Petitioners Brief — Wilson v. Seiter

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Y Supreme Court, U.S.

No. 89-7376 kFILED

NOV B 1990

IN THE

Supreme Court of the United StateBs ~™

OCTOBER TERM, 1990

PEARLY L. WILSON,

e Petitioner,

RICHARD SEITER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF PETITIONER

ELIZABETH ALEXANDER *

DAVID C. FATHI

ALVIN J. BRONSTEIN

MARK J. LOPEZ

NATIONAL PRISON PROJECT

OF THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION

1875 Connecticut Ave., N.W., #410

Washington, D.C. 20009

(202) 234-4830

GORDON J. BEGGS

ELINOR R. ALGER

ACLU OF OHIO FOUNDATION

1223 West 6th Street

Cleveland, OH 44113

(216) 781-6278

JOHN A. POWELL

STEVEN A. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 W. 43rd Street

New York, NY 10086

(212) 944-9800

Counsel for Petitioner

* Counsel of Record

\) ¥

Kd ’ ¥

' 44

QUESTIONS PRESENTED

1. Whether the court of appeals erred in applying the

“malicious and sadistic” intent requirement of Whitley v.

Albers, 475 U.S. 312 (1986), to Eighth Amendment

challenges to continuing conditions of confinement that

do not involve the use of force.

2. Whether the court of appeals erred in affirming the

trial court’s grant of summary judgment in view of the

factual conflicts in the record.

ii

LIST OF PARTIES

The petitioner Pearly L. Wilson is a prisoner at the

Hocking Correctional Facility (hereinafter “HCF”) in

Nelsonville, Ohio. Everett Hunt, Jr., a second plaintiff

in the lower courts, is no longer confined at the HCF.

The respondents are Richard P. Seiter, Director of the

Ohio Department of Rehabilitation and Corrections in

Columbus, Ohio, and Carl Humphreys,* Superintendent

of the HCF.

* The current Superintendent is Carole Shiplevy.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED | i

ne ii

TABLE OF AUTHORITIES ...0 Vv

ESE TE 1

EES 1

er eee 2

STATEMENT OF THE CASE... 3

SUMMARY OF THE ARGUMENT... 8

ee 11

I. THE DECISION BELOW IS_ INCONSIS-

TENT WITH THIS COURT’S DECISION IN

WHITLEY v. ALBERS.......................................... 11

Il. THE DECISION BELOW IS INCONSISTENT

WITH THIS COURT’S EMPHASIS ON OB-

JECTIVE CRITERIA FOR DETERMINING

WHETHER THE EIGHTH AMENDMENT

HAS BEEN VIOLATED |... 20

A. Under Rhodes, Continuing Conditions of

Confinement Are to be Judged by Objective

SR a 20

B. Legislative Policies Challenged Under the

Eighth Amendment Do Not Require an

Inquiry into State of Mind... ii—i—s—sS 24

C. Continuing Conditions Violating the Eighth

Amendment Standard in Rhodes Necessarily

Involve at Least Deliberate Indifference ___ 25

ee 29

iv Vv

TABLE OF CONTENTS—Continued ~ TABLE OF AUTHORITIES

Page CASES Page

. lb , , N.Y., } ’

Ill. THE GRANT OF SUMMARY JUDGMENT hs Peres od a N.¥., 627 F.Supp in

380 ‘ ae ental tee a ee oe eee

WAS ERROR 0 -o----oeessseeesceeceeeeeceeetteceeeteceen American Foreign Service Ass’n v. Garfinkel, 109

A. Under a Correct Legal Standard, Factual nC nn 31

Disputes Precluded Summary Judgment...... 30 Berry v. City of Muskogee, 900 F.2d 1489 (10th

oe } j ‘ AIA ia i SER ne 17, 18

B. The Petitioner Affidavits Either Challenge City of Canton, Ohio v. Harris, 109 S.Ct. 1197

the Existence of the Claimed Remedial Ef- (1989) 27

forts or Challenge the Claim that the Reme- a I no Ataal i a ae. aa eae ante

dial Efforts Had Any Significant Impact i | nutes Ane

upon Conditions eee = Coker v. Georgia, 488 U.S. 584 (1977)... 21

C. An Eighth Amendment Violation Cannot Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d

Be Cured by Ineffectual Remedial Efforts...... 34 556 (1st Cir. 1988), cert. denied, 109 S.Ct. 68

TCR nD ae aS SE li 19, 38, 39

IV. THE COURT OF ven -) "aildietnenaes DeMallory v. Cullen, 855 F.2d 442 (7th Cir. 1988). 38

MISSING CERTA 36 DeShaney v. Winnebago County DSS, 109 S.Ct.

CLAIMS «2 neeecsenseeneeeeeeeeceeececcennneeeeeeeceeeceeccennnanees or ears 26

Dudley v. Stubbs, 109 S.Ct. 1095 (1989) (mem.)... 14

CONCLUSION ......---------eeceessseesecssesseeeeecnnneescccnneeeeccnnenss 40 Estelle v. Gamble, 429 U.S. 97 (1976) passim

Evans v. Dugger, 908 F.2d 801 (11th Cir. 1990)... 20

Foulds v. Corley, 883 F.2d 52 (5th Cir. 1987)... 15, 16

Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974). 22, 23

Gillespie v. Crawford, 883 F.2d 47 (5th Cir. 1987),

mod., 858 F.2d 1101 (5th Cir. 1988) (en banc)

a A yt SE IN oe 16

Graham v. Connor, 109 S.Ct. 1865 (1989)... 28

Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982) __. 29

Howard v. Adkison, 887 F.2d 184 (8th Cir. 1989)... 17, 26

Hutto v. Finney, 487 U.S. 678 (1978) 10, 36

Inmates of Allegheny County Jail v. Pierce, 612

F.2d 754 (3d Cir. 1979) 2.0. cece. 29

Inmates of Occoquan v. Barry, 717 F.Supp. 854

ill A I SP ne 59

Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979) 39

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)..15, 18, 19

Langley v. Coughlin, 715 F.Supp. 522 (S.D.N.Y.

ERENCE LP era ss OOS Nea SI a RIE 38, 39

Morgan v. District of Columbia, 824 F.2d 1049

(D.C. Cir. 1987) rsh tie 18

Noll v. Carlson, 809 F.2d 1446 (9th Cir. 1987)...... 19

vi

TABLE OF AUTHORITIES—Continued

Ort v. White, 813 F.2d 318 (11th Cir. 1987)... 14

Powell v. Lennon, 914 F.2d 1459 (11th Cir. 1990). 20

Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala. 1976),

aff'd as modified, 559 F.2d 288 (5th Cir. 1977),

rev'd in part, 488 U.S. 781 (1978)... 22

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981)... 22, 28

Reece v. Gragg, 650 F.Supp. 1297 (D.Kan. 1986) .. 39

Rhodes v. Chapman, 452 U.S. 337 (1981)... passim

Rogers v. Evans, 792 F.2d 1052 (11th Cir. 1986) .. 29

Rummel v, Estelle, 445 U.S. 263 (1980). 21

Shrader v. White, 761 F.2d 975 (4th Cir. 1985). 38

Smith v. Wade, 461 U.S. 30 (1983)... 14, 15, 27

Solem v. Helm, 463 U.S. 277 (1983) _.. 24

Stanford v. Kentucky, 109 S.Ct. 2969 (1989). 24

Stubbs v. Dudley, 849 F.2d 83 (2d Cir. 1988)... 14

Tillery v. Owens, 719 F.Supp. 1256 (W.D.Pa.

1989), aff'd, 907 F.2d 418 (3d Cir. 1990)... 37, 39

Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977)... 29

Trop v. Dulles, 356 U.S. 86 (1958)... 24

United States v. Oregon State Medical Society, 343

RE a ce 34

Weems v. United States, 217 U.S. 349 (1910)... 24

Wellman v. Faulkner, 715 F.2d 269 (7th Cir.

RET A RR ADA 29

West v. Atkins, 108 S.Ct. 2250 (1988)... 26

Whitley v. Albers, 475 U.S. 312 (1986) passim

Williams v. Edwards, 547 F.2d 1206 (5th Cir.

Maelo bade BE a Si Ne 22, 23

Wilson v. Seiter, 893 F.2d 861 (6th Cir. 1990)... 1

Wolff v. McDonnell, 418 U.S. 5389 (1974) 35

Wood v. Strickland, 420 U.S. 308 (1975)... 25

Wright v. Jones, 907 F.2d 848 (8th Cir. 1990)... 16, 17

CONSTITUTIONAL PROVISIONS AND

STATUTES:

Eighth Amendment to the United States Consti-

eA LE TNA ee pA 5 ROTA ONO CON MER passim

vii

TABLE OF AUTHORITIES—Continued

Page

28 U.S.C. § 1843... TORE REL Ata oN NANA TE EERIE TRY 1,2,3

EEN eR CN 1, 2, 11, 17

EEL ea ene 23

OTHER AUTHORITIES:

American Correctional Association Standard 2-

LSA TES ce A ce 36, 37

30 American and English Encyclopedia of Law

(2d ed. 1905)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-7376

PEARLY L. WILSON,

Petitioner,

—) |

RICHARD SEITER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF PETITIONER

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit, entered on January 16, 1990, is re-

ported at 893 F.2d 861 and is reprinted in the Joint

Appendix separately filed (hereinafter “App.”’). The un-

reported trial court opinion is also reprinted in the Joint

Appendix. App. 53-59.

JURISDICTION

Petitioner filed this action on August 28, 1986. The

district court had jurisdiction of the case pursuant to

42 U.S.C. § 1983 and 28 U.S.C. § 1343. The district court

denied petitioner’s motion for reconsideration of its grant

2

of summary judgment against him on February 24, 1988.

