399 F.

3d 150

Gregory HUBBARD; Alvin Phillips; Julian Payne; Curtis

Gibbs; Gregory J. Bolling; Leonard Garner; Gregorio Tomas;
Desmond Brown; Thellie Chamblee; Spud M. Burns, Jr.;
Robert Ward; Christopher Vavala; Kristofer Jackson;
Timothy Thomas; Paul C. Woodward; Joseph Michael
Creegan, Jr.; Javari Williams; Floyd Hunt; Bryant Charles;
Claude Jones; Eddie A. Carter; Theodore Jackson; Andre
Murray; Atif Mohammad; Pedro Rivera, Jr.; Andrew P.
Blake; Linwood Wilson; William T. Davis; Will T. Graham;
Kevin M. Agnew; Noel Santiago; Walter Krause, III; Barry J.
Green; Wedus Maddox, a/k/a Wedus Moddo; Raymond
Stevens; James A. Wilson; Matthew Major, Jr.; Percy
Osborne; Kevin Ketchum, Appellants,
v.
Stanley TAYLOR, Commissioner; Raphael Williams, Warden;
M. Jane Brady, Attorney General.
No. 03-2372.

United States Court of Appeals, Third Circuit.

Argued February 12, 2004.
February 23, 2005.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Paul E. Crawford, (Argued), Helena Rychlicki, Connolly
Bove Lodge & Hutz, Wilmington, for Appellants.
Richard W. Hubbard, (Argued), Gregory E. Smith, Deputy Attorneys
General, State of Delaware, Department of Justice, Wilmington, for
Appellees.
Before SCIRICA, Chief Judge, ROTH and McKEE, Circuit Judges.
OPINION
McKEE, Circuit Judge.

Pre-trial detainees housed at a correctional facility in Delaware ask us to review

the district court's grant of summary judgment in favor of prison officials and
the state's Attorney General. The detainees claim that certain conditions of their
confinement deprive them of liberty without due process of law in violation of
the Fourteenth Amendment. Inasmuch as we conclude that the district court
improperly analyzed their claim under the Eighth Amendment, rather than the
Due Process Clause of the Fourteenth Amendment, we will reverse and remand
for an appropriate due process analysis.

I. FACTS
2

The Multi-Purpose Criminal Justice Facility commonly known as "Gander

Hill," is located in Wilmington, Delaware. It was constructed in 1982 and
enlarged when a new wing was added in 1992. Stanley Taylor has been the
Commissioner of the Delaware Department of Corrections (the "DOC") since
the fall of 1995, Raphael Williams is the warden at Gander Hill, and M. Jane
Brady is the Attorney-General of Delaware.

On May 30, 2000, a number of pre-trial detainees at Gander Hill filed a

handwritten pro se complaint against Taylor, Williams, and Brady. The suit
was brought under 42 U.S.C. 1983 and alleged that various conditions of the
detainees' confinement violated the Due Process Clause of the Fourteenth
Amendment.1 An amended complaint was filed following appointment of
counsel. The amended complaint sought declaratory and injunctive relief,
damages, attorneys' fees and costs; and it added Kevin Ketchum and Percy
Osbourne as plaintiffs. Like the original plaintiffs, Ketchum and Osbourne
alleged a due process violation based upon conditions of their confinement, but
they added a claim under the Americans with Disabilities Act.2

Pre-trial detainees are housed in the West Wing of Gander Hill, and convicted
inmates are generally housed in the East Wing.3 The typical West wing
modular unit or "pod" contains two housing units connected by a control room
from which correctional officers can observe the two units. Each unit contains a
large dayroom of approximately 3,900 square feet, containing a sink, tables,
chairs and a television. Twenty cells surround the dayroom. With some minor
variation, they are all approximately the same size.

5A. The Conditions of Confinement Claim.

Plaintiffs' conditions of confinement claim rests upon their challenge to the

practice of housing three detainees in cells intended and designed for one
person ("triple-celling").4 Plaintiffs claim that triple-celling requires someone
to sleep on a mattress that must be placed on the cell floor adjacent to a toilet.
Plaintiffs allege that this violates the Fourteenth Amendment by depriving them
of their liberty without due process of law.5

The defendants concede that an inmate must sleep on a floor mattress when
three are housed in a given cell. When that happens, the newest arrival is
required to sleep on a mattress on the floor until one of his cellmates is released
or moved. That frees a bunk for the inmate who had been on the floor mattress,
and any new arrival in that cell would then take his place on the floor mattress.6

The cells range in size from 69 to 76 square feet, and the net unencumbered
space in the cell (gross footage of 69-76 square feet less space required for a
bed, mattress, desk and toilet) is less than 50 square feet or 16 square feet per
occupant of each tripled cell. Plaintiffs claim that the bunk bed and floor
mattress leave extremely limited space for three adult men to move about in the
cell. They claim that these cramped conditions have caused injuries including
some as serious as a broken leg. For example, Darrin Moon was a detainee at
Gander Hill in June 2000. He claims that his leg was broken when a cellmate
jumped off the bunkbed in the middle of the night and landed on Moon's leg.
Another detainee, Gregory Bolling alleges a similar mishap. Bollling claims he
sustained numerous injuries including an infected shin as a result of attempting
to navigate the one foot clearance between the bunkbed and his cellmate's
mattress,

Plaintiffs claim that the deprivations are exacerbated because sleeping on the
floor forces detainees to sleep very near the open toilet. This has purportedly
resulted in urine and feces regularly splashing on whomever is relegated to the
floor mattress. For example, detainee Gregory Hubbard stated, "one of the
primary things that I felt was degrading was the sleeping on the floor and
having to sleep on the floor next to a urinal or toilet as long as I did when other
arrangements could have been made to provide me with a bunk like the other
two individuals in my room."

