Cookish v. Commisioner, NH

• Court: Court of Appeals for the First Circuit
• Decided: December 8, 1992
• Docket: 92-1575
• Status: Published

Opinion

USCA1 Opinion

December 8, 1992      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1575

DENNIS R. COOKISH,
                                Plaintiff, Appellant,

                                          v.

                             COMMISSIONER, NEW HAMPSHIRE
                          DEPARTMENT OF CORRECTIONS, ET AL.,
                                Defendants, Appellees.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Shane Devine, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Dennis R. Cookish on brief pro se.
               _________________
               John  P. Arnold,  Attorney General,  and Claire  L. Gregory,
               _______________                          __________________
          Assistant Attorney General, on brief for appellees.

__________________

                                 __________________ 

Per  Curiam.   The  appellant,  Ronald  Cookish, was  an
                 ___________

            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
                                             _______    ______

            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
                                          _

                 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,
                                                       ________    _____

            611 F.2d  397, 398-99  (1st Cir. 1979).   See also  Street v.
                                                      ________  ______

            Fair, 918 F.2d  269, 271 (1st  Cir. 1990)  (per curiam).   In
            ____

            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
                                                                      ___

            Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle
            ________    ______                                    _______

            v. Gamble, 429 U.S. 97, 103 (1976)).
               ______

                 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.
                                                           ___  ______

            Seiter, 111 S.Ct. 2321, 2326 (1991) ("Eighth Amendment claims
            ______

            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
                                    _______    ______

            (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
            _______

            "deliberate[] indifferen[ce]," Martin v. White, 742 F.2d 469,
                                           ______    _____

            474 (8th Cir. 1984),  or that they were "wanton,  reckless or

            deliberately indifferent."   Lawler v. Marshall,  687 F.Supp.
                                         ______    ________

            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
            ________    _____

            carry on a  campaign of intimidation in  prison common areas.

            Street  v.  Fair,  918  F.2d  at  271.    In  such  cases,  a
            ______      ____

            "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.
                                             _______    ______

            at 320.  See  also Hendricks v.  Coughlin, 942 F.2d 109,  113
                     _________ _________     ________

            (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-
            _______    ______

            present    potential    for    violent   confrontation    and

            conflagration' ripens  into actual unrest and  conflict," id.
                                        ______                        ___

            at  321 (quoting  Jones  v. North  Carolina Prisoners'  Labor
                              _____     _________________________________

            Union, Inc.,  433 U.S. 119, 132 (1977)), "the admonition that
            ___________

            '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
                              _______    ______

            Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).
            ______    _______

                 "In this  setting,  a deliberate  indifference  standard

            does  not adequately  capture the  importance of  [the prison

            official's]  competing obligations,"  Whitley v.  Albers, 475
                                                  _______     ______

            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.
                                        ___                    _______

            Glick, 481  F.2d 1028, 1033 (2d Cir. 1973)).  This is a "very
            _____

            high state of mind," Wilson v. Seiter, 111 S.Ct. at 2326, and
                                 ______    ______

            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
                                         ____

            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
                                                                      ___

            Street  v. Fair, 918 F.2d  at 271-72; Leonardo  v. Moran, 611
            ______     ____                       ________     _____

            F.2d at 399.  We therefore affirm the dismissal of Count I.

                                          II
                                          __

                 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
                       ______     _______

            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.
                                                               ______

            McMillian, 112 S.Ct. 995, 1000 (1992) (citations omitted).
            _________

                 The  objective component  of an Eighth  Amendment claim,

            moreover, is  "contextual."   Id.   Conditions that  might be
                                          ___

            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
                                                     _____    ______

            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.
                          _______    ______

            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,
                                                          _____    _____

            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.
                          _____     _____

            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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