ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Civil Action No. 77-1034)
Before Hunter, Garth and Higginbotham, Circuit Judges.
Frazier Gibson is a prisoner in the New Jersey prison system. He brought the action from which this appeal is taken under 42 U.S.C. § 1983. Gibson alleged that his confinement under solitary conditions as a result of New Jersey's lack of prison housing, violated his constitutional rights.
Prior to a hearing on the merits of Gibson's claims, he was removed from solitary confinement. He then amended his complaint, deleting his claim for injunctive relief and he sought damages both for his confinement in Trenton State Prison under isolated conditions and his prior confinement at the Yardville Classification Facility.
Hearings were held by the magistrate to whom Gibson's action was assigned. At their conclusion the magistrate recommended that judgment be entered in favor of Gibson and against defendant Hilton, the Superintendent of Trenton State Prison. No judgment was recommended against the other defendants.
The district court in adopting the magistrate's report awarded damages of $800 to Gibson, attorneys' fees of $5,497.50 to Gibson's attorneys and costs in the amount of $303.75. In so ruling, the district court endorsed the magistrate's finding that Gibson had a state created expectation of due process under the fourteenth amendment that had been violated by his solitary confinement at Trenton State Prison and that the defendant Hilton, was not entitled to the defense of immunity.*fn1 The district court rejected Gibson's claims that his confinement at both Yardville and Trenton violated eighth amendment standards and also rejected his claims of due process violations at Yardville.
We agree with the district court that Gibson's confinement did not violate constitutional standards derived from the eighth amendment's prohibition against cruel and unusual punishment. However, we reverse the district court's orders awarding damages, costs, and attorneys' fees to Gibson as we conclude that Gibson's confinement did not violate his fourteenth amendment rights to due process.
Frazier Gibson was convicted in state court for possession of a stolen vehicle and sentenced to a minimum of three and a maximum of five years imprisonment. Gibson was remanded to the Essex County Jail in New Jersey on December 16, 1976 and transferred to the Classification Center at Yardville on January 25, 1977. While at Yardville, Gibson was not given an opportunity to participate in group religious services, to have visitors, to have access to the law library or to have access to vocational or educational opportunities. Gibson, an adult, was housed in an individual cell and segregated from the general population at Yardville, which consists of youthful inmates. His treatment, however, was in accordance with normal procedures for housing inmates who are being classified for assignment to one of the adult prison populations in the New Jersey prison system. (20a)
On February 8, 1977, Gibson was classified for Rahway State Prison. Due to a shortage of space at Rahway, Gibson was transferred, instead, to the New Jersey State Prison at Trenton on March 4, 1977, where he was considered a "housing hold" i. e. an inmate being housed at Trenton while awaiting the availability of housing at the institution to which he was assigned. (36a)
At Trenton, Gibson was housed in solitary confinement under conditions that would normally be used only to discipline inmates who violated prison rules or were considered especially dangerous or to protect the lives of inmates who were threatened by other prisoners. However, at the time of Gibson's transfer, New Jersey had a serious housing problem in its prisons which were overcrowded. During March, 1977, convicted prisoners were being held in county jails because there was no room in the prisons. Rahway was full and even classrooms were used for bed space at Leesburg State Prison. This condition became especially aggravated at Trenton after a strike-type disruption at the Leesburg State Prison resulted in 70 inmates being transferred to Trenton.*fn2 In order to prevent the spread of this disturbance, the Leesburg inmates were segregated from both the general population at Trenton and the "housing holds", such as Gibson, who arrived at Trenton the day following the arrival of the Leesburg prisoners.
Gibson's confinement at Trenton from March 4, 1977 until June 1, 1977 was in Seven Wing which contained maximum security isolation cells.*fn3 The cells contained a steel bed, a toilet, and a sink with cold water. During this period, Gibson was permitted to shower for ten minutes each day and he was allowed window visits. He was also permitted a recreation period six times during this period. Meals were served in the cell from a cart and Gibson had neither radio nor television in his cell. Gibson was not issued clothing, although he received clean sheets and towels on a weekly basis. From May 5 on, Gibson was provided with clothing, personal clothing laundry service, a bucket for hot water, soap and personal items. As a result of his isolated confinement, Gibson was denied entry into the general prison population, and was not permitted regular yard recreation, contact visits, personal access to the law or recreational library,*fn4 community religious services, work or vocational training.
For reasons which do not appear in the record, Gibson was transferred to the general population of Trenton State Prison on June 1, 1977 and finally to Rahway on June 10, 1977. Gibson, therefore, claims damages for the period from March to June, 1977 when he was confined in Seven Up.
We agree with the district court*fn5 that Gibson's confinement at Yardville and his subsequent confinement at Trenton did not violate Gibson's eighth amendment right to be free from cruel and unusual punishment.
