Amicus Curiae Brief — Wilson v. Seiter

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' Supreme Court,

| )) |. FILED

No. 89-7376 | es adianad

—_—_—_—_—— re *. SP 4 N01, J

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

PEARLY WILSON,

Petitioner,

—vs.—

RICHARD SEITER, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

—— BRIEF OF THE AMERICAN PUBLIC

A ATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

JOHN BOSTON, Esq.

(Counsel of Record)

15 Park Row—7th Flocr

New York, New York 10038

(212) 577-3530

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 89-7376

PEARLY WILSON,

Petitioner,

vs.

RICHARD SEITER, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE

BRIEF OF AMICUS CURIAE

The American Public Health Associa-

tion ("“APHA") moves pursuant to Rule 36.3

of the Rules of the Supreme Court of the

United States for leave to file a brief

amicus curiae in support of petitioner.

The written consents of petitioner and of

respondent have been filed with the Court.

APHA is a national non-governmental

ti titi

sas toe eee Ss

Organization established in 1872 for the

purpose of improving public health and the

quality of health care. Together with its

affiliated associations, APHA is the

largest public health association in the

world, with a combined multidisciplinary

membership of approximately 50,000 health

care professionals and consumers. APHA

has appeared before this Court on numerous

occasions aS amicus curiae in cases with

serious implications for the public

health. See, e.g., West v. Atkins, 487

U.S. 40 (1988); Hardwick v. Bowers, 478

U.S. 186 (1986); Roe v. Wade, 410 U.S. 113

(1973).

APHA has a special interest in assur-

ing adequate health care and healthful

living conditions for underserved segments

of society, including prisoners. In the

early 1970's, APHA appointed a task force

to devise a set of standards--the first of

its kind--for the delivery and maintenance

of health care in correctional facilities.

See Standards for Health Services in Cor-

rectional Institutions (1976). A second,

revised edition of the standards was

issued a decade later. See Standards for

Health Services in Correctional Institu-

tions (1986).1

Both editions of these standards con-

tained extensive chapters on environmental

conditions because the APHA is committed

to the public health view that acceptable

living conditions are as important to

health as are effective medical services.

The current standards' chapter "Environ-

mental Health" directly addresses such

matters as temperature control, space

requirements, noise, sanitation, food

1 The 1986 standards are herewith lodged

with the Clerk of Court.

service, and vermin control--the same

issues involved in this case. Id. at 6l-

89.

Because of its professional expertise

and multi-disciplinary focus in addressing

health problems in prison, APHA believes

it will present to the Court a valuable

perspective on the issues concerning

prison conditions litigation that this

case presents. Consistent with its pur-

pose of advancing the public health and in

the hope of decreasing the human suffering

caused by health-threatening prison condi-

tions, APHA requests leave to file this

brief.

Respectfully submitted,

LS/

John Boston

Dated: November 12, 1990

New York, New York

TABLE OF CONTENTS

TABLE OF CONTENTS .....-.---eeee200. cocce I

TABLE OF AUTHORITIES eoeeeeseeese#seee#ee#e#egee#s?#*# ii

INTEREST OF AMICUS CURIAE .....-e22ee2-- Ll

SUMMARY OF ARGUMENT eoeeneeenee#eeseesteteeeeeeeeseee 2

ARGUMENT e*eesee#seenetee#ee#seeeneee#esee#ee#e#e#kee#e#e#e##ee#e#e##e#e####e#e* # @ 5

THE EIGHTH AMENDMENT ANALYSIS

ADOPTED BY THE COURT OF APPEALS

MISAPPLIES THIS COURT'S PRECEDENTS AND

UNDERMINES THE JUDIC.ARY'S ABILITY

TO ENSURE MINIMAL STANDARDS OF DECENCY

IN CONDITIONS OF PRISON CONFINEMENT

A. The court below misapplied this

Court's decision in Whitley v. Albers

and ignored the governing standard of

Rhodes v. Chapman........cceeeeeee0208

B. The Eighth Amendment analysis

applied by the court of appeals would

place the most inhumane prison condi-

tions beyond the federal courts'

INJUNCLIVE POWETS... cee ee eeeene ee el

CONCLUSION $066606666600006600066606666800

TABLE OF AUTHORITIES

Cases:

Alberti v. Klevenhagen, 790 F.2d 1220 (Sth

«TB BE 6 6weheudcbecdeeeeséseses 34

Allee v. Medrano, 416 U.S. 802 (1974).. 29

Balla v. Idaho State Board of Corrections,

595 F.Supp. 1558 (D.Idaho 1984).. 30

Battle v. Anderson, 788 F.2d 1421 (10th

Cir. i | PPT TETT TTT TTT Tee 20, 33

Battle v. Anderson, 564 F.2d 388, 395

(10th cae. | gg PPUR ET TPCT TTT TTT 19

City of Mesquite v. Aladdin's Castle, 455

U.S. 283 li: er rrrrTTrTT TT Tere 29

Coniglio v. Thomas, 756 F.Supp. 409

(Be DeBe Fe LET) occcccccsccscsceese 32

Davenport v. DeRobertis, 844 F.2d 1310

(7th Cir. 1988), cert. denied sub

nom. Lane v. Davenport, 109 S.Ct.

