Moore v. Winebrenner

WIDENER, Circuit Judge:

Paris A. Moore, an inmate at the Maryland Correctional Institution in Hagers-town, Maryland (MCI-H), appeals from an order of the district court granting summary judgment in Moore’s action under 42 U.S.C. § 1983 to defendant Wayne B. Wine-brenner, the former Warden of MCI-H. We affirm.

In reviewing a grant of summary judgment, we apply the same standard as the trial court, and we view the inferences to be drawn from the underlying facts in the light most favorable to the nonmoving party. Helm v. Western Maryland Ry. Co., 838 F.2d 729, 734 (4th Cir.1988). Thus, summary judgment is appropriate if, after evaluating the record in the light most favorable to Moore, “there is no genuine issue as to any material fact_” Fed.R. Civ.P. 56(c).

Although designed to house approximately 750 inmates, during the years 1983-85 MCI-H normally accommodated 1700-1800 prisoners. Overcrowding at MCI-H had been a problem as far back as the late 1970s, when the United States District Court for the District of Maryland entered a consent decree requiring the elimination of the double-celling that had occurred as a result of the rise in inmate population. See Washington v. Keller, 479 F.Supp. 569 (D.Md.1979). After it became apparent that compliance with the 1979 decree was unrealistic, the parties agreed to modify the consent decree in 1983. The 1983 decree allowed the continued double-celling of inmates under certain circumstances and, in addition, allowed the prison administrators to convert previously unused annexes in the basement of the prison, which had not been designed to house inmates, into housing for up to 320 prisoners. Thus, each of the eight basement annexes, four on the north side of the prison and four on the south side, provided open housing for approximately forty inmates.

Senior corrections officials agreed on a staffing plan for the annexes that provided for one officer per annex, one officer in charge of each side of the prison (four annexes), plus a roving officer for each side of the prison. Because the inmates could move freely within the particular annex in which they were housed, however, and because the annexes had not been initially constructed to house inmates, maintaining order inside the annexes was difficult. In particular, large pillars blocked the guards’ view so that one guard could not supervise the entire annex at one time, and unsecured windows allowed the inmates to use “fishing lines” to pass weapons between the annexes and other parts of the prison. In addition, the entrance to each annex was secured by a locked grille. If an altercation occurred, the guard assigned to the annex was prohibited from unlocking the grille and entering the annex until backup assistance arrived. Finally, the lighting in the annexes was poor, the plumbing was in disrepair, the toilet facilities were inadequate, and the annexes contained no shower facilities.

After assuming his duties as Warden of MCI-H in the fall of 1983, Winebrenner soon became aware of the serious problems in the annexes. Because Winebrenner had no authority to hire additional guards, to close the annexes, or to transfer inmates to other institutions, he sought help from his superiors. After numerous verbal requests for assistance were unsuccessful, on March 27, 1984 Winebrenner wrote a detailed memorandum to the Commissioner of Corrections in which he related the conditions in the annexes and recommended solutions to the situation. In his memo, Win-ebrenner detailed the deplorable physical condition of the annexes and noted that, due to the problems with security set forth above, approximately seventy-five percent of the assaults in MCI-H occurred in or were related to the annexes.¹ Winebren-ner proposed to transfer 250 inmates out of the annexes immediately and house them in the gym, where security was much better, until two additional buildings could be constructed. Winebrenner concluded: “I only know that something needs to be done immediately. I am not one to push the panic button, especially after twenty-six years in this business, however, my experience tells me we are heading for some type of disaster unless we do something.”

After his memo elicited no response from his superiors, Winebrenner reported his concerns directly to the Department of Public Safety and Correctional Services. Although the two additional buildings never were authorized, Winebrenner eventually received verbal authorization to renovate the annexes and began to do so in July of 1984.

