Hackl v. Dale

• Decision Date: 15 December 1982
• Docket Number: No. 15365,15365
• Citation: 171 W.Va. 415,299 S.E.2d 26
• Parties: Donald Lee HACKL v. Jerry DALE, Supt., HCC.
• Court: West Virginia Supreme Court

Page 26

299 S.E.2d 26

171 W.Va. 415

Donald Lee HACKL v. Jerry DALE, Supt., HCC.

No. 15365.

Supreme Court of Appeals of West Virginia.

Dec. 15, 1982.

Syllabus by the Court

1. "Habeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States." Syllabus Point 1, State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 S.E.2d 220 (1972).

2. A prisoner has a right, secured by the Eighth and Fourteenth Amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. In order to meet the foregoing standard two conditions must be shown: (1) Whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm.

3. The due process clause does not mandate a system of inmate classification in the initial assignment of offenders to a particular place of confinement. Courts have held that where a state by statute creates a mandatory system of classification, this gives rise to an enforceable right.

4. In the absence of extraordinary circumstances a trial court which directs a criminal defendant to presentence diagnostic procedures under the provisions of W.Va.Code, 62-12-7a, or sentences a defendant to the penitentiary, should include with the commitment order copies of any psychological or other diagnostic reports together with any available presentence report made regarding the defendant.

Herbert G. Underwood, C. David Morrison and Irene M. Keeley, Clarksburg, for petitioner.

Laurie J. Garrigan and Gray Silver, III, Asst. Attys. Gen., Charleston, for respondent.

MILLER, Chief Justice:

In this original jurisdiction proceeding, the petitioner, Donald Lee Hackl, seeks a writ of habeas corpus. The petitioner was originally sentenced to the Anthony Correctional Center following a jury trial in which he was found guilty of aiding and abetting a daytime burglary. While at the Anthony Correctional Center the petitioner attempted suicide and was sent to Weston State Hospital for a thirty-day emergency observation. The petitioner was then transferred to the Huttonsville Correctional Center to await a placement decision.

The petitioner was placed in Dorm 7 which is used to house prisoners who have been recently convicted and are undergoing presentence diagnostic classification. ¹ Dorm 7 is also used to house post-sentence commitments who are referred to as "regulars" and who are awaiting the determination of their placement within our penal system. ² The petitioner technically was not in either category since he had been placed in the system under the Youthful Offender Act and was sentenced to the Anthony Center under W.Va.Code, 25-4-6. The parties do not discuss this aspect of the case although it appears that W.Va.Code, 25-1-16, permits transfers for health reasons.

On approximately the tenth day of his stay in Dorm 7, the petitioner was allegedly sexually assaulted in the shower area by a fellow inmate who was committed to Dorm 7 for initial diagnostic testing. Upon the petitioner's habeas corpus motion, we authorized his counsel the right to tour, inspect and photograph the facility at Huttonsville to the extent they deem necessary for final disposition of this proceeding. We have been presented with extensive depositions, exhibits and photographs. The petitioner was ordered to be temporarily incarcerated in the Monongalia County Jail, the county of his original conviction, pending the disposition of this case.

Since the granting of the initial petition, the emphasis of this case has shifted from the initial sexual assault incident, the reason we granted leave to hear the case, to the inadequate screening or classification procedures for convicts sent to Dorm 7 of the Huttonsville Correctional Center.

We begin our analysis by recognizing that:

"Habeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States." Syllabus Point 1, State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 S.E.2d 220 (1972).

See also Hickson and Jones v. Kellison, 296 S.E.2d 855 (1982); Harrah v. Leverette, 165 W.Va. 665, 271 S.E.2d 322 (1980); State ex rel. K.W. v. Werner, 161 W.Va. 192, 242 S.E.2d 907 (1978).

The sexual abuse of a prisoner in a penal institution has been the subject of several opinions by the United States Fourth Circuit Court of Appeals. In Woodhous v. Commonwealth of Virginia, 487 F.2d 889, 890 (4th Cir.1973), the court made this statement:

"A prisoner has a right, secured by the eighth and fourteenth amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. Holt v. Sarver, 442 F.2d 304, 308 (8th Cir.1971)."

The court determined that in order to meet the foregoing standard two conditions must be shown:

"(1) [W]hether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm. See Restatement (Second) of Torts § 320 (1965)." 487 F.2d at 890.

Later in Withers v. Levine, 615 F.2d 158, 161 (4th Cir.1980), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59, a more detailed analysis was made of what is meant by a pervasive risk of harm:

"A pervasive risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents, but it may be established by much less than proof of a reign of violence and terror in the particular institution.... It is enough that violence and sexual assaults occur on the idle tier at MHC with sufficient frequency that the younger prisoners, particularly those slightly built, are put in reasonable fear for their safety and to reasonably apprise prison officials of the existence of the problem and the need for protective measures."

In Withers, supra, the petitioner had been the victim of three recorded sexual assaults, two in the facility in which he was presently confined and an earlier one that occurred in a city jail. In addition, there was evidence found by the trial court that "amply demonstrate[d] that the risk of sexual assault was a serious problem of substantial dimensions, particularly for younger prisoners." Withers, supra at 161.

Here, we are not presented with a factual record that presents evidence of the level shown in Withers, supra. The record does not demonstrate the presence of other sexual assaults such that a reasonable fear for safety can be said to have existed or that prison officials would have been reasonably apprised of the existence of the problem and the need for protective measures.

We are not aware of any decision whereby an isolated incident of sexual assault on one inmate has resulted in a finding that the constitutional prohibition against cruel and unusual punishment has been violated. See Woodhous v. Commonwealth of Virginia, supra. See also Withers, supra; Hite v. Leeke, 564 F.2d 670 (4th Cir.1977); Vance v. Bordenkircher, 533 F.Supp. 429 (N.D.W.Va.1982); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd in part and rev'd in part sub nom., Newman v. State of Ala., 559 F.2d 283 (5th Cir.1977); Martinez Rodriquez v. Jimenez, 409 F.Supp. 582 (D.R.I.1976), aff'd on other grounds, 537 F.2d 1 (1st Cir.); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972), aff'd on other grounds, 501 F.2d 1291 (5th Cir.1974).

As earlier noted, after this case was originally accepted and during the course of extended discovery procedures, the petitioner's focus has primarily shifted to the lack of a reasonable intake classification system at Dorm 7. The claim is made that the correctional authorities have failed to segregate the diagnostic population in the dorm so that the non-violent are protected from the violent confines. The United States Supreme Court has indicated in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), that the due process clause does not mandate a system of inmate classification in the initial assignment of offenders to a particular place of confinement. See also Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976).

However, a number of federal courts have held that where a state by statute creates a mandatory system of classification, this gives rise to an enforceable right. In Ramos v. Lamm, 485 F.Supp. 122, 159 (D.Colo.1979), cert. denied, 450 U.S. 1041, 68 L.Ed.2d 239, 101 S.Ct. 1759 (1981), this law was summarized as follows: "When a classification system is established, however, its...