concurring.
I agree with my brother McMillian that subject cases should be remanded, counsel appointed and further proceedings conducted. The reasons impelling me to concurrence, however, differ somewhat from his; at least they differ in emphasis on some of the same or similar factors. The facts are restated briefly.
We have consolidated appeals in two cases filed by Early Johnson alleging eighth amendment violations arising from two separate incidents in which Johnson was kept for a time in a “quiet cell” at the Cummins Unit of the Arkansas Department of Correction. Each case was assigned to a different judge.
Our appeal, No. 84-1258, involving an episode that occurred in May, 1981 was referred to a magistrate who conducted an evidentiary hearing on November 15, 1983.
In No. 84-1258 Johnson testified that he was placed in a quiet cell about 9:00 p.m. and left overnight for fifteen or eighteen hours without clothing and that he “was good and cold.” Other inmates testified that Johnson had not caused any problems before being placed in the quiet cell.
According to the appellees, problems began when Johnson, cursing and threatening the guards, refused to be handcuffed and was moved to a two-man cell after some of his cellmates in a four-man cell caused a disturbance. In a search of the four-man cell guards found a sock containing twelve “D” size batteries, two knives and a variety of pills. After being placed in the two-man cell Johnson continued to yell at and threaten the guards, and other inmates started encouraging and joining Johnson. Then, based on the need to control Johnson and a fear that the other inmates would start destroying the prison, the officials decided to place Johnson in the quiet cell. Appellees explained that they took Johnson’s clothes so that he would not flood the commode, and as a bargaining tool to encourage him to modify his behavior.
The magistrate found that while Johnson’s initial placement in the quiet cell might well have been lawful as a bargaining tool, or control device, there was a duty to monitor the prisoner from time to time *1325throughout the night to determine whether the conditions of confinement remained necessary. Finding an absence of any such monitoring, the magistrate concluded that plaintiff’s right to be free from cruel and unusual punishment was violated because the confinement became punishment rather than control. The magistrate went on, however, to conclude, citing Maxwell v. Mason, 668 F.2d 361, 365-66 (8th Cir.1981), that good faith immunity precluded recovery and thus that the complaint should be dismissed.
On review of the magistrate’s proposed order the district court found no such period of confinement as would approach the unlawful periods of confinement in Maxwell, 668 F.2d at 364 (inmate confined in undershorts for fourteen days), and Wycoff v. Brewer, 572 F.2d 1260, 1264-65 (8th Cir. 1978) (inmate confined in strip cell for approximately forty-six days), and held that there was no constitutional duty to monitor appellant’s behavior during the short period of his incarceration in the quiet cell.
The court otherwise accepted the magistrate’s recommendation and dismissed the complaint.
Johnson filed the complaint in appeal No. 84-1257 after he was again placed in a quiet cell for approximately eighteen hours in February, 1983.
The district court held an evidentiary hearing at which seven inmates testified that Johnson had not been creating a disturbance before he was placed in the quiet cell. Rather, they claim they were yelling with Johnson because their commodes were flooding and they were trying to gain the guards’ attention.
Appellees testified that before Johnson was placed in the quiet cell he assaulted a guard and another inmate. Some of his property was then taken from him and he was told it would be returned if he controlled his behavior. Instead, he started yelling and banging on his cell and encouraged other prisoners to do the same. The prison officials, believing this was leading up to a riot situation, placed Johnson in a quiet cell where he was checked on from time to time throughout the day. The temperature of the quiet cell was in the eighties on the day before and the second day after he was placed in it. Appellees testified that there was no flooding in the cells.
The district court in making from the bench its oral findings of fact and conclusions of law stated that the appellees’ testimony was more credible than that of the inmate witnesses. The court then found for the appellees stating that, while there was some question about taking Johnson’s clothes, placing appellant in the quiet cell was for purposes of control and the confinement did not constitute cruel and unusual punishment.
In responding to Johnson’s claims of eighth amendment violations, we are mindful that our inquiry is limited to the question whether constitutional violations have occurred and may not reflect our idea of how best to run the prison. Bell v. Wolfish, 441 U.S. 520, 539, 99 S.Ct. 1861, 1874, 60 L.Ed.2d 447 (1979). How best to operate a penal institution ordinarily is a matter for prison officials to decide and we will interfere only when a prisoner has proven the officials have clearly exceeded constitutional boundaries. Jones v. Mabry, 723 F.2d 590, 595 (8th Cir.1983), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). In determining the constitutionality of the officials’ actions in present context, we consider whether they were taken for reasons of punishment or were merely incident to other legitimate governmental reasons. Bell, 441 U.S. at 538, 99 S.Ct. at 1873-74.
We have held that confinement similar to that imposed here constituted a violation of the eighth amendment. See Maxwell, 668 F.2d at 365. This case, of course, may be distinguished from Maxwell. First, in Maxwell, it was clear that the prisoner’s placement in the strip cell was for punitive reasons. Id. at 363. Here, it may be that Johnson, initially at least, was not placed in the quiet cell as punishment but rather for reasons of control.
*1326Maxwell can be further distinguished from this case in that there the confinement was for fourteen days, whereas in both situations here Johnson was confined for approximately eighteen hours. In considering a possible constitutional violation, certainly length of confinement is one of the factors to be considered. Hutto v. Finney, 437 U.S. 678, 686, 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522 (1978); Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir.1982). The longer a prisoner is denied the basic necessities of prison life, the closer his confinement comes to being unconstitutional. Hoptowit, 682 F.2d at 1258.
