LDFA-13_3989.pdf

    NO. 85-  6 6 6 6 6 6  

IN THE

SUrUEMK COURT OF 'THE TINTTF.O STATES

FALL TERM 1985

R i c h a r d  N i c o l l e t t l ,  C o m m i s s i o n e r  o f
C o r r e c t i o n  o f  t h e  S t a t e  o f  R e s e r v e ,  ejt a l

P e t i t i o n e r ,

V .

D a n i e l  C r a n s t o n

R e s p o n d e n t ,

ON WRIT OF CERTIOR/.RI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTEENTH CIRCUIT

BRIEF FOR THi: PETITIONER

C r a i g  S . J o n e s  
L i s a  A.  J o n e s
Counsel for the Pcf.it Inner

"liE FRANK!. IN THOMAS BACKUS SCMOOi, OF LAW 
CASE WESTERN RESERVE UNIVERSITY 

CLEVEI.AND, OHIO 4A106



QUESTIONS PRESENTED
I. Whether Petitioner punished the Respondent during 

detention before trial and wrongfully deprived Respon­
dent of his liberty without due process of law in 
violation of the fifth amendment of the constitution.

II. Whether the disciplinary use of water hoses on Respon­
dent constituted cruel and unusual punishment in viola­
tion of the eighth amendment of the constitution.

TABLE OF CONTENTS
PageQuestions Presented ...................................  i

Table of Authorities ................................... H i
Jurisdiction........................................... 1

Statutes Involved...................................... 2
Statement of the Case.................................. 2
Summary of the Argument................................ 5

Argument............................................... 6

I. PETITIONER RICHARD NICOLETTI DID NOT WRONGFULLY 
DEPRIVE RESPONDANT DANIEL CRANSTON OF HIS LIBERTY 
WITHOUT DUE PROCESS OF LAW IN VIOLATION OF THE 
FIFTH AMENDMENT OF THE CONSTITUTION................. 6

A. The conditions that the Respondent was sub­
ject to during his detention at the MDF were 
not punishment because there was no intent
to punish on the part of the petitioner......... 7

B. The conditions experienced by the Respondent
during his detention were not the result of

i



punishment. The conditions complained of 
were incidental to the legitimate government
purpose of effectively managing the MDF........  H

II. THE DISCIPLINARY USE OF WATER HOSES ON THE RESPON- .
DENT DID NOT CONSTITUTE CRUEL AND UNUSUAL PUNISH­
MENT IN VIOLATION OF THE EIGHTH AMENDMENT OF
THE CONSTITUTION................................... I3

A. The nonexcessive use of water hoses as a 
disciplinary measure for Respondent's gross 
misconduct was neither wanton nor unnecessary.. 14

B. The punitive measures by the prison offi­
cials were not contrary to the evolving 
standards of decency prevailent today.......... 17

C. The disciplinary measure taken by the prison 
officials was within their authority and 
discretion to maintain present and future
order in the prison............................I9

Conclusion.............................................. 21
Appendix A .............................................. A-1
Appendix B.............................................. A-2
Appendix C......... ....................................A-3
Appendix D............................................. A-4

ii



TABLE OF AUTHORITIES
Case Pages
Bell V. Wolfish,
441 U.S. 520 (1979)................................... 7,11,

12
Block V. Rutherford,
104 S.CT. 3227 (1984)................................. 13
Estelle V. Gamble,
429 U.S. 97 (1976) ....................................1^,18
Gregg v. Georgia,
428 U.S. 153 (1976) ................................... 1^,15,

17,18Jordon v. Wolke,
615 F.2d 749 (1980) ................................... ^2

Kennedy v. Mendoza-Martinez,372 U.S. 144 (1963) ................................... 7,8,
11

Poindexter v. Woodson,
510 F.2d 464 (10th Cir. 1975) ......................... 16,19,

20
Rhodes v. Chapman,
452 U.S. 337 (1981) ...................................
Soto V. Dickey,
744 F.2d 1260 (7th Cir. 1984) ......................... I^,l6,