Ms PP rerrererrerr re Tere 30

Dean v. Coughlin, 804 F.2d 207 (2d Cir.

PPO T TT TTT TTT TTT TTT Te 31, 32

DeGidio v. Pung, 704 F.Supp. 922 (D.Minn.

er re se @pee#e 30

Duran v. Anaya, 642 F.Supp. 510 (D.N.M.

B9SS) ccoccece *eeneeee *oeneteeeeeeneteee#ee#ee#e#« 35

Fambro v. Fulton County, 713 F.Supp. 1426

(N.D.Ga. | PTT TTT TT CTT Tre 34

- ii -

Finney v. Mabry, 546 F.Supp. 628 (E.D.Ark.

L9SZcccccccccccccccceesece e*eeeete 34

Fisher v. Koehler, 692 F.Supp. 1519

(S.D.N.Y. 1988), aff'd, 902 F.2d 2

(2d Cir. 1990)......2.2-23, 27, 29, 30

French v. Owens, 777 F.2d 1250 (7th Cir.

1985), cert. denied, 479 U.S. 817

(19SS )ecccccccccccccacecce *“ewe34«oeee#e#ee#eses 6

Gates v. Collier, 548 F.2d 1241 (5th Cir.

LPT TJ dccecececs oeeeeveeeeeeeeee . 18, 33

Gates v. Collier, 501 F.2d 1291 (5th Cir.

1974). eee eeeeioeeeees#ssersesrerseser#se#teeee#ee#e#?#e 16

Gates v. Collier, 349 F.Supp. 881

(N.D.Miss. 1972), aff'd, 501 F.2d

1291 (Sth Cir. 1974)..... 14, 15, 16

Gates v. Collier, 390 F.Supp. 482

(N.D.Miss. 1975), affirmed on other

grounds, 525 F.2d 965 (5th Cir.

1976), affirmed and remanded with

directions, 548 F.2d 1241 (5th Cir.

LPT pccccccccccccccccccccescccccs Ad

Gates v. Collier, 423 F.Supp. 732

(N.D.Miss. 1976)......... Tererer 18

Gilland v. Owens, 718 F.Supp. 665

(W.D.Tenn. 1989)... ee eeees 27, 34

Gregg v. Georgia, 428 U.S. 153 (1976).. 10

Grubbs v. Bradley, 552 F.Supp. 1032

(M.D. TENN. LOBSZ) cccccccccccecece 24

Hoptowit v. Ray, 682 F.Supp. 1237 (9th

Cir. AOSZ) ccceccses *e @ee *eneee#es 31, 32

- iii -

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

854 (D.D.C. Bee pececeseceses 29, 34

Inmates of the Allegheny County Jail v.

Wecht, 901 F.2d 1191 (3d Cir. 1990)

soeneeeeeneeneeneeneeeneeeeeeeeeeneeee 25

Inmates of the Allegheny County Jail v.

Wecht, 699 F.Supp. 1137 (W.D.Pa.

1988), aff'd, 874 F.2d 147 (3d

Cir.), vacated and remanded, 110

S.Ct. 355 (1989), vacated as moot,

893 F.2d 147 (3d Cir. 1990)...... 25

Inmates of the Allegheny County Jail v.

Wecht, 565 F.Supp. 1278 (W.D.Pa.

i > PPrrrerr rer *eeteeee#se se eweeee#ee#ee#e 25

Johnson v. Levine, 450 F.Supp. 648, 655

(D.Md. 1978), aff'd in pertinent

part, 588 F.2d 1378 (4th Cir. 1978)

(BOE GUEAAR) cccccccsece wYTTTTTiT a -.

Laaman v. Heiyemoe, 437 F.Supp. 26°

(D.N.H. 1577). eee eeeeeeeeeeeneenee 12

LaMarca v. Turne’, 662 F.Supp. 647

(S.D.Fla. 1987), appeal dismissed,

861 F.2d 724 (llth Cir. 1988).... 28

LaReau v. Manson, 651 F.2d 96 (2d Cir.

BGGRdcocceces @*eeeee#e%*%e ee eneeeee#ee#ee#e#e#ee##e« 6

Lovell v. Brennan, 728 F.2d 560 (lst Cir.

Dae bbuecs 60660066046400066068% 30

Miles v. Bell, 621 F.Supp. 51 (D.Conn.

Bn oe00eesnenebeeness se @eeeee#eese#e. 32

Morales Feliciano v. Hernandez Colon, 697

F.Supp, 37 (D.P.R. 1988)......... 34

- iv-

Morales Feliciano v. Romero Barcelo, 672

F.Supp. 591 (D.P.R. 1986)........ 24

Morrow v. Harwell, 768 F.2d 619 (Sth Cir.

