Cody v. Hillard

BOWMAN, Circuit Judge. This is an appeal from an order of the District Court requiring officials at the South Dakota State Penitentiary (SDSP) to cease the double-celling of inmates at SDSP, both in the general population and in protective custody. On appeal, before a panel of this Court, the officials contended that the trial court erred in finding that double-celling of inmates at SDSP violates the Eighth and Fourteenth Amendments to the United States Constitution. They also claimed that the District Court erred in using the “rated capacities” of the American Corrections Association (ACA) as a reference for measuring the permissible capacity of the prison under the Eighth Amendment. Inmates in protective custody cross-appealed, claiming that under — 913 — SDSP rules they were treated differently from inmates in the general population in violation of their rights under the equal protection clause. The panel, with one member dissenting, affirmed the District Court’s order. Cody v. Hillard, 799 F.2d 447 (8th Cir.1986). The prison officials petitioned this Court for rehearing en banc, and we granted the petition. Cody v. Hillard, 804 F.2d 440 (8th Cir.1986). After further briefing and oral argument to the Court en banc, we now reverse the District Court’s order with respect to double-celling. The facts of the case are detailed in the panel opinion, 799 F.2d at 448-49, and in the extensive factual findings of the District Court, Cody v. Hillard, 599 F.Supp. 1025, 1026-46 (D.S.D.1984). We will not repeat them here. As recognized by the District Court, the panel majority, and the panel dissent, the inmates’ Eighth Amendment claims regarding the conditions of their confinement are governed by the Supreme Court’s opinion in Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). In Rhodes, the Supreme Court specifically considered whether double-celling at an Ohio prison constituted cruel and unusual punishment under the Eighth Amendment. The Court held, based on the undisputed factual findings of the district court, that the “conclusion that double celling at [the Ohio facility] constitutes cruel and unusual punishment is insupportable.” Id. at 347, 101 S.Ct. at 2400. The Court made clear in Rhodes that “when the conditions of confinement compose the punishment at issue,” those conditions “must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment.” Id. The Court referred to conditions that are “ ‘totally without penological justification,’ ” id. at 346, 101 S.Ct. at 2399 (quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976)), as the kind of conditions that violate the Eighth Amendment. Recently, the Court elaborated further on this standard in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Justice O’Connor, writing for the Court, observed that “[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 cell-block.” Id. 106 S.Ct. at 1084. As Rhodes and Whitley make clear, the Eighth Amendment leaves very broad latitude to the states in the administration of their prisons. “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Moreover, the federal courts traditionally have adopted a broad hands-off attitude toward problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. For all of those reasons, courts are ill — 914 — equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities. Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974) (footnotes omitted). All of these observations aptly fit this case. See also Goff v. Nix, 803 F.2d 358, 371 (8th Cir. 1986), petition for cert, filed, May 20, 1987. Even granting that the District Court’s factual findings are correct, double-celling at SDSP simply does not evince the “wanton and unnecessary infliction of pain” necessary to constitute a violation of the Eighth Amendment. Rhodes, 452 U.S. at 347, 101 S.Ct. at 2399. Double-celling could be viewed as cruel and unusual punishment only if it “[led] to deprivations of essential food, medical care, or sanitation” or if it “increase[d] violence among inmates or create[d] other conditions intolerable for prison confinement.” 452 U.S. at 348, 101 S.Ct. at 2400. The record in this case falls far short of supporting the District Court’s conclusion that the line drawn by Rhodes has been crossed by double-celling at SDSP. Accordingly, there is no constitutional basis for the District Court’s remedial order with respect to double-celling. In the District Court's final order its remedy is based on compliance with ACA rated capacities, which in turn were based on recommendations by the South Dakota penitentiary authorities. The Supreme Court has explicitedly rejected the proposition that such standards establish a constitutional norm. In Bell v. Wolfish, the Court stated that “while the recommendations of these various groups [such as ACA] may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.” 441 U.S. 520, 543-44 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979). In Rhodes, the court quoted the foregoing statement from Wolfish and further observed in regard to Eighth Amendment claims that generalized opinions of experts cannot weigh as heavily in determining contemporary standards of decency as “the public attitude toward a given sanction.” We need not consider the propriety of the District Court’s final order mandating relief and its reference to ACA rated capacities in view of our conclusion that on the record before us double-celling at SDSP does not violate the Eighth Amendment. The District Court found that “[d]oublecelling over time has a negative impact on all programs and services” and “has resulted in crisis management with respect to the maintenance of ancillary support facilities such as food services, laundry services, medical services, plumbing and electrical wiring.” Cody v. Hillard, 599 F.Supp. 1025, 1033 (D.S.D.1984). The District Court detailed such problems in these areas as unsanitary practices in storing and preparing food, the use of untrained inmates to provide medical services to other inmates, inadequate ventilation and plumbing, and substandard electrical wiring and other fire hazards. Whatever the merit of these findings, there has been no showing, and the District Court has made no finding, that the elimination of double-celling will alleviate these problems to any perceptible degree. An appropriate remedy would relate to correction of the constitutionally deficient conditions that have been found to exist, if any there be, rather than to the elimination of double-celling. The District Court also found that double-celling at SDSP has resulted in an overloading of services such as the work, recreation, and school programs. 599 F.Supp. at 1033. Even accepting this finding, we cannot conclude that such overloading is significant for purposes of the Eighth Amendment. In fact, the Supreme Court dismissed precisely this sort of contention as a basis for finding cruel and unusual punishment in Rhodes, stating that “limited work hours and delay before receiving education do not inflict pain, much less unnecessary — 915 — and wanton pain; deprivations of this kind simply are not punishments.” 