As part of the renovations, new plumbing and sewer lines were installed, showers were added, overhead pipes were repaired and secured, and the lighting was improved. In addition to improving the physical conditions in the annexes, other measures were taken to respond to the security problems. The light switches were moved outside the annexes so that only the guards could operate them, the lights were enclosed with metal to keep the inmates from knocking them out, and the windows were covered with security screens to prevent the transfer of weapons to and from other parts of the prison. Finally, Winebrenner ordered that the grille doors be left open so that the officer on duty could roam around inside the annex, and he instituted a more organized search team to conduct random searches of inmates and all areas of the prison at various times during the day.² Although the renovations were scheduled to take sixteen weeks to complete, the improvements actually took more than a year.

Appellant Paris Moore has been an inmate at MCI-H since June 20, 1984. On January 15, 1985 Moore was assaulted and stabbed by some of his fellow inmates while housed in the D-l annex. On June 4, 1985 Moore filed this action pro se under 42 U.S.C. § 1983 against Winebrenner and Donald K. Morgan, the guard on duty in the D-l annex when Moore was assaulted. Fairly construed, Moore’s complaint alleged that Winebrenner and Morgan violated the eighth amendment to the Constitution by failing to protect Moore from the pervasive risk of harm from other inmates at MCI-H. On October 1, 1986 the district court granted Morgan’s motion for summary judgment, which Moore does not contest on appeal, but denied Winebrenner’s motion for summary judgment. The parties then consented pursuant to 28 U.S.C. § 636(c) to proceed before a magistrate judge and, after counsel was appointed for Moore and both sides had engaged in discovery, Winebrenner again moved for summary judgment. The magistrate judge granted summary judgment to Winebren-ner, concluding that the conduct of prison officials violates the eighth amendment only if the conduct “rises to the level of wantonness, obduracy or deliberate indifference,” and that “not a scintilla of evidence” supported the notion that Winebren-ner acted “wantonly, obdurately or with deliberate indifference to the needs of the inmates housed in the annexes at MCI-H.” Moore now appeals.

Though not conceding that a pervasive risk of harm existed in the annexes at MCI-H as a matter of historical fact, in the court below Winebrenner assumed the existence of such a risk for purposes of his motion for summary judgment. Therefore, the only questions we consider are, first, assuming the existence of a pervasive risk of harm in the MCI-H annexes, what is the appropriate legal standard against which to measure Winebrenner’s conduct; and, second, given the appropriate legal standard, is there enough evidence that a jury could find that Winebrenner’s conduct violated that standard? De Leon v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1233 (4th Cir.), cert. denied, — U.S. -, 110 S.Ct. 87, 107 L.Ed.2d 52 (1989).

With respect to the first question, this court previously stated that

where prison supervisors with knowledge of “a pervasive and unreasonable risk of harm” to the prisoners, fail to take reasonable remedial steps to prevent such harm, their conduct may be properly characterized as “deliberate indifference” or as “tacit authorization of the offensive acts,” for which they may be held independently liable under § 1983.

Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). Relying upon Orpiano and previous cases from this court, Moore contends that, although the deliberate indifference standard applies, the appropriate inquiry under that standard is whether Winebrenner exercised reasonable care to protect the inmates from the pervasive risk of harm that existed at MCI-H. By contrast, Winebrenner argues, and we agree, that the “reasonable steps” language in Orpiano derives from a mere negligence standard that has been repudiated by both this court and the United States Supreme Court, and that the proper question is whether Winebrenner acted wantonly, obdurately, or with deliberate indifference to the pervasive risk of harm at MCI-H.

There is little doubt that, at one time, this court would have assessed Moore’s claim under a negligence standard. For example, in Withers v. Levine, 615 F.2d 158, 162 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980), the case upon which the Orpiano court relied, we stated that

the constitutional prohibition against cruel and unusual punishment requires that prison officials exercise reasonable care to provide reasonable protection from such unreasonable risk of harm. Given the pervasive and unreasonable risk of harm, negligence by prison officials in their performance of their duty of care is a violation of the constitutional right and actionable under § 1983.

