* District Judge of the Eastern District of Louisiana, sitting by

designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 92-7728

_______________

ROD GRABOWSKI,

Plaintiff-Appellant,

versus

JACKSON COUNTY PUBLIC DEFENDERS OFFICE, ET AL.,

Defendants-Appellees.

CONSOLIDATED WITH

_______________

No. 94-60089

_______________

RODERICK J. GRABOWSKI,

Petitioner-Appellant.

versus

EDWARD HARGETT, Superintendent,

Mississippi State Penitentiary, et al.,

Respondent-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________

(March 6, 1995)

Before POLITZ, Chief Judge, SMITH, Circuit Judge and BERRIGAN, 

District Judge.*

GINGER BERRIGAN, District Judge:

Roderick J. Grabowski has appealed the denial of his 28 U.S.C.

§2254 petition for writ of habeas corpus, challenging the
2

legality of his conviction, and the denial of his 42 U.S.C. §1983

prisoner complaint, challenging various aspects of his

confinement as a pretrial detainee. For the reasons set forth

below, we AFFIRM the dismissal of the habeas corpus petition. 

With respect to the prisoner complaint, we REMAND to the trial

court for further consideration of the allegation regarding

Grabowski's placement in a cellblock of predominantly black

inmates and we AFFIRM the dismissal of the remainder of the

petition.

I. The Habeas Corpus Petition, 28 U.S.C. §2254

Facts and Proceedings

On December 15, 1988, Roderick Grabowski was arrested in Harrison

County, Mississippi and charged with armed robbery and

burglary/larceny of a dwelling. He was later indicted on both

charges and initially pled not guilty. He moved to suppress

various items seized from his car but the motion was denied. On

the day of trial, the armed robbery charge was reduced to robbery

and Grabowski pled guilty to robbery and burglary. Pursuant to

the plea bargain, the prosecution recommended a sentence of

fifteen years for the robbery and ten years, concurrently, for

burglary. This was the sentence imposed.

Grabowski filed a pro se application for post-conviction relief. 

After exhausting state remedies, he filed a Petition for Writ of

Habeas Corpus in the United States District Court under 28 U.S.C.
1 Grabowski also alleged that the prosecution agreed to

dismiss the armed robbery count at the preliminary hearing if he

waived the hearing as to the burglary/larceny count. The

prosecution then obtained an indictment for armed robbery which

he claims deprived him of the chance to disprove robbery at the

preliminary hearing. The District Court did not deal with this

particular issue, but even if it were true, we fail to see how it

affects the validity of his guilty plea.

3

§2254. He made the following allegations:

1. His guilty plea was induced by coercion.

2. He did not receive the effective assistance of counsel.

3. His arrest and the search of his car were illegal.

4. His convictions violated double jeopardy.

On January 31, 1994, the District Court denied his petition.

The Guilty Plea

Grabowski challenges the legality of his guilty plea, claiming it

was coerced. He alleges that the prosecution threatened to seek

an habitual offender bill against him which could result in a

mandatory 30 year sentence if he didn't agree to the proposed

plea bargain. Grabowski argues that his prior criminal record

was in fact insufficient to justify such a sentence, and

therefore he was coerced into pleading guilty by erroneously

based threats.1 

On the trial date, Grabowski's public defender moved to withdraw

from the case and for a continuance because of a possible
2 Grabowski had filed a suit against the Public Defender's

Office after a dispute with their paralegal resulted in

revocation of some of his visitation privileges at the jail.

4

conflict of interest.2 At that point, the prosecutor stated:

The State is ready for trial and its witnesses are

here, its evidence here on Mr. Grabowski and Mrs.

Christianson. The State is ready to move forward. I

would advise the Court in all sincerity that since the

indictment in February of 1989 of Mr. Grabowski the

State has learned that he has at least five prior

felony convictions. If there is a continuance today

this is not a threat by any means to Mr. Grabowski or

this Court. The State is going to bring in the Grand

Jury, nolle pros his cases and reindict Mr. Grabowski

as perhaps a life habitual offender. I just want all

the cards on the table.

The trial court denied the motion to withdraw. Grabowski then

pled guilty pursuant to the plea bargain.

The District Court correctly found Grabowski's guilty plea to be

free and voluntary and not the result of coercion. To be valid,

a guilty plea must be knowingly, intelligently and voluntarily

entered. The defendant must be shown to understand the nature of

the charges and the consequences of the plea. Boykin v. Alabama,

395 U.S. 238 (1969); Hobbs v. Blackburn, 752 F.2d 1079 (5th Cir.

1985); Diaz v. Martin, 718 F.2d 1372 (5th Cir. 1983).

The guilty plea proceeding in this case was detailed and

painstaking. Grabowski acknowledged his understanding of the

charges, the consequences of the plea and his constitutional

rights. The plea agreement was discussed, including the

recommendation of the prosecution for concurrent fifteen and ten
3 Grabowski also alleged that the guilty plea form and the

transcript of the proceedings had been altered. No evidence was

presented to support that allegation other than his self-serving

declaration. Webster v. Estelle, 505 F.2d 9226 (5th Cir. 1974),

cert. denied, 421 U.S. 918 (1975).

5

year sentences. Grabowski himself provided the factual basis for

the charge by explaining what he had done. The record indicates

the plea was knowingly and voluntarily entered.3 

Of course, a guilty plea is invalid if it is produced "by actual

or threatened physical harm or by mental coercion overbearing the

will of the defendant." Brady v. United States, 397 U.S. 742,

750, 90 S.Ct. 1463, 1470 (1970). Not all pressures to plead,

however, are considered illegal inducements. Threatening harsher

penalties, including indictment as an habitual offender, is a

legitimate negotiating tactic in the give and take of plea

bargaining. Brady v. United States, supra; Bordenkircher v.

Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed 2d 604 (19798). As

long as the prosecution has probable cause to believe the

defendant is guilty of the allegation being made, the decision of

whether or not to so prosecute is within its discretion. 

Bordenkircher v. Hayes, supra. The District Court correctly

found that Grabowski's prior criminal record, which included by

his own admission, felony convictions in three different states,

justified a probable cause conclusion that he could be charged as

a habitual offender under Mississippi law. Finally, Grabowski

was specifically asked if his plea was induced by promises or

coerced by threats and he answered no.
4 The reduction of armed robbery to robbery apparently

favorably affected Grabowski's eligibility for early release.

6

The guilty plea was validly entered.

Ineffective Assistance of Counsel

Grabowski alleges his appointed counsel was ineffective. In

order to succeed on an ineffectiveness claim, a petitioner must

establish (1) that counsel's performance was deficient in that it

fell below an objective standard of reasonable professional

services, and (2) that this deficient performance prejudiced the

defense such that there is a reasonable probability that the

outcome of the trial has been undermined and the result would

have been different. Strickland v. Washington, 466 U.S. 668, 104

S. Ct. 2052, 80 L.Ed.2d 674 (1984).

The District Court correctly noted that Grabowski received

substantial benefits with his plea bargain. One charge was

reduced4 and he received concurrent sentences. He also avoided

entirely being prosecuted as an habitual offender, despite having

a number of prior convictions.

The crux of Grabowski's complaint is that (a) his counsel

misinformed him that he was subject to an habitual offender life

sentence if he refused the plea bargain; and (b) his counsel had

a conflict of interest since Grabowski had sued the Public

Defender's Office, which employed the attorney. As already
5 The motion was denied mainly because the trial court was

unable to confirm that the suit had actually been filed. As it

turns out, it had been. In any event, trial counsel had been

made aware of it by Grabowski prior to the plea.

