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No. 92-7728
ROD GRABOWSKI, Plaintiff-Appellant,
No. 94-60089
EDWARD HARGETT, Superintendent,
Mississippi State Penitentiary, et al.,
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
* District Judge of the Eastern District of Louisiana, sitting by

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
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.

2254. He made the following allegations:
His guilty plea was induced by coercion.
He did not receive the effective assistance of counsel.
His arrest and the search of his car were illegal.
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
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.

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
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.

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.
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).

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
4 The reduction of armed robbery to robbery apparently
favorably affected Grabowski's eligibility for early release.

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.
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.

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

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).
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.

There was no double jeopardy violation.
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
7 #90-1500, Summary Calendar, January 19, 1991

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 co-
defendant 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;

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
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

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
"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

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 in-
house visitation.
The District Court correctly concluded that Grabowski's due
process rights were not violated by the revocation of his in-
house 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
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.

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
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
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.

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.
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.

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
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.

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 post-
conviction unit where he allegedly was attacked and beaten.
We are sympathetic to the difficult task jail administrators face
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.

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 post-
conviction 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.

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
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).

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
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.

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

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

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.
In Wilson v. Seiter, 111 S.Ct. 2321 (1991), the Supreme Court

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
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.

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

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
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.

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
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.

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.

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
On the merits, Judge Berrigan's holding is contrary to the
overwhelming weight of authority from other circuits in failure-
to-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

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
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.,

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"
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."

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.
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.

Only when the Supreme Court decided Leatherman, rejecting the
heightened pleading standard as to municipalities, was Palmer
effectively overruled.24
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
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.

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

pretrial detainees and by convicted persons in the failure-to-
protect 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-to-
protect 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

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 failure-
to-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.

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

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
The instant panel is bound by Williams and Sodie, not by
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

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-to-
protect 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.
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
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.

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.
Finally, I must comment on the factual substance of the

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

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.
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.

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