant V. D. Smith in Civii Action No. N-72-234),

violated his constitutional right to be free from cruel and

unusual punishment. Similarly, he alleged that defendant,

Captain Robert Burrell (in Civil Action No. N-72-68),

inflicted cruel and unusual punishment on him by placing

him in a mental observation cell in the prison hospital

with similar deprivations. The Court consolidated these

cases for trial and decided them in a single opinion.’ The

Court dismissed the complaints because plaintiff had not

enhausted his available administrative remedies with the

Maryland Inmate Grievance Commission. The Court,

however, also ruled on the merits of the complaints. It held

that defendants had not deprived plaintiff of his constitu-

tional rights and also that defendants were immune from

liability for damages under section 1983 because they

acted in good faith reliance on standard operating proce-

dures.

On appeal, the United States Court of Appeals for the

Fourth Circuit reversed, holding that plaintiff need not

exhaust his administrative remedies before suing under

section 1983, and that defendants had violated his consti-

tutional rights. The Court of Appeals held that Captain

Burrell had violated plaintiffs eighth amendment rights

by confining him in a cell under conditions that were per

se violative of the eighth amendment. It also held that

Captain Burrell violated plaintiffs eighth amendment

rights by failing to comply with an administrative direc-

tive requiring 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. . . . [T]he psychologist/psychiatrist should be

contacted immediately after confinement of the inmate,

and the inmate should be evaluated within a twenty-four

(24) hour period.” The Court of Appeals did not hold that

' The opinion is reported at 367 F. Supp. 1191.

10a

the conditions in the isolation cell in which Sergeant

Smith confined plaintiff violated the eighth amendment,

but it did hold that Sergeant Smith also violated plaintiffs

eighth amendment rights by failing to comply with the

constitutional standard enunciated in the administrative

directive. The appellate court indicated that the Constitu-

tion required not only immediate notification of a psycho-

logist, but also alleviation of the prisoner’s “deprivations

and discomforts” caused by removal of his personal

belongings, if medical attention is not forthcoming within

a reasonable time.’

Despite holding that defendants violated plaintiff's

constitutional rights, the Fourth Circuit did not impose

liability on defendants because of the possible availability

of a good faith defense. The Court of Appeals, however,

rejected the District Court ruling that defendants had

established a good faith defense by demonstrating com-

pliance with the administrative directive and standard

operating procedures and enunciated additional facts that

defendants would have to establish to avail themselves of

the good faith defense. According to the appellate decision,

Sergeant Smith must establish:

(1) an explanation for his decision to confine plaintiff in

an isolation cell rather than a mental observation

cell;? and

* The Fourth Circuit, however, did not suggest how the prison

guards could alleviate these “deprivations and discomforts” and

still accomplish the admitted goal of the deprivations, to prevent

the prisoner from injuring himself. One possibility is to have a

prison guard constantly observe each prisoner who threatens to

injure himself. Although this utopian practice would insure the

safety of the prisoners, it is impractical because of the limited

resources allowed prison administrators. Moreover, even if this

procedure were normally possible, the skeletal crew available on

the New Year’s Day weekend would probably have prevented its

use.

* This question relates to the statement in the administrative

directive that: “Institutions that do not have mental observation

cells may use the punitive or isolation cells for the purpose of

housing inmates who are mentally disturbed, but only upon

approval of a psychologist or psychiatrist.”

lla

(2) a reasonable understanding that his notification of

the psychologist approximately 24 hours after plain-

tiff entered the isolation cell complied with the

requirements of the administrative directive.

In regard to Captain Burrell, the Fourth Circuit addres-

sed each of his constitutional violations separately. To

avoid liability for the conditions in plaintiffs mental

observation cell, Captain Burrell would have to establish

that he “had a good faith belief that he was acting legally

in placing McCray in the [mental observation] cell. . . .”

Id. at 370-71. The Court of Appeals provided more

extensive guidance concerning Captain Burrell’s liability

for failure to comply with the administrative directive.

After stating that this Court must determine whether

Captain Burrell had met his responsibilities, that court

indicated that this Court’s inquiry must include several

questions:

(1) Whether Captain Burrell had a continuing duty to

plaintiff after placing him in the mental observation

cell?

(2) If so, whether he had a duty to determine that a

psychiatrist had been summoned?

(3) What duty Captain Burrell had when the psychia-

trist failed to respond within a reasonable time?

(4) Whether there were other more humane facilities to

which plaintiff could have been transferred when the

psychiatrist failed to respond?

The appeals court held that defendants had the burden of

establishing the defense and suggested that an evidentiary

hearing might be necessary to adduce additional evidence.

FactuAL BACKGROUND

Following this suggestion the Court conducted an

evidentiary hearing on May 13 and 20, 1977. Before

relating the additional facts deduced from this hearing, it

is beneficial to outline the factual background as deter-

mined in the Court’s original decision.

12a

On November 20, 1971, plaintiff complained of the

unsanitary condition of his cell on the “street side” of the

South Wing in the Maryland Penitentiary. Sergeant

Smith, who had not previously met plaintiff, responded to

this complaint by placing him in a different cell. While he

was in this cell, plaintiff began screaming demands for his

legal materials and his medicated shower. Sergeant Smith

then removed plaintiff and placed him in an isolation cell.

In the course of this transfer, plaintiff repeatedly

threatened to injure himself, and Sergeant Smith decided

to remove plaintiffs clothing and the mattress in his

isolation cell. During the night he was provided a

mattress. At the beginning of his shift the next day,

Sergeant Smith inspected plaintiffs cell and discovered

that he had smeared feces throughout his cell. He notified

the psychologist and had plaintiff bathed and the cell

scrubbed. Since plaintiff began acting normally, Sergeant

Smith returned his clothes. He retained plaintiff in

isolation for another day and then returned him to his cell

in the South Wing on November 22.

The incident involving Captain Burrell began with a

fire in plaintiffs cell on January 1, 1972. In an effort to

douse the fire, plaintiff had broken both his sink and his

toilet. Plaintiff was taken to the prison infirmary for

treatment, which he initially resisted. Captain Burrell,

who was responsible for the admininstration of the prison

at the time, ordered plaintiffs confinement in a mental

observation cell after he was informed that plaintiff had

intentionally started the fire in his cell. Concerned that

plaintiff might attempt to further injure himself, Captain

Burrell removed plaintiffs clothes and mattress in his cell

and deprived him of articles of personal hygiene. Plaintiff

remained in the mental observation ceil for approximately

48 hours, from January 1-3, 1972.

At the evidentiary hearing conducted May 13 and 20,

1977, the parties presented additional testimony directed

at the questions propounded by the Court of Appeals.

Several prison administrators discussed the intent of the

13a

administrative directive. From this testimony the Court

concludes that the directive governed the isolation of

inmates under two distinct factual situations. Paragraph

one permitted isolation of inmates who were emotionally

disturbed in the isolation cells and did not require

notification of a psychologist. Paragraph three permitted

isolation of inmates who were mentally disturbed in the

mental observation cells but required that a psychologist

be notified immediately and that the inmate be evaluated

within 24 hours.

