                          UNITED STATES, Appellee

                                          v.

                  Claude F. WHITE, Jr., Airman Basic
                       U.S. Air Force, Appellant


                                   No. 00-0002


                            Crim. App. No. 33583



       United States Court of Appeals for the Armed Forces

                          Argued November 8, 2000

                             Decided May 2, 2001

    GIERKE, J., delivered the opinion of the Court, in which
 CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.
            SULLIVAN, J., filed a concurring opinion.

                                      Counsel
For Appellant: Major Marc A. Jones (argued); Colonel Jeanne M.
   Rueth and Major Thomas R. Uiselt (on brief); Lieutenant
   Colonel Timothy W. Murphy and Lieutenant Colonel James R.
   Wise.

For Appellee: Major Lance B. Sigmon (argued); Colonel Anthony P.
   Dattilo, Lieutenant Colonel Ronald A. Rodgers, and Major
   Harold M. Vaught (on brief); Captain Suzanne Sumner.

Military Judge:     Amy M. Bechtold


          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. White, No. 00-0002/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial convicted appellant, pursuant to his

pleas, of wrongfully using cocaine, in violation of Article 112a,

Uniform Code of Military Justice, 10 USC § 912a.             The court-

martial, composed of officer members, sentenced appellant to a

bad-conduct discharge, confinement for 8 months, and partial

forfeiture of pay for 8 months.              The convening authority approved

the adjudged sentence, and the Court of Criminal Appeals affirmed

the findings and sentence in an unpublished opinion.

      This Court granted review of the following issue:

      WHETHER APPELLANT WAS SUBJECTED TO CRUEL AND UNUSUAL
      PUNISHMENT WHILE IN POST-TRIAL CONFINEMENT.

For the reasons that follow, we affirm the decision below.

                         I.   Factual Background
      Appellant has two convictions for wrongfully using cocaine.

His first conviction, on July 27, 1998, was for using cocaine on

or about November 17, 1997.       The approved sentence from his first

court-martial provided for a bad-conduct discharge, confinement

for 2 months, and reduction to the lowest enlisted grade.
      When appellant was processed into the confinement facility

after his first court-martial, he was required to submit a urine

sample for medical purposes.        When this urine sample tested

positive for cocaine, appellant was charged with wrongfully using

cocaine between July 13-28, 1998, and pleaded guilty at his

second court-martial on November 24, 1998.             At this second court-

martial, appellant did not raise any issues regarding his

treatment while in confinement.              The granted issue concerns the




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United States v. White, No. 00-0002/AF


conditions of appellant’s confinement after his second

conviction.

      In a clemency submission to the convening authority dated

February 12, 1999, after his second conviction, appellant made

the following allegations about the conditions of his

confinement:


            Sir, I initially entered confinement on 27 July 1998.
            Due to be released on 18 September, I was transferred
            to pre-trial confinement status. Then, with the
            sentence imposed on 24 November, I returned to the
            confinement facility. Though I had already in-
            processed once, I was made to do so again, solely
            because of the change in status. Sir, this “in-
            processing” is an ordeal. Since I have been in
            confinement there have been several four to six hour
            “in-processings” of inmates. Sometimes inmates will
            come in at 1600 hours and not finish with their “in-
            processing” until 0200. During this time the guards
            are yelling at the top of their lungs and trying to
            make the inmate make mistakes, so the process can go
            back to the beginning. It is excessive harassment and
            intimidation. While these sessions go on, it’s
            impossible to get any sleep. Also a recent inmate was
            “in-processed” for six hours and then “re-inprocessed”
            the next day for another hour. A chaplain, Maj Flake,
            a former prison guard and chaplain at Fort Leavenworth,
            witnessed this session and called the guards on it.
            Following his complaint, we as inmates were threatened
            on 28 January 1999 by the NCOIC [noncommissioned
            officer-in-charge] not to talk to lawyers or chaplains
            anymore about the facility, or “there will be hell to
            pay.” Directly after this incident, the NCOIC and the
            guards initiated what they called an “inspection.” In
            reality, it was a flagrant intimidation session. They
            threw all the furniture over as well as the books and
            magazines and their racks. Beds and linens were
            flipped and thrown around. Clothing and personal items
            were seized from lockers and thrown all over the floor.
            Later, I was personally threatened by SrA [Senior
            Airman] Bruton, the night guard. He told me if I did
            not tell him what I knew about the other inmates they
            would try to make me have to stay longer than my
            sentence. Late last year, I also witnessed the same
            NCOIC, because he was mad, pick up an inmate and throw
            him on a table. He was briefly relieved of duties but
            soon returned.




