Cookish v. Commisioner, NH
U.S. Court of Appeals for the First Circuit
Cookish v. Commisioner, NH
Opinion
USCA1 Opinion
December 8, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1575
DENNIS R. COOKISH,
Plaintiff, Appellant,
v.
COMMISSIONER, NEW HAMPSHIRE
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Dennis R. Cookish on brief pro se.
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John P. Arnold, Attorney General, and Claire L. Gregory,
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Assistant Attorney General, on brief for appellees.
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Per Curiam. The appellant, Ronald Cookish, was an
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inmate at the New Hampshire State Prison when a disturbance
occurred there in October 1987. In April 1988, Cookish filed
an eight-count complaint against the Commissioner of the New
Hampshire Department of Corrections, the Warden of the New
Hampshire State Prison, and seven corrections officers at the
prison. He later amended the complaint to add a ninth count.
The complaint alleged that the defendants' actions during and
after the disturbance had violated Cookish's rights under the
Fourth, Eighth and Fourteenth Amendments to the United States
Constitution, and under several provisions of New Hampshire
law.
The district court dismissed eight of the nine counts,
but denied the defendants' request for qualified immunity on
the remaining count. The defendants took an interlocutory
appeal to this court, challenging that denial. We reversed
the district court's decision. Cookish v. Powell, 945 F.2d
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441 (1st Cir. 1991) (per curiam). The district court then
dismissed the remaining count and entered a final judgment.
Cookish appealed, challenging only the dismissal of Counts I
and II of his amended complaint.
I
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In Count I, Cookish alleged that the defendants had
violated his Eighth Amendment rights "by placing him
knowingly and willfully into a dangerous, life-threatening
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situation." On October 23, 1987, a disturbance which Cookish
variously described as a "riot" and an "uprising" broke out
in the Medium Custody South Unit (MCSU) of the New Hampshire
State Prison. The MCSU was made up of four housing sections,
or "pods." Cookish resided in Pod 1C, one of two in which
the disturbance occurred. However, when the unrest began,
Cookish was not in his cell but working in the prison
kitchen. By the time he returned to his unit, at about 7:15
p.m., Pod 1C "was being destroyed." Fires were burning,
windows, furniture, and light fixtures were being smashed,
and threats were being yelled. Corrections officers had been
removed from the pod and stationed near the MCSU control
room.
Cookish did not want to enter the pod while it was in
such an uproar, but he was twice instructed to do so, first
by a "staff order," and the second time by the MCSU "Control
Room Officer." Cookish returned to his cell and locked
himself in. He stayed there for the next four hours while
"the situation" continued, though he left twice to use the
toilet -- once at 9:00 p.m. and once at 10:00 p.m. -- both
times without incident.
Cookish took no part in the disturbance. He did not
engage in violence, was not threatened with violence, and
suffered no physical injury. He did claim to have
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"experienced mental anguish" but gave no details of his
torment and supplied no facts to support that conclusion.
Prison officials have a duty to protect prisoners from
violence at the hands of fellow inmates. Leonardo v. Moran,
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611 F.2d 397, 398-99 (1st Cir. 1979). See also Street v.
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Fair, 918 F.2d 269, 271 (1st Cir. 1990) (per curiam). In
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some circumstances, a prison official's failure to protect
may constitute the "unnecessary and wanton infliction of
pain" in which an Eighth Amendment violation accrues. See
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Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle
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v. Gamble, 429 U.S. 97, 103 (1976)).
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The circumstances required for an Eighth Amendment
violation include, of course, a sufficient degree of
culpability on the part of the defendant. See Wilson v.
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Seiter, 111 S.Ct. 2321, 2326 (1991) ("Eighth Amendment claims
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based on official conduct that does not purport to be the
penalty formally imposed for a crime require inquiry into
state of mind"). The culpability needed to show the
unnecessary and wanton infliction of pain varies according to
the "kind of conduct against which an Eighth Amendment
objection is lodged." Whitley v. Albers, 475 U.S. 312, 320
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(1986).
Courts deciding failure-to-protect cases have generally
held plaintiffs to a burden of showing that the defendants
acted with "callous indifference," Estate of Davis v.
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Johnson, 745 F.2d 1066, 1071 (7th Cir. 1984), or
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"deliberate[] indifferen[ce]," Martin v. White, 742 F.2d 469,
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474 (8th Cir. 1984), or that they were "wanton, reckless or
deliberately indifferent." Lawler v. Marshall, 687 F.Supp.
