United States v. White , 54 M.J. 469 ( 2001 )

UNITED STATES, Appellee
v.
Claude F. WHITE, Jr., Airman Basic
U.S. Air Force, Appellant
No. 00-0002
Crim. App. No. 33583
United States Court of Appeals for the Armed Forces
Argued November 8, 2000
Decided May 2, 2001
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, EFFRON, and BAKER, JJ., joined.
SULLIVAN, J., filed a concurring opinion.
Counsel
For Appellant: Major Marc A. Jones (argued); Colonel Jeanne M.
Rueth and Major Thomas R. Uiselt (on brief); Lieutenant
Colonel Timothy W. Murphy and Lieutenant Colonel James R.
Wise.
For Appellee: Major Lance B. Sigmon (argued); Colonel Anthony P.
Dattilo, Lieutenant Colonel Ronald A. Rodgers, and Major
Harold M. Vaught (on brief); Captain Suzanne Sumner.
Military Judge: Amy M. Bechtold
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. White, No. 00-0002/AF
Judge GIERKE delivered the opinion of the Court.
A general court-martial convicted appellant, pursuant to his
pleas, of wrongfully using cocaine, in violation of Article 112a,
Uniform Code of Military Justice, 10 USC § 912a. The court-
martial, composed of officer members, sentenced appellant to a
bad-conduct discharge, confinement for 8 months, and partial
forfeiture of pay for 8 months. The convening authority approved
the adjudged sentence, and the Court of Criminal Appeals affirmed
the findings and sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER APPELLANT WAS SUBJECTED TO CRUEL AND UNUSUAL
PUNISHMENT WHILE IN POST-TRIAL CONFINEMENT.
For the reasons that follow, we affirm the decision below.
I. Factual Background
Appellant has two convictions for wrongfully using cocaine.
His first conviction, on July 27, 1998, was for using cocaine on
or about November 17, 1997. The approved sentence from his first
court-martial provided for a bad-conduct discharge, confinement
for 2 months, and reduction to the lowest enlisted grade.
When appellant was processed into the confinement facility
after his first court-martial, he was required to submit a urine
sample for medical purposes. When this urine sample tested
positive for cocaine, appellant was charged with wrongfully using
cocaine between July 13-28, 1998, and pleaded guilty at his
second court-martial on November 24, 1998. At this second court-
martial, appellant did not raise any issues regarding his
treatment while in confinement. The granted issue concerns the
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conditions of appellant’s confinement after his second
conviction.
In a clemency submission to the convening authority dated
February 12, 1999, after his second conviction, appellant made
the following allegations about the conditions of his
confinement:
Sir, I initially entered confinement on 27 July 1998.
Due to be released on 18 September, I was transferred
to pre-trial confinement status. Then, with the
sentence imposed on 24 November, I returned to the
confinement facility. Though I had already in-
processed once, I was made to do so again, solely
because of the change in status. Sir, this “in-
processing” is an ordeal. Since I have been in
confinement there have been several four to six hour
“in-processings” of inmates. Sometimes inmates will
come in at 1600 hours and not finish with their “in-
processing” until 0200. During this time the guards
are yelling at the top of their lungs and trying to
make the inmate make mistakes, so the process can go
back to the beginning. It is excessive harassment and
intimidation. While these sessions go on, it’s
impossible to get any sleep. Also a recent inmate was
“in-processed” for six hours and then “re-inprocessed”
the next day for another hour. A chaplain, Maj Flake,
a former prison guard and chaplain at Fort Leavenworth,
witnessed this session and called the guards on it.
Following his complaint, we as inmates were threatened
on 28 January 1999 by the NCOIC [noncommissioned
officer-in-charge] not to talk to lawyers or chaplains
anymore about the facility, or “there will be hell to
pay.” Directly after this incident, the NCOIC and the
guards initiated what they called an “inspection.” In
reality, it was a flagrant intimidation session. They
threw all the furniture over as well as the books and
magazines and their racks. Beds and linens were
flipped and thrown around. Clothing and personal items
were seized from lockers and thrown all over the floor.