Petitioner filed a notice of appeal on March 2, 1988. The

opinion and judgment of the United States Court of

Appeals for the Sixth Circuit were issued on January 16,

1990. On April 3, 1990, the Honorable Antonin Scalia,

Circuit Justice for the Sixth Circuit, granted an appli-

cation to extend until May 2, 1990 the time for filing a

petition for writ of certiorari. The petition was filed on

May 2, 1990, and the Court granted the petition and the

motion for leave to proceed in forma pauperis on October

1, 1990. This Court has jurisdiction to review the judg-

ment pursuant to 28 U.S.C. § 1254(1).

STATUTES INVOLVED

This case involves 42 U.S.C. $1983 and its jurisdic-

tional counterpart, 28 U.S.C. § 1343.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute, ordi-

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

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person w:thin 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.

28 U.S.C. § 1343 provides in pertinent part:

‘a’ The district courts shall have original jurisdic-

tion of any civil action authorized by law to be

commenced by any person:

* * .

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any

Act of Congress providing for equal rights of citizens -

3

or of all persons within the jurisdiction of the

United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

STATEMENT OF THE CASE

This action was filed by the petitioner and another

prisoner, acting without counsel, in 1986. The amended

complaint alleged that prisoners were double-bunked in

dormitories at the HCF with less than fifty square feet

per person; that noise levels were excessive; that the

dormitory was “nearly frigid” in the winter; and that

the clothing provided was inadequate to keep prisoners

warm. The amended complaint also claimed that tem-

peratures were excessively high in the summer because of

a lack of ventilation, resulting in prisoners experiencing

heat-related rashes and prisoners with respiratory prob-

lems having difficulty breathing. The complaint further

stated that the restrooms were dirty, slippery, and mal-

odorous, and that the food services were a serious threat

to the well-being of the prisoners because of inadequate

sanitation, ventilation, and sewage drainage. In addition,

the complaint alleged that the presence of physically and

mentally ill prisoners in the dormitories created a dan-

gerous and stressful environment, and that prisoners were

not classified as regulations required. The prisoner plain-

tiffs requested injunctive and declaratory relief, as well as

damages. App. 8-9. The petitioner requested the appoint-

ment of counsel,’ but the trial court took no action on

the request.

The parties filed cross-motions for summary judgment

with supporting affidavits.’ Although the opinion of the

1 See docket entry for August 28, 1986. App. 1.

2? The petitioner did not cross-appeal the denial of his motion for

summary judgment.

4

court of appeals ultimately turned on a state of mind

question not directly related to the actual conditions at

HCF, petitioner summarizes the parties’ affidavits below

in order to demonstrate that the record presents a factual

conflict.*

* The petitioner has reorganized the allegations of the affidavits

and countering affidavits to clarify the parties’ contentions. The

unrepresented petitioner submitted seven affidavits from prisoners

living in the dormitory. These were countered by several affidavits

from staff and a visitor to the HCF.

Ventilation

Petitioner’s Allegations

The air in the dormitory is stagnant and foul from toilets, urinals

and colostomy bags. It is difficult to sleep at night because of this

foul air> In summer, the temperature goes up to 95°, and this heat

is aggravated by the lack of ventilation and the fact that fire exits

are locked at all t'mes. The fans in the dormitories are inadequate

to move the foul air out. As a result of the heat some prisoners

“(fall] out” (faint). Prisoners with respiratory problems have

trouble breathing; others develop heat rash.

Respondents’ Allegations

The dormitories contain two large exhaust fans to increase ventila-

tion and keep down the temperature in summer. The majority of

the windows are in working order, and they are opened in summer.

No prisoners have been ove: “ome by heat.

Scnitation ints

Petitioner’s Allegations

Urine accumulates around the toilets and urinals and is inade-

quately cleaned, resulting in offensive odor; floors are filthy because

of a lack of proper cleaning supplies. The dormitory is infested

with a variety of insects and mice, and extermination is totally

inadequate. The dining hall is fil _..d the food is prepared by

unsupervised, sometimes diseased prisoners. As a result. petitioner

fears to eat in the dining hall.

Respondents’ Allegations

The restrooms are completely cleaned twice a day, and throughout

the day as necessary. The kitchen area and dining room are cleaned

after every meal and kept very clean. Prisoner food workers are

required to wear hats and plastic gloves. HCF has contracted with

5

Ultimately, the issue that the court of appeals con-

sidered critical to the case was the respondents’ state of

mind. On this issue, petitioner contended }1 his affidavit

an exterminator which services the facility twice a month. There

have been no known cases of food poisoning.

Overcrowding

Petitioner's Allegations

There are 143 beds in the dormitory; all but twenty eight of

the beds are double-bunked. Prisoners have less than 50 square

feet per person. The beds are spaced so closely that, with the in-

adequate ventilation, prisoners smell the body odors of others. The

general noise level is high, even during sleeping hours.

Respondents’ Allegations

The amount of storage space “appears to be adequate” for most

prisoners. There are regulations to control noise. Prisoners have

a variety of activities available to them, including television, exer-

cise in the gymnasium or yard, a pool table, a weight room, a prison

library, and continuing education classes that involve approximately

100 prisoners.

Lack of Heat

Petitioner's Allegations

The dormitory is “frigid” in winter, causing petitioner physical

pain. There are cracks in the walls that can be seen through.

Most of the windows cannot be closed completely, so that some bunks

get wet during the rain. The clothing is ragged and inadequate

to keep prisoners warm in winter; no underwear is distributed.

Respondents’ Allegations

The dormitories are adequately heated. Prisoners are not given

special winter clothes unless they have jobs that require them to

work outside, but they are permitted to buy clothing such as winter

underwear. Prisoners are given an extra blanket in winter.

Safety and Protection from

Communicable Disease

Petitioner's Allegations

Psychotic prisoners are placed in the dormitories. This causes

stress to other prisoners, who cannot predict the behavior of the

mentally ill prisoners. Following surgery, prisoners with open

sores are housed in the dormitory because of a lack of space in

6

that he had forwarded a three-page letter complaining of

the conditions of confinement to the two respondents on

July 6, 1986. Respondent Seiter, petitioner alleged, never

responded to that letter. Respondent Humphreys re-

sponded but, according to petitioner, failed to take any

corrective action other than to forward a copy of the

letter to the HCF Unit Manager and his staff. Petitioner

alleged that the Unit Manager and his staff did not take

any action to remedy the conditions and that, in fact,

they had no power to do so.

Respondents’ alleged attempts to remedy conditions

included regulations to control noise, the employment of

an exterminator, the installation of two fans, and pro-

visions for cleaning the dormitory and food service areas.°

The district court denied petitioner’s motion for sum-

mary judgment, citing “a conflict of fact about the con-

ditions of confinement at the Hocking Correctional Fa-

cility.” However, the trial court subsequently granted the

respondents’ motion for summary judgment on the ground

that the prisoners’ affidavits did not demonstrate “obdu-

racy and wantonness”’ on the part of the prison officials.

In granting summary judgment on the claims of poor

the prison infirmary. One named prisoner housed in the dormitory

was repeatedly hospitalized for pneumonia.

Respondents’ Allegations

Prisoners with mental problems are sent from HCF to other

facilities. Some prisoners have age-related physical health problems.

There is an initial medica! screening that includes checking pris-

oners for infectious diseases such as tuberculosis and hepatitis.

Based on the health screening there are no prisoners at HCF with

active contagious diseases. There has been no outbreak of con-

tagious disease at HCF since it was converted to a prison in 1983.

The number of illnesses such as colds is normal in view of the

relatively advanced age of the population.

* The affidavit was submitted as part of petitioner’s motion for

summary judgment, which was filed on November 10, 1986.

5 See respondents’ allegations in n.3, supra.

7

sanitation, lack of ventilation, and housing the petitioner

with prisoners with communicable diseases, the trial court

relied on the factual allegations in the affidavits of the

respondents. App. 57-58.

Petitioner appealed to the court of appeals.® That

court held that petitioner’s affidavits were more than

colorable, and noted that several circuits had found Eighth

Amendment violations arising from conditions similar

to those alleged by the petitioner. App. 66. Accordingly,

the court held that to the extent that the district judge

had adopted the factual allegations in the respondents’

affidavits to find that conditions at the HCF did not vio-

late the Eighth Amendment, the district court com-

mitted error. App. 66.

The court of appeals also concluded that “some, but

not all, of the complained-of conditions suggest the type

of seriously inadequate and indecent surroundings neces-

sary to establish an eighth amendment violation.” App.

68. (internal quotation marks and citations omitted).

However, the court of appeals held that the allegations

of mixing mentally ill prisoners with others in the‘ dor-

mitory, excessive heat, and overcrowding did not rise

to a constitutional level. With respect to the other claims,

the court of appeals held that the respondents’ state of

mind was the critical issue, as evidenced by respondents’

allezations suggesting an attempt to improve conditions.

As to these latter allegations, the court stated that:

At least in this circuit, the Whitley |v. Albers, 475

U.S. 312 (1986)] standard is not confined to the

facts of that case; that is, to suits alleging use of

excessive force in an effort to restore prison order.

App. 71.

® Petitioner continued to proceed pro se until the court of appeals

appointed counsel. The counsel named in the published opinion

withdrew prior to briefing and argument because of the discovery

of a conflict of interest. The subsequently-appointed counsel with-

drew after the decision of the court of appeals.

8

Although the court of appeals noted that state of mind

is typically not a proper issue for resolution on summary

judgment, it held that petitioner’s affidavits raised no

genuine issue as to the respondents’ state of mind. Be-

cause the petitioner did not directly dispute the respond-

ents’ claims of affirmative efforts to improve conditions,

the respondents could not be acting with “obduracy and

wantonness . . . marked by persistent malicious cruelty.”

App. 73. Accordingly, the court of appeals affirmed the

trial court’s grant of summary judgment.

