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confinement which shocks the conscience so as to fall within the constitutional prohibition against cruel and unusual punishment." 540 F.2d at 742.

However, Williams v. Edwards, 547 F.2d 1206 (5th Cir. 1977) remanded for a more complete record and for recomputation of the proper inmate population. Subsequently, Newman v. State of Alabama, 559 F.2d 283 (5th Cir. 1977) stated:

[W]e do not discern the constitutional
basis for the requirement that Alabama
State prisoners shall be housed in
individual cells, nor can we agree
that "design" standards, without more,
amount to a per se constitutional
limitation on the number of prisoners
which may be housed in a particular
prison facility . .

The Court required that all

new prison construction should provide sixty square feet of space per prisoner. We remand this requirement to the District Court for further consideration in the light of our opinion in Williams v. Edwards, 547 F.2d at 1215.

559 F.2d at 288.

Miller v. Carson, 563 F.2d 741, 752 (5th Cir. 1977) held that the trial court did not err in restricting the normal daily population of the county jail to 410 inmates, although the jail was originally designed to hold 432 inmates. Some of the space originally designed for housing inmates had been converted to a law library, infirmary, offices and a convalescent unit.

Battle v. Anderson, 564 F.2d 388 (10th Cir. 1977) affirmed the district court's finding that the overcrowded conditions subjected the prisoners to cruel and unusual punishment in violation of the Eighth Amendment. The district court had adopted the standards of the American Public Health Association for living space and environmental matters.

The court of appeals held in Bolding v. Holshouser, 575 F.2d 461 (4th Cir. 1978) that the district court had improperly dismissed a complaint alleging that the

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prison facilities did not provide adequate personal living space and that, as a result, prisoners were being attacked, raped, and suffering psychological damage from the high level of mental stress and fear. The court noted that plaintiff's allegation that the cells did not meet minimum standards of the United States Public Health Service also stated a claim.

8.

Unprovoked Attack by Prison Officials
and Law Enforcement Officers

An allegation that a prisoner was struck or beaten by a prison official without cause states a cause of action. Bruce v. Wade, 537 F.2d 850 (5th Cir. 1976); Aulds v. Foster, 484 F.2d 945, 946 (5th Cir. 1973).

Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973) cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L.Ed.2d 324 based its decision on due process considerations rather than cruel and unusual punishment. The court stated:

[Q]uite apart from any "specific" of the Bill of Rights, application of undue force by law enforcement officers deprives a suspect of liberty without due process of law. The same principle should

extend to acts of brutality by correctional officers, although the notion of what constitutes brutality may not necessarily be the same.

481 F.2d at 1032. The court further stated:

The management by a few guards of
large numbers of prisoners, not
usually the most gentle or tract-
able of men and women, may require
and justify the occasional use of
a degree of intentional force.
Not every push or shove, even if
it may later seem unnecessary in
the peace of a judge's chambers,
violates a prisoner's constitu-
tional rights. In determining

whether the constitutional line
has been crossed, a court must look

to such factors as the need for
the application of force, the
relationship between the need
and the amount of force that was
used, the extent of injury
inflicted, and whether force
was applied in a good faith
effort to maintain or restore
discipline or maliciously and
sadistically for the very purpose
of causing harm.

481 F.2d at 1033.

The plaintiffs in Williams v. Hoyt, 556 F.2d 1336 (5th Cir. 1977) had alleged they were wrongfully sprayed with mace, but on appeal the court held there was sufficient evidence to support the jury's verdict for the defendants. The defendants had offered evidence that mace was used only for the control of unruly prisoners and not for punishment or other purposes.

Polite v. Diehl, 507 F.2d 119 (3d Cir. 1974) found that the district court had improperly dismissed plaintiff's section 1983 claims based upon assault and battery as barred by the statute of limitations. Dissenting to the court's remand of this claim, Judge Kalodner stated: "It is imperative to note at this point that the Supreme Court has not passed on the issue whether an assault and battery, simple or aggravated, per se, affords a § 1983 remedy, when it is committed under color of state law on one in custody." 507 F.2d at 131.