But time of confinement is not the sole consideration in determining eighth amendment questions. The conditions of confinement are also of importance, see Hutto, 437 U.S. at 687, 98 S.Ct. at 2571-72; Finney v. Arkansas Board of Correction, 505 F.2d 194, 207 (8th Cir.1974); Finney v. Hutto, 410 F.Supp. 251, 275 (E.D.Ark.1976), as is punitive purpose.
Were we considering each of the present appeals solely on its own record facts apart from the other and unmindful of similar litigation, those records might well merit affirmance.
It is clear that Johnson is an assaultive recalcitrant prisoner given to violence and litigation. It may well be true that with respect to both episodes some effort to control him was necessary and indeed that his confinement in the quiet cell for some short period of time was appropriate.
It may be that there is no connection between the two cases demonstrating any continuous egregious use of the quiet cell. Neither district judge in his findings or conclusions saw fit to make reference to the other pending case if indeed he knew about it.
But we do not consider these appeals in a vacuum nor apart from the backdrop of prison litigation in this circuit, especially as it involves the Arkansas Penitentiary.
, With respect to the 1983 incident, there was testimony from four other inmates that they had been incarcerated in the quiet cell for varying periods of time, that it is cold in those cells, and that the way to get attention back there is to beat on the door.
Although Superintendent Lockhart stated that as a matter of policy an inmate is observed about every thirty minutes at the most, there is some indication that that policy frequently is violated and that the guard at the control room depends upon hearing the prisoner “holler” loud enough to be heard by the guard when the prisoner wants attention.
As a matter of administrative policy also, when a prisoner is placed in the quiet cell an incident report must be filled out and filed. No such report concerning the 1983 episode could be found.
In December, 1982 inmate Larry Jones addressed to the Warden a grievance about indiscriminate use of nude time in the quiet cell as punishment. Both Warden Sargent and Assistant Director Morgan responded that stripping was done only to prevent bodily harm to those inmates with suicidal tendencies or who were destroying their clothing. Neither administrator faced the punishment issue and, as is clear by now, persons who are not suicidal or destroying their clothing are placed nude in the quiet cell for some purposes other than prevention of suicide or destruction of clothing.
With respect to the 1981 incident, it is fairly inferable, and the magistrate found, that Johnson was left overnight without periodic review to determine whether control continued to be necessary. Although an incident report was filed, no quiet cell report (called 005) seems to have been filled out or filed.
Looking narrowly at the respective case records, the departures from policy and administrative regulation with respect to the quiet cell may be trivial in a constitutional sense and may show only continued lack of professionalism and good judgment on the part of maximum security personnel, see Finney v. Hutto, 410 F.Supp. at 277. On the other hand, they may be an indication of a more serious problem of constitutional dimension.
*1327Unfortunately, we do not have records in these cases as complete as we should have to enable us, or the district courts initially, to determine fully the issues raised directly or by fair implication. Thus, it becomes important to address the question whether counsel should have been appointed as requested by Johnson in both cases.
Johnson’s requests were denied largely, if not entirely, on the ground that the cases were not complex and appointed counsel was unnecessary. While there is no constitutional requirement that counsel be appointed for an indigent plaintiff in a civil case, such an appointment is allowed under 28 U.S.C. § 1915(d). Wiggins v. Sargent, 753 F.2d 663, 668 (8th Cir.1985). In order to obtain appointed counsel, a plaintiff must first establish a colorable case and then the district court may appoint counsel if “the litigation is such that plaintiff as well as the court will benefit from the assistance of counsel.” Nelson v. Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir.1984). In instances where a plaintiff has demonstrated familiarity with caselaw and judicial procedure, clearly a court may refuse to appoint counsel. Cf. Mosby v. Mabry, 697 F.2d 213, 214-15 (8th Cir.1982). The court, of course, may wisely consider the ability of the plaintiff to investigate the facts, the existence of conflicting testimony (a matter which may not be clear at the time the motion is made), the ability of the plaintiff to present the case, and its legal complexity, see Maclin v. Freake, 650 F.2d 885, 888-89 (7th Cir. 1981) (per curiam).
The essence of the matter is that a motion for appointment should be given serious consideration if the plaintiff has not alleged a frivolous or malicious claim, Nelson, 728 F.2d at 1005, and we review only for abuse of discretion.
Here, it is clear that Johnson had a fair understanding of the trial process and of the facts as they affected him and his neighbors in the maximum security unit. But there is little indication that he understood the import of the doctrine of “good faith immunity” as it might entail a history of Arkansas prison litigation, or that he had the skill to bring to the attention of the district court the full import of the practices with respect to use of the quiet cell for alleged punishment of others. To the contrary, when he attempted to make some such showing his effort was sharply limited on objection of the appellees.
Moreover, there is some indication that at trial, as elsewhere, Johnson is belligerent and antagonistic at times to the point of contempt.
In the totality of the circumstances, I join in reversing judgment of dismissal in both of subject cases and remanding for appointment of counsel and for further proceedings.1
. In coming to this conclusion, I am aware of, and concerned by, the possibility that my views may be influenced by long judicial involvement in Arkansas prison litigation. One can only hope that such influence, if any, does not place undue burdens on the bench, bar, or litigants.