                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-1996

Nami v. Fauver
Precedential or Non-Precedential:

Docket 95-5365




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Recommended Citation
"Nami v. Fauver" (1996). 1996 Decisions. Paper 203.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/203


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                                UNITED STATES COURT OF APPEALS
                                    FOR THE THIRD CIRCUIT

                                         ___________

                                         No. 95-5365
                                         ___________


                                          ROBERT NAMI;
                                       MAURICE THOMPSON;
                                        BART FERNANDEZ;
                                       KENNETH THOMPSON,

                                   KENNETH B. THOMPSON,
                                   Appellant

                                              v.

                                WILLIAM H. FAUVER, COMMISSIONER;
                                JOSEPH E. BUTLER, ADMINISTRATOR;
                              WILLIE BOGGAN, ASST. SUPERINTENDENT;
                                   PREM SINHA, LAW LIBRARIAN

                       _______________________________________________

                       On Appeal from the United States District Court
                                for the District of New Jersey
                              D.C. Civil Action No. 94-cv-06083
                                      ___________________


                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      November 27, 1995

                    Before:   Stapleton, Nygaard and Lewis, Circuit Judges

                               (Opinion Filed April 25, 1996)
                                        --------------

                                  BART FERNANDEZ, PRO SE
                                  KENNETH B. THOMPSON, PRO SE

                                  DIANNE M. MORATTI, ESQUIRE
                                  Office of Attorney General of
                                  New Jersey
                                  Division of Law
                                  Richard J. Hughes Justice Complex
Trenton, NJ 08625


                                  1
                                  Attorney for Appellees
                                        ______________
                                     OPINION OF THE COURT
                                        ______________


NYGAARD, Circuit Judge.


             Kenneth Thompson appeals pro se from the district court's order d

complaint.    We will reverse the order and remand the cause to the district c

further proceedings consistent with this opinion.

                                              I.

          On December 6, 1994, Robert Nami, Maurice Thompson, Bart Fernandez

Thompson filed a pro se complaint under 42 U.S.C. § 1983, alleging that the

subjected to cruel and unusual punishment and denied access to the courts.

plaintiffs were inmates housed in protective custody1 in the Administrative

Supervision Unit (or "Unit") at the Wagner Youth Correctional Facility in Bo

Jersey.   The defendants are: William Fauver, Commissioner of the New Jersey

Corrections; Joseph Butler, Wagner's Administrator; Willie Boggan, the Assi

Superintendent of the Unit; and Prem Sinha, the law librarian at Wagner.    Th

seek declaratory and injunctive relief, and compensatory and punitive damage

          The defendants moved under Fed. R. Civ. P. 12(b)(6) to dismiss on
that: the complaint does not allege specific conduct by the defendants that

plaintiffs; the defendants cannot be held liable under § 1983 on the basis o

superior; and the defendants are state officials who are being sued for dama

official capacities and are therefore immune from suit under the Eleventh Am

district court found that to the extent the plaintiffs sought injunctive rel

defendants were not immune under the Eleventh Amendment, but agreed that th

failed to specify which defendants were responsible for the adoption and exe

1
          Protective custody inmates are those whose well-being might be im
they to remain in the general population.


                                 2
various policies and practices complained of.       Rather than allowing the plai

amend their complaint to correct that deficiency, the district court granted

dismiss.

                                              II.

           Because the district court's final order granted the defendants'

dismiss the complaint under Fed. R. Civ. P. 12(b)(6), our review is plenary.

determine whether, under any reasonable reading of the pleadings, the plain

entitled to relief, and we must accept as true the factual allegations in th

and all reasonable inferences that can be drawn therefrom.       Holder v. City

987 F.2d 188, 194 (3d Cir. 1993).     The complaint will be deemed to have alle

facts if it adequately put the defendants on notice of the essential element

plaintiffs' cause of action.     Since this is a § 1983 action, the plaintiffs

to relief if their complaint sufficiently alleges deprivation of any right s

Constitution.   Id.   In considering a Rule 12(b)(6) motion, we do not inquir

plaintiffs will ultimately prevail, only whether they are entitled to offer

support their claims.   Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).      The di

order granting the defendants' motion to dismiss will be affirmed only if it

the plaintiffs could prove no set of facts that would entitle them to relie

Gibson, 355 U.S. 41 (1957).

                                              III.

                                 Cruel and Unusual Punishment

           The plaintiffs' claim of cruel and unusual punishment is based on

allegations:

           1. Inmates at the Unit are "double celled," housed two to a singl

foot cell with only one bed, so that one of them must sleep on the floor by

Cells have solid doors with only a four inch wide window for cell inspection

difficult to summon help.     Inmates often share cells with others who suffer


                                  3
psychiatric problems and/or who are violent felons, and non-smokers must of

smokers. Floor space is minimal, effectively confining inmates to their beds

ventilation system often shuts down for hours at a time.   Double celling has

rapes and other assaults, as well as psychological stress.   Inmates who refu

up" have been punished with periods of administrative segregation and loss o

          2. Inmates must spend 24 hours a day in their cells except for ou

recreation, visits and half-hour to one-hour job assignments.