The judgment of the court of appeals was entered on

January 16, 1990. On April 3, 1990, the Honorable An-

tonin Sealia granted petitioner’s application for an ex-

tension of time to file a petition for writ of certiorari

to May 2, 1990. The petition was filed on that date.

This Court granted the petition and the motion for leave

to proceed in forma pauperis on October 1, 1990.

SUMMARY OF THE ARGUMENT

In Whitley v. Albers, 475 U.S. 312 (1986), this Court,

in a damages action arising from the shooting of a pris-

oner, held that staff did not violate the Eighth Amend-

ment in attempting to suppress a prison riot unless their

actions were malicious and sadistic. But the Whitley

Court also reaffirmed the holding in Estelle v. Gamble,

429 U.S. 97 (1976), that prison officials’ “deliberate in-

difference” to prisoners’ serious medical needs violates

the Eighth Amendment. Thus, while under Whitley all

Eighth Amendment violations must be characterized by

“obduracy and wantonness,” this state of mind encom-

passes both the “deliberate indifference’’ and the “ma-

licious and sadistic’ intent standards. The Court indi-

cated that the less demanding standard applies to Eighth

Amendment challenges to prison medical care “because

the State’s responsibility to attend to the medical needs

of prisoners does not ordinarily clash with other equally

important governmental responsibilities.” Whitley, 475

U.S. at 320.

9

Unlike every other court of appeals that has consid-

ered the issue, the court below applied the Whitley

“prison disturbance” standard to a conditions case, re-

quiring malicious and sadistic intent, rather than the

deliberate indifference standard from F stelle. This was

error because the state’s responsibility to provide mini-

mally safe and healthy living conditions does not clash with

security considerations. Moreover, because continuing

conditions of confinement, unlike the use of force, do not

require split-second decisions or involve the special ex-

pertise of prison officials, the rationales underlying the

“malicious and sadistic” standard of Whitley do not

apply.

In addition, the lower court’s use of the “malicious and

sadistic” standard from Whitley is inconsistent with this

Court’s holding in Rhodes v. Chapman, 452 U.S. 337

(1981), that courts must apply objective criteria in de-

termining whether conditions of confinement violate the

Eighth Amendment. These objective criteria include

whether prisoners have been deprived of the basic neces-

sities of life, such as adequate food, clothing, medical

care and shelter.

Rhodes’ emphasis on objective factors and Whitley’s

references to state of mind can be harmonized in one

of two ways. On the one hand, it is possible to read

Whitley’s reference to “obduracy and wantonness” as

inapplicable to injunctive challenges to continuing prison

conditions, in which case Rhodes alone would govern and

the focus would be exclusively on the conditions ,them-

selves without any inquiry into defendants’ state of mind.

Alternatively, one can conclude that the consequences of

violating the Eighth Amendment standard established

in Rhodes by depriving prisoners of the basic necessities

of life are obvious and foreseeable. Thus, such continu-

ing conditions necessarily involve deliberate indifference,

so that a separate inquiry into state of mind is re-

dundant. By contrast, a requirement of “malicious and

sadistic” intent is clearly inconsistent with the emphasis

10

Rhodes placed on an objective examination of prison

conditions. Petitioner believes that the former interpre-

tation is both more coherent and easier to apply. But,

in either event, the decision of the court of appeals can-

not stand.

The lower court also erred in affirming summary judg-

ment because it ignored petitioner’s claim that he had

notified the respondents of the conditions and they had

taken no effective action to correct them. A fair read-

ing of petitioner’s pro se affidavits is that he either chal-

lenged the existence of respondents’ claimed remedial ef-

forts or averred that the efforts were ineffective to rem-

edy the challenged conditions. Under these circumstances,

the question of respondents’ state of mind cannot be sep-

arated from the factual merits of the parties’ allegations

about the underlying claims, and summary judgment was

inappropriate.

To allow the respondents’ claims of remedial efforts to

defeat an Eighth Amendment challenge when the record

is in dispute as to whether the claimed remedial actions

were effective makes no sense. While remedial actions

may well be relevant to mootness or remedy concerns,

ineffective remedial steps do not preclude the existence of

an Eighth Amendment violation.

Finally, the lower court also erred because, in dismiss-

ing the petitioner’s claims regarding overcrowding, ex-

cessive heat, and the mixing of mentally ill prisoners

with others in the dormitory, it failed to consider the

interaction of these conditions with the others alleged by

petitioner. In determining whether the Eighth Amend-

ment has been violated, a court must examine conditions

“taken as a whole.” Hutto v. Finney, 437 U.S. 678, 687

(1978).

Accordingly, petitioner urges this Court to reverse the

judgment of the court of appeals affirming summary

judgment in favor of respondents, and remand this case

to the district court for trial.

11

ARGUMENT

I. THE DECISION BELOW IS INCONSISTENT WITH

THIS COURT’S DECISION IN WHITLEY v. ALBERS

Whitley v. Albers, 475 U.S. 312 (1986), involved an

action for damages pursuant to 42 U.S.C. $1983. In

that case, a state prisoner alleged that his Eighth Amend-

ment right to be free from cruel and unusual punish-

ments was violated when he was shot by a guard in the

course of suppressing a prison uprising. In holding that

defendant prison officials were entitled to a directed ver-

dict, this Court stated the following:

It is obduracy and wantonness, not inadvertence or

error in good faith, that characterize the conduct

prohibited by the Cruel and Unusual Punishments

Clause, whether that conduct occurs in connection

with establishing conditions of confinement, supply-

ing medical needs, or restoring official control over

a tumultuous cellblock.’

Whitley, 475 U.S. at 319. However, the Court further

indicated that this “obduracy and wantonness”’ standard

is not rigid and monolithic, but must be applied “with

due regard for differences in the kind of conduct against

which an Eighth Amendment objection is lodged.” W'hit-

ley, 475 U.S. at 320. Thus, when a prisoner claims that

his medical needs have been ignored, “obduracy and

wantonness” are demonstrated if prison officials acted

with “deliberate indifference.” J/d., quoting Estelle v.

Gamble, 429 U.S. 97, 105 (1976). By contrast, “|w |here

a prison security measure is undertaken to resolve a dis-

7 As explained in Section II, infra, the reference to “conduct”

may limit Whitley to cases in which specific acts by individuals

are challenged under the Eighth Amendment. Petitioner argues

in Section II that state of mind has never been considered relevant

in Eighth Amendment challenges to legislatively enacted penalties,

and is similarly irrelevant when prison officials acquiesce in con-

tinuing conditions that deprive prisoners of the minimal civilized

measure of life’s necessities.

12

turbance,” as in Whitley, “obduracy and wantonness” are

shown only if prison officials used force “maliciously and

sadistically for the very purpose of causing harm.” /d.

at 320-321 (internal quotation marks omitted).

The “deiiberate indifference” standard is appropriate

in medical care cases “because the State’s responsibility

to attend to the medical needs of prisoners does not ordi-

narily clash with other equally important governmental

responsibilities.” Whitley, 475 U.S. at 320.

|Djeliberate indifference to a prisoner’s serious ill-

ness or injury can typically be established or dis-

proved without the necessity of balancing competing

institutional concerns for the safety of prison staff

or other inmates. But, in making and carrying out

decisions involving the use of force to restore order

in the face of a prison disturbance, prison officials

undoubtedly must take into account the very real

threats the unrest presents to inmates and prison

officials alike, in addition to the possible harms to

inmates against whom force might be used. ... In

this setting, a deliberate indifference standard does

not adequately capture the importance of such com-

peting obligations, or convey the appropriate hesi-

tancy to critique in hindsight decisions necessarily

made in haste, under pressure, and frequently with-

out the luxury of a second chance.

Id. (internal quotation marks and citation omitted).

Like the obligation to provide medical care, the state’s

responsibility to provide minimally safe and healthy liv-

ing conditions for prisoners does not clash with security

considerations. The rationales underlying the ‘malicious

and sadistic” standard in the context of a damages action

arising from a prison riot do not exist when continuing

conditions like unsanitary food or vermin infestation are

at issue. First, the interest in avoiding the second-

guessing of prison officials is greatest when they are mak-

ing split-second, life-and-death decisions during an emer-

gency. This is not the case with conditions that develop

13

or persist over time, allowing officials ample opportunity

for reflection. Second, prison officials are experts in

prison security; deference to them is properly at its

zenith when they make security judgments regarding the

use of force.* Decisions about medical care, nutrition,

and environmental health involve no special penological

competence and deference is less appropriate.”

For these reasons, the Whitley Court carefully confined

the “malicious and sadistic” standard to the limited cir-

cumstances of major prison disorders. This standard ap-

plies “|w]here a prison security measure is undertaken

to resolve a disturbance, such as occurred in this case,

that indisputably poses significant risks to the safety of

inmates and prison staff.” Whitley, 475 U.S. at 320.”

5’“When the ever-present potential for violent confrontation and

conflagration ripens into actual unrest and conflict, the admoni-

tion that a prison’s internal security is peculiarly a matter normally

left to the discretion of prison administrators carries special

weight.” Whitley, 475 U.S. at 321 (emphasis in original, citations

and internal quotation marks omitted).

® This Court and lower courts have been especially deferential

to prison policies related to the preservation of discipline and insti-

tutional security. However, many conditions of confinement, such

as overcrowding, poor sanitation, and inadequate safety precautions,

are the result of neglect rather than deliberate policy decisions.

There is no reason of comity, judicial restraint, or recognition of

expertise for courts to defer to prison officials when conditions

result from a dearth of resources or a lack of motivation to operate

decent prisons. See Rhodes v. Chapman, 452 U.S. 337, 362 (1981)

(Brennan, J., concurring).

10 Whitley involved a “prison riot” in which one officer had been

assaulted, another Riad been taken hostage, and prisoners were

armed and had barricaded a cellblock. Officials had been informed

(incorrectly) that a prisoner had been killed and that other deaths

would follow. 475 U.S. at 314-15, 322-23.

