Opinion
No. 108,478.
2013-07-19
Gaylon HARMAN, Appellant, v. STATE of Kansas, et al., Appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. Matthew J. Donnelly, of Lansing Correctional Facility, of Lansing, for appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Matthew J. Donnelly, of Lansing Correctional Facility, of Lansing, for appellees.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Plaintiff Gaylon Harman, an inmate at the State prison in Lansing, appeals the denial of his petition for a writ of habeas corpus challenging a policy of confining prisoners to their cells without access to restroom facilities during regularly conducted inmate counts as unconstitutional. He also disputes discipline he received for violating that policy by going to the restroom without permission during a count. The Leavenworth County District Court ruled the disciplinary issue moot and the policy itself constitutional. We agree regarding the discipline. As to the policy, we find that Harman failed to prove a constitutional violation based on the limited facts in the appellate record. We, therefore, affirm.
On May 5, 2011, Harman filed his habeas corpus petition under K.S .A. 60–1501 attacking the conditions of his confinement. The district court then appointed a lawyer for Harman and directed the Department of Corrections to respond to the petition. The Department filed a motion to dismiss on October 7, 2011. The district court held an evidentiary hearing 4 days later. The Department filed an additional memorandum on October 16. The district court issued its written order denying the petition on March 12, 2012.
Some of the underlying facts appear to be largely undisputed, and we take them that way on appeal. But we have been otherwise severely hampered because of material omissions in the evidence and the record. If there were written policies regarding inmate counts, confinement during those counts, or access to sanitary facilities, they have not been made part of the record. Although the district court conducted an evidentiary hearing on Harman's petition, a transcript of that hearing never made its way into the appellate record. We surmise that we would have been better informed if any applicable policies and the hearing transcript were available to us. An appellant has an obligation to furnish a record on appeal sufficient to support the points raised. State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011); State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008). When there are blanks in that record, appellate courts do not fill them in by making assumptions favoring the party claiming error in the district court.
With that qualification, we set out the facts as they may be gleaned from the record. The Lansing prison regularly conducts inmate counts. We infer that counts are done to determine that all of the prisoners are accounted for, as the name of the process suggests. The record does not state how often the counts are taken, although some of information suggests at least daily. During a count, inmates are confined to their cells. Again, we infer that during a count, guards physically observe each inmate and compile a census. The Department stated that Harman was housed in a dormitory setting, which we take to be a fairly large room with a number of occupants or smaller pods attached to a common area. Pertinent here, however, everyone agrees that Harman and other inmates are not allowed to move around during count—that would make counting essentially impossible. Accordingly, inmates do not have free access to restroom facilities while a count is being done. There is conflicting information in the record as to whether inmates may get permission to go to the restroom during counts. Conspicuously missing from the record is any evidence about the typical duration of counts or if the length of time varies widely from count to count.
K.A.R. 44–12–502 requires every inmate to be present at the “proper time and place” for a count, and failing to be present or causing a delay, thus making a count inaccurate or more difficult, constitutes a disciplinary violation.
During an inmate count the morning of January 9, 2011, Harman had been confined to the dormitory for about 1 hour and 20 minutes when he desperately needed to take a bowel movement. Harman unsuccessfully tried to find a guard to ask permission to leave the dormitory, so he simply went to the restroom. Almost immediately after Harman got to the restroom, Sgt. Ugwuegbu entered, apparently to relieve himself, and found Harman there. Sgt. Ugwuegbu wrote up Harman for violating K.A.R. 44–12–502. (As seems common in 60–1501 proceedings, Sgt. Ugwuegbu appears throughout the record without a first name.)
Harman challenged the disciplinary write up through the Department's administrative process. At the administrative hearing, Sgt. Ugwuegbu testified that he makes an announcement to the inmates 15 minutes before a count starts. At least on his watch, inmates are not allowed to go to the restroom even with permission during a count. Sgt. Ugwuegbu testified that had Harman asked to go to the restroom during the count, he would have denied the request. Other information in the appellate record suggests some guards grant permission for restroom visits during a count. Harman's effort to seek out a guard on January 9 would be generally consistent with the notion that permission is at least sometimes given. The hearing officer dismissed the discipline. But the prison administration directed that a second hearing be held. At that hearing, Harman's discipline was upheld. Harman then exhausted his administrative remedies and filed this habeas corpus action.