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United States v. White, No. 00-0002/AF


      Appellant also complained that, while in confinement, he had

twice requested drug counseling or enrollment in Narcotics

Anonymous, but received no response.              Major (Maj) David Walker, a

staff psychiatrist at Lackland Air Force Base, where appellant

was confined, requested clemency for appellant because the local,

on-base substance abuse treatment program was unable to provide

any treatment services for him.              Maj Walker stated that he had

been treating appellant since July 1998, meeting with him every

one to three weeks “to provide medication and supportive therapy

due to diagnoses of major depression, substance dependence and

narcissistic personality disorder.”              Maj Walker stated that his

treatment of appellant “has been restricted to medication

management for his depressive symptoms and to supportive therapy

in order to help him cope with incarceration and to decrease

depressive symptoms and anxiety.”              Maj Walker concluded his

clemency request by stating that “[o]ptimal treatment for

substance dependence should include narcotics anonymous.”

      Appellant requested the convening authority to reduce his

confinement to time served.       The convening authority did not

grant clemency but, instead, approved the adjudged sentence.

      Before the Court of Criminal Appeals, appellant asserted

that the conditions of his confinement constituted cruel and

unusual punishment.      Additionally, in a handwritten affidavit,

appellant asserted for the first time that he was not allowed to

participate in Narcotics Anonymous because of his race.              He

asserted that two other inmates, one white and one “white

hispanic,” were allowed to participate.              The Court of Criminal

Appeals did not address the merits of his complaints, opining


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United States v. White, No. 00-0002/AF


only that it did not have jurisdiction to address his complaints,

and that he failed to exhaust his administrative remedies.

                              II.    Discussion

      Before this Court, appellant repeats the complaints that he

made to the court below.       He also argues that the Court of

Criminal Appeals erred when it held that it lacked jurisdiction

to decide the merits of his complaints.            Finally, he argues that

he satisfied the requirement for exhausting his administrative

remedies when he complained to the convening authority.

      The Government argues that this Court lacks jurisdiction to

decide the issue, and that appellant failed to exhaust his

administrative remedies.       The Government further argues that,

even if appellant’s complaints are cognizable by this Court,

appellant’s treatment did not amount to cruel and unusual

punishment.

      We have no findings of fact by a military judge or the court

below regarding appellant’s complaints.            Nevertheless, we need

not remand the case for factfinding if we can determine that the

facts asserted, even if true, would not entitle appellant to

relief.   See United States v. Ginn, 47 MJ 236, 248 (1997).           We

review de novo the question whether the facts asserted by

appellant would constitute a violation of Article 55, UCMJ, 10

USC § 855, or the Eighth Amendment of the Constitution.            2 Steven

A. Childress & Martha S. Davis, Federal Standards of Review

§ 7.05 (3d ed. 1999).

                             a.     Jurisdiction

      On direct appeal, this Court “may act only with respect to

the findings and sentence as approved by the convening authority


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United States v. White, No. 00-0002/AF


and as affirmed or set aside as incorrect in law by the Court of

Criminal Appeals.”      Art. 67(c), UCMJ, 10 USC § 867(c).         An

appellant who asks this Court to review prison conditions must

establish a “clear record” of both "the legal deficiency in

administration of the prison and the jurisdictional basis for

action."    United States v. Miller, 46 MJ 248, 250 (1997).             Unlike

civilians, military prisoners have no civil remedy for alleged

constitutional violations.       United States v. Palmiter, 20 MJ 90,

93 n. 4 (CMA 1985), citing Chappell v. Wallace, 462 U.S. 296
(1983), and Feres v. United States, 340 U.S. 135 (1950).             Thus,

they must rely on the prison grievance system, Article 138, UCMJ,

10 USC § 938, the Courts of Criminal Appeals, and this Court for

relief.