10

Plaintiffs claim that pre-trial detainees typically spend a minimum of 2 months,

and most spend 3 to 7 months, sleeping on a floor mattress before a cellmate
leaves and a bunk becomes available. They also argue that they have to deal
with the extreme discomfort and disease associated with sleeping on a concrete
floor. According to them, a Prison Facilities Audit supports their claim that the
foam mattresses provided by the prison officials are thin, worn-out and filthy.
The Prison Facilities Audit described the conditions in pertinent part as follows:

11

In most housing units many mattresses are used on the floor without
protective covers. Since the institution does not have mattress sanitizing
facilities, some sort of protective cover should be used. If covers are not
feasible, then perhaps a sheet of plastic or a cloth sheet should be placed on the
floor to help keep the mattress clean.

12

Plaintiffs insist that conditions were no better five months later when a report
noted that "[t]here are no facilities available for cleaning of those mattresses."
Still later, in May 2001, the unsanitary conditions were purportedly still being
noted in the official internal reports. According to plaintiffs, these floor
mattresses were not only unsanitary, they were also so thin, worn and
uncomfortable that sleeping on them was tantamount to actually sleeping on the
bare floor.

13

Plaintiffs insist that prison officials could have prevented "triple bunking"7 and
its associated problems. They claim that these problems would have been
avoided had Commissioner Taylor added the additional 2500 beds that had
been envisioned as part of a "Master Plan" that was devised in response to
litigation that has been ongoing for 20 years. The earliest suit was filed in
March 1980 and was resolved in a 1988 Settlement Agreement. There, prison
officials agreed to stop "double bunking" and return to placing a single inmate
in cells at state prisons. Dickerson v. Castle, Civ. Act. No. 10256, Delaware
Court of Chancery. However, plaintiffs claim that the additional beds were
never occupied because prison officials failed to train enough correctional
officers to properly respond to an increase in the prison population. Thus, in
plaintiffs' view, the prison officials are responsible for the overcrowded
conditions at Gander Hill.

B. The Americans With Disabilities Act Claim.

14

As noted above, the amended complaint added the ADA claims of Kevin
Ketchum and Perry Osbourne. However, Osbourne has since died of cancer and
the plaintiffs concede that his death moots his claim. Ketchum has end-stage
renal failure and loss of kidney function. He has been on dialysis since 1994
and allegedly requires a kidney transplant that officials purportedly refuse to
facilitate.8 However, he can not receive a kidney transplant unless he is first
placed on the transplant waiting list maintained by the United Network for
Organ Transplants ("UNOS").

15

According to plaintiffs, Ketchum has been petitioning prison officials to start

the process for getting a kidney transplant since 1977 when he first asked them
to release documents so that he could be placed on the transplant list as his

physician recommended. According to plaintiffs, Ketchum has a compelling

need to get on the transplant list quickly because he is reaching the outer limits
of the time he can tolerate dialysis.9
C. The Defendants' Response.
16
17

Gander Hill receives approximately 18,000 admissions per year, and the
defendants maintain that neither Taylor nor the warden have any control over
that number. The officials concede that triple-celling is used at Gander Hill, and
that this forces some detainees to sleep on a floor mattress. However, they deny
that the mattresses are adjacent to toilets. Officials claim that there is ample
room to arrange a mattress so that the toilet is at the resident's foot and several
feet away. Thus, say the defendants, there is no reason for anyone to worry
about unsanitary and unhealthy conditions as a result of sleeping on the floor.
They draw support for their position from the deposition testimony of detainees
Moon and Wilson.

18

Moon testified in relevant part as follows:

19

I chose to sleep with my head towards the window and my feet towards the
toilet. Let's say, from my waist down where their beds are. Because if I slept the
other way, and somebody used the bathroom, I would have to worry about him
standing over top of me and water and urine splashing over me.

20

The officials note that Moon did not say that urine and feces splashed on him as
plaintiffs' claim suggests. Rather, he only said that he worried about that
happening. Moon also stated that he could address that concern by simply
sleeping with his head away from the toilet.

21

Defendants also cite the exchange during detainee Wilson's deposition that
defendants claim further demonstrates that plaintiffs' claims are exaggerated:

22

Q: So it is your contention that you're not being treated like a human being?

23

A: On that west side? Yes, sir. If you got to sleep down beside the toilet and
feces and you got to use the bathroom when the C.O. not come in and there's a
couple other inmates in there with you; yes. Yes. Food cold. Whew. Yes.

24

Officials point out that Wilson did not say that urine and feces splashed on him
either. Rather, he said that he had to "sleep down beside the toilet and feces."
The defendants argue that it can be assumed that any feces remained inside the

toilet and they note that Wilson's testimony is not to the contrary. The
defendants also point out that even if one assumes Wilson was sleeping with his
head next to the toilet, the record does not explain why he chose to sleep in that
position when he apparently did not have to.
25

Moreover, according to the defendants, the detainees who must sleep on floor
mattresses are not near the toilets in any event. In his affidavit, Acting Deputy
Warden Phelps claims that most mattresses in cells in the West Wing of Gander
Hill are two and one-half feet from the toilet. Although plaintiffs estimate that
distance, Phelps actually measured it and Moon's testimony is not inconsistent
with Phelps' testimony because Moon did not specify a distance. Moreover,
defendants point out that the record further undermines plaintiffs' claims of
disease because Moon's deposition is the only record of disease and he only
testified that he caught a cold.

26

As noted earlier, the plaintiffs allude to official records that purportedly

documented allegations regarding old and dirty mattresses. The defendants
claim that this is a distortion. According to defendants, plaintiffs fail to mention
that those mattresses were replaced after prison officials realized the condition
the old mattresses were in.

27

The defendants refute Ketchum's ADA claim by noting that Ketchum never
suffered any injury while in the care of the DOC and that Ketchum's own
physician disapproved his placement on the kidney transplant list. According to
the defendants, the plaintiffs admitted in the district court that Ketchum's own
physician and the prison health care provider told Ketchum that he was not
eligible for the National Transplant List. Furthermore, defendants claim that
Ketchum admitted that the Chief of the Bureau of Prisons told him that the
DOC would pay for a transplant if the doctors said it was medically necessary.

