
USCA1 Opinion

	




          December 8, 1992      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1575                                              DENNIS R. COOKISH,                                Plaintiff, Appellant,                                          v.                             COMMISSIONER, NEW HAMPSHIRE                          DEPARTMENT OF CORRECTIONS, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Dennis R. Cookish on brief pro se.               _________________               John  P. Arnold,  Attorney General,  and Claire  L. Gregory,               _______________                          __________________          Assistant Attorney General, on brief for appellees.                                  __________________                                 __________________                  Per  Curiam.   The  appellant,  Ronald  Cookish, was  an                 ___________            inmate at the  New Hampshire State Prison when  a disturbance            occurred there in October 1987.  In April 1988, Cookish filed            an eight-count complaint against  the Commissioner of the New            Hampshire Department  of Corrections,  the Warden of  the New            Hampshire State Prison, and seven corrections officers at the            prison.  He later amended the complaint to add a ninth count.            The complaint alleged that the defendants' actions during and            after the disturbance had violated Cookish's rights under the            Fourth, Eighth and Fourteenth Amendments to the United States            Constitution, and under  several provisions of  New Hampshire            law.                 The district  court dismissed eight of  the nine counts,            but denied the defendants'  request for qualified immunity on            the remaining  count.   The defendants took  an interlocutory            appeal  to this court, challenging  that denial.  We reversed            the district court's decision.   Cookish v. Powell, 945  F.2d                                             _______    ______            441  (1st Cir. 1991) (per  curiam).  The  district court then            dismissed the  remaining count and entered  a final judgment.            Cookish appealed, challenging only  the dismissal of Counts I            and II of his amended complaint.                                          I                                          _                 In  Count I,  Cookish  alleged that  the defendants  had            violated  his   Eighth  Amendment  rights   "by  placing  him            knowingly  and willfully  into a  dangerous, life-threatening                                         -2-            situation."  On October 23, 1987, a disturbance which Cookish            variously described as  a "riot" and an "uprising"  broke out            in  the Medium Custody South Unit (MCSU) of the New Hampshire            State Prison.  The MCSU was made up of four housing sections,            or "pods."   Cookish resided in  Pod 1C, one of  two in which            the disturbance  occurred.   However, when the  unrest began,            Cookish  was  not  in his  cell  but  working  in the  prison            kitchen.   By the time he returned to his unit, at about 7:15            p.m., Pod  1C "was  being destroyed."    Fires were  burning,            windows, furniture,  and light fixtures  were being  smashed,            and threats were being yelled.  Corrections officers had been            removed  from the  pod and  stationed near  the MCSU  control            room.                 Cookish did  not want to enter  the pod while it  was in            such an  uproar, but he was twice  instructed to do so, first            by a "staff  order," and the second time by the MCSU "Control            Room Officer."    Cookish returned  to  his cell  and  locked            himself in.  He  stayed there for  the next four hours  while            "the situation" continued,  though he left  twice to use  the            toilet --  once at 9:00 p.m.  and once at 10:00  p.m. -- both            times without incident.                 Cookish took no  part in  the disturbance.   He did  not            engage  in violence,  was not  threatened with  violence, and            suffered   no  physical  injury.    He   did  claim  to  have                                         -3-            "experienced  mental  anguish" but  gave  no  details of  his            torment and supplied no facts to support that conclusion.                 Prison officials  have a duty to  protect prisoners from            violence  at the hands of fellow inmates.  Leonardo v. Moran,                                                       ________    _____            611 F.2d  397, 398-99  (1st Cir. 1979).   See also  Street v.                                                      ________  ______            Fair, 918 F.2d  269, 271 (1st  Cir. 1990)  (per curiam).   In            ____            some circumstances,  a prison  official's failure  to protect            may  constitute  the "unnecessary  and  wanton  infliction of            pain" in  which an Eighth  Amendment violation accrues.   See                                                                      ___            Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle            ________    ______                                    _______            v. Gamble, 429 U.S. 97, 103 (1976)).               ______                 The  circumstances  required  for  an  Eighth  Amendment            violation  include,   of  course,  a  sufficient   degree  of            culpability  on the  part of  the defendant.   See  Wilson v.                                                           ___  ______            Seiter, 111 S.Ct. 2321, 2326 (1991) ("Eighth Amendment claims            ______            based on official  conduct that  does not purport  to be  the            penalty  formally imposed  for a  crime require  inquiry into            state  of  mind").    The  culpability  needed  to  show  the            unnecessary and wanton infliction of pain varies according to            the  "kind  of  conduct  against which  an  Eighth  Amendment            objection is lodged."   Whitley v. Albers, 475 U.S.  312, 320                                    _______    ______            (1986).                 Courts deciding failure-to-protect cases  have generally            held plaintiffs  to a burden  of showing that  the defendants            acted  with  "callous  indifference,"   Estate  of  Davis  v.                                                    _________________                                         -4-            Johnson,   745  F.2d   1066,   1071  (7th   Cir.  1984),   or            _______            "deliberate[] indifferen[ce]," Martin v. White, 742 F.2d 469,                                           ______    _____            474 (8th Cir. 1984),  or that they were "wanton,  reckless or            deliberately indifferent."   Lawler v. Marshall,  687 F.Supp.                                         ______    ________            1176,  1177 (S.D.Ohio  1987).   The plaintiff  in this  case,            however, was  required  to  prove  more.   The  typical  case            involves allegations that prison  officials failed to protect            a  prisoner  from  the kind  of  harm  that  may arise  under            workaday prison  conditions, by, for example,  housing him in            an area of the prison to which his known enemies have access,            Leonardo v. Moran, 611 F.2d at 397-98, or allowing bullies to            ________    _____            carry on a  campaign of intimidation in  prison common areas.            Street  v.  Fair,  918  F.2d  at  271.    In  such  cases,  a            ______      ____            "deliberate indifference" standard is appropriate because the            prison  official's  responsibility  to protect  the  prisoner            "does  not  ordinarily  clash  with  other equally  important            governmental responsibilities."  Whitley v. Albers, 475  U.S.                                             _______    ______            at 320.  See  also Hendricks v.  Coughlin, 942 F.2d 109,  113                     _________ _________     ________            (2d  Cir.   1991)  (protecting  inmate  from  other  inmates'            violence  "ordinarily  involves   no  competing   penological            policies").                 But, this is not the typical case.  Here, the correction            official who  allegedly failed to  protect Cookish did  so in            the  course of  efforts to  restore order  to the  MCSU under            conditions  which Cookish himself has described as "riotous."                                         -5-            "In making and carrying out decisions . . .  to restore order            in  the  face  of  a  prison  disturbance,  prison  officials            undoubtedly must take into account  the very real threats the            unrest presents  to  inmates  and  prison  officials  alike."            Whitley v. Albers, 475 U.S. at 320.  Thus, "[w]hen the 'ever-            _______    ______            present    potential    for    violent   confrontation    and            conflagration' ripens  into actual unrest and  conflict," id.                                        ______                        ___            at  321 (quoting  Jones  v. North  Carolina Prisoners'  Labor                              _____     _________________________________            Union, Inc.,  433 U.S. 119, 132 (1977)), "the admonition that            ___________            'a prison's internal security is peculiarly a matter normally            left  to  the discretion  of  prison administrators'  carries            special weight."  Whitley v. Albers, 475 U.S. at 321 (quoting                              _______    ______            Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).            ______    _______                 "In this  setting,  a deliberate  indifference  standard            does  not adequately  capture the  importance of  [the prison            official's]  competing obligations,"  Whitley v.  Albers, 475                                                  _______     ______            U.S. at 320, and the plaintiff is  required to prove that the            defendant  acted "maliciously  and sadistically for  the very            purpose  of causing harm."  Id. at 320-21 (quoting Johnson v.                                        ___                    _______            Glick, 481  F.2d 1028, 1033 (2d Cir. 1973)).  