Jackson v. Bishop, PB-66-C-64

Decision Date03 June 1967
Docket NumberPB-66-C-74 and PB-66-C-99.,No. PB-66-C-64,PB-66-C-64
Citation268 F. Supp. 804
PartiesWilliam King JACKSON, Plaintiff, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Defendant. Lyle Edward ERNST, Jr., Plaintiff, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Defendant. Grady W. MASK, Plaintiff, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Assistant Superintendent G. R. Goodwin, and Dr. Gwinn Atnip, Defendants.
CourtU.S. District Court — Eastern District of Arkansas

Edward L. Wright, Little Rock, Ark., William S. Arnold, Crossett, Ark., for plaintiffs.

Joe Purcell, Atty. Gen., R. D. Smith, III, Don Langston, Asst. Atty. Gen., Little Rock, Ark., for defendants.


OREN HARRIS and GORDON E. YOUNG, District Judges.

These are suits in equity brought under 42 U.S.C.A. § 1983 by three inmates of the Arkansas State Penitentiary against O. E. Bishop, Superintendent of the Penitentiary. The cases first became known to the court through handwritten petitions filed by each of the prisoners seeking various forms of relief. The court allowed the petitions to be filed in forma pauperis and treated each one as a complaint for equitable relief under 42 U.S.C.A. § 1983. Counsel was appointed for the prisoners, and after investigation an amended complaint was filed seeking an injunctive relief and making the cases class actions. Although one of the cases was assigned to Judge Harris and the other two to Judge Young, they were consolidated for trial due to the similarity of the issues presented, and both judges sat as a panel of two for the trial.

The plaintiffs make several alternative claims or contentions for themselves and other prison inmates:

First, they contend that the infliction of corporal punishment in any form constitutes cruel and unusual punishment contrary to the prohibitions of the Eighth Amendment to the United States Constitution as made applicable by the Fourteenth Amendment to the States.

Secondly and alternatively, they contend that the use of the strap or "hide" as a means of punishing inmates in the Penitentiary under any circumstances is cruel and unusual so as to be unconstitutional.

Thirdly, they contend that the imposition of administrative rules or regulations concerning the use of the strap does not make it a constitutionally permissible method of prison discipline.

Plaintiffs' fourth contention is actually twofold: (1) they claim that the rules concerning corporal punishment adopted by the Arkansas State Penitentiary Board do not adequately protect the prisoners from unconstitutional treatment nor do they conform to the requirements that this court set out in the Talley1 decision; and (2) the rules which have been promulgated by the Prison Board have been violated in the administration of corporal punishment upon the inmates.

Finally, each of the plaintiffs contends that although he has some physical impairment which would prevent him from doing the work of an average man, he nevertheless is classified as "average" for prison work purposes, is required to perform difficult physical labor, and is whipped when he fails to perform. Each claims that this is contrary to his constitutional right to due process and equal protection of the law and that it is also unconstitutionally cruel and unusual punishment.

The defendant denies that corporal punishment per se or use of the strap as carried out by prison officials is cruel and unusual in the constitutional sense. He relies primarily upon this court's earlier decision in the Talley case and upon the rules and regulations adopted by the Penitentiary Board pursuant to that decision. He admits that certain rule violations and other unlawful acts occurred at the Penitentiary but claims that these matters have been remedied by administrative action. Defendant denies that any injunctive relief for these plaintiffs or anyone in their class is necessary or justified.

The court appointed Edward L. Wright of Little Rock and William S. Arnold of Crossett, both highly respected and experienced members of the Arkansas Bar, to represent the plaintiffs without charge. They have done so most capably, and the court thanks them for their services.

That the court has jurisdiction and that these are proper cases to be brought under 42 U.S.C.A. § 1983 is not questioned by either party. These matters are fully discussed in the Talley decision supra at 686. However, at the outset we want to point out that the court is especially conscious of the limitations of its function in cases of this kind.

