Opinion
Civil Action No. 02-3218 (JBS).
July 29, 2004
Lisa J. Rodriguez, Esq., TRUJILLO, RODRIGUEZ RICHARDS, LLP, Haddonfield, NJ, for Plaintiffs.
Christopher J. Christie, United States Attorney, By: Paul A. Blaine, Assistant U.S. Attorney, Camden Federal Building and U.S. Courthouse, Camden, NJ, for Defendants.
OPINION
This matter comes before the Court on Defendants' motion for summary judgment. Plaintiffs, Robert North and Jesse Carter, bring this action alleging that their Eighth Amendment right to be free from cruel and unusual punishment has been and is being violated during their terms of confinement at the Federal Correctional Institution in Fairton, New Jersey, as a result of a temporary condition of triple bunking in certain cell units. For the reasons discussed herein, Defendants' motion will be granted.
BACKGROUND
The Parties
Plaintiff Robert North, now a former inmate who was previously confined at the Federal Correctional Institution at Fairton, New Jersey ("FCI Fairton"), and Plaintiff Jesse Carter, an inmate still confined there, commenced this action with the filing of their complaint on July 26, 2002. Named as defendants in the action are FCI Fairton, the institution's former Warden, Kim White, and the United States Department of Justice, Federal Bureau of Prisons ("BOP"). Plaintiffs allege that they are being or have been subjected to cruel and unusual conditions of confinement in violation of the Eighth Amendment, resulting from triple-bunking in the Special Housing Unit ("SHU") at FCI Fairton, and in some of the general population housing units. They also challenge certain additional conditions in the SHU on Eighth Amendment grounds, having to do with the presence of opaque window coverings, the lack of radios in the cells, and the alleged requirement that inmates spend 18 clear-conduct months in the SHU before they can be transferred, at their request, to another institution. Plaintiffs bring this action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), seeking injunctive relief and awards of monetary damages, both compensatory and punitive, against all of the named defendants. (Second Amended Complaint, ¶¶ 1, 5, 23-31).
The Court previously appointed counsel for Plaintiff North, and dismissed all plaintiffs' Fifth Amendment liberty interest claim. (See December 11, 2002 Order). Counsel entered her appearance on behalf of Plaintiff North on December 17, 2002. A second amended complaint was filed on April 4, 2003 on behalf of Plaintiffs Robert North and Jesse Carter, who were named as individual plaintiffs and proposed class representatives of a putative class. This second amended complaint dismissed The American Correctional Association and added FCI Fairton as a defendant. The BOP and former Warden White have been defendant parties since the action was commenced.
Robert North was assigned to FCI Fairton in January 2001. While there, North was held in the SHU for a total of 81 days on three separate occasions during the periods February 17, 2002 to March 4, 2002, June 15, 2002 to July 25, 2002 and December 17, 2002 to January 10, 2003. He was released from BOP custody on June 17, 2003, upon expiration of the custodial portion of his sentence. (Declaration of Roberta M. Truman, ¶ 3).
The BOP designated Jesse Carter to FCI Fairton in August 1997. He has remained in custody there since that time. On November 4, 1998, he was assigned to Housing Unit B, Cell 102. That cell is and always has been a double-bunked cell. Except for the two week period of August 31, 2001 to September 13, 2001, when Carter was held in the SHU, he has continuously resided in Cell 102 since being assigned to it. (Truman Decl. ¶¶ 4-5).
Procedural History
On July 26, 2002, Plaintiff Robert North filed a pro se Class Action Complaint, alleging civil rights violations arising from, inter alia, the overcrowding conditions at FCI Fairton. Mr. North filed a First Amended Complaint on September 11, 2002, in which he alleged that his rights, guaranteed to him by the Eighth Amendment of the United States Constitution were violated as a result of his confinement in overcrowded cells for extended periods of time, without adequate sunlight and no radios. North also alleged his rights, guaranteed by the Fifth Amendment of the United States Constitution, were violated by virtue of a prison policy requiring that administrative detention inmates remain in the SHU for 18 months before they could be returned to the general population.