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1176, 1177 (S.D.Ohio 1987). The plaintiff in this case,
however, was required to prove more. The typical case
involves allegations that prison officials failed to protect
a prisoner from the kind of harm that may arise under
workaday prison conditions, by, for example, housing him in
an area of the prison to which his known enemies have access,
Leonardo v. Moran, 611 F.2d at 397-98, or allowing bullies to
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carry on a campaign of intimidation in prison common areas.
Street v. Fair, 918 F.2d at 271. In such cases, a
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"deliberate indifference" standard is appropriate because the
prison official's responsibility to protect the prisoner
"does not ordinarily clash with other equally important
governmental responsibilities." Whitley v. Albers, 475 U.S.
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at 320. See also Hendricks v. Coughlin, 942 F.2d 109, 113
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(2d Cir. 1991) (protecting inmate from other inmates'
violence "ordinarily involves no competing penological
policies").
But, this is not the typical case. Here, the correction
official who allegedly failed to protect Cookish did so in
the course of efforts to restore order to the MCSU under
conditions which Cookish himself has described as "riotous."
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"In making and carrying out decisions . . . to restore order
in the face of a prison disturbance, prison officials
undoubtedly must take into account the very real threats the
unrest presents to inmates and prison officials alike."
Whitley v. Albers, 475 U.S. at 320. Thus, "[w]hen the 'ever-
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present potential for violent confrontation and
conflagration' ripens into actual unrest and conflict," id.
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at 321 (quoting Jones v. North Carolina Prisoners' Labor
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Union, Inc., 433 U.S. 119, 132 (1977)), "the admonition that
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'a prison's internal security is peculiarly a matter normally
left to the discretion of prison administrators' carries
special weight." Whitley v. Albers, 475 U.S. at 321 (quoting
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Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).
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"In this setting, a deliberate indifference standard
does not adequately capture the importance of [the prison
official's] competing obligations," Whitley v. Albers, 475
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U.S. at 320, and the plaintiff is required to prove that the
defendant acted "maliciously and sadistically for the very
purpose of causing harm." Id. at 320-21 (quoting Johnson v.
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Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). This is a "very
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high state of mind," Wilson v. Seiter, 111 S.Ct. at 2326, and
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it sets the standard against which we must measure Cookish's
charges.
By alleging that the MCSU Control Room Officer ordered
him to return to his cell while a riot was in progress,
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Cookish did lay a factual basis from which one could infer
that the officer acted with some degree of culpability. In
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light of what the complaint also says, and what it does not
say, however, we can find no basis from which one could
reasonably infer that the officer might have acted
"maliciously and sadistically for the very purpose of causing
harm."
Any possible inference of malice or sadism in this case
would rest on the notion that corrections officers had no
reason to send Cookish back to his cell other than to cause
him injury, or perhaps that the situation in Pod 1C was so
violent that to send Cookish into its midst was virtually to
condemn him to injury. The complaint can support neither
assumption.
First, prison officials are normally, and
understandably, concerned with accounting for the whereabouts
of all prisoners at all times. During periods of unrest, the
need to assure that every prisoner is where he is supposed to
be escalates in proportion to the level of disturbance.
Cookish was supposed to be in his cell. In his cell, he
could be accounted for. If he added to the disturbance
inside the pod, at least he would not create a new
disturbance outside it. Nor would his presence outside the
pod divert resources better directed at ending the emergency.
The Control Room Officer's insistence that Cookish go his
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cell and stay in it, therefore, was a rational, if not
entirely risk-free, response to the circumstances. If it was
not benign, then it certainly was not malicious.
We note, moreover, that Cookish rode out the riot safely
in his locked cell, from which he felt comfortable enough to
emerge to relieve himself not once but twice in a four-hour
period. Indeed, as far as the complaint reveals, the "riot"
involved considerable property damage but no violence or
injury to any person. All of this suggests to us that the
pod, though in upheaval, was not a free-fire zone, and that
the Control Room Officer's instruction was intended only to
accomplish what it did in fact accomplish: it put Cookish in
a location where he would be relatively safe and easily
accounted for.
Finally, Cookish's only allegation of harm was a
conclusory assertion of mental anguish, unsupported by any
facts. Such allegations are inadequate to establish that the
defendants' failure to protect him from a risk of violence
rose to the level of an Eighth Amendment violation. See
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Street v. Fair, 918 F.2d at 271-72; Leonardo v. Moran, 611
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F.2d at 399. We therefore affirm the dismissal of Count I.