      On several occasions, this Court has sub silentio asserted

its jurisdiction to determine if certain punishments violated the

Eighth Amendment or Article 55.              See, e.g., United States v.

Yatchak, 35 MJ 379 (CMA 1992); United States v. Lorance, 35 MJ

382 (CMA 1992); United States v. Valead, 32 MJ 122 (CMA 1991)

(addressing issue whether confinement on bread and water violated
Article 55 or the Eighth Amendment).             More recently, this Court

has asserted its jurisdiction on direct appeal to consider

whether posttrial conditions of confinement violated the Eighth

Amendment or Article 55.       See United States v. Sanchez, 53 MJ 393

(2000) (sexual harassment at the hands of prison officials);

United States v. Avila, 53 MJ 99 (2000) (improper maximum-custody

confinement).

      We now expressly hold that we have jurisdiction under

Article 67(c) to determine on direct appeal if the adjudged and


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United States v. White, No. 00-0002/AF


approved sentence is being executed in a manner that offends the

Eighth Amendment or Article 55.              Our statutory authority is to

act “with respect to the findings and sentence.”              This grant of

authority encompasses more than authority merely to affirm or set

aside a sentence.      It also includes authority to ensure that the

severity of the adjudged and approved sentence has not been

unlawfully increased by prison officials, and to ensure that the

sentence is executed in a manner consistent with Article 55 and

the Constitution.      See Sanchez, supra at 397 (Sullivan, J.,
dissenting, and Gierke, J., concurring).

      Because this case is before us on direct appeal, we need not

and do not determine the extent of our authority to review a

collateral attack on the conditions of confinement.              We are not

persuaded, however, by the Government’s suggestion that

jurisdiction is precluded by Clinton v. Goldsmith, 526 U.S. 529

(1999).   Goldsmith involved an amendment to a statute outside the

UCMJ that eased restrictions on the authority to discharge

officers administratively under a statute not within this Court’s

jurisdiction.      By contrast, the present case involves the
imposition of punishment under the UCMJ in a case that is before

us under the direct review procedure established by Congress.

              b.    Exhaustion of Administrative Remedies

      “[A] prisoner must seek administrative relief prior to

invoking judicial intervention.              In this regard, appellant must

show us, absent some unusual or egregious circumstance, that he

has exhausted the prisoner-grievance system . . . and that he has

petitioned for relief under Article 138, UCMJ, 10 USC § 938.”




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United States v. White, No. 00-0002/AF


Miller, supra at 250, quoting United States v. Coffey, 38 MJ 290,

291 (CMA 1993).

      In this case, appellant has furnished no evidence that he

invoked the prisoner-grievance system.        Instead, he complained to

the convening authority.       The convening authority was appellant’s

wing commander, but not the commander of the confinement facility

or the Air Force Base on which the confinement facility was

located.    In addition, there is no evidence that appellant filed

an Article 138 complaint.

      Appellant avers that the same abuses occurred while he was

in pretrial confinement.       Nevertheless, he did not assert an

Article 13, UCMJ, 10 USC § 813, violation at trial.        Appellant

also avers that a field-grade chaplain witnessed some of the

abuses and “called the guards on it.”        He asserts that the

chaplain’s action did not terminate the abuses, but caused the

guards to threaten the prisoners if they made any complaints to

lawyers or chaplains.      This threat apparently did not deter

appellant, because he filed a complaint with the convening

authority.    The record does not reflect whether appellant knew

the confinement facility did not fall under the command of the

convening authority.      The record does reflect that,

notwithstanding the alleged threats, appellant continued to

communicate with his military defense counsel regarding his

request for enrollment in Narcotics Anonymous.

      Without further factfinding, this record is inadequate to

determine if appellant exhausted all measures reasonably

available to him.     It is also inadequate to determine if the

circumstances of appellant’s confinement were so unusual or


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United States v. White, No. 00-0002/AF


egregious that he could not avail himself of the Article 138

process.    However, our evaluation of the merits of appellant’s

complaints makes it unnecessary to determine if appellant has

satisfied the requirement for exhaustion of administrative

remedies.

                   c.   Cruel and Unusual Punishment

      Appellant asserts that the conditions of his confinement

violated both the Eighth Amendment and Article 55.          The Eighth

Amendment prohibits the infliction of “cruel and unusual

punishment.”    Article 55 prohibits the infliction of flogging,

branding, marking, or tattooing, the use of irons, “except for

the purpose of safe custody,” and “any other cruel or unusual

punishment.”