Gibson had arrived at Yardville on January 25, 1977. He was housed at Yardville in the prison reception or intake unit which is an autonomous unit distinct from the general population of the Youth Corrections Center. Gibson had two interviews*fn6 and on February 8, was classified for Rahway. However, due to the lack of prison housing facilities which we have previously described, Gibson was transferred to the Trenton State Prison from Yardville on March 4, 1977 and confined as a "holdover" until he could be transferred to general population housing. Addressing Gibson's claims as they pertain to his stay at the Youth Reception and Correction Center at Yardville, New Jersey, the district court stated:
The evidence relating to plaintiff's stay at Yardville shows no violation of any constitutional right of the plaintiff. Housing at the classification center is in individual cells and plaintiff was segregated from the youthful inmates who were serving sentences at the institution. During the classification period plaintiff was not given an opportunity to participate in corporate worship services, there was no access to the law library and plaintiff did not enjoy the rehabilitative and educational facilities afforded to other inmates in the New Jersey prison system who had already been classified and were housed in permanent quarters. However, it is clear that residence at the classification center is intended to be, and actually was for this plaintiff, merely temporary. There is no showing that the conditions of his confinement were in any way cruel or unusual. If plaintiff was denied any rights, it was clearly "justified by the considerations underlying our penal system". Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948). The need to classify prisoners coming into the system and segregate them until the completion of the classification process is too evident for argument. This is an area where the court should not "intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials." Gittlemacker v. Prasse, 428 F.2d 1, 4 (3rd Cir. 1970).
Although "the (eighth) amendment proscribes more than physically barbarous punishments (and) ... embodies "broad and idealistic concepts of dignity, civilized standards, humanity and decency,' " Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (citations omitted), no court has held that confinement, such as that experienced by Gibson at Yardville, is prohibited by the eighth amendment.
Our review of the record and the district court's findings reveals no denial of Gibson's rights and indeed the record discloses that in all respects Gibson's treatment was governed by the same rules and regulations as the other inmates being classified at Yardville. Thus, we agree with the district court that none of the conditions of which Gibson complains at Yardville, constituted eighth amendment violations.
We also agree with the district court that Gibson's confinement at Trenton State Prison did not violate his eighth amendment rights, even though the conditions at Trenton were considerably more harsh than those which Gibson encountered at Yardville. Although Gibson's complaints included, among others, complaints about his food, unnecessary isolation, the physical conditions of his cell, the lack of clothing and laundry service, and the limitations on recreation and shower time, the district court found that none of these conditions, either singly or in combination, approached constitutional inadequacy. In so concluding, the district court found that Gibson's nutritional needs were met, that he was afforded living and hygienic conditions which, although spartan, were not injurious to a person in reasonably good physical and mental health. All his medical requirements were met and neither the type of his confinement nor the consequent deprivations of which he complains were of constitutional dimension. (21a) These findings are not clearly erroneous nor did the district court err in its conclusions, for we too agree that on this record these deprivations did not amount to violations of the eighth amendment.
First, as a prisoner who has been convicted and sentenced, Gibson cannot claim the right to be free from punishment. See Bell v. Wolfish, 441 U.S. 520, 531-35, 99 S. Ct. 1861, 1869, 1872, 60 L. Ed. 2d 447 (1979) (unlike convicted prisoners, pre-trial detainees may not be "punished"). He may only claim the right to be free from excessive punishment "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 183, 96 S. Ct. 2909, 2929, 49 L. Ed. 2d 859 (1976).
Second, the conditions of Gibson's confinement, as we have observed, met his basic needs for nutrition and shelter and did not "involve ... unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251 (1976) (citation omitted). Moreover, the Supreme Court in affirming a court of appeals decision that upheld a 30-day limit on confinement in punitive isolation for Arkansas prisoners, explicitly rejected the notion that "indeterminate sentences to punitive isolation always constitute cruel and unusual punishment." Hutto v. Finney, 437 U.S. 678, 685, 98 S. Ct. 2565, 2571, 57 L. Ed. 2d 522 (1978). Aware of this instruction, we must be careful to consider isolation sentences with reference to other factors.
In Hutto the length of isolated confinement was only one of many factors which led to the Court's decision that the conditions under which Arkansas' prisoners were incarcerated in isolated confinement, violated the eighth amendment. Commenting on the trial court's analysis, the Hutto Court observed that "(t)he court took note of the inmates's diet, the continued overcrowding, the rampant violence, the vandalized cells, and the "lack of professionalism and good judgment on the part of maximum security personnel.' The length of time each inmate spent in isolation was simply one consideration among many." Hutto at 686, 98 S. Ct. at 2571 (citation omitted).
In considering Gibson's isolated confinement, the district court correctly found that given the adequate attention to Gibson's nutritional and other needs, his confinement for more than 30 days in isolation cannot be considered to trench upon his eighth amendment rights. As the district court noted, Gibson's isolation fit within the circumstances contemplated by Hutto :
It is perfectly obvious that every decision to remove a particular inmate from the general prison population for an indeterminate period could not be characterized as cruel and unusual. If new conditions of confinement are not materially different from those affecting other prisoners, a transfer for the duration (to isolation) of a prisoner's sentence might be completely unobjectionable and well within the authority of the prison administrator.
Id. at 686, 98 S. Ct. at 2571 (citation omitted).
