Cunningham v. Jones

• Decision Date: 06 December 1977
• Docket Number: No. 76-2659,76-2659
• Parties: Alford Lee CUNNINGHAM, Plaintiff-Appellant, v. Russell JONES, Jailer, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 653

567 F.2d 653

Alford Lee CUNNINGHAM, Plaintiff-Appellant, v. Russell JONES, Jailer, et al., Defendants-Appellees.

No. 76-2659.

United States Court of Appeals,

Sixth Circuit.

Submitted April 20, 1977.

Decided Dec. 6, 1977.

Joseph G. Glass, Louisville, Ky., for plaintiff-appellant.

Albert Jones, Commonwealth's Atty., Second Judicial District of Kentucky, Paducah, Ky., for defendants-appellees.

Before EDWARDS, PECK and ENGEL, Circuit Judges.

EDWARDS, Circuit Judge.

Appellant Cunningham appeals after dismissal of his complaint, filed under 42 U.S.C. § 1983 (1970), ¹ alleging that defendant jailers violated his Eighth Amendment rights by subjecting him to cruel and unusual punishment. The District Judge, by stipulation of the parties, heard this complaint on the record of two prior state court habeas corpus actions which dealt with the same facts.

While being held for trial in 1967 in the McCracken County jail, Cunningham was placed in solitary confinement after allegedly attempting a jailbreak and stabbing That the appellees, and each of them, caused the appellant to be deprived of food for four (4) full days, and thereafter allowed him one (1) full meal every third day for approximately sixteen (16) days, which meal consisted of watery soup or boiled potatoes, and was only enough food to barely sustain life.

a deputy jailer. His § 1983 action (filed shortly after his release from the Kentucky penal system) ² asserts:

The District Judge's relevant findings of fact, which are based largely on the testimony of the Defendants, jailers, and which we accept as not clearly erroneous, are as follows:

The Court finds from the evidence that the plaintiff was determined by the defendants to have been involved in an attempted jail break on April 6, 1967. He was charged in McCracken Circuit Court with malicious cutting of the deputy jailer. From the evidence adduced at the habeas corpus proceeding in the McCracken Circuit Court on November 21, 1968, it appears that the plaintiff was placed in solitary in what is known as the "black cat" in the McCracken County Jail from a period of April 6th until April 21st, 1967. He was provided with a steel bunk and a cell with a window, which was kept closed for security reasons.

The most serious contention made by the plaintiff, and the only one deserving of any extended discussion is that concerning the deprivation of food. The Court finds that the plaintiff was allowed one meal a day from April 10, 1967 to April 21, 1967. This is admitted by all parties. There is a conflict, however, as to whether he was given any food during the period April 6th to April 10th of the applicable year. He and his witnesses, all of whom are convicted felons, testified unequivocally that he received no rations during that period. Russell Jones, the Jailer, stated that he thought the plaintiff received one meal a day during the period April 6th to April 10th, stating he wasn't positive but he thought that was right. He did testify that Deputy Jailer King was given absolute discretion to determine the number of meals that the plaintiff would receive.

The District Judge concluded:

In the instant case, the Court finds that plaintiff was provided one meal a day for a period of 15 days. The calorie content of that one meal a day is not shown. Interestingly enough, one of plaintiff's witnesses testified that he gained weight during the 15 day period he was subjected to the one meal a day treatment. Under all of the circumstances, the Court is unable to say that the furnishing of one meal a day for a short period of 15 days constitutes cruel and unusual treatment, although the Court certainly does not approve of the practice and would find little reason for not finding it to be a violation of the Eighth Amendment were it continued over a prolonged period of time.

On this reasoning, the District Judge dismissed Appellant's complaint.

It is Appellant's contention on this appeal that the one meal a day program actually found by the District Judge was used as punishment, was cruel and unusual, and hence was violative of the Eighth Amendment. He also contends that this practice was coercive and was successful in compelling his plea of guilty to the offenses with which he had been charged. On this appeal, we consider only the question of Appellant's Eighth Amendment claim. ³

As indicated above, the District Judge found as a fact that Appellant was given only one meal a day for 15 days in solitary confinement. The evidence in this record also establishes without contradiction that the elimination of two of the three prisoner meals regularly furnished in the jail was The record also shows that Deputy Jailer Hershel King was given absolute authority to control the food given prisoners in solitary.

punishment for the attempted jailbreak. Appellees, jailers, claim that the one meal given complainant was "the regular noon meal" served all jail inmates. The record also shows that the Appellees, jailers, made no effort to prove that the one meal a day which was furnished was adequate in calorie content to maintain normal health. ⁴

THE EIGHTH AMENDMENT

Legal prohibition of cruel and unusual punishment is an important aspect of humanity's search for civilization. It originated in the English Declaration of Right of 1688 and was designed to prohibit such practices as execution by hanging, drawing and quartering, burning at the stake, the rack and the thumb screw. The standards pertaining to what was cruel and unusual were, of course, quite different from presently accepted ones. But the argument that the Constitution should be read only to prohibit practices found evil by our forefathers has long since been rejected.

In Weems v. United States, 217 U.S. 349, 373, 378, 30 S.Ct. 544, 551, 54 L.Ed. 793 (1910), the Supreme Court said:

Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall, "designed to approach immortality as nearly as human institutions can approach it." The future is their care and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction.

The (cruel and unusual punishment) clause of the Constitution in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice. See Ex parte Wilson, 114 U.S. 417, 427 (5 S.Ct. 935, 29 L.Ed. 89); Mackin v. United States, 117 U.S. 348, 350, (6 S.Ct. 777, 29 L.Ed. 909).

This interpretation of the expansive role of the Eighth Amendment has been cited or repeated frequently in Supreme Court opinions. Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596 (1958); Gregg v. Georgia, 428 U.S. 153, 172-73, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.); Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).

In Trop v. Dulles, supra at 101, 78 S.Ct. at 598, the Supreme Court, citing Weems, supra, held: "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

In Gregg v. Georgia, supra at 173, 96 S.Ct. at 2925, the Court held repugnant to the Eighth Amendment punishments which "involve the unnecessary and wanton infliction of pain."

Even more recently the Supreme Court has held:

We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain," Gregg v. Georgia, supra, at 173 (, 96 S.Ct. 2909 at 2925) (joint opinion), proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983.

Estelle v. Gamble, supra, 429 U.S. at 104-05, 97 S.Ct. at 291 (footnotes omitted).

No Supreme Court case has to date dealt with the precise question we face here, but a number of courts have held that deliberate and unnecessary withholding of food essential to normal health can violate the Eighth Amendment. In a case which grew out of a riot situation in the Kansas State Penitentiary, the Tenth Circuit reversed the dismissal of a § 1983 complaint alleging that prison officials violated the Eighth Amendment when they refused to provide complainant with food for 501/2 hours. Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970).

In Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff'd, 501 F.2d 1291 (5th Cir. 1974), the District Court found many unconstitutional practices at Mississippi's Parchman Penitentiary. Its remedial order provided in relation to inmates placed in segregation that they "shall receive the same daily ration of food...