The Honorable Stephen Orlofsky, to whom this case was originally assigned prior to his resignation, reviewed the First Amended Complaint, sua sponte, pursuant to 28 U.S.C. § 1915A to "determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief." (See December 11, 2002 Opinion). Following its review, the Court determined that Plaintiffs' Fifth Amendment claim should be dismissed without prejudice, but that Plaintiffs' Eighth Amendment "conditions of confinement claim [should] proceed past the screening stage." (December 11, 2002 Opinion, pp. 15-19). The Court also denied class certification on the grounds that North did not satisfy the adequacy requirement of Fed.R.Civ.P. 23 because he was not represented by counsel. (December 11, 2002 Opinion, p. 23).
The Court ordered the appointment of counsel and Lisa J. Rodriguez, Esq. was subsequently contacted by the Court, and entered her appearance as counsel for Mr. North on December 17, 2002. An initial scheduling conference was set for January 27, 2003, at which time Defendants had not yet entered their appearances. On April 4, 2003, Plaintiff North, through his counsel, filed a Second Amended Complaint, adding an additional named plaintiff, Jesse Carter, and alleging, on behalf of a class of similarly situated individuals, that their Eighth Amendment right to be free from cruel and unusual punishment was being violated by virtue of the overcrowding conditions present at FCI Fairton.
The Court is appreciative of Ms. Rodriguez's acceptance of the pro bono appointment in this case, as well as the work performed by her and the attorneys of her firm.
Summonses were issued that same day. FCI Fairton was served with a Summons and Second Amended Complaint on April 14, 2003. Plaintiffs state that they served Kim White, as warden of FCI Fairton, on April 14, 2003. The United States Department of Justice, Federal Bureau of Prisons was served on April 16, 2004. Defendants FCI Fairton and United States Department of Justice, Federal Bureau of Prisons filed an Answer on July 1, 2003, and Defendant Kim White filed an Answer to Plaintiffs' Second Amended Complaint on July 2, 2003.
Underlying Facts
FCI Fairton is a medium security federal prison. The American Correctional Association ("ACA") is the only national body involved in the development of standards for the correctional field. Through its Commission on Accreditation For Corrections, the ACA certifies that conditions at participating institutions are in compliance with ACA standards. To obtain a three year accreditation award, an institution must be in compliance with 100% of ACA mandatory standards and not less than 90% of ACA non-mandatory standards. (Def. Ex. B, pp. j-p).
FCI Fairton was awarded a three year accreditation by the ACA most recently on January 14, 2002, following a three day intensive re-accreditation survey conducted at the institution on August 20-22, 2001. The institution was found to be in 100% compliance with mandatory and 98.3% compliance with non-mandatory standards. Although the survey noted the existence of overcrowding due to the temporary influx of District of Columbia inmates, and the consequent triple-bunking of inmates in approximately one-third of the cells, distributed equally throughout the housing units, the ACA nevertheless reported favorably on the actual living conditions at the institution. (Def. Ex. B, at 2, 5).
General population inmates at Fairton are required to be in their cells for only seven (7) hours each weekday. One of those hours is consumed by the two half-hour counts conducted at 4:00 p.m. and 9:30 p.m. When not in their cells on weekdays, inmates are washing, eating, at work assignments, attending classes or rehabilitative programs, recreating, or otherwise using their free time in such manners as they choose that are consistent with the orderly running of the institution. (Declaration of Jean Wright, ¶ 6; FCI Fairton Inmate Information Handbook, at 7, 9-15, 19-22).
Conditions in the SHU, which is utilized for housing inmates for disciplinary, administrative and protective detention reasons, are considerably more restrictive. See 28 C.F.R. § 541.21(c). These restrictions include being given only five hours per week, on five separate days, one hour per day, for out-of cell exercise opportunities. Id., subsection (c)(6). The Warden is authorized to exceed cell occupancy designations in the SHU when there is a pressing need for that action, and the other basic living standards of subsection (c) can still be maintained.Id., subsection (c)(2).
