Gregory v. Wyse, 73-1405

• Decision Date: 11 March 1975
• Docket Number: No. 73-1405,73-1405
• Parties: Edward A. GREGORY, Plaintiff-Appellant, v. Fred WYSE, Warden, Colorado State Penitentiary, et al., Defendant-Appellee. Reverend John David CONTI, Plaintiff-Appellant, v. Fred WYSE, Warden, Colorado State Penitentiary, et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 378

512 F.2d 378

Edward A. GREGORY, Plaintiff-Appellant, v. Fred WYSE, Warden, Colorado State Penitentiary, et al.,

Defendant-Appellee.

Reverend John David CONTI, Plaintiff-Appellant, v. Fred WYSE, Warden, Colorado State Penitentiary, et al.,

Defendant-Appellee.

No. 73-1405.

United States Court of Appeals, Tenth Circuit.

March 11, 1975.

John C. Guadnola, Denver, Colo., for plaintiffs-appellants.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., and Richard G. McManus, Jr., Asst. Atty. Gen., for defendants-appellees.

Before MURRAH, SETH and BARRETT, Circuit Judges.

MURRAH, Circuit Judge.

This consolidated appeal is from separate judgments sustaining motions to dismiss civil rights actions (42 U.S.C. § 1983, 28 U.S.C. § 1443) by inmates of the Colorado penitentiary against responsible state administrators. We know, of course, the complaints should not be dismissed for failure to state a claim unless it appears beyond doubt that the complainants can prove no set of facts in support of their claims which would entitle them to relief. And where, as here, there are substantial allegations of violations of constitutional rights in the treatment of state prisoners, the complaint must be considered on its merits by proper hearing. Ordinarily, we should remand these cases for the development and consideration of the facts in accordance with applicable procedures. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Black v. Warden, 467 F.2d 202 (10th Cir. 1972). However, upon the filing of pro se petitions in these cases, the trial court immediately appointed counsel who filed amended complaints pleading the operative facts with elaborate specificity. Each of the complaints undertake to state three separate claims on identical facts for the deprivation of in-prison procedural due process and to recover the same money damages (both compensatory and punitive) and the same injunctive relief. In these circumstances, we shall take the cases on the pleaded facts to determine if they state a claim on which relief can be granted under any legally supportable theory.

While both Gregory and Conti were inmates of the Colorado penitentiary system, Gregory escaped from custody on or about July 2, 1972, and was returned to the penitentiary on August 11, 1972. Conti escaped on May 20, 1972, and voluntarily returned to the penitentiary on June 7, 1972. Upon their return, they were stripped, sprayed and confined in the maximum security portion of the penitentiary for at least ten days, a substantial portion of which was spent in solitary confinement twenty-four hours a day in a cell six feet square, provided only two meals per day, one shower per week, forced to sleep on a cement slab with no bedding, with a light in the cell twenty-four hours a day, and were deprived of all privileges normally afforded the prison population, including cigarettes. Four or five days after their return, they were each called before the prison Administrative Adjustment Committee. Upon a hearing, the committee determined that the inmates had in fact escaped and ordered that both inmates should:

"(i) forfeit all good time heretofore earned,

"(ii) be ineligible for parole or discharge for two years, during which two year period they were not to be permitted to leave the penitentiary under any circumstances,

(iii) be ineligible to earn any additional good time during that two year period, and

(iv) forfeit all normal prisoner's pay and all privileges of the general prison population for 90 days from the date of the order."

The contention is that "the hearing" was conducted in such a way that neither of them was afforded any meaningful opportunity to object in his own behalf, present witnesses, question the personnel upon whose reports the committee relied, or obtain a record, the assistance of counsel or the compulsory process of witnesses. They contend that the determination that an escape had occurred amounting to a finding that a felony had been committed in violation of Colorado law, for which they were entitled to jury trial; that the deprivation of earned good time and eligibility for parole for two years had the effect of increasing their sentence despite the fact that their guilt had never been properly determined.

In sum, as we read the complaints, they allege and contend (1) that the solitary confinement amounted to cruel and unusual punishment, (2) that the deprivation of their statutory prisoners' rights was done without affording minimum procedural due process, and (3) they are therefore entitled to (a) a judgment for compensatory and punitive damages, (b) an order enjoining the defendants and their agents from enforcing any punishment found by the court to have been imposed in violation of their constitutional right to due process, and (c) an order requiring the defendants to present to the court for its approval proposed standards and regulations to govern in-prison disciplinary procedures to insure minimum procedural due process for the determination of in-prison violations and the imposition of authorized penalties therefor.