7

noted, the District Court correctly found that the prosecutor's

threat to seek a possible indictment against Grabowski as a

habitual offender was not factually erroneous nor was it improper

coercion. Consequently, trial counsel was not delinquent in

warning Grabowski of that possibility. With regard to the law

suit, Grabowski's attorney did attempt to withdraw as counsel

because of the law suit, which motion was denied.5 At the

Boykin hearing, the trial court carefully questioned Grabowski

regarding the suit and its impact on the plea. Grabowski

stated clearly that he considered his counsel to be a good

lawyer, that the law suit had to do with other staff, not the

attorney, and that he was satisfied with the representation. 

Likewise, the record indicates no relationship, much less an

adverse one, between Grabowski's complaints in his lawsuit and

the competency of his attorney at the guilty plea proceedings.

Trial counsel was not ineffective.

Arrest Without A Warrant

Grabowski complains that he was arrested without probable cause

and his car was illegally searched in violation of the Fourth

Amendment. Items allegedly stolen in a burglary were found in

the trunk.
8

The District Court correctly concluded that these claims were

waived by Grabowski's plea of guilty. A knowing and voluntary

plea of guilty waives all preceding nonjurisdictional defects,

including Fourth Amendment claims. United States v. Diaz, 733

F.2d 371, 376 n. 2 (5th Cir. 1984); Williams v. Wainwright, 604

F.2d 404, 406-07 (5th Cir. 1979); Ortega-Velasquez v. United

States, 465 F.2d 419 (5th Cir. 1972).

Grabowski was also specifically advised at the guilty plea

hearing that his plea would require him to surrender any

allegations of illegal arrest, search or seizure:

Q. There could be other constitutional rights such as

illegal arrest and illegal search and seizure and a lot

of others; even though, I have not specifically

mentioned these other constitutional rights or gone

over them (in) detail with you, if I accept your plea

of guilty this morning, you, in fact, waive or give up

all of your constitutional rights insofar as they apply

to these two indictments and these two crimes; do you

understand that?

A. Yes, Your Honor.

(Record, Vol. 1, p. 217)

Grabowski alleges that his attorney told him he could raise this

issue, post-conviction, despite the guilty plea. That claim is

negated by Grabowski's own words at the guilty plea hearing. 

Additionally, his trial attorney, in an affidavit, sates

emphatically that "(a)t no time" did he tell Grabowski that he

could successfully attack his conviction through post-conviction
6 Finally, even if this Court were to consider the

underlying claim, it has no merit. The same day as the offense,

a description of the vehicle and the perpetrators was broadcast

over the police radio. That same day, an officer on patrol heard

the bulletin and stopped Grabowski because he matched the

description. Grabowski alleges that the officer stopped him on a

police bulletin that was several weeks old regarding another

offense. The officer heard both bulletins and recognized the

descriptions as being similar. He stopped Grabowski for both

reasons. The stop was supported by probable cause. Likewise,

the search of the car was legal. The officer testified that he

saw in plain view inside the car various items that matched items

taken in the earlier burglary. An at-the-scene inventory search

was made of the trunk, where additional items were found that had

allegedly been stolen.

9

relief once he accepted the plea bargain.6

The claim is without merit.

Double Jeopardy

Finally, Grabowski alleges his convictions violate double

jeopardy because the evidence and elements of the crime of

burglary/larceny are the same as the crime of robbery.

The District Court correctly found no double jeopardy violation. 

The test for double jeopardy is whether each offense requires

proof of an additional fact which the other does not. 

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76

L.Ed. 306 (1932). Under Mississippi law, the offenses of

burglary and robbery consist of different elements. Burney v.

State, 515 So.2d 1154 (Miss. 1987); Wright v. States, 540 So.2d 1

(Miss. 1989); Miss. Code Ann. Sect. 97-3-73 (1972).
7 #90-1500, Summary Calendar, January 19, 1991

10

There was no double jeopardy violation.

Conclusion

The District Court correctly rejected Grabowski's various

allegations regarding the validity of his conviction. The

petition for habeas corpus relief was properly denied.

II. The Prisoner Civil Rights Complaint, 42 U.S.C. §1983

Facts and Proceedings

In May, 1989, plaintiff Grabowski filed a pro se 42 U.S.C. §1983

law suit alleging various constitutional deprivations while he

was imprisoned as a pretrial detainee at the Adult Detention

Center (ADC), Jackson County, Mississippi. In June, 1990, the

District Court dismissed the petition on the basis that it failed

to state a cause of action. On appeal, we upheld the dismissal

as to some of the claims but remanded three to the District Court

for adjudication on the merits7:

(1) The allegation that Grabowski's visitation privileges

were revoked without a hearing and as punishment;

(2) The allegation that Grabowski was denied telephone and

recreation privileges without a hearing while in protective

custody and this likewise was done as punishment;

(3) The allegation that Grabowski was used by the prison

authorities to discipline black inmates, that the authorities

made this known throughout the prison and then subsequently
11

placed him in a cell with predominantly black inmates.

On October 9, 1991, an evidentiary hearing was held on

Grabowski's complaint. The Magistrate Judge recommended denial

of the petition. The District Court made a de novo review of the

record and likewise denied the petition.

In order to frame Grabowski's issues on appeal in a coherent

fashion, we will use the following factual chronology:

2/89 Grabowski arrives at the Adult Detention Center

(ADC), charged with felony offenses; he is placed in

Cell HE, a unit for pretrial detainees;

2/24/89 Major Robert McIlrath, ADC Director, approves

Grabowski for special in-house visitation with his codefendant girlfriend who is also incarcerated at ADC;

2/27/89 Wendell Poole, a black inmate, is transferred

into the HE area after causing trouble in another unit. 

Grabowski alleges that Officer Brian Grady told him

that the classification officer, Vera Simmons, sent

Poole to Grabowski so that Grabowski could "take care"

of him;

3/6/89 Classification officer, Vera Simmons, receives

word by telephone that there is a hold from Florida on

Grabowski for a probation/parole violation;

3/9/89 Grabowski is visited by a paralegal from the

public defender's office, Jennifer Garaway. He argues

with her and in a loud voice in the presence of other

inmates, mostly black, he calls her a "nigger bitch";

Between 3/9 & 3/14/89Major McIlrath revokes Grabowski's

in-house visitation due to the incident with Garaway;

no hearing is held prior to revocation;

3/20/89 Simmons receives written, but unofficial,

verification of the Florida hold;

3/21/89 Grabowski is transferred to AE, a medical unit,

because he needs a metal brace on his knee; AE houses

both pretrial detainees and post-conviction inmates;
12

3/27/89 A routine search of the area where Grabowski is

housed uncovers tools and other evidence of a possible

escape attempt; Grabowski is moved to BE which is a

lockdown isolation cell;

4/3/89 Grabowski is moved from BE to KE unit which

houses post-conviction prisoners and is predominantly

black; the prison officials claim the move occurred

because of the probation hold from Florida, indicating

he is not pretrial but post-conviction;

Between 4/3 & 4/6/89 Grabowski claims he is attached

and beaten by three black inmates in KE; their stated

motivation in assaulting him is his altercation with

the paralegal Garaway, his supposed threat to take care

of Wendell Poole and his racial prejudice;

4/6/89 A fire is set in Grabowski's cell; when the

officials arrive, Grabowski has a heated argument with

a black inmate; Grabowski is moved to protective

custody; he is also taken to the nurse. In protective

custody, where he remains about eleven days, Grabowski

has either limited or no access to the telephone and

recreation.