Later, I was personally threatened by SrA [Senior
Airman] Bruton, the night guard. He told me if I did
not tell him what I knew about the other inmates they
would try to make me have to stay longer than my
sentence. Late last year, I also witnessed the same
NCOIC, because he was mad, pick up an inmate and throw
him on a table. He was briefly relieved of duties but
soon returned.
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Appellant also complained that, while in confinement, he had
twice requested drug counseling or enrollment in Narcotics
Anonymous, but received no response. Major (Maj) David Walker, a
staff psychiatrist at Lackland Air Force Base, where appellant
was confined, requested clemency for appellant because the local,
on-base substance abuse treatment program was unable to provide
any treatment services for him. Maj Walker stated that he had
been treating appellant since July 1998, meeting with him every
one to three weeks “to provide medication and supportive therapy
due to diagnoses of major depression, substance dependence and
narcissistic personality disorder.” Maj Walker stated that his
treatment of appellant “has been restricted to medication
management for his depressive symptoms and to supportive therapy
in order to help him cope with incarceration and to decrease
depressive symptoms and anxiety.” Maj Walker concluded his
clemency request by stating that “[o]ptimal treatment for
substance dependence should include narcotics anonymous.”
Appellant requested the convening authority to reduce his
confinement to time served. The convening authority did not
grant clemency but, instead, approved the adjudged sentence.
Before the Court of Criminal Appeals, appellant asserted
that the conditions of his confinement constituted cruel and
unusual punishment. Additionally, in a handwritten affidavit,
appellant asserted for the first time that he was not allowed to
participate in Narcotics Anonymous because of his race. He
asserted that two other inmates, one white and one “white
hispanic,” were allowed to participate. The Court of Criminal
Appeals did not address the merits of his complaints, opining
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only that it did not have jurisdiction to address his complaints,
and that he failed to exhaust his administrative remedies.
II. Discussion
Before this Court, appellant repeats the complaints that he
made to the court below. He also argues that the Court of
Criminal Appeals erred when it held that it lacked jurisdiction
to decide the merits of his complaints. Finally, he argues that
he satisfied the requirement for exhausting his administrative
remedies when he complained to the convening authority.
The Government argues that this Court lacks jurisdiction to
decide the issue, and that appellant failed to exhaust his
administrative remedies. The Government further argues that,
even if appellant’s complaints are cognizable by this Court,
appellant’s treatment did not amount to cruel and unusual
punishment.
We have no findings of fact by a military judge or the court
below regarding appellant’s complaints. Nevertheless, we need
not remand the case for factfinding if we can determine that the
facts asserted, even if true, would not entitle appellant to
relief. See United States v. Ginn, 47 M.J. 236, 248 (1997). We
review de novo the question whether the facts asserted by
appellant would constitute a violation of Article 55, UCMJ, 10
USC § 855, or the Eighth Amendment of the Constitution. 2 Steven
A. Childress & Martha S. Davis, Federal Standards of Review
§ 7.05 (3d ed. 1999).
a. Jurisdiction
On direct appeal, this Court “may act only with respect to
the findings and sentence as approved by the convening authority
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and as affirmed or set aside as incorrect in law by the Court of
Criminal Appeals.” Art. 67(c), UCMJ, 10 USC § 867(c). An
appellant who asks this Court to review prison conditions must
establish a “clear record” of both "the legal deficiency in
administration of the prison and the jurisdictional basis for
action." United States v. Miller, 46 M.J. 248, 250 (1997). Unlike
civilians, military prisoners have no civil remedy for alleged
constitutional violations. United States v. Palmiter, 20 M.J. 90,
93 n. 4 (CMA 1985), citing Chappell v. Wallace, 462 U.S. 296
(1983), and Feres v. United States, 340 U.S. 135 (1950). Thus,
they must rely on the prison grievance system, Article 138, UCMJ,
10 USC § 938, the Courts of Criminal Appeals, and this Court for
relief.
On several occasions, this Court has sub silentio asserted
its jurisdiction to determine if certain punishments violated the
Eighth Amendment or Article 55. See, e.g., United States v.
