

   
   
   
   U.S. v. Avila



IN THE CASE OF
UNITED STATES, Appellee
v.
Jose D. AVILA, Jr., Corporal
U.S. Marine Corps, Appellant
 
No. 99-0399
Crim. App. No. 97-0776
 
United States Court of Appeals for the Armed
Forces
Argued January 12, 2000
Decided June 9, 2000
 

EFFRON, J., delivered the opinion of the
Court, in which SULLIVAN and GIERKE, JJ., and COX, S.J., joined. CRAWFORD,
C.J., filed an opinion concurring in the result.

Counsel
For Appellant: Lieutenant
Michael A. Castelli, JAGC, USNR (argued); Lieutenant J.L. Eichenmuller,
JAGC, USNR (on brief).
For Appellee: Lieutenant Commander
Philip Sundel, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler,
USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Major
Troy D. Taylor,USMC.
Military Judge: Kenneth B. Martin
 
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, pursuant to his pleas, of one
specification each of conspiracy to possess and import marijuana; wrongful
possession of 60.5 pounds of marijuana with intent to distribute; and importation
of 60.5 pounds of marijuana, in violation of Articles 81 and 112a, Uniform
Code of Military Justice, 10 USC §§ 881 and 912a, respectively.
He was sentenced to a dishonorable discharge, confinement for 13 years,
total forfeitures, and reduction to pay grade E-1. The convening authority
approved the sentence but, in accordance with a pretrial agreement, suspended
confinement in excess of 10 years. The Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
We granted review of the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED
THAT THE CAMP PENDLETON BRIG'S ARBITRARY AND CAPRICIOUS IMPOSITION OF 441
DAYS OF MAXIMUM CUSTODY SOLITARY CONFINEMENT DID NOT VIOLATE THE EIGHTH
AMENDMENT AND ARTICLE 55, UCMJ.

We affirm for the reasons set forth below.

I. BACKGROUND
On May 18, 1996, U.S. Customs agents discovered
more than 60 pounds of marijuana in a car occupied by appellant and his
cousin's husband (R.29) at the border between Mexico and the United States.
Appellant was arrested and placed in pretrial confinement at the Camp Pendleton
Brig on May 24, 1996. He was put in Special Quarters, maximum custody,
and remained there until his sentencing on October 11, 1996, for a total
of 140 days of pretrial confinement. Appellant did not challenge the conditions
of his pretrial confinement at trial. He pleaded guilty and was returned
to the brig for another 281 days, until he was transported to Fort Leavenworth
on July 21, 1997, to serve his approved sentence. In terms of both pre-trial
and post-trial confinement, appellant spent 421 days in maximum custody
at the Camp Pendleton Brig. His post-trial submissions to the convening
authority did not raise any objection to the conditions of his confinement.
In support of his request for clemency, he simply noted that "I have spent
the last 10 months in solitary confinement at the brig thinking about what
I did."
Appellant first challenged the conditions of
pretrial and post-trial confinement in his appeal to the Court of Criminal
Appeals. In affidavits submitted to that court, appellant complained that
he had been housed in a windowless cell; could not communicate with other
inmates; was only allowed one hour of recreation per day, five days per
week; had to wear handcuffs and shackles when escorted outside his cell;
and had to remain behind a Plexiglas partition when receiving visitors.
Appellant also claimed that the brig counselor denied his request to be
housed with the general population. The Government did not dispute the
conditions of appellants confinement, but, via an affidavit from a brig
official, denied that appellant ever questioned his custody status or housing
assignment.
The court below awarded appellant 140 days
of additional administrative credit for his pretrial confinement on the
ground that the Camp Pendleton Brig had an "unreasonable" policy of assigning
detainees who faced potential confinement of more than 5 years to maximum
custody segregation, a policy which was inconsistent with the "individualized
assessment" required by Article 13, UCMJ, 10 USC § 813. Unpub. op.
at 7. The court rejected appellants request for further relief based upon
his claim that the pretrial and post-trial confinement constituted cruel
and unusual punishment in violation of the Eighth Amendment. Id.
at 7.

