Respondents Brief — Wilson v. Seiter

Supreme Court brief1991

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LIST OF 2ARTIES

Respondent, Richard P. Seiter, listed in this action as the

Director of the Ohio Department of Rehabilitation and

Correction has been succeeded in his official capacity by

George W. Wilson. Respondents otherwise agree with the

List of Parties as presented by Petitioner.

TABLE OF CONTENTS

PAGE

LIST OF PARTIES ....... ccc cece cteccccccccccccces i

TABLE OF AUTHORITIES... oe eee eee eee eee eens v

STATEMENT OF THE CASE ..... 2... ee eee eee eees 1

SUMMARY OF ARGUMENT ........---- eee eeeeees 5

ARGUMENT ..... cece cece cece cece eee eecsscees 8

THE EIGHTH AMENDMENT CRUEL AND

UNUSUAL PUNISHMENT CLAUSE

PROHIBITS CONDITIONS OF CONFINEMENT

THAT CONSTITUTE PUNISHMENT, DEPRIVE

INMATES OF BASIC HUMAN NEEDS, AND

ARE CAUSED BY OFFICIALS ACTING WITH

A WANTON AND OBDURATE STATE OF

MIND eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee 8

A. Prison Conditions Are Not Cruel And

Unusual Punishment Where They Provide

The Minimal Civilized Measure Of Life’s

Necessities And Where Conditions Do Not

inflict Wanton And Unnecessary Pain ..... 8

1. An Eighth Amendment claim should

first be evaluated to determine whether

punishment has been inflicted ........ 9

2. Conditions of confinement that

constitute punishment must be

objectively evaluated to determine

whether an inmate has been seriously

deprived of basic human needs ..... 13

3. An Eighth Amendment claim must also

be evaluated to determine whether

prison officials acted with a culpable

state of mind, for to hold otherwise

would impose strict liability on

4. In an Eighth Amendment case, each

and unusual punishment ...........

5. Failing to consider the efforts taken by

prison officials to provide for prisoners’

basic human needs imposes strict

CCU e Ce sscascossccces

B. Prison Conditions That Are Not Imposed In

A Wanton And Obdurate Manner Do Not

Violate The Eighth Amendment Prohibition

Against Cruel And Unusual Punishment

1. Where prison officials have provided for

inmates’ basic human needs prison

officials could not have been

deliberately indifferent .............

2. After Whitley v. Albers all Eighth

Amendment claims must be evaluated

under a wanton and obdurate state

cee

3. Wanton and obdurate behavior for

Eighth Amendment conditions of

confinement claims requires a showing

DT Eee beeGsueseceésocesccs

SUMMARY JUDGMENT WAS PROPERLY

GRANTED IN FAVOR OF _ THE

RESPONDENTS. 0.2... ccc ccc cccceccees

. 23

CONCLUSION ........ cece cece cere eee neeeees

APPENDIX TO BRIEF FOR RESPONDENTS ....

A-1

TABLE OF AUTHORITIES

Cases PAGES

Anderson v. Liberty Lobby, Inc.

SPD b66¢00s sscccscccve 39, 41, 44

Bass v. Jackson,

PEGE, WEED ccc ce cccceccccce 30

Bell v. Wolfish,

ED ols cc cececees eeeeee passim

Berry v. City of Muskogee,

900 F.2d 1489 (10th Cir. 1990) ............... 33

Birrell v. Brown

867 F.2d 956 (6th Cir. 1989) ................. 27

Blankenship v. Meachum,

840 F.2d 741 (10th Cir. 1988) ................ 44

Celotex Corp. v. Catrett,

EEE ov o5 5c necceceecées 37, 39, 43

Chapman v. Rhodes,

434 F. Supp. 1007 (S.D. Ohio 1977), aff,

624 F.2d 1099 (6th Cir. 1980), rev’d,

EE 22

City of Canton, Ohio v. Harris,

EE ov cc ccccecteseceees 26, 30

Cody v. Hillard,

830 F.2d 912 (8th Cir. 1987) (en banc), cert. denied,

EE 8

Corselli v. Coughlin,

EE, WEED cc cvcccsccccescsece 34

Cortes-Quinones v. Jimenez- Nettleship,

842 F.2d 556 (1st Cir.), cert. denied,

ABB UD. GRO CIGD) 2. cccccccccccccccccs 17, 33

Daniels v. Williams,

GPG UD, SEF TIGR cw cc cccccccescccsvecsces 25

Davidson v. Cannon,

474 U.S. B44 (19GB) ow ccc ccc ccccccccvcceee 25

Duchesne v. Sugarman,

566 F.2d 817 (2d Cir. 1977) ........ ee eeeeees 32

Estelle v. Gamble,

429 U.S. 97,1976) ........ 6, 15, 16, 17, 24, 26, 45

Evans v. Dugger,

908 F.2d 801 (11th Cir. 1990) ............46-- 33

Foulds v. Corley,

833 F.2d 52 (Sth Cir. 1987) ..........-e ee eeee 33

Gates v. Collier,

501 F.2d 1291 (5th Cir. 1974) ............. 18, 19

Givens v. Jones,

900 F.2d 1229 (8th Cir. 1990) ............. 34, 35

3rakam v. Connor,

_ | & & / QRRPPTTTeTrrrrrririre 17

Gregg v. Georgia,

Ge MPEETED cc ccccccccccccccees 9, 13, 28

Hamm v. DeKalb County,

774 F.2d 1567 (11th Cir. 1985), cert. denied,

Pe PPT ee 12, 19, 31

Harris v. Fleming,

839 F.2d 1232 (7th Cir. 1988) ............-45- 14

vii

Holloway v. Lockhart,

813 F.2d 874 (8th Cir. 1987) ................. 35

Hoptowit v. Ray,

682 F.2d 1237 (9th Cir. 1982) ................ 22

Hutto v. Finney,

iE 8, 14, 28

Ingraham v. Wright,

i hives cu eb ceed seeed sen 23

Johnson v. Pelker,

891 F.2d 136 (7th Cir. 1989) ................. 44

LaFaut v. Smith,

834 F.2d 389 (4th Cir. 1987) ...............0.. 33

Lujan v. National Wildlife Federation,

Pe i a dvs ceecioese 45

Matsushita Elec. Inc. Co. v. Zenith Radio Corp.,

eee. ene eecaduaces eee 40

McGhee v. Foltz,

852 F.2d 876 (6th Cir. 1988) ................. 30

Monroe v. Pape,

dete iign enews 32

Morgan v. District of Columbia,

824 F.2d 1049 (D.C. Cir. 1987) ............... 33

Noll v. Carlson,

809 F.2d 1446 (9th Cir. 1987) ................ 33

viii

Ort v. White,

813 F.2d 318 (11th Cir. 1987) ...........205-- 35

Powell v. Lennon,

914 F.2d 1459 (11th Cir. 1990) ............... 33

Ramos v. Lamm,

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

GED UD. FEST GIST) nc cccccccccccccccccs 18, 19

Rhodes v. Chapman,

GS UD ccc ccccccccccccesoes passim

Ruefly v. Landon, :

825 F.2d 792 (4th Cir. 1987) ........2220eeeee 44

State of Louisiana ex rel. Francis v. Resweber,

POP EUEEED Sc cccvccccccccccevess 16, 22

Stubbs v. Dudley,

849 F.2d 83 (2d Cir. 1988), cert. denied,

109 S. Ct 1005 (1969) ....... ccc cccccces 25, 34

Vigliotto v. Terry,

873 F.2d 1201 (9th Cir. 1989) ...............- 45

Webster v. Reproductive Health Services,

Se ETD ccc ccceceureccccccsecs 26

Wells v. Brown,

891 F.2d 591 (6th Cir. 1989) .............04-- 36

Whitley v. Albers,

SEED cccececccasivvvesces passim

Pearly Wilson v. George Denton, et al.,

Case Nos 89-3454 and 89-3978

(6th Cir. March 20, 1990) unreported,

cert. denied, 110 S. Ct. 2217 (1990) ........... 36

Wilson v. Seiter,

893 F.2d 861 (6th Cir.), cert. granted,

eo passim

Woodhous v. Commonwealth of Virginia,

487 F.2d 889 (4th Cir. 1973) ................. 30

Wright v. Jones,

907 F.2d 848 (8th Cir. 1990) ................. 33

Wright v. Rushen,

642 F.2d 1129 (9th Cir. 1981) ................ 31

STATUTES AND CONSTITUTIONAL PROVISIONS

RRR cacccncvoccescesccescess 17

EE becievecceccecccnedonces 25

A), ae passim

nae cies teva eivences cakes 2

PD cesechncs pessceseuceseuses 2, 32

Ohio Rev. Code. Ann. §9.86 ...............000- 3

RULES

iD CS Mi db edema ideccnnneheces ee 15

CE ne 37

PEED See ecb cecdonescesesesnue 36, 38

CL 37, 38

MISCELLANEOUS

Black’s Law Dictionary (6th ed. 1990) ........ 29, 30

No. 89-7376

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

PEARLY L. WILSON,

Petitioner,

RICHARD SEITER, et al.,

Respondents.

BRIEF FOR RESPONDENTS

STATEMENT OF THE CASE

Hocking Correctional Facility (HCF) is a medium security

institution in Nelsonville, Ohio. (J.A. 47).' The facility was

originally constructed in 1956 and served as a tuberculosis

hospital until its conversion to a medium security prison in

1983. (J.A. 40, 47). The prisoners at HCF are housed in two

large dormitories, e2ch accommodating approximately 140

prisoners, and an honor dormitory housing forty-six

prisoners. (J.A. 40). The dormitories resemble army barracks,

with long rows of bunk beds and lockers for each inmate's

personal possessions. (J.A. 49).

HCF houses older inmates who are allowed considerable

freedom of movement within the institution.’ (J.A. 48, 49).

' References to (J.A. ) are to the appropriate pages in the Joint Appendix.

References to (A) are to the appropriate pages in the Appendix to the

Brief for Respondents.

2 The unit manager of HCF confirmed that older inmates are placed

at HCF for their protection. (J.A. 42, Friend Affidavit at 26). For example,

inmate Vinson was seventy-seven years old when he signed an affidavit

in support of Petitioner's motion for summary judgment. (J.A. 19).

Inmates may choose to watch television, including

subscription cable television and the Home Box Office

channel, in one of the large television rooms, exercise in

the gymnasium, walk around the yard, play billiards on the

poo! table, read in the prison library, visit guests in the visitors’

lounge, or further their education in supervised continuing

education classes. (J.A. 48, 49). Inmates are required to report

to their bunks only at night and for several periodic counts

during the day. (J.A. 49).

Petitioner, Pearly L. Wilson,’ brought this action under 42

U.S.C. § 1983 against Richard P. Seiter,‘ then Director of

the Ohio Department of Rehabilitation and Correction,® and

Carl Humphreys,* then warden of HCF. (J.A. 3-4). Seiter and

Humphreys were alleged io have inflicted cruel and unusual

punishment on Petitioner in contravention of the Eighth

Amendment to the United States Constitution due to the

allegedly unfit conditions at HCF. Petitioner and the second

plaintiff, Everett Hunt, Jr., sought damages from the two

defendants in their individual capacities in the amount of

’ The second named plaintiff, Everett Hunt, Jr., is no longer confined

at HCF and is not a party to this petition. Furthermore, this case was

not pursued as a class action.

‘ — Mr. Seiter is no longer Director of the Ohio Department of Rehabilitation

and Correction. At the time Mr. Seiter served as Director he was a United

States Bureau of Prisons employee on loan to Ohio pursuant to the

Intergovernmental Personnel Act of 1970, 5 U.S.C. §§ 3371-3376. Mr.

Seiter returned to ne United States Bureau of Prisons in 1988. Given

Mr. Seiter’s emrioyment with the federal government, the participation

of the United States as amicus curiae is curious.

5 Mr. George W. Wilson is the current Director of the Ohio Department

of Rehabilitation and Correction. No substitution of parties has been

made in this case as Respondents have been sued in their individual

as well as their official capacities.

* Mr. Humphreys is no longer warden of HCF. Carole Shiplevy is the

current HCF warden.

$1.8 million dollars,’ as well as declaratory and injunctive

relief. (J.A. 8-9, Amended Complaint, VII 444-5.)

Petitioner challenged virtually every condition of

confinement at HCF. Petitioner's Amended Complaint

alleged: overcrowding (J.A. 4, Amended Complaint 4 9),

excessive noise (J.A. 4, Amended Complaint 4 9), insufficient

locker storage space (J.A. 4-5, Amended Complaint 4 10),

inadequate heat in the winter (J.A. 5, Amended Complaint

q 11), inadequate ventilation in the summer (J.A. 5, Amended

Complaint 4 12), unclean restrooms (J.A. 5, Amended

Complaint 44 14, 15, 16), inmate assignments to dormitories

based on improper classifications (J.A. 6, Amended

Complaint 4 17), and unsanitary dining room and food

preparation (J.A. 6, Amended Complaint 18).

Petitioner filed a motion for summary judgment supported

by affidavits signed by five other HCF inmates. (J.A. 1, Journal

Entry of 11-10-86). The motion and affidavits raised additional

claims of insect infestation and inadequate cooling in the

summer. (J.A. 34, 35). Respondents filed a memorandum

contra Petitioner's summary judgment motion supported by

an affidavit of Homer Friend, the unit manager* of Petitioner's

dormitory at HCF. (J.A. 40). Mr. Friend's affidavit documents

specific measures taken by HCF to keep the noise level down,

to heat and ventilate the facility, to maintain cleanliness in

the restrooms and food service area, and to exterminate

insects in the institution. Mr. Friend also described the HCF

” Petitioner and the second named plaintiff each sought $900,000. This

amount included $600,000 in punitive damages and $300,000 in

compensatory damages. (J.A. 8-9, Amended Complaint, Vil, ¢44,5). State

Officials are not indemnified for punitive damages. Ohio Rev. Code Ann.

§9.86 (Page 1990) (A.1).

* Unit management is an administrative mode! based on decentralized

decision making authority. The unit manager is part of a professional

team which works within a particular HCF dormitory. The unit

management system attempts tu resolve problems expeditiously by

allowing inmates to raise personal or institutional concerns immediately.

The team includes a social worker and someone from the team is on

duty seven days per week for at least twelve hours per day. (JA. 50).

health screening procedures and the HCF policy for

transferring mentally ill inmates to psychiatric programs at

other institutions. (J.A. 40-42).

