594 F.2d 997 (5th Cir. 1979), 78-1289, Jones v. Diamond

Docket Nº:78-1289.
Citation:594 F.2d 997
Party Name:Marvin JONES, on his own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, v. Fred R. DIAMOND, etc., et al., Defendants-Appellees.
Case Date:April 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 997

594 F.2d 997 (5th Cir. 1979)

Marvin JONES, on his own behalf and on behalf of those

similarly situated, Plaintiffs-Appellants,

v.

Fred R. DIAMOND, etc., et al., Defendants-Appellees.

No. 78-1289.

United States Court of Appeals, Fifth Circuit

April 26, 1979

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David M. Lipman, Miami, Fla., John L. Walker, Jackson, Miss., Lennox S. Hinds, Nat'l Conference of Black Lawyers, Harlem, N. Y., for plaintiffs-appellants.

Raymond L. Brown, Pascagoula, Miss., for defendants-appellees.

Before COLEMAN, CLARK and RUBIN, Circuit Judges.

COLEMAN, Circuit Judge.

This is a 42 U.S.C. § 1983 challenge to nearly every conceivable facet of the Jackson County jail at Pascagoula, Mississippi, in use at the time the lawsuit was filed and the case was tried.

Since oral argument before us, a New jail designed for Single cell occupancy, with approximately 80 square feet to the cell, has been opened. In uncontroverted post argument affidavits, we have been assured that the "old jail" will hereafter be in limited use to detain individuals for short periods of time while they are in the process of supplying bail, and the like. Since the old jail is not to be closed and could be returned to its former functions, we shall decide this appeal on the merits. We are, however, entitled to take into consideration the existence of the new jail, Smith v. Sullivan, 5 Cir., 1977, 553 F.2d 373. We must remember, also, that except where necessary to maintain federal constitutional rights, federal courts do not sit to supervise state prisons, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976).

Unlike the situation in some prisons, the conditions in the Jackson County jail cannot accurately be described as "uncivilized" or as "barbaric and inhumane". 1

The case is unusual in that the State of Mississippi, in violation of prior precedent, has seen fit to temporize by directing that many convicted felons be held in county jails while the penitentiary is slowly, ever so slowly, being brought up to constitutional standards. Hence, in this particular jail setting we are dealing with the federal constitutional rights of convicted felons, convicted misdemeanants, and pretrial detainees, held in a county jail, not in a penitentiary.

This necessitates recognition of the Constitutional distinctions between convicts and pretrial detainees.

Convicted prisoners are entitled to the protection of the Eighth Amendment, which prohibits cruel and unusual punishment.

"( C)onfinement conditions of a pretrial detainee, it must be analyzed as a due process deprivation rather than as cruel and unusual punishment", and a detainee is entitled to relief only if jail conditions amount to a violation of Due Process, McMahon v. Beard, 5 Cir., 1978, 583 F.2d 172.

Pretrial detainees have not yet been convicted of any offense and are accorded the presumption of innocence when brought to

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trial, but the fact remains that they are being held on probable cause to believe that they are, in fact, guilty of a violation of the criminal statutes.

There was another circumstance of no small importance. In December, 1976, the Jackson County Sheriff found drugs in the jail. In an effort to put a stop to that, he inaugurated a policy of searching all jail visitors, a policy expressly approved in Newman v. Alabama, 5 Cir., 1977, 559 F.2d 283, 291. The prisoners responded with a riot, in which they very nearly wrecked the jail. The necessary repairs cost the taxpayers over $30,000.

It has been said that the pretrial detainee should not have to suffer conditions any more restrictive than those necessary to ensure his presence for trial, Duran v. Elrod, 7 Cir., 1976, 542 F.2d 998, 999; Rhem v. Malcolm, 2 Cir., 1974, 507 F.2d 333, 336, 337; Miller v. Carson, 5 Cir., 1977, 563 F.2d 741, 750. It is an ineluctable fact, however, that the detainee is in jail, subject to all the institutional necessities that are thus brought into play. "(T)he same practical reasons that counsel judicial restraint in second-guessing correctional officials dictates restraint in second-guessing the authorities who run jails", Feeley v. Sampson, 1 Cir., 1978, 570 F.2d 364, 371.

Furthermore, for a prisoner to establish a prima facie § 1983 case of cruel and unusual punishment he must prove that the prison authorities acted with deliberate or callous indifference to his constitutional rights. Proof of simple negligence is not enough to pierce official immunity, Bogard v. Cook, 5 Cir., 1978, 586 F.2d 399; Fielder v. Bosshard, 5 Cir., 1979, 590 F.2d 105.

