542 F.2d 998 (7th Cir. 1976), 75-1898, Duran v. Elrod

Docket Nº:75-1898.
Citation:542 F.2d 998
Party Name:Dan DURAN et al., Plaintiffs-Appellants, v. Richard ELROD et al., Defendants-Appellees.
Case Date:October 22, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 998

542 F.2d 998 (7th Cir. 1976)

Dan DURAN et al., Plaintiffs-Appellants,


Richard ELROD et al., Defendants-Appellees.

No. 75-1898.

United States Court of Appeals, Seventh Circuit

October 22, 1976

Argued April 21, 1976.

Page 999

Richard Jay Hess, Thomas Grippando, Chicago, Ill., for plaintiffs-appellants.

Fredric B. Weinstein, Asst. State's Atty., Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, MARKEY, Judge, [*] and GRANT, Senior District Judge. [**]

FAIRCHILD, Chief Judge.

Plaintiffs, on behalf of a certified class of pre-trial detainees confined in the Cook County House of Correction and the Cook County Jail, appeal from an order of the district court dismissing three of approximately fifteen claims raised in Count II of their amended complaint. Appellate jurisdiction is based on 28 U.S.C. § 1292(a)(1), because the district court in dismissing portions of Count II pro tanto refused to grant the injunctive relief requested by the plaintiffs.

The portions of the amended complaint that were stricken by the district court alleged inadequate common facilities for recreation, exercise and reading; lack of visiting privileges with families and friends; and inability to earn money for bond and defense purposes. 1 Appellants brought this suit alleging both denial of due process and infliction of cruel and unusual punishment. A threshold question we must decide is which standard to apply to this case.

Strictly speaking, pre-trial detainees may not be punished at all because they have been convicted of no crime. The sole permissible interest of the state is to ensure their presence at trial. Following this reasoning, courts have held that suits by pre-trial detainees alleging conditions amounting to cruel and unusual punishment are better analyzed as due process attacks on conditions that exceed the sole permissible state interest of ensuring presence at trial. See, e.g., Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir. 1973); see also, Collum v. Butler, 421 F.2d 1257, 1259-60 (7th Cir. 1970). Other courts have held the Eighth Amendment prohibition against cruel and unusual punishment, incorporated in the Fourteenth Amendment, squarely applicable to state treatment of pre-trial detainees. See, e.g., Johnson v. Lark, 365 F.Supp. 289, 301-03 (E.D.Mo.1973); Collins v. Schoonfield, 344 F.Supp. 257, 264-65 (D.Md.1972). The Second Circuit prefers the analysis that a pre-trial detainee is entitled to protection from cruel and unusual punishment as a matter of due process and, where relevant, equal protection. Rhem v. Malcolm, 507 F.2d 333, 337-38 (2d Cir. 1974).

We hold that as a matter of due process, pre-trial detainees may suffer no more restrictions than are reasonably necessary to ensure their presence at trial. While the decisions that have interpreted the...

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