USCA1 Opinion

December 8, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 92-1575

DENNIS R. COOKISH,
Plaintiff, Appellant,
v.
COMMISSIONER, NEW HAMPSHIRE
DEPARTMENT OF CORRECTIONS, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________

___________________

Dennis R. Cookish on brief pro se.

_________________
John P. Arnold, Attorney General, and Claire L. Gregory,
_______________
__________________
Assistant Attorney General, on brief for appellees.

__________________
__________________

Per Curiam.
___________
inmate at the

The

appellant,

Ronald

Cookish, was

New Hampshire State Prison when

an

a disturbance

occurred there in October 1987.

In April 1988, Cookish filed

an eight-count complaint against

the Commissioner of the New

Hampshire Department

of Corrections,

the Warden of

the New

Hampshire State Prison, and seven corrections officers at the

prison.

He later amended the complaint to add a ninth count.

The complaint alleged that the defendants' actions during and

after the disturbance had violated Cookish's rights under the
Fourth, Eighth and Fourteenth Amendments to the United States
Constitution, and under

several provisions of

New Hampshire

law.
The district

court dismissed eight of

but denied the defendants'

the remaining
appeal

count.

request for qualified immunity on

The defendants took

to this court, challenging

the district court's decision.

441

(1st Cir. 1991) (per

dismissed the

the nine counts,

an interlocutory

that denial.

We reversed

Cookish v. Powell, 945

_______
______

curiam).

The

remaining count and entered

Cookish appealed, challenging only

F.2d

district court then

a final judgment.

the dismissal of Counts I

and II of his amended complaint.

I
_
In
violated

Count I,
his

knowingly

Cookish

Eighth

and willfully

alleged that

Amendment
into a

rights

the defendants
"by

placing

had
him

dangerous, life-threatening

-2-

situation."

On October 23, 1987, a disturbance which Cookish

variously described as
in

a "riot" and an "uprising"

broke out

the Medium Custody South Unit (MCSU) of the New Hampshire

State Prison.
or "pods."

The MCSU was made up of four housing sections,

Cookish resided in

the disturbance
Cookish

was

occurred.

not

in his

Pod 1C, one of

two in which

However, when the

cell

but

unrest began,

working

in the

prison

kitchen.

By the time he returned to his unit, at about 7:15

p.m., Pod

1C "was

being destroyed."

windows, furniture,

and light fixtures

and threats were being yelled.

removed

from the

pod and

Fires were

burning,

were being

smashed,

Corrections officers had been

stationed near

the MCSU

control

room.
Cookish did
such an

not want to enter

uproar, but he was twice

by a "staff

was in

instructed to do so, first

order," and the second time by the MCSU "Control

Room Officer."
himself in.

He

Cookish returned
stayed there for

"the situation" continued,

toilet --

the pod while it

to

his cell

locked

the next four hours

though he left

once at 9:00 p.m.

and

twice to use

and once at 10:00

while
the

p.m. -- both

times without incident.

Cookish took no
engage
suffered

in violence,
no

part in

the disturbance.

was not

threatened with

physical

injury.

-3-

He

did

He did

not

violence, and
claim

to

have

"experienced

mental

anguish" but

gave

no

details of

his

torment and supplied no facts to support that conclusion.

Prison officials

have a duty to

protect prisoners from

violence

at the hands of fellow inmates.

611 F.2d

397, 398-99

Fair, 918 F.2d

____

269, 271 (1st

some circumstances,
may

constitute

pain" in

(1st Cir. 1979).

and

Street v.
______

(per curiam).

official's failure

the "unnecessary

which an Eighth

See also
________

Cir. 1990)

a prison

Leonardo v. Moran,
________
_____

wanton

In

to protect

infliction of

Amendment violation accrues.

See
___

Ingraham v. Wright, 430 U.S. 651, 670 (1977) (quoting Estelle

________
______
_______
v. Gamble, 429 U.S. 97, 103 (1976)).
______
The

circumstances

violation

include,

culpability

on the

of

required
course,

part of

for
a

an

Eighth

sufficient

the defendant.

