Petition for Writ of Certiorari — Lovett v. United States (No. 06-964)

Court, U.S.

pal ine a

06-964 JAN 11 2007

No.

OPFICE OF THE CLERK

IN THE

Supreme Court of the United States

STAFF SERGEANT JOSHUA P. LOVETT,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

FRANK R. LEVI

LT. COLONEL, U.S. AIR FORCE RESERVES

Counsel of Record

TIMOTHY M. COX

CAPTAIN, U.S. AIR FORCE

Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL OPERATIONS AGENCY

112 LUKE AVENUE, SUITE 343

BOLLING AFB, DC 20332-8000

(202) 767-1562

January 2007

QUESTION PRESENTED

Whether the petitioner was subjected to cruel and

unusual punishment in violation of the Eighth

Amendment while in post-trial confinement when

confinement officials were deliberately indifferent to his

health and safety.

il

TABLE OF CONTENTS

Page

TABLE OF ALPERT TIES ccvceccevereeeseesvesenescabeearseenees iil

Ce er wenhicknsnipinnihincottnpusinctensinismneceucieilecans l

FRR Ds Ge as cciessrcstciasecieiiinisanbclaanjanchisipiaiindaniniapenitia l

CONSTITUTIONAL AND STATUTORY

PRAT eee FEO le F BSRe ccncrectoscennasvomeconntveonimepvennss l

STATEMENT OF THE CASE ...0eccscsiciscorssoececesieocesoneneees 2

REASONS FOR GRANTING THE WRIT............:00000 5

Ca Pee cnenivotnnnispistioticcningion be esiahaniniennnniiineeiouain 7

APPENDIX A

Opinion of the United States Court of Appeals for the

Asmed Forces (6 June 2G0G6) ....ccccvevecrccereevssosersessseeseceses

ili

TABLE OF AUTHORITIES

Page

Constitutional Provisions

ERTIES DEEL LS SEILER 1,2, 5,6, 7, 8

Decisions of the Supreme Court of the United States

Estelle v. Gamble, 429 U.S. 97 (1976)....scesescsesssereresesees 5

Farmer v. Brennan, 511 U.S. 825 (1994) ...............004 3-7

—

Wilson v. Seiter, 501 U.S. 294 (1991 oc cesssereseeeseeeees 5

The petitioner, Staff Sergeant Joshua P. Lovett,

USAF, respectfully prays that a writ of certiorari issue to

review the order and judgment of the United States Court

of Appeals for the Armed Forces entered in his case on

June 6, 2006.

OPINIONS BELOW

The order and judgment of the United States Court

of Appeals for the Armed Forces, United States v.

Lovett, 63 MJ. 211 (C.A.A.F. 2006), is located at

Appendix A.

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on June 6, 2006. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1259(3) and 10 U.S.C. § 867(a)(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishment inflicted.”

U.S. Const. amend. VIII.

STATEMENT OF THE CASE

From 23 July 1999 through 30 September 2002, the

petitioner was subjected to and forced to endure a

number of oppressive, unsanitary, and dangerous

conditions while confined at the “old” United States

Disciplinary Barracks at Fort Leavenworth, Kansas

(USDB). Through the petitioner’s many administrative

complaints and a federal class action lawsuit, the

government was on notice that inmates, such as the

petitioner, were experiencing problems and unacceptable

conditions in their living conditions at the USDB.

Despite this notice, the government did nothing to

correct these problems while the petitioner was confined

at the “old” USDB.

The treatment and conditions violate the Eighth

Amendment to the United States Constitution as they

constitute cruel and unusual punishment. As such, the

petitioner should be granted credit for every day that he

served his confinement term at the USDB between 23

July 1999 and 30 September 2002.

1. Facts

The petitioner was confined at the USDB, located at

300 McPherson Avenue, Fort Leavenworth, Kansas

66027, between 23 July 1999 and 30 September 2002.

See Declaration of SSgt Joshua Lovett, dated 19

November 2004. While confined at the “old” USDB,

3

the petitioner, who is 6 feet tall, was housed in a cell that

measured 4 feet wide, 12 feet long, and 7.5 feet high. Jd.

