Novak v. Beto, 31116.

• Citation: 456 F.2d 1303
• Decision Date: 08 March 1972
• Docket Number: No. 31116.,31116.
• Parties: Ronald NOVAK, individually and on behalf of all others similarly situated, and Fred Cruz, Petitioners-Appellants, v. Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

456 F.2d 1303 (1972)

Ronald NOVAK, individually and on behalf of all others similarly situated, and Fred Cruz, Petitioners-Appellants, v. Dr. George J. BETO, Director of the Texas Department of Corrections, Respondent-Appellee.

No. 31116.

United States Court of Appeals, Fifth Circuit.

March 8, 1972.

William Bennett Turner, San Francisco, Cal., Frances T. Freeman Jalet, Houston, Tex., for petitioners-appellants.

Mario G. Obledo, Gen. Counsel, San Francisco, Cal. (Mexican American Legal Def.), amici curiae.

Harrell Moore, Asst. Atty. Gen., Larry J. Craddock, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before TUTTLE, THORNBERRY and INGRAHAM, Circuit Judges.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion Dec. 9, 1971, 5 Cir., 1971, 453 F.2d 661).

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

TUTTLE, Circuit Judge (dissenting from the denial of rehearing).

Since I am not a member of the court in active service, I, of course, did not have an opportunity to vote on the grant or denial of the motion for rehearing en banc. I, therefore, am not able, technically, to concur in the dissenting opinion filed by Judge Wisdom from the denial of rehearing en banc. However, the court, as originally constituted, has also before it for consideration a petition for rehearing. The court, by majority vote, has denied this petition. I, therefore, register this dissent from the denial by the original panel of the court of the petition for rehearing on the grounds stated by me in my original dissent to the opinion of the court, and I also wish to incorporate in this dissent all that is so well stated by Judge Wisdom in his dissent from the denial of rehearing en banc.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

JOHN R. BROWN, Chief Judge, with whom GODBOLD, Circuit Judge, joins, dissenting:

The factors outlined by Judge Tuttle's dissent and those in parts A, D and E of Judge Wisdom's dissent convince me that this case should be reheard en banc. I dissent to the Court's failure to grant it.

WISDOM, Circuit Judge, with whom GOLDBERG and SIMPSON, Circuit Judges join, dissenting from the denial of rehearing en banc:

With deep distress and profound regret I note the refusal of a majority of the members of this Court to give en banc consideration to this case. The absence of en banc consideration of the constitutionality of the solitary confinement procedures of the Texas Department of Corrections compounds the unfortunate result reached by the panel majority. Judge Tuttle's dissent from the panel decision effectively criticizes the result and the reasoning of the panel majority and affirmatively establishes a foundation, on the facts and on the law, for a contrary result. Notwithstanding my repetition of some of Judge Tuttle's views, I feel compelled to add my reflections on the case, so that the Court's action will not be taken as a routine rejection of a petition for rehearing en banc.

A. Rule 35 of the Federal Rules of Appellate Procedure provides in pertinent part:

A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except . . . when the proceeding involves a question of exceptional importance. (Emphasis supplied.)

"In view of recent tragic incidents in this Nation's prisons and of the frequent assertions of the inadequacy of our penal systems", factors conspicuously recognized by the panel majority, it would seem that the "exceptional importance" of this case cannot be denied. Moreover, on a carefully tried and meticulously detailed record this case raises the exceptionally important issue of the constitutionality of the Texas form of solitary prison confinement in a broad context—the prison system of one of the most populous states and the largest state within the continental limits of the United States. Many concerned citizens in this country must feel that this Court has refused to live up fully to the constitutional "curative function" of appellate review. En banc appellate review is properly confined, because of the work-load of overburdened Courts of Appeals, to a few select cases raising issues of "exceptional importance". This is such a case.

B. I would reach a result contrary to that of the panel majority. There are, of course, situations where recalcitrant prisoners must be removed from the general prison population and isolated, but the Texas Department of Corrections has developed a constitutionally impermissible means for operating its system of solitary confinement. The facts which lead to a conclusion that cruel and unusual punishment exists in the Texas system of isolation are not in dispute. Prisoners in solitary confinement live in barren, lightless cells, "feed", to use the term loosely, on two slices of bread and water each day,¹ and are clothed only in a cloth gown and shielded by a blanket. The conditions of solitary confinement, whether described by the panel majority or described by Judge Tuttle in dissent, constitute cruel and unusual punishment under any of the many definitions of the practices prohibited by the Eighth Amendment.