Respondents then filed a cross-motion for summary

judgment. (J.A. 1, Journal Entry of 4-16-87). The cross-motion

for summary judgment included the affidavit of the health

care administrator at HCF who described the medical and

psychiatric services provided at HCF, reviewed the medical

history of Petitioner, and stated that there were no records

of inmates suffering from excessive heat or food poisoning,

and that the number of cold-related diseases was normal

for this age group. (J.A. 43-44). In addition, he noted that

the inmates and prison employees “eat the same food

prepared in the same kitchen.” (J.A. 43). The motion was

also supported by an affidavit of staff counsel for the Ohio

Judicial Conference, authenticating an article written for a

Judicial Conference publication describing his visit to HCF

on October 23, 1986. (J.A. 45-52).

The district court denied Petitioner's motion for summary

judgment, granted Respondents’ motion for summary

judgment and dismissed the action. (J.A. 53). The court found

that Petitioner had failed to present a genuine issue of

material fact, for the pleadings and affidavits revealed that

Petitioner had been provided with “at least the minimal

civilized measure of life’s necessities” and that the HCF

officials did not demonstrate “obdurate or wanton behavior.”

(J.A. 59).

Petitioner appealed to the Sixth Circuit Court of Appeals,

which appointed counsel.* The court of appeals affirmed the

lower court's decision, holding that Petitioner's allegations

of overcrowding, housing with mentally ill inmates, and

inadequate cooling, even if true, were insufficient to establish

constitutionally violative conditions. Wilson v. Seiter, 893 F.2d

861, 865 (6th Cir.), cert. granted, 111 S. Ct. 41 (1990) (J.A.

* The Sixth Circuit Court of Appeals brief was prepared by the appointed

counsel.

68). The court found that summary judgment was properly

granted on Petitioner's other allegations, for Petitioner's

affidavits failed to present sufficient evidence to allow a

reasonable jury to conclude that Respondents had acted

obdurately and wantonly. Wilson v.Seiter, 893 F.2d at 867

(J.A. 74).

Petitioner then sought a writ of certiorari from this Court.

This Court granted the petition and the motion to proceed

in forma pauperis on October 1, 1990. Wilson v. Seiter, 111

S. Ct. 41 (1990).

SUMMARY OF ARGUMENT

To show that conditions of confinement inflict cruel and

unusual punishment in violation of the Eighth Amendment

an inmate must demonstrate that the conditions: (1)

constitute punishment, (2) seriously deprive him of basic

human needs, and (3) are inflicted by prison officials acting

with a wanton and obdurate state of mind. If an inmate fails

to present sufficient evidence to create a genuine issue of

fact regarding any one of these essential elements the prison

Officials are entitied to summary judgment. This test strikes

the needed balance, protecting inmates’ constitutional rights

while allowing prison officials flexibility to deal with the

practical difficulties of operating our nation’s prison systems.

Conditions of confinement can be scrutinized under the

Eighth Amendment only if those conditions themselves

constitute punishment. A condition of confinement

constitutes punishment only if the condition is imposed with

an intent to punish or if the condition is not rationally related

to an alternate purpose or is excessive in relation to the

alternate purpose. Bell v. Wolfish, 441 U.S. 520 (1979). None

of the conditions of confinement Petitioner complains of

constitute punishment. All of the conditions are rationally

related to legitimate security, administrative, and fiscal

concerns.

The Court in Rhodes v. Chapman, 452 U.S. 337 (1981),

evaluated a claim that conditions of confinement (double

ceiling) constituted cruel and unusual punishment. The

Rhodes Court found that prison officials were entitied to

judgment because the inmates failed to show an essential

element of their Eighth Amendment claim. The inmates’ failure

to demonstrate that they were deprived of “the minimal

civilized measure of life’s necessities” was fatal to their

constitutional claim.

Some lower courts, relying on Rhodes, have failed to

consider prison officials’ state of mind when ruling fon

conditions claims, and have considered only whether the

conditions meet the minimal civilized measure of life’s

necessities. Because the Rhodes Court found that inmates

were provided with minimal standards of human decency,

it went no further in discussing the eiements of an Eighth

Amendment violation. However, the Court had previously

decided Eighth Amendment liability should not be imposed

without fault. Prison officials must have acted with a culpable

state of mind to be found liable for violating an inmate's

constitional rights. Estelle v. Gamble, 429 U.S. 97 (1976).

The Court in Whitley v. Albers, 475 U.S. 312 (1986), directed

lower courts to consider a state of mind analysis in all Eighth

Amendment cases. Whitley marked a return to the Court's

historical treatment of Eighth Amendment cases, holding that

officials can not be found to have inflicted cruel and unusual

punishment unless it is shown that they acted with an

obdurate and wanton state of mind.

The foregoing test announced by the Whitley Court and

utilized by the Sixth Circuit requires an inmate to do more

than make conclusory allegations of cruel and unusual

punishment. It requires the inmate to show a genuine issue

of fact that officials’ conduc. has been persistent and

malicious in maintaining prison conditions that deprive an

inmate of basic human needs. This test protects the rights

of both the inmates and prison officials, while conserving

judicial resources.

The Sixth Circuit properly included state of mind as an

element of Eighth Amendment claims challenging conditions

of confinement. The Sixth Circuit affirmed summary judgment

in favor of the prison officials, finding that there was no

evidence that the officials had acted wantonly and obdurately.

The Sixth Circuit interpreted wanton and obdurate as

persistent malicious cruelty.

The use of persistent malicious cruelty to evidence

wantonness and obduracy in an Eighth Amendment

conditions case strikes a needed balance. Requiring less

would permit liability for an isolated act or omission resulting

from inadvertence or error in good faith. This analysis permits

prison officials’ behavior to be examined in light of their

knowledge of deficient conditions, actions taken to cure the

deficient conditions, and any barriers to action, financial or

otherwise, that would have an impact on the ability to cure

the deficient conditions. Moreover, the subjective nature of

claims pertaining to conditions of confinement mandate the

need for a test giving wide deference to prison officials

charged with the responsibility of operating our nation’s

prison systems.

Obduracy and wantonness can be shown in a conditions

case only where an official acted with a degree of malice.

Where, as here, prison officials continuously endeavor to

maintain decent living conditions within a facility, wantonness

and obduracy can not be found. Respondents’ efforts to

maintain decent living conditions at Hocking Correctional

Facility would preclude even a finding of deliberate

indifference. Ignoring the prison officials’ efforts to provide

decent human living conditions in penal institutions and,

instead, looking solely at the conditions in existence at the

facility would, in effect, impose a strict liability standard for

prison conditions claims.

Ohio does not seek to operate prisons without regard to

the constitutional rights of prisoners. Indeed, Hocking

Correctional Facility is radically different from the innumane

institutions that cause concern for inmates’ health and safety.

Ohio merely seeks a meaningful test that will allow claims

that do not rise to a constitutional level to be resolved without

resort to a federal court trial.

ARGUMENT

|. THE EIGHTH AMENDMENT CRUEL AND

UNUSUAL PUNISHMENT CLAUSE PRO-

HIBITS CONDITIONS OF CONFINEMENT

THAT CONSTITUTE PUNISHMENT, DEPRIVE

INMATES OF BASIC HUMAN NEEDS, AND

ARE CAUSED BY OFFICIALS ACTING WITH

A WANTON AND OBDURATE STATE OF MIND

“The deplorable conditions and draconian restrictions of

some of our Nation’s prisons” have caused the federal courts

rightly to “condemn these sordid aspects of our prison

systems.” Bell v. Wolfish, 441 U.S. 520, 562 (1979). This case,

however, is “light years removed from the torture, cruel

deprivations, and sadistic punishment with which the Cruel

and Unusual Punishment Clause is concerned. See Hutto

v. Finney, 437 U.S. 678, 681-84 and nn. 3-6 (1978).” Cody

v. Hillard, 830 F.2d 912, 915 (8th Cir. 1987) (en banc), cert.

denied, 485 U.S. 906 (1988). Hutto v. Finney described

conditions that were characterized as a “dark and evil world

completely alien to the free world.” 437 U.S. at 681."°

Regardless of what standards are used to analyze conditions

cases, nothing in the record in this case even remotely

approaches the conditions of confinement that fall below

the constitutional standards enunciated in Rhodes v.

Chapman, 452 U.S. 337 (1981) and Whitley v. Albers, 475

U.S. 312 (1986).

A. Prison Conditions Are Not Cruel And Unusual

Punishment Where They Provide The Minimal

Civilized Measure Of Life’s Necessities And

Where Conditions Do Not inflict Wanton And

Unnecessary Pain

‘© “{C]onditions [in Hutto v. Finney } included: use of five (5) foot long

leather straps to whip inmates for minor offenses, use of a device to

administer electrical shocks to very sensitive parts of an inmate's body

and use of inmate guards authorized to use deadly force against

“escapees” who therefore could murder another inmate with practical

impunity. 437 U.S. at 682 nn. 4-6." Cody v. Hillard, 830 F.2d at 915.

Petitioner claims that the court of appeals erroneously

applied a “malicious and sadistic” intent requirement in

support of its affirmance of the district court's entry oi

summary judgment in Respondents’ favor. Petitioner's

argument is disingenuous at best for, as is shown in part

B, infra pp. 26-27, the court of appeals did noi utilize a

“malicious and sadistic” intent standard in its review of the

lower court's decision. Additionally, the court of appeals

correctly analyzed the district court's decision within the

. framework of the restrictions of the Eighth Amendment and

determined that conditions at HCF did not constitute cruel

and unusual punishment. Wilson v. Seiter, 893 F.2d 861 (6th

Cir. 1990). (J.A. 62).

1. An Eighth Amendment claim should first be

evaluated to determine whether punishment

has been inflicted

Evaluating a conditions case under the guidelines of the

Eighth Amendment is a difficult task because that provision,

and the majority of cases explaining its application, deal with

“punishment” in the traditional sense. As this Court advised,

the American draftsmen, copying the English Bill of Rights,

were “primarily concerned, however, with proscribing

‘tortures’ and other ‘barbarous’ methods of punishment.”

Gregg v. Georgia, 428 U.S. 153, 170 (1976) (citing Granucci,

Nor Cruel and Unusual Punishments Inflicted: The Original

Meaning, 57 Calif. L. Rev. 839, 842 (1969)). The focus of many

Eighth Amendment cases, therefore, is whether punishment

is “cruel and unusual” while the underlying assumption is

that the challenged act constitutes punishment.

However, detention in and of itself, is not punishment in

the constitutional sense. Furthermore, “not every disability

imposed during. . .detention amounts to ‘punishment’ in the

constitutional sense. .. .” Bell v. Wolfish, 441 U.S. at 537."

Bell v. Wolfish involved pretrial detainees who had not been adjudged

guilty of any crime but who were detained to insure their attendance

at trial. The parties conceded that detention, by itself, did not constitute

punishment so as to give rise to a Fifth Amendment due process claim.

Inquiry into whether a governmental act constitutes

punishment involves many questions, including whether the

act involves an affirmative disability or restraint, has

historically been regarded as punishment, promotes the

goals of retribution and deterrence, is directed toward

behavior that is a crime, is directed toward an alternative

purpose (other than punishment), or,appears excessive in

relation to its alternate purpose. /d. at 537-38. |

Therefore, while confinement in prison is subject to Eighth

Amendment scrutiny, official acts that do not inflict pain are

not punishment and are therefore not forbidden, or even

regulated, by the Eighth Amendment. Rhodes v. Chapman,

452 U.S. at 348. Conditions of confinement, and specific

restrictions on inmates, are not necessarily punishment and,

if not, do not invite inquiry under the Eighth Amendment.

Some conditions are easy to identify as punitive, such as

solitary confinement or loss of privileges. But a court must

first decide whether a governmental act is taken for the

purpose of punishment or for some other legitimate

governmental purpose before moving on to a determination

of whether the act is cruel and unusual.

Absent a showing of an expressed intent to punish

on the part of detention facility officials, that

determination [of whether the act constitutes

punishment] generally will turn on “whether an

alternative purpose to which (the restriction) may

rationally be connected is assignable for it, and

whether it appears excessive in relation to the

alternative purpose assigned (to it).

Bell v. Wolfish, 441 U.S. at 538 (quoting Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 168-69 (1963)).

The first level of analysis, therefore, should be whether

the conditions of Petitioner's confinement constitute the

punishment at issue. Petitioner does not contend that

Respondents exhibited an intent to punish him by imposing

the conditions at HCF of which he complains. Therefore,

those conditions do not constitute punishment if they are

rationally related to an alternative purpose and are not

excessive in relation to that purpose. The inquiry must “spring

from constitutional requirements and . . . judicial answers

to them must reflect that fact rather than a court's idea of

how best to operate a detention facility.” Bell v. Wolfish, 441

U.S. at 539.

Many of Petitioner's complaints stem from the fact that

inmates at HCF are housed in open dormitories rather than

in private cells with their own restroom facilities. Petitioner

complains that inmates are double-bunked, have personal

space of less than 50 square feet, and that there is a high

noise level caused by other inmates. (J.A. 4, Amended

Complaint 4 9). He complains that he is subjected to the

odor of other inmates’ bodies and of the common restrooms

because of their proximity to the bunks. (J.A. 34, Wilson

affidavit 4 9). He complains that the common restroom

facilities are inadequately cleaned (J.A. 5, Amended

Complaint J 13-16) even though they are thoroughly cleaned

twice a day and spot cleaned on an as needed basis. (J.A.

41, Friend affidavit | 15).

Under the standards set out in Bell v. Wolfish, 441 U.S.

at 537-38, none of the above conditions even constitute

punishment. The conditions are rationally related to the

decision to house inmates in large dormitories. Clearly the

decision to use a dormitory facility is one the Court should

defer to prison administrators. The above complaints reflect

Petitioner's personal discomfort with the fact that he is

housed in a dormitory with one hundred forty inmates.

However, the conditions are not excessive in relation to the

decision to house inmates in a dormitory facility and therefore

do not constitute punishment. The prison administrators’

decisions about how to dea! with the problems attendant

to a dormitory environment’? should receive deference from

‘2 In addition to requiring the restrooms be cleaned twice a day, the

prison administrators require that the kitchen area and dining area

be cleaned after every meal, assign 57 inmates to kitchen duty, contract

with an exie: minator twice a month, and require that inmates who work

around food wear hats and plastic gloves. (J.A. 41-42). The Court should

defer to the decision of the prison officials to utilize inmate labor to

clean the facility and prepare and serve the focd.

the Court. Since the conditions Petitioner complains of are

related to the alternative purpose of operating a dormitory

detention facility with prison labor and are not excessive

with regard to this purpose, the acts of Respondents do not

constitute punishment subject to Eighth Amendment scrutiny.