The BOP has an administrative remedy procedure that permits an inmate to present a grievance or complaint about virtually any topic, for consideration and possible resolution by the agency. If the inmate is unsuccessful in having the matter satisfactorily addressed informally at the institution level, he or she may then pursue the matter through formal administrative channels starting with the institution's Warden. If dissatisfied with the Warden's response, the inmate may appeal to the BOP Regional Office and then to the Office of General Counsel at BOP headquarters. 28 C.F.R. § 542.10 et seq. (Truman Decl., ¶ 6).
DISCUSSION
Summary Judgment Standard of Review
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989),cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by 'showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
Service of Process
Defendants argue, first, that this case should be dismissed pursuant to Rule 4(m) because the BOP was not served with process in this action until almost nine months after its commencement. Federal Rule of Civil Procedure 4(m) requires a plaintiff to make proper service upon the defendants "within 120 days after the filing of the complaint." Where a plaintiff has failed to effectuate service properly, or in a timely manner, the court is without jurisdiction over the defendant and constitutionally powerless to proceed with any adjudication of the claims raised.Ayres v. Jacobs Crumplar, P.A., 99 F.3d 565, 568-69 (3d Cir. 1996); Lampe v. Xouth, Inc., 952 F.2d 697, 700-01 (3d Cir. 1992). Rule 4(m) allows a court to dismiss an action if the plaintiff fails to show good cause for the failure to serve the defendants with process. MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086 (3d Cir. 1995); Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1305-06 (3d Cir. 1995).
Here, Plaintiffs North and Carter filed their Complaint on July 26, 2002, naming the BOP and Warden White as defendants. Pursuant to Rule 4(m), proper service was to have been effected upon these two defendants no later than November 25, 2002. Proper service was not made by that date, and still has not been properly made at any time since then on Kim White in her personal capacity.
Service of process on the BOP is governed by Fed.R.Civ.P. 4(i)(2), which requires that the United States be served in accordance with Rule 4(i)(1) and that the BOP be served. Service of process on a federal official sued in her personal capacity for acts or omissions in connection with the performance of duties on behalf of the United States, is governed by Rule 4(i)(2)(B) which also requires that the United States be served in accordance with Rule 4(i)(1), and that the individual official be served in the manner required by Rule 4(e), (f) or (g).
Returns of service filed by North and Carter with the Clerk of Court show that service of process was made on the BOP well out of time, in mid-April 2003, and has yet to be properly effected on Kim White. Defendants thus contend that service was ineffective here and the action should be dismissed on that basis.
Moreover, service on an individual pursuant to Rule 4(e)(2) requires that the individual be personally served either at her dwelling, or by delivering the summons and complaint to an authorized agent. MCI Telecommunications Corp., 71 F.3d at 1097-98. Defendants argue that North and Carter effected neither type of service on Kim White in her personal capacity. The attempt to personally serve her at FCI Fairton on April 14, 2003, was ineffective because it occurred out of time without the Court's approval, and because process was delivered to someone other than Warden White, as demonstrated by the return of service filed with the Clerk of Court. The person to whom process was delivered, Assistant Warden Chris Naylor, was not authorized to accept service of process on the Warden's personal behalf.
Plaintiffs, however, argue that dismissal, based on this argument, is not in the interests of justice. Plaintiff Robert North filed his initial Complaint on July 26, 2002 and a First Amended Complaint on September 11, 2002. No Defendant, other than the American Correctional Association (which is no longer a defendant in this litigation), filed a responsive pleading. Former District Judge Orlofsky, by Order and Opinion dated December 11, 2002, sua sponte dismissed Plaintiff's Fifth Amendment Claims, denied class certification on the basis that Plaintiff North could not satisfy the adequacy of representation requirement of Rule 23(a)(4) without the assistance of counsel, and allowed the Eighth Amendment claims to proceed. Judge Orlofsky also ordered the appointment of pro bono counsel to represent North. (See December 11, 2002 Opinion and Order).
Plaintiffs argue that because it was expected that an Amended Complaint would be filed following counsel's entry of appearance once there had been an opportunity to fully investigate the claims and meet with the client, Judge Orlofsky's Opinion was an effective dismissal of the pro se Complaint. A Second Amended Complaint that was more narrowly tailored to the facts and that eliminated one of the previously named defendants was filed on April 4, 2003. Plaintiffs state that summonses were issued by the Court that same day and Defendants were served in a timely manner. Thus, Plaintiffs argue, dismissal pursuant to Fed.R.Civ.P. 4(m) is not warranted.