19Spain V. Procunier,
600 F.2d 189 (9th Cir. 1979) .......................... 17
Trop V. Dulles,
356 U.S. 86 (1958) .................................... 17
Wong Wing v. United States,
163 U.S. 228 (1896) ................................... 7

111



NO. S'}- 6 6 6 6 6 6  

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TALL TF.R>{ 1985

R i c h a r d  N i c o l e t t i ,  C o m m i s s i o n e r  o f  
C o r i r a c t i o n  o f  t h e  S t a t e  o f  R e s e r v e ,  e t  a l

P e t i t i o n e r ,

D a n i e l  C r a n s t o n ,

L e s p o n d c i u  .

ON WRIT OF CLKTURAin i o  T||(.;

UNITLD STATLS COURT OF Al’PLALS

FOR TUL FOURTFENTII CIRCUIT

BRIEF FOR THL PETITIONER 

OPINIONS

The o p i n i o n s  o f  t h e  U n i t e d  S t a t e s  D i s t r i c t  Cm. r t  f o r
t l ic  S t a t e  o f  R e s e r v e  nnd t h e  U n i t e d  S t a t e s
Court  o f  A p p e a l s  f o r  t h e  P o . n t e e t U h  C i r c u i t  h a v e  not
y e t  beon  r e p o r t e d .  r :opi , . s  o f  t h o s e  o p i n i o n s  a p p e a r  in
t h e  I r a n s c r i p t  o f  t h e  Record  a t  ( R . l )  and ( R. 1 1  ) r e s p e c  I i v e 1v

TURlSDfCTION

( O m i t t e d  by I’e n n i s s  i on  . )



STATUTES INVOLVED
Relevent portions of the Civil Rights Act, 42 U.S.C. ^ 

1983, Federal Rule of Civil Procedure 52(a) and the fifth and 
eighth amendments of the United States Constitution are set 
forth in the Appendices.

STATEMENT OF THE CASE
Respondent Daniel Cranston, was indicted by a grand jury 

in the county of union for possession of narcotics in October 
of 1982. (R.l). The presiding judge refused to set bail at
the arraingment. (R.l). Respondent was subsequently sent to 
the Metropolitan Detention Facility (MDF), a short term deten­
tion center operated by the state in Value City, pending his 
trial. (R.l). When the Respondent arrived, MDF housed appro­
ximately one hundred and forty detainees in a facility design­
ed for seventy persons. (R-2). The overcrowded conditions in 
MDF were made known to the Commissioner of Corrections for the 
State of Reserve. (R.2).

At approximately 11:00 a.m. on his second day at MDF, 
Respondent had an alleged altercation with his cellmates. 
(R.2). Respondent failed to report the alleged incident to 
the prison authorities until 5:00 that evening. (R.2). Respo­
ndent subsequently reported two other physical altercations 
with inmates and requested a cell change each time, and these 
requests were denied. (R.3,4). All reports were dutifully 
recorded in the warden's daily log. (R.3,4). Respondant spent 
a total of two months at MDF until his case went to trial. 
(R.4).



Respondant was convicted of narcotics possession and sent 
to Swenson State Prison to fulfill a five year sentence. 
(R.4). Many of the inmates at Swenson are serving five to
twenty years for various drug related and violent crimes. 
(R.4).

On January 20, 1983 Respondent entertained his first 
visitor since commencing his prison sentence. (R.4). Visitors 
are allowed to bring food to prisoners, but prison safety 
precautions require the consumption of the food in the visit­
ing area. (R.5). No food may be brought back to the cell 
area. (R.5). During the visiting period. Respondent received 
a tin can full of brownies. (R.5). At the end of the visit, 
however. Respondent began to leave the visiting area with the 
tin can of brownies. (R.5). This was a clear violation of the 
prison procedure. (R.5). One of the guards on duty in the 
visiting area explained the prison procedure to Respondent and 
asked him to return the tin can to his visitor. (R.5). The 
Respondent refused the guard's request and raised the tin can 
as if to strike the guard. (R.5). Respondent was subdued by 
another guard in the visiting area and forced to drop the tin 
can. (R.5). Thereafter, Respondent was led back to his cell 
in handcuffs. (R.5).