Similarly, Petitioner does not argue that he has been

subjected to temperature extremes intentionally so as to

punish him for the crime for which he was incarcerated or

an infraction committed in the prison. Furthermore, other than

indicating that he has been periodically subjected to 95°

temperatures in the summertime," Petitioner does not specify

the temperature extremes inside the building, other than to

claim that they are “cold” and “frigid.” (J.A. 33-34). Being

subjected to 95° temperatures in the summertime is a

condition encountered by many Ohio residents who do not

live in air conditioned homes. Certainly the decision io install

air conditioning springs from legitimate governmental

economic interests attendant to the effective management

of a detention facility and cannot be considered to be

punishment. “[A] state’s interest in reasonably limiting the

cost of a detention facility is a legitimate governmental

objective in the framework of the Bell v. Wolfish standard

_..." Hamm v. DeKalb County, 774 F.2d 1567, 1573 (11th

Cir. 1985), cert. denied, 475 U.S. 1096 (1986). Petitioner has

never claimed that the building is not heated in the wintertime,

merely that the heating and insulation are inadequate.

Furthermore, Petitioner's subjective opinion that

temperatures are “cold” and “frigid” when considered along

with the objective fact that the heaters are serviced and in

good working order (J.A. 41) cannot support a claim that

the air temperature constitutes punishment.

‘3 Petitioner does not claim that he has suffered from heat related rashes

or breathing difficulty but, rather, that other inmates have suffered from

these physical ailments. As previously noted, this case is not a class

action and, therefore, Petitioner may not allege the injuries of other

inmates in support of his cause of action.

2. Conditions of confinement that constitute

punishment must be objectively evaluated to

determine whether an inmate has been

seriously deprived of basic human needs

Because conditions of continement do not fit neatly into

the definition of “punishment,” the Court looks at the general

principles enunciated in other Eighth Amendment cases in

order to establish a framework in which to evaluate prison

conditions cases. In Rhodes v. Chapman the Court

emphasized that, because of the flexibility of the Eighth

Amendment, courts must look at “ ‘evolving standards of

decency that mark the progress of a maturing society.’ ”

452 U.S. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101

(1958) (plurality opinion)). It is no longer only those

punishments that are physically barbarous which are

prohibited but those which “involve the unnecessary and

wanton infliction of pain.” Gregg v. Georgia, 428 U.S. at 173.

“Unnecessary and wanton” means punishment that is “totally

without penological justification.” /d. at 183.

Conditions that constitute cruel and unusual punishment

involve the “serious deprivations of basic human needs” and

“deprive inmates of the minimal civilized measure of life’s

necessities.” Rhodes v. Chapman, 452 U.S. at 346. A court's

determination of this issue should not be based on the

subjective views of judges and, even though a court's

judgment will “be brought to bear on the question of the

acceptability of a given punishment,” that judgment “should

be informed by objective factors to the maximum possible

extent.” Rhodes v. Chapman, 452 U.S. at 346 (citations

omitted).

Assuming the truth of Petitioner's objective allegations, he

has not been deprived of the minimal measure of life’s

necessities nor has he suffered a serious deprivation of basic

human needs. Taken at the furthest extreme, Petitioner claims

that he lives in a crowded, noisy dormitory that is too cold

in the winter and too hot in the summer, that the inmates

who clean the restrooms do not do a very good job and

the inmates who provide food service do not keep things

clean enough. Petitioner also claims that the inmate

populatior includes sick prisoners, both physically and

mentally, because the rules on inmate classification have

not been followed. Brief of Petitioner at 3.

Contrast the above allegations with the situation present

in Hutto v. Finney, 437 U.S. 678, where the prison officials

admitted that the conditions of “punitive isolation” constituted

cruel and unusual punishment. At the Arkansas prison, from

four to eleven prisoners were “crowded into windowiess 8’

x 10’ cells containing no furniture other than a source of

water and a toilet that could only be flushed from outside

the cell.” /d. at 682. Prisoners with hepatitis and venereal

disease were celled together and their bedding was jumbled

together each morning, and indiscriminately returned at night.

They were fed a 1,000 calorie a day diet of “ ‘grue’, a

substance created by*mashing meat, potatves, oleo, syrup,

vegetables, eggs, and seasoning into a paste and baking

the mixture in a pan.” /d. at 682-683. See supra p.8 n.10.

For punishment purposes, inmates were sentenced to these

punitive isolation cells with no reprieve for lengthy,

indeterminate periods of time. /d.

in contrast, Petitioner was provided with considerable

freedom within a facility that includes a lounge for snacking

and visitation, (J.A. 48} special television rooms, (J.A. 40),

gymnasium, pcol roor., weight room and prison library (J.A.

49). Inmates must periodically report to their bunks for a

head count but otherwise are allowed to choose their own

activities. (J.A. 49). Certainly Petitioner's claims that “[e]ven

though C dorm appears to be clean, it is not” and that HCF

extermination is inadequate as there are wasps, yellow

jackets, roaches, mice, mosquitoes and spiders (J.A. 35), does

not involve the serious deprivation of human needs standard

set out in Rhodes.

3. An Eichth Amendment claim must also be

evaluated to determine whether prison officals

‘cted with a culpable state of mind, for to hold

otherwise wou'd impose strict liability on prison

officials

Petitioner claims that the Court in Rhodes rejected any

kind of intent or state of mind analysis for a conditions case.

Even though, Petitioner admits, an analysis of intent may

be appropriate for other Eighth Amendment cases such as

a Claim for failure to provide medical care, Estelle v. Gamble,

429 U.S. 97 (1976), or excessive use of force, Whitley v.

Albers, 475 U.S. 312, Petitioner argues that the Court should

not incorporate any state of mind test into the Eighth

Amendment analysis of prison conditions. Petitioner urges

closer scrutiny and less deference to state officials in an

analysis of prison conditions because, he clairns, they do

not involve split-second decisions regarding safety nor must

they be weighed against other important governmental

interests. Brief of Petitioner at 12-13. Furthermore, Petitioner

claims that there is & need for a uniform national standard

agains: which the conditions in all prisons may be evaluated.

Brief of Petitioner at 24. Petitioner's approach disregards

the officials’ state of mind. This effectively imposes strict

liability on prison officials, requiring them to maintain minimal

standards of human decency as defined by the federal courts

The “deliberate indifference” standard of Estelle v. Gamble

unquestionably involves an examination of the state of mind of the

prison official. Nonetheless, Petitioner inconsistently argues that a state

of mind analysis has no place in a conditions case. Brief of Petitioner

at 23-26. Not only is Petitioner's argument in his merits brief internally

inconsistent, but Petitioner actually concedes in his Petition For A Writ

of Certiorari that a state of mind analysis was appropriate in all Eighth

Amendment cases, including conditions cases; Petitioner merely takes

issue with the applicable state of mind standard.

In this case, the Sixth Circuit failed to apply Whitley correctly.

The Sixth Circuit failed to recognize that the “obdurate and

wanton” state of mind requirements of Whitley for all Eighth

Amendment violations encompass both the “deliberate

indifference” and the “malicious and sadistic intent” standards.

Which of the two “obdurate and wanton” state of mind

requirements applied depends on the circumstances.

Petition For Writ Of Certiorari at 32-33. Petitioner's argument that tre

Court should abandon a state of mind analysis altogether for conditions

cases was not a part of the Questions Presented For Review in the Petition

and should not be heard by this Court. Suo. Ct. R. 14.1(a). (A.2).

and organizations such as the American Correctional

Association and the American Public Health Association. See

Brief of Amicus Curiae American Public Health Association.

Contrary to Petitioner's argument, the Court in Rhodes did

not reject a state of mind analysis for conditions cases. A

more reasonable reading of the decision, especially in light

of the fact that it wae decided in a short time period that

began with Estelle v. Gamble and ended with Whitley v.

Albers, is that the state of mind of the prison officials was

never an issue in Rhodes because the Court found that the

conditions at the Southern Ohio Correctional Facility (SOCF)

- satisfied the minimal civilized measure of life's necessities.

Thersfore, respondents could not show one of the necessary

elements of the constitutional claim. The Court admonished

that the determination of cruel and unusual punishment

should not be merely the product of the subjective view of

judges. Rhodes v. Chapman, 452 U.S. at 346. This is certainly

not a rejection of the use of an inquiry into the state of mind

of the officials in conditions cases. Indeed the Court in

Rhodes v. Chapman \oot:ed to “Eighth Amendment

precedents for the general principles that are relevant to

a State’s authority to impose punishment for criminal

conduct” id. at 345, including the “unnecessary and wanton

infliction of pain.” /d. at 346. The Court did not, as Petitioner

suggests, formulate a new test for conditions cases.

The state of mind requirement is an essential component

of any meaningful test for conditions that do not involve a

threat to bodily integrity, pain, injury, or loss of life. Use of

a state of mind analysis logically assists in differentiating

between conditions that are unconstitutional from those

“restrictive and even harsh” conditions permitted by Rhodes.

452 U.S. at 347.

Analysis of Eighth Amendment cases has historically

involved a discussion of the official’s intent, and still does

today. In State of Louisiana ex rel. Francis v. Resweber, 329

U.S. 459 (1947), the Court rejected a convicted murderer's

claim that it would constitute cruel and unusual punishment

to execute him after a first attempt had failed. “Trere is no

purpose to inflict unnecessary pain nor any unnecessary

pain involved in the proposed execution.” /d. at 464.

Furthermore, as previously noted, Estelle v. Gamble and

Whitley v. Albers both utilize a state of mind analysis. In

Graham v. Connor, 109 S. Ct. 1865 (1989), the Court compared

the Eighth Amendment prohibition against cruel and unusual

punishment with the Fourth Amendment prohibition of

unreasonable searches and seizures. The Court recited the

fact that subjective state of mind is relevant to an Eighth

Amendment claim as established hornbook law: “the terms

‘cruel’ and ‘punishment’ clearly suggest some inquiry into

subjective state of mind, whereas the term ‘unreasonable’

does not”. /d. at 1873."

There is no reason to disregard prison officials’ state of

mind when a federal court reviews ciaims that general prison

conditions are unconstitutional, but to consider state of mind

when reviewing claims that medical treatment was withheld

or that excessive force was used. Refusai to provide medical

treatment can “produce physicel ‘torture or a lingering

death’ or, in a less severe case “result in pain and suffering.”

Estelle v. Gambie, 429 U.S. at 103 (quoting in Re Kemmier,

136 U.S. 436, 447 (1890), overruled by, Gregg v. Georgia,

428 U.S. 153 (1976)). Even more clear is that use of force

can cause “severe [physical] damage . . .and mental and

emotional distress.” Whitley v. Albers, 475 U.S. at 317.

Furthermore, cfficials’ failure to protect an inmate can also

result in pain and suffering and even death. Cortes-Quinones

v. Jimenez-Nettleship, 842 F.2d 556 (1st Cir.), cert. denied,

488 U.S. 823 (1988). The discomfort caused by conditions

of confinement do not merit closer review and less deference

than decisions of prison officials involving acts or omissions

that are life or health threatening. Petitioner's argument that

a claim that general conditions of confinement should be

subject to broader scrutiny by the Court is not consistent

‘In @ separate concurring opinion, Justices Blackmun, Brennan and

Marshall did not take issue with the majority's conclusion that the Eighth

Amendment requires a subjective state of mind analysis. Graham v.

Connor, 109 S. Ct. at 1873-74.

with the language and purpose of the Eighth Amendment.

Petitioner claims that the cases cited in footnote 17 of

Rhodes v. Chapman, 452 U.S. at 352, support his claim that

the Court rejected a state of mind analysis in conditions

cases. Petitioner argues that the cited circuits relied only

on objective conditions at the detention facilities to determine

that those conditions constituted cruel and unusual

punishment. Petitioner's claim is misplaced; this Court merely

referred to the cases in footnote 17 as examples of state

institutions that were subject to federal court orders.

Pet'tioner further argues tiat in Ramos v. Lamm, 639 F.2d

559 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981), the

court rejected the State’s arguments that they “had made

good faith efforts to remedy the constitutional violations.”

Brief of Petitioner at 25. But the “efforts” referenced in the

court's decision were actually efforts to construct and open

a new facility, which facility was not yet in operation. Of

course construction of a new prison would not be relevant

to the ccnditions at an older existing facility. Similarly,

Petitioner's citation to Gates v. Collier, 501 F.2d 1291 (5th

Cir. 1974) does not support his claim that all good faith efforts

of prison officials are irrelevant in a conditions claim. In Gates,

the court merely held that improvement efforts made after

suit was filed would not be cause to deny relief te the inmates

because there was no assurance that improvements would

be maintained:

“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 the duty of the courts to beware of efforts

to defeat injunctive relief by protestations of

repentance and reform, especially when

abandonment seems timed to anticipate suit, and

there is probability of resumption.”

Id. at 1321 (quoting United States v. Oregon Medical Society,

343 U.S. 326, 333 (1952)).

Respondents do not ask, nor did the court of appeals hold,

that it would be appropriate to defend themselves by arguing

that they would provide another, better facility in the future

(Ramos) or that, after suit, they cleaned things up at HCF

(Gates). Instead, Respondents defended themselves on the

basis that prior to the filing of Petitioner's lawsuit they had

taken best efforts and provided decent living conditions for

the inmates at HCF. This state of mind consideration is

appropriate in a conditions case just as it is in other Eighth

Amendment cases.

Petitioner also claims that closer federal court scrutiny

is appropriate because prison security is not an issue in

a prison conditions case. This claim is undermined by the

nature of Petitioner's own complaints. For example, the

decision to utilize inmate labor as food service and custodial

workers implicates a decision to have fewer, non-guard

employees in the facility on a daily basis. This, and the

decision to exterminate twice a month instead of more

frequently, reflects concern about tlee security of the facility,

the personal safety of non-inmates, and the potential for

smuggling contraband intc the institution. Indeed, Petitioner's

Amended Complaint and affidavits in this action provide

numerous examples of conditions claims that involve security

questions for which prison administrators must be provided

wide latitude. Two of the more obvious examples

are: Classification issues, (J.A. 6, Amended Complaint 4 17),

and security of fire exits and “crash gates,” (J.A. 13, Cassidy

Affidavit 4 18), (J.A. 18, Griffin Affidavit | 16), (J.A. 21, Vinson

Affidavit | 12), (J.A. 25, Bock Affidavit | 18).