There is a dispute about the extent of Whitley’s applicability,

but it does not reach this case. The Second Circuit applied the

“deliberate indifference” standard to a prisoner’s claim that prison

14

The four dissenting members of the Court similarly un-

derstood the “malicious and sadistic’ standard to apply

only in these extraordinary situations. See Whitley, 475

U.S. at 328 (Marshall, J., dissenting) (criticizing “the

especially onerous standard the Court has devised for de-

termining whether a prisoner injured during a prison

disturbance has been subjected to cruel and unusual pun-

ishment’”’). Certainly, in view of the majority's careful

distinction, rather than overruling, of Estelle v. Gamble,

there is no room for argument that the “malicious and

sadistic” standard now governs all Eighth Amendment

prison cases.

Thus, the court below applied Whitley incorrectly."

That court failed to recognize that the “obdurate and

personnel failed to protect him from assault by other inmates.

Stubbs v. Dudley, 849 F.2d 83, 86 (2d Cir. 1988), cert. denied,

109 S.Ct. 1095 (1989). Three Justices dissented from the denial

of certiorari, questioning the view that Whitley is limited to “full-

blown prison riots” and suggesting that the Whitley “malicious

and sadistic” standard should apply because “|t|he situation here

was arguably more dangerous than in Whitley. . . . Here a split

second decision had to be made. A single door stood between armed

prisoners, who had engaged in a sit-in earlier in the day, and the

prison arsenal and the office of the prison superintendent.” Dudley

v. Stubbs, 109 S.Ct. 1095, 1097 (1989) (O’Connor, J., dissenting)

(mem.) (emphasis in original, interna: quotation marks omitted).

The Dudley dissent provides no support for the view that the

Whitley “malicious and sadistic” test applies to continuing condi-

tions of confinement like those at issue here.. At most, it stands

for the proposition succinctly stated by one court of appeals:

“Although Whitley was decided in the extremely volatile context

of a prison riot, its reasoning may be applied to other prison situa-

tions requiring immediate coercive action.” Ort v. White, 813 F.2d

318, 323 (11th Cir. 1987) (emphasis supplied).

11 The decision below is also inconsistent with Smith v. Wade,

461 U.S. 30 (1983), in which the plaintiff was raped by his cellmate

and was awarded compensatory and punitive damages by a jury.

Prison staff argued that the proper standard for punitive damages

was “actual malicious intent.” This Court upheld instructions

embodying a standard of reckless or callous disregard of, or indif-

15

wanton” standard in Whitley encompasses both the “de-

liberate indifference” and the “malicious and sadistic” in-

tent standards. Which of these two tests applies depends

on the nature of the Eighth Amendment violation alleged.

Although this case does not involve a prison disturbance,

the court of appeals held that “the Whitley standard

of obduracy and wantonness requires behavior marked

by persistent malicious cruelty.” App. 73. Thus, the

court of appeals applied the incorrect prong of the Whit-

ley test. Had it applied the “deliberate irdifference”’

standard, it could not have affirmed the ‘istrict court’s

entry of summary judgment for respondents."

Following the distinction drawn by this Court in Whit-

ley, the Fourth,’ Fifth," Eighth,” Tenth,’ and District

ference to, the prisoner’s rights, and rejected any requirement

that the plaintiff show actual malicious intent.

The standard for constitutional liability was not before the Court.

Id. at 51. However, in view of the Court’s holding that punitive

damages required only recklessness or callous indifference, a fortiori,

the Court could not have approved an actual malice standard for

initial liability.

12 Petitioner’s affidavits aliege facts which, if true, would establish

deliberate indifference on the part of respondents. See n.3, svpra,

and section III, infra.

13 See LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987), discussed

in text infra.

14In Foulds v. Corley, 833 F.2d 52 (5th Cir. 1987), the court of

appeals reviewed the trial court’s dismissal of a prisoner's com-

plaint as frivolous. The prisoner raised due process and Eighth

Amendment claims. The latter involved allegations that the solitary

confinement cell was very cold and infested with rats and that the

prisoner had to sleep on the floor. The Fifth Circuit held that if

the prisoner proved his Eighth Amendment allegations, he would

be entitled to relief. In the course of doing so, the court explicitly

rejected an analysis identical to that employed by the court of

appeals in this case:

The district court relied on Whitley v. Albers, 475 U.S. 312,

106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), to require a showing

that the deputies acted with malicious and sadistic intent in

16

subjecting Foulds to the above-described conditions. This re-

liance was in error. Whitley involved the shooting of an inmate

during a prison riot. In that setting, involving essential prison

security, the Supreme Court required a showing of “malicious

and sadistic intent” by prison officials to support a claim under

the eighth amendment. Whitley, 475 U.S. at 320, 106 S.Ct. at

1085, 89 L.Ed.2d at 261. The facts of the instant case markedly

differ. There was no imminent danger. We decline the invita-

tion to extend the rule of Whitley to cover all prison disci-

plinary actions, ostensibly under the guise of achieving prison

security. We do not see Whitley as the harbinger of such,

see 475 U.S. at 319, 106 S.Ct. at 1084, 89 L.Ed.2d at 260 (rec-

ognizing the general “unnecessary and wanton” standard of

review).

Id. at 54.

A different panel of the Fifth Circuit reached precisely the same

conclusion in reversing the dismissal of a prisoner complaint alleg-

ing that prisoners contracted tuberculosis as a result of confinement

in a dirty, overcrowded cellblock that had inadequate ventilation

and lighting as well as insect infestation. In the course of reversing

the trial court, the Fifth Circuit made clear that the Whitley

“malicious and sadistic” intent requirements do not apply to con-

tinuing conditions of confinement:

But unlike “conduct that does not purport to be punishment at

all” as was involved in Gamble and Whitley, the Court has

not made intent an element of a cause of action alleging un-

constitutional conditions of confinement. Prison conditions may

violate the eighth amendment even if they are not imposed

maliciously or with the conscious desire to inflict gratuitous

pain.

Gillespie v. Crawford, 833 F.2d 47, 50 (5th Cir. 1987). Although

the Fifth Circuit en bane vacated other portions of the panel’s

opinion on unrelated procedural grounds, this portion of the decision

was reinstated. Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th

Cir. 1988) (en banc).

%In Wright v. Jones, 907 F.2d 848 (8th Cir. 1990), the court

of appeals considered a prisoner’s claim of a failure to protect him

arising from a beating by other inmates. The court of appeals

rejected the application of a “malicious and sadistic” intent stand-

ard, holding that the proper standard for staff liability was “delib-

erate indifference.”

It is not appropriate to apply the Whitley standard in this

case, because the guards have not identified a competing obli-

gation which inhibited their efforts to protect inmates. Thus,

17

the guards can be held liable under the deliberate indifference,

or reckless disregard, test because liability can be established

without the necessity of balancing competing institutional con-

cerns for the safety of prison staff or other inmates.

Id. at 851. (citations omitted and internal quotation marks re-

moved).

In Howard v. Adkison, 887 F.2d 134, 138 (8th Cir. 1989), a

decision not discussing Whi‘ley, the Eighth Circuit applied the

deliberate indifference standard to affirm a jury verdict against

correctional officials based on a failure to maintain sanitation in

the plaintiff’s cell. The officials claimed that there was no evidence

that they actually knew about the plaintiff’s conditions of confine-

ment. The Eighth Circuit held that actual knowledge was not

required. Rather, the standard was more than negligence but less

than malicious or actual intent. The Eighth Circuit held that the

pattern of events over a period of two years in a unit supervised

by the correctional officials allowed the jury to find tacit authoriza-

tion or reckless disregard. The court thus upheld the jury instruc-

tion, which employed the deliberate indifference standard.

16 Berry v. City of Muskogee, 900 F.2d 1489 (10th Cir. 1990),

involved a damages suit under 42 U.S.C. § 1983 brought by the

widow of a prisoner who had been murdered by other prisoners,

allegedly as a result of the wrongful conduct of his jailers. In the

course of determining the proper Eighth Amendment test to apply,

the Tenth Circuit observed:

[The Whitley] standard . . . does not apply to every Eighth

Amendment claim. Even while defining its new “malicious[ ]

and sadistic[]” standard, the Court carefully preserved the

applicability of its “deliberate indifference” standard, articu-

lated in Estelle v. Gamble...

After careful consideration, we hold that Whitley’s “malicious

and sadistic” standard does not apply to the facts of this case;

rather, the applicable standard is the traditional “deliberate

indifference” inquiry of Estelle. Unlike Whitley, here there

is no danger that the deliberate indifference standard will fail

to “adequately capture the importance of . . . competing obli-

gations, or convey the appropriate hesitancy to critique in hind-

sight decisions necessarily made in haste, under pressure, and

frequently without the luxury of a second chance.” Whitley,

475 U.S. at 327, 106 S.Ct. at 1088.

Berry, 900 F.2d at 1494-1495. The Berry court emphasized “the

distinction so carefully preserved in Whitley between the malicious

and sadistic standard applicable in prison riot situations and the

18

of Columbia Circuits, have explicitly rejected the ap-

plication of the “malicious and sadistic” test to cases chal-

lenging continuing conditions of confinement not involv-

ing the use of force.

In LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987),

former Justice Powell, sitting by designation, found that

the denial of basic necessities of personal hygiene to a

handicapped prisoner violated the Eighth Amendment.

The defendant prison officials had been aware of the spe-

cial hygiene needs of the prisoner and had made some

belated, ineffectual attempts to respond to them. /d. at

392-393. The court held that the case could be character-

ized as either a conditions of confinement or a medical

care case. In either event, the court held, in such circum-

deliberate_indifference standard applicable to more ordinary prison

policy decisions.” Jd. at 1495. See also id. at 1496 n.8& (noting

“the Supreme Court’s careful distinction in Whitley between riot

and more ordinary circumstances”).