See also Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir.1973) (formulating reasonable care standard in reliance on Restatement (Second) of Torts). Thus, although Orpiano purports to equate the failure to exercise reasonable care with deliberate indifference, the language and precedent upon which the case relies represents a negligence standard.

The Supreme Court, however, expressly has repudiated a negligence standard for eighth amendment claims. In Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986), the Court evaluated the eighth amendment claim of a prisoner who was shot during the quelling of a prison riot and stated, “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety.” The Court continued that such a reading of the eighth amendment was the foundation of its formulation in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), of the “deliberate indifference” standard for prisoners’ medical treatment claims, and concluded that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Whitley, 475 U.S. at 319, 106 S.Ct. at 1084.

Thus, in Whitley the Court not only established the eighth amendment requirements as wantonness and obduracy, but also expressly rejected another of Moore’s contentions, namely that its holding was limited to the context of a prison riot. This court has not been unaware of the effect of Supreme Court precedent on our prior line of cases. See Ruefly v. Landon, 825 F.2d 792, 793 (4th Cir.1987) (relying on Whitley and concluding that “[m]ere negligent conduct” is insufficient and that “[t]he relevant question is whether [the inmate] has alleged that the defendants wantonly and obdurately failed to take precautions for his safety ...”); Schrader v. White, 761 F.2d 975, 977, 979-80 (4th Cir.1985) (approving modification of Withers and Woodhous in light of Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Therefore, Moore’s attempt to resurrect the negligence standard by equating it with deliberate indifference is unpersuasive, and we hold that the appropriate inquiry is whether Winebrenner acted obdurately or wantonly, Whitley at 319, 106 S.Ct. at 1084, with respect to the conditions at MCI-H.

The measurement of Winebrenner’s conduct against this standard presents no difficulty. When he assumed control of MCI-H, Warden Winebrenner did not ignore or exacerbate the problems that existed in the annexes, but, as reflected by both his deposition testimony and his memo of March 27, 1984, Winebrenner embarked on a persistent campaign to rectify the situation. Although his hands were tied to some extent due to a lack of funds and a lack of authority to take immediate and drastic actions, Winebrenner eventually succeeded in effectuating major changes in the annexes. As Moore vehemently points out, deposition testimony of Moore’s witness indicates that, since the renovations to the annexes were completed, the number of stabbings there “is almost nil.”

In a nutshell, Moore’s entire case rests on the fact that some of the changes, including placing screens over the windows, unlocking the grilles, and stationing the officer on duty inside the annexes, apparently were not instituted until shortly after the particular assault that injured him. Moore argues that, because the improvements apparently worked, and because some of them might have been instituted somewhat sooner, possibly preventing his injury, Winebrenner acted wantonly and obdurately or was deliberately indifferent to Moore’s safety.

On the record before us, Moore’s theory would not even satisfy a negligence standard, much less the higher standard of wantonness and obduracy required by the eighth amendment. It may be that some of the changes could have been effected a few days or even a few months earlier, but we are satisfied that the record contains no evidence of any delay of constitutional magnitude. In sum, although in hindsight one always can find some aspect of official conduct to criticize, and although it might have been more desirable not to house inmates in the annexes at all, Winebrenner did the best he could under a regrettable set of circumstances and considerable handicap.

The magistrate judge’s order granting summary judgment is accordingly

AFFIRMED.³

1 . Because the number of inmates confined at MCI-H was approximately 1700-1800, the 320 prisoners housed in the annexes represented less than twenty percent of the total inmate population.

2 . Before the formal search team was instituted, correctional officers were charged with searching a certain number of cells per shift. Because the annexes were more wide open than cells, in the annexes officers checked potential hiding places such as bathrooms and the overhead piping. The officers also had authority to search the inmates' personal belongings, but were not required to do so.

3 . Because we conclude that the magistrate judge properly granted summary judgment to Wine-brenner, we do not address Winebrenner's claim of qualified immunity.