Mor .er, security is not the only countervailing

governmental interest implicated in a conditions case. The

decision to house inmates in a dormitory environment

implicates important government interests. Furthermore, the

financial interests of the State are also implicated in the public

Officials’ decision to provide the most efficient, cost effective

management of the facility possible. Hamm v. DeKalb County,

774 F.2d at 1573.

Petitioner's claim that, unless the Court rejects a state of

mind analysis for conditions cases, “there will be no uniform

constitutional standard for the nation,” Petitioner's Brief at

24, ignores the fact that all other Eighth Amendment claims

require utilization of a state of mind analysis. If Petitioner

is suggesting that the Court should adopt specific standards

for prison facilities across the nation, this would not only

violate the axiom that specific conditions involve

considerations “properly [ ] weighed by the legislature and

prison administration rather than a court” Rhodes v.

Chapman, 452 U.S. at 349, but also the admonition that “[n]o

static ‘test’ can exist by which courts determine whether

conditions of confinement are cruel and unusual, for the

Eighth Amendment ‘must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.’ ” /d. at 346 (quoting Trop v. Dulles, 356 U.S. at 101).

Indeed, the Court has rejected the use of the American Public

Health Association's Standards for Health Services in

Correctional Institutions to establish constitutional mandates:

{[Wihiie the recommendations of these various

groups may be instructive in certain cases, they

simply do not establish the constitutional minima;

rather they establish goals recommended by the

organization in question. For this same reason, the

draft recommendations of the Federal Corrections

Policy Task Force of the Department of Justice

regarding conditions of confinement for pretrial

detainees are not determinativ. of the reovirements

of the Constitution.

Bell v. Wolfish, 441 U.S. at 543-44 n. 27. See also Rhodes

v. Chapman, 452 U.S. at 349 n. 13. The American Public

Health Association's Standards have again been lodged with

the Court for its reference in this case by amicus curiae

American Public Health Association.

Analysis of conditions cases solely on the basis of objective

standards as urged by Petitioner is not possible because

unlike staiutory punishments for criminal acts, prison

conditions are not specifically established by legislative acts.

The “ ‘objective indicia’ derived from history, the action of

state legislatures, and the sentencing by juries,” Rhodes v.

Chapman, 452 U.S. at 346-47, do not provide the

determinative test necessary for a conditions case."*

4. Inan Eighth Amendment case, each challengec

condition must constitute cruel and unusual

punishment

The plethora and variety of Petitioner's complaints (as

opposed to focusing on an individual complaint or several

specific complaints) indicate Petitioner actually grounds his

Eighth Amendment claim on a “totality of the circumstances”

theory. Brief of Petitioner at 36-39. Under the “totality of the

circumstances” analysis a prisoner claims that, while there

is no single condition which causes the prisoner to suffer

cruel and unusual punishment, the overall conditions create

an atmosphere that causes physical or, more commonly,

emotional suffering. Some courts have applied a totality of

the circumstances analysis to determine whether overall

conditions, when taken in combination, heighten the

punishment. Under this analysis, although individual

conditions by themselves are not cruel and unusual, the total

effect of the conditions renders the punishment cruel and

unusual. Totality of the circumstances was incorrectly utilized

by the Rhodes district court when it reviewed conditions

at the Southern Ohio Correctional Facility in 1977:

The question is constantly stated as one of

ascertaining the “totality of the circumstances” of

the particuiar case and then inquiring into whether

the totality as determined is intolerant or shocking

to the conscience, or barbaric or totally

unreasonable in the light of the ever changing

modern conscience.

‘© The Rhodes Court did not direct the use of the objective indicia

listed in their opinion for a conditions case, it merely used those factors

as examples the Court utilized in deciding whether capital punishment

for certain crimes met contemporary standards. 452 U.S. at 347.

Chapman v. Rhodes, 434 F.Supp. 1007, 1019 (S.D. Ohio 1977)

aff'd, 624 F.2d 1099 (6th Cir. 1980), rev’d, 452 U.S. 337 (1981).

A totality of the circumstances inquiry involves, to an

unjustifiable degree, the subjective judgment of a federal

court as to what is intolerable, unreasonable, and shocking

to the modern conscience. Applying totality of the

circumstances also fails to utilize a traditional Eighth

Amendment analysis to examine each individual condition

and determine whether punishment is inflicted that is cruel

and unusual. The test was implicitly rejected by this Court

in Rhodes when it reversed the decision of the lower courts."’

5. Failing to consider the efforts taken by prison

Officials to provide for prisoners’ basic human

needs imposes strict liability

Adoption of Petitioner's argument that the Court should

ignore the prison officials’ efforts to provide for prisoners’

basic human needs and should instead look solely at the

conditions in existence at the facility would, in effect, impose

strict liability for prison conditions claims. States and prison

Officials would be subject to claims that they had inflicted

“cruel and unusual punishment” on inmates no matter how

much effort they undertook to provide adequate living

conditions under contemporary standards of human

decency. A strici iiability type argument was rejected by the

Court in State of Louisiana ex rel. Francis v. Resweber, 329

U.S. 459, and should be rejected for purposes of a prison

conditions case.

‘’ In a@ separate concurring opinion Justices Brennan, Blackmun and

Stevens said the language in the majority opinion at 347 indicated

the majority utilized a totality of the circumstances test. 452 U.S. at

363 n. 10. However, this is inconsistent with the majority's instructions

to use “objective criteria” to the greatest extent possible. See Hoptowit

v. Ray, 682 F.2d 1237, 1246 n. 3 (9th Cir. 1982) (“In light of the [Rhodes]

Court's specificity, it is unlikely the Court would hold that the totality

of conditions at a prison may constitute an Eighth Amendment violation.

The Rhodes rationale suggests that the Court would require evidence

of specific conditions amounting to one of the enumerated

deprivations.”)

Petitioner argues in favor of applying what amounts to

a strict liability standard for Eighth Amendment conditions

cases. This would require prison officials to defend

themselves in a trial, from claims for both monetary and

injunctive relief, whenever inmates claim the government has

failed to meet inmates’ basic human needs. This would create

enormous barriers to the states’ ability to operate their

prisons. Brief of Petitioner at 25 n. 23.

These barriers are illustrated by a particularly appropriate

hypothetical raised by the United States of the dilemma

created by the breakdown of a prison boiler during a cold

winter. See Brief of the United States as Amicus Curiae at

19 n. 16. Whether the condition is a temporary problem that

Officials have attempted to remedy, or cruel and unusual

punishment, can only be determined by examination of the

State of mind and actions of the named defendants.

Petitioner's proposed standard would subject officials to strict

liability for any equipment failure. Consequently, under

Petitioner's proposed standard, state officials, despite all

good faith efforts to maintain decent living conditions for

inmates in their state's detention facilities, face the possibility

of successfui litigation that reasonably could include

damages for actions beyond their control. This result is

unquestionably in conflict with this Court’s precedents and

the basic precepts of the Eighth Amendment.

B. Prison Conditions That Are Not imposed In

A Wanton And Obdurate Manner Do Not

Violate The Eighth Amendment Prohibition

Against Cruel And Unusual Punishment

Not every governmental action affecting the interests or

well being of a prisoner is subject to Eighth Amendment

scrutiny. As this Court in Ingraham v. Wright, 430 U.S. 651

(1977) stated: “After incarceration, only the ‘ “unnecessary

and wanton infliction of pain” ’. . . constitutes cruel and

unusual punishment forbidden by the Eighth Amendment.”

Id. 430 U.S. at 670 (quoting Estelle v. Gamble, 429 USS. at

103 and Gregg v. Georgia, 428 U.S. at 173). In Whitley v.

Albers, this Court clarified that underlying the decision in

ee,

Estelle v. Gamble was the following understanding of the

Cruel and Unusual Punishment Clause: “[t]o be cruel and

unusual punishment, conduct that does not purport to be

punishment at all must involve more than ordinary lack of

due care for the prisoner's interests or safety.” Whitley v.

Albers, 475 U.S. at 319. The Court stated that harsh conditions

are part of the price convicts must pay for their offenses

against society. /d. Not every hardship or harsh act will

constitute cruel and unusual punishment. Rhodes v.

Chapman, 452 U.S. at 347.

1. Where prison officials have provided for

inmates’ basic human needs prison officials

could not have been deliberately indifferent

In Estelle v. Gamble, the Court concluded that “deliberate

indifference to serious medical needs of prisoners constitutes

the ‘unnecessary and wanton infliction of pain,’ proscribed

by the Eighth Amendment.” 429 U.S. at 104 (citation omitted).

The Court clarified that “an inadvertent failure to provide

medical care can not be said to constitute ‘an unnecessary

and wanton infliction of pain’ or to be ‘repugnant to the

conscience of mankind.’ ” /d. at 105-06.

Even if this Court is inclined to review Petitioner's

cunfinement claims under a deliberate indifference standard,

Respondents’ actions evidence good faith efforts that

unquestionably preciude recovery by Petitioner. (J.A. 40-42,

Friend Affidavit), (J.A. 43-44, Patton Affidavit). See infra pp.

41-43. Respondents’ efforts herein, when compared to Estelle

v. Gamble (blatant refusal to provide medical care to an

inmate who repeatedly complained of a back injury),

evidences an absence of behavior that was deliberate or

indifferent. Based on the factual record Respondents’ actions

can not rise to the level cognizable under the Eighth

Amendment “deliberate indifference” standard.

2. After Whitley v. Albers all Eighth Amendment

claims must be evaluated under a wanton and

obdurate state of mind standard

Whitley v. Albers marked a new era in Eighth Amendment

jurisprudence. The Whitley Court clarified that a state of mind

analysis governs ail varieties of Eighth Amendment claims.

The Whitley Court carefully pointed out:

[i}t 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,

supplying medical needs, or restoring official

control over a tumultuous cellblock.

475 U.S. at 319 (emphasis added)."* In Whitley the Court

rejected the application of negligence standards to Eighth

Amendment claims. “We think the Court of Appeals effectively

collapsed the distinction between mere negligence and

wanton conduct that we find implicit in the Eighth

Amendment. Only if ordinary errors of judgment could make

out an Eighth Amendment claim would this evidence create

a jury question.” Whitley v. Albers, 475 U.S. at 322. See also

Daniels v. Williams, 474 U.S. 327, 328 (1986) (“the Due

Process Clause is simply not implicated by a negligent act

of an official causing unintended loss of or injury to life,

liberty, or property”) (emphasis in original); Davidson v.

Cannon, 474 U.S. 344, 348 (1986) (“the protections of the

Due Process Clause, whether procedural or substantive, are

simply not triggered by lack of due care by prison officials”)."*

‘* Justice O'Connor, joined by Rehnquist C.J., and Kennedy J.,

subsequently objected to the Second Circuit's attempt to limit Whitley

to full-blown prison riots. Stubbs v. Dudley, 849 F.2d 83 (2d Cir. 1988),

cert. denied, 489 U.S. 1034, 109 S. Ct 1095 (1989) (mem.) (O'Connor

J., dissenting).

'* Since “the concerns underlying the Due Process Clause are broader

than those underlying the Eighth Amendment,” Davidson v. Cannon,

474 U.S. at 355 n. 3 (Blackmun J., dissenting), it is clear that if negligence

could not state a cause of action under the Due Process Clause, likewise,

it could not state a cause of action for any type of Eighth Amendment

claim.

3. Wanton and obdurate behavior for Eighth

Amendment conditions of confinement claims

requires a showing of malice

The question remaining for examination by this Court”

is whether the Sixth Circuit applied the appropriate standard

in reviewing the conditions at HCF. Petitioner spends much

time attempting to topple a strawman he has created by

mischaracterizing the Sixth Circuit's opinion. Petitioner

would have this Court believe that the Sixth Circuit applied

the Whitley v. Albers “malicious and sadistic for the very

purpose of causing harm” analysis when examining the

conditions at HCF. Brief of Petitioner at 13-20. The Sixth

Circuit actually applied the “obduracy and wantonness”

analysis from Whitley:

Initially, it is noteworthy that we have applied

20 Respondents recognize “[T}he ‘decision to grant certiorari represents

a commitment of scarce judicial resources with a view to deciding

the merits . . . of the questions presented in the petition.’ " City of

Canton, Ohio v. Harris, 109 S. Ct. 1197, 1292 (1989) (citing St. Louis

v. Praprotnik, 485 U.S. 112 (1988) (quoting Oklahoma City v. Tuttle,

471 U.S. 808, 816, reh’g denied, 473 U.S. 925 (1985)). Ho wever, a careful

review of the lower court's opinion reveals that, regardiess of the

outcome, the parties herein will not be directly affected. The lower

court, after reviewing all the evidence concluded: “At best, appellants’

claim evidences negligence on appellees’ parts in implementing

standards for maintaining conditions. Negiigence, clearly, is inadequate

to support an eighth amendment claim.” Wilson v. Seiter, 893 F.2d at

867 (J.A. 73) (emphasis added).

Since it is clearly established that negligence can not state a claim

for violation of the Eighth Amendment, see supra p.25, consideration

of this issue would amount to an advisory opinion, a result which has

consistently been rejected by this Court See Webster v. Reproductive

Health Services, 109 S. Ct. 3040, 3050 (1989). This case does not present

the Court with the kind of factual basis the Court normally requires

as a predicate for adjudication of a novel and serious constitutional

issue. See Estelle v. Gamble, 429 U.S. at 115 (Stevens, J., dissenting).

Consequently, Respondents question whether certiorari has been

improvidently granted. See Respondents’ Brief in Opposition to

Certiorari at 18.

Whitley's “obduracy and wantonness” standard to

eighth amendment challenges to confinement

conditions. In Birrell v. Brown, 867 F.2d 95€ (6th

Cir. 1989), we noted that “[iJn addition to producing

evidence of seriously inadequate and indecent

Surroundings, a plaintiff must also establish that

the conditions are the result of recklessness by

prison officials and not mere negligence or

oversight.” /d. at 958.

Wilson v. Seiter, 893 F.2d at 866 (J.A. 71).

Nowhere in the entire text of the lower Court’s opinion

does the term “sadistic” appear. The court analyzed the

affidavits and counter-affidavits first under Rhodes v.

Chapman and then under the Whitley v. Albers “wantonness

and obduracy” standard. In summary the court stated:

“Nothing in the appellants’ affidavits implies that the

appellees used confinement conditions to punish the

appellants. To the contrary, the evidence shows action on

the appellees’ behalf to maintain decent conditions at HCF.”

Wilsor v. Seiter, 893 F.2d at 867 (JA. 73). The court

immediately thereafter stated: “Additionally, the Whitley

Standard of obduracy and wantonness requires behavior

marked by persistent malicious cruelty.” /d. Apparently, it

is this single sentence that comprises the focus of Petitioner’s

challenge.

No interpretation of the lower court's opinion can lead

to the conclusion that the Whitiey “malicious and sadistic”

Standard was utilized in evaluating the conditions at HCF.