In an effort to subdue and discipline Respondent further 
the two guards involved in the visiting room incident and the 
prison warden appeared at the Respondent's cell immediately 
thereafter. (R.5). Respondent was instructed to stand at the 
back of the cell. (R.5). The two guards then proceeded to

3



spray Respondent with water from a hose. (R.5). This incident 
lasted approximately ten minutes. (R.6).

After a few minutes the prison physician appeared at 
Respondent's cell. (R.6). The physician treated Respondent 
for bruises and a cut on his forehead. (R.6).

Respondent brought this action against the Commissioner 
of Correction for the State of Reserve under 42 U.S.C. s 1983 
for the alleged violations of the due process clause of the 
fifth amendment and the cruel and unusual punishment clause of 
the eighth amendment of the Constitution in the District Court 
of Reserve. (R.6). After careful consideration the District 
Court found no violations of either Amendment of the Constitu­
tion. The district judge first noted that pre-trial detention 
conditions which were reasonably related to the states legiti­
mate governmental objective did not constitute punishment. 
(R.8). In addition, the court concluded that the measures 
taken by the prison authorities were not contrary to contempo­
rary standards of decency. (R.IO). The Court of Appeals for 
the Fourteenth Circuit reversed the district court's decision 
as to both issues. (R.14). The Commissioner of Corrections 
appealed to the United States Supreme Court which granted 
certiorari.



SUMMARY OF THE ARGUMENT
I. Petitioner, Richard Nicolleti did not wrongfully deprive 
Respondent Daniel Cranston of his liberty without due process 
under the Fifth Amendment. The Respondent failed to show that 
he was intentionally punished by the Petitioner or that the 
Petitioner and the detention facility officials abused their 
discretion in subjecting the Respondent to the conditions of 
the facility.

Because the Respondent failed to show that the Petitioner 
of the facility officials knew that the Respondent would 
suffer injuries resulting from being assigned to his cell at 
the facility, it cannot be held that the Respondent was 
punished by the Petitioner. The act of not complying with 
Respondent's demand for a transfer to a new cell cannot be 
held as punishment since the decision not to transfer was 
within the facility's lawful discretion.
II. The nonexcessive, disciplinary use of water hoses on 
Respondent by Petitioner was not cruel and unusual punishment 
as proscribed by the eighth amendment. The Respondent failed 
to show that such measures as applied to him were wanton or 
unnecessary or without any penological purposes. Nor has 
Respondent produced any evidence that the disciplining of 
highly dangerous prison inmates in such a manner was contrary 
to the evolving standards of decency of the society. In 
addition, in its efforts to effectively manage and discipline 
dangerous prison populations the prison authorities did not 
indiscriminately overextend their deference of developing and

5



applying proper disciplinary measures to control unruly and 
dangerous prisoners.

ARGUMENT
I. PETITIONER RICHARD NICOLETTI DID NOT WRONGFULLY DEPRIVE 

RESPONDANT DANIEL CRANSTON OF HIS LIBERTY WITHOUT DUE 
PROCESS OF LAW IN VIOLATION OF THE FIFTH AMENDMENT OF 
THE CONSTITUTION.
The Petitioner cannot be held liable for violating the 

Respondent's due process rights under the Fifth Amendment 
because the Petitioner did not punish the Respondent during 
his detention at the Metropolitan Detention Facility (MDF).
The Respondent claims that he was wrongfully punished during 
his detention at MDF, and further asserts that the Petitioner 
should be held liable, since this court has held that to 
punish a detainee prior to an adjudication of guilt is a 
violation of that detainee's due process rights under the 
Fifth Amendment.