Amendment
degree

See
___

of

Wilson v.
______

Seiter, 111 S.Ct. 2321, 2326 (1991) ("Eighth Amendment claims

______
based on official
penalty
state

conduct that

formally imposed
of

mind").

The

for a

does not purport

crime require

culpability

needed

to be

the

inquiry into
to

show

the

unnecessary and wanton infliction of pain varies according to

the

"kind

of

conduct

objection is lodged."

against which

an

Eighth

Amendment

Whitley v. Albers, 475 U.S.

_______
______

312, 320

(1986).
Courts deciding failure-to-protect cases
held plaintiffs
acted

with

to a burden

"callous

have generally

of showing that

indifference,"

the defendants

Estate of Davis
_________________

v.

-4-

Johnson,
_______

745

F.2d

1066,

1071

(7th

Cir.

1984),

or

"deliberate[] indifferen[ce]," Martin v. White, 742 F.2d 469,

______
_____
474 (8th Cir. 1984),

or that they were "wanton,

deliberately indifferent."
1176,

1177 (S.D.Ohio

however, was

required

Lawler v. Marshall,
______
________

1987).
to

The plaintiff

prove

involves allegations that prison

a

prisoner

from

workaday prison

the kind

of

more.

reckless or
687 F.Supp.

in this

The

typical

case,
case

officials failed to protect

harm

that

conditions, by, for example,

may arise

under

housing him in

an area of the prison to which his known enemies have access,

Leonardo v. Moran, 611 F.2d at 397-98, or allowing bullies to

________
_____
carry on a

campaign of intimidation in

Street
______

Fair,
____

v.

918

F.2d

at

prison common areas.

271.

In

such

cases,

"deliberate indifference" standard is appropriate because the

prison
"does

official's
not

responsibility

ordinarily

clash

to protect

with

the

other equally

prisoner
important

governmental responsibilities."

Whitley v. Albers, 475

_______
______

U.S.

at 320.

Coughlin, 942 F.2d 109,

________

113

(2d

See also Hendricks v.

_________ _________

Cir.

violence

1991)

(protecting

"ordinarily

inmate

from

no

competing

involves

other

inmates'

penological

policies").
But, this is not the typical case.
official who
the

allegedly failed to

course of

conditions

efforts to

Here, the correction

protect Cookish did

restore order

to the

so in

MCSU under

which Cookish himself has described as "riotous."

-5-

"In making and carrying out decisions . . .

to restore order

in

the

face

of

prison

disturbance,

undoubtedly must take into account

unrest presents

to

inmates

and

potential

for

conflagration' ripens
at

321 (quoting

prison

Union, Inc.,
___________

officials

alike."

Thus, "[w]hen the 'ever-

violent

confrontation

into actual unrest and

______

Jones
_____

officials

the very real threats the

Whitley v. Albers, 475 U.S. at 320.

_______
______
present

prison

and

conflict," id.
___

v. North Carolina Prisoners' Labor

_________________________________

433 U.S. 119, 132 (1977)), "the admonition that

'a prison's internal security is peculiarly a matter normally

left

to

the discretion

special weight."

of

prison administrators'

carries

Whitley v. Albers, 475 U.S. at 321 (quoting

_______
______

Rhodes v. Chapman, 452 U.S. 337, 349 n.14 (1981)).

______
_______
"In this
does

setting,

not adequately

official's]

a deliberate

capture the

defendant
purpose

acted "maliciously
of causing harm."

Glick, 481
_____

importance of

competing obligations,"

U.S. at 320, and the plaintiff is

indifference

Whitley v.
_______

standard

[the prison
Albers, 475
______

required to prove that the

and sadistically for

the very

Id. at 320-21 (quoting Johnson v.

___
_______

F.2d 1028, 1033 (2d Cir. 1973)).

