McIntosh v. Haynes, 59477

• Decision Date: 17 January 1977
• Docket Number: No. 59477,59477
• Citation: 545 S.W.2d 647
• Parties: Harry A. McINTOSH, Petitioner, v. Edward R. HAYNES, Director, Missouri Division of Corrections, Respondent.
• Court: Missouri Supreme Court

Page 647

545 S.W.2d 647

Harry A. McINTOSH, Petitioner, v. Edward R. HAYNES, Director, Missouri Division of

Corrections, Respondent.

No. 59477.

Supreme Court of Missouri, en banc.

Jan. 17, 1977.

Ronald R. McMillin, Jefferson City, for petitioner.

John C. Danforth, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

Harry A. McIntosh, a prisoner, filed an original petition for writ of habeas corpus in this court naming the director of the Missouri division of corrections, Edward R. Haynes, as respondent. In his original petition the petitioner alleged that certain conditions of his confinement in the Missouri state penitentiary constituted cruel and unusual punishment in violation of the constitutions of the United States and the state of Missouri from which he seeks relief.

The writ was issued and the respondent filed his return asserting that the petitioner was lawfully in custody 'under the authority of a judgment and sentence entered in the Circuit Court of Greene County, Missouri, No. 70035--1, entered September 17, 1974, and ordering petitioner to serve a term of six years in the custody of the Missouri Division of Corrections.' The respondent then requested this court to dismiss the writ of habeas corpus and remand the petitioner back into custody of the division of corrections.

The petitioner filed an answer in which he admitted being held in custody of the Missouri department of corrections pursuant to the authority and judgment entered in the circuit court of Greene county. Petitioner claims, however, that his particular confinement in a particular place within the penitentiary, because of conditions that exist there, constitutes cruel and unusual punishment in violation of the state and federal constitutions. Specifically, the petitioner claims the condition that renders this confinement unlawful is that the building in which he is required to sleep is rat-infested and while he was so confined he was bitten by a rat. He also claims other prisoners confined in the same place have been bitten by rats. Although the prayer of his petition for the writ utilizes the classical language whereby he seeks discharge from his confinement, it is clear from his response to the return and the stipulation of facts that petitioner does not seek discharge from the department of corrections but only from being confined in a place infested with rats.

The case was submitted to the court on the following stipulated facts:

'1. Petitioner is in the custody of the Missouri Department of Corrections as a result of a six-year sentence imposed by the Circuit Court of Greene County, Missouri, in the cause styled State of Missouri v. Harry Arthur McIntosh, No. 70035--1. Said judgment and sentence were entered on September 17, 1974, pursuant to a plea of guilty to a charge of robbery in the first degree.

'2. Petitioner currently is housed in the Missouri State Penitentiary, Jefferson City, more particularly in a building formerly used as a clothing warehouse, which now has been converted into an honor dormitory. The dormitory is known as housing unit No. 9.

'3. Respondent is and was at all relevant times the Director of the Missouri Division of Corrections.

'4. Petitioner would testify that on January 2, 1976, at about 4:30 a.m., he was bitten by a rat while in bed in housing unit No. 9, which incident was reported to the guard. Petitioner was then taken to the prison hospital where he began anti-rabies treatment, consisting of a fourteen-shot series of anti-rabies vaccine. Petitioner would testify that this treatment was painful.

'5. Two other inmates in housing unit No. 9 had previously reported being bitten by rats and undergone anti-rabies treatment, the first on December 15, 1975, and the second on December 18, 1975.

'6. Donald Wyrick, Warden, Missouri State Penitentiary for Men, would testify that shortly after petitioner reported being bitten he contracted with Rose Exterminator Company, Jefferson City, Missouri, for its extermination service on a once-a-month basis. He further would testify that he has received no further reports concerning the presence of rats since the company had been employed and that no other action is contemplated.

'7. Petitioner would testify that three other inmates in housing unit No. 9 and told him that they had seen rats in housing unit No. 9 after the institution of the above-described vermin-control methods.

'8. The same issues presented in this petition were previously raised in the Circuit Court of Cole County (Case No. 28260) and the Missouri Court of Appeals-Kansas City Division (Case No. 28529). Both petitions were dismissed without a hearing on the merits.'