          3. Out of cell recreation is limited to one two-and-a-half hour p

per week, in contrast to the seven day per week policy enjoyed by the genera

and protective custody inmates in other facilities.   Moreover, during outdoo

inmates are denied bathroom access, resulting in unsanitary conditions in th

yard.   Those who cannot wait to use the bathroom inside risk punishment.

          4. Access to drug and alcohol programs required by the parole boar

and educational programs, is more restricted for inmates in protective custo

inmates in the general population.   General population inmates work at the U

though a statute prohibits inmates not under protective custody from enterin

protective custody area.

          5. When transported to other locations -- for example, to visit th

inmates must wear a painful device, the "black box," which is so uncomfortab

inmates are deterred from seeking medical or dental help; general population

apparently do not have to wear this device, nor do inmates in protective cus

facilities.

          6. One of the plaintiffs, Kenneth Thompson, alleges that his requ

dentist and an eye doctor have been ignored.

          Rather than examining the plaintiffs' allegations concerning the c

their confinement as a whole, the district court split these allegations int

categories. First, the court analyzed the double celling allegations, inferr


                                4
v. Chapman, 452 U.S. 337 (1981), that double celling is not per se a constit

violation, and concluded that the plaintiffs failed to state a claim in that

Second, the court addressed the allegation that there have been increased ra

assaults, finding that the claim based upon these allegations lacked merit b

plaintiffs failed to show "deliberate indifference," citing Young v. Quinla

351, 360 n.22 (3d Cir. 1992).   Finally, the court treated the remaining Eig

allegations as amounting to an equal protection claim, based on a comparison

plaintiffs' treatment with that of the general population of the prison.   It

claim to likewise be without merit.

          We conclude that the district court erred.   While Rhodes may stand

proposition that double celling does not per se amount to an Eighth Amendmen

it does not stand for the proposition that double celling can never amount

Amendment violation.   The Supreme Court held only that, under the circumstan

particular case, the double celling in question did not violate the plaintif

Amendment rights. The Court noted that
          No static `test' can exist by which courts can determine whether
          conditions of confinement are cruel and unusual, for the Eighth
          Amendment must draw its meaning from the evolving standards of dec
          that mark the progress of a maturing society.

Id. at 346 (citation and internal quotations omitted). The court went on to
          conditions must not involve the wanton and unnecessary infliction
          pain, nor may they be grossly disproportionate to the severity of
          crime warranting imprisonment. . . . [Conditions may constitute c
          and unusual punishment if] they result[] in unquestioned and serio
          deprivations of basic human needs . . . , [which] deprive inmates
          the minimal civilized measure of life's necessities . . . .

Id. at 347.

          In other words, it is implicit in Rhodes that double celling can

Eighth Amendment violation if combined with other adverse conditions.   Thus,

Owens, 907 F.2d 418 (3d Cir. 1990), we noted that, to determine whether cond

confinement violate the Eighth Amendment, it is necessary to examine the tot



                                5
conditions at the institution, and we held that double celling at SCI Pittsb

the Eighth Amendment because of those conditions.    Id. at 426-427.   Relevant

considerations include the length of confinement, the amount of time prisone

in their cells each day, sanitation, lighting, bedding, ventilation, noise,

rehabilitation programs, opportunities for activities outside the cells, and

and functioning of basic physical facilities such as plumbing, ventilation,

Id. at 427.   Here, the allegations in the complaint raise another significan

consideration; that plaintiffs were subject to sexual assaults, and that the

by failing to protect plaintiffs adequately, were deliberately indifferent

potential for this type of harm.    If proven, these allegations, irrespective

the harm resulted from double celling or other conditions of the confinement

establish deliberate indifference as contemplated by Rhodes v. Chapman.

          As in Rhodes, courts finding double celling permissible have empha

general prison conditions were otherwise adequate.   Id.   We stress that the

Rhodes were different in many ways from those in the case before us (and con

different from the grim conditions related in Tillery).    The cells in Rhode

Nonetheless, cells housing two inmates had two-tiered bunk beds, each cell h

air circulation vents and a built-in radio, one wall consisted only of bars

6:30 a.m. and 9:30 p.m. inmates had access to "dayrooms" (designed to be cou

living room at home, each included a television, card tables and chairs).

          The district court failed to analyze the relevant consideration l

Nor did the court discuss double celling in the overall context of prison co

that extent the district court erred.2   Although the complaint alleged that

in rapes and other assaults was a result of double celling, the district co


2
          Since under Tillery the plaintiffs' other Eighth Amendment claims
unavoidably part of the analysis of the double celling issue, we need not a
separately in detail here.


                                6
this allegation separately.      The court found that the plaintiffs did not sta

because they had failed "to indicate any conduct by the defendants which cou

`deliberate indifference.'" (Dist. Ct. at 9, citing Young v. Quinlan, 960 F

n.22 (3d Cir. 1992)).    Here, the court also erred.