19B8) ccccccccccececes Se eegeTtkweTFe es ee & 30

Newman v. Alabama, 559 F.2d 283 (5th

Cir.), cert. denied sub nom. Alabama

v. Pugh, 438 U.S. 915 (1978)..... 32

Palmigiano v. DiPrete, 737 F.Supp. 1257

(DR. Te 199O) ccccccccccccccccces 36

Palmigiano v. Garrahy, 443 F.Supp. 956

(DR... LOTT) cccccccccccsccccces 24

Palmigiano v. Garrahy, C.A. No. 74-172,

Order (D.R.I., January 25, 1984). 35

Pugh v. Locke, 406 F.Supp. 318 (N.D.Ala.

1976), aff'd in part and remanded,

Newman v. Alabama, 559 F.2d 283 (5th

Cir.), cert. denied sub nom. Alabama

v. Pugh, 438 U.S. 915 (1978)

cpesseesecoscesosesscee Se Seen FF

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

1980), cert. denied, 450 U.S. 1041

(1981) ccccccccccccscscscccecs 6, 32

Ramos v. Lamm, 485 F.Supp. 168 (D.Colo.

1979), aff'd in part and vacated and

remanded in part on other grounds,

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

denied, 450 U.S. 1041 (1981)

Seeeereucesoesectoness BO6 Be Fe

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

1986) -ccccccccccccccscsccce e*eeees ef 29

ec Bi A ES Tt AE

cat oe

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

7see ee ee ee @ Ze 9, 10, ll, 12, 14,

25, 31, 32, 37

Ruiz v. Estelle, 67S F.2d 1115 (5th Cir.),

cert. denied, 460 U.S. 1042 (1983)

seeeeeeee#se. Se tv eVervevr eee See a eV ee Se © 32

Ruiz v. Estelle, 503 F.Supp. 1265

(S.D.Tex. 1980), aff'd in part and

modified in part on other grounds,

679 F.2d 1115 (5th Cir. 1982), cert.

denied, 460 U.S. 1042 (1983)

ee erccccccccccccccccs oeeee26, 37

Smith v. Sullivan, 553 F.2d 373 (5th Cir.

1977) *e © feeeee#ee *enrteeneteente#ee#e#e#ee#ee##ee#e##e###e#«# 6

Tillery v. Owens, 907 F.2d 418 (3d Cir.

SOROd coccese *eeee *seeneeeeseee 6, 20, 21

Tillery v. Owens, 719 F.Supp. 1256

(W.D.Pa. 1989), aff'd, 907 F.2d 418

(3d Cir. 1990)

cocccccce 20, 21, 22, 23, 32, 33

Todaro v. Ward, 431 F.Supp. 1129

(S.D.N.Y.), aff'd, 565 F.2d 48 (2d

cet. BOT EPS cece nesseeseeeeeesesee 23

Toussaint v. McCarthy, 801 F.2d 1080 (9th

Cir. 1986), cert. denied, 481 U.S.

1069 CADET Peoeceesececeseoceeeoues 32

Toussaint v. McCarthy, 597 F.Supp. 1388

(N.D.Cal. 1984), aff'd in part and

rev'd in part on other grounds, 301

F.2d 1080 (Sth Cir. 1986), cert.

denied, 481 U.S. 1069 (1987)...... 6

Turner v. Safley, 482 U.S. 78 (1987)... 32

- vi -

United States v. Oregon State Medical

Society, 343 U.S. 326 (1952)..... 28

U.S. v. W.T. Grant Co., 345 U.S. 629

CIGSZ) cccccccecs eee 2 a2 &. @ e*eeweee#ee#ee#e# @ 29

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

Cir. 1983), cert. denied, 468 U.S.

1217 (19S4) wc cccccccces *“e ewe #eeeeee *e 22

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

“eee eeeeveeeeeeeeee ee Ze 8, 13, 22

Wooden v. Norris, 637 F.Supp. 543

(M.D.Tenn. L9SG )eccccccccsccecsece 32

Constitutional Provisions:

U.S. Const., Amend. VIII 2, 3, 5 et passim

Federal Statutes, Regulations, and Rules:

U.S. Supreme Court Rule 36.3.....eeeee6- 1

Books, Journals and Other Authorities

Austin and McVey, The 1989 NCCD Prison

Population Forecast: The Impact of

the War on Drugs, NCCD Focus (Decem-

BOE LHSP) occcccvccccccceceseccees IO

Harris and Spiller, After Decision (1976)

*eeeenteneteeneteenreneteneteeeeeneeeeeeee # 25

Martin and Ekland-Olson, Texas Prisons:

The Walls Came Tumbling Down (1987)

e*eeeteeeeneeneeneteeneteeeeneeneneeeeeeeee# 37

- vii -

Note, Complex Enforcement: Unconstitu-

tional Prison Conditions, 94

Haryv.L.Rev. 626, 641 (1981)...... 28

Status Report: The Courts and Prisons

(January 1, 1990), in 2 Prisoners

and the Law (Robbins ed. 1990)

*eeeeenteeenrteentreenet#eneneeneeeeeee 33, 36

U.S. Dept. of Justice, Prison Population

Grows 6 Percent During First Half of

Year (October 7, 1990) ..ccrcccccecedd

Yackle, Reform and Regret: The Story of

Federal Judicial! Involvement in the

Alabama Prison System (1980)......37

- viii -

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

No. 89-7376

PEARLY WILSON,

Petitioner,

vs.