Defendants respond, however, that Judge Orlofsky's December 11, 2002 Order was not a dismissal of the original Complaint; nothing absolved Plaintiffs of the obligation to serve Defendants Kim White and the BOP within 120 days from the commencement of this lawsuit. This Court agrees with Defendants only with respect to Defendant Kim White. Even putting aside the issue of timing, to date, service of process has still not been properly effected on Kim White, for she was not personally served as the civil rules require, and Plaintiffs have offered no reasonable basis for failing to comply with the service requirements of Rule 4, even after the filing of the Second Amended Complaint. That is, Plaintiffs' counsel has demonstrated nothing to explain why Defendant White has never been served in a means compliant with Rules 4(i)(2)(B) and 4(e)(2). Therefore, Defendant Kim White will be dismissed from this action.
However, this Court will refrain from dismissing the remaining Defendants pursuant to Fed.R.Civ.P. 4(m). The lack of legal training on the part of the pro se Plaintiffs combined with Judge Orlofsky's Order, which may have been ambiguous, and the subsequent appointment of pro bono counsel resulted in a period of transition. The remaining Defendants were properly served, albeit outside the time frame in which service should have been effected. This Court will grant Plaintiffs the favorable inference that this period of transition was responsible for the untimely service and finds it in the interest of efficiency and judicial economy to permit Plaintiffs to continue with the prosecution of this matter against all remaining Defendants at this time. The Court will therefore evaluate Defendants' remaining arguments in their motion with respect to these Defendants. The Requirement of Legal Standing
A litigant must establish that he has standing to bring an action in federal court. Constitutional standing requires that the litigant himself be able to demonstrate that he has suffered, or imminently will suffer, an actual threatened harm that is real, specific and concrete. See Lewis v. Casey, 518 U.S. 343, 349-50 (1996) (citing Allen v. Wright, 468 U.S. 737, 750-52 (1984)). "The standing requirement implicit in Article III is not merely a troublesome hurdle to be overcome if possible so as to reach the 'merits' of a lawsuit, but an integral part of the governmental charter established by the Constitution."ACLU-NJ v. Township of Wall, 246 F.3d 258, 261 (3d Cir. 2001) (internal quotations omitted). If plaintiffs lack standing, the District Court is without subject matter jurisdiction to address the merits.
Plaintiff Carter argues that he has standing because (1) he spent approximately two weeks in a triple bunk cell in the SHU in August and September 2001, and three days in a triple bunk cell in October 2003, and (2) he is suffering on-going tension, anxiety and fear as a result of the alleged overcrowded conditions at FCI Fairton.
Plaintiff Carter's two short stays in a triple bunk cell in the past do not establish the standing necessary to pursue his prospective equitable claims. As the Supreme Court has noted, "'past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.'" City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quotingO'Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (emphasis added). Carter's brief past exposure to triple bunking simply does not afford him standing to seek prospective injunctive relief regarding triple bunking conditions at FCI Fairton.
Plaintiffs rely upon Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) to support their position of standing. That case, however, is inapposite to the present situation. As Plaintiffs concede,Hassine dealt with the issue of whether a class should have been certified under Fed.R.Civ.P. 23 — an issue this Court has not been called upon to address. Plaintiffs may not argue that their claim for prospective injunctive relief should not be dismissed because they represent a class. Indeed, the Supreme Court has made clear that "if none of the named plaintiffs purporting to represent a class established the requisite of a case or controversy with the defendants, none may seek relief of himself or any other member of the class." O'Shea, 414 U.S. at 494. Moreover, an inmate who has no "personal stake" of his own which requires vindication by the court, does not have standing to sue on behalf of his fellow prisoners. Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981).