II. DISTRICT COURT PROCEEDINGS

28

The district court issued a Memorandum Order granting summary judgment to

the prison officials on both claims. The court also denied a motion for class
certification that plaintiffs had filed in an attempt to represent a class of over
3,000 pre-trial detainees. See Hubbard v. Taylor, 2003 WL 1697537 (D.Del.
March 28, 2003).10 This appeal followed.11

III. DISCUSSION12
A. Applicable Legal Principles.
29

30

The Supreme Court first discussed the application of the Due Process Clause to
pre-trial detainees in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d
447 (1979). There, federal pre-trial detainees claimed that a number of the
conditions of their confinement violated various provisions of the Constitution.
The challenged conditions included the practice of confining two inmates in a
cell intended and designed for one. That practice was the only condition that
implicated their due process rights. 441 U.S. at 530, 99 S.Ct. 1861.13 In
resolving the issue, the Court stated:

31

[i]n evaluating the constitutionality of conditions or restrictions of pretrial

detention that implicate only the protection against deprivation of liberty
without due process, we think that the proper inquiry is whether those
conditions amount to punishment prior to an adjudication of guilt in accordance
with law. For under the Due Process Clause, a detainee may not be punished
prior to an adjudication of guilt in accordance with due process of law.

32

Id. at 535, 99 S.Ct. 1861 (citations omitted). Of course, the government "may ...
incarcerate a person charged with a crime but not yet convicted to ensure his
presence at trial[.]" Id. at 531, 99 S.Ct. 1861. "Traditionally, this has meant
confinement in a facility which, no matter how modern or how antiquated,
results in restricting the movement of a detainee in a manner in which he would
not be restricted if he simply were free to walk the streets pending trial[.]" Id. at
537. There nevertheless remains "a distinction between punitive measures that
may not be constitutionally imposed prior to a determination of guilt and
regulatory restraints that may."14 Id. (citations omitted).

33

In order to determine whether the challenged conditions of pre-trial

confinement amount to punishment,

34

[a] court must decide whether the disability is imposed for the purpose of
punishment or whether it is but an incident of some other legitimate
governmental purpose. Absent a showing of an expressed intent to punish on
the part of the detention facility officials, that determination generally will turn
on whether [it has] an alternative purpose ... and whether it appears excessive in
relation to [that] purpose.... Thus, if a particular condition or restriction of
pretrial detention is reasonably related to a legitimate governmental objective, it
does not, without more, amount to "punishment." Conversely, if a restriction or
condition is not reasonably related to a legitimate goal if it is arbitrary or
purposeless a court may permissibly infer that the purpose of the
governmental action is punishment that may not constitutionally be inflicted
upon detainees qua detainees.

35

Id. at 538-39, 99 S.Ct. 1861 (citations, brackets and internal quotations

omitted). However, the Court did not "detail the precise extent of the legitimate
governmental interests that may justify conditions or restrictions of pretrial
detention[.]" In Bell, the Court reasoned that it need only

36

recognize that in addition to ensuring the detainees' presence at trial, the

effective management of the detention facility once the individual is confined
is a valid objective that may justify imposition of conditions and restrictions of
pretrial confinement and dispel any inference that such restrictions are intended
as punishment.

37

Id. at 540, 99 S.Ct. 1861. In determining whether conditions or restrictions are

38

reasonably related to the Government's interest in maintaining security and

order and operating the institution in a manageable fashion, courts must heed
our warning that such considerations are peculiarly within the province and
professional expertise of corrections officials, and, in the absence of substantial
evidence in the record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.

39

Id. at 540 n. 23, 99 S.Ct. 1861 (citations and internal quotations omitted).

40

The Court held that double-bunking under the circumstances there did not
constitute punishment. Accordingly, it did not violate the pre-trial detainees'
due process rights. Id. at 541-543, 99 S.Ct. 1861. More precisely, the Court
found no due process violation where pre-trial detainees who were detained for
generally less than sixty days were housed in 75 square feet of space containing
a double bunk for six to seven hours a day, primarily for sleeping purposes.
However, the Court offered a significant caveat. It cautioned that "confining a
given number of people in a given amount of space in such a manner as to
cause them to endure genuine privations and hardship over an extended period
of time might raise serious questions under the Due Process Clause as to
whether those conditions amounted to punishment." Id. at 542, 99 S.Ct. 1861. It
did not, however, elaborate upon the duration of confinement that could
constitute "an extended period of time," nor did it elaborate upon the kind of
"privations and hardship" that could constitute punishment in violation of the
Due Process Clause.

41

Those issues were, however, present four years later when we decided Union
County Jail Inmates v. DiBuono, 713 F.2d 984 (3d Cir.1983). There, pre-trial

detainees alleged that admittedly serious overcrowding in the county jail

resulted in conditions of confinement that constituted punishment in violation
of the Due Process Clause of the Fourteenth Amendment.15 After discussing
Bell v. Wolfish at some length, we distilled its teachings into the following twostep test:
42

we must ask, first, whether any legitimate purposes are served by these
conditions, and second, whether these conditions are rationally related to these
purposes. In assessing whether the conditions are reasonably related to the
assigned purposes, we must further inquire as to whether these conditions
"cause [inmates] to endure [such] genuine privations and hardship over an
extended period of time, that the adverse conditions become excessive in
relation to the purposes assigned to them."

43

713 F.2d at 992 (citing Bell, 441 U.S. at 542, 99 S.Ct. 1861) (internal quotation
marks omitted). Our inquiry into whether given conditions constitute
"punishment" must therefore consider the totality of circumstances within an
institution. Id. at 996; see also Jones v. Diamond, 636 F.2d 1364, 1368 (5th
Cir.1981) ("In determining whether conditions of confinement are
unconstitutional under ... the fourteenth amendment, we do not assay separately
each of the institutional practices, but look to the totality of the conditions."),
overruled in part on other grounds, Int'l Woodworkers of America, AFL-CIO v.
Champion Int'l Corp., 790 F.2d 1174 (5th Cir.1986) (en banc).

B. Effect of Union County Jail Inmates v. DiBuono on the Plaintiffs' Condition of

Confinement Claim.
44

Plaintiffs argue that Union County Jail Inmates controls our analysis and
requires that we conclude that requiring pre-trial detainees to sleep on floor
mattresses constitutes a due process violation. The district court rejected that
argument based upon its conclusion that the relevant discussion there was
dictum. 2003 WL 1697537 at *4. Plaintiffs' strongly disagree and forcefully
argue that our inquiry is controlled by the precedent of Union County. The
defendants just as forcefully disagree. Since Union County could potentially
determine the outcome here, we will examine that decision in some detail.