17In Morgan v. District of Columbia, 824 F.2d 1049 (D.C. Cir.

1987), the court upheld a jury verdict finding that correctional

officials acted with deliberate indifference in failing to protect the

plaintiff from assault by a fellow prisoner. In the course of that

affirmance, the court of appeals analyzed Whitley and held that

the jury instruction based on deliberate indifference was sufficient:

The exigencies and competing obligations facing prison au-

thorities while attempting to regain control of a riotous cell-

block, which led the Court to conclude that the “deliberate in-

difference” standard was inadequate in Whitley, are not present

in this case. The gravamen of Morgan’s claim is the District’s

overcrowding of the Jail; the conduct Morgan challenges is

the municipality’s operation of the Jail generally. In this

context, unlike in the prison riot setting, there can be no legiti-

mate concern that liability will improperly be based or “deci-

sions necessarily made in haste, under pressure, and frequently

without the luxury of a second chance.” Whitley, 106 S.Ct. at

1085. The District’s practice of prison overcrowding has en-

dured at least since 1971. We therefore conclude that “delib-

erate indifference” was the appropriate standard by which to

judge the District’s conduct in this case.

Id. at 1057-1058.

19

stances Whitley required no more than a “deliberate i

, . te in-

difference” standard, and the prison officials’ conduct

demonstrated the requisite deliberate indifference:

Although in Whitley v. Albers the

the “deliberate indifference” ph. By nl yn ~

quately capture the importance of the competing ob-

ligations that exist in making and carrying out

decisions involving the use of force to restore order

in the face of a prison disturbance, id. 106 S.Ct. at

1085, the instant case does not involve such concerns.

Whether one characterizes the treatment received by

LaFaut as inhumane conditions of confinement, fail-

ure to attend to his medical needs, or a combination

of both, it is appropriate to apply the “deliberate in-

difference” standard articulated in Estelle to this

case. In the context of this case there is no clash

between LaFaut’s treatment and “equally important

governmental responsibilities.” Cf. Whitley v. Albers

475 U.S. at 320, 106 S.Ct. at 1084.4

* To the extent the district court’s memorandum and order

can be construed as requiring appellant to demonstrate that

Hambrick “acted intentionally to deprive LaFaut of medical

care,” (App. at 102-03) this is erroneous. Appellant need only

marshes ot pe ne on deliberately indifferent to his needs,

e affirmatively intended i i

temas st ag to deprive him of the means

834 F.2d at 391-392.

The First,"* Ninth,” and Eleventh” Circuits have also

applied the “deliberate indifference” standard, rather than

1%8In Cortes-Quinones v. Jimenez-Nettleship, 842 F.2

Cir. 1988), cert. denied, 109 S.Ct. 68 ( 1988), ‘the Bosvagh pe Rn

affirmed a jury verdict finding that prison officials had acted with

deliberate indifference in failing to protect prisoners’ lives in a

prison characterized by “severe overcrowding (a system-wide aver-

age of twenty square feet per prisoner), squalor, maltreatment,

gang warfare, killings, lack of proper medical care, failure to segre-

gate mentally disturbed prisoners, guards unable to control entire

cellblocks, and other horrors.” Jd. at 558.

In Noll v. Carlson, 809 F.2d 1446, 1449 n.4 (9th Cir. 1987),

the court of appeals, citing Whitley, reversed the dismissal of a

20

the “malicious and sadistic” test, to prisoner challenges

to conditions of confinement.

It is noteworthy that even the respondents decline to

defend the decision of the court of appeals on its own

terms. In their opposition to the petition for certiorari,

the respondents made no argument that the heightened

“malicious and sadistic’ intent requirement applies to

continuing conditions of confinement. Rather, respondents

asserted that the court of appeals did not apply such a

requirement. Opposition to Petition for Writ of Certio-

rari, p.12. That contention is clearly belied by a fair

reading of the court’s decision. See pp. 7-8, supra. In

shori, the court below is alone in its misapplication of

Whitley, and its decision constitutes clear error.

THE DECISION BELOW IS INCONSISTENT WITH

" THIS COURT’S EMPHASIS ON OBJECTIVE CRI-

TERIA FOR DETERMINING WHETHER THE

EIGHTH AMENDMENT HAS BEEN VIOLATED

A. Under Rhodes, Continuing Conditions of Confine-

ment Are to be Judged by Objective Criteria

In the leading case explicating the standard for judging

whether prison conditions violate the Eighth Amendment,

this Court did not focus on state of mind, but emphasized

i lish

e complaint because the prisoner might be able to estab

‘not the - mee failure to protect him constituted deliberate in-

difference.

20 In Powell v. Lennon, 914 F.2d 1459 ( ith Cir. 1990), a prisoner

alleged that his Eighth Amendment rights were violated when he

was housed in a dormitory contaminated with asbestos. Charac-

terizing the requirement to be housed in an area not contaminated

with asbestos as a serious medical need, the court of appeals applied

the “deliberate indifference” standard to the plaintiff's Eighth

Amendment claim, and reversed the district court’s order of dis-

missal. See also Evans v. Dugger, 908 F.2d 801, 804 (11th Cir.

1990) (“deliberate indifference” test applies to disabled prisoner’s

claim that he was denied special facilities he needed because of

his handicap).

21

that this inquiry “should be informed by objective factors

to the maximum possible extent.” Rhodes v. Chapman,

452 U.S. 337, 346 (1981), quoting Rummel v. Estelle,

445 U.S. 263, 274-275 (1980), and Coker v. Georgia, 433

U.S. 584, 592 (1977) (plurality opinion).

Consistent with this emphasis on objective criteria, the

Court in Rhodes examined the impact of conditions upon

prisoners, not the intent with which the conditions were

imposed, in determining whether the conditions consti-

tuted cruel and unusual punishment.

These principles apply when the conditions of con-

finement compose the punishment at issue. Condi-

tions must not involve the wanton and unnecessary

infliction of pain, nor may they be grossly dis-

proportionate to the severity of the crime warranting

imprisonment. In Estelle v. Gamble, [429 U.S. 97

(1976) ], we held that the denial of medical care is

cruel and unusual because, in the worst case, it can

result in physical torture, and, even in less serious

cases, it can result in pain without any penological

purpose. 429 U.S., at 103, 97 S.Ct., at 290. In

Hutto v. Pinney, [487 U.S. 678 (1978)], the condi-

tions of confinement in two Arkansas prisons consti-

tuted cruel and unusual punishment because they

resulted in unquestioned and serious deprivation of

basic human needs. Conditions other than those in

Gamble and Hutto, alone or in combination, may

deprive inmates of the minimal civilized measure of

life’s necessities. Such conditions could be cruel and

unusual under the contemporary standard of decency

that we recognized in Gamble, supra, at 103-104, 97

S.Ct., at 290-291.

Rhodes, 452 U.S. at 347.

The references to “unquestioned and serious depriva-

tion of basic human needs” and to the “minimal civilized

measure of life’s necessities” support the contention that

the constitutionality of prison conditions is measured by

22

an objective standard. In addition, the Court’s citation to

Estelle, and its specific affirmation that conditions less

extreme than physical torture can violate the Eighth

Amendment, are inconsistent with the court of appeals

focus on the state of mind of prison officials rather than

the objective impact of the challenged conditions upon

prisoners.

In Rhodes, this Court cited specific cases of lower

federal courts finding that prison conditions violated the

Eighth Amendrient:

Courts certainly have a responsibility to scrutinize

claims of cruel and unusual confinement, and condi-

tions in a number of prisons, especially older ones,

have justly been described as “deplorable” and “sor-

did.” When conditions of confinement amount to

cruel and unusual punishment, “federal courts will

discharge their duty to protect constitutional rights.

Id. at 352 (citations and footnote omitted).

In the footnote accompanying this paragraph of the

Rhodes opinion, the Court cited four prison conditions

eases: Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980),

cert. denied, 450 U.S. 1041 (1981) ; Williams v. Edwards,

547 F.2d 1206 (5th Cir. 1977) ; Gates v. Collier, 501 F.2d

1291 (5th Cir. 1974); and Pugh v. Locke, 406 F.Supp.

318 (M.D.Ala. 1976), aff'd as modified, 559 F.2d 283

(5th Cir. 1977), rev’d in part on other grounds, 438 US.

781 (1978) (per curiam). In all four of the cases cited,

the lower courts relied on an analysis of the gravity of

the challenged prison conditions, not on the state of iind

of prison officials.

Indeed, in Ramos, the Colorado legislature, as amicus

curiae, argued that the State had made good faith efforts

to remedy the constitutional violations. The Tenth Circuit

considered such efforts relevant to the scope of the appro-

priate remedy, but not to whether an Eighth Amendment

violation existed. Ramos, 639 F.2d at 585-586.

23

Even more directly on point, in Gates, the Fifth Cir-

cuit considered the defendants’ argument that their good

faith efforts after the filing of the lawsuit warranted

setting aside the judgment. The Gates court rejected that

argument:

The past notoriety of the protracted inhumane con-

ditions and practices at Parchman reveals the neces-

sity for the continuance of the injunctive order of

the district court. It is significant that the improve-

ments made at Parchman were not undertaken until

after the filing of this suit. Although good faith may

be relevant in determining whether defendants have

complied with the order of the court, it certainly is

not a ground upon which to seek modification of that

order.

Gates, 501 F.2d at 1321.”

Finally, an important reason for continuing to apply

objective criteria to the determination of whether prison

conditions violate the Eighth Amendment is the need for

uniformity in application of the standard. The deter-

mination of a prison official’s state of mind necessarily

involves a more subjective and difficult fact-finding task

for a trial court than an inquiry into whether the condi-

tions of confinement deprive prisoners of the minimal

*1 Similarly, in Williams v. Edwards, the Fifth Circuit stated,

as it had in Gates, that “[t])he prohibition against cruel and un-

usual punishment ‘is not limited to specific acts directed at selected

individvals, but is equally pertinent to general conditions of con-

finement that may prevail at a prison.’” Williams, 547 F.2d at

1212, quoting Gates, 501 F.2d at 1301.