Plaintiff Carter additionally claims, however, that he is suffering tension, anxiety and fear as a result of the alleged overcrowded conditions at FCI Fairton. The Supreme Court has admonished that a plaintiff's actual threat of injury must be "'real and immediate,' not 'conjectural' or 'hypothetical.'"Lyons, 461 U.S. at 102 (citations omitted). Carter's subjective feelings of fearing harm or stress and tension fail to afford him the requisite standing. As the Supreme Court noted, "[i]t is the reality of the threat of repeated injury that is relevant to the standing inquiry, not the plaintiff's subjective apprehensions."Id. at 107 n. 8. Thus, Plaintiff Carter's claims for equitable relief must be dismissed for his lack of standing to pursue those claims.
Similarly, Plaintiff North is unable to claim standing for injunctive relief. The Constitution requires that an actual live case of controversy must exist at every stage of the proceeding, not just at the time the action is commenced. See e.g., United States v. Kissinger, 309 F.3d 179, 180 (3d Cir. 2002). North, however, was released from BOP custody on June 17, 2003, upon the expiration of the custodial portion of his sentence. Thus, North is no longer subject to any of the conditions about which he complains in this action. Therefore, Plaintiff North's claim for injunctive relief is moot and must be dismissed. Plaintiff's claim for monetary damages will now undergo further scrutiny by this Court.
Exhaustion of Administrative Remedies
As Plaintiffs' claims challenge prison conditions, they are subject to the restrictions imposed by the Prison Litigation Reform Act's (" PLRA") mandatory exhaustion requirement. In enacting the PLRA in 1996, Congress amended 42 U.S.C. § 1997e(a) to expressly provide:
No action shall be brought with respect to prison conditions under section 1983, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.Id. Since the PLRA's enactment, it has been firmly established that an inmate's exhaustion of available administrative remedies is a mandatory statutory prerequisite to judicial review of any challenge to prison life. Booth v. Churner, 532 U.S. 731, 739 (2001); Porter v. Nussle, 534 U.S. 516, 532 (2000). Thus, regardless of the form of the judicial action brought by an inmate contesting the conditions of his confinement, he may not bring that action unless and until he has fully exhausted the available administrative remedies. In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court unanimously concluded that § 1997e(a)'s exhaustion of remedies requirement is a precondition to suit, which applies to all "prison conditions" suits brought by federal or state prisoners regardless of arguable distinctions between individualized, single occurrence claims, and any other claim based on prevailing conditions of confinement generally pertaining to institutional life. Id. at 530-31.
Defendants argue that Plaintiffs' challenges to any other prison condition besides triple-bunking must be dismissed. The only issue, Defendants contend, raised for full administrative consideration by either North or Carter, before commencing this action, was the discrete issue of triple-bunking. Neither of the Plaintiffs made the issues of radios in the SHU, opaque window coverings in the SHU, 18 months of clear conduct in the SHU before transfer at an inmate's request, or any other issue the subject of administrative exhaustion in any way other than North's formal grievance to prison officials: "Again I am in a 3man bunk status. This crowded ceiling causes anxiety, severe distress and tension; no radio, no visual stimuli, uncertainty. No more 3-man cell. I should not be here in SHU." (See Truman Decl., Ex. 1).
Plaintiffs contend that this phrase provided the prison with sufficient administrative notice of both of their claims regarding the prohibition of radios in the SHU, the window coverings in the SHU, and the amount of time required to be spent in the SHU prior to transfer to another prison. Plaintiffs argue that, in so doing, they substantially complied with the exhaustion requirements of 42 U.S.C. § 1997e(a).
However, bearing in mind the purpose of requiring administrative exhaustion — allowing the BOP a first opportunity to resolve problems without involving the courts and producing a clarifying record of the issue for any eventual court consideration — Plaintiffs' argument must fail. The administrative complaint filed by Mr. North regarding "no radio/no visual stimulation" in the SHU is too vague to put the prison on notice that he had distinct claims regarding these conditions. Rather, they appear to be factors resulting from the triple bunking in the SHU. Plaintiff's vague reference to lack of visual stimulation does nothing to clarify that he objected specifically to the window coverings in the SHU, for example. Since the essence of the exhaustion requirement is that notice be provided to the prison and an opportunity be given to address complaints by those with expertise, Plaintiffs' failure to exhaust must prove fatal. For these reasons, Plaintiffs' claims related to the lack of radios, the use of window coverings and the transfer requirement will be dismissed for failure to exhaust administrative remedies.
