UNITED STATES COURT OF APPEALS
Filed 12/7/95
TENTH CIRCUIT
ANDREW L. ROBINSON,
Plaintiff - Appellant, No 95-1126
v. (D.C. No. 95-S-303)
JEFF CORRIVEAU, Sheriff, and (District of Colorado)
DEAN HERNDON,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, McKAY and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R.
App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Appellant Andrew L. Robinson was originally placed in the
custody of the Executive Director of the Colorado Department of
Corrections (hereinafter DOC) to serve out various felony
sentences. The DOC transferred him to a CAPS program, from which
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of the court’s General
Order filed November 29, 1993. 151 F.R.D. 470.
he later escaped. He was apprehended, and he is now incarcerated
in the Moffat County Jail awaiting trial on new felony charges
relating to his escape. It appears that Mr. Robinson has been in
temporary pretrial detention since September 1994, which adds up
to a period in excess of thirteen months. 1
Mr. Robinson filed this pro se, in forma pauperis civil
rights suit against prison officials on February 7, 1995. He is
alleging two different theories of relief under 42 U.S.C.
§ 1983. 2 First, Mr. Robinson asserts a violation of his right to
equal protection in that the conditions are worse and the
policies more restrictive at the county jail than at state DOC
facilities. Second, Mr. Robinson claims that the general
conditions of the Moffat County Jail are so bad as to constitute
cruel and unusual punishment. The district court dismissed the
1
The length of Appellant’s pretrial detention, while
troublesome, is only indirectly before us as explained supra at
10-11 because Appellant has filed this action under § 1983, and
not as a writ of habeas corpus. Appellant does have a writ of
habeas corpus pending in another proceeding. R. Vol. I, Ex. 4,
at 4.
2
In relevant part, 42 U.S.C. § 1983, provides,
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper
proceeding for redress.
2
claims as legally frivolous under 28 U.S.C. § 1915(d). We affirm
in part and reverse in part.
The dismissal of an in forma pauperis action as frivolous
under § 1915(d) is reviewed under an abuse of discretion
standard, rather than de novo. Denton v. Hernandez, 504 U.S. 25,
33 (1992). Mr. Robinson’s pro se complaint will be liberally
construed because he is representing himself. See Haines v.
Kerner, 404 U.S. 519, 520 (1972). An in forma pauperis action
may be dismissed under § 1915(d) if the “claim [is] based on an
indisputably meritless legal theory.” Neitzke v. Williams, 490
U.S. 319, 327 (1989).
In reviewing a § 1915(d) dismissal for abuse of discretion,
it would be appropriate for the court of appeals to
consider, among other things, whether the plaintiff was
proceeding pro se . . . whether the court inappropriately
resolved genuine issues of disputed fact . . . ; whether the
court applied erroneous legal conclusions . . . ; whether
the court has provided a statement explaining the dismissal
that facilitates ”intelligent appellate review,” . . . and
whether the dismissal was with or without prejudice.
Denton, 504 U.S. at 34 (citations omitted).
We agree with the district court that Mr. Robinson’s equal
protection argument is legally frivolous, and we affirm the
dismissal of this claim. Plaintiff has acknowledged that he is
being held in the Moffat County Jail on a new criminal charge of
escape. See Appellant’s Reply Br. at 1. Mr. Robinson is
temporarily out of the custody of the DOC while he remains in
pretrial detention at the Moffat County Jail. The conditions of
3
DOC state facilities and the privileges permitted DOC inmates,
who are in long-term custody, are necessarily different from
those of inmates in pretrial detention because of the distinction
between long-term imprisonment and temporary detention. See,
e.g., Bell v. Wolfish, 441 U.S. 520, 535-39 (1979) (making the
distinction between imprisonment for detention purposes, such as
a pretrial holding, and imprisonment for the purpose of
punishment). Prisoners cannot expect to have the same privileges
and conditions in short-term pretrial detention at a county jail
as those provided prisoners in long-term confinement at state
prison facilities.
Additionally, there is no constitutional right to be placed
in the correctional facility of your choice. See Olim v.
Wakinekona, 461 U.S. 238, 245 (1983); Ruark v. Solano, 928 F.2d
947, 949 (10th Cir. 1991). Conditions at some facilities are
clearly better than at others, but there is no constitutional
guarantee to be housed in a facility that substantially exceeds
the constitution’s minimal requirements.