Although the Respondent correctly states the holding of 
this court, he has failed to correctly apply the standards set 
forth by the court, to the circumstances of the case at bar. 
In particular the Respondent failed to show that assignment to 
the MDF was intentional punnishment inflicted on him by the 
Petitioner. Also, the Respondent has not shown that the
conditions and discomforts that he was subjected to were
punnishment. Finally, the Respondent failed to show that the 
decisions made by MDF concerning the treatment of the
Respondent, were not decisions relating to the fulfillment of

6



necessarly guarantee that the Respondent would not suffer the 
same abuse from different detainees due to his inherent "ob- 
stinance'' . (R.3). The MDF officials' responsibility was to 
insure that the Respondent appear for trial. The officials 
had a duty not to inflict punnishment upon the Respondent 
during his detention. The unfortunate physical injuries suf­
fered by the Respondent were incidental to detention at the 
facility pending his trial. The officials at MDF used their 
discretion not to disrupt its operation by exposing this 
particular Respondent to other Detainees due to Respondent's 
"obstinate" character. "Proper deference to the informed 
discretion of prison authorities demands that they, and not 
the courts, make the difficult judgments which reconcile con­
flicting claims affecting the security of the institution.
441 U.S. at 557; Block v. Rutherford, 104 S.CT. 3227, 3235 
(1984) .

Because the act of not transferring the Respondent was 
reasonably related to effective management of the facility, 
the act cannot be found to be punishment.

II. THE DISCIPLINARY USE OF WATER HOSES ON THE RESPONDENT 
DID NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN 
VIOLATION OF THE EIGHTH AMENDMENT OF THE CONSTITUTION.
The use of water hoses on the Respondent by the prison 

officials constituted a disciplinary measure necessitated by 
the Respondent's refusal to abide by a prison regulation and 
attempted assault on a prison guard. Such disciplinary ac­
tions by prison authorities were not cruel and unusual punish-

13



ment in violation of the inmate's eighth amendment rights 
since they were not wanton and unnecessary inflictions of * 
pain, contrary to the evolving standards of decency of this 
maturing society and were within the scope of the prison 
officials discretionary powers to discipline dangerous in­
mates .

A. The nonexcessive use of water hoses as a disciplin­
ary measure for Respondent's gross misconduct was 
neither wanton nor unnecessary.

The spraying of Respondent by the Swenson state prison 
authorities was neither wanton nor unnecessary. In determin­
ing the standard by which violations of the cruel and unusual 
punishment clause are to be judged this Court has established 
that punishment inflicted on convicted criminals must not 
involve the "unnecessary and wanton infliction of pain".
Gregg v. Georgia, 428 U.S. 153, 173 (1976). Such wanton 
and unnecessary infliction of pain includes those which are 
without any penological purpose. 428 U.S. at 173. In that 
case, the Court did not find the death penalty, per se, an 
unnecessary and wanton infliction of pain. Estelle v.
Gamble, 429 U.S. 97 (1976), established that only a deliber­
ate indifference to serious medical needs of prison guards ex­
ceeded the Gregg's cruel and unusual punishment standard. 
Applying the standard enunciated in Gregg, this Court has 
held that the double celling of prison inmates in Ohio did not 
inflict unnecessary and wanton pain. Rhodes v. Chapman,
452 U.S. 337 (1981). Finally, in Soto v. Dickey, 744 F.2d

Ik



1260, 1269 (1984), the seventh circuit held that the use 
of mace and other "chemical agents" by prison officials 
as disciplinary measures for an inmate's refusal to obey 
and follow prison procedure was not wanton or unnecessary 
"even if the inmate is locked in his cell or is in handcuffs" 
when the punishment was inflicted. In this case, the spraying 
of water on Respondent by the prison officials was a penal 
consequence to Respondent's visiting room rampage. That 
Respondent knew of the prison's visting room policy is 
exemplified by his acceptence of only those items brought 
to the visiting room not restricted by the prison. (R.5). 
Respondent ended his visit by attempting to take his food 
back to his cell, in clear violation of prison policy. (R.5). 
After being reminded of the policy Respondent still refused 
to obey it. (R.5). Respondent then attempted to assault 
the prison gruard but was subdued through the expedient 
intervention of another guard ending the incident without 
harm to anyone. (R.5). The prison authorities' conduct, 
therefore, served the legitimate purpose of deterring 
Respondent from further flagarent violations of prison policy 
and violent behavior toward prison officials. As such, 
the spraying of water on Respondent was necessary since 
it served a disciplinary purpose as expressly permitted 
by Gregg.

