# Petition — Smith v. McCray

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 1003

## Text

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 wo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0348%3A1. Public record. Not legal advice.