To obtain relief under 42 §1983, a prisoner must prove two

elements: (1) a deprivation of a right secured by the

Constitution and laws of the United States, and (2) a deprivation

of that right by the defendant acting under color of state law.

Loss of In-House Visitation

Grabowski alleges his constitutional rights were violated when

his in-house visiting privileges with his imprisoned girlfriend

were rescinded after the incident with paralegal Jennifer

Garaway. The privileges were revoked without a hearing and

Grabowski claims it was done as punishment.

In Bell v. Wolfish, 441 U.S. 520, 99 s.Ct. 1861, 60 L.Ed.2d 447

(1979), the United Sates Supreme Court set forth the standards
13

for evaluating the constitutional rights of pretrial detainees.

Since they are presumed innocent, they cannot be "punished" while

in custody. Consequently, the Eighth Amendment standards

allowing 

"punishment" (as long as it is not cruel and unusual) do not

apply. Pretrial detainees are, however, subject to restrictions

on their liberty insofar as those are necessary for maintenance

and security of the jail. This curtailment on liberty must

nonetheless comply with due process of law. The test is whether

the particular restriction is reasonably related to a legitimate

prison objective, other than punishment. If it is, then no right

is violated.

In Block v. Rutherford, 468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.2d

438 (1984), the United States Supreme Court upheld a blanket

prohibition against contact visitation for pretrial detainees at

the Los Angeles County Central Jail. The Court found the

restriction was reasonably related to the legitimate objective of

maintaining internal security at the jail.

At the evidentiary hearing, it was established that Grabowski's

in-house visitation was a special accommodation made by the

prison at the request of the Public Defender's Office. 

Grabowski's girlfriend was pregnant and had no outside visitors. 

The privileges were revoked after Grabowski engaged in a shouting

match with a paralegal from the Public Defender's Office in the
14

presence of other inmates, mostly black, during which Grabowski

called the paralegal a "nigger bitch." Major Robert McIlrath

testified that the incident upset the other inmates and that

Grabowski's conduct was not conducive to having the special inhouse visitation.

The District Court correctly concluded that Grabowski's due

process rights were not violated by the revocation of his inhouse visitation privileges. The privilege had been a special

accommodation to begin with, as opposed to a right to which

Grabowski was entitled. Furthermore, the privilege was

rescinded, not as punishment per se, but as a necessary action

reasonably related to the maintenance of prison security and

order.

Denial of Telephone/Recreation Privileges in Protective Custody

Grabowski also complains that when he was placed in protective

custody, after the alleged beating in KE, he was denied

telephone, recreation and canteen privileges without a hearing

and as punishment for his prior conduct. The District Court

correctly found this claim to be meritless. The hearing

disclosed no evidence that Grabowski was being punished while in

protective custody; on the contrary, the placement was for his

own safety. At most, the evidence indicated that that area of

the facility lacked a telephone jack so inmates had to be brought

to the booking area at the discretion of the shift lieutenant. 
8 Poole is a black inmate. He testified that he was

transferred into Grabowski's cellblock after causing trouble in

his other unit. He stated that when he was brought into the cell

area, Officer Brian Grady told Grabowski to "take care" of him

(Poole). Poole said he understood this to mean that Grabowski

was to jump him or stop him from making trouble. Poole also

testified he had no problems with Grabowski. Both Officer Grady

and Vera Simmons denied that any such statement was made or

instruction given.

15

Recreation was also apparently subject to the same personnel

constraints. No punishment or arbitrary deprivation of privilege

was established.

The Place in KE Cell and the Assault

When we remanded this particular issue for adjudication on the

merits, our concern was specific. Grabowski alleged that the

officials at the prison had used him as a tool to discipline

unruly black prisoners, made this use known throughout the prison

and subsequently placed him in a cell of predominantly black

inmates. We suggested that these allegations, if proven, could

be sufficient to establish a callous indifference to Grabowski's

safety.

The evidentiary hearing dispelled those particular concerns. No

evidence was presented, other than Grabowski's own self-serving

testimony and lukewarm corroboration by a fellow inmate, Wendell

Poole8, that Grabowski was used to discipline inmates, much less

that that use was made known throughout the prison. The

pertinent officials involved, Vera Simmons and Brian Grady,

testified and refuted any such plan or intention. The District
9 Grabowski raises other meritless issues in his appeal

brief. He complains that he was not in fact attempting to escape

while housed in the medical unit, and he was therefore improperly

punished for it. This complaint is beyond the scope of our

remand to the district court and nonetheless is without merit. 

Grabowski does not dispute that the escape tools were found in

his living unit. Furthermore, he pled guilty to the disciplinary

violation, acknowledging that while he didn't intend to escape

himself, he was aware of the planned attempt and did not report

it. Grabowski also complains that the Magistrate Judge limited

the number of witnesses he could call. In fact, the judge

allowed for additional witnesses but Grabowski did not have

addresses for them.

16

Court was correct in denying relief as to that basis.9

While those particular allegations were disposed of on remand,

the testimony of the prison officials disclosed a disturbing

awareness nonetheless of very real racial tension between

Grabowski and the black inmate population just a few weeks prior

to the transfer. This awareness coupled with other circumstances

of the transfer causes us concern.

It is undisputed that on March 9, 1989, Grabowski had a loud and

heated argument with paralegal Jennifer Garaway in the dayroom of

the cellblock with a number of black inmates present. It is also

undisputed that at the end of the altercation, he called her a

"nigger bitch." When Grabowski lost his in-house visiting

privileges because of the incident, he complained to Vera

Simmons. She wrote a note in response, which was admitted into

evidence. It said in part:

You were advised (sic) by us to behave while you are in

our facility and we would allow visits. You don't have

to call people nigger bitch to get their attention.
17

Major McIlrath, who had allowed the special visits, rescinded

them after the incident. At the evidentiary hearing, he said he

revoked them because of Grabowski's "conduct."

Court: Go into some detail as to what you're talking

about. You say "conduct." What conduct are you

talking about?

McIlrath: Yelling, carrying on, back in the hall. As

I recall, the incident that he's referring to with Ms.

Garaway happened on a day when the whole day room was

out for recreation. At the time the day room was being

brought back in and there was traffic in the halls, he

got into some kind of hassle with Ms. Garaway. At the

time there was probably 13, 14, maybe 15 blacks, two or

three white. there got to be some hassling going back

and forth. What he done was, at that point, not what

he was having a problem with Ms. Garaway, but he was

causing a disturbance in the hallways which was causing

an uproar in the other day rooms and, in my opinion,

what he did there in causing them other inmates to get

upset and causing problems there was not the type of an

action that I would give special privileges to someone

for.

Court: So it arose out of the Garaway incident, is

that right, the elimination of this special privilege?

McIlrath: Yes, sir, I--yeah. From the actions that he

took, yeah.

Court: All right.

Grabowski: Okay. You said that 14, 15, 16, I can't

remember that number, but you said a multitude of

people were raving. I'm not the only one that was

complaining then, was I?

McIlrath: I know of no one else complaining. I know

that people got upset.