The petitioner’s cell was poorly ventilated and,

accordingly, subjected him to excessive cold in the

winter and oppressive heat in the summer. For instance,

on one evening in the late summer of 2001, the

temperature inside the “old” USDB measured 96 degrees

Fahrenheit. /d.

Additionally, the petitioner was, at times, struck

with falling debris from the walls and ceilings of the

“old” USDB. Jd. The dining facility, where the

petitioner ate his meals, was overrun with vermin to

include rats, mice, cockroaches, and snakes, some of

which crawled across the petitioner’s food tray during

meals. /d. During periods of heavy rain, due to the

USDB sewers backing up and flooding of the serving

and eating areas, the petitioner was forced to eat meals

while surrounded by raw human sewage. Id.

Further, the petitioner was continually exposed to

harmful lead based paint on the walls of his cell and

asbestos contained in the piping encasements that

surrounded his dry cleaning work area. Jd. While

working his dry cleaning job detail, the drain pumps

routinely failed and the dry cleaning machine constantly

leaked dry cleaning solvent. Jd. This exposed the

petitioner to a high risk of electrocution and caused the

petitioner to inhale high amounts of fumes from the

carcinogenic dry cleaning solvent used at the USDB.

4

These drainage back-ups and spills necessitated cleanup

by hazardous material specialists who wore full

protective gear. Jd. The petitioner, who had no

protective gear, was never evacuated during these

repeated incidents. Jd.

Through no fault of his own, the petitioner was also

subjected to extended periods of lockdown for time

periods of 4 to 5 days and often time periods of 1 to 2

weeks. During these lockdowns, the petitioner was not

allowed to exercise, shower, or eat warm meals. Jd. His

meals consisted of cold sandwiches, stale potato chips,

and expired milk. /d. Additionally, during the

lockdown periods, the petitioner’s only water source was

from the faucet in the ceiling of his cell that had a high

lead and iron content. Jd.

The petitioner filed repeated grievances concerning

these conditions with the USDB command staff and the

Air Force Parole and Clemency Board. See Declaration

of SSgt Joshua Lovett, dated 22 February 2005. The

petitioner’s complaints were also sent to the Office of

the Secretary of the Air Force, and he joined a class

action lawsuit that was filed in federal court regarding

the dilapidated conditions at the USDB. /d.

2. Proceedings Below

The petitioner raised the issue of cruel and unusual

punishment for the first time at the Court of Appeals for

the Armed Forces. That court determined the petitioner

did not show prison officials were deliberately

indifferent to his health and safety in violation of the

Eighth Amendment.

REASONS FOR GRANTING THE WRIT |

In Estelle v. Gamble, 429 U.S. 97, 102-03 (1976),

this Court said the Eighth Amendment prohibits

“punishments which are incompatible with ‘the evolving

standards of decency that mark the progress of a

maturing society,’ . . . or which ‘involve the unnecessary

and wanton infliction of pain[.]’’

In Farmer v. Brennan, 511 U.S. 825, 832 (1994),

this Court held that the Eighth Amendment “does not

mandate comfortable prisons,” but “neither does it

permit inhumane ones[.]” The Court defined two factors

that are necessary for an Eighth Amendment claim to

succeed regarding conditions of confinement. First,

there is an objective component, where an act or

omission must result in the denial of necessities and is

“objectively, sufficiently serious.” Jd. at 834 (quoting

Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The second.

component is subjective, testing for a culpable state of

mind. “In prison-conditions cases[,} that state of mind is

one of ‘deliberate indifference’ to inmate health or

safety[.J” Jd. (quoting Wilson, 501 U.S. at 302-03).

The ppetitioner’s allegations are objectively -

supported by findings made by the Commission on

Accreditation for Corrections. See Report on the U.S.

Disciplinary Barracks, dated 9 December 1999. The

Commission found that the USDB had no less than 10

findings of non-compliance. /d. at 16-30. None of these

findings could be remedied without the construction of a

new USDB facility. Jd. The USDB failed to meet

standards on hot and cold water, lighting, access to

natural light, noise levels, and the amount of

unencumbered space the USDB should have per

prisoner. Jd. Additionally, the report cited concerns

with sanitation and discrepancies in cleanliness

regarding food service and the food service area. Jd. at

6, 8, 14.