Yatchak, 35 M.J. 379 (CMA 1992); United States v. Lorance, 35 M.J.
382 (CMA 1992); United States v. Valead, 32 M.J. 122 (CMA 1991)
(addressing issue whether confinement on bread and water violated
Article 55 or the Eighth Amendment). More recently, this Court
has asserted its jurisdiction on direct appeal to consider
whether posttrial conditions of confinement violated the Eighth
Amendment or Article 55. See United States v. Sanchez, 53 M.J. 393
(2000) (sexual harassment at the hands of prison officials);
United States v. Avila, 53 M.J. 99 (2000) (improper maximum-custody
confinement).
We now expressly hold that we have jurisdiction under
Article 67(c) to determine on direct appeal if the adjudged and
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approved sentence is being executed in a manner that offends the
Eighth Amendment or Article 55. Our statutory authority is to
act “with respect to the findings and sentence.” This grant of
authority encompasses more than authority merely to affirm or set
aside a sentence. It also includes authority to ensure that the
severity of the adjudged and approved sentence has not been
unlawfully increased by prison officials, and to ensure that the
sentence is executed in a manner consistent with Article 55 and
the Constitution. See Sanchez, supra at 397 (Sullivan, J.,
dissenting, and Gierke, J., concurring).
Because this case is before us on direct appeal, we need not
and do not determine the extent of our authority to review a
collateral attack on the conditions of confinement. We are not
persuaded, however, by the Government’s suggestion that
jurisdiction is precluded by Clinton v. Goldsmith, 526 U.S. 529
(1999). Goldsmith involved an amendment to a statute outside the
UCMJ that eased restrictions on the authority to discharge
officers administratively under a statute not within this Court’s
jurisdiction. By contrast, the present case involves the
imposition of punishment under the UCMJ in a case that is before
us under the direct review procedure established by Congress.
b. Exhaustion of Administrative Remedies
“[A] prisoner must seek administrative relief prior to
invoking judicial intervention. In this regard, appellant must
show us, absent some unusual or egregious circumstance, that he
has exhausted the prisoner-grievance system . . . and that he has
petitioned for relief under Article 138, UCMJ, 10 USC § 938.”
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Miller, supra at 250, quoting United States v. Coffey, 38 M.J. 290,
291 (CMA 1993).
In this case, appellant has furnished no evidence that he
invoked the prisoner-grievance system. Instead, he complained to
the convening authority. The convening authority was appellant’s
wing commander, but not the commander of the confinement facility
or the Air Force Base on which the confinement facility was
located. In addition, there is no evidence that appellant filed
an Article 138 complaint.
Appellant avers that the same abuses occurred while he was
in pretrial confinement. Nevertheless, he did not assert an
Article 13, UCMJ, 10 USC § 813, violation at trial. Appellant
also avers that a field-grade chaplain witnessed some of the
abuses and “called the guards on it.” He asserts that the
chaplain’s action did not terminate the abuses, but caused the
guards to threaten the prisoners if they made any complaints to
lawyers or chaplains. This threat apparently did not deter
appellant, because he filed a complaint with the convening
authority. The record does not reflect whether appellant knew
the confinement facility did not fall under the command of the
convening authority. The record does reflect that,
notwithstanding the alleged threats, appellant continued to
communicate with his military defense counsel regarding his
request for enrollment in Narcotics Anonymous.
Without further factfinding, this record is inadequate to
determine if appellant exhausted all measures reasonably
available to him. It is also inadequate to determine if the
circumstances of appellant’s confinement were so unusual or
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egregious that he could not avail himself of the Article 138
process. However, our evaluation of the merits of appellant’s
complaints makes it unnecessary to determine if appellant has
satisfied the requirement for exhaustion of administrative
remedies.
c. Cruel and Unusual Punishment
Appellant asserts that the conditions of his confinement
violated both the Eighth Amendment and Article 55. The Eighth
Amendment prohibits the infliction of “cruel and unusual
punishment.” Article 55 prohibits the infliction of flogging,
branding, marking, or tattooing, the use of irons, “except for
the purpose of safe custody,” and “any other cruel or unusual
punishment.”