A more reasonable interpretation of the lower court’s decision

evidences careful adherence to the Whitley “wantonness

and obduracy” standard, requiring something less than

“malicious and sadistic” and more than mere negligent

conduct.

Petitioner argues that there are only two poss ble

approaches to Eighth Amendment claims, the “deliberate

indifference” or the “malicious and sadistic” intent standards.

Brief of Petitioner at 14-15. This conclusion is unreasonable

in light of the Court’s guidance for analyzing Eighth

Amendment challenges. In Rhodes v. Chapman, 452 U.S.

at 345-46, the first conditions case considered by the Court,”

it was stated that “The Eighth Amendment, in only three

words, imposes the constitutional limitation upon

punishments: they cannot be ‘cruel and unusual.’ The Court

has interpreted these words ‘in a flexible and dynamic

manner,’ Gregg v. Georgia, 428 U.S. 153, 174 (1976) (joint

opinion).” Clearly, the Court intended for the Cruel and

Unusual Punishment Clause to be applied in a dynamic and

fluid manner.

it is “ ‘obduracy and wantonness’ not inadvertence or error

in good faith, that characterize the conduct prohibited by

the Cruel and Unusual Punishments Clause . . .” Whitley

v. Albers, 475 U.S. at 319. How the terms “obduracy and

wantonness” should be viewed in the context of a prison

conditions case has yet to be directly defined by this Court.

Petitioner argues that either no state of mind analysis or,

alternatively, a “deliberate indifference” standard, should

define the standard of review in the prison conditions context.

Petitioner advocates application of a “deliberate

indifference” standard arguing a supposed lack of security

concerns to be weighed by prison officials in conditions

cases. Consequently, Petitioner argues, this case should be

viewed as more akin to a medical ciaim that uses “deliberate

indifference”, than a riot claim that uses @ “malicious and

sadistic for the very purpose of causing harm” standaru.

Although this argument has some surface appeal, it fails to

recognize that many of the claims comprising conditions

challenges inevitably encompass security-concerns. See

supra p. 19.

Typically, the use of “deliberate indifference” to judge the

conduct of prison officials has been limited to cases involving

2! In Rhodes v. Chapman, the Court examined for the first time a dispute

over conditions of confinement. 452 U.S. at 345. In the only conditions

case previcusly heard by this Court, Hutto v. Finney, the state prison

administrators admitted that the conditions constituted crue! and

unusual punishment. Rhodes v. Chapman, 452 U.S. at 345 n. 11.

personal injury of a physical nature including either failure

to protect which has led to injury, or failure to provide medical

care to treat a serious medical need which led to injury.

In either failure to protect or medical claims the result is

a physical injury with concomitant pain. Conditions cases,

on the other hand, while they may involve discomfort, do

not involve the detriment to bodily integrity, pain, injury, or

loss of life typically found in a failure to protect or medical

claim. Conditions which are merely unpleasant, even if

intensely so, are not subject to Eighth Amendment scrutiny.

Rhodes v. Chapman, 452 U.S. at 348. A condition of

confinement, consequently, should not be elevated to the

level of a constitutional question unless it is created or

maintained by a prison administrator with malicious intent.

Moreover, application of the “deliberate indifference”

standard in a conditions case could easily conflict with two

long recognized concepts of the Court. First, “a prison’s

internal security is peculiarly a matter normally left to the

discretion of prison administrators.” Rhodes, 452 U.S. at 349

n. 14; Whitley v. Albers, 475 U.S. at 321. Second, “prison

administrators therefore should be accorded wide-ranging

deference in the adoption and executior of policies and

practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security.” Bell v. Wolfish, 441 U.S. at 547.

Prison officials should not be subject to liability under the

Eighth Amendment for prison conditions absent a showing

of malicious conduct. Malice is a concept that is subsumed

within the “obduracy and wanionness” test. The term

“wanton” appropriately encompasses a malicious act. It was

used for that purpose by the Whitley Court, and the definition

of “wanton” also incorporates an element of malice:

Wanton: Reckless, heediess, malicious,

characterized by extreme recklessness or

foolhardiness; recklessly disregardful of the rights

or safety of others or of consequences.

Black’s Law Dictionary 1582 (6th ed. 1990) (emphasis added).

“Malice,” the root word from which “malicious” takes its

meaning, has been defined in a legal sense, in recent years

to mean: |

Malice: The intentional doing of a wrongful act

without just cause or excuse, with an intent to inflict

an injury or under circumstances that the law will

imply an evil intent. . . .Malice in law is not

necessarily personal hate or ili will, but it is that

state of mind which is reckless of law and of the

legal rights of the citizen.

Black's Law Dictionary 956-57 (6th ed. 1990).

Even if this Court focuses on the statement that “obduracy

and wantonness requires behavior marked by persistent

melicious cruelty,” Wilson v. Seiter, 893 F.2d at 867 (J.A.

73) (emphasis added), independent from the balance of the

lower court's opinion, this standard serves to strike a needed

balance. Conditions of confinement take into account issues

that are subjective and open to interpretation. While prisons

are traditionally far from luxurious the subjective nature of

claims pertaining to conditions of confinement mandate the

need for a test giving wide deference to prison officials

charged with the responsibility of running a penal facility.

The lower court decided the appropriate analysis, in light

of the “wantonness and obduracy” standard, should

encompass two essential elements. First, the condition had

to be "persistent”, reasonably meaning something more than

an isolated act or omission. It is reasonable to require more

than an isolated act or omission to impose liability in a

conditions case.” To hold otherwise would permit liability

22 See City of Canton, Ohio v. Harris, 109 S. Ct 1197, 1210 (1989)

(O’Connor J., concurring in part and dissenting in part) (“As the authors

of the Ku Klux Klan Act themselves realized, the resources of local

government are not inexhaustible. The grave step of shifting of those

resources to particular areas where constitutional violations are likely

to result through the deterrent power of § 1983 should certainly not

be taken on the basis of an isolated incident”). See also McGhee v.

Foltz, 852 F.2d 876, 880 (6th Cir. 1988) (citing Withers v. Levine, 615

F.2d 158, 161 (4th Cir), cert. denied, 449 U.S. 849 (1980)); Bass v.

Jackson, 790 F.2d 260, 262-63 (2d Cir. 1986); Woodhous v.

Commonwealth of Virginia, 487 F.2d 889, 890 (4th Cir. 1973).

for an isolated act or omission resulting from “inadvertence”

or an “error in good faith” contrary to the holding of Whitley

v. Albers, 475 U.S. at 319.% Second, the condition must result

from behavior which was “maliciously cruel.” Requiring a

showing of a malicious state of mind provides deference

to the day to day decision making necessary to allow prison

Officials to operate a penal facility. These two elements

together serve to strike a balance, allowing the court to

examine prison officials’ behavior in light of their knowledge

of deficient conditions, actions taken to cure the deficient

conditions, and any barriers to action, financial or otherwise,

that would impact on the ability to cure the deficient

conditions.

Claims of discomfort cannot state a constitutional

deprivation. The Eighth Amendment is not a protection

against petty complaints, and prisoners should not be

encouraged to use the federal courts as arbiters of

grievances that amount only to inconveniences in their living

environment. States can forever improve the quality of living

conditions by increasing the amount of money spent on a

detention facility. However, “a state’s decision to maintain

at a reasonable level the quality of food, liviig space, and

medical care rather than improve or increase its provisions

of those necessities serves a legitimate purpose: to

reasonably limit the cost of detention.” Hamm v. DeKalb

County, 774 F.2d at 1573. See also Wright v. Rushen, 642

F.2d 1129, 1134 (9th Cir. 1981) (costs often constrain officials’

ability to act).

The officials at HCF have provided Petitioner with “the

minimal civilized measure of life’s necessities” mandated

under the Eighth Amendment as evidenced by “the

#2 Some conditions of confinement can only rise to the level of cruel

and unusual punishment if they are “persistent” and imposed

maliciously. For example, deprivation of heat, during the winter, could

amount to an Eighth Amendment violation based on the duration and

reason for the deprivation. If, however, the deprivation was premised

on equipment failure, and was remedied by officials in good faith, no

persistence would exist and no liability shou!d be found.

contemporary standard of decency,” Rhodes v. Chapman,

452 U.S. at 347, and Respondents are not required to provide

more. Petitioner has not been denied any basic human

necessity upon which an Eighth Amendment claim could

be premised. Simply stated, Petitioner is dissatisfied with the

living conditions at HCF, in particular with the dormitory style

arrangement. But his claims, even if taken as truthful, were

properly characterized by the lower court as “‘{alJt

best, . . . evidenc[ing] negligence on appellees’ parts in

implementing standards for maintaining conditions.” Wilson

v. Seiter, 893 F.2d at 867 (J.A. 73). Both the persistent nature

of the complaint and the intent of the state official are

necessary and relevant inquiries in a 42 U.S.C. §1983 action.”

Petitioner would leave this Court with the impression that

three circuits (First, Ninth, and Eleventh) have adopted a

24 A litigant bringing a post- Whitley Eighth Amendment claim must allege

acts constituting “obduracy and wantonness” on the part of a

governmental official. Whitley v. Albers, 475 U.S. at 319. The elements

of the cause of action are not conditioned on whether injunctive or

damage relief is sought Duchesne v. Sugarman, 566 F.2d 817, 831

(2d Cir. 1977) stated:

A §1983 plaintiffs burden does not vary depending upon

whether he is seeking injunctive or monetary relief, the

elements of the cause of action remain precisely the same.

In both instances he must prove that the defendant caused

him to be subjected to a deprivation of constitutional rights.

Section 1983 was enacted by Congress in 1871 to address intentional

acts of violence where “those who represent a state in some capacity

were unable or unwilling to enforce a state law.” Monroe v. Pape, 365

U.S. 167, 175-76 (1961) (emphasis in original). Thus, from its very inception,

the element of some degree of intent has been required to state a §1983

claim. Further, since intent is a necessary element to prove liability in

a 42 U.S.C. §1983 action for violation of the Eighth Amendment prohibition

on cruel and unusual punishment, whether the action is for damages

or injunctive relief, Petitioner's argument that different standards should

be applied based on the relief sought must be rejected. Brief of Petitioner

at 23 n. 22; Brief of United States as Amicus Curiae at 7 n. 3. Moreover,

it must be kept in mind that Petitioner herein requests both damages

and injunctive relief. (JA. 8-9, Amended Compiaint, Vil 441 -6).

33 :

“deliberate indifference” standard in reviewing prison

conditions cases.” Brief of Petitioner at 19-20 & nn. 18-20.

Further, Petitioner would lead this Court to believe that the

Sixth Circuit applied a standard rejected by five other circuits

(Fourth, Fifth, Eighth, Tenth and District of Columbia) in prison

condition cases.” Brief of Petitioner at 15-19 & nn. 13-17.

These statements are based upon a mischaracterization of

the lower court's decision and an imprecise reading of the

28 Petitioner asserts that the First, Ninth, and Eleventh Circuits applied

the “deliberate indifference” standard to conditions of confinement

cases. Brief of Petitioner at 19 nn. 18-20. However, it is revealing that

the cases referred to by Petitioner are primarily not conditions of

confinement cases. See Cortes-Quinones v. Jimenez-Nettleship, 842

F.2d 556 (1st Cir. 1988), cert. denied, 488 U.S. 823 (1988) (psychiatricaily

disturbed inmate killed after transfer to general population, claim of

failure to protect); Noll v. Carison, 809 F.2d 1446 (9th Cir. 1987) (dismissal

of pro se inmate complaint for failure to protect); Powel! v. Lennon,

914 F.2d 1459 (11th Cir. 1990) (potential asbestos exposure, medical

claim); Evans v. Dugger, 908 F.2d 801 (11th Cir. 1990) (paraplegic inmate

needing special facilities to accomodate his medical condition, court

equivocal about whether to characterize as a medical or conditions

claim).

28 ~— Petitioner argues that the Fourth, Fifth, Eighth, Tenth, and District

of Columbia Circuits reject an application of the “malicious and sadistic”

standard in a prison conditions context. However, the cases cited from

the Eighth, Tenth and District of Columbia Circuits in support of this

proposition are not conditions cases. Wright v. Jones, 907 F.2d 848

(8th Cir. 1990) (failure to protect case involving an inmate assaulted

by another inmate, court applied “reckless disregard of a known risk”

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

(failure to protect case involving the death of a convict awaiting

sentencing); Morgan v. District of Columbia, 824 F.2d 1049 (D.C. Cir.

1987) (failure to protect case involving an inmate assaulted by another

inmate). The facts in the Fourth Circuit case relied upon by Petitioner,

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

the court applied a deliberate indifference standard, the defendant acted

“wantonly and obdurately” by intentionally refusing to provide adequate

useable toilet facilities for a paraplegic inmate. While the Fifth Circuit

in Foulds v. Corley, 833 F.2d 52 (5th Cir. 1987) declined to extend

the Whitley “malicious and sadistic” standard to a conditions case,

the Court went on to “apply the now traditional eighth amendment

standard: was the infliction of pain ‘unnecessary and wanton?’ See,

@.g., Whitley, 475 U.S. at 319.” Foulds, 833 F.2d at 55.

circuit court cases. The cases relied on by Petitioner in six

of the eight circuits are not conditions cases. See Brief of

Petitioner at 15-19, nn. 13-17.

Upon closer examination of the circuit courts’

consideration of Eighth Amendment conditions cases, it is

clear that the lower court's use of a “persistent malicious

cruelty” standard is not inconsistent with the greater weight

of authority. Moreover, the Sixth Circuit is not alone in its

extension of a modified Whitley v. Albers test to other Eighth

Amendment contexts. At least three other circuits have

extended the Whitley Court's reasoning.

In Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988) the

Second Circuit considered a use of force Eighth Amendment

claim. The court applied the Whitley standard even though

Whitley was distinguishable on its facts, since Corselli did

not involve a full-scale prison riot. “[Njevertheless, the test

under Whitley applies, that is, ‘whether the [prison security]

measure taken inflicted unnecessary and wanton pain and

suffering ultimately turns on “whether force was applied in

a good faith effort to maintain discipline or maliciously and

sadistically for the very purpose of causing harm.” ' ” 842

F.2d at 26 (bracketed material in original) (citing Whitley, 475

US. at 320-21; Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir.), cert. denied, 414 U.S. 1033 (1973)). See also Stubbs

v. Dudley, 849 F.2d 83 (2d Cir. 1988), cert. denied, 489 U.S.

1034, 109 S. Ct. 1095, 1097-98 (1989) (mem.) (O’Connor J.

dissenting).