RICHARD SEITER, et al.,

Respondents.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

INTEREST OF AMICUS CURIAE

AMERICAN PUBLIC HEALTH ASSOCIATION

The interests of the American Public

Health Association (APHA) are set forth in

its motion for leave to file this brief as

amicus curiae, which is bound herewith

pursuant to Rule 36.3 of the Rules of this

Court.

SUMMARY OF ARGUMENT

A claim that conditions of prison

confinement constitute cruel and unusual

punishment must be decided based on actual

conditions in the prison. The standard of

malicious and sadistic intent, applied by

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

certain kinds of constitutional torts by

prison officials, is not applicable or

helpful where the issue is continuing con-

ditions of confinement and not a discrete

incident or an emergency response. The

proper standard is that stated in Rhodes

v. Chapman, 452 U.S. 337 (1981): condi-

tions are cruel and unusual if "they

result[{] in unquestioned and serious

deprivations of basic human needs" or

“deprive inmates of the minimal civilized

measure of life's necessities." Id. at

347. This objective test is compelled by

-2-

the realities of prison life, in which

foul and inhumane conditions are rarely

imposed for evil motives, but more fre-

quently arise from lack of resources or

facilities, incompetence, or disorganiza-

tion.

The existence of reform efforts by

prison officials cannot be dispositive of

the existence of an Eighth Amendment

violation. Prison officials almost always

make improvements when they are sued, but

these changes are not always fully imple-

mented, and do not always eliminate the

constitutional violations when they are

Carried out. The significance of these

improvements should be assessed by the

district court as part of its remedial

discretion. If the constitutional viola-

tion has been entirely eliminated, the

court may withhold injunctive relief. If

the violation remains, in whole or in

- 3-

part, the extent and nature of changes

made by the defendants should be con-

sidered in formulating injunctive relief.

But the touchstone must always be the

actual conditions in the prison and their

effect on those imprisoned.

ARGUMENT 4

THE EIGHTH AMENDMENT ANALYSIS

ADOPTED BY THE COURT OF APPEALS

MISAPPLIES THIS COURT'S PRECEDENTS AND

UNDERMINES THE JUDICIARY'S ABILITY

TO ENSURE MINIMAL STANDARDS OF DECENCY

IN CONDITIONS OF PRISON CONFINEMENT.

This case poses the question whether

the Eighth Amendment requires that the

lawfulness of prison living conditions be

measured by the good intentions of prison

officials or by actual conditions in the

prison.

The prisoner-plaintiffs alleged con-

ditions that have previously been acknowl-

edged to violate the Eighth Amendment if

proven to be sufficiently severe:

unsanitary eating conditions, inadequate

heating, housing of physically and men-

tally ill prisoners in general population

dormitories, inadequate ventilation,

excessive noise, and vermin infestation.!

- 5 -

Prison officials responded that they had

made “affirmative efforts to maintain

habitable conditions" such as servicing

heaters, providing extra blankets,

installing exhaust fans, and hiring an

exterminator. A. 72. The actual effects

1 See, e.g., Tillery v. Owens, 907 F.2d

418, 422-24 (3d Cir. 1990) (inadequate

ventilation, insect infestation); French

v. Owens, 777 F.2d 1250 (7th Cir. 1985),

cert. denied, 479 U.S. 817 (1986)

(unsanitary eating conditions, inadequate

ventilation); LaReau v. Manson, 651 F.2d

96, 109 (2d Cir. 1981) (failure to screen

inmates for communicable diseases); Ramos

v. Lamm, 639 F.2d 559, 570-72 (10th Cir.

1980), cert. denied, 450 U.S. 1041 (1981)

(unclean food, inadequate heating and

ventilation, insect infestation); Smith v.

Sullivan, 553 F.2d 373, 380 (Sth Cir.

1977) (failure to segregate inmates with

communicable diseases); Toussaint v.

McCarthy, 597 F.Supp. 1388, 1395-96, 1409-

12 (N.D.Cal. 1981), aff'd in part and

rev'd in part on other grounds, 801 F.2d

1080 (9th Cir. 1986), cert. denied, 481

U.S. 1069 (1987) (lack of food sanitation,

inadequate heating and ventilation,

excessive noise).

of their efforts remain disputed.2 The

court of appeals observed:

Importantly, the appellants do

not contend that the appellees

have taken no efforts to provide

them with minimally decent con-

finement conditions. Rather,

appellants' complaints are aimed

at the results of those

efforts. ... The appellants'

position, apparently, is that

despite these actions, prison

conditions remain unacceptable.

A. Tae

The court did not purport to resolve the

disputed factual question of what the

prison conditions actually were. Instead,

it held that there was no indication that

the prison officials “used confinement

conditions to punish" the prisoners, and

that there was no evidence of “behavior

marked by persistent malicious cruelty."

Hence, it held that there was no genuine

issue of material fact, and the prison

2 The factual disputes are set out in the

brief of Petitioner herein.

officials were entitled to summary judg-

ment. A. 73-74.