The Articles of War preceding Article 55 prohibited “cruel
and unusual punishment,” but the phrase was changed to “cruel or
unusual punishment” in Article 55. See Article of War 41, Manual
for Courts-Martial, U.S. Army, 1929 at 212, and 1949 at 284. The
legislative history of Article 55 provides no clue why the word
“and” was changed to “or.” Indeed, when this Court discussed
the newly-enacted Article 55 in United States v. Wappler, 2 USCMA
393, 396, 9 CMR 23, 26 (1953), it referred to Article 55 as
prohibiting “cruel and unusual punishments.” Addressing the
question whether a court-martial was authorized to impose
confinement on bread and water, this Court explained the
significance of Article 55 as follows:
Although we do not believe that the proscription
against punishments of this nature contained in the
Constitution’s Eighth Amendment--if applicable--would
bar the punishment adjudged here, it is to be noted
that the Amendment does not necessarily define the
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limits of “cruel and unusual,” as used by Congress in
Article 55. Use of the phrase by Congress, therefore,
raises a problem of legislative rather than
constitutional construction. Certainly Congress
intended to confer as much protection as that afforded
by the Eighth Amendment. Additionally--at least to the
extent of including the punishment involved here
[confinement on bread and water]--we believe it
intended to grant protection covering even wider
limits.
Id.
This explanation is significant in several respects. First,
it reflects the uncertainty that existed at the time regarding
the applicability of the Bill of Rights to the military. Second,
it recognizes the intent of Congress to extend the protections of
the Eighth Amendment to the military. Third, it recognizes the
intent and authority of Congress to prohibit or limit the
imposition of certain punishments that would not necessarily
violate the Eighth Amendment.
The case before us does not involve an “unusual” punishment
or one peculiar to military penology. Instead, the issue is
whether appellant’s confinement was administered in a cruel or
unusual manner. Except in cases where we have discerned a
legislative intent to provide greater statutory protections than
the Eighth Amendment provides, we have applied the Supreme
Court’s interpretation of the Eighth Amendment to claims raised
under Article 55. See Avila, 53 M.J. at 101; cf. Yatchak, 35 M.J. at
381 (holding that confinement on bread and water on crew member
of ship undergoing long-term overhaul violated Article 55).
Thus, for the purposes of appellant’s case, we perceive no
significant differences between appellant’s protections under the
Eighth Amendment and those under Article 55.
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In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court
said that the framers' intent behind the Eighth Amendment was to
prevent barbaric and torturous forms of punishment. In more
recent history, the standard for what constitutes cruel and
unusual punishment has developed into more than physical torture.
Instead, the current standard is that the Eighth Amendment
prohibits "punishments which are incompatible with ‘the evolving
standards of decency that mark the progress of a maturing
society,’ . . . or which ‘involve the unnecessary and wanton
infliction of pain[.]’" Id. at 102-03 (citations omitted).
Conditions that violate the Eighth Amendment include “deliberate
indifference to serious medical needs.” Id. at 104-05.
In Farmer v. Brennan, 511 U.S. 825, 832 (1994), the Supreme
Court held that the Eighth Amendment “does not mandate
comfortable prisons,” but “neither does it permit inhumane
ones[.]” The Court defined two factors that are necessary for an
Eighth Amendment claim to succeed regarding conditions of
confinement. First, there is an objective component, where an
act or omission must result in the denial of necessities and is
"objectively, ‘sufficiently serious.’" Id. at 834, quoting
Wilson v. Seiter, 501 U.S. 294, 298 (1991). The second component
is subjective, testing for a culpable state of mind. "In prison-
conditions cases that state of mind is one of ‘deliberate
indifference’ to inmate health or safety[.]" Id., quoting
Wilson, supra at 302-03.
