Bass v. Perrin, 96-3428

Citation170 F.3d 1312
Decision Date01 April 1999
Docket NumberNo. 96-3428,96-3428
Parties12 Fla. L. Weekly Fed. C 634 Frankie Lee BASS, Leonard Bean, Plaintiffs-Appellants, v. Everett I. PERRIN, Jr., L.R. Johnson, Richard L. Dugger, Thomas Barton, L.E. Turner, and A.D. Thornton, in their individual and official capacities, Harry K. Singletary, Jr., in his individual capacity, and Michael W. Moore, in his official capacity, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Kenneth S. Siegel, Tampa, FL, for Plaintiffs-Appellants.

P. David Brannon, Joy A. Stubbs, Corrections Litigation Branch, Tallahassee, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT and ANDERSON, Circuit Judges, and HOEVELER *, Senior District Judge.

TJOFLAT, Circuit Judge:

The plaintiffs, inmates in the Florida State Prison, challenge certain prison practices and procedures. After careful consideration, we conclude that those practices are within the limits established by the United States Constitution.


Frankie Lee Bass and Leonard Bean are inmates at the Florida State Prison in Starke, Florida. Throughout most of their confinement, each has been in "Close Management," a form of solitary confinement for persons who have proven to be a danger to the rest of the prison population. See Fla. Admin. Code Ann. r. 33-3.0083(1) (1990). 1

Inmates in Close Management are given two hours per week of outdoor exercise, commonly known as "yard." If, however, "clear and compelling facts can document [that] such exercise periods should not be granted," Fla. Admin. Code Ann. r. 33-3.0083(9)(i) (1990), then an inmate may be placed on the Yard Suspension List ("YSL") and thereby deprived of all outdoor exercise time. 2 The decision to place an inmate on the YSL is made by the prison's Chief Correctional Officer, after a recommendation by the officer in charge of the wing where the inmate's misbehavior occurred. The inmate is not present when this decision is made; he is, however, notified in writing of his placement on the list. The inmate may then file a grievance with prison authorities. If the grievance is denied, the inmate receives a written statement of reasons, and may appeal the decision to the Office of Inmate Grievance in Tallahassee. Furthermore, the YSL is reviewed every month at the Florida State Prison supervisors meeting, and each inmate is discussed to determine whether he should be removed from the list.

Plaintiff Bass was placed on the YSL in October 1989 for possession of two homemade firearms, two handcuff keys, and a package of pulverized match heads. In May 1991, Bass stabbed another inmate, which extended his time on the YSL. He was removed from the list in May 1992. In April 1993, during a yard session, he and plaintiff Bean scaled a fence, commandeered a dump truck (by ejecting the driver at knifepoint), and drove through the perimeter fence in an attempt to escape. Bass and Bean were captured and returned to the prison, and Bass was again placed on the YSL. Bass remained on the YSL at the time he filed this lawsuit in June 1993.

Plaintiff Bean was placed on the YSL in May 1983 for the murder of a correctional officer. He was taken off of the list in November 1991. He was returned to the YSL in April 1992 after being found in possession of a homemade plastic handcuff key. He was removed from the list in November 1992, but was returned to the YSL in April 1993 after participating in the escape attempt with Bass, and remained on the YSL when he filed this lawsuit.

Bass and Bean brought suit pro se against various prison officials under 42 U.S.C. § 1983, seeking damages, a declaratory judgment, and an injunction. The district court granted summary judgment for the defendants. Bass and Bean appeal.


Bass and Bean claim that the defendants violated their constitutional rights by placing them on the YSL. Specifically, they claim that the placement is cruel and unusual punishment, that the procedures used in the placement do not comply with the requirements of the Due Process Clause, and that such placement is discriminatory in violation of the Equal Protection Clause. We discuss each of these claims in this section.


The Eighth Amendment--applicable to the states through the Fourteenth Amendment--forbids cruel and unusual punishments. As a historical matter, it is clear that the framers would not have considered the plaintiffs' fate to be cruel and unusual. In 1790, the first modern prison--the Walnut Street Prison in Philadelphia--opened its doors. There, prisoners convicted of serious but noncapital offenses were kept in solitary confinement and, except in cases of medical necessity, never permitted to emerge from their cells. See Orlando F. Lewis, The Development of American Prisons and Prison Customs, 1776-1845, at 30 (2d ed.1967). These conditions were not considered cruel and unusual; on the contrary, the Walnut Street Prison was the brainchild of Quaker philanthropists and was considered to be on the cutting edge of penological reform. See id. at 26-28.

