509 F.2d 1332 (5th Cir. 1975), 73--2744, McCray v. Sullivan

Docket Nº73--2744, 73--3404.
Citation509 F.2d 1332
Party NameRobert G. McCRAY, Plaintiff-Appellant, v. L. B. SULLIVAN, as Commissioner of the Alabama State Board of Corrections, etal., Defendants-Appellees. Jerry WHITE and Alvin Claybrone, Plaintiffs-Appellants, v. COMMISSIONER OF ALABAMA BOARD OF CORRECTIONS et al., Defendants-Appellees.
Case DateMarch 19, 1975
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1332

509 F.2d 1332 (5th Cir. 1975)

Robert G. McCRAY, Plaintiff-Appellant,

v.

L. B. SULLIVAN, as Commissioner of the Alabama State Board

of Corrections, etal., Defendants-Appellees.

Jerry WHITE and Alvin Claybrone, Plaintiffs-Appellants,

v.

COMMISSIONER OF ALABAMA BOARD OF CORRECTIONS et al.,

Defendants-Appellees.

Nos. 73--2744, 73--3404.

United States Court of Appeals, Fifth Circuit

March 19, 1975

Page 1333

William R. Lauten, Mobile, Ala. (Court appointed) for plaintiffs-appellants.

William J. Baxley, Atty. Gen., Don Dickert, Asst. Atty. Gen., Montgomery, Ala., Herbert H. Henry, Asst. Atty. Gen., Birmingham, Ala., for defendants-appellees.

Page 1334

Appeals from the United States District Court for the Southern District of Alabama.

Before GODBOLD and MORGAN, Circuit Judges, and BOOTLE, District Judge.

GODBOLD, Circuit Judge:

These are consolidated appeals from decisions in favor of defendants 1 in several § 1983 2 actions by prisoners incarcerated in the Alabama state penal system. Each appeal presents a variety of issues concerning conditions in Alabama prisons which plaintiffs-appellants contend are violative of either prior injunctions issued by the District Court in Beard v. Lee, Civil No. 4345--66 (S.D.Ala., filed Jan. 24, 1969), 3 and Lake v. Lee, 329 F.Supp. 196 (S.D.Ala., 1971), or the Eighth Amendment to the United States Constitution. The two appeals present distinct issues and will be discussed separately.

McCray v. Sullivan

Appellant McCray is a prisoner in the Holman Unit of the Alabama State Penitentiary. During the period of his incarceration in Holman he has been in administrative segregation with brief periods of confinement in punitive isolation. Seeking injunctive relief, he raises a number of issues relating to the conditions of his confinement. 4

(1). Segregation of homosexuals. The District Court determined that this issue had been raised in Beard and Lake and therefore would not be considered. The federal courts are extremely reluctant to limit the freedom of prison officials to classify prisoners as they in their broad discretion determine appropriate. Young v. Wainwright, 449 F.2d 338 (CA5, 1971). However, where prison officials have failed to control or separate prisoners, whether homosexual or not, who endanger the physical safety of other prisoners, prison officials may be required to take steps to protect the prison population from those dangerous prisoners. See Gates v. Collier, 501 F.2d 1291, 1308--10 (CA5, 1974); Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark., 1970), aff'd 442 F.2d 304 (CA8, 1971). McCray's complaint alleges such extreme circumstances. He claims that homosexuals frequently are the cause of violent assaults causing injury and death and that prison authorities condone many such occurrences. Although Lake did address this issue, McCray appears to allege further occurrences of violence which require consideration by the District Court. The District Court's dismissal of this issue must be reversed, and this portion of the cause remanded for further proceedings. The District Court on remand should determine whether prison practices in this regard do in fact violate the constitution and what corrective measures, if any, must be required of the defendants.

(2). Conjugal visits by spouses. The District Court dismissed this contention on the ground it had been resolved in Beard and Lake. Although we are unable to see that it was addressed in either Beard or Lake, the dismissal was proper. Failure to permit conjugal visits does not deny an inmate a federal constitutional right. Tarlton v. Clark, 441 F.2d 384 (CA5), cert. denied 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713 (1971). Visitation privileges are a matter subject to the discretion of prison officials. See Walker v. Pate, 356 F.2d 502 (CA7), cert. denied 384 U.S. 966, 86 S.Ct. 1598, 16 L.Ed.2d 678 (1966); Payne v. District of

Page 1335

Columbia, 102 U.S.App.D.C. 345, 253 F.2d 867 (1958); Queen v. South Carolina Dept. of Corrections, 307 F.Supp. 841 (D.S.C., 1970).

(3). Failure to provide a reasonable rehabilitation program. This was dismissed on the same ground as (2), and we reach the same conclusion as we did for (2). In the context of extreme conditions the failure to provide a rehabilitation program has been held to violate the Eighth Amendment. See Holt v. Sarver, supra; Finney v. Arkansas Board of Corrections, 505 F.2d 194 (CA8, 1974). We decline to find that the failure of the Alabama prison system to provide a rehabilitation program, by itself, constitutes cruel and unusual punishment. See Smith v. Schneckloth, 414 F.2d 680 (CA9, 1960). See also Diehl v. Wainwright, 419 F.2d 1309 (CA5, 1970); United States v. Pate, 229 F.Supp. 818 (N.D.Ill., 1964).

