Harris v. Fleming, 86-2549

Decision Date12 February 1988
Docket NumberNo. 86-2549,86-2549
Citation839 F.2d 1232
PartiesSpencer HARRIS, Plaintiff-Appellant, v. Ronald FLEMING, Larry Frailey and Walter Breischke, Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Martin J. Black, Mandel Legal Aid Clinic, Chicago, Ill., for plaintiff-appellant.

Eddie Santiago, Atty. Gen. Office, Chicago, Ill., for defendants-appellees.

Before CUMMINGS, WOOD, and COFFEY, Circuit Judges.

HARLINGTON WOOD, Jr., Circuit Judge.

Plaintiff-appellant, Spencer Harris, is a prisoner of the State of Illinois, confined at the Menard Correctional Center in Menard, Illinois. On August 26, 1985 he filed this civil rights action under 42 U.S.C. Sec. 1983 against three officers of Menard seeking $320,000 in compensatory and punitive damages and for other relief. 1 Harris alleged that he was subjected to cruel and unusual punishment in violation of the eighth amendment because of certain conditions of his confinement. He also claimed that he was retaliated against in job and cell assignments because of an earlier lawsuit he had filed against Menard. 2 The magistrate did not appoint counsel for Harris. On August 19, 1986, the magistrate granted the defendants' motion for summary judgment from which Harris appeals. 3

I. FACTUAL BACKGROUND

Defendant Ronald Fleming was Assistant Warden of Programs at Menard, defendant Larry Frailey was Chairman of the Assignment Committee for the Protective Custody Unit, and defendant Walter Breischke was Supervisor of the Library.

From February 15, 1981 to January 17, 1986, Harris was incarcerated in the prison's protective custody unit, a unit designed to segregate inmates who are believed to be in danger from other inmates in the general population. Harris had held several prison jobs. One was with Lifer's Inc., selling candy and cigarettes to inmates; he also worked as a clerk in Menard's library. Shortly after defendants Frailey and Fleming assumed their positions at Menard, Harris lost his job with Lifer's Inc., and about a week later he also lost his job as library clerk. Harris alleges that he was told the first firing resulted from insufficient security to maintain the detail, and the second firing was attributed to his failure to file a required library form on time. Harris alleges that the proffered reasons are pretextual.

Harris also alleges that he was subjected to a series of cell transfers while other inmates similarly situated were not moved so often. In April 1985, during the time he was being held in protective custody, Harris was transferred to a cell in the segregation unit. This appears to have been because Harris refused to change cells within the protective custody unit. The segregation cell was filthy, roach-infested, and lacked the personal hygiene items he needed. During this time the prison psychiatrist noted that Harris was extremely dirty. Harris had no opportunity for a yard or recreation period during his twenty-eight day stay in segregation. These conditions, Harris claims, caused him mental and physical distress, and violated the eighth amendment.

His prior case against Menard was still pending in June 1985 when an Assistant Attorney General visited him, Harris says. They talked about a settlement, but Harris refused to settle. The next day Harris lost a job he had as a foodhandler and three days later he was transferred to a cell with a known homosexual. Harris complained, and about a month after this suit was filed the process began for returning him against his will to the general population. That resulted, he claims, in his being transferred to a cell block with two of the four inmates he had advised the officials were his enemies.

II. ANALYSIS
A. Confinement Conditions

Harris claims that he suffered cruel and unusual punishment and his eighth amendment rights were violated because of the conditions of his confinement in the segregation unit. Harris asserts that he was not provided with toilet paper for five days (the defendants claim it was four days), and that he lacked soap, toothbrush, and toothpaste for ten days. He also claims that he was kept in a filthy, roach-infested cell.