In Freitas v. Ault, 109 F.3d 1335, 1339 (8th Cir. 1997), the
court held that sexual harassment or abuse of an inmate by a
guard sometimes might rise to the level of "unnecessary and
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wanton infliction of pain" and, in those cases, may therefore
give rise to an Eighth Amendment claim. However, the court
further held that
[t]o prevail on a constitutional claim of sexual
harassment, an inmate must . . . prove, as an
objective matter, that the alleged abuse or
harassment caused ‘pain’ and, as a subjective
matter, that the officer in question acted with
a sufficiently culpable state of mind.
Id., citing Hudson v. McMillian, 503 U.S. 1, 8 (1992).
Under the standard articulated by the Supreme Court in
Farmer, supra, “the prison guards and officials must be
consciously aware of the risk or danger to the inmate and choose
to ignore it; they must have been aware of the harm or risk of
harm caused appellant, and continued anyway.” Sanchez, 53 M.J. at
396.
Appellant asserts that he was intimidated, threatened, and
subjected to extended periods of “yelling.” He also describes
incidents where personal property was thrown on the floor. He
describes one incident where another prisoner was assaulted. He
asserts that “it’s impossible to get any sleep” while the verbal
abuse goes on. He fails, however, to assert any physical or
psychological pain. In Sanchez, this Court held that verbal
sexual harassment of a female prisoner by male guards did not
rise to the level of physical or psychological “pain” required to
constitute an Eighth Amendment or Article 55 violation. Verbal
harassment, intimidation, or abuse, standing alone, does not
constitute a constitutional violation, unless there is “well-
established and clinically diagnosed” evidence of psychological
pain. Id.; see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139
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United States v. White, No. 00-0002/AF
(9th Cir. 1987), citing Martin v. Sargent, 780 F.2d 1334, 1338
(8th Cir. 1985), McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.
1983), and Ellingburg v. Lucas, 518 F.2d 1196, 1197 (8th Cir.
1975); Warburton v. Goord, 14 F.Supp 2d 289, 292 (W.D.N.Y. 1998)
(harrassment or profanity alone, unaccompanied by any injury, “no
matter how inappropriate, unprofessional, or reprehensible it
might seem,” not a violation of “any federally protected right”).
Appellant also asserts that he was deprived of substance
abuse treatment. The record reflects that appellant received
psychiatric care, counseling, and medications from Maj Walker,
and that Maj Walker stated that “optimal treatment” for appellant
should include Narcotics Anonymous.
Denial of adequate medical attention can constitute an
Eighth Amendment or Article 55 violation. Sanchez, supra at 396.
A failure to provide basic psychiatric and mental health care can
constitute deliberate indifference. Harris v. Thigpen, 941 F.2d
1495 (11th Cir. 1991). However, it is not constitutionally
required that health care be “perfect” or “the best obtainable.”
Id. at 1510. Appellant was entitled to reasonable medical care,
but not the “optimal” care recommended by Maj Walker.
Appellant’s allegation that his race was the basis for not
permitting him to participate in Narcotics Anonymous is based on
his representation that two other inmates -- one white and the
other “white hispanic” -- were allowed to participate. Even
accepting appellant’s representation as to the two inmates who
participated, it is insufficient, standing alone, to raise an
issue whether appellant was denied similar participation because
of his race.
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We hold that appellant’s other complaints, if true, do not
amount to either a constitutional or statutory violation in
derogation of the Eighth Amendment or Article 55. Our holding is
limited to the question whether the facts asserted by appellant
constitute a constitutional or statutory violation. Any further
determination as to whether appellant’s allegations are true, and
if so, what measures should be taken in terms of accountability
and responsibility, are matters for consideration by appropriate
supervisory personnel.
III. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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SULLIVAN, Judge (concurring):
I am heartened that this Court has finally and squarely held
in this case and also in United States v. Erby, No. 00-0550,
___ MJ ___ (2001), that the lower courts have the duty and the
jurisdiction to review whether the sentence imposed by a court-
martial is being unlawfully increased by prison officials. I
have for some time believed this to be true. United States v.
Sanchez, 53 M.J. 393, 397 (2000) (Sullivan, J., dissenting).