Nor were the measures taken by the prison authorities 
wanton. They were not arbitrarily nor mistakenly applied
to the Respondent. Respondent was simply disciplined for 
his dangerous and disruptive conduct in the visiting room.

15



Additionally, under Soto, 7A4 F.2d at 1260, it makes no 
difference that the Respondent was placed in a defenseless 
position in his cell during the discipline. Any disciplinary 
measure undertaken by prison authorities, by definition, 
would not be effective if the inmate could escape his wrath. 
Thus, it cannot be said that punitive actions taken by prison 
officials were wanton and unncessary merely because the 
inmate was defenseless. The measure5 taken by the prison 
officials were not wanton and unnecessary inflictions of 
pain.

In lieu of the wanton and unnecessary standard, the 
courts have held that disciplinary measures motivated by 
malice on the part of prison officials were cruel and unusual. 
In Poindexter v. Woodson, 510 F.2d 464 (10th Cir. 1975), 
the court upheld the use of fire hoses as a prison control 
method on innocent bystanders to a prison disruption, provided 
such methods were not maliciously inflicted on the inmates. 
The circumstances prevailing at the time and the events 
which transpired shortly before the incident are the factors 
which the courts must defer to in determining the motivation 
of prison officials. Poindexter at 466. Applying this stand­
ard to the case at issue there is no evidence that the control 
methods undertaken by the prison officials were maliciously 
motivated. Immediately prior to the actions taken by the 
officials Respondent exhibited serious and gross misconduct. 
Although the Respondent was subdued and safely in his cell 
at the time the disciplinary measures were taken, the use 
of such methods by the officials at that time was reasonable.

16



Approximately thirty minutes elapsed before the officials 
approached Respondent's cell. (R.5). It could be inferred 
that the officials utilized this time formulating an appro-f
priate punishment to be taken. There is no evidence that 
the officials were motivated by a personal vendetta against 
this particular Inmate. Thus, the measures taken by the 
officials were not maliciously motivated.

B. The punitive measures by the prison officials were 
not contrary to the evolving standards of decency 
prevailent today.

The use of water hoses on Respondent as a disciplinary 
measure was not contrary to the evolving standards of decency 
prevailent today. Trop v. Dulles, 356 U.S. 86, 101 (1958) 
established the test for determining whether disciplinary 
measures by prison officials or institutional prison 
procedures constituted punishment that was cruel and unusual 
as "the evolving standards of decency that mark the progress 
of a maturing society". In that case, this Court held that 
the divestiture of nationality of a convicted army deserter 
was a punishment contrary to the evolving standards of decency 
in that it "strips the citizen of his status in the national 
and international community." 356 U.S. at 101. In Gregg,
the Court required that such evolving standards of decency 
be assessed through objective indicia that reflect the public 
attitude toward the given sanction. 428 U.S. at 173. In 
Spain V. Procunier, 600 F.2d 189, 196 (9th Cir. 1979) the 
court held that the nonexcessive use of tear gas as a 
deterrent to future disruption by prison inmates did not 
violate the evolving standards of a decent society.

17



As the district court correctly pointed out, the respondent 
did not produce any objective indicia that the punishments 
used here were, per se or as applied, contrary to standards 
of decency. (R.9). If anything, the standards of decency
of this society would dictate that reasonable and effective 
punishment is necessary to control disorderly and dangerous 
prisoners.

Nor has the court of Appeals offered any objective
basis for their determination that the conduct by the prison 
officials were contrary to the standards of decency in the 
society. (R.14). Under the authority of Gregg the Court
of Appeals cannot make that determination based on their
own subjective feelings of what is right or wrong.