In his petition, Harman contended the Department violated its own rules and constitutional mandates in ordering a second disciplinary hearing because it didn't like the outcome of the first one. But, again, everybody agrees the Department has rescinded in full the discipline imposed on Harman for violating K.A.R. 44–12–502. The district court, therefore, dismissed that aspect of Harman's petition as moot. The district court ruled correctly on that score. A legal controversy becomes moot when the specific dispute has been resolved and a judgment from the court would not affect the legal rights of the parties. Rodarte v. Kansas Dept. of Transportation, 30 Kan.App.2d 172, 183, 39 P.3d 675,rev. denied 274 Kan. 1113 (2002). A court will not consider moot issues. State ex rel. Morrison v. Sebelius, 285 Kan. 875, Syl. ¶ 15, 179 P.3d 366 (2008). The rescinded discipline falls in that category. Even if Harman were correct, the courts could do no more than rescind the discipline—something that has already happened.
Harman also complained that as a result of the discipline he lost his job with a private employer that contracts with the prison for labor. He sought relief for lost income. The district court rejected that claim, holding Harman had no legally protected interest in the job. We do not explore the ramifications of that rationale. There is a more basic flaw in Harman's claim on which we rely to affirm that portion of the district court's decision. The record on appeal fails to demonstrate any connection between Harman's discipline and the loss of employment. Nothing indicates that the employer's stated reason was the now-rescinded violation of K.A.R. 44–12–502. The absence of that factual predicate dooms the claim, and we affirm for that reason.
For his final claim, Harman argues that the policy of confining inmates to their cells during counts without access to sanitary facilities violates the prohibition on cruel and unusual punishment found in the Eighth Amendment to the United States Constitution and applied to States through the Fourteenth Amendment. Adopting an argument of the Department, the district court held that such a policy would not rise to the level of a constitutional deprivation. The district court, therefore, ruled against Harman. We believe the premise behind that holding to be mistaken. But a district court may be affirmed if it reaches the right result despite relying on an erroneous reason. Rose v. Via Christi Health System, Inc., 279 Kan. 523, 525, 113 P.3d 241 (2005).
By its terms, the Eighth Amendment prohibits cruel and unusual punishment. Prison practices or conditions may violate that prohibition even if they are not themselves intended to be punitive. See Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981). Courts have used various formulations to articulate standards for determining cruel and unusual punishment. The United States Supreme Court has said the operative language of the amendment must be “interpreted ... ‘in a flexible and dynamic manner.’ “ 452 U.S. at 345 (quoting Gregg v. Georgia, 428 U.S. 153, 171, 96 S.Ct. 2909, 49 L.Ed.2d 859 [1976] ). For example, conditions of confinement may constitute cruel and unusual punishment if “they [have] resulted in unquestioned and serious deprivation of basic human needs.” 452 U.S. at 347. That is, they “deprive inmates of the minimal civilized measure of life's necessities.” 452 U.S. at 347; see, e.g., Foster v. Runnels, 554 F.3d 807, 812–14 (9th Cir.2009); In re Long Term Administrative Segregation, 174 F.3d 464, 471–72 (4th Cir.1999). The Kansas Supreme Court has recognized that inmates may file habeas corpus petitions to vindicate rights including “entitlement to adequate food, light, clothing, medical care and treatment, sanitary facilities, ... and protection against ... unnecessary indignity—in short, the basic necessities of civilized existence.” Levier v. State, 209 Kan. 442, 448, 497 P.2d 265 (1972).
The United States Supreme Court recently observed that “[p]risoners retain the essence of human dignity inherent in all persons.” Brown v. Plata, 563 U.S. ––––, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011). And “[r]espect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” 131 S.Ct. at 1928.
At the same time, restrictive and even harsh conditions may be constitutionally unobjectionable as “part of the penalty that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347. In rejecting a claim that confining two inmates in comparatively small cells violated the Eighth Amendment, the Court pointed out that the practice “did not lead to deprivations of essential food, medical care, or sanitation.” Rhodes, 452 U.S. at 348. In assessing constitutional violations, courts must consider the purpose of a regulation, policy, or practice in furthering the State's recognized need to operate prisons safely and securely for the protection of inmates, staff, and the general public. See Washington v. Harper, 494 U.S. 210, 225–26, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990); Freeman v. Berge, 441 F.3d 543, 544–45 (7th Cir.2006); Talib v.. Gilley, 138 F.3d 211, 214–15 (5th Cir.1998) (no constitutional violation when prison withheld meals from inmate on lockdown because he refused to assume prescribed “nonthreatening” position with his back to cell door when the food was delivered). And to establish an Eighth Amendment violation, the prison officials must evince a deliberate indifference to the objectionable conditions of confinement. Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).