Grabowski: Do you know why they got upset?

McIlrath: I had an idea.

Grabowski: What was your idea?

McIlrath: My idea was that there was quite a flew

blacks there that was upset over the way you were

talking to Jennifer or whatever it was. I don't know.
10 Simmons testified that she didn't move him earlier

because of "overcrowding" and also because they had not received

the written verification of the Florida hold.

18

Vera Simmons nonetheless testified that she didn't recall having

any reason to believe Grabowski would have problems when she

placed him in a cell with predominantly black inmates.

This placement concerns us also because of its timing. Simmons

claimed she made the transfer into KE because she has received

written verification on March 20 that Florida had a hold on

Grabowski, so she considered him eligible for a post-conviction

unit. However, she had received verbal notification of

Grabowski's status several weeks earlier (prior to the Garaway

incident) and did not move him10. She also acknowledged that the

written confirmation of March 20 lacked the necessary

documentation to be official.

At the time Simmons received this written notice, Grabowski was

in the medical unit. On March 27, he was transferred into

isolation because escape tools were found in his living area, an

incident which certainly must have displeased the jail

authorities. On April 3, Grabowski had a disciplinary hearing

before Vera Simmons. He pled guilty to the infraction and was

that day transferred by her into the predominantly black postconviction unit where he allegedly was attacked and beaten.

We are sympathetic to the difficult task jail administrators face
19

in operating their facilities. We recognize that they must deal

on a day-to-day basis with the often difficult individuals,

forced to live in close quarters 24 hours a day. "(A) federal

court should not, under the guise of enforcing constitutional

standards, assume the superintendence of jail administration." 

Alberti v. Klevenhagen, 790 F.2d 1220, 1223 (5th Cir. 1986). 

Nevertheless, we must also be mindful that these individuals do

not forfeit all their constitutional rights at the prison door. 

In particular, we must be vigilant with regard to pretrial

detainees, who are presumed innocent and are incarcerated, in

most instances, because of indigence and inability to pay a bond. 

It is significant in this case that both the Magistrate Judge and

the District Court concluded, despite Vera Simmons' testimony,

that Grabowski was a pretrial detainee at all times relevant to

this action.

In deciding the legal standard for Grabowski's complaint, two

lines of jurisprudence must be considered: one recognizing a

distinction between the rights of pretrial detainees and postconviction prisoners generally; the other charting the evolution

of the "deliberate indifference" standard in assessing the

culpability of prison officials, and whether it applies in a

condition of confinement other than a medical treatment context. 

These two tracks have at times paralleled and at times

intersected, unfortunately not always with clarity and

consistency. We will review them in chronological order.
11 Wilson v. Seiter, 111 S.Ct. 2321, 2323 (1991).

12 At the same time, the Court made clear that an accident

or inadvertence or mere negligence does not trigger the Eighth

Amendment. "Medical malpractice does not become a constitutional

violation merely because the victim is a prisoner." 97 S.Ct. at

292. See also Whitley v. Albers, 106 S.Ct. 1078 (1986).

20

In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976), the United States Supreme Court for the first time

extended the Eighth Amendment's prohibition against cruel and

unusual punishment beyond conditions that are attached to the

sentence itself11. A convicted prisoner filed a suit claiming he

was subjected to cruel and unusual punishment with regard to

treatment he received after an injury in the prison. The

petition was dismissed by the district court for failure to state

a claim. The Supreme Court observed that the Eighth Amendment

prohibits punishments involving "the unnecessary and wanton

infliction of pain." 97 S.Ct. at 290. The Court then held that

"deliberate indifference to serious medical needs of prisoners"

constitutes such an unnecessary and wanton infliction of pain12.

In Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447

(1979), the Supreme Court faced a challenge to jail conditions

lodged not by convicted prisoners but by pretrial detainees. the

Court responded by establishing a clear distinction between the

constitutional rights of the two groups. Persons already

convicted of crimes and sentenced to prison are properly being

punished. A challenge to the conditions of confinement is

therefore measured against the Eighth Amendment's ban on cruel
13 See, e.g. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565,

57 L.Ed.2d 522 (1978) (challenging conditions in the Arkansas

prison system)

14 Authored by Circuit Judge Alvin Rubin.

21

and unusual punishment13, as was done in Estelle. Pretrial

detainees, on the other hand, have not been found guilty of a

crime and therefore cannot be punished while in custody. To do

so would punish them without due process of law. At the same

time, the high court noted that "(n)ot every disability imposed

during pretrial detention amounts to `punishment' in the

constitutional sense..." 99 S.Ct. at 1873. Regulation and

restraints on liberty necessary for the smooth running of the

institution are not punishment. The Supreme Court then

articulated the test for a reviewing court dealing with a

pretrial detainee. Is the challenged condition or restriction

"reasonably related to a legitimate governmental objective," such

as maintaining order and security, or is it is arbitrary or

purposeless or excessive, in which case it is prohibitive

punishment? 99 S.Ct. at 1874. Significantly, no mention was

made of "deliberate indifference" which was an issue of

importance in Estelle in evaluating Eighth Amendment complaints

by convicted prisoners.

We recognized this distinction between convicted prisoners and

pretrial detainees in the en banc decision of Jones v. Diamond,

636 F.2d 1364 (5th Cir. 1981)14 and later in Alberti v.

Klevenhagen, 790 F.2d 1220 (5th Cir. 1986). In Alberti, inmates
22

challenged conditions in the county jail as unconstitutional. 

Their complaint was that inmate violence and sexual assault were

so rampant that the conditions violated the Eighth Amendment.

While Eighth Amendment standards protect those inmates

convicted of committing crimes, we note that the Harris

County jails also house large numbers of inmates who

are awaiting trial and have been unable to secure

release. The Due Process Clause of the Fourteenth

Amendment accords state pretrial detainees rights not

available to convicted inmates... "Due process

requires that a pretrial detainee not be punished. A

sentenced inmate, on the other hand, may be punished,

although that punishment may not be `cruel and unusual'

under the Eighth Amendment." Wolfish, 441 U.S. at 535

n. 16, 99 S.Ct. at 1872 n. 16, 60 L.Ed.2d at 466 n. 16. 

However, since incarceration necessarily imposes

restrictions on pretrial detainees, such restrictions

are valid, absent an intent to punish, if "reasonably

related to a legitimate objective" rather than

"arbitrary or purposeless." Id. 441 U.S. at 539, 99

S.Ct. at 1874, 60 L.Ed.2d at 468.

In Alberti, the district court had not expressly drawn this

distinction. However, the district court found, as did we, that

the violence and sexual abuse were so widespread in the jail that

the conditions violated even the greater Eighth Amendment

standard against cruel and unusual punishment. Necessarily then

the conditions were not "reasonably related to a legitimate

objective" but were rather "arbitrary or purposeless." We also

noted the "constitutionally rooted duty of jailers to provide

their prisoners reasonable protection from injury at the hands of

fellow inmates..." 790 F.2d at 1224.

The same year as Alberti, we decided Johnston v. Lucas, 786

F.2d 1254 (5th Cir. 1986). Petitioner Johnston was a convicted

prisoner who was stabbed by another inmate. The various prison
23

officials had ample warning that Johnston was in danger from this

particular inmate and had made efforts, ultimately unsuccessful,

to keep them separated. Using the Eighth Amendment as a guide

and citing Estelle, we concluded that "deliberate indifference"

was the appropriate standard to apply in denial of protection

claims as well as denial of medical care. Notable, of course, is

that Johnston was a convicted inmate, not a pretrial detainee.