Immunity from Damages
Defendants contend, and Plaintiffs do not refute, that FCI Fairton, the BOP and Kim White in her official capacity, are immune from suits for damages based on allegations of Eighth Amendment violations. Congress has expressly indicated that the United States, its agencies and officials named in their official capacity cannot be sued for damages upon such a cause of action. See 28 U.S.C. §§ 2679(a) (b)(2). This immunity will comprehensively bar any legal proceeding against them in an official capacity, unless Congress has enacted a specific waiver of that immunity. See e.g., Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999); Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Thus, Plaintiffs' damages claims against remaining Defendants FCI Fairton and the BOP are dismissed.
Eighth Amendment Claim
The Eighth Amendment to the Constitution prohibits cruel and unusual punishment of prisoners. Prison conditions may amount to cruel and unusual punishment if they cause the unquestioned and serious deprivation of basis human needs, including such needs as food, clothing, shelter, medical care and reasonable safety.DeShanney v. Winnebago Co. Department of Social Services, 489 U.S. 189, 199-200 (1989).
Such a deprivation, to qualify as a violation of the Eighth Amendment, must be shown to be (1) objectively serious, and (2) the product of a sufficiently culpable, deliberately indifferent state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). However, "[t]o the extent that [prison] conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society."Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
The deliberate indifference on the part of a prison official necessary to establish the subjective element of an Eighth Amendment violation for denying an inmate humane conditions of confinement requires a demonstration that "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be award of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." See, Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).
When prison conditions are alleged to constitute cruel and unusual punishment, it is necessary to examine the totality of those conditions to determine whether they cause the deprivation of a specific human need and, thus, create a constitutional violation. Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996). However, "[i]t is clear that . . . triple celling of inmates is not per se unconstitutional." Williams v. Griffin, 952 F.2d 820, 824 (4th Cir. 1977); Union County Jail Inmates v. DiBuono, 713 F.2d 984, 1000 (3d Cir. 1983) (the number of inmates in one cell alone does not determine whether confinement is cruel and unusual). Ordinarily, allegations of overcrowding, without more, are insufficient to state a cognizable Eighth Amendment violation. Nelson v. Lucas, 2000 U.S. App. LEXIS 24089, *3 (9th Cir. 2000).
Mere deficiencies or inadequacies in prison conditions, or delays in providing services or programs, that do not result in the actual deprivation of an essential human need, do not qualify as cruel or unusual conditions of confinement. Rhodes, 452 U.S. at 348. Relevant considerations include such categories of daily existence as the length of an inmate's sentence, the amount of time prisoners spend in their cells each day, sanitation, lighting, bedding, ventilation, noise, food, medical care, vermin control, education and rehabilitation programs, opportunities for activities outside their cells, and the repair and functioning of such basic physical facilities as plumbing, ventilation and showers. Nami, 82 F.3d at 64-65.
As evidence of multi-celling alone does not automatically lead to an inescapable conclusion of Eighth Amendment violation, findings of violations have turned on such other factors as those set forth above. In United County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir. 1992), for example, double celling was found to be constitutionally permissible in a facility with no observed inadequacies in plumbing, ventilation, bedding, heating, available space or opportunities for activities outside the cells. Id. at 1000-01, n. 28-30. However, in contrast, cruel and unusual conditions of confinement have been found in situations like those present in Tiller v. Owens, 907 F.2d 418 (3d Cir. 1990), where double celling of inmates was accompanied by a determination that "almost every element of the physical plant and provision of services at [the institution] falls below constitutional norms." Id. at 427. There, the pervasive violence and insecurity resulting from significant overcrowding, were exacerbated by constitutionally deficient lighting, plumbing, ventilation, showers, fire safety, medical and mental health care, and limited opportunity for recreational activity outside the cells. Id. at 421-25, 427-28.
Defendants contend that no such allegations are made here. In two paragraphs, North and Carter allege only that
[c]rowding in triple-bunked cells results in stress, tension, fear, anxiety and hostility. The conditions invariably cause violence, emotional withdrawal, apathy, along with other physiological and psychological deteriorations.
