301 F.Supp. 786 (M.D.Tenn. 1969), Civ. 5385, Hancock v. Avery

Docket NºCiv. 5385
Citation301 F.Supp. 786
Party NameHancock v. Avery
Case DateJuly 02, 1969
CourtUnited States District Courts, 6th Circuit, Middle District of Tennessee

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301 F.Supp. 786 (M.D.Tenn. 1969)

Don Lee HANCOCK, Plaintiff,


Harry S. AVERY, Commissioner, Tennessee Department of Corrections and Lake F. Russell, Warden, Tennessee State Penitentiary, Defendants.

Civ. No. 5385.

United States District Court, M.D. Tennessee

July 2, 1969

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[Copyrighted Material Omitted]

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Richard E. Rudesill, Nashville, Tenn., for plaintiff.

Elmer D. Davies, Jr., Asst. Atty. Gen., Nashville, Tenn., for defendants.



This action is before the Court for a temporary restraining order on the plaintiff's allegation that he has been subjected to cruel and unusual punishment. The action is before the Court on the amended complaint of Don Lee Hancock, an inmate of the Tennessee State Penitentiary at Nashville. Named as defendants in the original complaint are the former Commissioner of the Tennessee Department of Corrections, the former Warden of the Tennessee State Penitentiary at Nashville, and in the amended complaint their respective successors.

Plaintiff seeks injunctive relief from cruel and unusual punishment pursuant to 28 U.S.C.A. 2281 et seq. More specifically, he prays that the Court grant injunctive relief restraining the enforcement, operation, or execution of T.C.A. 41-707 which provides as follows:

Solitary confinement for violation of rules:-- If any convict neglects or refuses to perform the labor assigned him or willfully injures any of the materials, implements, or tools, or engages in conversation with another convict, or in any other manner violates any of the regulations of the penitentiary, he may be punished by solitary confinement for a period not exceeding thirty (30) days for each offense, at the discretion of the warden, or person acting in his place.

In support of plaintiff's allegations of curel and unusual punishment, the record reveals the following facts. On June 3, 1969, plaintiff was placed in a so-called 'dry cell' by prison officials for purposes of solitary confinement pursuant to the authority granted them by T.C.A. 41-707 as set out above. The dry cell in which petitioner is confined

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measures approximately five by eight feet, is of concrete construction, and has a single steel door. The cell is unlighted save for dim artificial light which seeps into the cell from the outside corridor through two small slit screens in the cell door. Plaintiff alleges that he is thus being deprived of adequate light and ventilation for the entire duration of his stay in the cell.

The interior of the cell is devoid of furnishings except that there is at the rear of the cell a hole constructed to receive bodily wastes. There is, however, no mechanism within the cell to allow an occupant to flush waste material from the hole. Rather, the flushing operation is controlled by a guard operating a flushing device located outside of the cell. This operation is carried out only five times every twenty-four hours, three times during daylight hours and twice at night. As a result of this infrequent flushing, objectionable odors often permeate the cell.

While there is a factual dispute as to whether or not the dry cell had been cleaned when plaintiff was placed in it there is no dispute as to the fact that it is not normally cleaned during the duration of a prisoner's stay in the cell.

Plaintiff has been forced to remain in the dry cell without any means of cleaning his hands, body or teeth. He is denied the use of soap, towel, toilet paper, and other hygienic materials. No means have been provided which would enable him to clean any part of his body at anytime. He is fed three times a day, a slice of bread at breakfast and supper, and a regular meal at noon. The noon meal is folded into a paper container and given to plaintiff by sliding it through a small crack in the cell door. It is apparent from the foregoing facts that plaintiff is thus forced to handle and eat his food without any provision for cleanliness or even minimal sanitary conditions.

During the term of his confinement in the dry cell, plaintiff has not been permitted to wear clothing of any kind and is being forced to remain in the cell entirely nude. As a result, he is forced to sleep completely nude on the bare concrete floor. Even though he has requested a blanket, its use has been denied him.

Countering the contentions of plaintiff that he is being subjected to cruel and unusual punishment, defendants argue that plaintiff's convinement in the dry cell was necessary to protect the safety of prison personnel and plaintiff's own safety. They contend that confinement of plaintiff without clothing in the totally barren cell was necessary to prevent his access to any material from which a weapon could be fashioned for use against himself or prison personnel. They further contend that articles of clothing, plumbing fixtures and furnishings could all provide raw material for such a weapon and thus must be denied to the plaintiff. Defendants argue that plaintiff's health was not seriously endangered by such practices because he had daily opportunity to make medical complaints to prison medical personnel. Defendants' concern with these matters arises out of the fact that plaintiff has twice attempted suicide and is suspected of involvement in the serious stabbing of a prison guard. Furthermore, plaintiff has twice attempted to escape from cells less secure than the dry cell. It is defendants' contention that dry cells are employed only for the housing of those inmates who are so incorrigible as to be beyond the reach of normal methods of confinement. Finally, it is defendants' basic position that the determination as to the methods of dealing with such incorrigible persons is a matter of internal management of state prisons and should be left to the discretion of prison administrators.

Before reaching the merits of plaintiff's claim, the Court must deal with a preliminary matter. Although injunctive relief is sought under28 U.S.C.A. 2281 et seq., which would require the convening of a three-judge court, the Court concludes that a three-judge court is not necessary in the instant case.

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The reason for this conclusion lies in the fact that here the substantial federal claim is not that the statute involved (T.C.A. 41-707) is facially unconstitutional, but that the statute as actually applied in plaintiff's case is violative of his constitutional right to be free from cruel and unusual punishment. This Court has held in the past that a three-judge court is necessary under 28 U.S.C.A. 2281 only where the constitutionality of a state statute itself is challenged. Where, as here, only the application of such a statute is subjected to constitutional attack, a three-judge court is without jurisdiction under 28 U.S.C.A. 2281. See Hinton v. Threet, 280 F.Supp. 831 (M.D.Tenn.1968), and Liveright v. Joint Committee of General Assembly of State of Tennessee, 279 F.Supp. 205 (M.D.Tenn.1968). This...

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