The defendants concede that the personal items were not promptly supplied, but argue that the short delay amounts to no more than negligence. A defendant's affidavit in support of summary judgment states that inmates were supplied each Friday with hygienic items, but beyond the regular provisionary schedule it was also Menard's policy to provide additional supplies as needed upon an inmate's request. The affidavit also states that Menard had retained a private pest control service to inspect the prison on a regular basis. The defendants claim that it was Menard's policy to be receptive to individual requests for pest control in the cells. The Menard defendants fault Harris's counteraffidavit for merely alleging that he failed to receive what he needed when he needed it. Defendants argue that summary judgment, dismissing Harris's claims, was therefore in order.

The eighth amendment prohibiting cruel and unusual punishment is applicable to the states through the fourteenth amendment. It has been a means of improving prison conditions that were constitutionally unacceptable. A description of how bad prison conditions can be may be found in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd as modified sub nom., Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev'd in part on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam); Ramos v. Lamm, 639 F.2d 559 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). As the Supreme Court noted in Rhodes v. Chapman, the amendment reaches beyond "barbarous physical punishment" to prohibit " 'the unnecessary and wanton infliction of pain' " (quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976)) and punishment "grossly disproportionate to the severity of the crime." 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). The Constitution also prohibits punishment that is "totally without penological justification," Gregg, 428 U.S. at 183, 96 S.Ct. at 2929, as well as "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). Penal conditions may not "deprive inmates of the minimal civilized measure of life's necessities." Chapman, 452 U.S. at 347. There shall be no gratuitous infliction of suffering. Gregg, 428 U.S. at 183, 96 S.Ct. at 2929.

Harris argues that the denial of hygienic items and the other conditions meet those tests because the amendment reaches situations less serious than the totally deplorable prison conditions described in Pugh. Harris is partially correct. Pugh and Ramos, depicting abominable prison-wide conditions, do not demarcate the eighth amendment threshold. That threshold, however, is not so low as Harris would have us adjust it.

We recently stated, citing Ramos, that a claim of inadequate heating, or a guard's practice of banging on the bars, may state an eighth amendment violation. Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir.1987). 4 In Lewis we held, as Harris points out, that summary judgment was inappropriate. One reason for that holding was that appointed counsel had grossly neglected the case. More importantly for the purposes of this case, however, Lewis involved prison policies and practices affecting all prisoners and not just an isolated instance of negligence temporarily inconveniencing only one inmate. Harris argues that if the harm caused by guards banging on bars is enough to trigger constitutional protection, then "the harm caused by deprivation of toilet paper for five days and celling a prisoner in a filthy, roach-infested cell would certainly constitute a violation." This incomplete comparison leads Harris to the wrong conclusion.

There is no doubt that prisoners must be provided with basic human needs. Chief Judge Foreman, in an earlier class action, directed Menard to maintain a constitutional level of cleanliness and sanitation. Lightfoot v. Walker, 486 F.Supp. 504 (S.D.Ill.1980). Judges are not wardens, but we must act as wardens to the limited extent that unconstitutional prison conditions force us to intervene when those responsible for the conditions have failed to act.

The circumstances of this case demonstrate some neglect and indifference on Menard's part, but the conditions were temporary and affected only one inmate. Although Harris experienced considerable unpleasantness, he suffered no physical harm. Menard's policies in these areas of responsibility, as reflected by the affidavits, are constitutionally acceptable if prison officials observe them. Harris does not dispute the truth of the affidavits. The defendants' temporary neglect of Harris's needs was not intentional, nor did it reach unconstitutional proportions. The defendants did not act in a deliberate and reckless manner, in the criminal law sense. Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 71, 93 L.Ed.2d 28 (1986). Although Menard may merit some management criticism, at this stage the defendants' conduct is not unconstitutional, as indifferent and inconsiderate as it was in regard to this one inmate. The fact that other inmates have not joined this suit suggests its singularity. This observation, of course, should not be taken to mean that conduct affecting only one inmate may never be unconstitutional.

Inmates cannot expect the amenities, conveniences and services of a good hotel; however, the society they once abused is obliged to provide constitutionally adequate confinement. The constitutional test requires courts to look to "the evolving standards of decency that mark the progress of a maturing society." Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69...

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