Mr. Robinson is in a unique position because he is not in
DOC custody for punishment of a crime, although he apparently is
subject to return to DOC custody to complete a prior prison
sentence after being tried on the prison escape charge. 3
3
Mr. Robinson has previously alleged that he escaped from
prison because he was not being legally held. He claims that he
4
Instead, he is in pretrial detention at a county jail facility.
4
The Supreme Court has stated that while the Eighth Amendment
does not apply to pretrial detention, “Due process requires that
a pretrial detainee not be punished.” Bell v. Wolfish, 441 U.S.
520, 535 n.16 (1979). Further, “[i]n evaluating the
constitutionality of conditions or restrictions of pretrial
detention that implicate only the protection against deprivation
of liberty without due process of law, we think that the proper
inquiry is whether those conditions amount to punishment of the
detainee.” Id. at 535. “[I]n determining whether particular
restrictions and conditions accompanying pretrial detention
amount to punishment in the constitutional sense of that word,”
the trial court “must decide whether the disability is imposed
for the purpose of punishment or whether it is but an incident of
some other legitimate governmental purpose.” Id. at 538.
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
had completed serving his previous sentence because some of the
sentences were to be served simultaneously. As the district
court held in another proceeding, Mr. Robinson is properly being
held in pretrial detention because his decision to escape from
the facility and not pursue his release through proper legal
means was inappropriate. Appellee’s Br. at Ex. B.
4
The Eighth Amendment states, “Excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.” U. S. Const. amend. VIII.
5
may not constitutionally be inflicted upon detainees qua
detainees.
441 U.S. at 539. 5 Finally, the Bell Court noted that “confining
a given number of people in a given amount of space in such a
manner as to cause them to endure genuine privations and hardship
over an extended period of time might raise serious questions
under the Due Process Clause as to whether those conditions
amounted to punishment . . . .” 441 U.S. at 542; see Littlefield
v. Deland, 641 F.2d 729, 731 (10th Cir. 1981) (affirming a § 1983
judgment against county jail officials for unconstitutional
detention of a pretrial detainee in violation of the Due Process
Clause).
The Supreme Court in Bell recognized that in some instances
what may be cruel and unusual punishment in a long-term facility
may not be cruel and unusual punishment under a short-term
detention. 6 Thus, what is punishment under the Due Process
5
The Court also cautioned, “Courts must be mindful that
these inquiries spring from constitutional requirements and that
judicial answers to them must reflect that fact rather than a
court’s idea of how best to operate a detention facility.” 441
U.S. at 539.
6
At first glance, it is counter-intuitive that detention
conditions falling below the minimally permissible standards of
the Eighth Amendment--that is, conditions which amount to cruel
and unusual punishment--would not amount to punishment of
pretrial detainees in violation of their due process rights. The
distinction is necessary for two reasons. First, some defendants
must be lawfully held in pretrial detention to ensure their
presence at trial. 441 U.S. at 536. Although a detainee may be
temporarily deprived of liberty after a finding of probable
cause, that temporary detainee may not be punished without due
6
Clause does not necessarily equate with cruel and unusual
punishment under the Eighth Amendment. While it may be true in
some instances that what amounts to cruel and unusual punishment
under the Eighth Amendment does not amount to punishment in the
context of the Due Process Clause--particularly in regard to
privileges provided prisoners--in most cases, what is cruel and
unusual punishment under the Eighth Amendment also will
constitute punishment in the due process context. This is
especially true in regard to unsanitary prison conditions.
Detention conditions that fail to meet minimal health and safety
needs of the prisoners cannot be reasonably related to a
legitimate governmental goal.
Under the Eighth Amendment, “a state must provide an inmate
with shelter which does not cause his degeneration or threaten
his mental and physical well being.” Ramos v. Lamm, 639 F.2d
559, 568 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981).
Prison officials must provide detainees with living space that
has “reasonably adequate ventilation, sanitation, bedding,
hygienic materials, and utilities ( i.e., hot and cold water,
light, heat, plumbing).” Ramos, 639 F.2d at 568. We have
recognized long-term deprivation of fresh air as a sufficient
grounds to state a claim for relief under 42 U.S.C. § 1983.
process of law. Id. at 535-36. Second, short-term pretrial
detention poses unique security problems when contrasted with
prisoners being punished through long-term confinement.