SERGEANT SMITH

Sergeant Smith testified that he decided to place

plaintiff in the isolation cell because his disruptive

behavior indicated he was emotionally disturbed. He

originally intended that plaintiff would be in isolation

only for a “cooling-off’ period. Plaintiffs threats to injure

himself, however, convinced Sergeant Smith that he

should remove plaintiffs clothing and mattress and dep-

rive him of articles of personal hygiene that he could use

to injure himself. He testified, and the Court accepts, that

these precautions were standard operating procedure for

protecting inmates who threatened themselves. As

Sergeant Smith testified, however, these precautions were

not premised on the conclusion that plaintiff was mentally

disturbed. At the time he placed plaintiff in isolation,

Sergeant Smith was unfamiliar with his proclivities. He

was concerned about plaintiffs threats to himself, but he

was aware that inmates often threaten to harm them-

selves when they have no intention of doing so. Based on

these circumstances, he exercised his best judgment and

concluded that plaintiff was emotionally, but not mentally,

disturbed. Having reached this conclusion, Sergeant Smith

interpreted the administrative directive as not requiring

that he notify a psychologist.

The Supreme Court has enunciated a two-prong test for

determining whether government officials are entitled to

the qualified immunity provided by the good faith defense.

l4a

Wood v. Strickland, 420 U.S. 308 (1975).* The test imposes

both a subjective and an objective standard. Defendants

must establish not only that they had a good faith belief in

the constitutionality of their actions, but also that the

belief was reasonable. /d. at 321.

Sergeant Smith’s behavior after confining plaintiff in

isolation substantiates that he acted in good faith in

determining that plaintiff was only emotionally disturbed

and that he need not notify a psychologist. Before leaving

work on November 20th, Sergeant Smith told his replace-

ment that he could return plaintiffs clothes if his

condition improved. He had no intention of depriving

plaintiff of his clothes longer than necessary to insure his

safety and believed that his behavior was merely a brief

display, “an acting out” of emotions. However, when

Sergeant Smith discovered the feces in plaintiffs cell the

next day, he concluded that plaintiff was unstable and

notified the psychologist. By notifying the psychologist,

Sergeant Smith demonstrated a willingness to comply

with paragraph three of the directive when he believed

that it was applicable. His failure to notify the psycholo-

gist on the first day of plaintiffs isolation was premised on

his good faith belief that plaintiff was not mentally

disturbed and that therefore paragraph three, requiring

notification of a psychologist after isolating inmates

displaying mentally disturbed behavior, was not appli-

cable.

Furthermore, the Court concluded that Sergeant Smith’s

belief that plaintiff was not displaying mentally disturbed

behavior was reasonable. The administrative directive

provides no guidelines for determining whether an inmate

* Although Wood concerned school administrators, it is equal-

ly applicable to prison administrators. Knell v. Bensinger, 522

F.2d 720, 724 (7th Cir. 1975). See McCray v. Burrell, 516 F.2d

357, 371-72 (4th Cir. 1975) (addendum).

° “Acting out” denotes emotionally disruptive behavior. The

witness testified that inmates often engage in such behavior to

gain attention and annoy the prison staff.

15a

is displaying mentally disturbed behavior. It does not state

that prison guards can remove an inmate’s clothing and

mattress only if he is acting in a mentally disturbed

manner or that such action compels the conclusion that he

is displaying mentally disturbed behavior. It is also to be

noted that Sergeant Smith did not have a background in

psychology to assist him in evaluating a prisoner’s be-

havior. He could only rely on his experience as a prison

guard and exercise his best judgment. Indeed, plaintiffs

release from isolation after only two days’ confinement

confirms Sergeant Smith’s judgment that plaintiff was not

mentally disturbed. His decision to remove plaintiff's

clothing and mattress does not compel a contrary conclu-

sion. It is fully consistent with Sergeant Smith’s explana-

tion that he believed plaintiff was only emotionally

disturbed, but that he acted cautiously to avoid any

possibility that plaintiff might injure himself.° He was

aware that prisoner’s threats to injure themselves are

often empty, but he wished to take no chance.

The Court’s conclusion is not undermined by the

testimony of Major Clingenpeel, another prison official,

that a hypothetical situation approximating plaintiffs

behavior evidenced mentally disturbed behavior and re-

quired notification of a psychologist. It is always easier to

evaluate a situation with hindsight. Furthermore, despite

the detail of the hypothetical question, it could not

completely recreate plaintiffs behavior as observed by

Sergeant Smith.

Accepting Sergeant Smith’s determination that plaintiff

was not exhibiting mentally disturbed behavior, it is

manifest that he acted in accordance with a reasonable

belief in the legality of his actions. The administrative

directive requires immediate notification of a psychologist

only when an inmate displaying mentally disturbed

®° The Court takes judicial notice that the instances in which

prisoners injure themselves are not rare. Indeed, Captain

Burrell testified that one prisoner, whom he had placed in

isolation, hung himself.

16a

behavior is placed in isolation. The directive does not

require notification of a psychologist whenever a prison

official orders removal of an inmate’s clothing and mat-

tress to prevent self-inflicted injury. Thus, Sergeant

Smith’s failure to notify the psychologist on November

20th did not violate the directive. Nor could the Court

discover judicial decisions before 1972 endowing prisoners

with an “unquestioned” constitutional right to have a

psychologist notified immediately whenever they are

placed in an isolation cell without clothing, mattress or

articles of personal hygiene.‘ Therefore, the Court finds

that Sergeant Smith reasonably believed that neither the

administrative directive nor the Constitution compelled

notification of a psychologist after he placed plaintiff in an

isolation cell.

The Court’s factual determination that Sergeant Smith

reasonably believed that plaintiff was not displaying

mentally disturbed behavior diminishes the relevance of

the questions advanced by the Court of Appeals. The

questions assume that Sergeant Smith believed plaintiff

was exhibiting mentally disturbed behavior.’ Based on

this assumption, the Court of Appeals questioned Sergeant

Smith’s decision to confine plaintiff in an isolation cell

rather than a mental observation cell as required for

mentally disturbed inmates. Although Sergeant Smith

provided an explanation for his decision even assuming

that plaintiff was acting mentally disturbed," his conclu-

sion that plaintiff was not acting mentally disturbed

"In Wood the Court stated that official immunity would

require permissible intentions and observance of the students’

unquestioned constitutional rights. 420 U.S. at 321.

* Indeed, this Court and three judges on the Court of Appeals

were unfamiliar with this rule even in 1975. The Court is

reluctant to hold Sergeant Smith to a higher standard.

* Although this assumption may have been reasonable at the

time the Court of Appeals rendered its decision, the Court

believes that the evidence presented ot the additional hearing

compels a different conclusion.

'° Sergeant Smith testified that he had no authority to place

inmates in the mental observation cells.

17a

undermines the basis for the appellate inquiry, since the

directive permitted confinement in the isolation cells for

inmates who were not acting mentally disturbed. Similar-

ly, Sergeant Smith’s understanding of the requirement

that a psychologist be notified immediately has no rele-

vance in light of the Court’s finding that Sergeant Smith

reasonably believed that plaintiff was not displaying

mentally disturbed behavior. The requirement of immedi-

ate notification of a psychologist applies only if the inmate

is believed to be displaying that behavior.

For the above reasons, the Court holds that Sergeant

Smith has established a good faith defense and therefore is

immune from damages under section 1983.

CaprTraiIn BURRELL

Captain Burrell has established his good faith defense

even more conclusively. Captain Burrell testified that at

the time he confined plaintiff in the mental observation

cell he did not believe plaintiff needed psychiatric care.