45

As noted earlier, in Union County, pre-trial detainees brought a class action

under 1983 against various county officials alleging that certain of the
conditions of their confinement violated the Due Process Clause of the
Fourteenth Amendment. The county admitted that pre-trial detainees were
being held in the overcrowded conditions specified in the complaint. However,
the county filed a third party complaint against the Commissioner of the

Department of Corrections alleging that the overcrowding resulted from the

Commissioner's refusal to house prisoners who had been sentenced to state
prison, as required by statute. According to the county, that refusal caused the
overcrowding by requiring the county to house inmates who would otherwise
have been housed in state facilities
46

Thereafter, the Governor issued an executive order declaring that overcrowding

in state prisons and county jails constituted a state of emergency. The
Governor's order also suspended operation of the statute requiring him to
accept county prisoners who had been sentenced to state prison. Instead, it gave
the Commissioner the authority to designate the place of confinement for both
county and state inmates whether they were pre-trial detainees or convicted
prisoners. Union County Jail was designated as the place of confinement for
state prisoners sentenced in Union County because the Commissioner had
determined that certain modifications would allow it to exceed its rated capacity
of inmates.

47

In time, the county inmates entered into a consent decree with the county
specifying that prison capacity would not exceed one inmate per cell.16 The
district court approved the agreement and entered a consent decree based upon
it even though the Commissioner of Corrections was not a party to it.
Nevertheless, the court directed the Commissioner to show cause why he
should not be compelled to accept custody of all state prisoners in the county
jail, and the court subsequently appointed a Special Master to investigate jail
conditions and monitor compliance with the consent decree.

48

Thereafter, the Special Master found six specific violations that he believed
constituted violations of the pre-trial detainees' constitutional rights. These
included: (1) housing several inmates in detention cells for more than a few
days without adequate sleeping arrangements; (2) requiring detainees to sleep
on floor mattresses adjacent to toilets, for more than a few days; (3) requiring
detainees to sleep on floor mattresses in other parts of the jail, for more than a
few days; (4) requiring detainees to wear the same clothing for several weeks,
[in violation of a state statute]; (5) failing to screen for communicable diseases;
and (6) depriving detainees of any meaningful opportunity for recreation.

49

The Master concluded that overcrowding resulted from housing two inmates in
cells designed for one, and requiring the second inmate to sleep on "mattresses
placed on the floors of these 5' 7' cells next to the toilet." 713 F.2d at 988.
The Commissioner objected to the Master's report. The Commissioner claimed
that since housing more than one inmate in a cell had not been declared
unconstitutional, the overcrowding could be solved by using bunk beds instead

of floor mattresses. According to the Commissioner, this would satisfy the

mandate of Bell v. Wolfish.
50

The district court adopted the Special Master's findings without modification.
The court held "that the totality of the circumstances resulting from
overcrowding at the Jail, and most notably forcing pre-trial detainees to sleep
on mattresses placed on the floor, constituted a violation of the detainees' due
process rights." 713 F.2d at 989. The district court rejected the Commissioner's
suggestion for bunk beds. The court reasoned that, given space limitations,
double-celling amounted to punishment in violation of the pretrial detainees'
due process rights. Since bunk beds would only perpetuate housing two inmates
in cells designed for one, the district court invalidated the governor's executive
order. The court also voided the Commissioner's designation of Union County
jail as the place of confinement for state prisoners sentenced in Union County.
Accordingly, the Commissioner had to transfer all state prisoners to state
prisons.

51

On appeal, the Commissioner objected to the following provisions of the

consent decree: (f) (establishing a maximum capacity at the jail [at] one
inmate per general population cell); (g) (giving the defendants until July 1,
1982 to reduce the inmate population to 238); and (h) (authorizing the county
to notify the department of corrections to remove any state prisoners who
remained at the county jail beyond the statutorily allowed period of time).17
The gist of the Commissioner's objection to the consent decree was that state
law gave him the authority to determine inmate population levels in the Union
County Jail.

52

In reviewing the district court's decision, we noted that the district court's
conclusion that the jail overcrowding was rationally connected to the objective
of detaining inmates who could not make bail. The fact that the policy served
both state and county governmental interests was not contested on appeal. 713
F.2d at 993. Therefore, "[t]he only question ... remaining [under Bell was]
whether the conditions and restrictions resulting from inmate overcrowding
[could] be considered excessive in relation to the purposes assigned to them."
Id. In conducting that analysis, we noted that two conclusions emerged from
the proceedings in the district court:

53

First, from the positions taken by the County and the Commissioner, we do not
understand either of them seriously to contest the unconstitutionality, in the
context of overcrowded conditions, of forcing pre-trial detainees to sleep for
more than a few days on mattresses placed on the floor of a 5' x 7' cell adjacent
to an open toilet which both cellmates must use. Indeed, the County conceded,

at oral argument ... that conditions as found by [the Special Master] were
unconstitutional. Thus, the district court's implicit holding that conditions as
found by the Special Master are "excessive in relation to the purposes assigned
to them," is not questioned on this appeal.
54

Our second conclusion is that, of all the various conditions challenged as being
unconstitutional, the most significant, and indeed the only condition not
meeting constitutional standards, was the practice of placing a mattress on the
floor for the second occupant of a cell designed for but one inmate. It is not
surprising, therefore, that the Commissioner focused on an alleviation of this
latter condition by recommending double-bunking in such cells. The
Commissioner contended that if, by providing double bunks, ... constitutional
objections to overcrowding could be overcome, then the Commissioner's
discretion in determining where state prisoners should be placed, should not be
overridden. We therefore turn to a consideration of the two-in-a-cell or doublebunking practice.

55

Id. at 994 (emphasis added).