7
Housley v. Dodson, 41 F.3d 597, 590 (10th Cir. 1994); Bailey v.
Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (per curiam). In
Ramos, the record indicated that the prison failed to meet the
“minimal health and safety needs of the prisoners”, in part,
because, “[i]nadequate ventilation, especially in the cells and
shower areas, results in excessive odors, heat, and humidity with
the effect of creating stagnant air as well as excessive mold and
fungus growth, thereby facilitating personal discomfort along
with health and sanitation problems.” Id. at 569. This court
sustained those findings under a § 1983 action, finding the
prisoner’s conditions to be “‘grossly inadequate and
constitutionally impermissible.’” 639 F.2d at 570.
Construing Mr. Robinson’s pro se pleadings liberally, we are
not persuaded that Mr. Robinson’s complaint is so “indisputably
meritless” that he has not even stated an “arguable claim for
relief.” See Neitzke v. Williams, 490 U.S. 319, 327 (1989); Hall
v. Bellmon, 935 F.2d 1106, 1108-09 (10th Cir. 1991). Mr.
Robinson complains of overcrowding, lack of shower facilities,
unsanitary conditions, deprivation of natural light and fresh
air, and improper screening of inmates.
Mr. Robinson alleged in his complaint that he is being
subjected to cruel and unusual punishment because, “[t]here are
no windows anywhere in our pod, there for [sic] we have no sun
light [sic] whatsoever. The ventilation is very poor. They will
8
not let us outside for fresh air. The manner they serve food is
unsanitary. Inmates are not properly screened before being
placed in population.” R. Vol. I, Ex. 3 at 4.
In his brief, Appellant further elaborates on the prison
conditions:
The jail isn’t fit to house inmates for a long period of
time. The ventilation system doesn’t work properly. There
are no windows for natural light. The manner and way food
is served is unsanitary. There is no way for fresh air to
be brought in from outside. There isn’t enough room for
every inmate to sit down at meals. The shower has two
shower heads, only one works, water stands on one side of
the shower until it stagnates. There are odors and bugs
coming out of the drains.
Appellant’s Br. at 2.
Also, in his brief Appellant cites a study supporting his
assertions. “[T]here was a study completed in July of this year
that found the same problems with the jail as I did. In that
report it says there is no window light for inmates, no proper
ventilation, no fresh air brought in from outside. This report
can be obtained through the Moffat County Sheriffs Dept.”
Appellant’s Reply Br. at 1.
Mr. Robinson alleged that he has been deprived of natural
light and fresh air for the past seven months (now thirteen
months). It is unlikely that such extended deprivation of
natural light and air would meet the minimal health and safety
needs of prisoners. The allegation of “improper screening”
9
suggests that the jail might be admitting inmates with physical
or mental health problems. This could also create a potentially
hazardous situation. The record does not reflect how many
inmates are housed at the county jail, but to require a large
inmate population to share a single shower might well be
constitutionally deficient. Although inmates may not be entitled
to pristine conditions, claims of unsanitary conditions give rise
to legitimate concerns about inmate health. Mr. Robinson claims
that some of the inmates are forced to stand at mealtimes because
of insufficient seating. While a shortage of seating might be
merely an inconvenience for a short period of time, over a period
of weeks the inability to sit down for meals could become an
intolerably dehumanizing situation.
The defendants failed to answer Mr. Robinson’s complaint
before the district court, and they failed to respond to Mr.
Robinson’s Appellate brief. We ordered the defendants to file an
answer brief. Defendant’s brief acknowledged Mr. Robinson’s
allegations regarding the conditions at the Moffat County Jail,
but failed to address those allegations.
An additional factor relevant to Appellant’s complaints
regarding jail conditions is the length of his stay. The fact
that the prison facility at issue in Bell was releasing nearly
all of its detainees within sixty days was an important factor in
the Court’s analysis. 441 U.S. at 542-43. What may be
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constitutionally adequate for a few days or weeks may become
constitutionally impermissible punishment over a multiple-month
detention. Cf. United States v. Salerno , 481 U.S. 739, 747
(1987) (upholding the Bail Reform Act under an unconstitutional
detention challenge because the Act provided a prompt detention
hearing, the length of detention was limited by the stringent
time limitations of the Speedy Trial Act, and because the
conditions of confinement reflected a regulatory purpose and not
punishment); United States v. Theron , 782 F.2d 1510, 1516 (10th
Cir. 1986) (holding that under the Speedy Trial Act a “valid
pretrial detention assumes a punitive character when it is
prolonged significantly”). 7 At the very least, the threshold
level of minimal health and safety needs of pretrial detainees
increases as the length of pretrial detention increases. 8 The
fact that Mr. Robinson has been in pretrial detention for in
excess of thirteen months may in itself constitute punishment in
violation of the Due Process Clause, which might merit an award
of damages under § 1983.
