Nadeau v. Helgemoe

• Decision Date: 06 April 1977
• Docket Number: No. 76-1569,76-1569
• Citation: 561 F.2d 411
• Parties: Larry NADEAU et al., Plaintiffs, Appellees, v. Raymond A. HELGEMOE, Warden, New Hampshire State Prison, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 411

561 F.2d 411

Larry NADEAU et al., Plaintiffs, Appellees, v. Raymond A. HELGEMOE, Warden, New Hampshire State Prison, et al., Defendants, Appellants.

No. 76-1569.

United States Court of Appeals First Circuit.

Heard April 6, 1977.

Decided Aug. 24, 1977.

James L. Kruse, Asst. Atty. Gen., Concord, N. H., with whom David H. Souter, Atty. Gen., and Richard B. Michaud, Atty., Concord, N. H., were on brief, for defendants, appellants.

Jeffry A. Shapira, Nashua, N. H., with whom Mark A. Larsen and Arpiar G. Saunders, Nashua, N. H., were on brief for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, MILLER, ^* Judge.

COFFIN, Chief Judge.

In this case, New Hampshire state prisoners in protective custody mount a constitutional attack on the conditions of their imprisonment. The decision of the district court largely favored the prisoners, and only the state has appealed. We affirm in part and reverse in part.

I.

There are about thirty-five protective custody prisoners at the state prison. The life of a protective custody prisoner is, for the most part, boring and filled with inconvenience; the tedium is relieved on occasion by moments of terror. ¹ Protective custody, as the name implies, is for prisoners who fear for their safety if they are housed with the general population. Some prisoners in protective custody have cooperated with the state in criminal prosecutions; others have been assaulted while in the general population; still others have run up large debts to other prisoners; some simply cannot get along with their fellow prisoners. Protective custody is not a punishment. It is voluntary, and protective custody prisoners may request a transfer to the general population at any time.

Protective custody prisoners are housed in the "Annex", a four-story building attached to the main cell block in the New Hampshire State Prison. The bottom floor of the Annex contains the prison library and a gang shower. The top three floors each have two outside corridors, 22 back-to-back cells, and a single stall shower. Eleven cells face each window-lined corridor. The corridors, or tiers, are about seventy feet long and eight feet wide. The cells are about six feet by eight feet, with steel walls, a steel bunk, and a toilet and sink. On the top floor, a steel mesh wall divides the corridors lengthwise. It is meant to keep prisoners from pelting the guards with food or more dangerous objects. It also has the effect of cutting off some light and air from the windows. Protective custody (PC) prisoners are kept on the top two floors of the Annex. The second floor houses prisoners under discipline, and "trustees". Except during the night shift, two guards keep watch in the Annex. One stays on the first floor at all times, guarding the entrances and answering the phone. The other escorts inmates to and from showers, visits, medical calls, and the like.

A PC prisoner's day begins with breakfast at 7:00 or 7:30 each morning. Breakfast is brought from the kitchen in a heated cart and carried to each cell on a tray. On each weekday, twenty men may take showers from 8:00 to 10:00 a. m. Every prisoner showers five times every two weeks, on Tuesdays and Thursdays one week and on Monday, Wednesday, and Friday the next. During the shower period, inmate workers clean the tiers and perform other chores. Lunch comes, again on trays, at about 10:30 a. m., roughly an hour before the general population eats. Unlike the general population, PC inmates seldom get second helpings. At about 11:30 a. m. the entire prison population is locked in, and a prisonwide head count takes place. Mail and medicine is also distributed at this time.

About twice a week, PC prisoners may go outdoors for recreation or to buy items from the prison canteen from 12:00 to 12:45 p. m. Once a week, at this time, they may go to the prison library for a little less than an hour. There they may do legal research and borrow a book, but no inmate is allowed to check out more than one book at a time. Sometimes a book will be sent to an inmate on request during the week. If the inmate is willing to pay the price, copies of cases can be ordered from the New Hampshire Supreme Court library.

