12 F.3d 1444 (9th Cir. 1992), 91-35249, LeMaire v. Maass

Docket Nº:91-35249, 91-35557.
Citation:12 F.3d 1444
Party Name:Samuel LeMAIRE, Petitioner-Appellee, v. Manfred MAASS, Superintendent, Respondent-Appellant. Samuel LeMAIRE, Plaintiff-Appellee, v. Manfred MAASS, Superintendent, Defendant-Appellant.
Case Date:September 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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12 F.3d 1444 (9th Cir. 1992)

Samuel LeMAIRE, Petitioner-Appellee,


Manfred MAASS, Superintendent, Respondent-Appellant.

Samuel LeMAIRE, Plaintiff-Appellee,


Manfred MAASS, Superintendent, Defendant-Appellant.

Nos. 91-35249, 91-35557.

United States Court of Appeals, Ninth Circuit

September 15, 1992

Argued and Submitted Sept. 15, 1992.

Submission Withdrawn Oct. 28, 1992.

Resubmitted June 18, 1993.

Opinion July 21, 1993.

Amended Aug. 13, 1993.

As Amended on Denial of Rehearing

and Suggestion for Rehearing En Banc

Dec. 23, 1993.

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[Copyrighted Material Omitted]

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Rives Kistler, Asst. Atty. Gen., Salem, OR, for the respondent-defendant-appellant.

Spencer M. Neal, Ginsburg, Gomez & Neal, Portland, OR, for petitioner-plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BEEZER, NOONAN, and TROTT, Circuit Judges.

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Judge Trott's majority opinion filed on July 21, 1993, and refiled on August 13, 1993 with Judge Noonan's amended dissent, is, with Judge Beezer's concurrence, ordered amended as reflected in the attached Amended Opinion. Judge Noonan's amended dissent filed August 13, 1993 continues to apply to Judge Trott's Amended Opinion.

With the Amended Opinion, Judges Beezer and Trott have voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Noonan has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed.R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.


TROTT, Circuit Judge:

Samuel LeMaire is suing the Superintendent of the Oregon prison in which he is incarcerated. He alleges he has been subjected to practices and conditions that violate his constitutional rights, referring primarily to the Eighth Amendment's prohibition of cruel and unusual punishment. LeMaire substantially prevailed in the district court. The Superintendent timely appeals. We have jurisdiction under 28 U.S.C. Sec. 1291, and we reverse and remand for further proceedings consistent with this opinion.


The Oregon Department of Corrections maintains the Oregon State Prison ("OSP"). Within the OSP, there is a special facility called the Disciplinary Segregation Unit ("DSU"), the purpose of which is to house separately certain inmates who have been found, in accord with published procedural requirements, to have violated Department of Corrections' Rules on Inmate Prohibited Conduct. The DSU consists of ninety cells in a three-tiered edifice separate from the main OSP building. The DSU "is the maximum control unit inside the institution housing inmates who pose a threat to the security, control and good order of the institution." Security Post Order # 34, 6 June 1989. "Normally inmates are placed in disciplinary segregation status for a rule violation only after a hearing by the Disciplinary Committee or disciplinary adjudicator." Or.Admin.R. 291-11-025(1). Currently, the maximum time an inmate may spend in the DSU at one stretch is 180 days. As the record demonstrates, and as the district court observed, the DSU serves to separate "disruptive and dangerous inmates from the general prison population" where the rules are less restrictive. It is apparent from the record that the inmates assigned to the DSU would, if left in the general prison population, make it next to impossible to manage that part of the penitentiary without considerably tightening up the rules and regulations to the discomfort and detriment of those prisoners not disposed to misbehave.

The district court described the behavior of prisoners in the DSU as a "nightmare," where staff work under "the constant threat of unpredictable assaults and bombardment with feces, urine, spit, food, and any available movable object." Moreover, as the district court observed in its opinion, "DSU inmates are violent and dangerous not only to staff, but to each other," so much so that "[t]o simply let them out in an exercise yard in groups could make defendant [Superintendent Maass] vulnerable to charges of deliberate indifference to the personal safety of inmates."