Eighth Amendment violations, however, are not confined to situations that would have been considered cruel and unusual by the framers. Contemporary standards of decency must be brought to bear in determining whether a punishment is cruel and unusual. See Ford v. Wainwright, 477 U.S. 399, 406, 106 S.Ct. 2595, 2600, 91 L.Ed.2d 335 (1986). This fact, however, does not give judges carte blanche to impose their theories of penology on the nation's prisons. Instead, the Supreme Court has, insofar as it is possible, attempted to set forth concrete standards by which courts can measure Eighth Amendment violations. See Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982 (1977) (noting that the Court's "judgment should be informed by objective factors to the maximum possible extent"). In the context of an inmate's conditions of confinement after incarceration, the standard is that prison officials violate the Eighth Amendment through "the unnecessary and wanton infliction of pain." 3 Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986) (citation omitted).

Placement on the YSL certainly involves the "infliction of pain," at least in the broad sense of that phrase. Cf. Rhodes v. Chapman, 452 U.S. 337, 348-49, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981) (suggesting that placement of two inmates in a single cell might "inflict[ ] pain" for Eighth Amendment purposes). Although being in solitary confinement with minimal time outside is only marginally different from being in solitary confinement with no time outside, there is nevertheless a significant difference between some time outside--even a minimal amount--and none at all. 4

The pain inflicted on the plaintiffs, however, cannot be said to be unnecessary--in other words, "totally without penological justification." Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 2929, 49 L.Ed.2d 859 (1976). On the contrary, it would be hard to imagine a situation in which two persons had shown a greater threat to the safety and security of the prison. Each plaintiff was initially incarcerated for violent crimes: Bass for robbery, kidnaping, and armed burglary; Bean for armed robbery. Since incarceration, each plaintiff has continued to engage in violent behavior: Bass has been convicted of aggravated battery; Bean has been convicted of murder and attempted murder. Each plaintiff has attempted to escape during yard time; plaintiff Bass, in addition, has five convictions for escape. Finally, each plaintiff is serving a life sentence with no opportunity for release in the foreseeable future; the incentives for proper behavior by the plaintiffs are therefore minimal. Placement on the YSL was a rational, albeit debatable, response to the substantial threat posed by the plaintiffs.

In addition, the behavior of the defendants cannot properly be described as "wanton." Wantonness has been defined as "deliberate indifference to a substantial risk of serious harm to a prisoner." 5 Farmer v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 1978, 128 L.Ed.2d 811 (1994). 6 The record is filled with evidence indicating that prison officials were very concerned about the potential harm to inmates from placement on the YSL, and took a variety of steps to ensure that the plaintiffs were not harmed as a result of their continuous confinement. The plaintiffs received daily cell-front medical evaluations, and received more thorough medical examinations upon request. Any problems discovered were promptly treated. Furthermore, a booklet (along with training from medical personnel) was made available to the plaintiffs detailing proper methods of exercise while in confinement. The plaintiffs also received weekly cell-front psychological evaluations, and could receive further examinations upon request. We therefore conclude that the defendants were not "wanton" in their conduct. 7 Cf. Helling v. McKinney, 509 U.S. 25, 36-37, 113 S.Ct. 2475, 2482, 125 L.Ed.2d 22 (1993) (recognizing preventative measures taken by prison officials as strong evidence that they were not deliberately indifferent to risks of prisoner harm).

The pain suffered by the plaintiffs was thus neither unnecessary nor wanton. We therefore conclude that the complete denial to the plaintiffs of outdoor exercise, although harsh, did not violate the Eighth Amendment. 8


The plaintiffs also claim that the procedures by which they were put on the YSL were insufficient to satisfy the requirements of the Fourteenth Amendment's Due Process Clause. We disagree.

As an initial matter, we must determine whether the injury claimed by the plaintiffs is within the scope of the Due Process Clause. The Due Process Clause protects against deprivations of "life, liberty, or property without due process of law." U.S. Const. amend. XIV. Clearly the plaintiffs were not deprived of life or...

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