In the instant case, the conditions of the petitioner’s

‘confinement clearly violate the Eighth Amendment as

articulated under current case law. The petitioner

- appropriately sought administrative relief prior to

invoking judicial intervention. As noted above, the

petitioner filed grievances concerning these conditions

with the USDB Commandant, the Air Force Parole and

Clemency Board, the Office of the Secretary of the Air

Force, and was also a member of a class action lawsuit

that has been filed in federal court regarding the

dilapidated conditions at the USDB.

The petitioner’s exposure and subjugation to extreme

temperatures and poor ventilation in his cell; falling

debris from the walls and ceilings; vermin infestation in

the dining facility and eating areas; harmful fumes and

raw human sewage; and extended lockdowns are

incompatible with evolving standards of decency.

The record clearly demonstrates USDB officials’

deliberate indifference to inmate health and safety.

Certainly, officials at the USDB were aware of the

falling debris—they provided plywood boxes to catch

the falling pieces. The USDB officials were aware of

the repeated leakage of dry cleaning solvent—they

required the intervention of hazardous material teams for

cleanup. See Declaration of SSgt Joshua Lovett, dated

19 November 2004. Moreover, one can reasonably

conclude that the USDB officials were aware of the

vermin infestation and back up of raw human sewage in

the food service area—especially in light of the fact that

the petitioner filed grievances concerning these

conditions with the USDB and Air Force leadership.

Thus, the second subjective component of an Eighth

- Amendment violation, as articulated by the Supreme

Court in Farmer, is met.

CONCLUSION

The petitioner recognizes that this Court rarely

grants a petition for a writ of certiorari based solely on

claims of erroneous factual findings or the

misapplication of the law. However, in this case, the

treatment and conditions outlined above so violate the

Eighth Amendment to the United States Constitution

that they constitute cruel and unusual punishment. As

such, this Court should grant the petitioner confinement

credit for every day that he served his confinement at the

_ USDB between 23 July 1999 and 30 September 2002.

He therefore respectfully requests that this Court

grant his petition for a writ of certiorari.

Respectfully submitted,

FRANK R. LEVI

LT. COLONEL, U.S. AIR FORCE

RESERVES

Counsel of Record —

TIMOTHY M. COX

CAPTAIN, U.S. AIR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

January 2007

la

Appendix A

UNITED STATES, Appellee

v

Joshua P. LOVETT,

Staff Sergeant, U.S. Air Force, Appellant

No. 03-0072

Crim. App. No. 33947

United States Court of Appeals for the

Armed Forces

Argued October 19, 2005, and February 7,

2006

Decided June 6, 2006

ERDMANN, J., delivered the opinion of th

court, in which GIERKE, C.J., an

CRAWFORD, EFFRON, and BAKER, JJ.

joined.

_

Counsel

For Appellant: Major Karen L. Hecker (argued)

Colonel Carlos L. McDade, Major Bryan A

Bonner, Major Terry L.

2a

McElyea, Major Sandra K. Whittington, Major

James M. Winner, and Captain David P. Bennett

(on brief). |

For Appellee: Major Michelle M. Lindo

McCluer (argued); Lieutenant Colonel Robert

V. Combs, Lieutenant Colonel Gary F. Spencer,

and Major John C. Johnson (on brief).

Military Judges: Bruce T. Brown and Linda S.

Murnane.

Judge ERDMANN delivered the opinion of the

court.

Staff Sergeant Joshua P. Lovett was charged -

with possessing Percocet, raping a child under

the age of twelve, soliciting another to commit

murder, and soliciting another to plant crack

cocaine, in violation of Articles 112a, 120, and

134, Uniform Code of Military Justice (UCM5J),

10 U.S.C. §§ 912a, 920, 934 (1994),

respectively. Lovett entered pleas of not guilty

and following a general court-martial was found

guilty of possessing Percocet, raping a child,

and the lesser included offense of soliciting

another to make his wife "disappear or to

wrongfully prevent her from appearing in a civil

3a

or criminal proceeding." He was sentenced to a

dishonorable discharge, confinement for fifteen

years, forfeiture of all pay and allowances, and

reduction to pay grade E-1. The convening

authority approved the sentence and, on initial

review, the United States Air Force Court of

Criminal Appeals affirmed the findings and

sentence in an unpublished decision. United

States v. Lovett, No. ACM 33947, 2002 CCA

LEXIS 230, at *31-*32, 2002 WL 31235410, at

*11 (AF. Ct. Crim. App. Sept. 9, 2002).

