Clements v. Turner, C 104-72.

Citation364 F. Supp. 270
Decision Date27 June 1973
Docket NumberNo. C 104-72.,C 104-72.
PartiesEarl Ward CLEMENTS, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, et al., Defendants.
CourtUnited States District Courts. 10th Circuit. United States District Court of Utah


Michael D. Esplin, Salt Lake City, Utah, for plaintiff.

Joseph P. McCarthy, Asst. Atty. Gen., Salt Lake City, Utah, for defendants.


ALDON J. ANDERSON, District Judge.


This is a civil rights action brought pursuant to sections 1343 and 1983 of the Civil Rights Acts. (28 U.S.C. § 1343; 42 U.S.C. § 1983.) Plaintiff is, and at all times material to the action was, confined at the Utah State Prison. His pro se complaint seeks damages and injunctive relief against the warden of the Utah State Prison and immediate release from custody. The latter claim for relief, which sounds in habeas corpus, was dismissed upon motion by the plaintiff. Subsequent to the filing of the complaint the court appointed counsel to represent the plaintiff.

Plaintiff's claims for damages and injunctive relief are based on two grounds. He alleges he was confined in a "strip cell" at the prison for a period of 14 days in violation of 1) his right not to be deprived of liberty without due process of law; and 2) his right to be free from cruel and unusual punishment. (U.S.Const. amends. XIV & VIII.) In the course of the trial evidence was presented by both sides on each of these two issues.

The evidence shows that on March 5, 1972, at approximately 10:25 p. m., one Lieutenant Lundell conducted a "shake down" of plaintiff's cell in the medium security section of the prison. It is an uncontroverted fact that on that occasion prison guards found contraband consisting of a needle, a syringe and what appeared to be five methadone tablets on plaintiff's person or in his cell. Lieutenant Lundell recorded the same in a disciplinary write-up, which was transmitted to the Prison Disciplinary Committee together with a disciplinary write-up from a Sergeant Olson, who attested therein to having seen plaintiff in the act of evacuating air from a syringe preparatory to administering an injection. It was Sergeant Olson who then touched off the shake-down of plaintiff's cell.

Immediately following the incident plaintiff was taken to cell C-1 of the prison's maximum security wing. Three days later, on March 8, 1972, he was brought before the Disciplinary Committee. The Committee consisted of a member of the warden's staff, who was chairman, the Social Service Supervisor at the prison, and a social worker. Although he had theretofore been given no formal notice of the substance of the disciplinary write-ups which were the cause of his appearance before the Committee, at the time of the incident Clements was told by Lieutenant Lundell that a disciplinary hearing would be held and at the outset of the hearing itself the full disciplinary report, presumably including the texts of the two disciplinary write-ups, was read aloud to Clements by the Committee chairman. The chairman then asked him for answer. According to the testimony of all three Committee members, Clements made no answer, explanation or statement of any kind, except to say, in effect, "No, do your thing." No witnesses were heard and no written findings were made. Although Clements did not ask to confront his accusers, present witnesses on his own behalf, or have the assistance of counsel, it appears that none of these accoutrements of due process would have been accorded him had he requested them. Furthermore, all Committee members testified that the truthfulness of the disciplinary report is assumed. When cross-examined by Clements' counsel, the chairman testified that with the written reports it wouldn't have made any difference had Clements claimed innocence at the hearing. The other Committee members testified with some equivocation that although it was the Committee's procedure to allow the prisoner to explain or tell his story, the function of the Committee was to determine the degree of punishment, not to determine guilt or innocence. It is this apparent absence of impartiality, together with the absence of 1) prior written notice of charges; 2) confrontation of accusers; 3) opportunity to present evidence; 4) counsel; and 5) written decision, which forms the basis of the plaintiff's claim of denial of Fourteenth Amendment due process.

The disciplinary hearing lasted 5-10 minutes. The Committee concluded Clements should be confined in maximum security for 29 days, the usual punishment for major infractions of prison rules such as the possession of contraband. On March 8 Clements was placed in cell A-6 in the isolation block within the maximum security wing. Cell A-6 was one of four so-called "strip cells" located in the isolation block at the time of the incident. The plaintiff was removed to the Weber County jail for a ten-day period beginning March 13 and ending March 22. On the latter date he was returned to A-6, where he remained until March 29, when he was transferred to A-3, which was an isolation cell, as opposed to a "strip cell." Finally, on April 5 the plaintiff was returned to medium security. The subject of plaintiff's cruel and unusual punishment claim is the total of 14 days spent in the "strip cell" before and after the trip to the Weber County jail.