452 U.S. at 348, 101 S.Ct. at 2400. The District Court further found that “[s]ince the advent of double-celling in approximately the first part of 1981, there has been one recorded instance of a riot involving approximately twenty persons ... and approximately sixty incidents ... of fighting or assaults between inmates and/or inmates and staff.” 599 F.Supp. at 1033. Prison violence is, of course, not a recent development and occurs with similar frequency in institutions that do not double-cell. There is nothing in the record to show the comparable number of incidents of violence at SDSP before and after double-celling. Accordingly, there is no evidentiary basis for a conclusion that doublecelling has caused an increase in such incidents, and we note that the District Court did not make a finding on this question of fact. Significantly, many of the District Court’s factual findings suggest that the conditions at SDSP, regardless of the impact of double-celling, fall well within constitutional standards. The District Court found that “[tjhere is a relatively low level of tension between inmates and staff at the SDSP,” 599 F.Supp. at 1033, that the level of sanitation at SDSP is adequate, id. at 1052, and that the prison administrators and staff have made sincere efforts to maintain a healthful environment. Id. Similarly, the District Court found that the prison administration has taken various steps “to reduce the negative impact of double-celling.” Id. at 1033. As the District Court recognized, the prison administration is striving within the limits of available resources to restrict the amount of double-celling that must be done to accommodate the rising tide of convicted felons. This hardly reflects “obduracy and wantonness” on the part of those whose job it is to manage SDSP.1 See Whitley, 106 S.Ct. at 1084. The conditions described in this record cannot be said to inflict pain or amount to punishment, nor can prison administrators making “sincere efforts” be said not to be acting in “good faith.” Id. at 1084. The present case is light years removed from the torture, cruel deprivation, and sadistic punishment with which the Cruel and Unusual Punishments Clause is concerned. See Hutto v. Finney, 437 U.S. 678, 681-84 & nn. 3-6, 98 S.Ct. 2565, 2568-70 & nn. 3-6, 57 L.Ed.2d 522 (1978) (conditions included use of a five-foot long leather strap to whip inmates for minor offenses, use of a device to administer “electrical shocks to various sensitive parts of an inmate’s body,” and use of inmate guards authorized to use deadly force against “escapees” and who therefore could “murder another inmate with practical impunity”). The lack of anything in this record even remotely approaching these conditions, or even remotely showing any conditions of confinement that fall below the constitutional standards elucidated in cases such as Rhodes and Whitley, reveals the impropriety of the District Court's order. The District Court enjoined the State from double-celling in the protective custody area of the prison. The court found that the double-celling of protective custody inmates was “inappropriate and without correctional justification,” and that “[tjhese inmates need protection not only from other inmates in the general population but also from other protective custody inmates.” 599 F.Supp. at 1034. The District Court here merely substituted its “judgment for that of officials who have made a considered choice.” Whitley, 106 S.Ct. at 1085. Whether an inmate in protective custody needs protection from someone with whom he is assigned to share a cell is a matter more appropriately left to the prison officials who are charged with making decisions of this nature. Courts should be mindful that our authority in such questions “spring[s] from constitutional re — 916 — quirements and that judicial answers to them must reflect that fact rather than a court’s idea of how best to operate a detention facility.” Wolfish, 441 U.S. at 539, 99 S.Ct. at 1874 (citations omitted). We have found nothing in the record or the District Court’s findings of fact to persuade us that our conclusions regarding double-celling generally should be different with regard to the protective custody area of the prison. The record before us at most demonstrates that SDSP is not always comfortable. As the Supreme Court noted in Rhodes, however, “the Constitution does not mandate comfortable prisons, and prisons of [SDSP’s] type, which house persons convicted of serious crimes, cannot be free of discomfort. Thus, these considerations properly are weighed by the legislature and prison administration rather than a court.” 452 U.S. at 349,101 S.Ct. at 2400. Doublecelling in the circumstances presented by this record does not violate the Eighth Amendment. We therefore reverse the District Court’s order with respect to double-celling. The panel opinion also addressed the cross-appeal of the protective custody inmates, who claimed that conditions in the protective custody unit were inferior to conditions in the general population units, and that the order ending double-celling was not sufficient, for purposes of their constitutional right to equal protection, to bring the conditions in which they were kept in line with those of the general inmate population. 799 F.2d at 451. The panel unanimously held that the protective custody inmates had not shown “ ‘that they received treatment which was invidiously dissimilar to that received by other inmates,’ ” and thus that the protective custody inmates could not succeed on their equal protection claim. Id. (quoting Lyon v. Farrier, 730 F.2d 525, 527 (8th Cir.1984) (per curiam)). A petition for rehearing en banc of the cross-appeal was rejected by this Court. Cody v. Hillard, Nos. 87-5270/5302 (8th Cir. Oct. 6, 1986). Accordingly, that portion of the panel opinion rejecting the claim of the cross-appellants is not before the Court en banc, and the panel’s disposition of the claim will stand. To summarize, we reverse the order of the District Court insofar as it finds that double-celling of inmates at SDSP violates the Eighth and Fourteenth Amendments. We leave undisturbed the panel affirmance of the District Court’s order rejecting the protective custody inmates’ challenge to the additional restrictions attendant to their protective custody. We remand the case to the District Court and direct it to vacate its order requiring SDSP to cease double-celling and to bring its inmate population within ACA guidelines. Affirmed in part, reversed in part, and remanded with directions. Footnotes [1] The District Court’s order prohibits doublecelling of even those inmates who voluntarily have chosen to share the same cell, and thus implies that such voluntary double-bunking constitutes an Eighth Amendment violation. The suggestion that such voluntary double-bunking constitutes cruel and unusual punishment under the standards announced in Rhodes and Whitley clearly is insupportable.