At the outset, it is well to point out that since the commencement of these cases and the decisions of the trial court, it has been authoritatively decided that habeas corpus with concomitant exhaustion of state remedies is the sole remedy for the withholding or forfeiture of good time credits, insofar as it affects the "fact or length of his confinement." See Preiser v. Rodriguez, 411 U.S. 475, 494, 500, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439 (1973); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Rodriguez v. McGinnis, 456 F.2d 79 (2d Cir. 1972). So, the restoration of good time credits and eligibility for parole are not within the scope of this proceeding. But this jurisdictional limitation in no way affects the availability of § 1983 to grant money damages and appropriate equitable relief for the deprivation of in-prison procedural due process. See Preiser, 411 U.S. at 494, 498, 93 S.Ct. 1827; Wolff, 418 U.S. at 553-555, 94 S.Ct. at 2973-2974.

Also since the judgments were entered in these cases, the Supreme Court in Wolff, supra, has promulgated elaborage and flexible standards to provide an in-prison species of due process for achieving "a reasonable accommodation between the interests of the inmates and the needs of the institution." See Wolff v. McDonnell, supra, at 572, 94 S.Ct. at 2982; and see also Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973); and Sands v. Wainwright, 357 F.Supp. 1062 (M.D.Fla.1973). Colorado concedes that the procedures employed in these cases do not measure up to the standards established in Wolff. But Wolff is prospective only and the procedural due process requirements in these cases must therefore be judged according to pre-Wolff law on which there has been considerable contrariety. See Wolff, 418 U.S. page 572, n. 20, 94 S.Ct. page 2982.

While this court has been reluctant, perhaps more so than other courts, to interfere with in-prison disciplinary proceedings, we have consistently recognized that when a convicted person enters a prison he does not leave all of his constitutional rights behind. "... (W)e have never turned a deaf ear to a bona fide claim for relief based upon the deprivation of a constitutional right when asserted by federal or state prisoner, either in the nature of mandamus or habeas corpus proceedings or, as ... a claim under the Civil Rights Act." See Bethea v. Crouse, 417 F.2d 504, 506, and cases cited there (10th Cir. 1969); Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970).

In harmony with the generally accepted view, we have consistently held that solitary or disciplinary confinement is not per se cruel and unusual punishment. See Kostal v. Tinsley, 337 F.2d 845 (10th Cir. 1964); Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967); Evans v. Moseley, 455 F.2d 1084 (10th Cir. 1972); Courtney v. Bishop, 409 F.2d 1185 (8th Cir. 1969); Sostre v. McGinnis, 442 F.2d 178, 190, and cases collected there (2d Cir. 1971). See also Annotation 51 A.L.R.3d 111, 161.

The question, then, is at what point does solitary or disciplinary confinement become cruel and unusual punishment and within the prohibition of the 8th and 14th Amendments when viewed against the historical background of the 8th Amendment case law. It seems fairly accurate to say that in-prison punishment becomes cruel and unusual when, in the language of Chief Justice Warren, it offends "the evolving standards of decency that mark the progress of a maturing society." See Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958); Justice, then Judge, Blackum in Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968); Chief Judge Kaufman in Wright v. McMann, 387 F.2d 519, 525 (2d Cir. 1967) and 460 F.2d 126 (2d Cir. 1972); Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), modified en banc 456 F.2d 835 (5th Cir. 1972); Sostre v. McGinnis, supra, at 190. See comprehensive treatment of the subject 51 A.L.R.2d 111.

Applying these concepts specifically to solitary confinement, the trial court drew a clear distinction between the facts of these and other cases from this circuit and cases like Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966), in which the court held, very properly we think, that confinement in a stripped cell for twelve days was cruel and unusual punishment because the cell was seldom cleaned and accumulated bodily waste and the inmate was kept naked and not provided with a bed, interior light, adequate heating, ventilation, furnishings, except a toilet flushed only from the outside, or soap and water for personal hygiene. See Wright v. McMann, supra; Jackson v. Bishop, supra; Anderson v. Nosser, supra; compare Sostre v. McGinnis, supra.

Agreeing with Fitzharris, the trial court was of the view that solitary confinement must be accompanied by "such essential requirements as may be necessary to maintain...