*2 If state of mind were actually critical in injunctive challenges

to continuing conditions, then defendants could theoretically fore-

stall a finding of an Eighth Amendment violation simply by appoint-

ing a new prison official, without changing the conditions of con-

finement. Cf. F.R.Civ.P. 25(d) (providing that when a public

officer is @ party to an action in an official capacity and ceases to

hold office, the action does not abate but the officer’s successor is

automatically substituted as a party).

24

civilized measure of life’s necessities. Moreover, if the

finding of an Eighth Amendment violation is not based

on objective criteria, there will be no uniform constitu-

tional standard for the nation. Surely the minimal civ-

ilized measure of life’s necessities does not vary from

jurisdiction to jurisdiction.

ighth

B. Legislative Policies Challenged Under the E

Amendment Do Not Require an Inquiry into State

of Mind

Rhodes illustrates that there is no state of mind

requirement that governs all Eighth Amendment claims.

This point is also evident in the fact that this Court has

consistently evaluated Eighth Amendment challenges to

statutory penalties without any inquiry into the legisla-

tive state of mind. For example, when this Court upheld

the death penalty for persons who were sixteen or seven-

teen years old at the time of their crime, the Court relied

on its determination that the record did not reflect objec-

tive evidence of a societal consensus against the death

penalty for juveniles; the Court did not consider the

legislative state of mind in imposing that penalty. See

Stanford v. Kentucky, 109 S.Ct. 2969 (1989). Nor have

Eighth Amendment challenges to statutory penalties less

than death ever turned on legislative state of mind. See

Solem v. Helm, 463 U.S. 277, 290-291 (1983) (holding

that an Eighth Amendment challenge to a life sentence

without the possibility of parole must be judged by ob-

jective criteria) ; and Trop v. Dulles, 356 U.S. 86 (1958)

(plurality opinion) (invalidating punishment of dena-

tionalization on Eighth Amendment grounds without con-

sidering legislative state of mind).

Indeed, when the Court has specifically considered con-

ditions of confinement imposed as part of the sentence,

the Court has looked at the proportionality of the punish-

ment and not at the legislative state of mind in imposing

it. Weems v. United States, 217 U.S. 349 (1910) (in-

validating under the Eighth Amendment a sentence to

25

“cadena temporal,” a form of imprisonment that included

hard labor while chained at the ankles and wrists).

C. Continuing Conditions Violating the Eighth Amend-

ment Standard in Rhodes Necessarily Involve at

Least Deliberate Indifference

Rhodes v. Chapman and the cases involving legislatively-

imposed punishments are consistent with this Court’s dis-

cussion of state of mind in Whitley. First, it should be

remembered that Whitley dealt with a suit for damages

challenging the actions of specific individuals during a

one-time emergency situation.2* Indeed, the Court in

Whitley stated that obduracy and wantonness character-

ize “the conduct prohibited by the Cruel and Unusual

Punishments Clause.” Whitley, 475 U.S. at 319 ( empha-

sis added). Whitley does not address conditions of von-

finement that do not result from specific individual con-

duct, but rather from legislative enactments, a policy or

custom of the governmental authority, or the collective

neglect of state or local officials.

In addition, continuing prison conditions that violate

the Eighth Amendment under Rhodes necessarily involve

at least deliberate indifference, and thus satisfy any rele-

vant state of mind requirement under Whitley. When

prisoners are subjected to continuing conditions that de-

prive them of the basic necessities of life such as adequate

food, clothing, medical care. and shelter, prison officials

have violated a duty to the prisoners imposed by the Con-

*3 A prison official’s state of mind may well be relevant if the

issue is liability for damages resulting from the use of force, but

not if the issue is whether continuing conditions should be enjoined.

For similar reasons, public officials charged with violations of

the Constitution enjoy qualified good faith immunity in damages

but not in injunctive actions. See Wood v. Strickland, 420 U.S.

308, 314 n.6 (1975). Here, the petitioner sought injunctive relief

as well as damages, and it was particularly inappropriate to apply

the “malicious and sadistic” intent standard to the claims for

injunctive relief.

26

stitution, a duty that does not exist with regard to the

general public. See DeShaney v. Winnebago County DSS,

109 S.Ct. 998, 1005-1006 (1989) :

[Wlhen the State takes a person into its custody

and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.

See Youngberg v. Romeo, [457 U.S. 307, 317 (1982) |

(“When a person is institutionalized—and wholly de-

pendent on the State[,] .. . a duty to provide certain

services and care does exist”). The rationale for this

principle is simple enough: when the State by the

affirmative exercise of its power so restrains an in-

dividual’s liberty that it renders him unable to care

for himself, and at the same time fails to provide

for his basic human needs—e.g., food, clothing, shel-

ter, medical care, and reasonable safety—it trans-

gresses the substantive limits on state action set by

the Eighth Amendment and the Due Process Clause.

See Estelle v. Gamble, [429 U.S. 97, 103-104 (1976) ];

Youngberg v. Romeo, supra, 457 U.S., at 315-316,

102 S.Ct., at 2457-2458. The affirmative duty to pro-

tect arises not from the State’s knowledge of the

individual’s predicament or from its expressions of

intent to help him, but from the limitation which it

has imposed on his freedom to act on his own behalf.

See Estelle v. Gamble, 429 U.S., at 103, 97 S.Ct., at

290 (‘An inmate must rely on prison authorities to

treat his medical needs; if the authorities fail to do

so, those needs will not be met”).

Accord, West v. Atkins, 108 S.Ct. 2250, 2258 (1988).

The consequences of the failure to perform this affirma-

tive duty are obvious and foreseeable, so that the existence

of continuing conditions of confinement that deprive pris-

oners of the minimal civilized measure of life’s necessities

is by definition wanton and obdurate. Conscious indif-

ference to this affirmative duty is the textbook example

of wanton behavior. See Howard v. Adkison, n.15, supra.

.

;

:

:

27

In Smith v. Wade, 461 U.S. 30 (1983), the Court

considered the tort definition of the word “wanton” in

the course of considering whether punitive damages could

be awarded under § 1983. In that context, the Court

quoted the definition of “wanton” from 30 American and

English Encyclopedia of Law 2-4 (2d. ed. 1905):

Wanton . . . has also been defined as the conscious

failure by one charged with a duty to exercise due

care and diligence to prevent an injury after the

discovery of the peril, or under circumstances where

he is charged with a knowledge of such peril, and

being conscious of the inevitable or probable results

of such failure.

461 U.S. at 39 n.8.

; Even without reference to the prison officials’ affirma-

tive duty toward prisoners, such conditions of confinement

constitute deliberate indifference. Cf. City of Canton,

Ohio v. Harris, 109 S.Ct. 1197, 1205 (1989) (footnote

omitted) :

But it may happen that in light of the duties as-

signed to specific officers or employees the need for

more or different training is so obvious, and the in-

adequacy so likely to result in the violation of con-

stitutional rights, that the policymakers of the city

can reasonably be said to have been deliberately in-

different to the need.**

See also City of ‘Canton at 1209 (O’Connor, J., con-

curring in part and dissenting in part) :

[T]he “deliberate indifference” standard we adopt

today [has] required a showing of a pattern of vio-

*4 While City of Canton dealt with the issue of what constituted

a municipal “policy or custom,” not the substantive standard for

constitutional liability, the discussion of the deliberate indifference

standard seems equally applicable to the meaning of deliberate

indifference under the Eighth Amendment.

28

lations from which a kind of “tacit authorization”

by city policymakers can be inferred.

(Citations omitted) .~

In light of the affirmative duty that prison officials owe

to prisoners, if prison conditions constitute such dispro-

portionate punishment as to violate the Eighth Amend-

ment, or deprive prisoners of the minimal civilized meas-

ure of life’s necessities, any state of mind requirement

under the Eighth Amendment is necessarily satisfied.

Accordingly, when a court analyzes an injunctive chal-

lenge to continuing prison conditions, a separate inquiry

into state of mind is redundant.

The lower federal courts have routinely applied this

Court’s decision in Estelle v. Gamble, 429 U.S. 97 (1976),

that deliberate indifference to the serious medical needs

of prisoners violates the Eighth Amendment, in a manner

consistent with this analysis. When a case focuses on con-

tinuing conditions of medical care, rather than on the

factual circumstances of an individual instance of alleged

failure to treat, the federal courts Fa\2 held that a pat-

tern of failures to make adequate provision for medical

care, including obvious failures to provide adequate staff-

ing or equipment, demonstrates deliberate indifference

justifying injunctive relief. See, e.g., Ramos v. Lamm,

639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450

U.S. 1041 (1981):

In class actions challenging the entire system of

health care, deliberate indifference to inmates’ health

needs may be shown by proving repeated examples

of negligent acts which disclose a pattern of conduct

by prison medical staff, or by proving there are such

25 Graham v. Connor, 109 S.Ct. 1865, 1873 (1989), indicates that

the language of the Eighth Amendment suggests an inquiry into

subjective state of mind. For the reasons given in Whitley, how-

ever, that state of mind, even in damages actions, in appropriate

circumstances requires no more than deliberate indifference when

continuing conditions of confinement are involved.

tn et i el ee i

|

i

)

|

;

29

systemic and gross deficiencies in staffing, facilities,

equipment, or procedures that the inmate population

is effectively denied access to adequate medical care.

(Citations omitted). See also Rogers v. Evans, 792

F.2d 1052, 1058-59 (11th Cir. 1986); Wellman v. Faulk-

ner, 715 F.2d 269, 272 (7th Cir. 1983); Hoptowit v.