"What constitute a cruel and unusual punishment has not been exactly decided." Weems v. United States, 1910, 217 U.S. 349, 368, 30 S.Ct. 544, 54 L.Ed. 793. This statement is as true today as it was in 1910. It is possible, however, to identify three general approaches to the definition of "cruel and unusual punishment". See Jordan v. Fitzharris, N.D. Cal.1966, 257 F.Supp. 674, 679. (1) A punishment may be "cruel and unusual" if it is "of such character . . . as to shock general conscience or to be intolerable to fundamental fairness", Lee v. Tahash, 8 Cir. 1965, 352 F.2d 970, 972, in light "evolving standards of decency". Trop v. Dulles, 1958, 356 U.S. 86, 100-101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630. See Weems v. United States, supra; State ex rel. Francis v. Resweber, 1947, 329 U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422; Rudolph v. Alabama, 1963, 375 U.S. 889, 84 S.Ct. 155, 11 L.Ed.2d 119 (Goldberg, J., dissenting); Jackson v. Bishop, 8 Cir. 1968, 404 F.2d 571. (2) A punishment may be "cruel and unusual" if it is greatly disproportionate to the offense for which it is imposed. See Weems v. United States, supra; Robinson v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (Douglas, J., concurring); Rudolph v. Alabama, supra (Goldberg, J., dissenting); Jackson v. Bishop, supra. (3) A punishment may be "cruel and unusual" when it goes beyond the purpose for which it is used; that is, when it overreaches its aim. See Weems v. United States, supra; Robinson v. California, supra, (Douglas, J., concurring); Rudolph v. Alabama, supra (Goldberg, J., dissenting).

As Judge Tuttle demonstrates, the Texas system of solitary confinement is cruel and unusual because of its conditions, a lack of procedural safeguards and severe limits on its use, and "overkill". I do not understand how the majority can find refuge in the fact that prisoners in solitary are provided with basic elements of personal hygiene, and I am quite certain that this distinction brings little consolation to prisoners in solitary. To read the earlier cases in this area as drawing a line of demarcation based on the presence or absence of soap and toilet paper is to misread these cases and to misconceive the thrust of the Eighth Amendment. Nor do I find help in the disciplinary regulations promulgated by the Texas Department of Corrections, for both on their face and as applied, these regulations merely reinforce my views as to the unconstitutionality of the solitary confinement procedure. Finally, the panel majority relies heavily on statistics to establish, as they interpret the statistics, the infrequent use of solitary, the limited duration of its use, and the scarcity of repetition of its use. These figures are irrelevant: when there is alleged cruel and unusual punishment as part of a system of penal corrections, a "de minimus" defense based on statistics is a contradiction in terms. Assuming, however, that the figures are relevant, I read them, not as justifying the Texas solitary confinement procedure but, as providing substantial support for the plaintiffs' contention of pervasive, lengthy, and repeated use of a form of confinement I would classify as cruel and unusual punishment.

C. The Court declares, "most of the conditions challenged by appellants have withstood scrutiny by other courts." The majority exhibits a reluctance to move beyond the limits which they read into prior cases. But I do not perceive those limits. The conditions at issue in the present case are far worse than those approved in the majority of the prior cases which have denied relief. At the same time, numerous decisions have granted relief to prisoners from conditions far less onerous than those complained of in the instant case. Indeed, the opinion of the panel majority runs counter to the recent trend of court decisions recognizing the right of prisoners to seek judicial review of their conditions of confinement and providing relief from unconscionable methods of incarceration. In addition to those cases discussed by the panel, here are a few of the more noteworthy cases from a long list of recent decisions: Martinez v. Mancusi, 2 Cir. 1971, 443 F.2d 921; Nolan v. Scafati, 1 Cir. 1970, 430 F.2d 548; Pierce v. LaVallee, 2 Cir. 1961, 293 F.2d 233; ...