Samuel LeMaire is the sole plaintiff in this case. He is serving a life sentence in the OSP for a murder he committed in 1985, in which he killed his victim by slitting his throat. He is 5'9" tall and weighs between 250-280 pounds. LeMaire has been repeatedly held in the DSU as a result of numerous egregious violations of prison rules too numerous to recount in detail. Thus, we only highlight a representative number sufficient

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to paint a picture of the havoc for which he has been responsible.

LeMaire arrived at the penitentiary on January 2, 1986. On February 19, 1986, only a month and a half after his matriculation, LeMaire attacked a prison guard, Sergeant Dahl. LeMaire was subdued and taken immediately to the DSU. Later, he told another inmate he would "get Sgt. Dahl. I don't care if they give me six months to a year. I don't care, I am doing life anyway." After a hearing at which LeMaire admitted the attack, he was removed from the general population and ordered housed in the DSU from February 19, 1986 through November 18, 1986. By LeMaire's own admission at the hearing, the attack had been planned, and the hearing officer specifically found that LeMaire intentionally inflicted injury on Sergeant Dahl.

On November 28, 1986, just 10 days after the expiration of his stay in the DSU, LeMaire savagely attacked a fellow inmate in the Industries Dormitory with a 10-12 inch brass rod sharpened to a point at one end with masking tape on the other as a handle. LeMaire stabbed his victim twelve to fourteen times. LeMaire's stated intent as found by a hearing officer was to kill the inmate because he was a "snitch" and a "child molester." To quote the plaintiff from the hearing officer's report, "I bit [sic] the fucking snitch rapo. I'm going to the hole a long time this time, especially if the snitch doesn't make it. I gave it my damednest, after I stuck him a couple of time [sic], he was still moving though, after I bit him I should say." LeMaire also said that he approached his victim "wanting to go for his spine." LeMaire's attack was so single-minded that he sustained it for 2-3 minutes after being observed by guards and verbally ordered to stop.

At the disciplinary hearing convened to deal with this incident, LeMaire admitted the assault with a weapon and was assigned again to the DSU from November 28, 1986 through November 27, 1987. Based on LeMaire's record, Superintendent Maass made a finding in writing dated January 14, 1987 that "LeMaire represents a serious threat to the safety and well-being of others within the Oregon State Penitentiary." The superintendent's assessment is fully supported by the record and borne out by subsequent events.

A review of LeMaire's meticulously documented behavior in the DSU, and the Findings of Fact, Conclusions, and Recommendations of numerous disciplinary hearings convened to cope with this behavior, explains the district court's description of the general situation created in that unit by the inmates as a "nightmare." This review also provides us with the full dimensions of the security and disciplinary problems LeMaire represents to the penitentiary and the DSU, and it shows us in great detail how staff and administrators dealt with him. For example, on January 5, 1987, LeMaire refused to give up his tray after the morning meal. When ordered to give it up, he balked and said, "If you want it mother fuckers come and get it, I'm ready for you." He then assaulted corrections officers with hot water, toilet water, and food, while intermittently banging the tray on the bars, causing the rest of the tier to do the same. To restore order, LeMaire was maced. When his cell door was opened, he charged out of his cell and rammed his head into an officer's chest. For this incident, LeMaire's stay in DSU was extended as recommended by a hearing officer and approved by the Superintendent.

Skipping over numerous episodes wherein LeMaire assaulted officers with urine and feces, we move to an incident demonstrating LeMaire's behavior when he is permitted to engage in outdoor activities or interact with other inmates. On June 18, 1987, LeMaire attacked a fellow inmate while in the DSU recreation yard. He refused verbal orders to stop and did not disengage until a shot was fired from a guard tower into the grass. As a result of a disciplinary hearing on July 8, 1987, his stay in the DSU was again extended, and his DSU yard privileges were curtailed for two months. The recommendation issued by the hearing officer noted that it "would certainly appear that other sanctions have been proven inadequate in curtailing Inmate LeMaire's assaultive misconduct within the penitentiary."

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LeMaire then resumed his relentless assaults on officers and other inmates using feces and urine as his primary weapons. These assaults are documented in the record. For example, on November 9, 1988, he threw feces on a lieutenant. He later asked the lieutenant "if that shit tasted good," noting that he "mixed it up special" for him. LeMaire said, "I know I got you in the mouth. It was chunky, too." On January 26, 1989, a hearing officer noted that the disciplinary incident under review "represented Inmate LeMaire's 25th major rule...

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