56

The district court had concluded that double-bunking of pre-trial detainees was
a constitutional violation because it imposed hardships tantamount to
punishment. Accordingly, the court had ruled that practice an unconstitutional
denial of the detainees' right to due process. However, we rejected the district
court's spatial analysis and found that the Commissioner's recommended
double-bunking would not only alleviate the problem resulting from floor
mattresses, but would also free recreational space where detainees had
previously had to sleep. We acknowledged that, even with double-bunking, the
cells at issue would remain "cramped and overcrowded" and "very far from
ideal [.]" However, we also noted that pre-trial detainees would have adequate
room for sleeping and recreation. Id. at 996. We therefore "reject[ed] the
district court's holding of unconstitutional conditions based solely on
considerations of space." Id. at 996 (citation and internal quotations omitted).
We explained:

57

First, and most importantly, providing double bunks will avoid the unsanitary
and humiliating practice of forcing detainees to sleep on mattresses placed
either on the floor adjacent to the toilet and at the feet of their cellmates, or
elsewhere in the Jail. Second, double-bunking will avoid the practice of having
more than two detainees without adequate sleeping arrangements in the
detention cells. Third, double-bunking will make it possible for recreational
areas at the Jail to be cleared and dedicated to their original function. Thus, the
remedial scheme put forth by the Commissioner, combining double-bunking

with discharge of the County's obligations under the consent judgment, would
effectively cure all of the conditions that were of particular concern to the
Special Master....
58

Thus, although the question is not without difficulty, we are satisfied that, if the
Commissioner's proposals ... were fully implemented, conditions at the Jail
would pass constitutional muster.

59

Id. at 996 (emphasis added). We also noted that pre-trial detainees were
confined at the jail "for generally a maximum period of 60 days." Id. at 997
(citation omitted). We held that the district court had abused its discretion in
rejecting the Commissioner's proposed remedies and ordered the district court
to vacate portions of the consent decree that had rejected the Commissioner's
proposed remedy. Id. at 1003. We therefore concluded that the Commissioner's
plan would alleviate the constitutional violations.

60

Plaintiffs' condition of confinement claim here is largely based upon the

following language in Union County: "[O]f all the various conditions
challenged as being unconstitutional, the most significant, and indeed the only
condition not meeting constitutional standards, was the practice of placing a
mattress on the floor for the second occupant of a cell designed for but one
inmate." 713 F.2d at 994.18 However, the district court here properly
recognized that statement was dictum because the Commissioner (the appellant
in Union County) had conceded the unconstitutionality of the practice. In Union
County, we specifically noted that "[t]he State does not assert that it is proper
for the County to require inmates to sleep on mattresses on the floor.... So the
Special Master properly recommended that the floor mattresses practice should
be eliminated." Id. at 994. Thus, we did not have to consider the
constitutionality of the practice because both parties agreed that it was
unconstitutional. Accordingly, the issue of the constitutionality of placing floor
mattresses adjacent to a toilet was simply not before us and we did not decide
it. Therefore, it was dictum. See Cerro Metal Products v. Marshall, 620 F.2d
964, 978 (3d Cir.1980) (statements pertaining to issues not decided are dictum
because "the precise issue [is not] before the court.").19

61

Therefore, the district court here did not err in concluding that it was not bound
by our holding in Union County. That does not, however, end our inquiry
because the district court did not then proceed to conduct a proper analysis of
these plaintiffs' due process claim given their status of pre-trial detainees.

C. The district court's analysis of the conditions of confinement claim.

62

63

In resolving the plaintiffs' conditions of confinement claim, the district court

wrote: "In order to prevail on their claim that they are being punished, [the pretrial detainees] must show that sleeping on mattresses on the floor deprived
them of the `minimal civilized measures of life's necessities.'" 2003 WL
1697537 at *5 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct.
2392, 69 L.Ed.2d 59 (1981)). The court then explained that, in reviewing the
claim, it must examine the "totality of the circumstances... in order to discover
whether the overall conditions at Gander Hill deprived [the pre-trial detainees]
of `an identifiable human need, such as food, warmth, or exercise.'" Id. (quoting
Dickinson v. Taylor, 2000 WL 1728363 (D.Del. May 19, 2000). The court cited
Wilson v. Seiter, 501 U.S. 294, 304-05, 111 S.Ct. 2321, 115 L.Ed.2d 271
(1991)).20 The court then rejected plaintiffs' claim relying upon its own prior
decisions. It reasoned:

64

Under an Eighth Amendment analysis, this court has previously held that
having to sleep on a mattress on the floor does not rise to the level of a
constitutional violation. For example, in [another case], the court held that in
light of the prison overcrowding problem and the need for prison authorities to
take interim measures to house inmates within a limited space, the fact that an
inmate had to sleep on the floor in crowded or dirty conditions is insufficient to
state a claim under Section 1983.

65

2003 WL 1697537 at *5 (citations and internal quotations omitted). The district

court observed that "sleeping on the floor is not ideal," as we did in Union
County. However, the court reasoned that, since "prison overcrowding in now a
fact of life," sleeping on the floor "is not a violation of the Eight Amendment" "
[a]s long as plaintiff is receiving adequate food, shelter, and clothing[.]" Id. at
*5 n. 2. The district court then reasoned that, since there was no constitutional
violation, "the issue of whether [the prison officials] acted with deliberate
indifference need not be reached." Id. at *6.

66

Given our discussion of Bell v. Wolfish, supra, it is clear that the district court's
analysis of the pre-trial detainees' claim is fatally flawed. The Eighth
Amendment "was designed to protect those convicted of crimes and
consequently the Clause applies only after the State has complied with
constitutional guarantees traditionally associated with criminal prosecutions."
Whitley v. Albers, 475 U.S. 312, 318, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
(citation and internal quotations omitted). Thus, the Eighth Amendment's Cruel
and Unusual Punishments Clause does not apply until "after sentence and
conviction."21 Graham v. Connor, 490 U.S. 386, 392 n. 6, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989).