We granted Lovett's initial petition for review

and found a fatal variance between the "precise

specification" of the solicitation charge and "the

general findings as returned by the members."

United States v. Lovett, 59 M.J. 230, 237

(C.A.A.F. 2004). We set aside the decision of

the Air Force court as to Charge II (solicitation)

and the sentence, and returned the case to the

Judge Advocate General of the Air Force for

remand to the lower court, with direction that

that court could either reassess the sentence or

order a sentence rehearing. Id.

The Air Force court reassessed the sentence and

affirmed the dishonorable _—_ discharge,

confinement for fourteen years, forfeiture of all

4a

pay and allowances, and reduction to E-l.

United States v. Lovett, No. ACM 33947, 2004

CCA LEXIS 201, at *7, 2004 WL 1932870, at

*3 (A.F. Ct. Crim. App. Aug. 25, 2004). Lovett

again petitioned this court for a grant of review

and we granted two issues.' The first issue is

whether life without eligibility for parole

(LWOP) was an authorized punishment for rape

of a child under twelve years of age after

November 18, 1997. The second issue is

' We granted review of the following issues on April 15,

2005:

I. WHETHER THE MILITARY JUDGE ERRED ‘BY

INSTRUCTING THE PANEL THAT THE MAXIMUM

SENTENCE WAS LIFE WITHOUT PAROLE WHEN

THAT PUNISHMENT WAS NOT AN AUTHORIZED

SENTENCE AS ITS IMPLEMENTATION HAD NOT

YET BEEN ORDERED BY THE PRESIDENT, OR, IN

THE ALTERNATIVE, WHERE INSUFFICIENT

EVIDENCE WAS PRESENTED AT TRIAL TO PROVE

THAT ANY ALLEGED ACTS OF RAPE HAD

OCCURRED AFTER 19 NOVEMBER 1997.

Il. WHETHER APPELLANT WAS SUBJECTED TO

CRUEL AND UNUSUAL PUNISHMENT WHILE IN

POST-TRIAL CONFINEMENT.

Sa

whether Lovett was subjected to cruel and

unusual punishment while in post-trial

confinement. After oral argument on the second

granted issue, we determined that “additional

briefs from the parties would be helpful with

respect to whether confinement for life without

the possibility of parole was a permissible part

of the maximum sentence in this case." United

States v. Lovett, 62 M.J. 321 (C.A.A.F. 2005).

We subsequently specified an additional issue.’

We hold that LWOP was an authorized

punishment for the offense of rape of a child

under the age of twelve after November 18,

1997. We need not decide whether the Air Force

Court of Criminal Appeals erred in determining

when the sexual acts with MM occurred because

we conclude that any instructional error on

? We specified the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS

ERRED IN FINDING THAT "SOME OF THE

APPELLANT'S SEXUAL ACTS WITH MM

OCCURRED AFTER 18 NOVEMBER 1997" WHERE

THE MEMBERS RENDERED A GENERAL VERDICT.

See United States v. Walters, 58 M.J. 391 (C.A.A-F.

2003).

6a

LWOP by the military judge was harmless.

Finally, we hold that Lovett has failed to

establish an Eighth Amendment "cruel and

unusual punishment" claim and therefore we

affirm the Air Force Court of Criminal Appeals.

DISCUSSION’

1. Life Without Eligibility for Parole.

The first granted issue in this case questions

whether LWOP was authorized for Lovett's

offense of raping a child under the age of

twelve. The President signed legislation’

enacting LWOP into law on November 18,

1997.° The President did not, however, make

conforming amendments to the Manual for

Courts-Martial (MCM) until April 11, 2002.°

> As the underlying facts were fully set forth in United

States v. Lovett, 59 M.J. 230 (C.A.A.F. 2004), we will not

restate them here.