Beyond the use of force context, the Eighth and Eleventh

Circuits have extended the Whitley analysis to the areas of

conditions and compliance with prison rules, respectively.

in Givens v. Jones, 900 F.2d 1229 (8th Cir. 1990), an inmate

claimed that noise and fumes from remodeling were causing

him migraine headaches in violation of the Eighth

Amendment. The Eighth Circuit, finding no constitutional

violation, referred to Whitley and stated: “[dJisturbing prison

conditions that came about by inadvertence or error in good

faith, however, do not constitute constitutional violations,

even though the conditions may involve the infliction of

a ee

discomfort and pain.” Givens v. Jones, 900 F.2d at 1234.

Moreover, the court proceeded to find: “Givens has not

alleged conduct . . . that rose to the level of a constitutional

violation. Givens has not claimed that the noise and fumes

were the result of malicious intent or even reckless disregard

for his well being.” /d. (emphasis added). See also Holloway

v. Lockhart, 813 F.2d 874, 879 (8th Cir. 1987) (applying Whitley

“unnecessary and wanton pain and suffering” standard to

the use of tear gas to end an occupation of a prison).

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

considered whether temporary denial of water to an inmate

to obtain compliance with work regulations constituted an

Eighth Amendment violation. The circuit court affirmed the

dismissal of the inmate’s complaint and applied the Whitley

“malicious and sadistic” analysis to this non-riot, non-use

of force action.

Thus, where such immediate coercive action is

necessary, the conduct of prison officials does not

constitute cruel and unusual punishment within the

meaning of the eighth amendment if it was

undertaker not maliciously or sadistically, but in

a good faith effort to restore order or prevent a

disturbance, and if the force used was reasonable

in relation to the threat of harm or disorder apparent

at the time.

813 F.2d at 325 (emphasis added).

The Sixth Circuit defined “wanton and obdurate” in a

manner that allows courts to look at whether the conditions

at issue are “persistent” or ongoing in nature, rather than

an isolated act or isolated omission, and whether the behavior

amounts to “malicious cruelty.” This test is well founded and

supported by the need to examine prison officials’ knowledge

of the alleged deficient conditions, actions taken to cure the

conditions, and any barriers to action that affect the officials’

ability to cure the alleged deficient conditions.

The Eighth Amendment is not a basis for broad prison

reform. Inmates can not expect the amenities, conveniences

and conditions that one might find desirable. “[T}he

Constitution does not mandate comfortable prisons, and

prisons ... which house persons convicted of serious crimes,

cannot be free of discomfort.” Rhodes v. Chapman, 452 U.S.

at 349. The Sixth Circuit's use of “persistent malicious cruelty”

in reviewing a prison conditions case strikes the needed

balance, protecting inmates’ constitutional rights, while

allowing prison officials flexibility to deal with the practical

difficulties of running our nation’s prison systems.

ll. SUMMARY JUDGMENT WAS PROPERLY

GRANTED IN FAVOR OF THE

RESPONDENTS.

Deciding cases on summary judgment conserves judicial

resources and fosters prompt resolution of disputes. In light

of the heavy congestion of cases in the judicial system,”’

summary judgment is an important tool for expeditiously

As the Sixth Circuit has noted: “in recent years an increasi |

suahar@ ieee atte Ghee teas ene ce wee

by lawyers and pro se. Many of these suits waste the time of public

Officials, lawyers, and the courts. Minimum pleading requirements are

needed, even for pro se plaintiffs, whose lawsuits now comprise more

than 1000 or almost 25% of the appeals filed in this Court.” Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989). See also States Attorneys’

General Brief of Amicus Curiae.

Petitioner is a classic example of a recreational litigator, contributing

to the congestion of federal courts. Earlier this year, the Sixth Circuit

Court of Appeals noted that Petitioner had filed over 70 appeals since

1976 and that almost all of the filings had either been frivolous or

premature. Pearly Wilson v. George Denton, et al., Case Nos. 89-3454

and 89-3978 (6th Cir. March 20, 1990) unreported, cert. denied, 110

S. Ct. 2217 (1990), (reproduced in appendix A. 6-10.) In the last two

years alone, Petitioner has filed 24 appeals in the Sixth Circuit. /d.

The Sixth Circuit affirmed a fine under Fed. Rule Civ. P. 11 against

Petitioner for abusive conduct and penalized Petitioner by requiring

a partial filing fee for all future cases. /d. at (A.9). While Petitioner claims

that the conditions of confinement created hardships as to “reading,

writing and studying,” (J.A. 4, Amended Complaint 49) his numerous

filings would controvert any allegation that conditions at HCF denied

Petitioner access to the courts.

a re eee ee or ot

resolving those cases in which no genuine issue of material

fact exists. “Summary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather

as an integral part of the Federal Rules as a whole, which

are designed ‘to secure the just, speedy and inexpensive

determination of every action.’” Celotex Corp. v. Catrett, 477

U.S. 317, 327 (1986) (quoting Fed. Rule Civ. P. 1).

Summary judgment preserves the rights of plaintiffs to have

their disputes heard and also, in cases such as this one,

enables judges to determine without a trial cases in which

no genuine issue of material fact exists.

Rule 56 must be construed with due regard not

only for the rights of persons asserting claims and

defenses that are adequately based in fact to have

those claims and defenses tried to a jury, but also

for the rights of persons opposing such claims and

defenses to demonstrate in the manner provided

by the Rule, prior to trial, that the claims and

defenses have no factual basis.

Celotex Corp. v. Catrett, 477 U.S. at 327.

Preservation of judicial resouces is even more important

for the prompt resolution of Eighth Amendment claims when

pro se plaintiffs, who are entitled to liberal construction of

their pleadings, make conclusory allegations that they have

been subjected to cruel and unusual punishment. Courts

must be able to fairly and expeditiously determine cases

in which there exists no genuine issue of material fact

regarding the constitutionality of conditions in a detention

facility. Summary judgment acts to preserve the rights of

prisoners asserting claims that are adequately based in fact

to have access to the courts, and yet still preserves the rights

of prison officials to avoid trial of claims that have no factual

basis.

it is, therefore, imperative that the elements required to

establish a constitutional violation under the Eighth

Amendment include an inquiry into the good faith efforts

made by prison officials to provide the prisoner with habitable

conditions. It is unavoidable that prison conditions will be

objectionable to prisoners. If a prisoner can defeat a motion

for summary judgment merely by making conclusory

statements by affidavit that mirror a conclusory complaint,

while not stating ‘acts substantiating his claim, summary

judgment will never be available in a conditions case.

Use of a deliberate indifference standard for a prison

conditions case fails to satisfy the goals of promoting judicial

efficiency while protecting the rights of all parties to litigation.

It is reasonable to hold a prison official to a deliberate

indifference standard when examining official actions that

actually cause pain or detriment to bodily integrity, e.g. lack

of medical care or failure to protect claims. However, when

an Eighth Amendment claim contests continuing conditions

of confinement which inherently involve varying degrees of

discomfort and which require discretionary decisions by state

Officials, the standard for review by a federal court should

accord more deference to the prison official. A “persistent

malicious cruelty” standard accords the appropriate

deference to the prison officials’ decision making function

in conditions cases which challenge actions which do not

cause actual pain. Additionally, this standard promotes

judicial efficiency while still preserving the judiciary’s duty

to protect the constitutional rights of the imprisoned.

Rule 56(c) of the Federal Rules of Civil Procedure provides

that a party is entitled to summary judgment “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” By definition,

every lawsuit involves a dispute. To grant summary judgment,

a judge must determine whether the dispute involves a

“genuine” issue as to a “material” fact. The Court has

established that “the substantive law will identify which facts

are material. Only disputes over facts that might affect the

outcome of the suit under the governing law will properly

preciude the entry of summary judgment. Factual disputes

that are irrelevant or unnecessary will not be counted.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

To create a “genuine” issue of fact, the evidence must be

more than “merely colorable.” Anderson v. Liberty Lobby,

Inc., 477 U.S. at 249 (citing Dombrowski v. Eastland, 387

U.S. 82 (1967) (per curiam)). “The mere existence of a scintilla

of evidence in support of the plaintiffs position will be

insufficient, there must be evidence on which the jury could

reasonably find for the plaintiff.” Anderson v. Liberty Lobby

Inc., 477 U.S. at 252.

To be entitled to summary judgment, Respondent need

not negate Petitioner's unsubstantiated claims and

immaterial facts. Celotex Corp. v. Catrett, 477 U.S. at 323.

Just as a court may sua sponte grant summary judgment

if claims are factually unsuppported, so may summary

judgment be granted without Respondent specifically

rebutting each immaterial fact and unsupported claim

Petitioner sets forth. /d. at 326. Respondent need only “point

[ ] out to the district court—that there is an absence of

evidence to support the nonmoving party's case.” /d. at 325.

Here, the boundary of material facts is drawn by the Eighth

Amendment to the United States Constitution and the relevant

case law. To establish an Eighth Amendment claim of cruel

and unusual punishment, a prisoner must allege and prove

the following material facts: (1) that the challenged action

is punishment, Bell v. Wolfish, 441 U.S. 520, see supra pp.

9-12, (2) that the punishment seriously deprives the inmate

of basic human needs, Rhodes v. Chapman, 452 U.S. at 347,

see supra pp. 13-23, and (3) that the prison officials acted

with a wanton and obdurate state of mind. Whitley v. Albers,

475 U.S. 312, see supra pp. 24-36.

Petitioner presented no facts from which a reasonable jury

could infer that the complained of conditions constitute

“punishment” prohibited by the Eighth Amendment. All of

the complained of conditions are rationally related to

legitimate security, administrative and fiscal concerns, or are

the inevitable result of the climate conditions affecting all

Ohio residents.

Assuming, arguendo, that Petitioner had presented

evidence to create a genuine issue as to whether the

conditions complained of constituted punishment, Petitioner

was also required to produce sufficient evidence for a

reasonable jury to conclude that the conditions constituted

cruel and unusual punishment. To create a genuine issue

of fact, Petitioner was required to produce evidence that

Respondents failed to provide Petitioner with the “minimal

civilized measure of life’s necessities.” Rhodes v. Chapman,

452 U.S. at 347. Petitioner's personal sensibilities do not

define the threshold level at which an unpleasant condition

becomes a constitutional violation. Ine Eighth Amendment

“draw(s] its meaning from the evolving standards of decency

that mark the progress of a maturing society.” Rhodes v.

Chapman, 452 U.S. at 346 (quoting Trop v. Dulles, 356 U.S.

86, 101 (1958)). An Eighth Amendment violation involves more

than harsh conditions. Rhodes v. Chapman, 452 U.S. at 347-

48; supra pp 13-14, 24. Petitioner's affidavits contain few

allegations of objective facts which support his claim of

unconstitutional conditions. The affidavits are replete with

conclusory statements such as “inadequate heat,”’

“ventilation is totally inadequate,” “extermination is totally

inadequate.” (J.A. 32-35). These conclusory allegations do

not create a genuine issue of fact. The question of

genuineness requires Petitioner to show something more

than a “metaphysical doubt” about a material fact. Matsushita

Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Petitioner failed to make such a snowir.g here.

Petitioner claims that there are factual disputes as to

whether the conditions at HCF provide Petitioner with the

minimal civilized measure of life’s necessities, precluding

summary judgment. Brief of Petitioner at 30-33. Petitioner

argues that “[t]he allegations of the petitioner's affidavits,

taken together, put in issue whether petitioner has been

deprived of the ‘minimal civilized measure of life’s necessities’

with regard to food, sanitation, and shelter under Rhodes.”

id. at 30. By arguing that the conditions were “put in issue,”

Petitioner seems to be applying a standard applicable to

a motion to dismiss, not a motion for summary judgment.

To survive a motion for summary judgment, Petitioner must

ae wet

do more than “put in issue” the conditions; he must show

sufficient facts to allow a jury to conclude there was a

constitutional violation. Anderson v. Liberty Lobby, Inc., 477

U.S. at 256-57.

Petitioner argues that it was error for the lower court to

dispose of Petitioner's claims of overcrowding, housing with

mentally ill inmates, and inadequate cooling on summary

judgment because the conditions constitute Eighth

Amendment violations when “taken as a whole” or

considered under the “totality of the conditions.” Brief of

Petitioner at 36-39. Petitioner attempts to argue that even

if each condition is constitutional when considered alone,

they become unconstitutional when taken as a whole. This

synergistic argument, that the whole is somehow

unconstitutional while the component conditions are not, is

inconsistent with the implications of Rhodes v. Chapman,

see supra pp. 21-22, and is not a genuine issue that can

preclude summary judgment. To defend against a motion

for summary judgment Petitioner was required to produce

sufficient evidence on each of the allegedly unconstitutional

conditions to permit a reasonable jury to find that the

condition denied Petitioner of the minimal civilized measure

of life’s necessitites. The court of appeals properly found

that Petitioner failed to meet this burden on three claims,

overcrowding, inadequate cooling, and housing with

mentally ill inmates. Wilson v. Seiter, 893 F.2d at 865 (J.A.

68-70).

Whether prison officials acted with “obduracy and

wantonness” rather than through “inadvertance” or “an error

in good faith” is also a material fact which a prisoner must

establish to prevail on a claim of cruel and unusual

punishment in violation of the Eighth Amendment. Whitley

v. Albers, 475 U.S. at 319. in response to Respondents motion

for summary judgment, Petitioner was required to produce

evidence to raise a genuine issue as to whether Respondents

acted obdurately and wantonly. The court of appeals properly

applied this analysis. “Having concluded that a showing of

obduracy and wantonness is material to appellants’ claims,

the critical, and determinative, question becomes whether

appellants’ affidavits place this fact in issue.” Wilson v. Seiter,

893 F.2d at 866 (J.A. 70).

The only evidence which Petitioner claims supports his

position that Respondents acted obdurately and wantonly

are the allegations in Petitioner's affidavit that approximately

forty-five days prior to filing his complaint, he sent a letter

to Respondents complaining about the conditions of his

confinement.” The letter recites Petitioner's dissatisfaction

with dormitory life at HCF. He complained about “the smoking

and body odors of other inmates” (A. 15) and that “the beds

at HCF are far too close” (A. 15). Petitioner objected to the

institution of the unit management system, which Petitioner

claimed “is non-workable.” (A. 12-13). Petitioner claims

“there is no heating system in ‘C’ Dormitory.” (A. 15). Petitioner

alleged he was housed among inmates he claimed were

physically and mentally ili, but the letter cites no specific

injuries Petitioner or anyone else suffered as a result. The

letter contains no complaints whatsoever about unsanitary

eating conditions, unclean restrooms, insect infestation,

excessive noise or inadequate cooling, allegations which

Petitioner subsequently asserted in his lawsuit.