67

In Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991), the
Supreme Court set forth the standard for alleged violations of the Eighth
Amendment while addressing non-medical conditions of confinement. The
Court held that the prisoner must prove that prison officials acted with
deliberate indifference that deprived him/her of "`the minimal civilized measure
of life's necessities.'" Id. at 298-99, 301-05, 111 S.Ct. 2321 (quoting Rhodes v.
Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)). Here, the
district court correctly cited the standard that governs plaintiffs' claims as
follows:

68

The U.S. Supreme Court set the standard for determining whether a condition
of confinement of pretrial detainees violated their constitutional rights in Bell v.
Wolfish. Whether there is a constitutional violation turns on whether the
disability is imposed for the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose. The government may
detain an individual; the necessary inquiry is whether the conditions and
restrictions of the detention amount to punishment.

69

2003 WL 1697537, at *3 (citation omitted, emphasis added). However, the

court then relied upon our decision in Kost v. Kozakiewicz, 1 F.3d 176 (3d
Cir.1993) in concluding that, "[n]evertheless, in Bell v. Wolfish and later cases,
it is clear that when a court is considering general, non-medical conditions of
confinement, the standard is the same for both pretrial detainees and sentenced
inmates." Hubbard v. Taylor, 2003 WL 1697537, *3 (D.Del.2003). More
specifically, the district court cited our statement that "Pretrial detainees... are
entitled to at least as much protection as convicted prisoners, so the protections
of the Eighth Amendment would seem to establish a floor of sorts." Kost, 1
F.3d at 188 n. 10. (emphasis added).

70

In Kost, we relied upon Wilson v. Seiter to conclude that "the standard for
violations of the Eighth Amendment based on nonmedical conditions of
confinement ... would also apply to appellants as pretrial detainees through the
... Due Process Clause." Kost, 1 F.3d at 188. Our analysis then became
somewhat misleading as we proceeded to adopt a "deliberate indifference"
inquiry to conclude that "[p]laintiffs have therefore stated a claim sufficient to
withstand dismissal under the Seiter standard...." Id.

71

The district court was clearly mislead by our Kost analysis. The court
concluded that Kost was consistent with its own prior holdings in similar cases
where the district court had applied an Eighth Amendment analysis to
conditions of confinement claims of pre-trial detainees. The court reasoned: "

[t]his court likewise has found that pre-trial detainees are afforded essentially
the same protection as convicted prisoners and that the Eighth Amendment
analysis is appropriate for determining if the conditions of confinement rise to
the level of a constitutional violation." 2003 WL 1697537, at *3 (citing
Ellegood v. Taylor, No. 01-213, 2002 WL 449758 (D.Del. March 18, 2002)).
72

The court also relied upon City of Revere v. Mass. Gen. Hosp., 463 U.S. 239,
103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), stating: "Case law has established,
however, that pretrial detainees are afforded essentially the same level of
protection under the Fourteenth Amendment; therefore, an Eighth Amendment
analysis is still appropriate." 2003 WL 1697537, at *3, n. 1. However, that is an
overstatement of the holding in City of Revere. There, the Court stated that "
[t]he Eighth Amendment's proscriptions of cruel and unusual punishments is
violated by `deliberate indifference to serious medical needs of prisoners.'" 463
U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605. The issue there involved a
municipality's liability for medical costs of treating a suspect police had
wounded as he was attempting to flee. The Court reiterated that "Eighth
Amendment scrutiny is appropriate only after... [conviction]." Id. It therefore
viewed the Eighth Amendment as relevant to conditions of pre-trial detainees
only because it established a floor. The Court explained: "the due process rights
of a [pre-trial detainee] are at least as great as the Eighth Amendment
protections available to a convicted prisoner." Id. (citing Bell v. Wolfish).

73

Thus, although the district court correctly stated the appropriate test here, it
overlooked the context and limitations of the relevant statements in City of
Revere and Kost. The district court then erred in concluding that "pretrial
detainees are afforded essentially the same protection as convicted prisoners
and that an Eighth Amendment analysis is appropriate for determining if the
conditions of confinement rise to the level of a constitutional violation."

74

The district court's error is understandable given our discussion in Kost. There,
we were discussing medical and nonmedical conditions of confinement.
Although we specifically stated that the Eighth Amendment provided a floor
for our due process inquiry into the medical and nonmedical issues, much of
our discussion focused on whether the plaintiffs had established the "deliberate
indifference" that is the hallmark of cruel and unusual punishment under the
Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976). Moreover, we failed to cite Bell v. Wolfish which, as we
have explained, distinguishes between pretrial detainees' protection from
"punishment" under the Fourteenth Amendment, and convicted inmates'
protection from punishment that is "cruel and unusual" under the Eighth
Amendment.22

75

Nevertheless, it is clear that plaintiffs here "are not within the ambit of the
Eighth Amendment['s]," prohibition against cruel and unusual punishment.
Boring v. Kozakiewicz, 833 F.2d 468, 471 (3d Cir.1987). They are not yet at a
stage of the criminal process where they can be punished because they have not
as yet been convicted of anything. As the Supreme Court explained in Bell, pretrial detainees cannot be punished at all under the Due Process Clause.

76

As we have already explained, Bell v. Wolfish established that standard. The

district court therefore relied upon seemingly applicable language in Kost
without considering its context, or the controlling authority of Bell v. Wolfish.23
Accordingly, we must reverse the district court's grant of summary judgment to
the prison officials on the pre-trial detainees' conditions of confinement claim
and remand for a proper analysis of that claim under the standard announced in
Bell v. Wolfish.24

77

In their motion for summary judgment, the prison officials also argued that they
were entitled to qualified immunity from the conditions of confinement claim.
Abdul-Akbar v. Watson, 4 F.3d 195, 210-02 (3d Cir.1993). The prison officials
argued they acted reasonably and are therefore immune from suit because
every district court judge in the District of Delaware has ruled that having pretrial detainees sleep on mattresses on the floor at Gander Hill is constitutionally
permissible.25 The district court addressed the merits of the plaintiffs' claim
without reaching defendants' entitlement to qualified immunity.

78

If, on remand, the prison officials again assert qualified immunity, we remind
the district court that the immunity claim must be resolved first. Since qualified
immunity is "an immunity from suit, rather than a mere defense to liability, it is
imperative to resolv[e] immunity questions at the earliest possible stage in
litigation." Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d
272 (2001) (citations omitted) (emphasis in original).