II. DISCUSSION
We agree with the court below. Appellant has
not demonstrated that the conditions of his confinement amounted to cruel
and unusual punishment.1
A servicemember is entitled, both by statute
and the Eighth Amendment, to protection against cruel and unusual punishment.
See United States v. Matthews, 16 MJ 354, 368 (CMA 1983);
Art. 55, UCMJ, 10 USC § 855. In general, we have applied the Supreme
Courts interpretation of the Eighth Amendment to claims raised under Article
55, except in circumstances where we have discerned a legislative intent
to provide greater protections under the statute. See United
States v. Wappler, 2 USCMA 393, 396, 9 CMR 23, 26 (1953). The present
case does not involve a claim that the conditions of confinement warrant
a wider degree of protection under Article 55 than the protections applicable
to civilians under the Cruel and Unusual Punishment Clause of the Eighth
Amendment.
The Supreme Court has held that "[t]he Constitution
does not mandate comfortable prisons, but neither does it permit inhumane
ones." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)(quoting Rhodes v. Chapman, 452 U.S. 337, 349,
101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). In order to find a violation of
the Eighth Amendment, two requirements must be met:

First, the deprivation alleged must be, objectively,
"sufficiently serious"; a prison officials act or omission must result
in the denial of "the minimal civilized measure of lifes necessities."
. . . The second requirement follows from the principle that "only the
unnecessary and wanton infliction of pain implicates the Eighth Amendment."
To violate the Cruel and Unusual Punishments Clause, a prison official
must have a "sufficiently culpable state of mind." In prison-conditions
cases, that state of mind is one of "deliberate indifference" to inmate
health or safety[.]

511 U.S. at 834 (citations omitted).
Conditions the Supreme Court has found to violate
the Eighth Amendment include the deprivation of medical treatment and "deliberate
indifference to serious medical needs," Estelle v. Gamble, 429 U.S.
97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); the use of excessive force
against inmates, Hudson v. McMillian, 503 U.S. 1, 4, 112 S.Ct. 995,
117 L.Ed.2d 156 (1992); and the failure to provide sufficient food, sanitary
housing, and safety from beatings or torture by other inmates or guards,
Hutto v. Finney, 437 U.S. 678, 687, 98 S.Ct. 2565, 57 L.Ed.2d 522
(1978)(citing with approval the district courts findings on cruel and
unusual punishment in Finney v. Hutto, 410 F.Supp. 251 (ED Ark.
1976)). This case does not involve similar treatment.
Solitary confinement, per se,
has not been held to violate the Cruel and Unusual Punishment Clause.2
Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971), cert.
denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and 405 U.S.
978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972). Federal civilian courts have
reviewed the specific conditions of solitary confinement to determine whether
the confinement involved deprivation of basic needs or unnecessary infliction
of pain. See Hutto, supra at 686-87. They have held
that routine conditions associated with punitive or administrative segregation
do not rise to the level of a deprivation of lifes necessities and violation
of the Eighth Amendment. These conditions include restrictions or prohibitions
on the opportunity to talk to other prisoners, exercise outside a cell,
visitation privileges, telephone privileges, meal choices, and reading
material. See, e.g., OBrien v. Moriarty, 489 F.2d
941 (1st Cir. 1974); Sostre, 442 F.2d at 192, Gibson
v. Lynch, 652 F.2d 348 (3d Cir. 1982), cert. denied, 462 U.S.
1137 (1983); Sweet v. South Carolina Dept. of Corrections, 529 F.2d
854 (4th Cir. 1975); Holloway v. Gunnell, 685 F.2d 150
(5th Cir. 1982); Meriwether v. Faulkner, 821 F.2d 408
(7th Cir. 1987), cert. denied, 484 U.S. 935, 108
S.Ct. 311, 98 L.Ed.2d 26 (1987); Ramos v. Lamm, 639 F.2d 559 (10th
Cir. 1980), cert. denied, 450 U.S. 1041, 101 S.Ct.1759, 68
L.Ed.2d 239 (1981); Bass v. Perrin, 170 F.3d 1312 (11th
Cir. 1999). The courts have also rejected the contention that deprivation
of human contact, including the harmful effect it may potentially have
on a prisoners mental health, violates the Eighth Amendment. See
Jackson v. Meachum, 699 F.2d 578 (1st Cir. 1983); Sostre
v. McGinnis and Sweet v. South Carolina Dept. of Corrections,
both supra. Furthermore, the length of a prisoners stay in segregation
does not, by itself, constitute cruel and unusual punishment, but is simply
a factor to be considered along with the other aspects of confinement.
Hutto, 437 U.S. at 686.
Appellant has not demonstrated that the conditions
of his confinement were more adverse than those faced by civilian prisoners
whose claims of cruel and unusual punishment have been rejected by other
courts. Appellant contends, however, that because he did not fit any of
the criteria for pretrial or post-trial maximum-custody confinement set
forth in the applicable Navy regulation, ¶¶ 4202, 4205, Secretary
of the Navy Instruction 1640.9B (Dec. 2, 1996), his placement in more restrictive
confinement, by itself, constitutes cruel and unusual punishment. The fact
that regulations were not followed does not demonstrate a "sufficiently
serious" deprivation under the Eighth Amendment. As we have indicated in
the Article 13 context, noncompliance with regulations may be evidence
supporting a claim, but is not determinative of the issue of punishment.
See United States v. McCarthy, 47 MJ 162 (1997). In the present
case, noncompliance with the assignment regulation, without more, does
not demonstrate that the actual conditions of his confinement rose to the
level of cruel and unusual punishment under Article 55 or the Eighth Amendment.

