O'BRIEN v. Moriarty, 73-1297.

• Decision Date: 09 January 1974
• Docket Number: No. 73-1297.,73-1297.
• Parties: Gordon J. O'BRIEN et al., Plaintiffs-Appellants, v. John R. MORIARTY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

489 F.2d 941 (1974)

Gordon J. O'BRIEN et al., Plaintiffs-Appellants, v. John R. MORIARTY et al., Defendants-Appellees.

No. 73-1297.

United States Court of Appeals, First Circuit.

Argued November 8, 1973.

Decided January 9, 1974.

Nathan Greenberg, Boston, Mass., for plaintiffs-appellants.

Dennis J. LaCroix, Deputy Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on brief, for defendants-appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Five inmates of the Massachusetts Correctional Institution at Walpole brought suit¹ in the district court under 42 U.S.C. §§ 1983 and 1985 against the Commissioner of Corrections and other state officials. In substance they allege that they occupy individual cells 6 feet wide and 9 feet long in the prison's isolated maximum security facility; that in front of the cells is a passageway about 4 feet wide and about 120 feet long; that for about two months prior to a prison disturbance on May 19, 1973, they were given the right to have their cells open from 8 a. m. to 10 p. m. and to fraternize with each other in the passageway; that since the disturbance, in which they took no part, the open cell policy had been discontinued; and that being locked in their cells for the entire day constitutes cruel and unusual punishment in violation of the Eighth Amendment.² Plaintiffs pray for an injunction restoring the open cell policy.

After visiting Block 10 at Walpole the district court held an evidentiary hearing, consolidated by stipulation with a trial on the merits, on plaintiffs' motion for preliminary injunction. F.R.Civ.P. 65(a)(2). The court took all issues under advisement, including defendants' earlier-filed motion to dismiss, and thereafter dismissed the complaint for failure to state a claim. The court appears to have considered only the facts stated in the complaint and an admission by plaintiffs' counsel that his clients were "allowed out of their cells, one at a time, for a minimum of one hour per day. During that hour they were allowed to exercise in the corridor and take a shower if they so desired."

The district court erred procedurally in dismissing on the pleadings. Any issues actually tried by express or implied consent at the hearing on the merits must be "treated in all respects as if they had been raised in the pleadings." F.R.Civ.P. 15. The case should have been decided on the merits; alternatively the court might have told the parties that it would treat the motion to dismiss as one for summary judgment, see F.R.Civ.P. 12(b) and 56, considering the evidence only in order to determine if there was a genuine issue of material fact.

It was undoubtedly better practice in this case to inquire into the facts.³ But the court was not at liberty after the hearing to dispose of the case on the pleadings alone. Had the hearing revealed a meritorious claim, its mere omission from the complaint would not have allowed dismissal. However, we do not remand as the evidence, viewed most favorably to plaintiffs, does not reveal a claim upon which they are entitled to relief.

Block 10 is arranged in four sections.⁴ The plaintiffs' section, with about 15 cells, is upstairs. Prior to March, 1973, prisoners, except for brief intervals, were locked in their cells continuously. In March, when there were only about seven or eight prisoners in plaintiffs' section, the cells there were unlocked during all or some of the day and the inmates permitted the freedom of the corridor. Several guards testified that while the cells were open prisoner morale was good; the only untoward incident was a scuffle between plaintiff O'Brien and a medic, with the purported discovery of a knife charged to O'Brien. The testimony as to how many hours of freedom were regularly granted was conflicting, and the then superintendent denied that open doors was a "policy", as opposed to an informal dispensation. Whether a "policy" or just a practice, it ceased after a serious prison disturbance on May 19, 1973, which, as all acknowledge, did not involve plaintiffs or other Block 10 prisoners. Each Block 10 inmate was thereafter allowed out of his cell for only an hour each day, but he could speak to others during the hour from the corridor. Plaintiffs have been depressed since the open cell policy ceased, and on one occasion in June several inflicted injuries upon themselves.

Prison officials testified that since the spring of 1973 the population of the section where plaintiffs are confined doubled, while the number of guards in Block 10 decreased. Prison officials oppose an open cell policy because of the increase in Block 10 prisoners, because many are disciplinary cases, and because of danger that one prisoner may injure or murder another.

A punishment may be so below civilized norms as to be cruel and unusual no matter what its provocation, or it may be cruel and unusual because extremely disproportionate to the occasion. See Furman v. Georgia, 408 U.S. 238, 271-279, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring). Segregated confinement involving neither intolerable isolation nor inadequate food, heat, sanitation, lighting or bedding, does not fall within the former category.⁵ It may be a necessary tool of prison discipline, both to punish infractions and to control and perhaps protect inmates whose presence within the general population would create unmanageable risks.

The record in this case does not show that plaintiffs' confinement has been accompanied by inhuman or barbarous conditions. They apparently receive the same food as others; they do not complain of the heat, sanitation, lighting or bedding; they are allowed out of their cells for an hour daily. One of the plaintiffs admitted to television and some visitation privileges. For a person to be cut off markedly from all others is a privation not to be underestimated, but the conditions here are not so severe as to be per se impermissible.

Nonetheless a punishment not always forbidden may violate the Eighth Amendment if, in the circumstances, it is extremely disproportionate, arbitrary or unnecessary. Furman v. Georgia, supra, 408 U.S. at 238, 279, 92 S.Ct. 2726 (Brennan, J., concurring). Imposed inappropriately, or for too long a period, even the permissible forms of solitary confinement might violate the Eighth Amendment. Cases upholding instances of solitary confinement involve most often its imposition as a short-term punishment for disciplinary infractions.

Plaintiffs assert that it was arbitrary and unnecessary, once an open cell policy was adopted and was working, to revoke it. But prison administrators must have wide authority respecting measures necessary to safeguard inmates, to protect them one from the other, and to maintain security. "Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U. S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)....