Thomas v. Pate

• Decision Date: 04 April 1974
• Docket Number: 71-1411.,No. 71-1410,71-1410
• Citation: 493 F.2d 151
• Parties: Charles THOMAS, Plaintiff-Appellant, v. Warden Frank J. PATE et al., Defendants-Appellees. Luther W. MILLER, Plaintiff-Appellant, v. ILLINOIS DEPT. OF CORRECTION, ILLINOIS STATE PENITENTIARY, Warden Frank J. Pate, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

493 F.2d 151 (1974)

Charles THOMAS, Plaintiff-Appellant, v. Warden Frank J. PATE et al., Defendants-Appellees.

Luther W. MILLER, Plaintiff-Appellant, v. ILLINOIS DEPT. OF CORRECTION, ILLINOIS STATE PENITENTIARY, Warden Frank J. Pate, Defendants-Appellees.

Nos. 71-1410, 71-1411.

United States Court of Appeals, Seventh Circuit.

January 10, 1974.

Rehearings Denied April 4, 1974.

COPYRIGHT MATERIAL OMITTED

Lynne E. McNown, Jerold S. Solovy, Chicago, Ill., for plaintiffs-appellants.

William J. Scott, Atty. Gen., Thomas E. Holum, James B. Zagel, Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Circuit Judge, KILKENNY, Senior Circuit Judge,^* and STEVENS, Circuit Judge.

FAIRCHILD, Circuit Judge.

Plaintiffs Thomas and Miller are black inmates incarcerated in the Illinois State Penitentiary at Joliet, Illinois. They appeal from a judgment entered in favor of defendant prison officials in three consolidated actions. These suits were brought under 42 U.S.C. § 1983 seeking injunctive and monetary relief for alleged violations of plaintiffs' civil rights. Plaintiffs assert that prisoners are housed in racially segregated cells; that because of their race, black prisoners are afforded less desirable job and educational opportunities than other prisoners; that conditions in the disciplinary cells constitute cruel and unusual punishment; that plaintiff Thomas was denied procedural due process in intraprison disciplinary proceedings; that plaintiff Thomas was punished for his refusal to admit guilt; that plaintiff Thomas was denied proper medical care; that plaintiff Thomas was denied reasonable access to the courts; and that defendants violated the equal protection clause by their method of distributing underwear to prisoners.

On appeal, plaintiffs argue that they were denied a fair hearing by the district court's refusal to permit them to address the court directly despite plaintiffs' express dissatisfaction with court-appointed counsel;¹ that the district court erred in finding there is no racial discrimination at the prison; and that the district court should not have dismissed various portions of the Thomas complaint for failure to state a claim upon which relief can be granted.

It appears from the complaints that plaintiffs attempted to bring these actions on behalf of a class consisting of all black inmates incarcerated in the prison. The district judge found that plaintiffs are not representative of any group of prisoners confined in the prison. We do not review the appropriateness of this finding because plaintiffs have not raised this issue on appeal.

1. Racial Discrimination in Composition of Cells.

The racial composition of the prison at the time of trial was 60.2% black and 39.8% Caucasian and other minorities. The general population is housed in one-man, three-men, six-men, and twelve-men cells; prisoners confined in punitive status are housed in twelve-men cells.

Each cell-block houses a racially mixed population of prisoners. However, the uncontradicted testimony of plaintiffs reveals that it is and has been in the past extremely unusual for a black prisoner to share a cell with a Caucasian or a prisoner of another race. Cellhouse charts maintained by prison officials record the racial composition of each cell but were not introduced at trial.

Unfortunately the paucity of evidence in the present record with regard to prison policies governing cell assignments for incoming prisoners and prisoners' cell transfer requests precludes us from determining whether the existing condition of segregation is attributable to the state, so that violation of the equal protection clause of the fourteenth amendment is demonstrable. See generally Comment, School Desegregation After Swann: A Theory of Government Responsibility, 39 U.Chi.L.Rev. 421 (1972).

The evidence is insufficient to determine without speculation whether cell assignments of new inmates prior to 1966 were made without regard to race or were designed to preserve racially homogenous cells. Mr. Shea, a prison official, testified that the first attempt affirmatively to create racially balanced cells by considering race in assigning new inmates occurred about 1966. The only other relevant evidence is defendants' ambiguous admission in the amended and reinstated answer that at "various times in the past," incoming inmates have been assigned cellmates by "considering racial characteristics among others."