Ray, 682 F.2d 1237, 1253 (9th Cir. 1982); Inmates of

Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d

Cir. 1979); and Todaro v. Ward, 565 F.2d 48, 52 (2d

Cir. 1977).

As explained in the amicus curiae brief of the Ameri-

can Public Health Association, when prisoners are sub-

jected to continuing conditions that deprive them of the

basic necessities of life such as adequate food, clothing

and shelter, such practices generally do not result from a

inalicious intent to inflict pain. Rather, such conditions

typically result from unreasonable neglect and failure to

remedy obvious conditions, the textbook examples of de-

liberate indifference. Imposing a requirement that prison

officials’ state of mind be malicious and sadistic would be

fundamentally inconsistent with this Court’s emphasis on

objective and consistent application of Eighth Amendment

standards, and would gravely compromise the implementa-

tion of prison officials’ duty to assure the minimum neces-

sities of life to prisoners.

D. Conclusion

If state of mind is relevant at all to prison condition

cases under Rhodes, plaintiffs should not be required to

prove anything more than the “deliberate indifference”

of prison officials. First, the “deliberate indifference”

standard is consistent with the constitutional and policy

analysis of Whitley. Second, the standard is consistent

with the emphasis on objective criteria articulated in

Rhodes, Third, it fairly reconciles the decisions in Whit-

ley and Rhodes because prison conditions that violate the

Eighth Amendment standard of Rhodes necessarily in-

30

volve at least “deliberate indifference,” and thus satisfy

any state of mind requirement imposed by Whitley. Thus,

a court considering an injunctive challenge to prison con-

ditions need not separately analyze the defendants’ state

of mind.

Ill. THE GRANT OF SUMMARY JUDGMENT WAS

ERROR

A. Under a Correct Legal Standard, Factual! Disputes

Precluded Summary Judgment

As noted above, the court of appeals acknowledged in

Wilson that several circuits had found constitutional vio-

lations under the Eighth Amendment based on conditions

of confinement similar to those alleged by the petitioner.

App. 66. In addition, the court of appeals conceded that

at least some of the conditions alleged by petitioner “sug-

gest the type of seriously inadequate and indecent sur-

roundings necessary to establish an eighth amendment

violation.” App. 68 (internal quotation marks and cita-

tion omitted).

Had the court of appeals applied a correct legal analy-

sis, it would have held that factual conflicts in the record

prevented resolution of the case on summary judgment.

The allegations of the petitioner’s affidavits, taken to-

gether, put in issue whether petitioner has been de-

prived of the “minimal civilized measure of life’s neces-

sities” with regard to food, sanitation, and shelter under

Rhodes.

Filth, foul odors, unclean food, vermin infestation, a

stifling lack of ventilation coupled with high temperatures

in summer and frigid temperatures in winter, bunks wet

with rain from malfunctioning windows, and psychotic

prisoners and prisoner with open sores mixed into the

population ** are all obviously inhumane conditions. When

such conditions occur on a continuing basis, failure to

26 See note 3, supra.

Re ee eee ee a A a i el nee

31

remedy them is deliberate indifference in light of the

respondents’ duties. It is certainly deliberate indifference

in light of petitioner’s allegation that he specifically in-

formed the respondents of the conditions and that they

did nothing to cure the conditions. Accordingly, even if

petitioner were required to prove that respondents were

deliberately indifferent, summary judgment against peti-

tioner was inappropriate on this record.

Thus, the court of appeals’ error stemmed directly from

its inappropriate application of the malice standard from

Whitley:

Additionally, the Whitley standard of obduracy and

wantonness requires behavior marked by persistent

malicious cruelty. The record before us simply fails

to assert facts suggesting such behavior.

App. 73.7"

27 It is true that the court of appeals also stated that the record

at most suggests negligence on the part of the respondents. For

the reasons given above, however, it is apparent that petitioner’s

allegations of obvious and continuing conditions, coupled with the

claim of notice and a lack of response, would, if proven, constitute

deliberate indifference and not mere negligence. This is particu-

larly true because the court of appeals conceded that petitioner’s

affidavits suggested the sort of indecent conditions necessary to

violate the Eighth Amendment.

Petitioner thus believes that the record clearly shows a factual

conflict with regard to whether respondents acted with deliberate

indifference. But even if this Court were not to decide whether

deliberate indifference is sufficiently put at issue on this record,

the court of appeals’ dictum is not controlling. Since the lower

court’s erroneous choice of the “malicious and sadistic” standard

may well have affected its entire view of the facts, this Court may

reverse and remand to the court of appeals for consideration of

this issue under the proper standard. Cf. American Foreign Service

Ass'n v. Garfinkel, 109 S.Ct. 1693, 1697 (1989) (returning re-

maining issue to lower court when lower court had previously

analyzed issue “only in abbreviated fashion” so that this Court

did not have benefit of lower court’s analysis to guide resolution

of the merits). .

32

B. The Petitioner’s Affidavits Either Challenge the

Existence of the Claimed Remedial Efforts or Chal-

lenge the Claim that the Remedial Efforts Had Any

Significant Impact upon Conditions

The court of appeals affirmed the grant of summary

judgment against the petitioner on the ground that the

affidavits filed by the petitioner did not raise an issue of

material fact as to the defendant prison officials’ state of

mind, because the petitioner’s affidavits did not specifi-

cally contradict the respondents’ claims of remedial efforts.

The petitioner’s own affidavit indicates that on July 8,

1986, he sent a letter to respondents Richard Seiter and

Carl Humphreys; that Seiter never replied; and that

Humphreys responded only by referring the letter to Mr.

Friend, HCF Unit Manager, and his staff. In addition,

petitioner alleged:

Mr. Fr{ie]nd could not, and did not take any action

to alleviate or correct the constitutional violations as

complained of, nor did any member of his staff. In

fact, neither Mr. Fr[ie]nd or his staff has any power

to correct the violations.

App. 33. This affidavit was included in petitioner’s mo-

tion for summary judgment, filed November 10, 1986.

A fair reading of petitioner’s affidavits is that he

challenged the existence of the claimed remedial efforts, or

asserted that they failed to correct the challenged condi-

tions. In the case of ventilation, for example, the peti-

tioner did not deny that fans had been installed. Rather,

the claim is that ventilation remains completely inade-

quate despite the fans. Petitioner claimed that the air in

the dormitory is stagnant and foul from toilets, urinals,

and colostomy bags, making it difficult to sleep at night.

In summer, the temperature goes up to 95°, and the

fire exits are locked at all times, and as a result of the

33

heat some prisoners “[fall] out” (faint). See n.3, su-

pra.**

On the issue of sanitation in food services and the

dormitory, the petitioner’s claims of filth, food prepared

by unsupervised and diseased prisoner workers, offensive

odors, and vermin infestation simply contradict the re-

spondents’ claims of daily cleaning. If the petitioner’s

allegations regarding sanitation are true, the respond-

ents’ claimed remedial efforts are obviously so ineffectual

as to be meaningless.

Clearly, for the trial court to have any useful informa-

tion about the harm to prisoners, it is critical to know

what the facts are. If, for example, the filth alleged by

petitioner, in combination with the other conditions, is so

extreme as to violate the Rhodes standard, the degree of

disregard of the affirmative duty toward prisoners is far

more serious than if the actual conditions do not deprive

prisoners of the minimal civilized measure of life’s neces-

sities. The question of whether the conditions involve de-

liberate indifference or simply negligence cannot be sepa-

rated from the issue of whether the conditions deprive

prisoners of the minimal civilized measure of life’s neces-

sities. Accordingly, whether one views the petitioner’s

affidavits as directly disputing the existence of the re-

spondents’ claimed remedial efforts, or as simply disput-

ing the results of those efforts, it is apparent that peti-

tioner has alleged that the unconstitutional conditions

have continued unabated despite notification of the re-

spondent prison officials.”

*8 The respondents denied that any prisoners had been overcome

by heat; their affidavits do note that some prisoners with age-

related health problems are housed in the dorm‘tory. Respondents

did not specifically reply to the allegation that the heat caused

prisoners with respiratory problems to have difficulty breathing,

or the allegation that, as a result of the conditions, prisoners

developed heat rash.

*° In this case, although the petitioner requested the appointment

of counsel in the trial court, the petitioner was required to defend

34

C. An Eighth Amendment Violation Cannot Be Cured

by Ineffectual Remedial Efforts

The position of the court of appeals is that even if

continuing conditions of confinement deprive prisoners of

the minimal civilized measure of life’s necessities,” a

mere allegation of remedial efforts prevents an inquiry

into the objective effect of the conditions on prisoners,

since such efforts negate the possibility that prison offi-

cials acted with malice.

This position, if adopted by the Court, would effectively

insulate prison conditions from Eighth Amendment re-

view. It is also fundamentally inconsistent with basic

principles of federal jurisdiction. See United States v.

Oregon State Medical Society, 343 U.S. 326, 333 (1952):

When defendants are shown to have settled into

a continuing practice . . . courts will not assume that

it has been abandoned without clear proof .. . It is

against a motion for summary judgment without the assistance of

counsel. Requiring a plaintiff to prove that defendants acted ma-

liciously and sadistically under the emergency use of force standard

set forth in Whitley is particularly unfair when applied to a prisoner

appearing pro se who challenges continuing cc aditions of confine-

ment.

A pro se prisoner cannot reasonably be expected to challenge

directly the respondents’ state of mind. Aside from the fact that

petitioner had no reason to expect that he would be required to

prove a malicious and sadistic state of mind on the part of respond-

ents, it is unrealistic to expect that, had petitioner known of the

requirement, he couid have produced any evidence other than the

evidence he actually produced: affidavits addressing the actual

conditions and evidence that the respondents knew of the conditions

and did not act.