In Cupit v. Jones, 835 F.2d 82 (5th Cir. 19897), we affirmed the

distinction between detainees and convicted prisoners and, in

particular, rejected the "deliberate indifference" standard with

respect to the detainees in the medical care context. The

petitioner was a pretrial detainee who alleged he was denied

proper medical attention for his heart condition. The magistrate

recommended dismissal of the complaint, specifically finding that

the petitioner failed to prove that the prison officials acted

with "deliberate indifference" to his needs. The district court

granted summary judgment for the defendants. On appeal, we

highlighted the distinction between the two classes of inmates

because "the due process clause of the fourteenth amendment

accords pretrial detainees rights not enjoyed by convicted

inmates under the eighth amendment prohibition against cruel and

unusual punishment." 835 F.2d at 84.

Today, we conclude that pretrial detainees are entitled

to reasonable medical care unless the failure to supply

that care is reasonably related to a legitimate

governmental objective. Furthermore, pretrial

detainees are entitled to protection from adverse

conditions of confinement created by prison officials
24

for a punitive purpose or with punitive intent. We

perceive this holding to be consistent with the

criterion for conditions imposed on pretrial detainees

set forth by the Supreme Court in Bell v. Wolfish. In

so holding, we recognize that the distinction as to

medical care due a pretrial detainee, as opposed to a

convicted inmate, may indeed be a distinction without a

difference, for if a prison official acted with

deliberate indifference to a convicted inmate's medical

needs, that same conduct would certainly violate a

pretrial detainee's constitutional rights to medical

care. However, we believe it is a distinction which

must be firmly and clearly established to guide

district courts in their evaluation of future cases

involving the constitutionality of all conditions

imposed upon pretrial detainees.

835 F.2d at 85. We concluded in Cupit that even though the

magistrate applied the wrong standard of "deliberate

indifference," the district court correctly dismissed the suit

because the evidence failed to show that Cupit was denied

reasonable medical care in the first place.

Thus, as of 1987, we had 5th Circuit precedent, in a condition of

confinement cases, acknowledging that pretrial detainees are

entitled to greater rights than convicted prisoners. Alberti. 

We also had precedent holding that the "deliberate indifference"

standard was the proper standard to apply in the context of

convicted prisoners who claimed denial of medical care or the

failure to protect. Johnston. Finally, we had precedent that

"deliberate indifference" was not the proper standard to apply in

a denial of medical care case involving a pretrial detainee. 

Cupit.

In Wilson v. Seiter, 111 S.Ct. 2321 (1991), the Supreme Court
15 The petitioner complained of overcrowding, unsanitary

restrooms and dining areas, inadequate heat, cooling, ventilation

and inadequate housing for the physically and mentally ill.

16 Since punishment, by definition, is a deliberate act

intended to deter or chastise, the state of mind of a prison

official is relevant in deciding whether he inflicted cruel and

unusual "punishment." 111 S.Ct. at 2325.

25

revisited the "deliberate indifference" standard in connection

with an Eighth Amendment challenge to prison conditions generally

brought by a convicted inmate15. The Court divided an Eighth

Amendment complaint into an objective component - was the

deprivation sufficiently serious - and a subjective component -

did the official act with a sufficiently culpable state of

mind16. 111 S.Ct. at 2324. With respect to the subjective

component, the Court extended the "deliberate indifference"

standard, articulated in Estelle with regard to denial of medical

care, to Eighth Amendment challenges of prison conditions

generally. An inmate has to prove, at a minimum, that the prison

official acted with "deliberate indifference" to the challenged

deprivation. This, of course, is consistent with the conclusion

reached earlier by our court in Johnston v. Lucas, infra.

In Williams v. County of El Paso, No. 91-8505, an unpublished

decision, a pretrial detainee was stabbed by another inmate and

claimed a denial of due process in the failure of the prison to

protect him. The district court applied a "deliberate

indifference" standard which the petitioner claimed on appeal was

a more culpable state of mind than required. The Williams panel
26

discussed the caselaw distinguishing pretrial detainees from

convicted prisoners generally. The panel cited Alberti. Alberti

stated that pretrial detainees had greater rights than convicted

prisoners but did not need to discuss the distinction in detail

since the conditions of violence in the jail in Alberti were so

severe that they violated the Eighth Amendment as well. The

Williams panel also noted that we had formulated the less

exacting standard of reasonableness with respect to denial of

medical care. Nonetheless, the Williams panel then declared that

"(u)ntil this court determines, however, that something less than

deliberate indifference applies to pretrial detainees in the

failure-to-protect context, deliberate indifference is the

standard to be applied in this case." Williams v. County of El

Paso, at p. 14. The panel overlooked the message of Alberti, in

fact a failure-to-protect case, where we had chided the lower

court for failing to draw the distinction between the rights of a

convicted prisoner and those of a pretrial detainee. As this

court has repeatedly held, one panel cannot overrule another

panel, even if one disagrees with the decision. Montesano v.

Seafirst Commercial Corporation, 818 F.2d 423 (5th Cir. 1987). 

Williams, therefore, must yield to Alberti.

In Sodie v. Canulette, No. 91-3620, an unpublished opinion issued

shortly thereafter, a pretrial detainee was assaulted by a

convicted prisoner and claimed his rights were violated because

the jail personnel did not protect him. The Sodie panel stated
17 We then applied the deliberate indifference standard and

dismissed Sodie's claim.

18 He also alleged that the jail staff was slow in coming

to his aid and later was lax with his post-operative needs.

27

correctly that the standard for a failure-to-protect claim by a

convicted prisoner is deliberate indifference. The panel then

stated that our court "has refused to find a distinction between

convicted inmates and pretrial detainees in a failure-to-protect

context," citing Alberti. Sodie, at p. 517. This was an

unfortunate error. Alberti in fact made a point of drawing a

distinction between the rights of pretrial detainees and

convicted prisoners. Alberti found, under the facts of the case,

that the conditions of violence and assault were so egregious

that they violated the Eighth Amendment standard, which

necessarily violated the lesser standard as well. Again, Sodie

must yield to the prior precedent of Alberti.

In Parker v. Carpenter, 978 F.2d 190 (5th Cir. 1992), we were

concerned with a pretrial detainee who alleged he was moved from

a minimum security area in the jail to one housing violent

inmates and that this was done in retaliation after an argument

with a guard. Once transferred, the petitioner stated he was

attacked by another inmate and lost his right eye18. The

district court dismissed the petition for failure to state a

claim. We reversed. We cited Bell v. Wolfish and Cupit v. Jones

in holding that pretrial detainees cannot be subjected to

conditions constituting punishment. An action or inaction
19 Recently the United States Supreme Court further defined

the "deliberate indifference" standard with respect to Eighth

Amendment claims. Farmer v. Brennan, 114 S.Ct. 1970 (1994). 

that decision did not deal with a pretrial detainee.

20 The opinion does not state whether Banana was a pretrial

detainee or a convicted prisoner. The underlying record

indicates he was a pretrial detainee.

28

relating to a detainee is punishment unless it reasonably relates

to a legitimate government objective. We specifically found that

Parker "has plead that his transfer to the violent inmate section

was an act of punishment which is a legal claim cognizable under

a 1983 claim." 978 F.2d at 192. "Deliberate indifference" was

not mentioned19. This was a published decision, in accord with 

Alberti and Cupit.

