Picard v. Pennsylvania Institutional CV-95-387-M 12/06/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Warren R. Picard, Plaintiff,

v. Civil No. 95-387-M

Dr. Alan Stein; Sat. Jerry Street; Nursing Supervisor Barbara Conden; Cpl. Alfred Lessard; L t . Thomas Cusson; Sat. William Duffy; Cpl. Allen Gerard, Jr.; L t . Ronald Bourque; Sat. Gary Chapdelaine; James O'Mara, Individually; James O'Mara, In His Official Capacity as Hillsborough County Jail Superintendent; and Pennsylvania Institutional Health Services, Inc., Defendants.

O R D E R

Pro se plaintiff objects, in part, to the Report and

Recommendation of the Magistrate Judge (document no. 8) which

recommends dismissal of his complaint with regard to claims

brought against defendants Dr. Stein and Hillsborough County Jail

Superintendent James O'Mara (for failure to plead facts which

would support a cognizable claim against either), as well as

dismissal of his deprivation of procedural and substantive due

process claims (for failure to state a cause of action).

In his timely objection to the Report and Recommendation,

plaintiff contests only the proposed dismissal of his due process

claims and claims against Superintendent O'Mara. Accordingly,

the court hereby adopts the Magistrate Judge's Report and Recommendation as to dismissal of the claims brought against Dr.

Stein. Those claims are hereby dismissed.

However, with regard to the recommendation that plaintiff's

due process claims and claims brought against Superintendent

O'Mara be dismissed, the court declines to accept that

recommendation. The court finds, as discussed below, that

plaintiff has, at this early stage of the proceedings, adeguately

asserted both procedural and substantive denial of due process

claims against Superintendent O'Mara and the other correctional

officer defendants, given the minimal reguirements of notice

pleading and his pro se status.

Substantive Due Process

The Eighth Amendment prohibits the infliction of cruel and

unusual post-conviction punishment. Revere v. Massachusetts

General Hospital,

(1983) . At the time relevant

to his complaint, plaintiff alleges that he was a pretrial

detainee. The protections against cruel and unusual punishment

available to pretrial detainees, under the Fourteenth Amendment,

"are at least as great as the Eighth Amendment protections

available to a convicted prisoner."

(citing Bell v. Wolfish,

(1979)). Because plaintiff claims to have been

2 a pretrial detainee, it is the due process clause of the

Fourteenth Amendment that limited the conditions of his

confinement. Ingraham v. Wright,

(1977).

Violation of a pretrial detainee's right to substantive due

process occurs when the conditions of confinement "amount to

punishment of the detainee." Bell v. Wolfish, supra,

; Lyons v. Powell,

(1st Cir. 1988). While the

state may not punish a pretrial detainee, it can properly impose

upon him conditions and restrictions necessary to maintain jail

security. Wolfish,

. Whether a restriction is

punitive or incidental to a legitimate governmental purpose turns

in large measure on "whether an alternative purpose to which [the

restriction] may rationally be connected is assignable for it,

and whether it appears excessive in relation to the alternative

purpose assigned [to it]."

.

Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal - if it is arbitrary or purposeless - a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees gua detainees.

3

. Restraints that are reasonably related to the

maintenance of jail security "do not, without more, constitute

unconstitutional punishment."

. However, even if

limitations on a pretrial detainee's freedom are rationally

related to a legitimate non-punitive governmental purpose, they

amount to punishment in any event if they "appear excessive in

relation to that purpose." Young v. Keohane,

(M.D. Pa. 1992) (emphasis added) (guoting Wolfish,

61).

In addition to proving that conditions of confinement

constitute unconstitutional punishment, to prevail on a claim for

damages under

a pretrial detainee must also

demonstrate that the imposing officials' conduct reached the

level of "deliberate indifference" to his or her conditions of

confinement. Redman v. County of San Diego,

(9th

Cir. 1990), en banc,

(1990), cert, denied,

(1992) (jail officials' conduct toward pretrial

detainees must reach level of deliberate indifference before a

§ 1983 claim is stated); Trask v. County of Strafford,

(D.N.H. 1991) (allegations of negligence

insufficient to support a § 1983 claim where correctional

officers failed to prevent suicide of pre-trial detainee) .

4 In determining whether the conditions of confinement as

described by the plaintiff were unconstitutional under the

Fourteenth Amendment, the court must examine the totality of

conditions. Brown v. Crawford,

, 672 n. 3 (11th Cir.

1990), cert, denied.

(1991). Here plaintiff

alleges that he was held in punitive segregation for seven and

one-half months as a pretrial detainee. The duration of punitive

or administrative segregation certainly is a consideration in

determining its legitimacy, as well as the "deliberate

indifference" of those persons responsible for administering the

jail. Hutto v. Finney,

(1978) ("length of

confinement cannot be ignored in deciding whether the confinement

meets constitutional standards"). A five-month period of

confinement in administrative segregation has been held

constitutional where a pretrial detainee posed an escape risk,

while, under different circumstances, a similar stay in

administrative segregation has been held sufficiently

guestionable to warrant denial of defendant's motion for summary

judgment. Compare Besselaar v. Outlaw, No. 89-0554-T-C,

, at *5 (S.D. Ala. Aug. 7, 1991), with

Young v. Keohane,

(N.D. Pa. 1992). "At some

point . . . the administrative necessity for involuntary lockup

5 begins to pale." Covino v. Vermont Department of Corrections,

(2d Cir. 1991) (noting that a nine month stay

in administrative segregation "smacks of punishment").

