Kersh v. Bounds

• Citation: 501 F.2d 585
• Decision Date: 25 July 1974
• Docket Number: Nos. 73-1578,73-1579,s. 73-1578
• Parties: Grady D. KERSH et al., Appellees, v. V. Lee BOUNDS, Commissioner of the North Carolina Department of Corrections,et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 585

501 F.2d 585

Grady D. KERSH et al., Appellees, v. V. Lee BOUNDS, Commissioner of the North Carolina Department of Corrections,et al., Appellants.

Nos. 73-1578, 73-1579.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 7, 1974.

Decided July 25, 1974.

Jacob L. Safron, Asst. Atty. Gen., N.C. (Robert Morgan, Atty. Gen., N.C., James M. Bowen, Rutherfordton, N.C., Atty., for Polk County defendants, and Frank B. Aycock, III, Charlotte, N.C., Atty., for Gaston County defendants, on brief), for appellants.

J. David James, Greensboro, N.C. (Norman B. Smith, Greensboro, N.C. (Court-appointed counsel), and Smith, Carrington, Patterson, Follin & Curtis, Greensboro, N.C., on brief), for appellees.

Before BRYAN, Senior Circuit Judge, and BUTZNER and WIDENER, Circuit judges.

WIDENER, Circuit Judge:

This suit was brought under 42 U.S.C. 1983 by three indigent inmates of the North Carolina Department of Correction (Department) against the Correction Department Commissioner and the members of the Board of Commissioners of Gaston and Polk Counties, North Carolina. The prisoners alleged that the defendants had treated prisoners in safekeeping status, called safekeepers, normally housed in county prisons at county expense, differently from the regular inmates under custody and control of the Department insofar as their requests for elective, non-essential medical services are concerned. They say the safekeepers had thus suffered cruel and unusual punishment in violation of the Eighth Amendment and that this discrimination ran afoul of the Fourteenth Amendment Equal Protection Clause. The case was tried, without a jury, on stipulations of fact, the district court concluding that the prisoners did not prove cruel and unusual punishment, but that the state had no rational basis for such classification among prisoners, and violated the Equal Protection Clause by so doing. The defendants were ordered not to treat the safekeepers differently in any medical matter from other prisoners generally, and each plaintiff was awarded $1.00 as nominal damages. Because we conclude that the state has a rational basis for its action, and there was no Equal Protection violation, we reverse.

One category of safekeeper is a prisoner who has been sentenced to a term of imprisonment for longer than thirty days, has appealed his conviction, and has not been released on bail pending appeal. A safekeeper may also be one held pending trial. Such prisoners are generally held in county jails and the cost of maintaining the prisoner is paid by the county where the prisoner was tried. Safekeepers held pending appeal may be transferred, as a matter of course, to the Department in accordance with N.C.G.S. 15-183, while any other county prisoner may be transferred if considered necessary for his safety or to avoid a breach of the peace. N.C.G.S. 153-189.1. ¹ In any event, the Department is not liable for the expenses of maintaining convicts until they have been received by Department authorities and, since execution of the sentence is automatically stayed pending appeal under N.C.G.S. 15-184, safekeepers are not regarded as serving sentences in the Department system until their appeals are decided. The county responsible is billed by the Department for the safekeepers held by the Department for the county. See also N.C.G.S. 148-4 and 148-29. The parties stipulated that an average of 140 North Carolina prisoners are on safekeeping status in the custody of the Department at any given time, and that the average stay of a person on safekeeping status is five months. The average stay of felony prisoners in the Department system is slightly more than four and one-half years, and misdemeanants slightly more than ten months.

The Department medical staff categorizes inmate medical services as being emergency, routine, or elective. Emergency and routine medical care is given to all state and county prisoners, including safekeepers, while elective care (i.e., that which is not essential to the safekeeper's immediate welfare and poses no threat to life or limb) is given at Department expense only to prisoners in custody of the Department who are not on safekeeping status.

The three plaintiffs were all on safekeeping status, held at a Department prison, at the time this suit was filed, and all subsequently became regular inmates under the general custody and control of the Department.

While on safekeeping status pending trial, being held by the Department by order of the Superior Court of Gaston County, plaintiff Price (on loan from the State of Florida for trial) was examined by prison doctors on June 22, 1971 and found to have a slight umbilical hernia. The Department medical staff did not, in their judgment, believe any treatment was necessary, and, at a subsequent examination on December 23, 1971, no hernia was found.

Plaintiff Kersh, while on safekeeping pending appeal, was examined on May 5, 1971 and found to have 20-25 vision. He was found not to be in immediate need of glasses and was not given any. Kersh was again examined on November 4, 1971 and was found to have perfect (20/20) vision at that time.

Plaintiff Rogers was a safekeeper pending appeal who, on examination, was found to need corrective eyeglasses and false teeth (there is no allegation he did not come to prison without either). His request for same was refused, but he received both eyeglasses and false teeth in the fall of 1971 when his conviction was affirmed and he became a regular inmate.

It was stipulated that, had these prisoners been members of the regular prison population other than in safekeeping status when these minor physical impairments were found to exist, they would have been provided with the medical attention or corrective appliances, the lack of which is complained of.

It is argued that the effect of the order of the district court has been to declare the applicable North Carolina statutes unconstitutional, and that a three-judge court should have been convened to hear the case. This contention has no merit, for the only issue here concerned the pattern or practice of state officials in treating safekeeper prisoners different from other prisoners. It is well-settled that when the allegation of unconstitutionality goes to the result obtained by use of statutes not attacked as unconstitutional, a three-judge court is not required. E.g., Turner v Fouche, 396 U.S. 346, 353-354 and n. 10, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).

The district court viewed the issue here as being whether there is any justification for inmates being treated to different standards of medical care because those services are being paid for by different divisions of the government, safekeepers by the county, the others by the state. It found that plaintiffs had not proved cruel and unusual punishment, so only the constitutionality of the practice which maintained the two standards of medical treatment for prisoners is considered here. The court was not impressed with the State's argument that safekeeping status only lasted a short time, and to require providing of elective medical care would be a nuisance, administrative inconvenience, and would cost the state more money. The court said that this distinction between prisoners, based on which state instrumentality pays the bill, is arbitrary and unreasonable, and held such procedure to be a violation of the Equal Protection Clause.

We think the district court erred when it held the Equal Protection Clause violated upon the facts of this case. Under the North Carolina System, Department prisoners are those who have exhausted their avenues of appeal and are serving their sentences, and all such prisoners are furnished the disputed elective medical care....