In Banana v. McNeel, No. 92-7184, a subsequent unpublished

opinion, the petitioner claimed his rights were violated, in

part, because of repeated assaults by other inmates while in

custody20. The district court applied the "deliberate

indifference" standard. Citing, Sodie and Williams, the Banana

panel declared that "deliberate indifference" is the appropriate

standard in failure-to-protect cases. Again, those decisions

glossed over the distinction between pretrial detainees and

convicted inmates, overlooked the prior precedent of Alberti and

likewise Parker. Banana also must yield to the earlier holdings.

We find the allegations and evidence in this case to be analogous

to those made in Parker v. Carpenter. In Parker, we remanded for
29

adjudication on the merits, articulating the test to be whether

Parker's transfer to a more violent unit was reasonably related

to a legitimate government purpose or whether it was done as

punishment or retaliation. We cited Cupit v. Jones which

rejected the "deliberate indifference" standard in considering

medical claims of pretrial detainees. We hold today that in all

conditions of confinement actions, medically related or

otherwise, it is not necessary for a pretrial detainee to

establish that the official involved acted with "deliberate

indifference" in order to establish a due process violation. The

test is whether the official action was reasonably related to a

legitimate government purpose or whether it was done for the

purpose of punishment or retaliation.

We therefore AFFIRM the District Court with respect to

Grabowski's 28 U.S.C. §2254 petition for writ of habeas corpus. 

We also AFFIRM the District Court with respect to Grabowski's 42

U.S.C. §1983 complaint insofar as it related to the restriction

of his visitation, telephone and recreation privileges. We

VACATE and REMAND the portion of the petitioner's §1983 complaint

that related to his cell placement, as the District Court did not

review the petitioner's claim under the appropriate standard. On

remand, the District Court should determine whether the placement

of Grabowski in the particular cell was reasonably related to

legitimate institutional objectives, or whether it was arbitrary

or purposeless.
30

JERRY E. SMITH, Circuit Judge, concurring in part and dissenting

in part:

I must respectfully but strongly disagree with today's

resourceful and well-intentioned opinion, which abuses circuit

precedent in a manner that I have not heretofore seen on this

court. Judge Berrigan's reasoning reflects a misunderstanding of

the manner in which we, as a common law court, apply and

interpret our prior cases.

Specifically, Judge Berrigan attempts to change circuit law

by declaring that several recent panels have misinterpreted prior

precedent. This eviscerates our well-established rule that one

panel cannot overrule another, even if the panel majority

believes that earlier interpretations were in error. Concluding

that such an approach counsels judicial anarchy, I dissent from

that portion of the opinion that deals with Grabowski's cell

assignment.

On the merits, Judge Berrigan's holding is contrary to the

overwhelming weight of authority from other circuits in failureto-protect cases involving pretrial detainees. In addition to

announcing an erroneous standard, her opinion has the unintended

consequence of rewarding racist conduct in prison. If this

opinion were binding circuit law))which it most decidedly is not

because it contravenes existing caselaw))a white racist could
31

ensure himself segregated housing in jail by doing what Grabowski

indisputably did: referring to a black legal assistant as a

"nigger bitch" and threatening (apparently in reference to

another inmate) to "cut that nigger's throat."

Moreover, Judge Berrigan's bold pronouncement is made in a

routine case, without oral argument, and in which the plaintiff

appears pro se. At the very least, the court should review this

matter en banc to ensure that if we are to announce so dramatic a

shift in circuit law, we do so with forewarning and plenary

deliberation and in a manner that adequately reconciles existing

caselaw.

I.

A.

Before discussing the merits of the instant case, I will

address the interpretive flaw in Judge Berrigan's opinion, for

that aspect of the opinion has odious consequences far beyond the

case at hand. Heretofore, this circuit has carefully abided by

the well-tested maxim that one panel of this court cannot

overrule another, even if it disagrees with the prior panel's

holding. See, e.g., Texas Refrigeration Supply v. FDIC,

953 F.2d 975, 983 (5th Cir. 1992). A "purpose of institutional

orderliness" is served by "our insistence that, in the absence of

intervening Supreme Court precedent, one panel cannot overturn

another panel, regardless of how wrong the earlier panel decision

may seem to be." Montesano v. Seafirst Commercial Corp.,
21 That case is Alberti v. Klevenhagen, 790 F.2d 1220 (5th Cir. 1986), which I

discuss at more length, infra.

22 Specifically, in regard to the initial Fifth Circuit case, Judge Berrigan

opines that one panel "overlooked [its] message"; a second panel's

interpretation of it "was an unfortunate error"; and a third panel "overlooked

the prior precedent."

32

818 F.2d 423, 425-26 (5th Cir. 1987). 

That rule is usually applied where a panel has addressed a

res nova issue and announced a new rule of law. Once that has

occurred, no subsequent panel may overrule the prior panel. 

The case sub judice presents a variation on that scenario. 

Several years ago, in the seminal case on this issue,21 a panel

made certain holdings but left some questions unanswered because

their answer was not necessary to the disposition of the case. 

Subsequently, other panels have interpreted that case; those

interpretations are holdings and constitute binding circuit

precedent. They in no way overrule or undermine the seminal

panel but merely fill in the gaps not specifically covered by

that panel's analysis.

Now, Judge Berrigan has decided that three subsequent panels

incorrectly interpreted the initial case.22 She does not

consider herself bound by the later panels, so she stoutly

establishes her own line of authority. One could conclude that

this is presumptuous; even if not, it is wholly unauthorized and

contrary to our rule of orderliness.

This method of reasoning should not be allowed to stand. It

permits any panel majority to undermine settled circuit law by

declaring that an entire line of cases has "misinterpreted"
23 By Judge Berrigan's reasoning, any panel would be free, at any time, to

override an entire line of interpretive jurisprudence by declaring that those

panels had misinterpreted an earlier case from this court or the Supreme

Court. For example, all of this court's cases interpreting bedrock decisions

such as Batson v. Kentucky, 476 U.S. 79 (1986), or Boeing Co. v. Shipman, 

411 F.2d 365 (5th Cir. 1969) (en banc), could be undermined by this device.

33

earlier authority and therefore need not be followed.23

A recent example will show how this court has handled

similar interpretive questions heretofore. In Elliott v. Perez,

751 F.2d 1472, 1479 (5th Cir. 1985), we imposed the heightened

pleading standard in 42 U.S.C. § 1983 cases. Elliott involved

individual defendants. In Palmer v. City of San Antonio,

810 F.2d 514, 516-17 (5th Cir. 1987), however, a panel

interpreted Elliott to apply to municipal defendants and, on the

basis of Elliott, imposed the heightened pleading standard in

suits against them, as well. 

Palmer's extension of Elliott to municipal defendants was

questioned, but there is no doubt that subsequent panels

considered themselves bound by it. See Leatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit, 954 F.2d 1054,

1057 (5th Cir. 1992) (applying Palmer but complaining that "[t]he

Palmer court did not explain why the heightened pleading

requirement should be extended to defendant municipalities,

considering that municipalities cannot claim the immunity

defense"), rev'd, 113 S. Ct. 1160 (1993). Accord id. at 1060-61

(Goldberg, J., concurring). 