This is a "very            _____            high state of mind," Wilson v. Seiter, 111 S.Ct. at 2326, and                                 ______    ______            it sets the standard against which we must measure  Cookish's            charges.                 By alleging  that the MCSU Control  Room Officer ordered            him  to return  to his  cell while  a riot  was in  progress,                                         -6-            Cookish  did lay a factual  basis from which  one could infer            that the officer acted  with some degree of culpability.   In                                         ____            light of what  the complaint also says, and what  it does not            say,  however,  we can  find no  basis  from which  one could            reasonably   infer  that   the  officer   might   have  acted            "maliciously and sadistically for the very purpose of causing            harm."                 Any possible inference of malice or sadism  in this case            would  rest on  the notion  that corrections officers  had no            reason to send Cookish  back to his cell other  than to cause            him injury,  or perhaps that the  situation in Pod 1C  was so            violent  that to send Cookish into its midst was virtually to            condemn  him to  injury.  The  complaint can  support neither            assumption.                 First,    prison    officials    are    normally,    and            understandably, concerned with accounting for the whereabouts            of all prisoners at all times.  During periods of unrest, the            need to assure that every prisoner is where he is supposed to            be  escalates  in proportion  to  the  level of  disturbance.            Cookish was  supposed to be  in his  cell.  In  his cell,  he            could  be  accounted for.   If  he  added to  the disturbance            inside   the  pod,  at  least  he  would  not  create  a  new            disturbance outside it.   Nor would his  presence outside the            pod divert resources better directed at ending the emergency.            The  Control Room  Officer's insistence  that Cookish  go his                                         -7-            cell  and stay  in  it, therefore,  was  a rational,  if  not            entirely risk-free, response to the circumstances.  If it was            not benign, then it certainly was not malicious.                 We note, moreover, that Cookish rode out the riot safely            in  his locked cell, from which he felt comfortable enough to            emerge to relieve himself  not once but twice in  a four-hour            period.   Indeed, as far as the complaint reveals, the "riot"            involved  considerable  property damage  but  no  violence or            injury to  any person.  All  of this suggests to  us that the            pod, though in upheaval,  was not a free-fire zone,  and that            the Control  Room Officer's instruction was  intended only to            accomplish  what it did in fact accomplish: it put Cookish in            a  location  where he  would  be relatively  safe  and easily            accounted for.                 Finally,  Cookish's  only  allegation  of   harm  was  a            conclusory  assertion of mental  anguish, unsupported  by any            facts.  Such allegations are inadequate to establish that the            defendants' failure  to protect him  from a risk  of violence            rose  to the  level of  an Eighth  Amendment violation.   See                                                                      ___            Street  v. Fair, 918 F.2d  at 271-72; Leonardo  v. Moran, 611            ______     ____                       ________     _____            F.2d at 399.  We therefore affirm the dismissal of Count I.                                          II                                          __                 In Count II, Cookish  complained about the conditions in            which  he and the other  inmates of the  rebellious pods were            housed for some  sixty hours after the disturbance ended just                                         -8-            before midnight on  October 23.   The inmates, Cookish  among            them, were escorted to  an old, unused cellblock.   They were            strip-searched.   The guards  took their jackets  and thermal            underwear, and did  not return them,  although the night  was            chilly   with  temperatures  dipping   just  below  freezing.            Cookish was taken to a cell  that had no heat and no bedding.            He asked for  a mattress, sheets,  blankets, and his  jacket,            but the guards denied his request "for the time being."                 Cookish remained in this  cell until just after noon  on            October  26, when  he  returned to  Pod  1C.   He  received a            mattress  and a blanket on  the afternoon of  October 24, but            was denied a  sheet and his jacket, a towel  and soap.  There            was no heat.  The cell had a toilet, and a sink that ran only            cold water.  Cookish was  fed, but at least one of  his meals            consisted of a "plain peanut butter sandwich on  hard bread."            As  a result  of  this ordeal,  Cookish suffered  "headaches,            sinus problems, chills [and] fever."                 