This is a "very

high state of mind," Wilson v. Seiter, 111 S.Ct. at 2326, and

______
______
it sets the standard against which we must measure
charges.

Cookish's

By alleging
him

to return

that the MCSU Control

to his

cell while

Room Officer ordered

a riot

was in

progress,

-6-

Cookish

did lay a factual

that the officer acted

light of what
say,

one could infer

with some degree of culpability.

____

the complaint also says, and what

however,

reasonably

basis from which

we can

infer

find no

that

the

In

it does not

basis

from which

officer

might

one could
have

acted

"maliciously and sadistically for the very purpose of causing

harm."
Any possible inference of malice or sadism
would

rest on

the notion

reason to send Cookish

him injury,

in this case

that corrections officers

back to his cell other

or perhaps that the

had no

than to cause

situation in Pod 1C

was so

violent

that to send Cookish into its midst was virtually to

condemn

him to

injury.

The

complaint can

support neither

assumption.
First,

prison

officials

are

normally,

and

understandably, concerned with accounting for the whereabouts

of all prisoners at all times.

During periods of unrest, the

need to assure that every prisoner is where he is supposed to

be

escalates

Cookish was
could

be

inside

in proportion

to

supposed to be
accounted for.

the

pod,

at

in his
If

least

disturbance outside it.

the

he
he

level of
cell.

In

added to
would

Nor would his

disturbance.

not

his cell,

he

the disturbance
create

new

presence outside the

pod divert resources better directed at ending the emergency.

The

Control Room

Officer's insistence

that Cookish

go his

-7-

cell

and stay

in

it, therefore,

was

a rational,

entirely risk-free, response to the circumstances.

if

not

If it was

not benign, then it certainly was not malicious.

We note, moreover, that Cookish rode out the riot safely
in

his locked cell, from which he felt comfortable enough to

emerge to relieve himself

not once but twice in

a four-hour

period.

Indeed, as far as the complaint reveals, the "riot"

involved

considerable

property damage

but

no

violence or

injury to

any person.

All

pod, though in upheaval,

the Control
accomplish
a

of this suggests to

us that the

was not a free-fire zone,

Room Officer's instruction was

and that

intended only to

what it did in fact accomplish: it put Cookish in

location

where he

would

be relatively

safe

and easily

accounted for.
Finally,
conclusory
facts.

Cookish's

of

harm

anguish, unsupported

was

by any

Such allegations are inadequate to establish that the

to the

Street
______

allegation

assertion of mental

defendants' failure
rose

only

to protect him

level of

an Eighth

v. Fair, 918 F.2d

____

F.2d at 399.

from a risk

of violence

Amendment violation.

at 271-72; Leonardo
________

See
___

v. Moran, 611
_____

We therefore affirm the dismissal of Count I.

II
__

In Count II, Cookish

which

he and the other

housed for some

complained about the conditions in

inmates of the

rebellious pods were

sixty hours after the disturbance ended just

-8-

before midnight on

October 23.

them, were escorted to

strip-searched.

chilly

with

an old, unused cellblock.

The guards

underwear, and did

not return them,

and thermal

although the night

dipping

Cookish was taken to a cell

among

They were

took their jackets

temperatures

He asked for

The inmates, Cookish

just

below

was

freezing.

that had no heat and no bedding.

a mattress, sheets,

blankets, and his

jacket,

but the guards denied his request "for the time being."
Cookish remained in this
October
mattress

26, when

he

cell until just after noon

returned to

and a blanket on

Pod

1C.

He

the afternoon of

on

received a

October 24, but

was denied a

sheet and his jacket, a towel

was no heat.

The cell had a toilet, and a sink that ran only

cold water.

Cookish was

and soap.

fed, but at least one of

consisted of a "plain peanut butter sandwich on

As

a result

of

this ordeal,

There

his meals

hard bread."

Cookish suffered

"headaches,

sinus problems, chills [and] fever."