Importantly, there was no suggestion that panels after

Palmer could simply declare that Palmer had misinterpreted

Elliott and thus did not constitute binding circuit precedent. 
24 The point of this discussion is that a panel cannot overrule, or declare

void, a prior panel's interpretation of earlier circuit caselaw, even if it

appears flawed. Where the prior panel was aware of, discussed, and attempted

to apply that caselaw, its interpretation itself becomes binding caselaw that

can be overruled only by action of the en banc court or the Supreme Court.

More commonly, our rule of orderliness comes into play when two panels

become "ships passing in the night." A subsequent panel may be unaware of an

earlier holding and, consequently, may reach a contrary result. No

interpretation is involved, as the later panel makes no mention of the earlier

case. In such an instance, we can easily say that the later opinion is a

nullity; any other rule would invite judicial chaos.

34

Only when the Supreme Court decided Leatherman, rejecting the

heightened pleading standard as to municipalities, was Palmer

effectively overruled.24

B.

I will now show how these generalities apply to the instant

case. As I have stated, the seminal case is Alberti v.

Klevenhagen, 790 F.2d 1220 (5th Cir. 1986), in which, as Judge

Berrigan observes, this court declared that the Due Process

Clause "accords state pretrial detainees rights not available to

convicted inmates." Id. at 1224. This was dictum, for Judge

Berrigan correctly interprets Alberti to conclude that "the

violence and sexual abuse were so widespread in the jail that the

conditions violated even the greater Eighth Amendment standard

against cruel and unusual punishment." As the higher Eighth

Amendment standard was satisfied, there was no specific holding

as to whether a different standard should be applied to the

failure to protect pretrial detainees.

Judge Berrigan, however, now declares that three subsequent

unanimous panels have misinterpreted Alberti in this respect. In
35

the failure-to-protect context for pretrial detainees, the first

such case to interpret Alberti was Williams v. County of El Paso,

966 F.2d 675 (table), No. 91-8505 (5th Cir. June 3, 1992) (per

curiam) (unpublished). There, the plaintiff, a pretrial

detainee, alleged a Fourteenth Amendment violation from a

stabbing incident in which he was permanently injured. A per

curiam panel of Judges Jolly, Davis, and Smith applied the

deliberate indifference standard, stating that that standard had

been adopted by this circuit in Johnston v. Lucas, 786 F.2d 1254,

1259-60 (5th Cir. 1986). We specifically held that the mention

of "reasonable protection" of prisoners in Stokes v. Delcambre,

710 F.2d 1120, 1124 (5th Cir. 1983), "was not meant to create a

reasonableness standard in deciding whether the duty was

violated." Williams, op. at 13. 

Judge Berrigan correctly observes that Johnston is

distinguishable from the instant case because Johnston involved a

convicted inmate, not a pretrial detainee. The significance of

Williams is that there, we discussed at length the issue

presented here: whether the plaintiff's status as pretrial

detainee or convicted prisoner is determinative. We acknowledged

that in Bell v. Wolfish, 441 U.S. 520 (1979), upon which Judge

Berrigan partly relies, "[t]he Supreme Court [drew] a distinction

between convicted prisoners and pretrial detainees." Williams,

op. at 13. 

In Williams, we observed that "Stokes . . . did not discuss

whether there is any difference between the rights enjoyed by
36

pretrial detainees and by convicted persons in the failure-toprotect context . . . ." Williams, op. at 13-14. We

distinguished the denial-of-medical-care cases, in which "we have

held that pretrial detainees are entitled to reasonable medical

care unless the failure to supply it is reasonably related to a

legitimate governmental objective." Williams, op. at 14 (citing

Jones v. Diamond, 636 F.2d 1364, 1378 (5th Cir. Jan. 1981) (en

banc), cert. dismissed, 453 U.S. 950 (1981), overruled on other

grounds, International Woodworkers of Am. v. Champion Int'l

Corp., 790 F.2d 1174 (5th Cir. 1986) (en banc), aff'd, 482 U.S.

437 (1987); Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987)).

The Williams panel then addressed whether, in a failure-toprotect case, the same standard was to be applied to pretrial

detainees as to prisoners. The Williams court answered this

question definitively in the affirmative.

First, the Williams panel noted that Stokes had not

discussed the matter. Williams, op. at 13. Then, the Williams

court described the import of Alberti as follows: "Although [in

Alberti] we recognized that Bell [v. Wolfish] established greater

rights for pretrial detainees than for convicted persons, we did

not attempt to formulate a different standard for pretrial

detainees for a failure-to-protect claim." Williams, op. at 14. 

Citing with approval Redman v. County of San Diego,

942 F.2d 1435, 1442-43 (9th Cir. 1991), cert. denied, 112 S. Ct.

972 (1992), and Anderson v. Gutschenritter, 836 F.2d 346, 349

(7th Cir. 1988), we held as follows: "Until this court
37

determines . . . that something less than deliberate indifference

applies to pretrial detainees in the failure-to-protect context,

deliberate indifference is the standard to be applied in this

case." Id. (emphasis added). 

Importantly, the Williams panel did not attempt to undermine

Alberti but merely interpreted it. At that point, Williams

became circuit law, binding on all subsequent panels, including

the instant panel for which Judge Berrigan writes.

If there was any doubt that Williams had announced the

standard to be applied, that uncertainty was erased two months

later by Sodie v. Canulette, 973 F.2d 923 (table), No. 91-3620

(5th Cir. Aug. 13, 1992) (per curiam) (unpublished). In Sodie,

the plaintiff, also a pretrial detainee, claimed his

constitutional rights were violated when prison officials failed

to protect him from attack at the hands of another inmate. 

Significantly, the per curiam panel (Judges King, Davis, and

Wiener) reasoned as follows:

Our standard for a failure-to-protect claim brought by

a convicted inmate is deliberate indifference. Johnson

v. Lucas, 786 F.2d 1254, 1259-60 (5th Cir. 1986). This

court has refused to find a distinction between

convicted inmates and pretrial detainees in a failureto-protect context. Alberti v. Klevenhagen, 790 F.2d

1220, 1224 (5th Cir. 1986). . . . We therefore apply

the deliberate indifference standard here.

Sodie, op. at 5-6 (emphasis added). We cited, with approval,

Whitley v. Albers, 475 U.S. 312, 327 (1986), and Redman and

Anderson, constituting caselaw from two other circuits applying

the deliberate indifference standard to pretrial detainees in the

failure-to-protect context.
38

It is significant that Sodie mentions Alberti and plainly

relies upon and interprets it. A year later, Sodie and Williams

were cited and followed in Banana v. McNeel, 5 F.3d 1495 (table),

No. 92-7184 (5th Cir. Sept. 22, 1993) (unpublished). There, the

plaintiff, a pretrial detainee, claimed Fourteenth Amendment

violations based upon the alleged failure of jail officials to

protect him from assaults from other inmates. The panel (Judges

Garwood, Davis, and Smith) applied the deliberate indifference

standard and stated that it is "required under Wilson v. Seiter,

111 S. Ct. 2321, 2324 (1991)." Banana, op. at 2 (footnote

omitted). In Banana, importantly, we noted that in Sodie and

Williams, we had held that in failure-to-protect cases, a court

must apply a deliberate indifference test.

Judge Berrigan avoids the first post-Alberti

case))Williams))by stating that the Williams "panel overlooked

the message of Alberti." But this is just another way of saying

that Judge Berrigan disagrees with the Williams panel's

interpretation of Alberti. 