Believing that plaintiff had started the fire in his cell,

however, he decided to employ every precaution to prevent

plaintiff from injuring himself again.'' Consequently, he

removed plaintiffs clothing and mattress and deprived the

plaintiff of articles of personal hygiene. The Court finds

that Captain Burrell exercised his best judgment in good

faith in determining that plaintiff did not require

psychiatric assistance. Furthermore, for the reasons stated

above in regard to Sergeant Smith, the Court finds that

neither the administrative directive nor the principles of

constitutional law applicable at the time of the incident

render Captain Burrell’s conclusion unreasonable.

Even assuming that Captain Burrell believed that

plaintiff was exhibiting mentally disturbed behavior and

required psychiatric treatment, the Court finds that he

acted in good faith and with a reasonable belief in the

'' This overabundance of caution probably resulted from a

previous experience in which a prisoner, whom Captain Burrell

had placed in isolation, hung himself.

18a

legality of his actions. Captain Burrell testified that he

relied on the statement of Nurse Weber, who treated

plaintiff, that she would notify a doctor. It was reasonable

for him to assume that the nurse and doctor would assure

that plaintiff would receive proper treatment, both medi-

cal and psychiatric. The testimony of both Major Svend

Hansen and Major Forrest Clingenpeel supports this

conclusion. Major Hansen testified that when a correction-

al officer orders an inmate to the hospital, it is the

obligation of either the senior correctional officer or the

hospital staff to call a psychologist if one is necessary.

Major Clingenpeel stated that when an officer isolates an

inmate in the mental observation cells in the hospital the

medical staff has the responsibility under the directive to

notify the psychologist. Although Nurse Weber interpreted

the directive differently, her testimony was indecisive. The

weight of the evidence compels the conclusion that

Captain Burrell acted in good faith and with a reasonable

belief in the legality of his actions in relying on the nurse

to summons a psychologist.

Furthermore, the testimony at the hearing satisfactorily

answered each of the questions posed by the Court of

Appeals. Captain Burrell did not have a continuing duty

toward plaintiff after he placed him in the observation

cell. As Major Clingenpeel testified, the medical staff had

the responsibility of notifying the psychologist about

inmates in the mental observation cells. Since the second

question was contingent on an affirmative answer to the

first, it need not be answered. In any case Major Clingen-

peel also testified that Captain Burrell had no continuing

obligation to determine if a psychologist had been sum-

moned. Nor did Captain Burrell have any duty to respond

when the psychologist failed to arrive to treat plaintiff

within a reasonable time. This finding logically derives

from the prior findings that Captain Burrell did not have

initial responsibility for either notifying the psychologist

or determining that he had been notified. It also comports

with the administrative directive which does not state who

has the obligation to act if the psychologist does not arrive

19a

within a reasonable time. Finally, the Court finds that, as

Captain Burrell testified, there were no less oppressive

facilities to which he could have transferred plaintiff when

a psychologist failed to arrive.” Plaintiff suggested no

alternative facilities to controvert Captain Burrell’s testi-

mony.

Captain Burrell also is immune from liability in dam-

ages for the unconstitutional conditions in plaintiffs cell.

Captain Burrell testified that he confined plaintiff in the

mental observation cell to prevent him from further

harming himself or other inmates. The Court accepts this

testimony and finds that Captain Burrell acted in good

faith with no intention to injure plaintiff and with the

belief that his actions were proper.

Furthermore, the Court finds that Captain Burrell’s

belief in the legality of his actions was a reasonable one.

The United States Court of Appeals for the Tenth Circuit,

in a case involving quite similar circumstances, held that

prison officials were not liable for damages because they

were entitled to official immunity. Poindexter v. Woodson,

510 F.2d 464 (10th Cir. 1975), cert. denied, 423 U.S. 846

(1976). In Poindexter the prison officials had confined

inmates in “strip” cells for periods ranging from 4-16 days

without clothing or articles of personal hygiene. Poindex-

ter v. Woodson, 367 F. Supp. 443, 452-54 (D. Kan. 1973).

The dimensions of the strip cells were approximately nine

feet long, five feet wide and eight feet high. Jd. at 452. The

walls and the floor were bare concrete and often were

covered with human excrement. /d. at 452-53. The cells

contained neither a bed nor any washing facilities and

apparently lacked heating. Jd. The only toilet was a hole

in the floor covered by a grate, which the inmate could not

" The Court assumes that in propounding this question the

Court of Appeals was excluding the alternative facilities of

which it was aware, i.e., plaintiff's cell in the South Wing and

the isolation cells, and the obvious possibility of returning

plaintiff's clothing and mattress. These are not true alternatives

because they would not serve as well the goal of preventing

plaintiff from harming himself or others.

20a

flush. Jd. at 452. The cells were used for inmates with

mental or disciplinary problems. Jd. The District Court

held that these conditions violated the eighth amendment

prohibition against cruel and unusual punishment. /d. at

458. The District Court further held, however, that the

prison officials were immune from liability for damages

because they had established an official immunity defense.

Id. at 462-63. (Poindexter, Supplemental Memorandum).

In affirming this holding, the Court of Appeals emphasized

that the incidents occurred shortly after a prison riot, that

the appropriate authorities authorized the design of the

cells pursuant to statute, and that no court with jurisdic-

tion over defendants had held that use of the cells

constituted cruel and unusual punishment. 510 F.2d at

465, 466.

The facts in this case concerning both the conditions in

the mental observation cell'® and Captain Burrell’s belief

in the legality of his actions are very similar to those in

Poindexter. When Captain Burrell placed plaintiff in

isolation, he was also operating under difficult prison

conditions, although not quite as severe as those in

Poindexter." Because of the New Year’s Day holiday, he

was operating with only a skeletal crew in quelling the

disturbance caused by plaintiff.’ 367 F. Supp. at 1191. In

addition, Captain Burrell was acting with the apparent

approval of prison authorities in using the mental observa-

tion cells.'® It was reasonable for Captain Burrell to

‘ assume the legality of the facilities provided by the State.

Furthermore, the administrative directive fostered this

'’ A description of the conditions in the mental observation

cell can be found in the Court of Appeals’ opinion. 516 F.2d at

369.

’ Correspondingly, Captain Burrell did not retain plaintiff in

isolation for nearly as long as the inmates in Poindexter were

retained.

'’ The holiday weekend probably also explains the unavaila-

bility of the psychologist.

‘© The Court is unaware of any Maryland statute or prison

regulation that would contradict this approval.

2la

belief by sanctioning and, indeed, compelling the use of

the mental observation cells under certain circumstances.

Although the use of these cells did not necessarily include

removal of an inmate’s clothing and mattress, such

precautions were standard operating procedure. Finally,

the Court is unaware of any court with jurisdiction over

Captain Burrell that had held prior to 1972 that condi-

tions similar to those in plaintiff's mental observation cell

were unconstitutional. Indeed, the reported decisions

available in 1972 provided little guidance concerning the

legality of Captain Burrell’s behavior. Although several

cases had held that conditions in certain isolation cells

were unconstitutional, most of these cases did not involve

temporary, non-punitive isolation to prevent the inmate

from harming himseif or other inmates. See, e.g., Ford v.

Bd. of Managers, 407 F.2d 937 (3rd Cir. 1969) (five-day

confinement in strip cell for threatening prison security);

Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) (33-day

confinement in strip cell for violating prison regulations);

Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1966)

(12-day confinement in strip cell for disciplinary viola-

tion).

Admittedly, two cases did indicate that even temporary,

non-punitive isolation in conditions similar to plaintiffs

mental observation cell would constitute cruel and un-

usual punishment. See Landman v. Royster, 333 F. Supp.

621, 648 (E.D. Va. 1971);'’ Hancock v. Avery, 301 F. Supp.