It is well settled that the administration of state prison discipline is the primary responsibility of state officials, and federal courts have an extremely limited area in which they may act pertaining to the treatment of prisoners confined to state penal institutions. State officials must of necessity have wide discretion and control over disciplinary measures in order to properly maintain the prison system as well as to protect the public. Wright v. McMann, 257 F.Supp. 739 (D.C.N.Y.1966). United States ex rel. Atterbury v. Ragen, 237 F. 2d 953 (7 Cir. 1956). Talley v. Stephens, supra (and cases cited therein). Therefore this court cannot and will not become appellate in nature and review each prison administration decision to punish a prisoner.

However, it is equally well settled that there are exceptions to these rules when special circumstances exist and constitutional rights are involved. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030; Childs v. Pegelow, 321 F. 2d 487 (4 Cir. 1963); Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034; Talley v. Stephens, supra.

As was said in Talley, page 686 of 247 F.Supp., "Although persons convicted of crimes lose many of the rights and privileges of law abiding citizens, it is established by now that they do not lose all of their civil rights, and that the Due Process and Equal Protection Clauses of the 14th Amendment follow them into the prison * * *"

We feel that the complaints in these cases raise several constitutional questions which merit the court's attention.

In order to understand the issues in their proper perspective, it is necessary to set out some of the facts about, and the recent history of the Arkansas State Penitentiary.

The Arkansas Penitentiary System is under the general supervision of a fiveman honorary commission known as the State Penitentiary Board but actual supervision is by them delegated to a Superintendent.

The plant of the System consists of two farms. One is known as Cummins Farm and contains approximately 15,500 acres, with 8,200 acres being under cultivation. Cummins Farm is located near Grady, Arkansas, and normally houses approximately 1,600 inmates; Superintendent O. E. Bishop resides at Cummins Farm. The other farm is known as Tucker Farm and contains approximately 4,500 acres, with approximately 3,000 acres being under cultivation. Tucker Farm is situated at Tucker, Arkansas, and normally houses approximately 275 inmates. Cummins Farm and Tucker Farm are approximately fifty miles apart by highway.

Personnel, other than inmates under sentence, at Cummins Farm consists of the Superintendent and 25 paid employees, with 20 being supervision wardens; and at Tucker Farm consists of an assistant superintendent and five paid employees, but only three supervision wardens. Customarily both farms make use of inmates, called trusties, in supervisory and overseeing capacities in the fields, in the barracks, and as security guards. The primary activity of inmates at both farms is agricultural work with row crops and garden type produce being planted, cultivated and harvested principally by hand labor. A dairy herd and a beef herd are also maintained for food.2

In the fall of 1965 certain irregularities at the Penitentiary were brought to the court's attention by three inmates who filed suits similar to the ones now before the court. This court, with Judge Henley presiding, heard those cases and rendered its decision in November 1965. Talley v. Stephens, supra. The chief contention of the plaintiffs in those cases was that the use of corporal punishment at the Arkansas State Penitentiary for disciplinary purposes was cruel and unusual and violative of the constitutional rights of the plaintiffs.

The court found that it could not say that corporal punishment per se was unconstitutional. It went on to say:

"But, the Court's unwillingness to say that the Constitution forbids the imposition of any and all corporal punishment on convicts presupposes that its infliction is surrounded by appropriate safeguards. It must not be excessive; it must be inflicted as dispassionately as possible and by responsible people; and it must be applied in reference to recognizable standards whereby a convict may know what conduct on his part will cause him to be whipped and how much punishment given conduct may produce."

Shortly after this decision, the Superintendent of the Penitentiary resigned; and on January 1, 1966, Mr. O. E. Bishop, the present Superintendent, was appointed. On January 10, 1966, the Penitentiary Board through Mr. Bishop promulgated a set of rules and regulations for the Penitentiary which include, inter alia, the following rules setting forth the offenses which merit corporal punishment as well as the procedures to be followed in administering such punishment.

"A great part of your time here will be spent in the barracks you are assigned to. Barracks rules and procedure will be posted in the barracks. Your conduct, personal cleanliness and attitude while in the barracks is an important part of your prison record. "These major offenses will warrant corporal punishment:"
(1) Homosexuality.
(2) Agitation (defined as one who creates turmoil and disturbances).
(3) Insubordination (resisting authority or refusing to obey orders).
(4) Making or concealing of weapons.

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