A. The court below misapplied this

Court's decision in Whitley v. Albers and

ignored the governing standard of Rhodes

v. Chapman.

The appeals court relied on this

Court's decision in Nhitley v. Albers, 475

U.S. 312 (1986), which held that damages

could not be recovered for the use of

force in quelling a prison disturbance

unless prison personnel acted "maliciously

and sadistically for the very purpose of

causing harm." Id. at 320-21.

This case is not governed by Whitley

v. Albers. Whitley was a constitutional

tort case arising from a single discrete

incident requiring split-second decisions

and action by prison officials. The Whit-

ley plaintiff's interest in avoiding for-

cible injury had to be balanced against

prison officials' strong interest in

- 8 -

quickly ending the disturbance and the

threats it posed to other inmates and

staff. The Court therefore concluded that

the “deliberate indifference" standard

advocated by the plaintiff and used in

prison medical care cases did not "ade-

quately capture the importance of such

competing obligations, or convey the

appropriate hesitancy to critique in hind-

sight decisions necessarily made in haste,

under pressure, and frequently without the

luxury of a second chance." Id. at 320.

Hence a showing of malicious and sadistic

intent was required.

This case is more like Rhodes v.

Chapman, 452 U.S. 337 (1981), because it

involves continuing. "conditions of con-

finement." Id. at 345.3 #£The Rhodes

3 This phrase, the word "conditions," and

variations of them are used repeatedly

throughout the Rhodes opinion.

plaintiffs alleged persistently over-

crowded conditions resulting in double-

celling in an Ohio penitentiary. The

Court noted that the core of modern Eighth

Amendment jurisprudence is the ban on

punishments that “"‘involve the unnecessary

and wanton infliction of pain,'" including

those that are “totally without penologi-

cal justification."4 It concluded that

conditions are cruel and unusual if “they

result{] in unquestioned and serious

deprivations of basic human needs" or

“deprive inmates of the minimal civilized

measure of life's necessities." Id. at

347 (emphasis supplied).

The Rhodes standard speaks to condi-

tions in the prisons and not in the minds

of prison officials. So did its analysis

4 Id. at 346, quoting Gregg v. Georgia,

428 U.S. 153, 173, 183 (1976).

- 10 -

of the plaintiffs' challenge to double-

celling. The Court stated:

Virtually every one of the

[district] court's findings

tends to refute [the prisoners' ]

claim. The double celling made

necessary by the unanticipated

increase in prison population

did not lead to deprivations of

essential food, medical care, or

Sanitation. Nor did it increase

violence among inmates or create

other conditions intolerable for

prison confinement. ...

Although job and educational

Opportunities diminished

marginally as a result of double

celling, limited work hours and

delay before receiving education

do not inflict pain, much less

unnecessary and wanton

pain. ...

Id. at 347-48 (emphasis in

Original).°

2 The Court also was unconvinced by the

district court's reliance on factors like

the length of the prisoners' sentences,

the degree to which the prison's popula-

tion exceeded its "design capacity," the

large amount of time spent in-cell, and

the fact that double-celling was not a

temporary condition. Id. at.348. But the

focus remained on the facts of prison life

and not the prison officials' mental

state.

- ll -

Conspicuous by its absence from

Rhodes is any discussion of prison offi-

cials' state of mind. The focus is on the

actual conditions of confinement and their

effect on the people who live under them.®

And there is no discussion in Rhodes of

whether prison officials “used confinement

to punish" the prisoners. A. 73. Rather,

the Court held that basic Eighth Amendment

principles apply "when the conditions of

confinement compose the punishment at

issue." Rhodes, 452 U.S. at 347 (emphasis

supplied).

Nothing in Whitley purports to over-

6 “The first aspect of judicial decision-

making in this area is scrutiny of the

actual condit‘ons under challenge... .

In determining when prison conditions pass

beyond legitimate punishment and become

cruel and unusual, the ‘touchstone is the

effect upon the imprisoned.'" Rhodes, 452

U.S. at 362, 364 (Brennan, J., concur-

ring), uoting Laaman v. Helgemoe, 437

F.Supp. 269, 323 (D.N.H. 1977).

- 12 -

rule or modify Rhodes. Rather, Whitley

deals with an entirely different problem

for which the analysis of Rhodes simply is

not helpful.’ Nor is the Whitley analysis

helpful in addressing the Rhodes over-

crowding issue or the conditions presented

in this case--conditions that are ongoing,

that do not arise from short-term

exigencies, that do not require rapid

decision-making, and that are not justi-

fied by any substantial countervailing

penological interest.8

7 In Whitley, four Justices dissented.

Significantly, the dissent does not

criticize the majority for departing from

Rhodes; indeed, it does not mention Rhodes

at all. The Whitley majority cited Rhodes

only in support of the most general

propositions of Eighth Amendment jurispru-

dence. Whitley, 475 U.S. at 319, 321.

Taken together, these opinions show con-

vincingly that no Justice viewed Whitley

as limiting, qualifying, or indeed having

much to do with what had been decided in

Rhodes.