(4). Bathing and exercise. The appellant, conceding that these items had been covered in the injunction in Lake, argues that the Lake injunction was insufficient to insure compliance with the Eighth Amendment. We agree with the District Court that these matters were settled in Lake. Appellant fails to allege the existence of new circumstances which would justify reconsideration of these issues, and therefore these portions of the complaint were properly dismissed.

(5). Violations of the Beard and Lake injunctions. The Beard and Lake injunctions are allegedly being violated in three respects. First Lake requires that 'inmates are to have daily access to materials for brushing or cleaning their teeth.' The District Court found that the prison policy, at the time of trial, was to issue toothbrushes free of charge and to provide inmates with 50 cents every two weeks from which toothpaste, as well as other personal needs, could be purchased. 5 We find no error in the District Court's determination that the defendants were in compliance.

Second, Beard requires that 'medical attention will be available whenever needed and the doctor will visit the unit at least once every three days.' Appellant contends that this requires the doctor to personally visit the punitive isolation cells three times per week. The prison's policy was to send a medical assistant to visit punitive isolation who would determine which inmates sought medical attention. Those inmates would then be able to see the doctor who visited the prison infirmary three times per week. 6 We find no error in the District Court's determination that this procedure complies with the injunction in Beard.

Third, the Lake injunction requires:

(3) Mail to and from any attorney at law, licensed to practice in the State of Alabama, will not be opened except where there is reasonable cause to believe sealed communications are enclosed.

(4) Mail to and from public officials is not to be opened.

The District Court found that mail to and from attorneys had been opened and read by prison authorities. The court found, however, that no injury had resulted to appellant and further found that the defendants had adopted and implemented 'a strict policy of having all official incoming mail 7 delivered to and receipted by the inmates 8 and is ensuring

Page 1336

that all outgoing mail, whether of an official nature or not, is sealed by the prisoner who desires it sealed.' These findings support the District Court's denial of further injunctive relief. Although we agree with the District Court's conclusion that defendants were not violating the mail requirements of Lake, the District Court did not have the benefit of two recent Supreme Court decisions, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Procunier v. Martinez, ...

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  • 427 F.Supp. 297 (M.D.Pa. 1977), Civ. 76-415, Mayberry v. Robinson
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • February 22, 1977
    ...Some courts have concluded that visitation privileges are a matter subject to the discretion of prison officials. McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975), Feazell v. Augusta County Jail, 401 F.Supp. 405 (W.D.Va.1975); Henry v. State of Delaware, 368 F.Supp. 286 (D.Del.1973).......
  • 296 S.E.2d 873 (W.Va. 1982), 14950, State ex rel. Harper v. Zegeer
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • May 18, 1982
    ...Poindexter v. Woodson, 510 F.2d 464 (10th Cir.1975), cert. denied, 423 U.S. 846, 96 S.Ct. 85, 46 L.Ed.2d 68; McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975), on remand, 399 F.Supp. 271, cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 Page 880 L.Ed.2d 86; Johnson v. Glick, 481 F.2d 1028 (2d Ci......
  • 480 F.Supp. 103 (D.N.J. 1979), Civ. A. 78-2481, Hluchan v. Fauver
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • October 29, 1979
    ...rehabilitative programs can be violative of the Eighth Amendment's prohibition against cruel and unusual punishment. McCray v. Sullivan, 509 F.2d 1332 (5th Cir.), Cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Finney v. Arkansas Board of Corrections, 505 F.2d 194 (8th Cir. ......
  • 610 F.2d 340 (5th Cir. 1980), 77-2125, Lynott v. Henderson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • January 25, 1980
    ...F.2d 283 (CA5, 1977), Rev'd in part sub nom., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); McCray v. Sullivan, 509 F.2d 1332 (CA5, 1975); Cf. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125-26, 131-33, 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629, 638, 642-43 ......
  • Request a trial to view additional results
120 cases
  • 427 F.Supp. 297 (M.D.Pa. 1977), Civ. 76-415, Mayberry v. Robinson
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • February 22, 1977
    ...Some courts have concluded that visitation privileges are a matter subject to the discretion of prison officials. McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975), Feazell v. Augusta County Jail, 401 F.Supp. 405 (W.D.Va.1975); Henry v. State of Delaware, 368 F.Supp. 286 (D.Del.1973).......
  • 296 S.E.2d 873 (W.Va. 1982), 14950, State ex rel. Harper v. Zegeer
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • May 18, 1982
    ...Poindexter v. Woodson, 510 F.2d 464 (10th Cir.1975), cert. denied, 423 U.S. 846, 96 S.Ct. 85, 46 L.Ed.2d 68; McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975), on remand, 399 F.Supp. 271, cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 Page 880 L.Ed.2d 86; Johnson v. Glick, 481 F.2d 1028 (2d Ci......
  • 480 F.Supp. 103 (D.N.J. 1979), Civ. A. 78-2481, Hluchan v. Fauver
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • October 29, 1979
    ...rehabilitative programs can be violative of the Eighth Amendment's prohibition against cruel and unusual punishment. McCray v. Sullivan, 509 F.2d 1332 (5th Cir.), Cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (1975); Finney v. Arkansas Board of Corrections, 505 F.2d 194 (8th Cir. ......
  • 610 F.2d 340 (5th Cir. 1980), 77-2125, Lynott v. Henderson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • January 25, 1980
    ...F.2d 283 (CA5, 1977), Rev'd in part sub nom., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); McCray v. Sullivan, 509 F.2d 1332 (CA5, 1975); Cf. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 125-26, 131-33, 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629, 638, 642-43 ......
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