Withers v. Levine
| Decision Date | 05 February 1980 |
| Docket Number | 78-6337,Nos. 78-6336,s. 78-6336 |
| Citation | 615 F.2d 158 |
| Parties | Edward Howard WITHERS, Appellant, v. Mark LEVINE, Commissioner, Division of Correction; Robert McColley, Deputy Commissioner, Division of Correction; Ralph Williams, Warden, Maryland House of Correction; Marcellus Moore, Assistant Warden for Treatment, Maryland House of Correction; John Byrne, Assistant Warden for Custody, Maryland House of Correction; James Jordan, Individually, Appellees. Edward Howard WITHERS, Appellee, v. Mark LEVINE, Commissioner, Division of Correction; Robert McColley, Deputy Commissioner, Division of Correction; Ralph Williams, Warden, Maryland House of Correction; Marcellus Moore, Assistant Warden for Treatment, Maryland House of Correction; John Byrne, Assistant Warden for Custody, Maryland House of Correction; James Jordan, Individually, Appellants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Craig E. Smith and Charles M. Kerr, Baltimore, Md., for appellant in 78-6336 and for appellee in 78-6337.
Donald R. Stutman, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland, Clarence W. Sharp, Asst. Atty. Gen., Chief, Crim. Div., Michael A. Anselmi, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees in 78-6336 and for appellants in 78-6337.
Before HAYNSWORTH, Chief Judge, and WINTER and MILLER, * Circuit Judges.
In this § 1983 1 action, the district court granted declaratory and injunctive relief, requiring prison officials to devise a procedure to provide inmates with reasonable protection from aggressive sexual assaults. The findings of fact are fully supported in the record, and, since we approve the court's legal reasoning, we affirm. See Withers v. Levine, 449 F.Supp. 473 (D.Md.1978).
In the Maryland House of Corrections, a medium security institution for males, some homosexual rapes are reported annually. There was evidence, however, that many more such assaults go unreported because the victim is usually threatened with violence or death should the incident be reported. Typically, the attacks are upon younger prisoners, and a young, white, slightly built man is at the greatest risk of all. Withers, although black, otherwise fits this description. Moreover, it appears that once a prisoner has been thus victimized, word spreads throughout the prison and he becomes a special target for subsequent attacks.
Newly arriving prisoners at MHC are placed on an "idle tier" where they remain from sixty to ninety days, pending assignment to a prison job and regular housing. Prisoners were assigned to two-man cells, largely on the basis of space availability and without regard to considerations of safety.
When Withers first arrived at MHC he got into an altercation with his cellmate who attempted a sexual assault. As a result of the altercation, each of them was put in solitary confinement, but Withers requested a transfer to another institution. He reported that he had been the victim of a similar assault three years earlier while in the Baltimore City Jail. Because of his age and his victimization by sexually aggressive prisoners, he was transferred to the Maryland Correctional Institute at Hagerstown. Approximately one and one-half years later, however, he was transferred back to MHC despite the fact that the classification team which ordered the transfer had reviewed his base file which contained information about the sexual assaults upon him. No effort was made to alert the cell assignment officials at MHC to any need of special care for Withers.
When he arrived at MHC the second time, the cell assignment official placed him in a cell with a prisoner named Redd. The base file goes with the prisoner, but it goes to the records office and was unavailable to the cell assigning official. Had it been available and had that official consulted it, he would have learned of Withers' earlier victimizations. Had he reviewed Redd's file, he would have learned that Redd, a large man, had a history of violent, aggressive, sexual assaults.
On his second night in the cell with Redd, threatened by a razor and pressed with Redd's greater weight and strength, Withers again became the victim of a sexual assault.
It is suggested that Withers has now been transferred to the Maryland Penitentiary, a maximum security institution, and is no longer housed on the idle tier at MHC.
Dismissal for mootness is suggested.
The transfer will not moot the damage claim, though that claim had been decided against Withers in the district court on the ground that the defendants enjoyed a qualified immunity. Because of Withers' appeal, however, the question is an open one here and cannot be said to be moot. Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 8-9, 98 S.Ct. 1554, 1559-1560, 56 L.Ed.2d 30 (1978).
Even if the damage claim was the only thing that saved the case from Article III mootness, injunctive relief may still be granted if appropriate under discretionary injunction principles. C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3533 at 273, n.49 (1975). Here the district court could appropriately conclude that an award of monetary damages to Withers would not adequately remedy the great risk of violence to which Withers and prisoners like him were subject on the idle tier at MHC.
More importantly, perhaps, this is a case "capable of repetition, yet evading review" which is an exception to the mootness doctrine. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Newly received prisoners at MHC are housed on the idle tier no more than sixty to ninety days. That does not provide sufficient time to litigate the adequacy of measures to provide such prisoners as Withers with reasonable protection. Withers had been twice transferred to MHC, and each time became the victim of a sexual assault. He is still in Maryland's prison system, and, since he had been previously considered appropriate for minimum custody housing, he again may be transferred to MHC. Such a retransfer cannot be said to be purely speculative, and, from Withers' point of view, there is a reasonable expectation that he again may be subjected to the same action. Thus the two requirements of Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975) (per curiam) are met. See also First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-75, 98 S.Ct. 1407, 1414-15, 55 L.Ed.2d 707 (1978).
In Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973), we held that a prisoner has a constitutional right "to be reasonably protected from the constant threat of violence and sexual assault from his fellow inmates . . . ." To obtain relief, he must show "a pervasive risk of harm to inmates from other prisoners" and that the prison officials have failed to exercise reasonable care to prevent prisoners from intentionally inflicting harm or creating unreasonable risks of harm to other prisoners.
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. The defendants seized upon that explanatory phrase from Woodhous to contend that something approaching anarchy must be proven before a cause of action under Woodhous may be made out, but conditions need not deteriorate to that extent before the constitutional right to protection arises. 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. The proof in this case and the findings of the district court fully meet those requirements.
It is not necessary to show that all prisoners suffer a pervasive risk of harm. It is enough that an identifiable group of prisoners do, if the complainant is a member of that group. It is irrelevant that larger, older men need experience no such fear, when younger and smaller men are frequently victimized and each such person has a reasonable basis for fearing that he will become a victim or will be victimized again. The analysis in the opinion of the district court, while showing that sexual assault was not rampant at MHC or on its idle tiers, amply demonstrates that the risk of sexual assault was a serious problem of substantial dimensions, particularly for younger prisoners. It surely was enough to require the prison officials to take reasonable precautions to provide reasonable protection for such prisoners.
The defendants have not...
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