      The Articles of War preceding Article 55 prohibited “cruel

and unusual punishment,” but the phrase was changed to “cruel or
unusual punishment” in Article 55.           See Article of War 41, Manual

for Courts-Martial, U.S. Army, 1929 at 212, and 1949 at 284.           The

legislative history of Article 55 provides no clue why the word

“and” was changed to “or.”        Indeed, when this Court discussed
the newly-enacted Article 55 in United States v. Wappler, 2 USCMA

393, 396, 9 CMR 23, 26 (1953), it referred to Article 55 as

prohibiting “cruel and unusual punishments.”          Addressing the

question whether a court-martial was authorized to impose

confinement on bread and water, this Court explained the

significance of Article 55 as follows:

            Although we do not believe that the proscription
            against punishments of this nature contained in the
            Constitution’s Eighth Amendment--if applicable--would
            bar the punishment adjudged here, it is to be noted
            that the Amendment does not necessarily define the


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United States v. White, No. 00-0002/AF


            limits of “cruel and unusual,” as used by Congress in
            Article 55. Use of the phrase by Congress, therefore,
            raises a problem of legislative rather than
            constitutional construction. Certainly Congress
            intended to confer as much protection as that afforded
            by the Eighth Amendment. Additionally--at least to the
            extent of including the punishment involved here
            [confinement on bread and water]--we believe it
            intended to grant protection covering even wider
            limits.

Id.

      This explanation is significant in several respects.        First,

it reflects the uncertainty that existed at the time regarding

the applicability of the Bill of Rights to the military.         Second,

it recognizes the intent of Congress to extend the protections of

the Eighth Amendment to the military.         Third, it recognizes the

intent and authority of Congress to prohibit or limit the

imposition of certain punishments that would not necessarily

violate the Eighth Amendment.

      The case before us does not involve an “unusual” punishment

or one peculiar to military penology.         Instead, the issue is

whether appellant’s confinement was administered in a cruel or

unusual manner.     Except in cases where we have discerned a

legislative intent to provide greater statutory protections than

the Eighth Amendment provides, we have applied the Supreme

Court’s interpretation of the Eighth Amendment to claims raised

under Article 55.     See Avila, 53 MJ at 101; cf. Yatchak, 35 MJ at
381 (holding that confinement on bread and water on crew member

of ship undergoing long-term overhaul violated Article 55).

Thus, for the purposes of appellant’s case, we perceive no

significant differences between appellant’s protections under the

Eighth Amendment and those under Article 55.



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United States v. White, No. 00-0002/AF


      In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court

said that the framers' intent behind the Eighth Amendment was to

prevent barbaric and torturous forms of punishment.        In more

recent history, the standard for what constitutes cruel and

unusual punishment has developed into more than physical torture.

Instead, the current standard is that the Eighth Amendment

prohibits "punishments which are incompatible with ‘the evolving

standards of decency that mark the progress of a maturing

society,’ . . . or which ‘involve the unnecessary and wanton

infliction of pain[.]’"       Id. at 102-03 (citations omitted).
Conditions that violate the Eighth Amendment include “deliberate

indifference to serious medical needs.”        Id. at 104-05.

      In Farmer v. Brennan, 511 U.S. 825, 832 (1994), the Supreme

Court held that the Eighth Amendment “does not mandate

comfortable prisons,” but “neither does it permit inhumane

ones[.]”    The Court defined two factors that are necessary for an

Eighth Amendment claim to succeed regarding conditions of

confinement.    First, there is an objective component, where an

act or omission must result in the denial of necessities and is
"objectively, ‘sufficiently serious.’"        Id. at 834, quoting

Wilson v. Seiter, 501 U.S. 294, 298 (1991).        The second component

is subjective, testing for a culpable state of mind.        "In prison-

conditions cases that state of mind is one of ‘deliberate

indifference’ to inmate health or safety[.]"        Id., quoting

Wilson, supra at 302-03.