* National Defense Authorization Act for Fiscal Year

1998, Pub. L. No. 105-85, § 581, 111 Stat. 1629, 1759

(1997) (codified at Article 56a, Uniform Code of Military

Justice (UCM3J), 10 U.S.C. § 856a (2000)).

* Signing Statement, 33 Weekly Comp. Pres. Doc. 1861

(Nov. 18, 1997),

Exec. Order No. 13,262, 67 Fed. Reg. 18,773, 18,779

(Apr. 11, 2002).

7a

Lovett's initial claim is that LWOP was not an

available punishment in trials by courts-martial

until April 11, 2002, when the President

amended the MCM. Because all the “divers

occasions" charged under Article 120, UCMJ,

occurred prior to April.11, 2002, Lovett argues

that the military judge erred by instructing the

members that LWOP was an authorized

punishment in his case. In United States v.

Stebbins, 61 M.J. 366, 368 (C.A.A.F. 2005), we

held that LWOP was an authorized punishment

for rape of a child under twelve years of age

committed after November 18, 1997, the date

upon which the President signed the LWOP

legislation into law.’ Therefore LWOP was an

authorized sentence for the rape of a child after

_November 18, 1997.

Altematively, Lovett argues that LWOP is not

an available punishment in his case because the

evidence does not prove that any single act of

” See also United States v. Ronghi, 60 M.J. 83, 86

(C.A.A.F. 2004) (LWOP authorized punishment for

premeditated murder committed after November 18,

1997); United States v. Christian, 63 M.J. 205, 2006

CAAF LEXIS 748 (C.A.A.F. 2006) (LWOP authorized

punishment for forcible sodomy of a child under twelve

years of age committed after November 18, 1997).

8a

alleged rape occurred after November 18, 1997.

Because the divers occasions alleged in the

specification of rape encompassed periods of

time both before and after that date, Lovett

claims that at least one of the divers acts must

have been found to have occurred after

November 18, 1997 in order to support LWOP

as an authorized punishment in his case.

The Air Force Court of Criminal Appeals )

considered this issue in its initial review. That

court, utilizing its Article 66(c), UCMJ, 10

U.S.C. § 866(c) (2000), factfinding power

stated, "Based upon these facts, we find that

some of the appellant's sexual acts with MM —

occurred after 18 November 1997." Lovett,

2002 CCA LEXIS 230, at *31, 2002 WL

31235410, at *11. The general verdict of guilt

rendered by the court members, however, did

not reflect any finding by the members that a

single act of rape occurred after the effective

date of LWOP. Thus we specified an issue

concerning whether the Air Force court could

make such a finding in light of United States v.

Walters, 58 M.J. 391 (C.A.A.F. 2003).

Having considered that specified issue, we

conclude that we need not determine whether

9a

the Air Force court erred by making this factual

determination.’ Even if we — were to conclude

that the lower court erred and that LWOP was

not an available punishment under the facts of

this case, any error would be harmless. Without

LWOP as an available punishment, Lovett

would have nonetheless faced a maximum

punishment that included confinement for life.

See Manual for Courts-Martial, United States pt.

IV, para. 45.e(1) (1998 ed.); see also Stebbins,

61 M.J. at 368 (noting that prior to the adoption

of LWOP, confinement for life was an

authorized punishment for rape). Despite this

maximum, trial counsel argued for a term of

confinement of thirty-five years. And, despite

the Government's argument for thirty-five years

of confinement and the instructions that LWOP

® Although we do not reach the specified issue, we note

that the Government concedes in its brief: “The United

States concedes that, given the nature of the evidence and

the general verdict the members rendered in this pre-

Walters case, it is difficult to pinpoint with certainty

whether the members convicted [Lovett] of any rapes

which occurred after 18 November 1997, when the

maximum confinement for a rape charge increased from

life to life without parole."

10a

was an authorized punishment,’ the members

retumed a sentence that included only fifteen

years confinement. Even assuming LWOP was

not an available punishment and the military

judge's instruction to the contrary was

erroneous, we are convinced that the members

were unaffected by the instruction. Any error

with respect to the maximum punishment was

therefore harmless.

