Spain v. Procunier, 76-1095

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Before DUNIWAY and KENNEDY; KENNEDY
• Citation: 600 F.2d 189
• Parties: Johnny L. SPAIN et al., Plaintiffs-Appellees, v. Raymond K. PROCUNIER et al., Defendants-Appellants.
• Docket Number: No. 76-1095,76-1095
• Decision Date: 30 May 1979

Page 189

600 F.2d 189 Johnny L. SPAIN et al., Plaintiffs-Appellees,
v.
Raymond K. PROCUNIER et al., Defendants-Appellants. No. 76-1095. United States Court of Appeals,
Ninth Circuit. May 30, 1979.
As Amended June 15, 1979.
As Amended on Denial of Rehearing July 30, 1979.

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Sanford Svetcov, Chief Asst. U. S. Atty., San Francisco, Cal., for defendants-appellants.

Fred J. Hiestand, Berkeley, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California.

Before DUNIWAY and KENNEDY, Circuit Judges, and PALMIERI, ^* District Judge.

KENNEDY, Circuit Judge:

Six prisoners in the California state prison at San Quentin brought this suit to establish that conditions of their confinement and certain practices directed against them by prison guards were in violation of the cruel and unusual punishment clause of the Constitution. U.S. Const. amend. VIII. The action was commenced in the United States District Court for the Northern District of California against the Director of

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the California Department of Corrections, the Warden and Associate Warden of the prison, and three prison correctional officers. Judge Zirpoli conducted a 29-day trial and made a personal inspection of the prison to determine the facts of the case. He rejected certain major claims of the plaintiffs, but found that their constitutional rights had been violated in significant respects. The trial judge permitted the defendants to correct the deficiencies and allowed them an opportunity to report on their progress, but when these rulings proved inadequate for the protection of the plaintiffs, he issued an injunction ordering certain corrective actions. The order is supported by an extensive opinion, Spain v. Procunier, 408 F.Supp. 534 (N.D.Cal.1976). The defendants appeal. We think the opinion should be affirmed in part, and modified or reversed in other respects, all as set forth further below.

The case is difficult because it requires us to pass upon measures adopted by prison officials for the safe custody of some of the most dangerous men in the prison population. Each of these plaintiffs had been either charged or convicted of violent acts while in prison even before an outbreak of further violence on August 21, 1971. On that date, it is alleged, each of the prisoners had responsibility in some degree for crimes in which three prison officers and two inmates were slain. As the trial court stated, "Director Procunier testified that the incident of August 21, 1971 was the worst in his eight years as Director of Corrections." 408 F.Supp. at 538 n.4. The plaintiffs here were jointly indicted for that incident upon various charges depending on their degree of alleged participation, and the indictment contained three counts of murder of correctional officers, two counts of murder of other inmates, one count of conspiracy to escape, kidnap and possess a weapon, and counts of aggravated assault upon three other officers.

The prisoners were assigned to the adjustment center (known as the AC) at San Quentin Prison. The AC is a three-story structure used primarily to segregate and discipline disruptive prisoners. Prison regulations directed a classification committee to determine, after an alleged criminal offense committed by a prisoner in custody had been referred to the district attorney for prosecution, whether the inmate should be segregated from the rest of the prison population during the pendency of the criminal proceedings. The committee had assigned all of these prisoners to the AC. Some of the prisoners had been assigned there prior to the August 21, 1971 incident, and various justifications were offered for their continued detention in that facility, but the trial court found that the August 21, 1971 incident was the principal reason for holding the plaintiffs in the AC continuously from that date to the date of trial. ¹ Some of the prisoners had been held in the AC for four and one-half years when this action was commenced. The criminal trial for the August 21, 1971 incident had not been completed at that time.

The living conditions, sanitary facilities, and daily routine in the AC were described in detail by Judge Zirpoli. He concluded there was no serious deficiency concerning the physical structure and that medical, nutritional, and sanitary provisions for the prisoners were adequate. The plaintiffs did not appeal these findings relating to the AC, and they did not appeal findings adverse to them on numerous first and sixth amendment claims, such as alleged denial of access to effective assistance of counsel.