786, 792 (M.D. Tenn. 1969). These two District Court

opinions, however, hardly establish an unquestioned con-

stitutional principle, especially in light of contrary indica-

" In Landman, however, the court indicated that such

confinement might be permissible if authorized by a doctor to

prevent self-inflicted injury. 333 F. Supp. at 648. Furthermore,

although the Landman court held that defendants did not

establish a good faith defense, it did so on the basis of

circumstances that are not present in this case. The court relied

on the peculiarly offensive nature of some of defendants’ acts

and a prior warning by the Fourth Circuit concerning the cruel

conditions in the cells in question. Landman v. Royster, 354 F.

Supp. 1302, 1318 (E.D. Va. 1973).

22a

tions from other courts. For example, in Wright v.

McMann, 460 F.2d 126 (2d Cir.), cert. denied, 409 U.S. 885

(1972), the court tacitly approved regulations permitting

the removal of lights, toilets, beds, washstands and

mattresses from psychiatric observation cells if there was

imminent danger that the inmate would destroy them or

use them to harm themselves.’ Jd. at 131. In a previous

opinion concerning the same case, the court also had

accepted that precautions similar to those taken by

Captain Burrell might be necessary in certain circum-

stances. After stating that removing an inmate’s clothes,

exposing him to bitter cold and depriving him of basic

elements of hygiene violated civilized standards of human

decency, the court, in a footnote, stated that it did “not

rule out the possibility that in exceptional circumstances

it might be necessary to take from a prisoner all objects

with which he could harm himself or others.” Wright v.

McMann, 387 F.2d 519, 526 n.15 (2d Cir. 1967). Furth-

ermore, this Court in Roberts v. Pepersack, 256 F. Supp.

415, 419, 431 (D. Md. 1966), cert. denied, 389 U.S. 877

(1967), had held that solitary confinement in conditions

similar to plaintiffs mental observation cell was not

unconstitutional.

As this discussion demonstrates, judicial opinion con-

cerning the temporary isolation of prisoners to prevent

self-inflicted injury was scarcely monolithic or well-

defined when Captain Burrell acted in 1972. In addition,

the Court notes that the laws governing prisons and

prisoners were rapidly chanying during this period as the

courts began to discard the restraint that had characte-

rized previous judicial thought. See Landman v. Royster,

354 F. Supp. 1302, 1317 (E.D. Va. 1973). For these

reasons, the Court finds that Captain Burrell’s belief in

the legality of his actions was reasonable.

Therefore, the Court holds that Captain Burrell is not

liable for damages for confining plaintiff in the mental

observation cell.

'S In this case plaintiff had destroyed his sink and toilet before

Captain Burrell confined him in the mental observation cell.

23a

For the foregoing reasons, the Court will enter separate

judgments for defendants in accordance with this opinion.

Epwarp S. Norturop,

Chief United States District

Judge.

Dated: August 16th, 1977.

24a

McCray v. Burrell, et al., 516 F.2d 357 (4th Cir. 1975)

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 42

U.S.C. § 1983 for the redress of alleged deprivations of

civil rights arising out of his incarceration. Some of these

appeals were heard but not decided by a panel of the court.

Because each presents the same question of exceptional

importance, we consolidated them and heard them in banc.

In No. 74-1042 and No. 74-1043, plaintiff McCray, an

inmate of the Maryland Penitentiary, sought relief under

§$ 1983 for deprivations of liberty without due process of

law and for imposition of cruel and unusual punishment

arising out of two separate incidents in which he was

allegedly placed naked in an isolation cell for a period of

48 hours. In No. 74-1042, he sought only compensatory

and punitive damages. In No. 74-1043, his inartfully

drawn pro se complaint may be read to seek injunctive

relief as well as damages. Both cases were consolidated in

the district court and tried nonjury. The district court

dismissed both complaints with prejudice. The district

court found that before suing under § 1983, McCray was

required to exhaust the state administrative remedy

established by the Maryland Inmate Grievance Commis-

sion Act, 4A Ann. Code of Md., Art. 41, § 204F (1973 Cum.

Supp.), through which he could have obtained relief for the

deprivation of his constitutional rights; and that since

25a

McCray had not exhausted his remedies under that

statute he was not entitled to federal relief. McCray v.

Burrell, 367 F. Supp. 1191 (D. Md. 1973). On the merits, it

found that no constitutional violations had occurred in the

incidents alleged; that each defendant in the incident in

which he was concerned, had acted in good faith reliance

upon standard operating procedures and, hence, was

immune from liability in damages.

516 F.2d at 359-360.

* * * * * *

(Portions of this Opinion unrelated to this issue

have been omitted.)

Il.

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 complaint about

unsanitary conditions. Sergeant Smith, who had never

met McCray before, ordered his removal, had him sho-

wered and deloused and placed him in another cell on a

different tier. The warden instructed Smith to provide

26a

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 confine-

ment (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.” Jd. 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 waHs, 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 blank-

ets or other bedding, during the night a prison guard gave

him a mattress. McCray testified that it was so cold that

he tore open the mattress, which was old and deteriorated,

and dug a channel down in the cotton so that he could

sleep nestled in the mattress. Subsequently, McCray was

disciplined for destroying the mattress.

The cell containced 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 twe 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.

27a

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 administative 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 im-

mediately 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 psycho-

logist 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.’

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

* Sergeant Smith implied that the psychologist, one Dr. Musk,

did see McCray. Dr. Musk testified that he could not report

whether he had talked to McCray at this time. He said he would

“most probably” have recorded such a visit, but often did not.

28a

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 with another doctor,

whom she was unable to reach, and McCray was not seen

by a physician until January 4, 1972.

The M.O. cell in which McCray was placed was de-

scribed 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.”

29a

III.

[4] The district court held that plaintiffs confinement

“in both cases for forty-eight hours was not an unreason-

able period when one considers the surrounding circum-

stances in each case,” 367 F. Supp. at 1215, and that “the

defendant’s actions were not excessive exercises of author-

ity beyond the limits of civilized standards of decency. . .

they [were not] intended as punishment for the plaintiff's

conduct . . . they were employed as precuationary mea-

sures ... 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.

[5, 6] As articulated in Trop v. Dulles, 356 U.S. 86,

100-01, 78 S. Ct. 590, 597, 2 L. Ed. 2d 630 (1958), “[tJhe

basic concept underlying the Eighth Amendment is noth-

ing less than the dignity of man,” therefore the punish-

ment 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 amend-

ment. 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).

[7] 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-

30a

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.

[8] A. In McCray’s suit against Smith, we think that a

violation of the eighth amendment has been shown.’ The

conditions of confinement in I.C. cell No. 5 came perilously

close to a denial of eighth amendment rights in and of

themselves, but the record is not sufficiently complete that

we rest our decision on this ground. The cell did contain a

toilet and a sink, although we do not know if either could

be operated by McCray from within the cell or whether a

* We perceive that two tests for violations of the eighth

amendment are relevant in the cases before us. First, are the

conditions of punishment sufficiently “shocking” that they

amount to “cruel and unusual” punishment? See, e. g., Landman

v. Royster, 354 F. Supp. 1302, 1318 (E.D. Va. 1973). Second,

does the punishment constitute some rational means to reach a

permissible end or is it, instead, arbitrary, Howard v. Smyth,

365 F.2d 428, 431 (4 Cir. 1966), unreasonable, Almond v. Kent,

459 F.2d 200, 204 (4 Cir. 1972), or unnecessary, Weems v.

United States, 217 U.S. 349, 370, 30 S. Ct. 544, 54 L. Ed. 793

(1910)? The district court phrased this second test as requiring

that there not be “a less severe alternative that would have

achieved the purposes for which the confinement was imposed,”

367 F. Supp. at 1216, and its phraseology does not seem

inaccurate to us. See also Landman v. Royster, 333 F. Supp. 621,

645 (E.D. Va. 1971).