Although "[n]o  static 'test' can exist  by which courts            determine  whether conditions  of confinement  are  cruel and            unusual,"  Rhodes v.  Chapman, 452 U.S. 337, 346  (1981), the                       ______     _______            Supreme  Court  has  said   that  "extreme  deprivations  are            necessary  to make  out  a  conditions-of-confinement  claim.            Because  routine  discomfort  is  part of  the  penalty  that            criminal offenders  pay for their  offenses against  society,            only those deprivations denying the minimal civilized measure                                         -9-            of  life's necessities  are  sufficiently grave  to form  the            basis  of   an  Eighth  Amendment  violation."     Hudson  v.                                                               ______            McMillian, 112 S.Ct. 995, 1000 (1992) (citations omitted).            _________                 The  objective component  of an Eighth  Amendment claim,            moreover, is  "contextual."   Id.   Conditions that  might be                                          ___            deemed cruel and unusual if they were permanent features of a            prisoner's life, may  not offend the Constitution if they are            imposed only temporarily.  "A filthy, overcrowded  cell and a            diet  of 'grue'  might  be  tolerable  for  a  few  days  and            intolerably cruel for weeks or months."  Hutto v. Finney, 437                                                     _____    ______            U.S. 678, 686-87 (1978).                 By the same token, prison  officials may be justified in            subjecting prisoners to more rugged conditions of confinement            during and after an  emergency than would be constitutionally            permissible  in  peaceable  circumstances.    "[R]esponse  to            emergency  situations in  a  prison  environment  necessarily            entails curtailment  of rights  and privileges of  the inmate            population."  La Batt v. Twomey, 513 F.2d 641, 648 (7th  Cir.                          _______    ______            1975).    In  assessing the  constitutionality  of conditions            imposed  in  response  to  an emergency,  courts  have  asked            whether the conditions were  "so unreasonable or excessive as            to  be  clearly  disproportionate  to   the  need  reasonably            perceived  by prison officials at the time."  Jones v. Mabry,                                                          _____    _____            723  F.2d  590, 596  (8th Cir.  1983).   A  "viable complaint            challenging  a post-emergency lockup must allege nothing less                           ______________                                         -10-            than the continued deprivation  of basic rights or  needs for            an   unreasonable  length   of  time,   maliciously,  through            excessive   neglect,  or   arbitrarily  (e.g.,   without  any            justification   of  practical  necessity  related  to  prison            security)."   Hoitt  v. Vitek,  497 F.2d  598, 602  (1st Cir.                          _____     _____            1974) (emphasis added).                 Contextual  scrutiny  exposes the  frailty  of Cookish's            claim.   He did  not contend  that exposure  to the cold  and            deprivation of hygienic amenities were standard conditions of            his incarceration.   These privations  existed, by  Cookish's            account,  for no more than sixty hours, and they were imposed            in the wake  of a disturbance that  Cookish himself described            as  a   "riot"  in  which  his  fellow   inmates  had  caused            considerable damage to their permanent accommodations.                 In the  period following the riot,  the prison officials            whom Cookish accuses of cruel and unusual punishment were, of            necessity, faced with two pressing tasks.  First, they needed            to assure that the prisoners did not lapse into rebellion and            violate  the   peace  so  recently  regained.     Thus,  some            "curtailment of  rights and  privileges" was to  be expected,            and  was fully  justified.   Second, they  had to  repair the            damage the  prisoners had wreaked on  their regular quarters.            In the interim, of course, they would have had  no choice but            to  provide alternate housing.  It should come as no surprise            that the  jury-rigged shelter was less  comfortable than that                                         -11-            to which the prisoners were accustomed.  But the Constitution            does not  require states  to keep pristine,  commodious cells            ready  and  waiting to  house  inmates  who have  damaged  or            destroyed their primary lodgings.  Conditions on the old cell            block may well have been unpleasant, but, given the emergency            and  their short  duration, and  absent some  suggestion that            they were  imposed unnecessarily and intentionally,  they did            not amount  to  an "extreme  deprivation" and  they were  not            unconstitutional.                 Affirmed.                 ________                                         -12-