The respects in which the district court found constitutional deficiencies are: the procedure used to assign prisoners to the AC, the use of tear gas, the use of mechanical restraints, including neck chains, and the failure to provide inmates in the AC with any outdoor exercise. The defendants

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appeal these rulings. After certain preliminary matters, we address each of these subjects below.

Three-Judge Court

Appellants first argue that the district court's action required a three-judge court. The former statute, 28 U.S.C. § 2281, which was repealed in 1976, Pub.L.No. 94-381, 90 Stat. 1119, required the convening of a three-judge court to enjoin "the enforcement, operation or execution of any State statute . . . or of an order made by an administrative board or commission acting under State statutes." However, the Supreme Court recognized many years ago that the three-judge court is "a serious drain upon the federal judicial system," Phillips v. United States, 312 U.S. 246, 250, 61 S.Ct. 480, 483, 85 L.Ed. 800 (1941), and directed that the earlier statute, former 28 U.S.C. § 380, upon which section 2281 was based, be narrowly construed, Id. at 250-51, 61 S.Ct. 480. In Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), the Supreme Court held that a complaint does not meet the threshold requirements of section 2281 jurisdiction and therefore does not necessitate a three-judge court if it does "not mention or challenge any rule or regulation of the Authority; nor (does) it seek an injunction against the enforcement of any identified rule." Id. at 313 n.2, 96 S.Ct. at 1555 n.2. See Morales v. Turman, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977) (per curiam); Costello v. Wainwright, 430 U.S. 325, 97 S.Ct. 1191, 51 L.Ed.2d 372 (1977) (per curiam). In this case, the complaint did not challenge or seek to enjoin any rule or regulation; all that was challenged were the practices of appellants as directed toward the plaintiffs. In Morales v. Turman, supra, the Court specifically held that constitutional challenges to "generalized, unwritten practices of administration" do not require a three-judge court. 430 U.S. at 323, 97 S.Ct. at 1190. Therefore, the case did not require a three-judge district court.

Procedural Rights

The trial court ordered that unless the appellees were "accorded a properly noticed disciplinary hearing with the due process protections prescribed by the Ninth Circuit in Clutchette v. Procunier, 497 F.2d 809, as modified in 510 F.2d 613 (9th Cir. 1975), (Rev'd sub nom. Enomoto v. Clutchette, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976), vacated in part, 536 F.2d 305 (9th Cir. 1976))" they were to be released from the AC and permitted to rejoin the general population of the prison. 408 F.Supp. at 547. We reverse and remand this order for reconsideration in light of the Supreme Court decisions in Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), and Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 444, 46 L.Ed.2d 384 (1976). See Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978).

Tear Gas

The plaintiffs sought to prohibit prison personnel from using tear gas against them. It was alleged that this painful substance was used to remove recalcitrant prisoners from their cells and that the use of the chemical caused anguish to prisoners in adjacent cells even if they were not the ones refusing to cooperate with prison officials.

The principal position taken by the state, both on this question and as to all other substantive matters raised in the appeal, is that federal judicial interference in prison management is not justified on the facts of this case. The federal courts should use great restraint before issuing orders based on the finding that the state has followed unlawful procedures in discharging the unenviable task of keeping dangerous men in safe custody under humane conditions. This said, it must also be remembered that enforcement of the eighth amendment is not always consistent with allowing complete deference to all administrative determinations by prison officials. Whatever rights one may lose at the prison gates, Cf. Jones v. North Carolina Prisoners Union,433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (prisoners have no right

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to unionize), the full protections of the eighth amendment most certainly remain in force. The whole point of the amendment is to protect persons convicted of crimes. Eighth amendment protections are not forfeited by one's prior acts. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state confinement be altered where necessary to eliminate cruel and unusual punishments is well established. See Bell v. Wolfish, --- U.S. ----, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); Hutto v. Finney, 437 U.S. 678, 685, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977), Cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Williams v. Edwards, 547 F.2d 1206, 1211-12 (5th Cir. 1977); Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-23 (2d Cir. 1971). In this regard we...