Every weekday, PC inmates are let out of their cells for "tier time" from 12:45 to 2:45 p. m. They are confined to their corridors, but may exercise and visit with each other. At 2:45 they return to their cells, and inmate workers again clean the tiers. Supper is served at 3:30; the general population eats its supper an hour later. Again, second helpings are rare in the Annex. Except for special reasons, such as a visitor, PC prisoners remain locked up for the rest of the evening.

When PC inmates have visitors or wish to obtain medical or educational services, they go to the administrative section of the prison. This means that they must pass through the main cell block, escorted by a single guard. General population prisoners are often out of their cells at the time, so the trip presents a danger of both physical and verbal attack. The danger persists during visits, when PC and general population prisoners are intermingled.

In theory, many occupational, educational, and rehabilitative programs are open to PC prisoners, but as a practical matter PC inmates are afraid to join any program that is also open to the general population. Only a small number of programs are closed to the general population and thus available to PC inmates. A few inmates work in the Annex. Some get high school equivalency tutoring. Bible study class, drug and alcohol counseling, legal and medical services are also available. The general population has a much wider range of activities open to it, including woodcarving, pottery, yoga, vocational training, and many fairly sophisticated work opportunities. In addition, PC inmates who cannot work do not get "idle pay" currently 38 cents a day even though nonworking prisoners in the general population do get it. On the other hand, unlike the general population, PC inmates need not pay for tobacco, razor blades, and the like. Religious services are not held in the Annex, primarily because of lack of interest, but a minister and a priest are available for counseling or for administration of the sacraments.

II.

The district court drew from the Eighth and Fourteenth Amendments closely related, if not identical, tests to evaluate the constitutionality of these practices. Nadeau v. Helgemoe, 423 F.Supp. 1250, 1262-65 (D.N.H.1976). In considering the proscription of "cruel and unusual" punishment by the Eighth Amendment, the court recognized two traditional tests. The first is whether the punishment is so barbarous that it offends society's evolving sense of decency. See, e. g., Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711 (1977); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (opinion of Warren, C. J.). The second is whether the punishment is grossly disproportionate to the offense. See Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910). In addition, the court embraced what it called the third test under the Eighth Amendment. The essence of this test is that all punishments must have a legitimate penological purpose. See, e. g., Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.1966). Moreover, the court held:

"The fact that defendants have granted specific privileges and benefits to the general population gives rise to a presumption that those privileges and benefits serve a legitimate penological purpose; the wholesale denial to a few of the exact same privileges and benefits lifts the cloak of that presumption from defendants' acts." 423 F.Supp. at 1263-64.

Four penological objectives were recognized; deterrence, insulating society from offenders, rehabilitation, and prison security. See Pell v. Procunier, 417 U.S. 817, 822-23, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). The court declared that lack of funds was not an acceptable justification: "fiscal inability alone does not excuse the denial to some of privileges and benefits deemed necessary to achieve legitimate penological ends." 423 F.Supp. at 1264. The court also rejected administrative convenience as a proper reason for distinguishing between the two populations.

Parallel to this test runs a special version of the equal protection "rational basis" standard. In the absence of a fundamental interest or suspect classification, the court recognized that the state may draw any distinction between persons, so long as the classification is rationally related to some permissible state goal. See, e. g., New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). But the court concluded that in this context the only permissible state goals were the safety of the PC inmates and the four "legitimate penological objectives" it had already recognized. Again the court determined that "it is not sufficient for defendants to demonstrate that equal treatment (of general population and PC inmates) would be fiscally difficult or impossible." 423 F.Supp. at 1266.

Having stated the test it would apply, the district court then examined the plaintiffs' grievances with meticulous care. Some, the court found, were not proper grounds for relief. The security screen, the court noted, was installed in preparation for a shifting of disciplinary inmates to the fourth floor. The temporary discomfort suffered by PC inmates was not actionable because the screen was installed pursuant to a rational overall penological plan. Medical service in the Annex, the court found, was not worse than that offered the general population, and there was no evidence of inadequate care. The court also found no real demand for more group worship in the Annex, noting that the prison put no obstacle to worship or religious consultation in the path of PC prisoners. This...