9.

Protection from Attack by Other Prisoners
and Officials

Allegations that prison officials failed to

protect the plaintiff from attack by other prisoners or other officials may give rise to a claim based on cruel and unusual punishment under the Eighth Amendment, or denial of due process or equal protection under the Fourteenth Amendment.

An allegation that prison officials failed to protect the plaintiff from attack by another prisoner states a cause of action. Parker v. McKeithen, 488

158 F.2d 553 (5th Cir. 1974). In that case the plaintiff claimed he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and denied equal protection under the Fourteenth Amendment when a fellow inmate attacked him. The court of appeals found the district court had improperly dismissed for failure to state a claim. 159

Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973) held that an allegation that prison

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officials failed to prevent plaintiff from being violently attacked by another prisoner stated a violation of due process under the Fourteenth Amendment. prisoner has a constitutional right to be secure in his person and may not be deprived of liberty without due process of law. Since the court found that the complaint alleged a denial of due process under the Fourteenth Amendment, it did not discuss the equal protection clause of the Fourteenth Amendment or the Eighth Amendment proscription against cruel and unusual punishment.

Fox v. Sullivan, 539 F.2d 1065 (5th Cir. 1976) recognized that section 1983 gives a remedy to a state prisoner against prison officials, whose negligent acts result in injury to the prisoner. 160

Harris v. Chanclor, 537 F.2d 203 (5th Cir. 1976) affirmed the district court's entry of judgment on a jury verdict of $12,000 against a jailor and the arresting officer who had beaten plaintiff. The jailor's admission that the beating had occurred in his presence and that he had not objected to it or attempted to intervene was sufficient to sustain the verdict.

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158. See also McCray v. Sullivan, 509 F.2d 1332 (5th Cir. 1975), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86 (homosexual attacks).

159. The court of appeals directed that summary judgment be entered for defendants based upon the doctrine of collateral estoppel. 488 F.2d at 559.

160. Compare with Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, 261 (1976), where the court stated that a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.

161. See also Crump v. United States, 534 F.2d 72 (5th Cir.

In Little v. Walker, 553 F.2d 193, 194 (7th Cir. 1977), the plaintiff alleged that he and other inmates "repeatedly suffered acts and threats of physical violence, sexual assaults, and other crimes perpetrated by other inmates from whom plaintiffs were not reasonably protected by defendants." The plaintiff further alleged that one of the defendants ordered him and others to work in areas of the penitentiary that were controlled by gang-affiliated inmates. When they refused because of fear for their personal safety they were punished, including being placed in isolation. The plaintiff alleged that defendants ignored entreaties to remedy the situation. The court of appeals reversed the dismissal of the complaint, noting that in Holt v. Sarver, 442 F.2d 304, 308 (8th Cir. 1971), the Eighth Circuit had held that under the Eighth Amendment prisoners are entitled to protection from the assaults of other prisoners.

Williams v. Edwards, 547 F.2d 1206, 1213 (5th Cir. 1977) recognized that institution officials must provide enough guards to "assure a constitutional level of inmate safety," and approved an order requiring the presence of two guards in open dormitories at all times.

Where the plaintiff is able to show that inmates are being subjected to physical assaults and abuses by other inmates, the court may order injunctive relief, including the hiring of additional guards and classification of prisoners. Gates v. Collier, 501 F.2d 1291, 1308 (5th Cir. 1974); James v. Wallace, 406 F.Supp. 318 (N.D. Ala. 1976).

Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977) upheld the district court's order requiring that a jail guard visit each inmate-occupied area once an hour, that one non-inmate guard be present on each jail floor at all times, and that a communications system be established whereby any prisoner could call for help from a guard at any time and receive the same within a few minutes.

The district court in Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978) had properly dismissed plaintiff's

1976), and Jones v. United States, 534 F.2d 53 (5th Cir. 1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976), cases brought under the Federal Tort Claims Act.

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