The triple-bunking and overcrowding also results in reduced medical attention, limited staff which threatens the safety and security of inmates and a general reduction or elimination of services such as education, recreation and vocational training.
(Second Amended Complaint, ¶¶ 27-28). Defendants argue that these allegations fail to establish that the Eighth Amendment is or has been violated through the objectively discernable denial of a basic necessity to either of their lives.
The adequacy and functioning of the institution's sanitation, lighting, ventilation, heating, plumbing or shower systems and facilities are not alleged to fall below constitutional norms. Likewise, the institution's ability to provide for the healthcare needs of its inmate population is not identified as having fallen victim to any specific constitutional deficiency. (See Wright Decl., ¶¶ 3-4). The allegations of cruel and unusual conditions made here are more properly regarded as complaints of inconvenience or simple discomfort resulting from the increased population at FCI Fairton, attributable to its absorption of District of Columbia inmates. Moreover, the ACA, the nation's premier corrections accrediting authority, determined that FCI Fairton is worthy of accreditation for the three year period 2002-2005, based on the most recent assessment made of all the conditions there. (Def. Ex. B).
The ACA survey did note the existence of overcrowding and the resulting triple-bunking of inmates in approximately one-third of the cells, distributed equally throughout the housing units. However, the ACA nevertheless reported favorably on the actual living conditions at the institution. The number of staff was deemed sufficient for the medium security facility, and the effective control practices were noted to be a particular strength. Moreover, environmental conditions were considered very good and the physical plant was regarded as very well maintained, air and light satisfied applicable standards, and recycling practices were noted as excellent. (Def. Ex. B, at 2, 5).
Sanitation in the institution's living and work areas was rated very high; the facility was observed to be neat, clean and orderly. Cleanliness of the food service and food quality were also both deemed very good. Medical care was observed to be provided 24 hours per day, seven days per week. "The clinical care, from sick call to chronic disease clinics, is excellent. The Medical Director leads by example and all practitioners are vested in providing a very high level of service." (Id., at 5-6).
Plaintiffs, however, argue that they have alleged more than overcrowding; they have, instead, alleged that they were confined in small cells, used to house three inmates, though designed to house only two. Plaintiff Carter, in his Declaration accompanying opposition to Defendants' motion, states that this overcrowding has led to his suffering tension, anxiety, fear of falling and the increased risk of assault and injury. (See Carter Decl., ¶ 13). In light of the totality of the circumstances, however, this Court finds these allegations to be too tenuous to state a cognizable Eighth Amendment claim. Nothing offered by Plaintiffs suggests that the conditions of the prison are so egregious as to constitute the kind of cruel and unusual conditions necessary to give rise to such an allegation. Plaintiffs do not allege that they have ever personally been denied medical care or been physically harmed as a result of triple bunking. They likewise fail to make any such allegation as to anyone in the prison. Plaintiff's Second Amended Complaint rather attempts to contend that such conditions automatically flow from triple bunking. (See e.g., Second Amended Complaint ("[t]he conditions invariably cause violence, emotional withdrawal, apathy, along with other physical and psychological deteriorations") (emphasis added)). Such a potential reduction in prison services is not the same as an actual deprivation of medical attention or other basic necessities and such speculative harms cannot support an allegation of constitutional violation. Such a reduction in services, while possible in theory, has not been shown to have occurred.
Plaintiffs additionally argue, though, that summary judgment is inappropriate on this record since, to date, no discovery has been conducted. At the initial scheduling conference with the Court, discovery was stayed. This Court notes, however, that despite the stay of discovery, the Court also required that all dispositive motions be filed on or before August 25, 2003. That date was later changed to December 19, 2003.
The Third Circuit has addressed this, however, finding that unless the party opposing summary judgment files an affidavit pursuant to Fed.R.Civ.P. 56(f), identifying "with specificity what particular information is sought; how if uncovered, it would preclude summary judgment; and why it has not been previously obtained," plaintiffs may not make a claim for insufficient discovery. See Bradley v. United States, 299 F.3d 197, 205 (3d Cir. 2002).