            In Wilson v. Seiter, 501 U.S. 294 (1991), the Supreme Court held

establish an Eighth Amendment violation an inmate must allege both an objec

that the deprivation was sufficiently serious -- and a subjective element -

official acted with a sufficiently culpable state of mind, i.e., deliberate

            It cannot be wholly determined from the record whether in this cas

officials actually displayed deliberate indifference.     Nonetheless, this com

actually states that "letters have been written to the [administration] conc

matters set forth in the complaint.     All requests for administrative remedi

refused."    (Complaint at 3.)   This suggests that the defendants here were on

by plaintiffs' reports of rape, violence and the other conditions alleged in

complaint.    Although, by itself, such notice may not equal proof of delibera

indifference, it nevertheless directly contradicts the district court's taci

which has no support in the record, that plaintiffs could prove no set of fa

either show deliberate indifference or otherwise entitle them to relief.

            Finally, the district court erred in its consideration of the plai

remaining Eighth Amendment allegations. The court stated that
          there is no support for the assertion that plaintiffs' constitutio
          rights are being violated by denying them the same `rights and
          privileges' afforded to inmates in the general population and this
          Court defers to the judgment of the prison officials in adopting a
          executing policies and practices that they believe, in their
          discretion, are needed to preserve internal order and to maintain
          institutional security.


(Dist. Ct. at 9-10.)    That may be true (although, since the defendants did n
opportunity to explain the justifications for these "policies and practices,



                                   7
assumption that they are legitimate is perhaps premature); however, the plai

to have raised these allegations as part of their Eighth Amendment claim, no

equal protection claim.   For example, the plaintiffs complain about use of "

not simply because general population prisoners are not subjected to them, b

they are so uncomfortable that they deter inmates from seeking medical and d

For the reasons stated above, these remaining allegations should have been

along with the issue of double celling, and should at least have been consid

of the plaintiffs' Eighth Amendment claims.

          Thus, with regard to the plaintiffs' Eighth Amendment claims, we c

the district court erred.   Based upon the record before us, we cannot say t

plaintiffs would be unable to prove that prison conditions were objectively

and that prison officials were deliberately indifferent to plaintiffs' pligh

that the district court entertained, but rejected (Dist. Ct. at 5), the pos

plaintiffs may be able to satisfy some deficiencies in their original pleadi

an amended complaint.   Plaintiffs may be able to allege in an amended compla

example, sufficient facts to support a finding that some defendants display

indifference to certain harms, or that all officials were deliberately indif

possibility that the conditions under which they housed the plaintiffs signi

increased the possibility of such well-known harms as prison rape.

                                              IV.

                                    Access to the Courts

          The plaintiffs' denial of access to the courts claim is based on t

allegations.   Protective custody inmates are denied access to paralegals or

trained in law who could assist them with drafting legal papers.   Paralegals

available to protective custody inmates facing disciplinary charges, while d

refuses to help protective custody inmates prepare habeas corpus petitions

complaints. Moreover, Sinha has attempted to frustrate the plaintiffs in thi


                                8
delaying return of documents and failing to make copies of legal documents.

custody inmates are effectively prevented from helping each other by a polic

them from talking to each other through the doors and passing items to betwe

those who violate that policy risk disciplinary action.   In addition, prison

with a Catch 22-style problem: in order to obtain access to legal materials,

submit written requests for specific materials; however, they cannot effecti

because they lack access to the very legal materials that would advise them

materials to request.   The plaintiffs also allege that everyone who has att

a civil complaint to attack these procedures has been transferred.

          As we stated in Abdul-Akbar v. Watson, 4 F.3d 195, 204 (3d Cir. 19

standard in resolving a claim of denial of access to the courts is


          whether the mix of paralegal services, copying services and avail
          research materials can provide sufficient information so that a
          prisoner's claims or defenses can be reasonably and adequately
          presented.

As with claims involving double celling, in addressing a claim of denial of
courts "each legal resource package must be evaluated as a whole on a case-

Id. at 203.

          However, just as the district court failed to address the plaintif
celling claims as a whole, in addressing their claim of denial of access to

district court only analyzed one allegation, denial of access to paralegals.

court addressed it by relying on defendant Boggan's affidavit in an unrelate

which he states that paralegals are available on written request to help inm

legal problem or lawsuit.   Because the plaintiffs did not allege that they h

written requests, the district court held that they had failed to state a cl

of access to the courts.




                                9
           The district court erred here as well.   In choosing to believe Bog

affidavit, the court failed to take the allegations in the complaint as true

in considering a motion to dismiss under Rule 12(b)(6).   In addition, the co

address the remaining allegations at all.   Since the plaintiffs' allegations

evidently false, and since their allegations do not facially indicate that t

could not state a claim, the district court erred by granting the defendant

dismiss.

                                             V.

           In conclusion, the district court should not have granted the defe

to dismiss under Rule 12(b)(6). We will reverse the judgment of the district

remand the matter for further proceedings consistent with this opinion.




                                10