III. DECISION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 Under our precedents,
a person requesting relief on the ground of cruel and unusual punishment
must demonstrate exhaustion of administrative remedies prior to seeking
judicial intervention. See United States v. Coffey, 38 MJ
290 (1983). In the present case, the Government disputes appellant's factual
assertion that he made a complaint to prison officials, and the Government
also disagrees with appellant's position that such action, if taken, fulfilled
the exhaustion requirement. We need not resolve these matters in view of
our conclusion that appellant has not demonstrated that his allegations,
if true, constituted cruel and unusual punishment.
2
Appellant in his brief and letter to the convening authority described
his circumstances as solitary confinement. The Government, brig officials,
and brig regulations referred to appellants confinement status as maximum
custody confinement or segregation. The cases cited in this section do
not refer to confinement outside the general population of inmates as "solitary
confinement," but as "punitive segregation" or "administrative segregation."
None of these cases, appellants
included, involved actual conditions of complete deprivation of human contact,
as a popular understanding of the phrase "solitary confinement" might suggest.


CRAWFORD, Chief Judge (concurring in the result):
Appellant is entitled to no relief. He neither
exhausted his administrative remedies to complain of his allegedly onerous
confinement conditions, nor sought judicial relief at his court-martial.
Accordingly, he waived the issue. See United States v. Miller,
46 MJ 248, 250 (1997)(appellant must show he exhausted either the prisoner-grievance
procedure or Article 138, UCMJ, 10 USC § 938, remedies, or unusual
circumstances exist justifying failure to pursue and exhaust); United
States v. Huffman, 40 MJ 225 (CMA 1994)(Crawford and Gierke, JJ., dissenting
in part and concurring in the result)(failure to raise pretrial punishment
at trial generally waives the matter); United States v. Coffey,
38 MJ 290, 291 (CMA 1993)(a prisoner seeking judicial intervention to resolve
a cruel and unusual punishment claim must first exhaust available administrative
relief). Accordingly, I join in the decision to affirm the Court of Criminal
Appeals.

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