7
Injunctive relief for such a violation, however, should
be addressed through a writ of habeas corpus seeking release from
detention as the remedy.
8
On remand, the district court may want to order a
Martinez report on the conditions at the Moffat County Jail,
factoring in the average length of pretrial detention at the
jail. See generally Martinez v. Aaron, 570 F.2d 317 (10th Cir.
1978) (per curiam).
11
Mr. Robinson also claimed he is being denied reasonable
access to legal materials and envelopes for legal mail. His
recent barrage of complaints seems to suggest that his access to
the court has not been unduly impaired. Absent much more
specific allegations there is no merit to this claim.
In short, although we cannot say on the inadequate record
before us whether the conditions in the jail are sufficiently
deficient to constitute punishment in violation of Appellant’s
right to due process, neither can we dismiss Mr. Robinson’s
complaints as legally frivolous.
The district court made much of the fact that Mr. Robinson
has inundated the court with several civil rights complaints in
rapid succession and warned him of the potential consequences of
vexatious and frivolous lawsuits. While we are sensitive to the
problem of abusive filings by prison inmates, on the slim record
before us it appears that Mr. Robinson’s frequent filings may be
a genuine response to intolerable conditions at the county jail.
The district court has raised questions about the propriety
of assessing personal liability for damages against these
defendants, and it may well be that the defendants would be
entitled to qualified immunity. 9 The court, however, seems to
9
The defendants have not raised immunity as a possible
defense.
12
have overlooked Mr. Robinson’s admittedly veiled request for
injunctive relief. Reading Mr. Robinson’s pleadings liberally,
we construe his laundry list of complaints not merely as support
for his damages claim but as a request that the complained-of
conditions be remedied. Indeed, in his pro se brief, he states:
I would like the court to impose a [sic] order as to
where the Moffat County Jail can’t hold a [sic] excessive
number of DOC inmates at any one given time and I would like
the court to rule in my favor for money damages as I have
been subjected to cruel and unusual punishment for the last
seven months. I would also like the court to inspect the
Moffat County jail.
Appellant’s Br. at 4.
The district court found that Mr. Robinson has failed to
allege personal participation by the defendants (the Sheriff and
the head jailer) in the claimed violations. R. Vol. I, Ex. 4 at
2 (citing Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.
1976)). Also, the district court held that the defendants could
not be held liable in a civil rights action through the theory of
respondeat superior merely because of their supervisory position.
R. Vol. I, Ex. 4 at 2 (citing Pembaur v. City of Cincinnati , 475
U.S. 469, 479 (1986)). Mr. Robinson has stated, however, that
the defendants are the persons responsible for setting and
enforcing the institutional policies of the jail and the general
conditions therein. R. Vol. I, Ex. 3 at 1-2. Mr. Robinson has
also stated that he spoke to the head jailer about the conditions
13
and that the jailer declined to remedy them. R. Vol. I, Ex. 3 at
5. The sheriff and the warden, who, on the pleadings, are in
control of the jail in question, are the obvious defendants in a
suit of this kind, and it is premature to dismiss them. See,
e.g., Housley, 41 F.3d at 600 (denying the sheriff and jailer
qualified immunity for civil rights violations at a county jail).
Further, the district court inappropriately resolved this issue
of fact in favor of the defendants when the defendants have
failed to dispute their direct responsibility or personal
involvement. See Denton v. Hernandez, 504 U.S. 25, 34 (1992).
We hold that dismissal under 28 U.S.C. § 1915(d) of Mr.
Robinson’s § 1983 claim for punishment in violation of the Due
Process Clause was an abuse of discretion by the district court
because his pro se complaint was not legally frivolous. We
affirm the dismissal of his equal protection claim and his access
to the courts’ claim. Accordingly, we AFFIRM in part, REVERSE in
part, and REMAND this matter to the district court for further
proceedings.
Entered for the Court
Monroe G. McKay
Circuit Judge
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