8 The respondent prison officials herein

did not assert any legitimate penological

interest in unhealthy food, lack of heat,

- 33-

B. The Eighth Amendment analysis applied

by the court of appeals would place the

most inhumane prisen conditions beyond the

federal courts’ injunctive powers.

The Sixth Circuit's misapplication of

Whitley v. Albers would effectively

immunize even the worst prison conditions

from federal judicial correction. A few

examples will show how.

In Gates v. Collier, 349 F.Supp. 881

(N.D.Miss. 1972), aff'd, 501 F.2d 1291

(Sth Cir. 1974),% the district court con-

demned the confinement of prisoners in

“barracks unfit for human habitation and

in conditions that threaten their physical

(footnote cont'd)

the spread of communicable disease,

excessive noise, and infestation with

insects.

9 Gates is one of several Eighth Amendment

prison conditions cases cited with

approval in Rhodes. See 452 U.S. at 352

n. 17.

- 14 -

health and safety, by reason of gross

deficiencies in plant and equipment and

lack of adequate medical staff and facili-

CSGGe « « a* Defendants had “failed to

provide adequate protection against physi-

cal assaults, abuses, indignities and

cruelties of other inmates," by giving

authority and weapons to "trusty" inmates

and by failing to separate serious violent

offenders from nonviolent or first

offenders. 349 F.Supp. at 888-89, 894.

The court noted that the state legis-

lature had authorized and directed the

penitentiary board to prepare a plan

directed at improving inmates' security

and eliminating the trusty system. A con-

Sultant committee engaged jointly by state

officials, the federal Law Enforcement

Assistance Administration (LEAA), and the

American Correctional Association had made

recommendations for one million dollars in

- 15 -

emergency reform steps, and LEAA had com-

mitted itself to provide the funds. The

Governor assured the court during pre-

trial conferences that he would “strongly

advocate to the Mississippi Legislature

that it provide adequate legislation and

funds not only to eliminate the

undesirable conditions at Parchman but to

make it an exemplary penal institution."

Id. 891-92. Nonetheless, the court

entered judgment finding an Eighth Amend-

ment violation, and the court of appeals

affirmed, observing: “While recognizing

that steps have been taken, since the

filing of this suit, to improve conditions

at Parchman, it is evident that much is

left to be done before Parchman is

operated in accord with [] constitutional

requirements. ..." 501 F.2d at 1321.

Under the approach of the Sixth Cir-

cuit in this case, the Mississippi dis-

- 16 -

trict court would have been required to

dismiss Gates. It made no findings that

the conditions had been imposed because of

the defendants' malicious or sadistic

‘motivations. And the Gates plaintiffs,

like the present petitioner, did "not con-

tend that the appellees have taken no

efforts to provide them with minimally

decent confinement conditions." A. 73.

In fact, they had made substantial

efforts; but the key fact, as stated by

the court of appeals, was that "much is

left to be done."19 fhe Gates court,

10 Just how much was left is made clear by

the district court's subsequent opinion,

issued three years after its initial

injunction, finding a continuing Eighth

Amendment violation in defendants' "“con-

tinuing failure to provide for the physi-

cal health and well being of inmates" by

their noncompliance with medical care

requirements, the “appalling, deplorable

condition" of many housing units, and the

continued overcrowding. Gates v. Collier,

390 F.Supp. 482, 488-89 (N.D.Miss. 1975),

affirmed on other grounds, 525 F.2d 965

(Sth Cir. 1976), a rmed and remanded

with directions, 548 F.2d 1241 (Sth Cir.

- 17 -

unlike the court below, recognized that

"the results of these efforts," A. 73,

were of prime importance./1

Similarly, in Battle v. Anderson, 564

F.2d 388, 395 (10th Cir. 1977), the dis-

trict court conaemned housing units with

“Severe environmental and fire hazards";

crowding so extreme that prisoners were

forced to sleep in garages, barber shops,

libraries and stairwells, and held in

dormitories without toilet and shower

facilities; overtaxed kitchen, water and

sewer systems; and dining facilities pre-

(footnote cont'd)

1977); see also Gates v. Collier, 423

F.Supp. 732 (N.D.Miss. 1976) (granting

further relief with respect to crowding

and the closing of dilapidated camps).

1l yltimately, it appears, those results

were acceptable. The last reported

opinion on the merits of the Gates liti-

gation was in 1977. Gates v. Collier, 548

F.2d 1241 (Sth Cir. 1977).

- 18 -

senting “immediate health dangers."

This case, too, would have been dis-

missed under the Sixth Circuit's approach

in this case. There were no findings of

malicious or sadistic intent on defend-

ants' part. To the contrary, the court of

appeals was constrained to hold that "the

good will shown by the Defendants cannot

serve as a defense." Id. at 396. Nor

could plaintiffs Claim that defendants had

made "no efforts" to improve conditions;

the state prison budget had been increased

fivefold in three years and the defendants

had submitted a comprehensive reform plan

approved by all parties. Yet the court of

appeals upheld the district court's find-

ing "that the presently existing over-

crowding . . ., when considered with other

circumstances, constitutes cruel and

unusual punishment. ..." Id. at 400

(emphasis in original). Like the present

- 19 -

petitioner, the Battle plaintiffs argued

that “despite [defendants'] actions,

prison conditions remain unacceptable," A.