Petitioner alleges that Respondent Seiter did not reply to

his letter, but admits Respondent Humphreys responded in

writing and referred a copy of the letter to Mr. Friend, the

unit manager.” (J.A. 32-33, Wilson Affidavit 4 3a, 3b).

Petitioner claims that the letter is evidence of Respondents’

28 A copy of the letter referred to in Petitioner's affidavit as Exhibit 1,

along with Exhibits 2 and 3 were not attached to the affidavit as it

appears in the Joint Appendix. (J.A. 32-33, Wilson Affidavit ¢ 3, 3a

and 3b). All three exhibits are reprocuced in the Appendix to the Brief

for Respondents. (A. 11-19).

28 ~—«- The unit management syste: used at HCF is “designed to help solve

inmate problems and deal with inmate complaints at an individual

instead of an institutional level”. (J.A. 50). Under this system, each dorm

is staffed with three professionals including a socia! worker and prison

official. A member of the team is available twelve hours a day, seven

days a week to resolve inmate concerns. (J.A. 50-51).

state of mind because, Petitioner alleges, no action was taken

to change the conditions to Petitioner's satisfaction. Brief

of Petitioner at 32. This bare allegation that Respondents

were informed of some of Petitioner's complaints and that

the complaints were not resolved to Petitioner's satisfaction

simply does not create a genuine issue of fact as to whether

Respondents acted “obdurately and wantonly.”

No reasonable jury could find that referring inmate

complaints to the unit manager, the individual responsible

for dealing with inmate complaints, was evidence of

“obdurate and wanton” behavior. In addition, Respondents’

affidavits set forth specific good faith efforts that had been

previously taken by prison officials in regard to the

complained of conditions. Homer Friend, the unit manager,

stated in his affidavit that rules are in effect to keep down

the noise level, the heaters were recently serviced and are

in good working order, the restrooms are completely cleaned

twice a day and spot cleaned as needed, and an exterminator

is brought into the institution twice each month. (J.A. 40-

42).

Petitioner did not submit evidence to contradict any of

these specific statements of fact. This uncontroverted

evidence of the prison officials’ good faith efforts to provide

the minimal civilized measure of life’s necessities precludes

a finding that Respondents’ behavior was wanton and

obdurate. Summary judgment is appropriately rendered

against a party who, like Petitioner, “fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

at 322. As the court of appeals found: “appeliants’ affidavits,

in that they fail to raise a reasonable inference of obduracy

and wantonness on the appellees’ behalf, present no genuine

issue as to that material fact.” Wilson v. Seiter, 893 F.2d at

867 (J.A. 74).

Although evidence of wanton and obdurate conduct

necessarily requires evidence of the state of mind of

Respondents, merely asserting a claim for which state of

mind is a material element does not preclude summary

judgment. In Anderson v. Liberty Lobby, Inc., 477 U.S. at 255-

56, the Court heid that summary judgment was properly

granted in a libel action brought by a public figure where

the plaintiff failed to present evidence that the defendants

acted with actual malice. The Court specifically rejected the

contention that summary judgment should seldom, if ever,

be granted if the defendant's state of mind is at issue.

Instead, the plaintiff must present affirmative

evidence in order to defeat a properly supported

motion for summary judgment. This is true even

where the evidence is likely to be within the

possession of the defendant, as long as the plaintiff

has had a full opportunity to conduct discovery.

Anderson v. Liberty Lobby, Inc., 477 U.S. at 257.

Other circuits have held that summary judgment motions

were properly granted in cases brought by prisoners where

the allegations of unconstitutional conditions of confinement

were not supported by evidence of wanton and obdurate

conduct by prison officials. In Harris v. Fleming, 839 F.2d

1232, 1235 (7th Cir. 1988), the Seventh Circuit affirmed the

trial court’s grant of summary judgment, stating: “The

defendants’ temporary neglect of Harris's needs was not

intentional, nor did it reach unconstitutional proportions.” The

Fourth Circuit, in Ruefly v. Landon, 825 F.2d 792, 793 (4th

Cir. 1987), affirmed a grant of summary judgment because

the plaintiff inmate failed to show “that the defendants

wantonly and obdurately failed to take precautions for his

safety.” Similarly, the Tenth Circuit affirmed the dismissal

of an inmate’s claim of cruel and unusual

punishment: “Plaintiff has not shown more than

inadvertence or a good faith error by defendants. . . .Piaintiff

has not shown that any defendant acted in a wanton or

obdurate manner.” : ankenship v. Meachum, 840 F.2d 741,

742-43 (10th Cir. 1958). See also Johnson v. Pelker, 891 F.2d

136, 138 (7th Cir. 1989) (defendant's “indifference” insufficient

to state a claim of cruel and unusual punishment).

It is well settled that a “pro se document is to be liberally

construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). Even

allowing a liberal construction of Petitioner's evidence,”

however, Petitioner's conclusory allegations were insufficient

to defeat Respondents’ motion for summary ‘udgment. As

this Court recently stated in Lujan v. National Wildlife

Federation, 110 S. Ct. 3177, 3188 (1990):

In ruling upon a Rule 56 motion, “a District Court

must resolve any factual issues of controversy in

favor of the non-moving party” only in the sense

that, where the facts specifically averred by that

party contradict [material] facts specifically averred

by the movant, the motion must be denied. That

is a world apart from “assuming” that general

averments embrace the “specific facts” needed to

sustain the complaint. ...The object of this provision

is not to replace conclusory allegations of the

complaint or answer with conclusory allegations

of an affidavit.

Petitioner's affidavits failed to raise a genuine issue of fact

as to whether the complained of conditions constitute

punishment, whether the conditions deprive him of the

minimal civilized measure of life’s necessities, or whether

Respondents acted “obdurately and wantonly.” The failure

to raise a genuine issue of fact as to any one of these three

elements is fatal to Petitioner's case. As Petitioner failed to

raise a genuine issue of material fact as to all of the three

elements, summary judgment was properly granted.

*° While cours give liberal construction to the pleadings of pro se

litigants, a pro se party must still set forth facts sufficient to withstand

summary judgment. Vigliotto v. Terry, 873 F.2d 1201, 1203 (9th Cir.

1989) (“No valid interest is served by withholding summary judgment

on a complaint that wraps nonactionable conduct in a jacket woven

of legal conclusions and hyperbole.”)

CONCLUSION

For all of the aforementioned reasons, this Court should

affirm the judgment of the court of appeals.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

RITA S. EPPLER

Chief, Federal Litigation Section

Counsel of Record

NANCY J. MILLER

Deputy Chief Counsel

STEVEN W. RITZ

CHERRY LYNNE POTEET

NANCY JOHNSTON

Assistant Attorneys General

30 East Broad Street, 26th Floor

Columbus, Ohio 43266-0410

(614) 466-5414

COUNSEL FOR RESPONDENTS

DECEMBER 19, 1990

A-1

APPENDIX TO BRIEF FOR RESPONDENTS

THE CONSTITUTION OF

THE UNITED STATES OF AMERICA

AMENDMENT VIII

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

OHIO REVISED CODE § 9.86

Civil immunity of officers and employees; exceptions.

Except for civil actions that arise out of the operation of

a motor vehicle and civil actions in which the state is the

plaintiff, no officer or employee shall be liable in any civil

action that arises under the law of this state for damage

or injury caused in the performance of his duties, unless

the officer's or employee’s actions were manifestly outside

the scope of his employment or official responsibilities, or

unless the officer or employee acted with malicious purpose,

in bad faith, or in a wanton or reckless manner.

This section does not eliminate, limit, or reduce any

immunity from civil liability that is conferred upon an officer

or employee by any other provision of the Revised Code

or by case law. This section does not affect the liability of

the state in an action filed against the state in the court

of claims pursuant to Chapter 2743. of the Revised Code.

A-2 -

RULES OF THE SUPREME COURT OF THE UNITED

STATES

PART Ill - JURISDICTION ON WRIT OF CERTIORARI

Rule 14

CONTENT OF THE PETITION FOR A WRIT OF CERTIORARI

1. The petition for a writ of certiorari shall contain, in

the order here indicated:

(a) The questions presented for review, expressed in

the terms and circumstances of the case, but without

unnecessary detail. The questions should be short and

concise and should not be argumentative or repetitious.

They must be set forth on the first page following the

cover with no other information appearing on that page.

The statement of any question presented will be deemed

to comprise every subsidiary question fairly included

therein. Only the questions set forth in the petition, or

fairly included therein, will be considered by the Court.

FEDERAL RULES OF CIVIL PROCEDURE

RULE 1. SCOPE OF RULES

These rules govern the procedure in the United States

district courts in all suits of a civil nature whether cognizable

as cases at law or in equity or in admiralty, with the exceptions

stated in Rule 81. They shall be construed to secure the

just, speedy, and inexpensive determination of every action.

[Amended effective October 20, 1949; July 1, 1966.]

A-3

RULE 11. SIGNING OF PLEADINGS, MOTIONS,

AND OTHER PAPERS; SANCTIONS

Every pleading, motion, and other paper of a party

represented by an attorney shall be signed by at least one

attorney of record in the attorney's individual name, whose

address shall be stated. A party who is not represented by

an attorney shall sign the party’s pleading, motion, or other

paper and state the party’s address. Except when otherwise

specifically provided by rule or statute, pleadings need not

be verified or accompanied by affidavit. The rule in equity

that the averments of an answer under oath must be

overcome by the testimony of two witnesses or of one witness

sustained by corroborating circumstances is abolished. The

signature of an attorney or party constitutes a certificate by

the signer that the signer has read the pleading, motion,

or other paper; that to the best of the signer’s knowledge,

information, and belief formed after reasonable inquiry it is

well grounded in fact and is warranted by existing law or

a good faith argument for the extension, modification, or

reversal of existing law, and that it is not interposed for any

improper purpose, such as to harrass or to cause

unnecessary delay or needless increase in the cost of

litigation. If a pleading, motion, or other paper is not signed,

it shall be stricken unless it is signed promptly after the

omission is called to the attention of the pleader or movant.

lf a pleading, motion, or other paper is signed in violation

of this rule, the court, upon motion or upon its own initiative,

shall impose upon the person who signed it, a represented

party, or both, an appropriate sanction, which may include

an order to pay to the other party or parties the amount

of the reasonable expenses incurred because of the filing

of the pleading, motion, or other paper, including a

reasonable attorney's fee.

[Amended effective August 1, 1983; August 1, 1987.]

A-4

RULE 56. SUMMARY JUDGMENT

(a) For Claimant. A party seeking to recover upon a

claim, counterclaim, or cross-claim or to obtain a declaratory

judgment may, at any time after the expiration of 20 days

from the commencement of the action or after service of

a motion for summary judgment by the adverse party, move

with or without supporting affidavits for a summary judgment

in the party’s favor upon ai! or any part thereof.

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory

judgment is sought may, at any time, move with or without

supporting affidavits for a summary judgment in the party’s

favor as to all or any part thereof.

be served at least 10 days before the time fixing for the

hearing. The adverse party prior to the day of hearing may

serve opposing affidavits. The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to

a judgment as a matter of law. A summary judgment,

interlocutory in character, may be rendered on the issue

of liability alone although there is a genuine issue as to the

amount of damages.

(d) Case Not Fully Adjudicated on Motion. if on motion

under this rule judgment is not rendered upon the whole

case or for all the relief asked and a trial is necessary, the

court at the hearing of the motion, by exemining the pleadings

and the evidence before it and by interrogating counsel, shall

if practicable ascertain what material facts exist without

substantial controversy and what material facts are actually

and in good faith controverted. It shali thereupon make an

order specifying the facts that appear without substantial

controversy, including the extent to which the amount of

damages or other relief is not in controversy, and directing

such further proceedings in the action as are just Upon

the trial of the action the facts so specified shall be deemed

established, and the trial shall be conducted accordingly.

A-5

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein. Sworn or certified copies of all papers or parts thereof

referred to in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be supplemented

or Opposed by depositions, answers to interrogatories, or

further affidavits. When a motion for summary judgment is

made and supported as provided in this rule, an adverse

party may not rest upon the mere allegations or denials of

the adverse party's pleading, but the adverse party’s

response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine

issue for trial. If the adverse party does not so respond,

summary judgment if appropriate, shall be entered against

the adverse party.

(f) When Affidavits Are Unavailable. Should it appear

from the affidavits of a party opposing the motion that the

party cannot for reasons stated present by affidavit facts

essential to justify the party’s opposition, the court may refuse

the application for judgment or may order a continuance

to permit affidavits to be obtained or depositions to be taken

or discovery to be had or may make such other order as

is just.

(g) Affidavits Made in Bad Faith. Should it appear to

the satisfaction of the court at any time that any of the affidavits

presented pursuant to this rule are presented in bad faith

or solely for the purpose of delay, the court shall forthwith

order the party employing them to pay to the other party

the amount of the reasonable expenses which the filing of

the affidavits caused the other party to incur, including

reasonable attorney's fees, and any offending party or

attorney may be adjudged guilty of contempt.

[Amended effective March 19, 1948; July 1, 1963; August

1, 1987.]

A-6

Nos. 89-3454, 89-3978

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PEARLY L. WILSON, )

) On Appeal

Plaintiff-Appeliant, ) from the United

) States District

v. ) Court for the

) Southern

GEORGE F. DENTON, ETAL. ) District of Ohio

)

Defendants-Appeliees. )

Decided and Filed March 20, 1990

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

Sixth Circuit Rule 24 limits citation to specific situations.

Please see Rule 24 before citing in a proceeding in a court

in the Sixth Circuit. If cited, a copy must be served on other

parties and the Court This notice is to be prominently

displayed if this decision is reproduced.

Before GUY and BOGGS, Circuit Judges, and GADOLA,

District Judge.*

Pearly Wilson is a pro se Ohio prisoner who appeals the

district court’s denial of a motion for relief from judgment

that he filed under Fed. R. Civ. P. 60(b). Wilson also appeals

the district court's assessment of sanctions against him under

* Honorable Paul V. Gadola, United States District Judge for the Eastern

District of Michigan, sitting by designation.

A-7

Fed. R. Civ. P. 11. These appeals have been consolidated

and Wilson’s case has been referred to a panel of the court

pursuant to Rule 9a), Rules of the Sixth Circuit. Upon

examination of the record and the briefs, the panel

unanimously agrees that oral argument is not needed in this

case. Fed. R. App. P. 34(a).

In 1976, Wilson initiated a prison conditions suit under

42 U.S.C. § 1983. In 1979, the district court entered a consent

decree that resolved all of the issues in the case except

one. Wilson's claim that he was entitled to damages because

he had not received proper medical care for an injury to

his hand was severed from the rest of the case. On August

6, 1985, the district court granted the defendants’ motion

for summary judgment on this issue. This court affirmed that

judgment on October 31, 1986, and the United States

Supreme Court denied Wilson’s petition for certiorari on

February 23, 1987.