Whether a pretrial detainee has been denied substantive due

process because of an extended stay in administrative (or

punitive) segregation is a particularly fact-driven issue.

Brown-El v. Delo,

(8th Cir. 1992) (record

belied argument that placement of inmate into administrative

segregation was related to "immediate security risk," and not

punitive reasons, when detainee committed rule violations two

months prior to placement in administrative segregation). See

also, Young v.

("the presence or

absence of punishment can be determined only by an

extraordinarily fact-sensitive and contextual analysis").

In this case, plaintiff alleges that he was placed in

segregation because he refused to submit to a particular TB test,

on grounds that his medical condition rendered that test

dangerous to him. Specifically, plaintiff claims that the test

itself causes him to become ill and results in an adverse

physical reaction. He says he offered to submit to an

alternative test (x-ray), and he notified medical personnel at

the jail that he had previously been advised in another

6 correctional facility to decline future TB tests. He says he

informed defendants, or some of them, of his condition and

specifically requested the x-ray instead.

Plaintiff asserts that the House of Correction's nurse

insisted that he submit to the standard TB test, refused to allow

the x-ray, and, because he would not submit, the defendants

summarily placed him in punitive segregation. (Whether the

segregation was administrative or punitive in nature is unclear,

though plaintiff alleges that it was punitive segregation.)

Plaintiff further says he was held in a segregation cell for

seven and one-half consecutive months, during which he was

subjected to two strip searches daily, whether he left the cell

or not and whether he had had contact with others or not. He

further alleges that he was subjected to excessive force — the

unwarranted use of pepper spray in the confines of his cell —

when he passively resisted the strip searches by refusing to

voluntarily remove his clothes, even though he permitted officers

to remove them for him, and even though he previously advised the

officers of an asthmatic condition which allegedly made the use

of pepper spray particularly dangerous to him. He claims that

the officers used the pepper spray against him nevertheless, and,

on one occasion used it in an uncontrolled manner, emptying the

7 can. He further says that the use of the pepper spray caused him

physical injury.

In addition, plaintiff alleges that while housed in

segregation for seven and one-half months he was rarely allowed

outside recreation, visits by others, or access to legal

materials, nor was he provided with any other privileges

regularly afforded to "normal pretrial inmates."

Finally, plaintiff alleges that when he eventually submitted

to the TB test he became ill, as predicted, and suffered an

adverse physical reaction. He further alleges that despite

having finally given in and having taken the TB test, he was

still held in segregation, allegedly based upon his prior

refusals to cooperate in the reguired strip searches.

Procedural Due Process

He also alleges, expressly as well as by fair implication,

that throughout his term in segregation he was never given an

opportunity for any type of hearing, either pre- or post­

deprivation, however informal. He was not provided with a non­

adversary review of the information supporting his administrative

or punitive confinement, nor was he given an opportunity to

submit any statement of his own within a reasonable time after he was confined to segregation. Fairly implied in his complaint is

a claim that he was not provided with any of the process

recognized to be due prior to confinement in punitive

segregation. For example, he claims not to have been supplied

with advance written notice of the violation or a written

statement by fact-finders as to the evidence relied upon and the

reasons for the disciplinary action taken against him. See e.g.,

Wolff, supra, 418 U.S. at 563.

In Sandin v. Connor,

(1995), the Supreme

Court substantially altered the applicable law relative to

determining the scope of an inmate's liberty interests in

remaining in the general population of a correctional facility,

which interests effectively define his right to procedural due

process. Stating that "the time has come to return to the due

process principles we believe were correctly established and

applied in Wolff and Meachum," the majority in Sandin held that

states may, under certain circumstances, create liberty interests

which are protected by the Due Process Clause. "But these

interests will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the due process clause of

its own force, see, e.g., Vitek, 445 U.S. at 493 (transfer to mental hospital), and Washington 494 U.S. at 221-222 (involuntary

administration of psychotropic drugs), nonetheless imposes

atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life." Sandin,

. While Sandin appears to be limited to defining the type of

liberty interest that might be protected under the Constitution

relative to convicted inmates, it would appear that even under

that reigned-in standard this plaintiff has probably sufficiently

alleged a liberty interest entitling him to some form of

procedural due process prior to its deprivation by state actors,

and he has at least described a cause of action sufficient to

warrant service and a response.

Conclusion

To be sure, plaintiff's complaint could be more detailed and

more fact specific. However, the facts he does plead, construed

liberally at this early stage, do give rise to cognizable claims

for violation of his procedural and substantive due process

rights under the Fourteenth Amendment.

The Magistrate Judge's Report and Recommendation is approved

and accepted as to the recommendation to dismiss plaintiff's

claims against Dr. Stein. The recommendation to dismiss the

10 plaintiff's procedural and substantive due process claims under

the Fourteenth Amendment is not accepted, nor is the

recommendation that plaintiff's claims against Superintendent

O'Mara be dismissed. Plaintiff has adequately alleged facts

which give rise to cognizable claims against Mr. O'Mara in his

individual capacity, as the person responsible for the

administration of the correctional facility (under

) .

Defendants shall answer or file an appropriate responsive

pleading relative to plaintiff's substantive and procedural due

process claims within thirty (30) days of the date of this order;

this order and plaintiff's complaint shall also be served on

Defendant O'Mara who shall file an answer or other responsive

pleading within thirty (30) days of the date of this order.

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 6, 1995

cc: Warren R. Picard, pro se Nursing Supervisor Barbara Conden Pennsylvania Institutional Health Services, Inc. Carolyn Kirby, Esq.

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