Whirl v. Kern, 5 Cir., 1968, 407 F.2d 781, Cert. denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177 (1969), was a § 1983 action for false imprisonment wherein it was held that neither good faith nor non-negligence could exculpate a sheriff from Civil Rights Act liability for false imprisonment. Whirl has been undercut on both points. First, as to reasonable good faith defense, Bryan v. Jones, 5 Cir., 1976, 530 F.2d 1210 (en banc). Judge Gee would have expressly overruled Whirl rather than to have it "materialize from time to time . . . present in form but eviscerated". Three Judges, including the author of the original Whirl opinion, said that the majority opinion cast Whirl "adrift to become a derelict in the law", 530 F.2d 1219. See, also, Miller v. Jones, 5 Cir., 1976, 534 F.2d 1178. Secondly, simple negligence is not enough to pierce official immunity in a § 1983 case, Bogard v. Cook, supra.

The Class Action

After considerable skirmishing, which in the interest of brevity we need not detail, See, e. g., Jones v. Diamond, 5 Cir., 1975, 519 F.2d 1090, the District Court certified a plaintiff class which included

all persons who were incarcerated at the time of the filing of the complaint, or are now, or in the future will be confined in the Jackson County jail, either to serve a sentence or awaiting sentence . . . .

On appeal, neither party has attacked the certification. The trial proof concerned both pretrial detainees and convicts. Since the parties and the trial court clearly regarded the class as including all jail inmates, we shall do likewise. This, of course, includes all black prisoners within the certified subclasses, and the claims of racial discrimination are properly here.

Jones' individual claims are not before us. In a memorandum opinion dated August 12, 1977, the District Judge stated that "it would be futile and a waste of time to consider and pass upon the class action until after the completion of the construction of the new Jackson County jail next year". Having made that determination, he proceeded to adjudicate Jones' individual claims and found that each of them was "wholly without merit and should be dismissed with prejudice". Eleven days later, a "Partial Judgment" was entered in which Jones' application for a permanent injunction and for damages was " dismissed with prejudice". Jurisdiction over the class action issue was retained and ruling reserved

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for a later date. Judgment was then entered on Jones' claims.

Jones did not appeal this judgment. Instead, plaintiff sought a writ of mandamus from this Court to order the Judge to consider the class issues. On November 3, 1977, a panel of this Court issued the writ, but did not consider Jones' claims. Approximately one month later, the District Judge issued a forty eight page memorandum stating his findings of fact and conclusions of law. A decision granting partial injunctive relief was also entered, and the plaintiffs then moved, Rule 24 of the Federal Rules of Appellate Procedure, to appeal in forma pauperis. The Judge granted the motion for the class to appeal, but denied the motion as to Jones because his claims had been dismissed with prejudice on August 23, 1977. On February 6, 1978, Jones moved this Court for leave to appeal the August 23 order in forma pauperis. That motion was denied on May 22, 1978. Thus, Jones's individual claims are not now before us. 2

Since Jones' individual claims have thus been finally adjudicated and dismissed, can he properly continue to represent the class? Our recent En banc decision in the case of Satterwhite v. City of Greenville, 5 Cir., 1978, 578 F.2d 987, canvassed the decisions in this area and noted that when a class has been properly certified, the case tried, and the class representative's individual claims determined to be meritless or moot, the representative is not automatically barred from prosecuting an appeal on the class issues. Id. at 993, 996. In this case, Jones is a member of the class and certainly has retained a sufficient homogeneity of interests at every moment of the litigation to qualify as an adequate representative. See Sosna v. Iowa, 419 U.S. 393, 403 n. 13, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Therefore, the class issues are properly before us. 3

In addition to damages, the plaintiffs sought sweeping injunctive and declaratory relief and alleged violations of the First, Fourth, Sixth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments to the Constitution, cognizable under 42 U.S.C., § 1983. By an amendment to the complaint, the plaintiffs added a pendent state law claim. On appeal plaintiffs pursue their assertions of violations of numerous constitutional rights, which they have grouped into the following categories: (1) right to recreation, (2) overcrowding, (3) right to adequate medical care, (4) visitation, (5) utilization of

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trusties, (6) racial segregation, (7) right to an adequate diet, (8) right to uncensored communication...

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