Wilson then filed a motion to alter or amend the judgment

under Fed. R. Civ. P. 60(b)(6). On March 31, 1988, the district

court entered an order that denied Wilson’s motion. At that

time, the court also denied the defendants’ motion for Rule

11 sanctions. This court affirmed the district court’s order

on October 19, 1988 and denied Wilson’s motion for

reconsideration on December 9, 1988. The Supreme Court

denied certiorari on February 21, 1989.

Wilson then filed his second motion under Rule 60(b). The

defendants again moved for sanctions and, on May 17, 1989,

the district court entered an order that denied Wilson's motion

and granted the defendants’ motion for sanctions under Rule

11. The court subsequently ordered Wilson to pay the

defendants $200.00 for their attorney's fees. It is from these

orders that Wilson now appeals.

The district court properly denied Wilson's most recent

motion under Rule 60(b)(3) and (b)(6). First, Wilson’s allegation

of fraud under section (b)(3) was not made within one year

of the date of judgment as required by the rule. See Wood

v. McEwen, 644 F.2d 797, 801 (9th Cir. 1981), cert. denied,

A-8

455 U.S. 942 (1982). Moreover, there is nothing in the record

to suggest that there was a fraud upon the court. Wilson's

argument that he did not authorize the settlement of his

damage claims misapprehends the procedural history of his

case. These claims were severed by the district court more

than a year before the entry of the consent decree pursuant

to an amicus curiae motion that was filed by the U.S.

Department of Justice. The agreed order that was signed

by counsel after the consent decree preserved Wilson's right

to proceed with his case and restricted the defendants’ ability

to object to Wilson's evidence on the ground that it related

to the issues that had been adjudicated by the decree. The

entry of this order evidences careful lawyering on Wilson's

behalf rather than fraud.

Nevertheless, the district court granted the defendants’

motion for summary judgment because it found that the

uncontroverted facts simply did not support Wilson's claim

for damages. That decision has been extensively reviewed

by the district court and by this court as well. The Supreme

Court has twice declined further review of this claim. Under

these circumstances, it cannot be said that the district court

abused its discretion in denying Wilson’s second motion

under Rule 60(b).

Moreover, it was appropriate for the district court to assess

sanctions of $200.00 in this case under Fed. R. Civ. P. 11.

In reviewing the imposition of Rule 11 sanctions, this court

looks “to see whether the district court judge abused his

discretion in finding plaintiff's conduct to have been

unreasonable under the circumstances.” LeMaster v. United

States, 891 F.2d 115, 118 (6th Cir. 1989). It was not an abuse

of discretion for the district court to impose sanctions against

Wilson for attempting to relitigate his claim for damages when

that issue had repeatedly been decided against him. C7.

Patterson v. Aiken, 841 F.2d 386, 387 (11th Cir. 1988); Hewitt

v. Sperl, 798 F.2d 1230, 1233 (9th Cir. 1986). In addition,

the record belies Wilson’s argument that sanctions were

imposed because the judge was biased. Indeed, the district

court denied the defendants’ first motion under Rule 11 even

though sanctions might already have been appropriate at

A-9

that time.

In dismissing an unrelated case, a different judge was

compelled to observe that “Wilson's habitual filing informa

(sic) pauperis in federal court constitutes an abuse of

process.” Wilson v. American Tobacco Co., Nos. C2-87-

1069/C2-87-1075/C2-87-1219 (S.D. Ohio, Sept. 20, 1989).

Our own records indicate that Wilson has filed over 70 cases

with this court since 1976. At least 24 of those cases have

been filed in the last two years. Almost all of these filings

have been either frivolous or premature.

Requiring Wilson to pay a partial filing fee may discourage

frivolous litigation in the future. Several other circuits have

considered this issue and have decided that the payment

of partial fees was appropriate under similar circumstances.

See In re Epps, 888 F.2d 964, 967 (2d Cir. 1989) (citing /n

re Williamson, 786 F.2d 1336, 1339-41 (8th Cir. 1986); Collier

v. Tatum, 722 F.2d 653, 655 (11th Cir. 1983); Bullock v.

Suomela, 710 F.2d 102, 103 (3rd Cir. 1983); Smith v. Martinez,

706 F.2d 572, 574 (Sth Cir. 1983); Evans v. Croom, 650 F.2d

521, 522-23 (4th Cir. 1981), cert. denied, 454 U.S. 1153 (1982):

cf. Zaun v. Dobbin, 628 F.2d 990, 993 (7th Cir. 1980) (non-

prisoner, pro se litigants)). In addition, separate panels of

our own court have recently issued unpublished orders

which required partial filing fees from at least two other

abusive litigants. Bond v. Hood, No. 89-5841 (6th Cir. Nov.

21, 1989); May v. Warner Amex Cable Communications, Nos.

88-3802/88-4029 (6th Cir. Feb. 28, 1989).

Wilson’s most recent in forma pauperis applications

indicate that the balance of his prison account fluctuates

between fifty cents and five dollars. Therefore a $3.00 filing

fee would encourage Wilson to be appropriately selective

in his future litigation without creating a de facto bar to his

access to the court. Wilson is also advised that his ability

to proceed in forma pauperis may be further restricted if

he continues to file frivolous cases in this court. See Maxberry

v. S.E.C., 879 F.2d 222, 224 (6th Cir. 1989).

Accordingly, Wilson's request for counsel is hereby denied

A-10

and the district court’s order is affirmed because the

allegations in Wilson’s second motion for post judgment relief

are untimely, repetitious and substantively without merit. The

district court's imposition of Rule 11 sanctions was

reasonable and is affirmed for these same reasons. Rule

9(b)(5), Rules of the Sixth Circuit. In addition, the Clerk is

directed to require a partial filing fee of $3.00 from Wilson

in each appeal or original action that he files in this court

in the future.

A-11

EXHIBIT 1: Wilson Affidavit (J.A. 32)

Pearly L. Wilson, #146-097

Hocking Correctional Facility

Post Office Box 59

Nelsonville, Ohio 45764

July 8, 1986

Mr. Richard P. Seiter, Director, Department of

Rehabilitation and Corrections - 1050 Freeway Drive,

North - Columbus, Ohio 43229;

-and-

Mr. Superintendent Cari Humphreys

Hocking Correctional Facility

17659 Snake Hollow Road

Post Office Box 59

Nelsonville, Ohio 45764

Dear Mrs Seiter and Humphreys:

|! am bringing to your personal attentions the following

conditions of confinement to which you are subjecting me

and requesting that same be corrected at once.

1st: You have me warehoused at the Hocking

Correctional Facility at Nelsonville, Ohio with both

severe mentally and physically ill inmates, and close

proximity which subjects me to cruel and unusual

punishment.

2nd: The number of medica! staff members, both in the

medical and psychiatric department, as well as the

psycological department, are not adequately staffed

to ensure the care and attention for these ill men

above mentioned.

3rd:

4th:

A-12

These dormitories at this Facility, (hereinafter

designated as “HCF’’), are overcrowded and

completely unsanitary and does not further the

prison’s goals or policies legitimately.

(a) nor does the overcrowding meet the standards

of correctional association and public health

association's requirements and is an immediate and

sure danger to the health of every inmate at HCF.

Being warehoused like this is definitely not a part

of the penalty imposed upon me by the courts of

the State of Ohio. Gentlemen, the close proximity,

such as it is here, can and will lead to increased

incidences of contagious diseases and a severe

breakdown of the immune system of not only myself,

but every man at this Facility. The negative effects

of open dormitory living has caused mental stress

far too severe to measure to any reasonable degree

and can only be corrected to satisfaction by a

reduction of the present population at HCF.

(b) You have warehoused here, inmates who have

been operated on at various hospitals; returned to

HCF; and lie here with open sores. These men have

been discharged from the Infirmary at HCF far too

soon because of the small area and lack of space

in which to care for these mens’ (sic) medical needs

in and at the Infirmary. | refer to inmates who wear

the bags for urinating and defacating since it is

impossible for them to do so in a normal fashion

after their operations. And, it must be brought to your

personal attentions that these men cleanse these

bags, etc., in the sinks and toilets in the dormitories.

This should not be permitted. There should be a

special place for that particular purpose. Most of

these men know nothing about personal hygiene,

nor do they care.

You now have what id (sic) cased or called a “Unit

Management” thing; based upon the federal “Unit

Management” which failed in the federal system. It

A-13

is beyond my comprehension as to why this was

instituted at HCF. However, the so-called “Unit

Management” at HCF is non-workable. And it is my

duty to advise you that:

(a): you have personnel operating the so-called Unit

Management who are totally unqualified to do so;

having no prior training in that department or area;

(b): these personnel have access to prisoners’

criminal and medical records; lacking training in

either department or area; and, to top that off, it has

been brought to our attentions that these untrained

personnel will make recommendations to the Adult

Parole Authority regarding our chances for paroles,

etc.

(c): Such as listed above is bruta/ misclassifications

of inmates by untrained personnel. Many prisoners

at HCF suffer from ranges of mild to severe mental

impairments, yet, openly confined with the general

population. Many prisoners suffer from a broad range

of mental problems; some psychotic, others are

victims of early brain damage/injury, and all are

incapable of functioning in a normal prison

environment. Same of which inflicts cruel and

unusual punishment in contravention of my rights

under the Eighth Amendment.

(d): Be advised that not a single guard, not a single

medical nurse, nor any of your personnel at HCF

is trained in dealing with these men who have these

mental problems and it results in unnecessary and

wanton infliction of pain upon not only myself, but

all the other normal inmates at HCF.

(e): the very placing of well-intentioned guards in

the position of dealing with inmates who are mentally

ill without training or adequate guidance, results in

the infliction of cruel and unusual punishment upon

all inmates at HCF.

5th:

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Be further advised that the Supreme Court of the

United States has set forth the goals of penal

confinement by the states in our criminal justice

system: “To punish justly, to deter future crime, and

to return imprisoned persons to society with an

improved change (sic) of being useful, law abiding

citizens. Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct.

2392, 2402 (1981). These men should be in the least

restrictive environments. But you really have us

warehoused without proper classifications, etc.

It has always been my contention, gentiemen, that

the transfer of myself from the Chillicothe

Correctional Institute at Chillicothe, Ohio, was for the

sole purpose of punishment of myself because of

the various lawsuits filed in courts against State of

Ohio prison officials, and | must advise you that this

is, and has always been true. Not speculated.

Be advised that | do not intend to permit passive

negligence be the claim by either of you gentlemen

if these subjections are not corrected forthwith. |

cannot allow my mentality to do what is plainly

intended: digress by degrees, at your hands because

you do not care as to how we are confined at this

Facility. ... or with whom.

Because of the alleged sex offense crime which |

have been convicted of, you do not any longer permit

sex offenders to be furloughed; although you have

already furloughed several sex ofienders from HCF.

This is a blatant der‘.i of equal protection of the

laws, gentiemen. And | have been confined well more

than ten (10) years and there is not a single incidence

of a sex violation on my record at any facility wherein

| have been confined. My institution record speaks

for me.

6th:

7th:

8th:

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At HCF there is completely inadequate ventilation

even though every one of the windows are open.

This is a dead area where HCF is situated. No air

or oxygen comes through these windows sufficient

to be healthy. . . . whatwith the close proximity of

these diseased prisoners here who have lung

problems and hardly any hygienic training.

(a): The smoking and body odors of other inmates

is horrible, to say the least.

In winter, there is no heating system in “C” Dormitory.

This has been like so since this Facility has been

opened in 1983. | will also bring to your attention

that there is insufficient clothing given these men

for winter since there is no heating system in the

dormitory listed. Such is an infliction of cruel and

unusual punishment in violation of the Eighth

Amendment to the United States Constitution.

The beds at HCF are far too close for a healthy

environment, being that so many of these inmates

are with lung diseases and other physical

impairments which could be communicated to

another prisoner against his will and without his

knowledge.

| shall await your response to these conditions listed by

me above and certainly request, again, that every listed

violation be corrected forthwith. In the event that no changes

are made within a reasonable time, be advised that | shall

be forced to file a lawsuit against you and all prison personnel

involved in these unhealthy conditions and cruel and unusual

punishment imposed upon me without cause or justification.

Sincerely,

/s/ Pearly L. Wilson

PEARLY L. WILSON

A-16

EXHIBIT 2: Wilson Affidavit (J.A. 32-33)

* SENDER: Complete items 1, 2, 3 and 4.

Put your address in the “RETURN TO” space on the

reversable side. Failure to do this will prevent this card from

being returned to you. The return receipt fee will provide

you the name of the person delivered to and the date of

delivery. For additional fees the following services are

available. Consult postmaster for fees and check box(es) for

service(s) requested.

1. [] Show to whom, date and address of delivery.

2. [] Restricted Delivery.

3. Article Addressed to:

Richard P. Seiter, Director

Dept. Rehabilitation & Corrections

1050 Freeway Drive, North

Columbus, Ohio 43229

4. Type of Service Article Number

Registered [] Insured /s/ P 678 311 646

[] CoD

Always obtain signature of addressee or agent and

DATE DELIVERED.

5. Signature - Addressee

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6. Signature - Agent

X___/s/ R. Campbell

7. Date of Delivery

/s/ 7/14/86

8. Addressee’s Address (ONLY if requested and fee paid)

PS FORM 3811, July 1983 447-845

Domestic Return Receipt

A-18

EXHIBIT 3: Wilson Affidavit (J.A. 33)

* SENDER: Complete items 1, 2, 3 and 4.

Put your address in the “RETURN TO” space on the

reversable side. Failure to do this will prevent this card from

being returned to you. The return receipt fee will provide

you the name of the person delivered to and the date of

delivery. For additional fees the following services are

available. Consult postmaster for fees and check box(es) for

service(s) requested.

1. [ ] Show to whom, date and address of delivery.

2. [] Restricted Delivery.

3. Article Addressed to:

Supt. Carl Humphreys

Hocking Correctional Facility

P.O. Box 59

Nelsonville, Ohio 45764

4. Type of Service Article Number

Registered [] Insured /s/ P 678 311 645

Always obtain signature of addressee or agent and

DATE DELIVERED.

5. Signature - Addressee

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6. Signature - Agent

X__/s/ Melissa J. Burch

7. Date of Delivery

/s/ 7/11/86

8. Addressee’s Address (ONLY if requested and fee paid)

PS FORM 3811, July 1983 447-845

Domestic Return Receipt

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.