With those general precepts in mind, we turn to cases involving conditions of confinement affecting sanitation and access to toilet facilities. The United States Supreme Court held that a form of regularly inflicted prison discipline in which the offending inmate was handcuffed outside in the summer sun for up to 7 hours—resulting in “prolonged thirst and taunting and a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation”—violated the Eighth Amendment. Hope v. Pelzer, 536 U.S. 730, 738, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). In Young v. Quinlan, 960 F.2d 351, 363–64 (3d Cir.1992), an inmate stated an Eighth Amendment claim when prison officials placed him in a segregation cell without a toilet for 96 hours and provided him with a portable urinal only after 29 hours—conditions imposed on him as punishment for flooding his assigned cell. The inmate urinated and defecated in the segregation cell and was later denied the opportunity to empty the portable urinal or clean himself. The court held that the prison officials could place inmates in punitive segregation but the conditions, as alleged, amounted to “dehumanizing treatment” inconsistent with the Eighth Amendment. 960 F.2d at 364. Similarly, a federal district court found an inmate could proceed on an Eighth Amendment claim based on confinement for several days in an isolation cell without a working toilet and limited opportunity to use alternative sanitary facilities. Alvarez v. County of Cumberland, No. 07–346, 2009 WL 750200, at *4–5 (D.N.J.2009) (unpublished opinion); see Howard v. Wheaton, 668 F.Supp. 1140, 1143–44 (N.D.Ill.1987).
The United States Court of Appeals for the Eighth Circuit recognized that “ ‘inmates are entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly over a lengthy course of time,’ “ but found confinement in a “filthy” cell for less than a day did not amount to cruel and unusual punishment. Whitnack v. Douglas County, 16 F.3d 954, 957 (8th Cir.1994) (quoting Howard v. Adkison, 887 F.2d 134, 137 [8th Cir.1989] ). In Qawi v. Howard, No. 98–220–GMS, 2000 WL 1010281 (D.Del.2000) (unpublished opinion), the court likewise found no constitutional violation when an inmate was confined to his cell during a 6–hour lockdown without access to a toilet, requiring that he urinate and defecate in his cell. The court pointed out the incident was an isolated one and contrasted it to circumstances where “under the everyday rules regarding access to toilets, inmates are frequently forced to urinate or defecate in their cells.” 2000 WL 1010281, at *3; see also Gabarrete v. Hazel, No. 1:11–CV–00324–MJS, 2012 WL 1119788, at *6 (E.D.Cal.2012) (unpublished opinion) (“severe or prolonged” lack of access to sanitary facilities can violate Eighth Amendment, but inmate failed to allege such circumstances of confinement).
In light of that authority, we decline to find that a prison policy or practice would conform to the Eighth Amendment if it routinely deprived inmates of access to working toilets or comparable sanitary facilities for extended periods so those inmates had to foul themselves or their living space. That sort of policy would be incompatible with basic standards of sanitation, health, and hygiene encompassed in constitutionally acceptable conditions of confinement and would impose significant indignity and humiliation without apparent purpose. In the abstract, we cannot contemplate a constitutionally acceptable penological justification for a policy with those regularly realized consequences.
Both in the district court and in its appellate brief, the Department suggested a policy resulting in inmates having to urinate or defecate on themselves “would not rise to the level of ... a risk of serious harm” violating the Eighth Amendment. Rather, the Department argued it would be an acceptable, if harsh, consequence of confinement in a state prison. The district court echoed that refrain in its ruling. That goes too far.
As we have indicated, however, the record on appeal fails to support Harman's constitutional claim. The contours of the policy haven't been marked, and Harman has not shown continuing problems with the inmates being unable to use restrooms during counts. Policies consistently depriving inmates of access to sanitary facilities may be constitutionally suspect. But Harman has failed to identify such a policy or practice at the Lansing prison. All the record reveals is his incident on January 9, 2011. So we simply have an isolated occurrence, not a systemic shortcoming. What Harman has put before us does not support a claim for unconstitutional conditions of confinement.
Given the limited facts in the appellate record, the district court correctly entered judgment against Harmon on the Eighth Amendment challenge to the policy confining inmates to their cells during count.
Affirmed.