D. The ADA claim.

79

The district court also failed to address Ketchum's ADA claim. Rather, the
court simply granted summary judgment to the prison officials on that claim
with no analysis. The district court's failure to explain why it granted summary
judgment to the prison officials on the ADA claim is contrary to the
requirements set forth in Vadino v. A. Valey Engineers, 903 F.2d 253, 259 (3d
Cir.1990). There, we explained that "we will exercise our supervisory power to
require the district courts in this circuit to accompany grants of summary
judgment hereafter with an explanation sufficient to permit the parties and this
court to understand the legal premise for the court's order." We will also

remand the ADA claim to the district court for compliance with the directive of
Vadino.26
E. Class certification.
80
81

Although the district court did not explain why it denied the motion for class
certification "as moot," 2003 WL 1697537 at *6, we assume that the motion
was denied because the court dismissed the underlying conditions of
confinement claim and therefore saw no need to entertain the motion for class
certification. Since we are reversing the grant of summary judgment and
remanding for analysis under Bell v. Wolfish, we will also reverse the district
court's denial of the class certification motion. The district court can address
that motion as it deems appropriate if the motion is renewed on remand.

IV. CONCLUSION
82

For the above reasons, we will vacate the grant of summary judgment to the
defendants and remand the conditions of confinement claim for consideration
under Bell v. Wolfish.27 We will also remand the ADA claim and, the denial of
the class certification motion for compliance with Vadino v. A. Valey
Engineers.

Notes:
1

The complaint also named the Delaware Department of Corrections as a

defendant. The Department moved for judgment on the pleadings pursuant to
Fed.R.Civ.P. 12(c) arguing that it was immune from suit under the Eleventh
Amendment. The district court granted that motion and the plaintiffs have not
appealed that ruling

For clarity, we will refer to the pre-trial detainees collectively as "plaintiffs"

and refer to Osbourne and Ketchum individually. It is not clear whether
Ketchum and Osbourne are pre-trial detainees or convicted inmates; however
the amended complaint prays for relief based upon plaintiffs' status as pre-trial
detainees. We therefore must analyze their claims on that basis

In their brief, the defendants suggest that at least some of the plaintiffs may
actually be convicted inmates and not pre-trial detainees. As we will explain,
that classification determines the analysis that applies to the conditions of
confinement claim. Defendants state: "[d]ue to the extensive criminal history of
the Plaintiffs and their lack of memory, it is difficult to ascertain whether any

of them was a detainee or a sentenced inmate during any particular period of

incarceration at Gander Hill. Many of them were jailed for new crimes and
violations of probation or parole for a previous crime." Appellees' Br. at 2., n.3
However, it is difficult to determine if defendants are sincerely challenging
plaintiffs' classification as pre-trial detainees or merely attempting to undermine
the merits of their claims by disparaging plaintiffs' character. The defendants
concede that pre-trial detainees are housed in the West wing, where the
challenged conditions exist. The defendants state: "[t]he Amended Complaint is
focused specifically on the West wing ... and the gymnasium. Generally,
detainees are housed in the West wing and sentenced inmates are housed in the
East wing." See Appellees' Br. at 6.
4

In their amended complaint, plaintiffs allege a number of other unconstitutional

conditions of confinement including: being housed in the gym and fitness
center because of overcrowding; cold food; lack of access to the law library;
frequent lockdowns resulting in confinement in cells for 8 to 16 hours a day;
inadequate access to medical care; and deliberate indifference to prisoners'
conditions by failing to provide basic necessities of life, including health care,
exercise, personal safety, food and habitable spaceHubbard v. Taylor, 2003 WL
1697537 at *1 (D.Del. March 28, 2003). However, in the district court, the
plaintiffs limited their claim to being required to sleep on mattresses on the
floor. Id. at *4.

Prison officials began triple celling in 1999

The mattress can be placed under the lower bunk during the day

This term is misleading. "Triple bunking" actually refers to confining three

people in a cell with each being provided with a permanent bunk-type bedSee
Union County Jail Inmates v. DiBuono, 713 F.2d 984, 994 n. 12 (3d Cir.1983).
As we have explained, in Gander Hill, two detainees have bunk beds and the
third has to sleep on a mattress on the floor. Accordingly, we refer to the
practice as "triple-celling." Id.

The plaintiffs claim that Delaware law requires that inmates be afforded
medical care without regard to costSee 11 Delaware Code 6536(b) ("an
inmate shall not be refused medical treatment for financial reasons....").

Ketchum has apparently been confined at Gander Hill since 1997. We therefore
assume that he is a convicted prisoner, and not a pre-trial detainee. However, as
we have noted above, the amended complaint seeks redress for conditions of
confinement of plaintiffs as pre-trial detaineesSee note 2, supra.

10

The district court's opinion contains a discussion of the conditions of

confinement claim. However, it does not contain any discussion of the ADA
claim

11

Plaintiffs have not appealed the district court's refusal to certify the putative
class. That issue is, therefore, not before us

12

We exercise plenary review over the district court's grant of summary

judgmentCaprio v. Bell Atlantic Sickness and Accident Plan, 374 F.3d 217, 220
(3d Cir.2004). In reviewing the grant of summary judgment, we must view the
facts in the light most favorable to appellant and affirm only if there was no
genuine issue as to any material fact and appellees are entitled to judgment as a
matter of law. Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d
Cir.2002).

13

The Fifth Amendment Due Process Clause was implicated inBell because the
plaintiffs were federal pre-trial detainees. Inasmuch as we are here concerned
with state pre-trial detainees, any applicable constraints must arise from the
Due Process Clause of the Fourteenth Amendment. See Fuentes v. Wagner, 206
F.3d 335, 344 (3d Cir.2000). However, the Court's due process analysis under
the Fifth Amendment in Bell nevertheless controls that inquiry. See, e.g., Union
County Jail Inmates v. DiBuono, 713 F.2d 984, 991-92 (3d Cir.1983).