2. Cruel and Unusual Punishment.

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishment inflicted.” U.S. Const. amend. VIII;

see also Article 55, UCMJ, 10 U.S.C. § 855

(2000). The Supreme Court has stated that

punishments violate the Eighth Amendment

when they "are incompatible with the evolving

standards of decency that mark the progress of a

maturing society, or which involve the

unnecessary and wanton infliction of pain.”

* Although general instructions on findings by exceptions

and substitutions were given in this case, the better

practice in this situation is for the military judge to clearly

instruct the members as to the scope of the pertinent dates

and their options or require appropriate special findings.

lia

Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.

Ct. 285, 50 L. Ed. 2d 251 (1976) (internal

quotation marks and citations omitted). Lovett

asserts that he should be awarded confinement

credit because he was forced to endure

oppressive, dangerous, and unsanitary

conditions that violated the Eighth Amendment

while he was confined at the “old" United

States Disciplinary Barracks (USDB)'®

between July 23, 1999 and September 30, 2002.

We conclude that even if the facts as asserted by

Lovett are true, he has failed to meet his burden

of establishing grounds for relief.

We have no findings of fact with respect to this

issue. Lovett's claim of cruel and unusual

punishment arose post-trial and is necessarily

supported by extra-record matter. We have

granted Lovett's motions to submit a number of

documents relating to the conditions of his post-

trial confinement at the old USDB: (1) an

undated declaration by Lovett; (2) a declaration

'° In 1994, the Secretary of the Army decided to construct

a new U.S. Disciplinary Barracks (USDB). Construction

commenced in the summer of 1998. Lovett was

apparently transferred to the new facility on or about

September 30, 2002.

12a

by Lovett dated February 22, 2005; (3) an

American Correctional Association Visiting

Committee Report for the USDB dated

December 9, 1999; and (4) two stipulations of

expected testimony from a separate judicial

proceeding litigating an issue similar to this one.

Lovett's declarations assert that he was exposed

to the following conditions during his

confinement at the old USDB:

1. acell that was only four feet wide, twelve feet

long, and seven and one-half feet high;

2. inadequate ventilation during periods of

extreme temperatures;

3. falling pieces of walls and ceilings that would

strike Lovett; -

4. vermin in the dining facility;

5. sewage backed up in the serving and eating

areas of the dining facility during heavy rains;

6. lead-based paint on the walls and ceilings of

Lovett's cell;

13a

7. asbestos coating on the pipes in the dry

cleaning facility where Lovett worked;

8. dry cleaning solvent leaking from the

machines in the dry cleaning facility creating a

risk of electrocution and exposure to fumes

from the solvent;

9. extended periods of lockdown, through no

fault on Lovett's part, during which he was not

permitted to exercise or shower;

10. meals served during these lockdowns

included stale foods and milk that was beyond

its expiration date; and,

11. high iron and lead content from the faucet

providing the only drinking water available in

the cell.

Lovett's declarations also assert that he made a

number of complaints about these conditions to

various Officials or agencies including two

Commandants of the USDB, the staff judge

advocate, the chief of staff, the "Department of

the Air Force, Office of the Assistant

Secretary", and the Air Force Clemency and

Parole Board. Lovett also asserts that he was

14a

told that a complaint under Article 138, UCMJ,

10 U.S.C. § 938 (2000), was an inappropriate

means of addressing "matters relating to... .

confinement" and therefore he joined a class

action law suit challenging the conditions at the

old USDB.

Although the Government has submitted extra-

record matters contesting the facts within

Lovett's submissions, we do not need to remand

this case for factfinding if, under the principles

in United States v. Ginn, 47 M.J. 236, 248

(C.A.A.F. 1997), “we can determine that the

facts asserted, even if true, would not entitle

appellant to relief." United States v. White, 54

M.J. 469, 471 (C.A.A.F. 2001); see also United

States v. Avila, 53 M.J. 99, 101 n.1 (C.A.A.F.

2000). We determine whether the facts alleged

constitute cruel and unusual punishment de

novo. White, 54 M.J. at 471 (citing 2 Steven A.

Childress & Martha S. Davis, Federal Standards

of Review § 7.05 (3d ed. 1999)).

As noted above, the Eighth Amendment

prohibits two types of punishments: (1) those

"incompatib:e with the evolving standards of

decency that mark the progress of a maturing

1Sa

society" or (2) those “which involve the

unnecessary and wanton infliction of pain."