3la

guard was available to render them operative where their

use was indicated. McCray was deprived of essential

articles of hygiene, although conceivably there could have

been a good faith belief that he might harm himself if

permitted access to such seemingly innocuous articles as a

bar of soap or a toothbrush. McCray was also deprived of

heat, clothes and blankets, and he was furnished only a

deteriorated mattress in which he scooped out a resting

place for himself. The record, however, does not disclose

the temperature in McCray’s cell or whether McCray was

able to capture adequate sleep under these primitive

conditions.

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 profession-

al 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 con-

tacted 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.

[9] On this record, we conclude that McCray’s condi-

tions of confinement per se do not mount up to a denial of

his rights under the eighth amendment. We have no doubt

32a

that a prisoner evidencing mental derangement in a form

suggestive of self-harm or harm to others may and should

be remowed from the general prison population until his

true condition can be assayed by those competent to

evaluate him; and, until his examination and the formula-

tion of an expert opinion, he may be subjected to protective

measures. In permitting such confinements, the prison

directive comperts 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 im-

mediately after the confinement of the inmate, and the

inmate ... evaluated within a twenty-four (24) hour

period.” If compliance with the directive is not forthcom-

ing, the guarantee of the eighth amendment has been

denied, and, as we shall presently hold, 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.

[10] 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.‘ Society would

‘ Many other cases have singled out the deprivations suffered

by McCray in overall holdings that cell conditions violate the

eighth amendment: unsanitary cell conditions and lack of items

with which to clean oneself, LaReau v. MacDougall, 473 F.2d

974, 978 (2 Cir. 1972), cert. denied, 414 U.S. 878, 94S. Ct. 49, 38

L. Ed. 2d 123 (1973); inadequate heat, Wright v. McMann, 460

F.2d 126, 129 (2 Cir. 1972); Landman v. Peyton, 370 F.2d 135 (4

Cir. 1966); two and one-half days of isolated confinement,

33a

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).

[11] 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 in-

mates. 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, Cap-

tain 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 necessari-

Knuckles v. Prasse, 302 F. Supp. 1036, 1062 (E.D. Pa. 1969),

affd per curiam, 435 F.2d 1255 (3 Cir. 1970), cert. denied, 403

U.S. 936, 91 5. Ct. 2262, 29 L. Ed. 2d 717 (1971), reh. denied,

404 U.S. 877, 92 S. Ct. 33, 30 L. Ed. 2d 125 (1971).

34a

ly follow that McCray is entitled to damages and injunc-

tive 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 42 U.S.C. § 1983.” 367 F. Supp. at

1217. Although the cases must be remanded, we do not

foreclose the possibility that both Smith and Burrell may

again be held immune from damages.

[12] Our prior decisions establish that when a prison

guard acts in reliance on a good faith belief that what he is

doing is constitutionally permissible, he is immune to

damages as a consequence of his action even if it should be

later established that his belief was ill-founded. Skinner v.

Spellman, 480 F.2d 539 (4 Cir. 1973). Cf. Eslinger v.

Thomas, 476 F.2d 225 (4 Cir. 1973); Hill v. Rowland, 474

F.2d 1374 (4 Cir. 1973). In applying the test, however, the

district court seemed to conclude that because the defen-

dants appeared to have complied with both the substance

of the written directive with regard to the isolation of

prisoners suspected if mental illness and the “normal

operating procedure” of removing the clothing of “a

prisoner who had exhibited an unstable mental and

emotional state,” 367 F. Supp. at 1217, immunity to

damages followed as a matter of course. We do not

perceive that the immunity doctrine may be applied in

this fashion. Additional findings must be made before it

may be properly concluded that defendants are immune,

and it may be necessary to adduce additional evidence for

those findings to be made.

[13) Most important, defendants may not avail them-

selves 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.

35a

[14] 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 IL.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.

[15] Second, the written directive, purportedly followed

by Smith, explicitly stated that the “psychologist/psychia-

trist 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.”* 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

*’ On remand the evidence may show that Smith discharged

his duty by notifying a superior whom he reasonably expected

would properly notify a psychologist or psychiatrist. Indeed, it

may even appear that the superior gave such notice. In either

event, if the proof further shows that standard operating

procedures of the prison permitted this form of notification as

compliance with the administrative directive, Smith could still

be immunized from liability by the defense.

36a

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. cell, he wae

liable for damages fox this violation. However, Burrell’s

good faith in this regard remains to be established if

liability is to be avoided.

[16] We have also held that the eighth amendment was

violated when the administrative directive was not fol-

lowed. 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 net 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 Burell. 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.

37a

[17, 18] McCray’s request was both untimely and not in

writing as required by Rule 38(b), F. R. Civ. P. As such it

constituted a waiver of trial by jury, rule 38(d). Of course

the district court had discretion to grant the request, in

whole or in part, notwithstanding, Rule 39(b), but we

cannot say that there were such exceptional circumstances

that the failure to grant the oral motion was an abuse of

discretion. Genera! Tire & Rubber Co. v. Watkins, 331

F.2d 192, 197-98 (4 Cir. 1964), cert. denied, 377 U.S. 952,

84 S. Ct. 1629, 12 L. Ed. 2d 498 (1964).

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.

516 F.2d at 365-371.

McCray v. Burrell, 367 F. Supp. 1191 (D. Md. (1973)

(Portions of the Opinion unrelated to this issue

have been omitted.)

* * * * * *

Il.

MERITS

Q. [6] The complaints in both of these actions

invoke jurisdiction of the Court pursuant to 28 U.S.C.

§ 1343(3) and (4), 42 U.S.C. § 1983, and the Constitution of

the United States of America. Plaintiff alleges in both

cases that the acts of the defendants unconstitutionally

deprived him of his right to be free from physical abuse

and cruel and unusual punishment as guaranteed by the

eighth and fourteenth amendments to the Constitution.

He further contends that in both cases this abuse and

punishment was arbitrarily imposed in violation of the

due process clause of the fourteenth amendment. He also

charges that Captain Burrell acted to deny him proper

38a

medical care following injuries allegedly received in a fire

in his cell.

The testimony in both of these cases, as in most prisoner

complaints of this type, is in conflict. While a general

picture of the circumstances did develop, the question of

liability hinges on the credibility of the witnesses. The

Court as the trier of the facts must consider not only the

evidence introduced, but also must evaluate the demeanor

of the witnesses to determine their credibility. The

contradictory statements of the plaintiff during the trial of

these cases considerably diminished his credibility. One

obviously blatant false assertion occurred after he had

informed the Court that he had lost count of how many

cases he had pending before the various judicial forums in

the State. In response to a question posed by the Court,

Mr. McCray stated that he never files complaints in more

than one court based on the same cause of action. After the

conclusion of the trial, it came to the Court’s attention

that the plaintiff had filed a suit in the Superior Court of

Baltimore City alleging the same constitutional depriva-

tions as are involved in Civil No. 72-68-N (Milton McCray

v. Captain Burrell). While the defendant in 72-68-N is

Captain Burrell, and the suit filed in the Superior Court is

against the Warden of the Maryland Penitentiary, 72-68-

N was amended at the time of trial by the plaintiff

eliminating the Warden and the Penitentiary Medical

Staff as defendants. Clearly this indicates, contrary to the

plaintiffs contention at trial, that he does attempt to

litigate the same causes of action simultaneously before

more than one forum. A copy of the original complaint

filed in 72-68-N, and a copy of the complaint filed in the

Superior Court are included as appendices to this opinion.