The principal legal issue is: Assuming the conditions of confinement as alleged constitute cruel and unusual punishment, is habeas corpus a proper remedy to challenge those conditions and obtain relief short of discharge from the penitentiary.

The factual issue is: Assuming habeas corpus to be the proper remedy, do the facts of the instant case establish that petitioner is being subjected to cruel and unusual punishment.

The respondent's basic contention is that habeas corpus is not the proper remedy to challenge the conditions of one's confinement but instead is limited to challenging the cause of confinement. Stated in other words, habeas corpus is intended to inquire into the legality of the authority under which the petitioner is confined. Furthermore, the only remedy available is release from that confinement either by discharge or bail. Respondent argues that since the petitioner admits he is incarcerated pursuant to a valid judgment of the circuit court of Greene county, Missouri, and cannot be discharged from his confinement habeas corpus is not the proper remedy.

Traditionally, the courts in Missouri have refused to examine the conditions of one's confinement by way of habeas corpus. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), wherein the Supreme Court of the United States said the practice of Missouri courts was to dismiss petitions for writs of habeas corpus which challenge conditions of confinement because they fail to state causes of action. We are now of the opinion that it is appropriate to reexamine this reputed practice in light of a trend to expand the use of the habeas corpus remedy.

It is important to point out that there is no limitation contained in the Missouri habeas corpus statute which would prevent a court from taking cognizance of habeas corpus proceedings which seek to challenge the conditions of confinement. All such limitations have been products of judicial constraint. Section 532.010, RSMo 1969, ¹ provides:

'Every person committed, detained, confined or restrained of his liberty, within this state, for any criminal or supposed criminal matter, or under any pretense whatsoever, except when, according to the provisions of this chapter, such person can be neither discharged nor bailed, or otherwise relieved, may prosecute a writ of habeas corpus as herein provided, to inquire into the cause of such confinement or restraint.'

The essence of this section is that every person restrained of his liberty may prosecute a writ of habeas corpus to inquire into the cause of that restraint. This right, however, is qualified by the except clause, 'except when, according to the provisions of this chapter, such person can be neither discharged nor bailed, or otherwise relieved, . . .' This does not say that a writ of habeas corpus will not issue in all cases where the individual can neither be 'discharged nor bailed, or otherwise relieved', but instead the writ shall not issue where the provisions of chapter 532 say it shall not. Specifically, section 532.040 provides the writ shall not be entertained by an inferior court where the relief sought was refused by a superior court; section 532.390 provides no person shall be discharged pursuant to chapter 532 who is in custody of or enlisted in the military of the United States, or who is a prisoner of war under authority of the United States, or who is in custody for treason, felony, or high misdemeanor, committed in any other state or territory, and by the constitution and laws of the United States ought to be delivered to that state or territory; section 532.400 provides no person shall benefit from the provisions of chapter 532 whose confinement is erroneous as to time or place of imprisonment, but he may be otherwise relieved by sentencing him to the proper place and for the correct amount of time; section 532.410 provides the person shall be remanded to custody if he is detained by virtue of process of a federal court which has exclusive jurisdiction, or by virtue of a final judgment for civil or criminal contempt, or for any contempt specially and plainly charged in the commitment, or where the time has not expired during which the person may be legally detained; section 532.420 provides a party who has been remanded may not be discharged by a second writ where he is charged in the order remanding him or in the commitment order with a criminal offense; section 532.450 provides that no person imprisoned under an indictment may be discharged under the provisions of chapter 532 unless the offense is bailable. None of these sections proscribe the prosecution of a writ of habeas corpus by one seeking relief from conditions of confinement.

A comment is needed by way of explanation regarding section 532.410, subd. 4, which provides a party shall be remanded if 'the time during which such party may be legally detained has not expired.' This section does not say that habeas relief is only available in those instances where a person may be discharged from custody. If it was read to allow habeas relief only when a person could be discharged, it would mean a prisoner could be confined under the most onerous conditions in violation of the prohibition against cruel and unusual punishment without the...