30 See Wilson, App. 66:

Moreover, appellants’ affidavits are more than colorable, and

obviously place the conditions surrounding confinement in

issue. Several circuits have found eighth amendment violations

arising from conditions similar to those alleged by the ap-

pellants.

(Citations omitted).

35

the duty of courts to beware of efforts to defeat

injunctive relief by protestations of repentance and

reform, especially when abandonment seems timed

- anticipate suit, and there is probability of resump-

ion.

See also City of Mesquite v. Aladdin’s Castle, 455 U.S.

283, 288-289 (1982) (a defendant’s voluntary cessation

of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice).

Obviously remedial efforts are relevant to the scope of

the appropriate remedy or to possible mootness argu-

ments. But when remedial efforts are ineffectual, this

Court should not apply a rule for Eighth Amendment

claims different from the federal jurisdictional principles

applicable to other constitutional claims. In a case chal-

lenging continuing conditions of prison confinement, it is

possible that remedial measures by the defendants may

be so ineffectual that the resulting conditions still deprive

prisoners of the minimal measure of life’s necessities, In

such a case, just as the prison officials necessarily know

of, and give tacit authorization to, the original conditions

(see Section II.C, supra), they necessarily know of, and

acquiesce in, the conditions that remain after their

claimed remedial efforts. For that reason, acquiescence

in conditions that continue, even after remedial efforts,

to be unacceptable under the Rhodes standard is deliber-

ately indifferent to the prisoners’ right to be free from

cruel and unusual punishment.

Failure to reverse the decision of the court of appeals

would once again place prisoners outside of the protection

of the Constitution. See Wolff v. McDonnell, 418 U.S.

539, 555-556 (1974) :

But though his rights may be diminished by the

needs and exigencies of the institutional environ-

ment, a prisoner is not wholly stripped of constitu-

tional protections when he is imprisoned for crime.

There is no iron curtain drawn between the Consti-

tution and the prisons of this country.

36

IV. THE COURT OF APPEALS ERRED IN DISMISS-

ING CERTAIN OF PETITIONER’S CLAIMS

The court of appeals dismissed petitioner’s claims re-

garding overcrowding, excessive heat, and mixing of

mentally ill prisoners with others in the dormitory, hold-

ing that these allegations did not rise to the level of a

constitutional violation. App. 68. This was error, be-

cause these claims should have been considered as part

of the overall conditions challenged in the dormitory.

Conditions of confinement, “alone or in combination,”

may deprive prisoners of the minimal civilized measure

of life’s necessities. Rhodes, 452 U.S. at 347. See also id.

at 363 n.10 (Brennan, J., concurring) (“The Court today

adopts the totality-of-the-circumstances test”) (citations

omitted). In Hutto v. Finney, 437 U.S. 678 at 688, this

Court noted “the interdependence of the conditions pro-

ducing the [Eighth Amendment] violation.” Accordingly,

the Court in Hutto approved the action of the lower court

determining whether the Eighth Amendment had been vio-

lated by examining conditions “taken as a whole.” Id. at

687.

For example, the claim that the dormitory is over-

crowded cannot be evaluated without considering the

claims of filth, lack of ventilation, and mixing of physi-

cally ill prisoners into the general population. Certainly

the adequacy of the ventilation is directly related to the

degree of crowding in the facility. The reasonableness of

using two fans to supply ventilation for a dormitory

turns on the number of bodies in the dormitory. Mini-

mally adequate ventilation for 143 prisoners is different

from the ventilation necessary for the smaller number of

prisoners that could be accommodated were the dormitory

not double-bunked.*' Similarly, the allegations of filth,

‘1 For example, American Correctional Association (ACA) Stand-

ard 2-4131 requires that multiple housing areas provide air circula-

tion of at least ten cubic feet of outside or recirculated air per

minute per occupant. While the petitioner does not argue that the

37

vermin infestation, and build-up of urine around the

toilets and urinals may well be related to the greater

pressure on the sanitation of the facility resulting from

the increase in population. Petitioner also alleged that

prisoners recovering from surgery, including prisoners

with open sores, were put into the dormitories as a result

of a shortage of space in the infirmary. Again, this alle-

gation suggests an interrelation between overcrowding

and the other claims of the petitioner.

In addition, the petitioner alleged that respondents

were planning further increases in population, and the

installation of cubicle divisions in the dormitory, steps

that would exacerbate the lack of adequate ventilation.

App. 35. These changes, if they occurred, would also be

relevant in judging the constitutionality of the resulting

conditions. |

Similarly, the claims of excessive heat cannot be viewed

in isolation from the other claims raised by the petitioner.

The degree of potential harm from air that is $5° Fahren-

heit depends on the relative humidity of the air, the

presence or absence of ventilation, the general health of

the persons exposed to this condition, and the duration of

exposure. In this case, the petitioner alleged that the air

was damp because of nonfunctioning windows.* In addi-

ACA Standard establishes a constitutional requirement, it demon-

strates that the adequacy of ventilation cannot be considered apart

from the number of occupants required to share the dormitory.

Cf. Rhodes, 452 U.S. at 348 n.13.

82 While the overcrowding might not be unconstitutional in itself,

because the effect of overcrowding cannot be separated from the

overall conditions of the unit, the trial court on remand should not

arbitrarily exclude evidence of the impact of overcrowding on the

overall conditions in the dormitory. See Tillery v. Owens, 907 F.2d

418, 427-428 (3d Cir. 1990).

33 The affidavits in support of petitioner alleged that wet towels

and face cloths hung in the dormitory took at least eight to ten

hours to dry (App. 18, 20), also suggesting high relative humidity.

38

tion, the respondents conceded that some prisoners have

age-related physical health problems. In view of the fact

that petitioner specifically alleged that, as a result of the

heat, some prisoners “[fall] out;” that prisoners with

respiratory problems have trouble breathing; and that

prisoners develop heat rash, it was error to dismiss the

claim of excessive heat.

It was also error to dismiss the claim of mixing psy-

chotic and general population prisoners in the dormitory.

Petitioner alleged that this lack of classification caused

stress because other prisoners could not predict the be-

havior of the mentally ill prisoners. App. 11. The lower

court dismissed this claim on the ground that petitioner

had not established that he was in reasonable fear of

attack, citing Shrader v. White, 761 ¥.2d 975 (4th Cir.

1985). The court below held that “the absence of allega-

tions of prior physical violence involving any inmate sup-

porting [petitioner’s] claims leads us to conclude that

[his] fear is not reasonable.” App. 69. While that com-

ment might be persuasive if petitioner had simply cited a

generalized concern about lack of personal safety, it ig-

nores petitioner’s specific claim about the mixing of psy-

chotic prisoners with general population prisoners. A

fear of psychotic prisoners is not an unreasonable fear,

and the claim should not have been dismissed without an

evidentiary inquiry inté whether psychotic, dangerous

prisoners were actually mixed into the general population

as a result of overcrowding, creating an unreasonably

dangerous situation.**

34 The consequences of mixing mentally deranged inmates with

the mentally healthy are not limited to the danger of physical as-

sault. One court cited the smell of feces and accumulated filth,

intense noise from screaming, the setting of fires, and the sight

and sound of self-mutiliation and other “seemingly demented activ-

ity.” Langley v. Coughlin, 715 F.Supp. 522, 543-44 (S.D.N.Y.

1989) ; accord, DeMallory v. Cullen, 855 F.2d 442, 444-45 (7th Cir.

1988). Sometimes the mentally ii] inmates are endangered by being

mixed with the general population. See, e.g., Cortes-Quinones v.

ain,

39

Accordingly, the court of appeals erred in examining

petitioner’s claims in isolation, rather than evaluating

the totality of conditions, including possible interactions

among the various conditions.

Jimenez-Nettleship, 842 F.2d 556, 559-560 (1st Cir. 1988). After

full evidentiary presentations, several courts have concluded that the

Constitution requires separation of the mentally ill from the gen-

eral population in prisons and jails. See Tillery v. Owens, 719

F.Supp. 1256, 1303 (W.D.Pa. 1989), aff'd, 907 F.2d 418 (3d Cir.

1990) (after trial); Inmates of Occoquan v. Barry, 717 F.Supp.

854, 868 (D.D.C. 1989) (after tria]; inmates with mental health

problems barred from administrative/punitive segregation area) ;

Albro v. County of Onondaga, N.Y., 627 F.Supp. 1280, 1286 (N.D.

N.Y. 1986) (after hearing on preliminary injunction motion) ;

Reece v. Gragg, 650 F.Supp. 1297, 1304-05 (D.Kan. 1986) (sum-

mary judgment after a series of hearings and court inspections) ;

see also Jones v. Diamond, 594 F.2d 997, 1016 (5th Cir. 1979)

(jails should separate pretrial detainees from violent, disturbed,

and contagiously ill individuals as much as possible).

The record does not reveal whether the “stress” caused to other

prisoners by the mingling of psychotics in dormitories reaches the

levels described in cases like Langley, supra. But certainly a claim

of this nature should not have been dismissed based only on a

pro se litigant’s failure to spell it out in sufficient detail.

40

CONCLUSION

For the above reasons, petitioner urges this Court to

reverse the decision of the court of appeals affirming the

grant.of summary judgment to the respondents, and to

remand to the district court for trial.

Respectfully submitted,

ELIZABETH ALEXANDER *

DAVID C. FATHI

ALVIN J. BRONSTEIN

MARK J. LOPEZ

NATIONAL PRISON PROJECT

OF THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION

1875 Connecticut Ave., N.W., +410

Washington, D.C. 20009

(202) 234-4830

GORDON J. BEGGS

ELINOR R. ALGER

ACLU oF OHIO FOUNDATION

1223 West 6th Street

Cleveland, CH 44113

(216) 781-6278

JOHN A. POWELL

STEVEN A. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 W. 43rd Street

New York, NY 10036

(212) 944-9800

Counsel for Petitioner

* Counsel of Record

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