The factual situations in both cases center on disruptive

incidents involving the plaintiff, and a determination by

the defendants that he be placed in an isolated cell

without clothes or a mattress. In Milton McCray v. Sgt. V.

D. Smith, (Sgt. Bernard D. Smith) Civil No. 72-234-N, the

plaintiff alleged that on November 20, 1971, while he was

39a

confined on the Maryland Penitentiary’s South Wing (a

wing used to house inmates who have violated prison

regulations), Sgt. Smith removed him from his cell, and

placed him in the isolated confinement area (I.C., known

to the inmates as the “hole”) for approximately two days.

The plaintiff was on the South Wing between November

17 and November 20, 1971. Prior to November 20th, Sgt.

Smith had never met McCray. Plaintiff admitted that on

November 20, 1971 he was placed in a cell on the “street

side” of the South Wing, but that he asked to be moved to

another cell when he discovered that the cell was in an

unsanitary condition (he alleged that there were lice in

the cell). Sgt. Smith then came to McCray’s cell and took

him to the “flats” (the lowest tier on the South Wing).

Plaintiff was then given a shower and was deloused, and

Sgt. Smith was told by the Warden of the Penitentiary to

provide the plaintiff with his law books and legal mate-

rials while he was on the South Wing. However, these

orders were not complied with because, according to the

unrefuted testimony of the defendant, the process of

packing and moving personal belongings could take from

two to three days to complete. The Court notes at this

juncture that there was testimony during the course of

these trials that the Penitentiary has been forced to

operate with a substantial shortage of prison personnel.

After the plaintiff had been placed in a cell on the fourth

tier, “yard-side,” of the South Wing, he began “hollering

and yelling,” demanding his legal materials and his

medicated shower. Apparently this disturbance, which was

quite substantial according to testimony of both the

plaintiff and the defendant, prompted Sgt. Smith to

remove McCray from the South Wing and place him in the

isolated cell area. Clearly this measure was taken to avoid

the possibility of causing a greater disturbance among the

other inmates.

While the defendant was transferring the plaintiff from

his cell on the South Wing to the I.C. area, McCray began

40a

shouting insults and threatening to do bodily harm to

himself. Interpreting these threats as an indication of

mental and emotional instability, and having personal

knowledge of prior incidents involving inmates in isolation

who had committed suicide, Sgt. Smith decided to strip

McCray and remove the mattress from the cell. He

testified that he felt it was better to subject the plaintiff to

some discomfort than to risk that he might attempt to kill

himself.

The cell in which McCray was placed, I.C. #5, was about

4-5 feet wide, 12-16 feet long and 12 feet high. It had four

concrete walls, a concrete ceiling and a concrete floor. At

the front of the cell was a solid, metal door and a barred,

grill-type door, either or both of which could be closed.

There was a toilet and a sink in the cell, and on the floor

was a concrete slab about 9 feet long, 3 feet wide and 12

inches high. Normally a mattress is placed on this slab

and serves as the inmate’s bed.

It was shown during the trial that the recommended

procedure, when a prison official places an inmate in the

LC. area, requires that he notify his immediat. superior.

It is significant that no evidence, other than the absence of

any reference to McCray in the log book during this

period, was introduced to indicate that the defendant had

not complied with this directive. Sgt. Smith testified that

they try to log all occurrences, but if there is considerable

activity among the inmates, often the guards are unable to

make these entries.

The next day when Sgt. Smith checked the plaintiff he

discovered that McCray had defecated in a cup, and

smeared this waste throughout the cell. Smith then

notified the psychologist, Mr. Musk, and decided to retain

McCray for an additional day. While it appears that Mr.

Musk may not have examined the plaintiff before he was

removed from the I.C. area, it is possible that this may

have been due to the fact that November 21st was a

Sunday. Mr. Musk testified that he did not recall talking

4la

to McCray about this specific incident, nor did he have a

record of such a meeting. However, it was brought out

during his testimony that he had spoken to the plaintiff on

at least ten occasions, and he had made a record of only

four of these visits.

Plaintiff also alleged that he was not given any showers

during the two days that he was confined in I.C., but the

records introduced at the trial clearly indicated that he

was given a shower on November 20, 1971.

The incident that is the basis for McCray’s suit against

Captain Burrell occurred on January 1, 1972. The plaintiff

had been placed in Cell #325 on the South Wing on

December 31, 1971 sometime between 6:00 and 7:00 p.m.

The defendant was a correctional officer and a duty

captain whose responsibility was the operation and admi-

nistration of the entire Penitentiary on the 8 a.m. to 4 p.m.

shift.

Plaintiff had been placed in cell #325 by Officer Fazzio,

and it appears that the cell had not been cleaned since the

departure of the last occupant. There was paper, dirty

blankets, a metal locker and other trash lying on the floor.

The plaintiff requested that the cell be cleaned up, but was

informed that it was too late in the evening. McCray then

swept the trash in front of his cell door to be pushed out

into the tier the following day.

At approximately 9 a.m. on January Ist he borrowed a

cigarette and a light from the inmate in the adjacent cell,

even though he testified that he usually does not smoke.

The plaintiff alleged that he dozed off with the lit cigarette

in his hand, and when he awoke the cell was filled with

smoke. He testified that he did not set the fire intentional-

ly, but he was charged with purposely causing the fire.

Plaintiff stated that he jumped from bed and attempted to

stamp out the fire, and when this failed he tried to

smother the blaze with the mattress, but this merely

worsened the situation.

42a

He then took a bucket that was in the cell and tried to

carry water from the sink to douse the fire. The bucket,

however, would not properly fit under the sink to allow

plaintiff to fill it sufficiently for it to be useful. He then

used the metal cabinet which was lying on the floor of the

cell to first break the sink and then the toilet in alleged

efforts to allow the water to flow more freely. When these

attempts failed he covered his head and body with water.

The guards, in the meantime, had attempted to put out

the fire but the fire extinguisher did not work properly.

After a short period of time, they procured a second

extinguisher and managed to put out the fire.

The plaintiff testified that he had suffered burns to his

hands and face, but the testimony of the nurse on duty at

the time of the fire, Mrs. Weber, and the dispensary

records, revealed that there were no blisters or serious

burns evident. She stated that when the plaintiff was

brought into the infirmary he was arrogant and initially

refused to allow Officer Martin to apply cold compresses to

the areas that he complained had been burned. However,

the officer was finally able to apply the compresses and

bacitracin ointment to his burns. His eyes were irrigated

and his ears were washed out. Mrs. Weber, according to

the testimony of the plaintiff, then recommended that he

be placed in a locked cell. Captain Burrell ordered that he

be placed in the Mental Observation area (M.O.). Captain

Burrell testified that he issued this order because he had

been informed that the plaintiff had intentionally set the

fire, and, since this was not a rational act, he believed that

the inmate was mentally unstable. Captain Burrell made

a reasonable determination from the circumstances at the

time. Having done this he decided, for the safety of the

other inmates and the plaintiff, to place McCray in M.O.

without clothes or a mattress. He testified that whenever

he had reason to believe that an inmate might try to

injure himself he removed from the cell any items that

could be used for this purpose.