Although "[n]o

static 'test' can exist

determine

whether conditions

unusual,"

Rhodes v.
______

Supreme
necessary
Because

Court

has

to make
routine

criminal offenders

by which courts

of confinement

are

Chapman, 452 U.S. 337, 346

_______
said
out

that
a

discomfort

"extreme

cruel and
(1981), the

deprivations

conditions-of-confinement
is

pay for their

part of

the

claim.

penalty

offenses against

are

that

society,

only those deprivations denying the minimal civilized measure

-9-

of

life's necessities

basis

of

an

are

Eighth

sufficiently grave

Amendment

to form

violation."

Hudson
______

the
v.

McMillian, 112 S.Ct. 995, 1000 (1992) (citations omitted).

_________
The

objective component

moreover, is

of an Eighth

"contextual."

Id.
___

Amendment claim,

Conditions that

might be

deemed cruel and unusual if they were permanent features of a

prisoner's life, may

not offend the Constitution if they are

imposed only temporarily.

diet

of 'grue'

might

"A filthy, overcrowded

be

tolerable

for

intolerably cruel for weeks or months."

few

cell and a
days

and

Hutto v. Finney, 437

_____
______

U.S. 678, 686-87 (1978).

By the same token, prison

officials may be justified in

subjecting prisoners to more rugged conditions of confinement

during and after an
permissible
emergency

in

emergency than would be constitutionally

peaceable

situations in

entails curtailment

circumstances.
a

prison

of rights

"[R]esponse

environment

and privileges of

to

necessarily
the inmate

population."

La Batt v. Twomey, 513 F.2d 641, 648 (7th

_______
______

1975).

assessing the

In

imposed

in

response

to

constitutionality
an emergency,

whether the conditions were

to

be

clearly

have

asked

"so unreasonable or excessive as

disproportionate

to

the

by prison officials at the time."

723

590, 596

challenging

of conditions

courts

perceived
F.2d

Cir.

(8th Cir.

1983).

need

reasonably

Jones v. Mabry,
_____
_____
"viable complaint

a post-emergency lockup must allege nothing less

______________

-10-

than the continued deprivation

of basic rights or

an

time,

unreasonable

excessive

length

neglect,

justification
security)."

of
Hoitt
_____

or

of

arbitrarily

practical
v. Vitek,
_____

needs for

maliciously,
(e.g.,

through

without

necessity

related

to

497 F.2d

598, 602

any

prison

(1st Cir.

1974) (emphasis added).

Contextual
claim.

He did

scrutiny

exposes the

not contend

frailty

that exposure

of Cookish's

to the cold

and

deprivation of hygienic amenities were standard conditions of

his incarceration.
account,

existed, by

Cookish's

for no more than sixty hours, and they were imposed

in the wake
as

These privations

of a disturbance that

"riot"

in

which

his

Cookish himself described

fellow

inmates

had

caused

considerable damage to their permanent accommodations.

In the

period following the riot,

the prison officials

whom Cookish accuses of cruel and unusual punishment were, of

necessity, faced with two pressing tasks.

First, they needed

to assure that the prisoners did not lapse into rebellion and
violate

the

peace

"curtailment of
and

was fully

damage the

so

recently

rights and
justified.

regained.

privileges" was to
Second, they

prisoners had wreaked on

provide alternate housing.

that the

some

be expected,

had to

repair the

their regular quarters.

In the interim, of course, they would have had

to

Thus,

no choice but

It should come as no surprise

jury-rigged shelter was less

comfortable than that

-11-

to which the prisoners were accustomed.

But the Constitution

does not
ready

and

require states
waiting to

to keep pristine,
house

inmates

destroyed their primary lodgings.

commodious cells

who have

damaged

or

Conditions on the old cell

block may well have been unpleasant, but, given the emergency
and

their short

they were
not amount

duration, and

absent some

suggestion that

imposed unnecessarily and intentionally,

to

an "extreme

deprivation" and

unconstitutional.
Affirmed.
________

-12-

they did

they were

not