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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