43a

The plaintiff was allowed to remain in the M.O. area for

approximately forty-eight hours, from January 1-3, 1972.

It does not appear that he was visited by a medical doctor,

nurse, or a psychologist during this interval. It is impor-

tant to note that shortly after the plaintiff was treated in

the dispensary, Nurse Weber contacted Dr. Holljes and

advised him that the patient had been placed in M.O. She

also attempted to contact a Dr. Stewart but was unable to

reach him. The records introduced indicated that the

plaintiff was next seen by a physician, a Dr. Wood, on

January 4, 1972.

On January 13th the plaintiff was examined by Dr.

Gould, who testified that at this time he noticed several

crusted sores on McCray’s cheeks, ears, a small amount on

his back (which the plaintiff did not remember until

questioned on cross-examination), and some sores on his

knuckles. Dr. Gould further testified that the application

of cold compresses and an antibiotic ointment, similar to

the type applied to the plaintiff by Officer Martin, was the

appropriate treatment to be employed. While he stated

that this treatment should have been continued for a

period of time, he could not say that it was inadequate.

Although no testimony was given to explain why a

psychologist did not examine the plaintiff during his

confinement in the M.O. area, it is evident to this Court

that the New Year’s holiday weekend was a contributing

factor. Captain Burrell mentioned during his testimony

that the Penitentiary was short-handed at this time, a

factor he considered when he decided to place the plaintiff

in the M.O. area.

The plaintiff contends that the procedures employed by

both defendants were disciplinary in nature, and that they

violated his right to due process of the law. He asserts that

the requirements of due process were not satisfied when

the defendants failed: (1) to give him adequate notice of

the charges; (2) a hearing before a relatively objective

tribunal; and (3) an opportunity to respond to or explain

the alleged offenses.

44a

It is true, as the plaintiff points out, that when a

prisoner is subjected to substantial deprivations, they

should be premised on a rational determination of facts.

See Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971),

cert. den. 404 U.S. 1049, 92 S. Ct. 719, 30 L. Ed. 2d 740

(1972). However, this Court disagrees with the allegations

that the defendants transferred the plaintiff to an isolated

area for disciplinary reasons. Rather, the testimony was

quite clear in both cases that McCray had caused substan-

tial disturbances, and he had been removed to avoid the

possibility of continued disruptions that might involve

substantial portions of the South Wing. 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.

In both cases, once the decision to isolate the plaintiff

was made, the defendants were faced with a dilemma. Sgt.

Smith had to determine if the plaintiffs outburst was

merely a way of venting his frustrations, or whether he

was in such a frame of mind that he would actually

attempt to harm himself. Captain Burrell’s task was

certainly no easier. Once he concluded that McCray may

have set his cell on fire intentionally, a conclusion

undoubtedly buttressed by the guards’ reports and the fact

that the plaintiff did not ordinarily smoke, the defendant

Burrell had to determine if the plaintiff would continue to

act in a dangerous and disruptive manner. Since the

deliberate setting of a fire was not only dangerous to the

other prisoners, but to the plaintiff as well, he had to be

sure that McCray could not attempt to injure himself in

some other way.

To require a prison official to refrain from isolating an

inmate until a due process hearing can be held to

45a

determine if the prisoner might attempt to harm himself,

and still subject the official to liability for not controlling

the actions of that particular inmate, is totally unreason-

able. Such a standard of conduct would lead to the

resignation of many competent guards, and would deter

others from pursuing this occupation as a career. The net

result would be an everincreasing manpower shortage in

our correctional systems, a problem that is already a major

problem.

Captain Burrell and Sgt. Smith both stated that it was

standard operating procedure, when confronted with an

inmate exhibiting an irrational state of mind, to strip him

of his clothes and remove the mattresses. While this

procedure obviously caused the plaintiff considerable

discomfort, it was certainly reasonable for the defendants

to opt for this alternative rather than to risk the chance

that the plaintiff might use these items to harm himself.

Neither Sgt. Smith nor Captain Burrell had any other

choice but to place McCray in an isolated cell for the

security of the Penitentiary, and it was necessary to

remove all of his clothes and the mattresses from the cell

for his own safety.

While, ideally, it may be preferable to remove a prisoner

placed in isolation for nondisciplinary reasons after a few

hours, in these two cases such a course of action did not

appear to be feasible at the times involved. When Sgt.

Smith ordered the plaintiff removed from his cell on the

South Wing, McCray reacted violently. After a night in

the isolated confinement area, Sgt. Smith discovered that

he had defecated and smeared his waste about the cell.

Under an Administrative directive issued on August 10, ~

1970 by the Deputy Commissioner of the Department of

Correctional Services, James Jordan, in the absence of a

psychologist/psychiatrist, an inmate may be placed in an

isolation cell for his own safety, or that of the inmate

population, when he displays mentally disturbed behavior.

Such behavior was clearly present in the instant case. The

directive further provides that a psychologist/psychiatrist

46a

be immediately notified after the confinement, and the

inmate should be evaluated within a twenty-four hour

period. While Sgt. Smith may not have followed this

directive to the letter, he did notify the psychologist the

following morning, Sunday, November 21, 1971, when he

discovered that the plaintiff had smeared defecation about

his cell. He then ordered the cell cleaned and scrubbed,

and after another day of observation he had McCray

returned to the third tier of the South Wing.

In the case involving Captain Burrell, the plaintiff was

confined in isolation in the Mental Observation area for

forty-eight hours. This incident not only occurred during

the New Year’s Day holiday period, a time when a

subftantial portion of the prison staff was on leave, but

had endangered the lives of every inmate confined on the

South Wing. Thus, the most pressing matter facing the

defendant was the protection of the other inmates. Con-

fronted with a skeleton crew of guards, his only alterna-

tive was to separate the plaintiff from the rest of the

inmates until his staff returned to its normal strength on

Monday, January 3rd. It also appears that the decision to

deprive the plaintiff of his clothes and a mattress during

the entire forty-eight hour period may have stemmed from

the unavailability of a psychologist who could examine

and evaluate McCray’s condition.

None of these events constituted an arbitrary and

capricious punishment of the plaintiff. In neither case was

he removed from the South Wing as a disciplinary

measure, but rather as a security precaution. The plain-

tiffs clothing and mattress were removed in both cases

when he was placed in an isolation cell, in a reasonable

attempt to prevent him from injuring himself. The length

of time that he remained in isolated confinement was not

unreasonable under the circumstances in either case. The

fact that the plaintiff was not examined by a psychologist

on either occasion was not a result of neglect by the

defendants, but appears to have been caused by the

unavailability of such personnel during the weekends in

47a

question. The Court thus concludes that Sgt. Smith and

Captain Burrell did not arbitrarily impose a punishment

upon the plaintiff in violation of his right to due process,

but rather they were attempting to take reasonable

precautionary measures to insure the safety of the plain-

tiff and the other inmates of the Penitentiary.

The plaintiff further contends that the condition of the

cells and the lengths of time that he was confined

constituted cruel and unusual punishment in violation of

the eighth amendment. While the conditions of the cells

were by no means luxurious, and his confinement un-

doubtedly unpleasant, this Court does not find that it

constituted cruel and unusual punishment. When testify-

ing on his own behalf against Sgt. Smith, the plaintiff

admitted that when he discovered the condition of the first

cell in which he was placed on the South Wing he “really

started to perform.” He also testified that he had, in fact,

“hollered” long and loud when he did not immediately

receive his legal materials. Once Sgt. Smith ordered the

plaintiff removed from his cell and placed in the I.C. area,

it appears that the plaintiff indicated he intended to do

bodily harm to himself. Since Sgt. Smith had met McCray

for the first time that same day, it was reasonable under

the circumstances that he remove all items from the cell

that could be used by plaintiff to carry out his stated

intention.