73, and the court of appeals properly

affirmed on that basis.12

More recently, a Pennsylvania dis-

trict court condemned the State Correc-

tional Institution at Pittsburgh as an

“overcrowded, unsanitary, and understaffed

firetrap." Tillery v. Owens, 719 F.Supp.

1256, 1259 (W.D.Pa. 1989), aff'd, 907 F.2d

418 (3d Cir. 1990). The appellate court

agreed that "almost every element of the

physical plant and provision of services

at SCIP falls below constitutional norms."

907 F.2d at 427. Indeed, conditions

12 In 1986, the court of appeals affirmed

the district court's findings that condi-

tions of confinement met Eighth Amendment

standards; the action was dismissed except

for claims concerning racial discrimina-

tion. Battle v. Anderson, 788 F.2d 1421

(10th Cir. 1986).

- 20 -

appear fully as bad as in Mississippi in

1972. The risk of assault was so great

that many inmates feared to leave their

cells for recreation or to enter the

shower area; inmate housing was infested

with vermin and festooned with bird drop-

pings; ventilation was grossly inadequate;

defective plumbing resulted in leaks,

puddles and odors, and showers were

encrusted with dirt and slime; the danger

of fire was enormous and preparation for

it virtually nonexistent; and medical and

psychiatric treatment were "shockingly

deficient," with the psychiatric care area

"in shambles." 907 F.2d at 422-24. The

psychiatric observation area, in which

inmates were "“abandon[ed] ... to

vegetate and fester in despicable confine-

ment," emitted such an “overpowering

stench" that the district judge did not

get close enough to see it. 719 F.Supp.

- 21-

at 1304.

Under the court of appeals' approach

in this case, no Eighth Amendment viola-

tion could have been found. The district

court's lengthy opinion contains no find-

ings of malice or sadism on the part of

any defendant; indeed, at one point, it

"hasten[ed] to add that we do not question

the integrity of the officials at SCIP.

They are merely jerry-rigging with a

severe staff and supply shortage owing to

budget constraints." 719 F.Supp. at 1276.

Although there are numerous references to

deliberate indifference, that is precisely

the showing that Whitley, relied on by the

court below, held inadequate to establish

an Eighth Amendment violation. 475 U.S.

at 320.

The foregoing cases/3 illustrate two

13 fhe list could be extended at Length.

See, e.g., Wellman v. Faulkner, 715 F.

269, 273 (7th Cir. 1983), cert. denied,

- 22 -

central points.

First, the focus on prison officials'

(footnote cont'd)

468 U.S. 1217 (1984) ("Despite the

apparent good intentions of prison offi-

Cials, there seems no foreseeable cure for

this serious systemic deficiency" of lack

of medical staff); Fisher v. Koehler, 692

F.Supp. 1519, 1562, 1566-68 (S.D.N.Y.

1988), aff'd, 902 F.2d 2 (2d Cir. 1990)

(citing “obvious Sincerity and competence"

of Commissioner and Warden while finding

"systematic deficiencies" in failure to

control violence); Ramos v. Lamm, 485

F.Supp. 122, 168 (D.Colo. 1979), aff'd in

part and vacated and remanded in part on

other grounds, 639 F.2d 559 (10th Cir.

1980), cert. denied, 450 U.S. 1041 (1981)

(defendants had spent "significant sums"

to build new prisons; their failure to

remedy intolerable conditions represented

a “utilitarian calculus to obtain maximum

results from limited resources"; no malice

found); Johnson v. Levine, 450 F.Supp.

648, 655 (D.Md. 1978), aff'd in pertinent

art, 588 F.2d 1378 (4th Cir. 1978) (per

Curiam) (officials had "conscientiously

attempted" to improve facilities with

physical improvements and new programs and

services); Todaro v. Ward, 431 F.Supp.

1129, 1160 (S.D.N.Y.), aff'd, 565 F.2d 48

(2d Cir. 1977) (medical staff appeared

"truly concerned with [inmates'] well-

being," but the medical care system was

constitutionally deficient).

- 23-

State of mind misses the point. Filthy

food, flies and cockroaches, and exposure

to disease rarely result from the warden's

malicious and sadistic propensities. More

often, such conditions result from dis-

Organization, incompetence,24 or fiscal or

political difficulties,15 usually stemming

14 See, e.g., Morales Feliciano v. Romero

Barcelo, 672 F.Supp. 591, 605, 607, 613-

14, 619, 620-21 (D.P.R. 1986) (repeated

references to chaos, disorganization and

incompetence in numerous aspects of prison

administration); Palmigiano v. Garrahy,

443 F.Supp. 956, 977 (D.R.I. 1977) ("com-

plete absence of effective leadership or

management capability on the part of the

responsible officials").