      In Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997), the

court held that sexual harassment or abuse of an inmate by a

guard sometimes might rise to the level of "unnecessary and


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United States v. White, No. 00-0002/AF


wanton infliction of pain" and, in those cases, may therefore

give rise to an Eighth Amendment claim.       However, the court

further held that

            [t]o prevail on a constitutional claim of sexual
            harassment, an inmate must . . . prove, as an
            objective matter, that the alleged abuse or
            harassment caused ‘pain’ and, as a subjective
            matter, that the officer in question acted with
            a sufficiently culpable state of mind.

Id., citing Hudson v. McMillian, 503 U.S. 1, 8 (1992).

       Under the standard articulated by the Supreme Court in

Farmer, supra, “the prison guards and officials must be
consciously aware of the risk or danger to the inmate and choose

to ignore it; they must have been aware of the harm or risk of

harm caused appellant, and continued anyway.”       Sanchez, 53 MJ at

396.

       Appellant asserts that he was intimidated, threatened, and

subjected to extended periods of “yelling.”       He also describes

incidents where personal property was thrown on the floor.         He

describes one incident where another prisoner was assaulted.         He

asserts that “it’s impossible to get any sleep” while the verbal
abuse goes on.     He fails, however, to assert any physical or

psychological pain.      In Sanchez, this Court held that verbal

sexual harassment of a female prisoner by male guards did not

rise to the level of physical or psychological “pain” required to

constitute an Eighth Amendment or Article 55 violation.       Verbal

harassment, intimidation, or abuse, standing alone, does not

constitute a constitutional violation, unless there is “well-

established and clinically diagnosed” evidence of psychological

pain.    Id.; see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139



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United States v. White, No. 00-0002/AF


(9th Cir. 1987), citing Martin v. Sargent, 780 F.2d 1334, 1338
(8th Cir. 1985), McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.

1983), and Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir.

1975); Warburton v. Goord, 14 F.Supp 2d 289, 292 (W.D.N.Y. 1998)

(harrassment or profanity alone, unaccompanied by any injury, “no

matter how inappropriate, unprofessional, or reprehensible it

might seem,” not a violation of “any federally protected right”).

      Appellant also asserts that he was deprived of substance

abuse treatment. The record reflects that appellant received

psychiatric care, counseling, and medications from Maj Walker,

and that Maj Walker stated that “optimal treatment” for appellant

should include Narcotics Anonymous.

      Denial of adequate medical attention can constitute an

Eighth Amendment or Article 55 violation.          Sanchez, supra at 396.
A failure to provide basic psychiatric and mental health care can

constitute deliberate indifference.           Harris v. Thigpen, 941 F.2d

1495 (11th Cir. 1991).      However, it is not constitutionally

required that health care be “perfect” or “the best obtainable.”

Id. at 1510.    Appellant was entitled to reasonable medical care,
but not the “optimal” care recommended by Maj Walker.

      Appellant’s allegation that his race was the basis for not

permitting him to participate in Narcotics Anonymous is based on

his representation that two other inmates -- one white and the

other “white hispanic” -- were allowed to participate.          Even

accepting appellant’s representation as to the two inmates who

participated, it is insufficient, standing alone, to raise an

issue whether appellant was denied similar participation because

of his race.


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United States v. White, No. 00-0002/AF


      We hold that appellant’s other complaints, if true, do not

amount to either a constitutional or statutory violation in

derogation of the Eighth Amendment or Article 55.   Our holding is

limited to the question whether the facts asserted by appellant

constitute a constitutional or statutory violation.   Any further

determination as to whether appellant’s allegations are true, and

if so, what measures should be taken in terms of accountability

and responsibility, are matters for consideration by appropriate

supervisory personnel.

                              III.   Decision
      The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. White, 00-0002/AF


    SULLIVAN, Judge (concurring):


    I am heartened that this Court has finally and squarely held

in this case and also in United States v. Erby, No. 00-0550,

___ MJ ___ (2001), that the lower courts have the duty and the

jurisdiction to review whether the sentence imposed by a court-

martial is being unlawfully increased by prison officials.   I

have for some time believed this to be true.   United States v.

Sanchez, 53 MJ 393, 397 (2000) (Sullivan, J., dissenting).
