claims against the warden and commissioner of the department of correction since the plaintiff did not suggest that the incident was anything more than an isolated one or that it resulted from any administrative policy established by the warden or commissioner. However, the court should have advised plaintiff that under Rule 19(a) of the Federal Rules of Civil Procedure he could join as a defendant the correctional officer who allegedly had observed the attack and declined to intervene and who had been identified subsequent to the filing of the complaint.

Woodhous v. Commonwealth of Virginia, 487 F.2d 889 (4th Cir. 1973) stated:

While occasional, isolated

attacks by one prisoner on another
may not constitute cruel and unusual
punishment, Penn v. Oliver, 351
F.Supp. 1292 (E.D. Va. 1972),
confinement in a prison where
violence and terror reign is
actionable. A prisoner has a
right, secured by the eighth and
fourteenth amendments, to be
reasonably protected from constant
threat of violence and sexual
assault by his fellow inmates,
and he need not wait until he is
actually assaulted to obtain
relief.

487 F.2d at 890. The court concluded that in making the determination of whether relief should be granted the court should ascertain "(1) whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm." Id.

James v. Wallace, 406 F.Supp. 318 (N.D. Ala. 1976) found that mentally disturbed prisoners were dispersed throughout the prison population and were not receiving treatment; violent inmates were not isolated from those who were young, passive, or weak; and robbery, rape, extortion, theft, and assault were everyday occurrences among the general inmate population. Guards rarely entered the cell blocks and dormitories, especially at night when their presence was most needed. The court

ordered injunctive relief requiring that efforts be made to protect the prisoners from violence.

The district court's dismissal of plaintiff's complaint which alleged that her deceased son, who had been a state hospital inmate, had died as a result of a beating by a fellow inmate after at least twenty prior separate beatings, was reversed in Spence v. Staras, 507 F.2d 554 (7th Cir. 1974). The court stated:

It is equally clear that the deceased
had a right, under the Fourteenth
Amendment, to be secure in his life
and person while confined under state
authority.
The defendants,
being responsible for the decedent's
care and safekeeping, had a duty to
protect him from attacks by fellow
inmates. 162

507 F.2d at 557.

An allegation that a patient in a mental hospital was not protected from assault states a claim. Goodman v. Parwatikar, 570 F.2d 801, 804 (8th Cir. 1978).

10. Punishment

U.S.

Generally, an allegation that punishment imposed by institution officials is disproportionate to the offense does not state a cause of action under section 1983. But see Hutto v. Finney 98 S.Ct. 2565, 2571, 57 L.Ed.2d 522, (1978). Sostre v. McGinnis, 442 F.2d 178, 194 (2d Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740, and Oswald v. Sostre, 405 U.S. 978, 92 S.Ct. 179, 30 L.Ed.2d 740 (1972).163

162. See also United States ex rel. Miller v. Twomey, 479 F.2d 701, 719-21 (7th Cir. 1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102.

163. However, in Sostre the court did find that punishment imposed because of a prisoner's militant political ideas or his litigation, past or threatened against institution or other state officials, would constitute a violation of due process of law. 442 F.2d at 189.

Wright v. McMann, 460 F.2d 126 (2d Cir. 1972), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 stated:

Ordinarily we would be most

reluctant to find unconstitutionally
disproportionate the use of segregated
confinement as punishment. Prison
officials, not federal judges, are in
day to day proximity or contact with
the inmates and are consequently
better able to determine what punish-
ment might or might not be appropriate
to a particular offense committed
by a particular inmate .
. In
short, the inmate alleging dispropor-
tionate punishment will ordinarily have
a heavy burden.

Here, however, we think that

Mosher has successfully met this burden.
His offense was his refusal to sign a
prison "safety sheet, a single piece
of paper with a list of precautions
and instructions to be followed by
inmates assigned to certain shops in
the prison.

In short, for an act which even the warden found deserving of no punishment Mosher was disciplined with the worst punishment the prison had to offer, [segregation] and it has nowhere been suggested that such a result came about through anything other than the unfettered discretion of the deputy warden. While the area of discretion of prison officials is exceedingly broad, it is not limitless.

460 F.2d at 132.

The plaintiff in Mukmuk v. Commissioner of the Department of Correctional Services, 529 F.2d 272 (2d Cir. 1976), cert. denied, 426 U.S. 911, 96 S.Ct. 2238, 48 L.Ed.2d 838 alleged he had been placed in segregation for one year after being charged with insolence. He admitted he had also been found guilty of taking

some brown wrapping paper without authorization. The court stated:

Although there are circumstances
which might justify such an extreme
punishment for such a minor offense,
we are dealing with a grant of
summary judgment. The appellant
may prove at trial that the punish-
ment was so discriminatory as to
be constitutionally excessive.
Of course, at trial, the prison
authorities would be permitted to
show that the seemingly harsh
punishment was justified, in part
because of disciplinary problems.
There are issues of fact to be
tried.

529 F.2d at 276.

The court in Jackson v. McLemore, 523 F.2d 838 (8th Cir. 1975) stated: "In reviewing prison disciplinary actions, the test is 'whether there exists any evidence at all, that is, whether there is any basis in fact to support the action taken by the prison officials. 523 F.2d at 839.

Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968) held that prison officials could not utilize corporal punishment consisting of slashes with the strap. Gates v. Collier, 349 F.Supp. 881, 887 (N.D. Miss. 1972), aff'd 501 F.2d 1291 (5th Cir. 1974) enjoined any form of corporal punishment of such severity as to offend the present day concepts of decency and human dignity.

164

Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 239 (1974), and Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 502 (1974) recognized that rehabilitation of prisoners is one of the identifiable governmental interests at stake in the maintenance of penal

164. See the discussion of withholding food as a means of punishment in Section VIII,1,2 supra.

institutions. However, French v. Heyme, 547 F.2d 994 (7th Cir. 1976) held that the lack of rehabilitative programs does not constitute cruel and unusual punishment in violation of the Eighth Amendment. But Finney v. Arkansas Board of Correction, 505 F.2d 194, 208-09 (8th Cir. 1974) held that the lack of rehabilitation programs, in the face of other conditions, could violate the Eighth Amendment.165 In that case the convicts were forced to labor long hours under arduous conditions and were subjected to constant threats of mental and physical abuse if their work or conduct fell below often arbitrary standards. They were left almost no time for self-advancing activities or recreation and, in fact, rehabilitation programs were generally not available. The court of appeals required the defendant officials to submit to the court an overall program for treatment and rehabilitation of the inmates.

stated:

James v. Wallace, 406 F.Supp. 318 (N.D. Ala. 1976)

While courts have thus far declined
to elevate a positive rehabilitation
program to the level of a constitu-
tional right, it is clear that a
penal system cannot be operated in
such a manner that it impedes an
inmate's ability to attempt
rehabilitation, or simply to
avoid physical, mental or social

deterioration.

406 F.Supp. at 330.

The court required that educational, vocational work and recreational opportunities be made available to the inmates.

Rehabilitation was related to the inmate's need for medical treatment by the court in Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1974). The plaintiff sought psychological diagnosis and treatment in the hope that it might enable him to qualify for parole and argued that the failure to provide psychological diagnosis and treatment constituted cruel and unusual punishment and a denial of due process of law. The court found that the plaintiff was entitled to psychological or

165. See also McCray v. Sullivan, 509 F.2d 1332, 1335 (5th Cir. 1975), cert. denied, 423 U.S. 859, 96 S.Ct. 114, 46 L.Ed.2d 86.