There is, in addition, no evidence that the punishment 
exercised by the prison officials was excessive. The incident 
lasted for a few minutes and the injiries sustained by the 
Respondent were not extensive in the least bit.

In Estelle, 429 U.S. at 106, the Court established
that only harm resulting from the deliberate indifference 
to serious medical needs offends the evolving standards 
of decency. Mere negligence or medical malpractice is not 
a violation of the eighth amendment. 429 U.S. AT 106. In 
that case, the prison guards refused to allow the inmate 
to be examined by a doctor for two days, despite the doctor's 
diagnosis that the inmate suffered from severe back pains 
and irregular cardiac rhythms. 429 U.S. at 99. In this 
case the prison physician attended to the Respondent within 
a few minutes of the incident and properly treated the inmate.

18



The thirty minutes in which it took the guards to notify 
the doctor and then for the doctor to cease what he was 
doing in order to attend to the Respondent is not unreasonable 
in light of the superficiality of Respondent's wounds. The 
thirty minute delay in treating the Respondent was not 
indicative of any deliberate indifference to Respondent's 
medical needs. Thus, there is no evidence that the measures 
taken by the officials were contrary to the evolving standards 
of decency marked by a maturing society.

C. The disciplinary measure taken by the prison 
officials

was within their authority and discretion to maintain 
present and future order in the prison.

Prison authorities must be afforded discretion to estab­
lish methods of maintaining order in prison facilities. In 
Poindexter the court recognized the importance of the prison 
authorities' discretion to develop means in which to 
discipline inmates when it upheld the use of fire hoses 
as control measures. The test established by Poindexter 
for determining the scope of prison officials discretion 
is whether the authorities had a reasonable ground and a 
good faith belief that the discipline was necessary and 
the measures were warranted under the "circumstances as they 
appeared at the time". 510 F.2d at 466. In Soto, 744 F.2d 
at 1260, the court also deferred to prison officials' proce­
dures for disciplining inmates provided that the measures 
were not malicious or excessive. In this case, the prison

19



authorities were faced with the difficult dilemma of determing the 
consequences of the Respondent's outrageous behavior just 
minutes before. Under the circumstances at that time the 
prison officials had reasonable grounds for disciplining Respondent. 
Respondent clearly violated a known prison procedure and 
attempted to strike a guard. To further the unenviable task 
of maintaining prison order in the present and the future the 
officials deemed it necessary to ensure, as best as possible, that 
the Respondent would not act in a disorderly manner again.

The prison officials, in addition, acted on the good 
faith belief that some discipline would be necessary and 
effective, at that time, to deter Respondent from future 
misconduct. It is unreasonable to suggest that such a time 
lag adversely effectci.the goal of deterrence. Respondent could 
not have forgotten the incident which ended his first visit in 
the prison within a mere thirty minutes. Assuming, however, 
that he had forgotten that quickly, the presence of the two 
guards, who were directly involved in the altercation during 
the disciplining, served as notice to the Respondent that he

twas being disciplined for his gross misconduct minutes before.
The measures taken by the officials must be recognized as 
legitimate, particularly in contrast to Poindexter which 
upheld state disciplinaryy measures on innocent bystanders.
In this case, the measures were directed at an inmate for his 
knowing violation of prison procedure and violent behavior

20



towards the prison guards. Respondent was not ''innocent" by 
any meaning of the word. Provided that the state's policy of 
disciplining disorderly inmates is not malicious or excessive 
the measures taken in this instance must, at least, be 
considered as legitimate as those measures which are inflicted 
on innocent bystanders. The actions taken by the prison 
guards were fully within there discretion as a means for 
punishing Respondent's gross wrong doing. Thus, such discipl­
inary measures were legitimate state functions wholly within 
their constitutional powers.

CONCLUSION

For the reasons set forth above, the Petitioner repect- 
fully requests that the judgment of the Court of Appeals for 
the Fourteenth Circuit be overruled and the decision of the 
District Court for the State of Reserve be reinstated.

Respectfully Submitted,

Craig S. Jones
Lisa A. Jones
Counsels for Petitioner

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