Captain Burrell ordered the plaintiff confined in the

Mental Observation area without clothing and without a

mattress for similar reasons. The defendant testified that

the intentional setting of a fire in one’s cell was clearly an

irrational act, and it is standard operating procedure at

the Penitentiary to place an inmate in an isolated cell

without clothes or a mattress when he exhibits an

unstable state of mind.

The confinement of the plaintiff in both cases for

forty-eight hours was not an unreasonable period when

one considers the surrounding circumstances in each case.

48a

Sgt. Smith returned the next morning to find that the

plaintiff had smeared defecation in his cell. This demons-

trated a somewhat less than stable condition, and an

additional twenty-four hours in isolation withour clothes

appears to have been warranted. Captain Burrell was

faced with an inmate who had attempted to burn his cell,

and possibly the entire South Wing. The Penitentiary was

operating at this time with a skeleton crew, and did not

return to its normal strength until January 3, 1972, the

day the plaintiff was released from the M.O. area.

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.

The Court concludes that the defendants’ actions were

not excessive exercises of authority beyond the limits of

civilized standards of decancy. 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 plaintiffs 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).

[7] While the plaintiff asserts correctly that punish-

ments which are not per se cruel and unusual may become

so if they are disproportionate to the offense committed,

such is not the case here. He cites LaReau v. MacDougall,

473 F.2d 074, 978 (2d Cir. 1972) for the proposition that

49a

confinement in strip cell, even for short durations of time,

falls “below the irreducible minimum of decency required

by the Eighth Amendment.” However, that case is disting-

uishable from the ones before this Court. In LaReau the

prisoner was found in possession of contraband materials.

Pursuant to prison regulations he was punished by the

imposition of an indeterminate sentence, and he served

five days in isolation. The finding there of cruel and

unusual punishment by the Second Circuit appears to

have been premised upon the fact that the punishment

was disproportionate to the offense committed, and that a

less severe punishment would have adequately achieved

the purposes for which the punishment was imposed. Such

in not the case here. The plaintiff was not confined as a

punishment. He was isolated for his own protection and

that of the other inmates. He was not confined any longer

than was necessary to insure this protection. The place-

ment of the plaintiff was not unreasonable in light of his

conduct, nor was there a less severe alternative available

to the defendants.

[8] The allegation made in Civil Action No. 72-68-N,

that Captain Burrell caused the plaintiff to be denied

adequate medical care, is totally without merit. He was

taken directly to the dispensary for treatment after the

fire was placed under control. The treatment received by

the plaintiff was shown to be the appropriate care for the

type of injuries that he had allegedly received. Any failure

of the medical staff to diagnose the extent of the injuries

was directly attributable to the plaintiffs conduct. When

he first arrived at the dispensary he was arrogant and

refused any treatment. It was due only to the perseverance

of Nurse Weber an Officer Martin, and their willingness to

spend four times the normal length of time treating the

prisoner, that he received any medication at all. Once he

was placed in the mental observation area, Nurse Weber

contacted Dr. Holljes and informed him of the incident,

plaintiffs complaints, the extent of his injuries as she

perceived them and the treatment administered to him.

Dr. Holljes instructed her to contact Dr. Stewart, which

50a

she unsuccessfully attempted to do. She testified that she

did not continue in her efforts to reach Dr. Stewart

because at 2 p.m. that same day there was no complaints

from the plaintiff. In addition to this treatment, Mr. Musk,

a psychologist for the Penitentiary, testified that he saw

the plaintiff the week of January 4th concerning the

incident.

Even if the plaintiff had not received this care, the

Court does not see how Captain Burrell could possibly be

held liable. His unrefuted testimony was that he was

responsible for the control and security of the hospital, but

not for its operations. Clearly, if the plaintiff was not

treated properly by the medical staff, which the Court

emphasizes was not the case, this could not be attributed

to the defendant.

[9] The defendants in these cases also have available to

them the defense of reasonable good faith that their

actions were constitutionally permissible. Landman v.

Royster, 354 F. Supp. 1302, 1317 (E.D. Va. 1973). The

applicability of this defense to damage actions brought by

a prisoner under § 1983 was recently recognized by the

United States Court of Appeals for the Fourth Circuit in

Skinner v. Spellman, 480 F.2d 539 (4th Cir., 1973). In that

case the Court held that if the defendant could show he

was acting in reasonable good faith reliance on standard

operating procedure, he would not have to respond in

damages.

In Civil Action No. 72-234-N, the testimony established

that the plaintiff was causing a disturbance on the South

Wing, and that the other inmates requested he be

removed. It was also brought out on the cross-examination

of Sgt. Smith that he had the authority to place an inmate

in the I.C. area, and that after such action he was to

immediately notify his immediate superior. There was no

evidence introduced which would lead this Court to believe

that Sgt. Smith had not notified his superior. The

defendant Smith also stated there was a verbal under-

standing on the South Wing that an inmate yas not to be

5la

kept in isolation for more than three days. This procedure

was followed in this case.

In Civil Action No. 72-68-N, Captain Burrell followed an

Administrative directive ' ‘hen he confined the plaintiff in

the Mental Observation area after the latter apparently

started a fire in his cell. Defendant stated that it was a

normal operating procedure to remove the clothes of a

prisoner who had exhibited an unstable mental and

emotional state.

Therefore, since the defendants, as shown from all the

facts, acted in good faith in exercising their discretion,

Bennett v. Gravelle, 323 F. Supp. 203, 214 (D. Md. 1971),

they are immune from suit under 42 U.S.C. § 1983.

For the reasons stated herein, it is this 16th day of

October, 1973, ordered:

1. That the defendants’ Motions to Dismiss in Civil

Actions Nos. 72-68-N and 72-234-N be, and the same

hereby are, granted;

2. That plaintiffs claim for relief in Civil Action No.

72-68-N be, and the same is, denied; and

3. That the plaintiffs claim for relief in Civil Action No.

72-234-N be, and the same hereby is, denied.

367 F. Supp. at 1210-1217.

CENTRAL OFFICE

DEPARTMENT OF CORRECTIONAL SERVICES

ADMINISTRATIVE DIRECTIVE No. 12-70

Addendum

Subject: Efective 8-10-70

Adjustment Procedure (Addendum)

To Wardens And Superintendents:

Punitive or isolation cells will be used only when an

inmate is emotionally disruptive and will be used only as a

52a

cooling off period, which can entail from one hour up to the

time the inmate is reasonably calm enough to go to a

segregation area without becoming disruptive. The puni-

tive or isolation cells are not to be used as a routine

punishment area.

Institutions that do not have mental observation cells

may use the punitive or isolation cells for the purpose of

housing inmates who are mentally disturbed, but only

upon the approval of a psychologist or psychiatrist.

In the absence of the psychologist or psychiatrist, 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 psycho-

logist/psychiatrist is notified. 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.

JAMES JORDAN,

Deputy Commissioner.

JJ:mls

Date: August 10, 1970

Distribution:All Managing Officers — 2

Deputy Commissioner — 1

All Program Heads — 1

Policy Book — 1

Others:

DC Form No. 2