Estelle, 429 U.S. at 102-03 (internal quotation

marks and citations omitted). We apply the

Supreme Court's interpretation of the Eighth

Amendment in the absence of any legislative

intent to create greater protections in the UCMJ.

See White, 54 M.J. at 473; Avila, 53 M.J. at

101. Because Lovett makes no claim that the

conditions of his confinement violate any

greater protections afforded by Article 55,

UCMJ, we need not determine the extent to

which that statute may be broader than the

Eighth Amendment. See United States v.

Matthews, 16 M.J. 354, 368 (C.M.A. 1983)

(noting that Article 55, UCMJ, intended to

provide even greater protections than the

Eighth Amendment (quoting United States v.

Wappler, 2 C.M.A. 393, 396, 9 C.M.R. 23, 26

(1953))).

To support his claim that the conditions of his

confinement violated the Eighth Amendment,

Lovett must show: (1) an _ objectively,

sufficiently serious act or omission resulting in

16a

the denial of necessities;'' (2) a culpable state of

mind on the part of prison officials amounting to

deliberate indifference to Lovett's health and

safety;'? and (3) that he “has exhausted the

prisoner-grievance system . . . and that he has

petitioned for relief under Article 138, UCMJ,

10 USC § 938 [2000].""

Assuming, without deciding, that the conditions

of Lovett's confinement were as he has claimed

them to be and that he exhausted his grievance

system remedies, we conclude _ that he has not

sustained his burden of establishing deliberate

indifference to his health and safety. Lovett's

burden to show deliberate indifference requires

him to show that “official[s] [knew] of and

disregard[ed] an excessive risk to inmate health

or safety; the official[s] must both be aware of

'' Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970,

128 L. Ed. 2d 811 (1994) (quoting Wilson v. Seiter, 501

U.S. 294, 298, 111 S. Ct. 2321, 115 L. Ed. 2d 271 (1991);

Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392,

69 L. Ed. 2d 59 (1981)).

'2 Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at

302-03).

'3 United States v. Miller, 46 M.J. 248, 250 (C.A.A.F.

1997) (quoting United States v. Coffey, 38 M.J. 290, 291

(C.M.A. 1993)) (internal quotation marks omitted).

17a

facts from which the inference could be drawn

that a substantial risk of serious harm exists, and

[they] must also draw the inference." Farmer,

$11 U.S. at 837. We will not speculate about

what pmson officials knew of the specific

conditions of Lovett's confinement or what

conclusion they might have drawn. The burden

to make that showing rested upon Lovett. He

has only indicated that he made unspecified

complaints to various officials or agencies and

that he observed no change or got no response.

In the absence of evidence showing what the

officials knew and that they disregarded known

risks to inmate safety, Lovett has failed to

demonstrate that prison officials were

deliberately indifferent to any conditions that

might have violated the Eighth Amendment.'*

nl4 He has, therefore, failed to establish his

Eighth Amendment claim.'°

* In taking Lovett's assertions as true, we did not consider

the effect cf the American Correctional Association

Visiting Committee Report for the USDB dated

December 9, 1999 (ACA Report), submitted by Lovett.

While the ACA Report does reflect noncompliance with

ten of 424 applicable nonmandatory standards, it also

18a

DECISION

The decision of the United States Air Force

Court of Criminal Appeals on further review is

affirmed. :

conveys a generally positive evaluation of the facility and

specifically reflects: 100% compliance with forty-one -

mandatory standards; an acceptable agency response

(building a new USDB) to all ten findings of

noncompliance with nonmandatory standards; that the

staff had a "positive attitude and exhibited

professionalism"; and that "[t]he overall security

operation was excellent." Had we taken this submission

from Lovett as true, as we did the claims in his

declarations, the conflict between Lovett's own

submissions would further enhance our conclusion that he

has not met his burden of showing an Eighth Amendment

violation in this case.

'S In light of our conclusion that Lovett has failed to

establish his Eighth Amendment claim, we need not

address whether Lovett initiated or exhausted the prisoner

grievance system and whether his failure to file an Article

138, UCMJ, 10 U.S.C. § 938 (2000), complaint is

excused under the circumstances of this case.