The conditions existing in A-6 during plaintiff's occupancy were fully developed at the trial. The plaintiff even introduced into evidence a motion picture film taken within the isolation block depicting both isolation and "strip cells." (However, the film was made nearly a year after plaintiff's confinement and the "strip cells" had not been used since plaintiff left.) It appears that the "strip cell" in question measured approximately six feet wide, eight feet deep and ten feet high. The surfaces consisted of exposed concrete. Like all maximum security cells, A-6 had no windows. Light was provided by a single 100-watt bulb hanging from the ceiling which was dimmed from 10:00 p. m. to 6:00 a. m. There was no sink. Water for drinking and washing was furnished at mealtime (meals were served three times a day) in a quart-size plastic container. Notwithstanding the repeated, emphatic statements of plaintiff and his witnesses to the contrary, the court also finds that prisoners in A Block were furnished additional water upon request and that Clements was not refused additional water by prison guards. Each of the guards who worked the various shifts in A Block during the period of plaintiff's confinement there testified that he had never refused a request for additional water from plaintiff, or anyone, and that prisoners in A Block had an opportunity to make such requests at least every two hours, when head counts were made.

Continuing the description of cell A-6, the evidence shows that there was no commode, rather only what is sometimes termed an "Oriental toilet"; that is, a hole in the concrete six inches in diameter with facility inside the cell for flushing. There was no bed frame, but only a foam rubber mattress with sheets and blankets. Clean sheets were provided weekly. Toilet articles were supplied according to need, including a toothbrush, toothpaste, a towel and soap. Once a week Clements was given one-half hour to shower and to sweep and mop his cell. Mop, bucket and cleanser were available. It was the prisoner's responsibility, however, to do such cleaning and Clements could easily have cleaned from his cell the minor accumulations of dirt and excrement which appear to have been present during his occupancy. The cells were cleaned by prison officers between occupancies. The film which was shown was irrelevant in this case to the extent it showed dirt and refuse which had accumulated in the strip cells during the nine months of disuse which preceded its production.

At the entrance to A-6 were two doors, one a barred door and the other a solid steel door. The barred door was always kept shut, but the solid door was left open. This allowed conversation among inmates in isolation and "strip cells," but prevented them from easily viewing one another. Ventilation in the isolation block was not as good as that in other parts of the building. Prior to the time in question the large ventilation ducts in the walls of the strip cells had been closed off as the result of escapes made through the vent ducts. The ducts were replaced by four 4-inch pipes which were cemented into place. Less air could be evacuated through the pipes, which resulted in an increase in temperature and stuffiness in the isolation block. Since there was no air conditioning at the prison, on occasion during the summer temperatures in the "strip cells" rose to the upper 80s, or 4-5° warmer than those in other areas of the prison. In the winter, since a single thermostat regulates the temperatures in A Block, B Block and C Block, the temperature is adjusted to the optimum level for B and C and the temperature in isolation, again, is similarly higher. Nevertheless, even with the decreased ventilation, a complete air change was effected every 12 minutes according to the testimony of Lieutenant Clayson.

Of course confinement in the isolation block meant removal from the general prison population and loss of recreation and hobby privileges. However, Clements was allowed to receive books from the library. Chewing tobacco was available upon request and although no mail could be received by him during the period of his confinement, he was free to write and mail letters and writing materials were available for his use. He was also free to correspond directly with defendant Turner concerning complaints related to his confinement in A Block. Plaintiff made no attempt, however, to communicate a complaint to the warden.

In keeping with prison policy plaintiff was transferred from A-6 to an isolation cell (A-3, with commode, sink and running water) within a reasonably short time after one of the isolation cells (which...

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3 cases
  • Moore v. Kemp
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 27, 1987
    ...trend was toward expanding the full panoply of sixth amendment rights, including the confrontation rights. See, e.g., Clements v. Turner, 364 F.Supp. 270, 275 (D.Utah 1973); Taparauskas, supra, p. 873, at 426-40 (discussing trend toward expanded right to confrontation). For example, in Memp......
  • Brown v. Ruckelshaus, 73-154-AAH
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • September 7, 1973
  • Lavine v. Wright, C 75-221.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • September 29, 1976
    ...for classification reasons constituted cruel and unusual punishment as analyzed and explained by this court in Clements v. Turner, 364 F.Supp. 270, 278-80 (D.Utah 1973). Polygraph Examination in Classification Plaintiff Harley challenges the prison's use of a polygraph examination as a cond......

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