Like Bradley, Plaintiffs here have not filed an affidavit pursuant to Rule 56(f) and instead argue in their brief that the discovery stay justifies their failure to request further discovery in response to Defendants' motion. Making such arguments in a brief, however, is insufficient; an affidavit is required. Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir. 1989) ("Rule 56(f) clearly requires that an affidavit be filed. The purpose of the affidavit is to ensure that the nonmoving party is invoking the protection of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition. An unsworn memorandum opposing a party's motion for summary judgment is not an affidavit.").
In the present instance, Plaintiffs offer nothing even in their brief to suggest what they expect further information to demonstrate and why that would assist them in responding to this motion. The record does not indicate how such information, if discovered, would demonstrate that the conditions of which they complain may rise to the level of an Eighth Amendment violation. If such arguments for obtaining more discovery were presented, the Court could dispense with the formality of requiring Plaintiffs to submit a Rule 56(f) affidavit. Such is not the case here.
The Court finds that no reasonable jury could conclude that the triple-bunking of inmates in Fairton's two-person cells results in conditions of confinement that offend the Eighth Amendment right to be free from cruel and unusual punishment under the circumstances presently existing. The motion for summary judgment will be granted.
Status of Other Listed Plaintiffs
The Complaint in this action was filed on July 8, 2002, signed only by Robert North and William Francisco, listing the following additional plaintiffs: Brian Turk, Hao Zhu Zhu, Min Ju, Jeff Hunter, Mike Ramos, John Fontanes, Mike Gallo, Rafael Gonzalez, Herbert Haithcoach, Wayne Bryce, and Cecilio McDonald. While these listed plaintiffs may have been putative members of the uncertified class, this Court does not consider them as appearingpro se. None of these plaintiffs signed the First Amended Complaint, filed September 11, 2002, which was superseded by the filing of a Second Amended Complaint on April 4, 2003 by Lisa Rodriguez, Esq. Moreover, Lisa Rodriguez, Esq. was appointed to represent only Plaintiffs Robert North and Jesse Carter and no class was ever certified. Therefore, the claims of the listed plaintiffs will be dismissed without prejudice to their opportunity to file individual suits. The statute of limitations has been tolled from April 4, 2003, when the Second Amended Complaint was filed in this matter, until the date of this Order.
A party appearing pro se must sign the Complaint or other pleading as required by Rule 11(a), Fed.R.Civ.P. The failure of an unrepresented party to sign a complaint renders that complaint a nullity as to that listed party.
CONCLUSION
For the reasons discussed above, Defendants' motion for summary judgment will be granted and Plaintiffs' Second Amended Complaint will be dismissed as to Plaintiffs North and Carter, with prejudice. The claims of all additional, listed plaintiffs are dismissed without prejudice. The accompanying Order will be entered.ORDER
This matter having come before the Court upon motion of Defendants Federal Correctional Institute [sic], Fairton, N.J., Kim White, Warden of FCI Fairton, and United States Department of Justice, Federal Bureau of Prisons for summary judgment; and the Court having considered the parties' submissions; and for the reasons expressed in the Opinion of today's date; and for good cause shown;IT IS this 29th day of July, 2004 hereby
ORDERED that Defendants Federal Correctional Institute [sic], Fairton, N.J., Kim White, Warden of FCI Fairton, and United States Department of Justice, Federal Bureau of Prisons's motion for summary judgment [Docket Item No. 39-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED that Plaintiffs' Second Amended Complaint shall be, and hereby is, DISMISSED WITH PREJUDICE as to Plaintiffs Robert North and Jesse Carter; and
IT IS FURTHER ORDERED that the claims of all additional listed plaintiffs, excluding Robert North and Jesse Carter, shall be, and hereby are, DISMISSED WITHOUT PREJUDICE ; and
IS FURTHER ORDERED that the Clerk of Court shall mail a copy of this Order and accompanying Opinion to counsel of record as well as to all unrepresented, listed Plaintiffs; and
IT IS FURTHER ORDERED that the Clerk of Court shall close this case upon its docket.