Judge Berrigan certainly has the right to express her

disagreement with the way in which the post-Alberti jurisprudence

has developed))much as the Leatherman panel expressed discomfort

with Palmer's interpretation of Elliott. But in accordance with

our rule of orderliness, Judge Berrigan cannot overrule Williams

or its progeny, Sodie and Banana, merely by declaring that those

panels of this court misunderstood and misapplied prior circuit
25 The same reasoning applies to Judge Berrigan's attempt to avoid Sodie by

declaring that its interpretation of Alberti "was an unfortunate error." 

Similarly, Judge Berrigan accuses the Banana panel of "overlook[ing] the prior

precedent of Alberti." While Banana does not cite Alberti, it relies squarely

upon Sodie and Williams, both of which expressly interpret and apply Alberti.

26 This is a good example of "ships passing in the night." See supra note 4. 

The Parker panel made no effort to interpret or reconcile Williams or Sodie

for the good reason that, evidently, it did not know of their existence. Nor

does Parker even mention Alberti. Plainly, Parker cannot prevail in the wake

of these prior cases, and Judge Berrigan's attempt to rely upon it is

misguided.

39

law.25

Although Judge Berrigan discards Williams, Sodie, and

Banana, she relies upon the contrary precedent of Parker v.

Carpenter, 978 F.2d 190 (5th Cir. Nov. 20, 1992), decided three

months after Sodie and about a year before Banana. In Parker, a

pretrial detainee alleged that he was improperly moved to a

dangerous cell and that once injured, he was denied proper

medical care. In an opinion by Judge Thornberry (joined by

Judges Higginbotham and Barksdale), the panel, without mentioning

or considering the deliberate indifference standard, stated that

the test for both claims was whether the state action was

"reasonably related to a legitimate governmental objective." Id.

at 192. 

The Parker panel was correct in its test for medical care,

based upon Cupit v. Jones, 835 F.2d 82, 85 (5th Cir. 1987), upon

which it relied. In the failure-to-protect context, however,

that panel was without authority to overrule (sub silentio)

Williams and Sodie, of which the Parker panel presumably was

unaware.26 

The instant panel is bound by Williams and Sodie, not by
27 It goes without saying that the Banana panel was not bound by Parker,

which, as I have explained, is not circuit precedent because it directly

contravenes the earlier precedent established by Williams and Sodie.

40

Parker, because in the event of two conflicting precedents, the

prior opinion controls. Smith v. Penrod Drilling Corp.,

960 F.2d 456, 459 n.2 (5th Cir. 1992). By this rule, Banana also

correctly reflects the law of this circuit in the failure-toprotect context by its adherence to Williams and Sodie.

27 

Accordingly, Judge Berrigan misunderstands the manner in

which this court interprets and applies its existing precedent. 

Her opinion is not the law of this circuit, as she has no

authority to overrule this court's well-established precedents,

Williams, Sodie, and Banana.

II. 

Judge Berrigan's opinion is also notable in that it makes no

mention of the law in other circuits. Significantly, the

overwhelming weight of authority among the circuits is to the

effect that the deliberate indifference standard applies to

pretrial detainees. See Anderson v. County of Kern, 1995 U.S.

App. LEXIS 544, at *3 (9th Cir. Jan. 13, 1995) (citing Redman v.

County of San Diego, 942 F.2d 1435, 1442-43 (9th Cir. 1991) (en

banc) (failure to protect pretrial detainee from rape), cert.

denied, 112 S. Ct. 972 (1992)) (placement of suicidal and

mentally disturbed pretrial detainees in safety cells); Hill v.

Dekalb Regional Youth Detention Ctr., 40 F.3d 1176, 1185-94 (11th

Cir. 1994) (complaint by juvenile detainee regarding medical care
41

and protection from sexual assault); Howard v. Dickerson, 34 F.3d

978, 980 (10th Cir. 1994) (medical care); Whitnack v. Douglas

County, 16 F.3d 954, 957 (8th Cir. 1994) (deliberate indifference

standard applied to all conditions-of-confinement cases); Massey

v. Rufo, 14 F.3d 44 (table), 1994 U.S. App. LEXIS 6202, at *2 n.1

(1st Cir. Jan. 14, 1994) (per curiam) (unpublished) (citing Bell

v. Wolfish, 441 U.S. at 535 n.16; Elliott v. Cheshire County,

940 F.2d 7, 10 & n.2 (1st Cir. 1991) (medical care)); Kost v.

Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (nonmedical

conditions of confinement); Gray v. Farley, 13 F.3d 142, 146 (4th

Cir. 1993) (medical care); Anderson v. Gutschenritter,

836 F.2d 346, 348-49 (7th Cir. 1988) (failure to protect pretrial

detainee from assaults from other inmates); Molton v. City of

Cleveland, 839 F.2d 240, 243 (6th Cir. 1988) (medical care),

cert. denied, 489 U.S. 1068 (1989). 

No other circuit has come close to the sweeping statement

Judge Berrigan makes today: that "in all conditions of

confinement actions, medically related or otherwise, . . . [t]he

test is whether the official action was reasonably related to a

legitimate government purpose . . . ." To that extent, Judge

Berrigan unnecessarily creates a circuit split by authoring an

opinion at odds with the well-reasoned views of the above-cited

courts of appeals.

III.

Finally, I must comment on the factual substance of the
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present case. Grabowski is, apparently, an avowed white racist. 

He claims the Constitution was violated when he was assigned to a

cell with black inmates. In her opinion for the panel majority,

Judge Berrigan expresses no cognizance of the extremely sensitive

and volatile nature of this dispute. 

Grabowski claims he was assigned to be housed with blacks

because he was known to have engaged in racially derogatory

outbursts and threats. We must be careful not to define the law

in such a way that Grabowski and others can ensure themselves of

racially segregated prison living simply by exhibiting racism

openly and in such a way that they voluntarily expose themselves

to physical danger at the hands of other inmates. 

Judge Berrigan imposes the "reasonable governmental

objective" standard regarding the decision to put Grabowski in

integrated living conditions. But requiring such a showing is

wholly unreasonable, as pretrial detainees are transferred as

part of legitimate, day-to-day prison operations. In Bell, 441

U.S. at 539 n.20, the Court indicated that state officials do not

have to justify facially legitimate prison measures absent a

showing of punitive intent. This is precisely what Judge

Berrigan's opinion does, however.

Moreover, it seems, intuitively, that racially integrated

housing should be the presumption, and segregation the rare

exception. Instead, Judge Berrigan's opinion treats this

sensitive issue as benignly as we normally would treat routine

conditions of confinement such as the temperature of the cells or
43

the taste of the food. In so doing, Judge Berrigan fails to

address the problems that can be created by enunciating a

standard that could well result in an increase in segregated

conditions in our prisons and jails. 

IV.

In summary, the standard that Judge Berrigan attempts to

announce today is substantively unwise and, more importantly,

contravenes established Fifth Circuit law. Accordingly, that

standard most decidedly is not the binding law of this circuit,

though if it is not overruled en banc it certainly will be cited,

by other plaintiffs in Grabowski's circumstance, as the law of

the circuit, thus leading to confusion in this court's

jurisprudence. Despite Judge Berrigan's diligent and heartfelt

efforts, I must conclude that her holding is unauthorized and

imprudent, and accordingly, I respectfully dissent.