We are satisfied, as was the district court, that Gibson's eighth amendment rights were not violated under the circumstances of his confinement in Trenton.
Our determination that Gibson's confinement did not violate the eighth amendment's proscription of cruel and unusual punishment does not end our inquiry into whether Gibson's treatment violated any other federally protected constitutional right. As Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) made clear, "though his (a prisoner's) rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime." Id. at 555, 94 S. Ct. at 2974.
Liberty interests may be created by state law as well as by federal law. As the Court in Wolff noted, "(w)e think a person's liberty is equally protected, even when the liberty itself is a statutory creation of the State." Id. at 558, 94 S. Ct. at 2976. Here, Gibson relies on state law "policies and practices" as furnishing the necessary state expectation giving rise to a liberty interest which Gibson claims has been violated.
The district court found that New Jersey had created a liberty interest which was entitled to the protection of the fourteenth amendment and that this interest was violated when Gibson was confined in isolation for three months. Having found that Gibson was not placed in segregated confinement as a disciplinary measure, but rather for the administrative convenience of the prison authorities who were faced with a severe housing shortage (23a), the district court conceived that its task required an inquiry into "whether there are established policies which have created for the plaintiff some liberty interest requiring due process protection." (25a). After reviewing the policies of the New Jersey Department of Corrections which are reflected in the New Jersey Administrative Code, Administrative Plan Manual, and in the Trenton State Prison Inmate Handbook, the district court concluded that "While none of the enumerated privileges (clothing, recreation, movies, etc.) individually rises to the substance of a constitutionally protected right, all of them taken together appear to present a way of life which is guaranteed to New Jersey prisoners." (emphasis supplied) (26a). The nub of the district court's conclusions is expressed in its summary:
It is concluded that the expressed policies of the Department of Correction created a justifiable expectation that plaintiff would not be confined in isolation for three months in the conditions found to have existed. It is concluded that plaintiff's interest in the way of life which is afforded to inmates who are not subject to disciplinary restrictions "has real substance and is sufficiently embraced within Fourteenth Amendment "liberty' to entitle him to those minimum procedures appropriate under the circumstances and required by the Due Process Clause to insure that the state-created right is not arbitrarily abrogated". Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935. It is concluded that plaintiff was not afforded any required procedures at Trenton State Prison.*fn7
In response to Gibson's claims, and the district court's holding, New Jersey argues that: (1) Gibson had no state-created "liberty interest" which would have entitled him to a general population cell after his first 30 days in prison; (2) that no such "liberty interest" entitling Gibson to a particular "way of life" was ever created by New Jersey law; and (3) that any reliance on disciplinary regulations, as creating a liberty interest, was misplaced.
We turn to these contentions.
At first blush Gibson's argument has surface appeal. It is undisputed that for a period of almost three months, Gibson, who had committed no infraction, who was not a disciplinary or risk prisoner, and who needed no protection for his own well-being, was incarcerated in a type of confinement normally associated with prisoners who are under disciplinary sanction or who require protection. However, despite the acknowledged severity of Gibson's confinement, we cannot lose sight of the uncontroverted fact that the reason for Gibson's placement in a Seven Up cell was his quarantine status as a newly admitted prisoner at a time when New Jersey's prison system was experiencing a grave shortage of general population cell space.
Because Gibson's segregated confinement resulted from a lack of prison housing, our inquiry cannot be resolved by reference to those cases which concern prison discipline, (Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)) or cases which concern prisoner isolation in special risk units (Hodges v. Klein, 421 F. Supp. 1224 (D.N.J.1976), affirmed 562 F.2d 276 (3d Cir. 1977)), or instances where prisoner isolation is ordered for reasons of protective custody. Such situations have no bearing upon the unique circumstances present here which came about from a housing crisis, which we are told never occurred prior to, or since, that time. (Hilton Reply Br. p. 11.) We have not been directed to any authority dealing with this type of emergency circumstance and our independent research has disclosed none. Thus, we must look to the general principles and teaching found in related Supreme Court cases in order to analyze the claims made by Gibson.
As we have observed, Wolff v. McDonnell, supra, is a disciplinary case. Thus its factual configuration and its conclusions are inapposite to our present situation. Nevertheless, Wolff does afford us some guidance in approaching the problem presented here. We have previously noted that Wolff recognizes that state law, if it so provides, may afford a prisoner a liberty interest subject to vindication under the fourteenth amendment. However, in its subsequent decisions, e. g. Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976), the Supreme Court rejected claims of prisoners who sought the protection of the fourteenth amendment to prevent their transfers from one prison to another.
The Court explained that unless the state has created a prisoner's right to remain in the prison to which he was initially assigned, no federal right exists to prevent his transfer to another prison, even though such a transfer may lead to confinement in a more severe institutional setting. The Supreme Court specifically rejected the notion that "any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." 427 U.S. at 224, 96 S. Ct. at 2538. It also rejected the suggestion that "any change in the conditions of confinement having a substantial adverse impact on the prisoner ... is sufficient to invoke the protections of the ... Clause." Id. To hold otherwise, the Supreme Court said, "would subject to judicial review, a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the ...