It is also not clear whether prior to 1966 the prison honored a request of an inmate to transfer from a cell in which all the occupants were members of his race to a cell housing inmates of other races. Testimony of Mr. Shea on transfer policies relates to time periods subsequent to 1966. Plaintiff Thomas submitted a verified document containing a conclusory allegation that requests to transfer are routinely denied.

Mr. Shea's uncontradicted testimony indicates that between 1966 and 1968, prison officials considered race in assigning cells to incoming inmates in order to obtain racially balanced cells.² No statistics have been introduced to indicate the extent of this effort or the proportion of inmates presently incarcerated who were affected by this policy change.

During this period, prison officials attempted to discourage prisoners from transferring in order to avoid living in racially integrated cells. There is, however, no evidence indicating the number of prisoners who insisted upon transferring to racially segregated cells. It does not appear that defendants adopted a program of reassigning prisoners placed in segregated cells prior to 1966, and continuing therein.

The record is uninformative about prison practices with respect to assignment and transfer subsequent to 1968. Mr. Shea indicated that because of an incident within the prison at the time that Dr. Martin Luther King died, the authorities became more reluctant to interfere with prisoners' choices of cellmates. There is no testimony as to whether the policy at the time of trial was to ignore race in assigning incoming inmates to cells or whether race was considered either with the objective of maintaining racially segregated or racially balanced cells. Transfer policies are not clearly revealed.

In Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968), the Supreme Court affirmed the order of a three judge district court declaring that Alabama statutes requiring racial segregation in prisons are unconstitutional and establishing a schedule for desegregation. In Cruz v. Beto, 405 U. S. 319, 321, 92 S.Ct. 1079, 1081, 31 L. Ed.2d 263 (1972), the Court cited Lee for the principle that "racial segregation, which is unconstitutional outside prisons, is unconstitutional within prisons, save for `the necessities of prison security and discipline.'" See also, United States v. Wyandotte County, Kansas, 480 F.2d 969 (10th Cir. 1973).

Assuming (although we have noted that it is not clear) that recent policy has not tended to produce racial segregation, there would remain a question of the extent of the duty of defendants to remedy segregation which is a residue of pre-1966 policy, if unlawful.

In instances involving past de jure segregation in schools, the authorities have an affirmative obligation to dismantle the former system. See Swann v. Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1970), reh. denied 403 U.S. 912, 91 S.Ct. 2200, 29 L.Ed.2d 689; Green v. New Kent County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L. Ed.2d 716 (1968); Keyes v. School Dist. No. 1, Denver, Colorado, 413 U.S. 189, 220-223, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973) (Powell, J., concurring).

It is our opinion that a similar affirmative duty applies with respect to a past practice of racial segregation in a prison. Although there may be relevant differences between the prison and school situations in terms of risk of racial conflict, potential for violence, and compelled proximity between individuals. and between the rehabilitative and educational purposes served, the principle that intentional segregation is unlawful yields only to "the necessities of prison security and discipline." Lee and Cruz, supra. We think the corrollary that there is an affirmative duty to remedy past unlawful practice would yield only to similarly compelling interests.

It can not be determined from the record in this case whether some of the prisoners, for example those remaining in cells assigned prior to 1966, were there as the result of policies pursued under color of law, or, in other words, of de jure segregation similar to that declared unconstitutional in Lee v. Washington, supra.

Assuming the affirmative, defendants must show that they satisfied the affirmative duty to remedy the past practice. In practical terms, they may find it necessary to establish that they have effectuated some degree of actual integration in the prison; for any showing other than the objective fact of actual integration at the present is unlikely to persuade either the members of the prison community or the courts that prison officials have abandoned unconstitutional prior practices of compulsory racial segregation. See Hobson v. Hansen, 269 F.Supp. 401, 494-495 (D.C.1967), appeal dismissed, 393 U.S. 801, 89 S.Ct. 40, 21 L.Ed.2d 85. But see Boyd v. Pointe Coupee Parish School Bd., 332 F.Supp. 994 (E.D.La.1971). Once again the paucity of evidence in the record precludes us from resolving these issues.

The record establishes that at the time of the commencement of this action, there was virtually complete separation of inmates according to race in cells of the prison. As we have noted, it has not been demonstrated whether the existing condition of racial separation is the result of intentional segregative policies of prison authorities or whether it stems from the interaction of otherwise permissible, racially neutral policies with social conditions for which prison...