15 For an extreme example, see Grubbs v.

Bradley, 552 F.Supp. 1032, 1082 (M.D.Tenn.

1982) (licensed practical nurse directed

to perform surgery on a hemorrhaging

prisoner because the year's hospital

budyet was exhausted).

In a more typical case, the dis-

trict judge observed:

We take judicial notice of the

fact that for years Allegheny

County officials have proposed,

rejected, discussed and haggled

over new jail facilities; plans

for new buildings have been

drawn up; proposals for renovat-

ing already existing facilities

- 24 -

at least in part from “[p]Jublic apathy and

the political powerlessness of inmates."16

(footnote cont'd)

have been made and rejected;

other plans have been delayed in

the hope that outside financial

sources of assistance will be

uncovered. As a result, the

jail remains with us--old,

dilapidated, and unconstitu-

tionally overcrowded. An eco-

nomic motive can no longer

excuse or be used to justify the

conditions imposed on the

inmates at ACJ.

Inmates of Allegheny County

Jail v. Wecht, 565 F.Supp.

1278, 1296-97 (W.D.Pa.

1983),

Five years later little had changed. The

district court concluded that constitu-

tional conditions of confinement could not

be provided in the old jail. Inmates of

the Allegheny County Jail v. Wecht, 699

F.Supp. 1137 (W.D.Pa. 1988), aff'd, 874

F.2d 147 (3d Cir.), vacated and remanded

on other grounds, 1:0 S.Ct. 355 (1989),

vacated as moot, 893 F.2d 147 (3d Cir.

1990). A few months ago the court of

appeals upheld coercive sanctions for con-

tinued violation of crowding limits,

citing the county's “consistent failure to

meet its meager Eighth Amendment obliga-

tions." Inmates of the Allegheny County

Jail v. Wecht, 901 F.2d 1191, 1200 (3d

Cir. 1990).

16 Rhodes, 452 U.S. at 358 (Brennan, J.,

concurring). Accord, Harris and Spiller,

- 25 -

Even overtly vicious conduct by lower-

level staff may ultimately find its roots

in neglect or ineptitude, rather than

malice, on the part of responsible offi-

cials.1?

Thus, in prisons, all that is neces-

sary for the triumph of evil is that good

(footnote cont'd)

After Decision at 5-8 (1976) (noting lack

of support for prison reform until

publicized via litigation).

17 Thus, widespread brutality by Texas

prison staff, as well as tolerance of the

exploitative "building tender" trusty

system, were closely related to state

officials' failure to provide enough

security staff to keep order in a humane

fashion. Ruiz v. Estelle, 503 F.Supp.

1265, 1299, 1303 (S.D.Tex. 1980), aff'd in

part and modified in part on other

rounds, 679 F. 1115 (5th Cir. 1982),

cert. denied, 460 U.S. 1042 (1983). Judge

Johnson made similar observations about

the inmate trusty system in Alabama. Pugh

_v. Locke, 406 F.Supp. 318, 325 (N.D.Ala.

1976), aff'd in part and remanded, Newman

v. Alabama, 559 F.2d 283, 291 (5th Cir.),

cert. denied sub nom. Alabama v. Pugh, 438

U.S. 915 (1978).

- 26 -

men and women have other Priorities. Con-

Sequently, an gighth Amendment analysis

that turns on the ill will of prison

functionaries Simply misunderstands the

problem and will be wholly ineffectual in

guaranteeing minimal standards of decency.

Second, the court of appeals'

apparent view that if prison officials

take any action, however ineffectual, to

improve conditions, no violation can be

found,18 would effectively abolish Eighth

Amendment injunctive jurisprudence.

Prison officials almost always do some-

thing when confronted with litigation; it

would be astonishing if they did not.19

18 In the court's own words: "Impor-

tantly, the appellants do not contend that

the appellees have taken no efforts to

provide them with Minimally decent con-

finement conditions. Rather, appellants'

complaints are aimed at the results of

those efforts." aA. 73.

49 gee, @.a., Giliand v. Owens, 718

F.Supp. 65, 689-90 (W.D.Tenn. 1989);

Fisher v. Koehler, 692 F.Supp. at 1565-67

- 27 -

And as one commentator put it, "a prison

is most in need of systemic reform when

pervasive violations persist despite good

faith efforts of reasonable individu-

als."20

This Court has sagely warned, "It is

the duty of courts to beware of efforts to

defeat injunctive relief by protestations

of .epentance and reform, especially when

abandonment seems timed to anticipate

suit, and there is probability of resump-

tien.” United States v. Oregon State

Medical Society, 343 U.S. 326, 333 (1952);

(footnote cont'd)

("a case of better late than never");

LaMarca v. Turner, 662 F.Supp. 647, 716

(S.D.Fla. 1987), a al dismissed, 861

F.2d 724 (llth Cir. ); Ramos v. Lamm,

485 F.Supp. at 178 ( “commandable™ improve-

ments begun during litigation); and cases

discussed at 14-23, above.

20 Note, Complex Enforcement: Unconstitu-

tional Prison Conditions, 94 Harv.L.Rev.

626, 641 (1981).

- "8 -