II
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In Count II, Cookish complained about the conditions in
which he and the other inmates of the rebellious pods were
housed for some sixty hours after the disturbance ended just
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before midnight on October 23. The inmates, Cookish among
them, were escorted to an old, unused cellblock. They were
strip-searched. The guards took their jackets and thermal
underwear, and did not return them, although the night was
chilly with temperatures dipping just below freezing.
Cookish was taken to a cell that had no heat and no bedding.
He asked for a mattress, sheets, blankets, and his jacket,
but the guards denied his request "for the time being."
Cookish remained in this cell until just after noon on
October 26, when he returned to Pod 1C. He received a
mattress and a blanket on the afternoon of October 24, but
was denied a sheet and his jacket, a towel and soap. There
was no heat. The cell had a toilet, and a sink that ran only
cold water. Cookish was fed, but at least one of his meals
consisted of a "plain peanut butter sandwich on hard bread."
As a result of this ordeal, Cookish suffered "headaches,
sinus problems, chills [and] fever."
Although "[n]o static 'test' can exist by which courts
determine whether conditions of confinement are cruel and
unusual," Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the
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Supreme Court has said that "extreme deprivations are
necessary to make out a conditions-of-confinement claim.
Because routine discomfort is part of the penalty that
criminal offenders pay for their offenses against society,
only those deprivations denying the minimal civilized measure
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of life's necessities are sufficiently grave to form the
basis of an Eighth Amendment violation." Hudson v.
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McMillian, 112 S.Ct. 995, 1000 (1992) (citations omitted).
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The objective component of an Eighth Amendment claim,
moreover, is "contextual." Id. Conditions that might be
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deemed cruel and unusual if they were permanent features of a
prisoner's life, may not offend the Constitution if they are
imposed only temporarily. "A filthy, overcrowded cell and a
diet of 'grue' might be tolerable for a few days and
intolerably cruel for weeks or months." Hutto v. Finney, 437
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U.S. 678, 686-87 (1978).
By the same token, prison officials may be justified in
subjecting prisoners to more rugged conditions of confinement
during and after an emergency than would be constitutionally
permissible in peaceable circumstances. "[R]esponse to
emergency situations in a prison environment necessarily
entails curtailment of rights and privileges of the inmate
population." La Batt v. Twomey, 513 F.2d 641, 648 (7th Cir.
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1975). In assessing the constitutionality of conditions
imposed in response to an emergency, courts have asked
whether the conditions were "so unreasonable or excessive as
to be clearly disproportionate to the need reasonably
perceived by prison officials at the time." Jones v. Mabry,
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723 F.2d 590, 596 (8th Cir. 1983). A "viable complaint
challenging a post-emergency lockup must allege nothing less
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than the continued deprivation of basic rights or needs for
an unreasonable length of time, maliciously, through
excessive neglect, or arbitrarily (e.g., without any
justification of practical necessity related to prison
security)." Hoitt v. Vitek, 497 F.2d 598, 602 (1st Cir.
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1974) (emphasis added).
Contextual scrutiny exposes the frailty of Cookish's
claim. He did not contend that exposure to the cold and
deprivation of hygienic amenities were standard conditions of
his incarceration. These privations existed, by Cookish's
account, for no more than sixty hours, and they were imposed
in the wake of a disturbance that Cookish himself described
as a "riot" in which his fellow inmates had caused
considerable damage to their permanent accommodations.
In the period following the riot, the prison officials
whom Cookish accuses of cruel and unusual punishment were, of
necessity, faced with two pressing tasks. First, they needed
to assure that the prisoners did not lapse into rebellion and
violate the peace so recently regained. Thus, some
"curtailment of rights and privileges" was to be expected,
and was fully justified. Second, they had to repair the
damage the prisoners had wreaked on their regular quarters.
In the interim, of course, they would have had no choice but
to provide alternate housing. It should come as no surprise
that the jury-rigged shelter was less comfortable than that
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to which the prisoners were accustomed. But the Constitution
does not require states to keep pristine, commodious cells
ready and waiting to house inmates who have damaged or
destroyed their primary lodgings. Conditions on the old cell
block may well have been unpleasant, but, given the emergency
and their short duration, and absent some suggestion that
they were imposed unnecessarily and intentionally, they did
not amount to an "extreme deprivation" and they were not
unconstitutional.
Affirmed.
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