14

For example, inKennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9

L.Ed.2d 644 (1963), the Court examined the automatic forfeiture-of-citizenship
provisions of the immigration laws to determine whether that sanction was
punishment or a regulatory restraint. It held that because forfeiture of
citizenship traditionally had been regarded as punishment and because the
legislative history of the provisions conclusively showed that forfeiture was
intended to be punitive, automatic forfeiture was punishment that could not
constitutionally be imposed without due process of law. Id. at 167-170, 83 S.Ct.
554.

15

InUnion County, sentenced inmates also challenged the conditions of their

confinement. However, the discussion of sentenced inmates' claims is not
relevant here because those claims were analyzed under the Eighth
Amendment. 713 F.2d at 997.

16

The agreement also established a procedure whereby the county could request
an immediate hearing before the district court if the jail population approached
or reached the maximum capacity of 238. The court could then order the
release or transfer of enough inmates to reduce the population to below the
specified maximum

17

See 713 F.2d at 990 n. 8, ("[o]ther than the provisions of (f), (g) and (h) noted
herein, we do not understand the Commissioner to object to any provision of
the consent judgment.").

18

The plaintiffs then note that the "various conditions" we were referring to were
the six overcrowding conditions that we have set forth aboveId. at 993-94 n.
11.

19

The nature of this statement inUnion County became even more evident three
years after Union County when we decided Anela v. City of Wildwood, 790
F.2d 1063 (3d Cir.1986). There, we referred to this portion of our opinion in
Union County as a "comment[ ]" rather than a "holding." Id. at 1069 (citation
omitted). Although that reference does not, by itself, conclusively establish that
our "comment" was dictum, it is certainly consistent with our conclusion that it
was dictum. We also note that one judge in responding to the municipality's
petition for rehearing in Anela, referred to this language in Union County as
dictum.
The judge wrote: "while Union County did state in dictum that requiring
detainees to sleep on mattresses on cell floors could constitute unconstitutional
punishment under the fourteenth amendment, its observations were expressly
limited to the situation in which detainees were subjected to such conditions
`for more than a few days.'" Anela v. City of Wildwood, 793 F.2d 514, 515 (3d
Cir.1986) (emphasis added).

20

Wilson v. Seiter did not address pre-trial detainee's due process rights. Indeed,
the Court in Seiter, could not logically determine whether a condition of
confinement constitutes punishment by applying a test that assumes the
propriety of punishment but prohibits punishment only when it becomes cruel
and unusual.

21

The Cruel and Unusual Punishments Clause, and indeed the entire Eighth
Amendment, is made applicable to the states through the Fourteenth
AmendmentRobinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d
758 (1962).

22

Even beforeKost, we had analyzed a pre-trial detainee's claim of inadequate

medical treatment under the Eighth Amendment standards articulated in Estelle
v. Gamble. For example, in Inmates of Allegheny County Jail v. Pierce, 612
F.2d 754, 762 (3d Cir.1979), we held that "at a minimum, the `deliberate
indifference' standard of Estelle v. Gamble, must be met" at an institution
housing pre-trial detainees, and in Boring v. Kozakiewicz, 833 F.2d 468, 472
(3d Cir.1987), we noted that even though the constitutional protections afforded

prisoners and pre-trial detainees against inadequate medical care arise from
different textual sources, the standards governing the provision of medical care
to each class are similar. We have continued this practice after Kost. See, e.g.,
Natale v. Camden County Correctional Facility, 318 F.3d 575, 581-82 (3d
Cir.2003) ("In previous cases, we have found no reason to apply a different
standard than that set forth in Estelle ... We therefore evaluate Natales'
Fourteenth Amendment claim for inadequate medical care under the standard
used to evaluate similar claims brought under the Eighth Amendment.").
The analysis is further confused because Kost suggests a separate and distinct
analysis governs nonmedical and medical claims under the Eighth Amendment.
However, in Seiter, the Court stated:
Whether one characterizes the treatment received by [the prisoner] as inhumane
conditions of confinement, failure to attend to his medicinal needs, or a
combination of both, it is appropriate to apply the deliberate indifference
standard articulated in Estelle.
501 U.S. at 304 (brackets in original) (internal quotation marks omitted).
23

InKost, we evaluated claims by pretrial detainees that the conditions of their

confinement were unconstitutional. Although we focused on whether the
plaintiffs had established the "deliberate indifference" that characterizes cruel
and unusual punishment in violation of the Eighth Amendment, see Estelle v.
Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), we specifically
distinguished between the protections of the Due Process Clause and those of
the Eighth Amendment. Kost, 1 F.3d at 188 ("Pretrial detainees are not within
the ambit of the Eighth Amendment but are entitled to the protections of the
Due Process clause.") (quoting Boring v. Kozakiewicz, 833 F.2d 468, 471
(1987)). Moreover, we recognized that pretrial detainees are entitled to greater
constitutional protection than that provided by the Eighth Amendment. Id. at
188 n. 10. Although we did not specifically cite Bell v. Wolfish, our analysis in
Kost is consistent with Bell's distinction between pretrial detainees' protection
from "punishment" under the Fourteenth Amendment, on the one hand, and
convicted inmates' protection from punishment that is "cruel and unusual"
under the Eighth Amendment, on the other.

24

The prison officials claim that this action is barred by the Prisoner Litigation
Reform Act ("PLRA"). That Act provides in part:
No Federal civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury suffered while in

custody without a prior showing of physical injury.

42 U.S.C. 1997e(e). However, the plaintiffs do allege physical injury.
Accordingly, there is a factual dispute for the district court to resolve on
remand.
Moreover, 1997e(e) does not bar all such claims absent physical injury as
claims for declaratory relief as well as nominal and punitive damages for
violations of constitutional rights are not barred by 1997e(e). See Doe v.
Delie, 257 F.3d 309, 314 n. 13 (3d Cir.2001) ("However, 1997e(e) does not
bar claims seeking nominal damages to vindicate constitutional rights, nor
claims seeking punitive damages."); Allah v. Al-Hafeez, 226 F.3d 247, 251-52
(3d Cir.2000) (Holding that 1997e(e) does not bar nominal and punitive
damages for violations of constitutional rights even in the absence of physical
injury).
25

The prison officials cite to the following cases:Renn v. Taylor, 2001 WL

657591 (D.Del. March 2, 2001) (Robinson, J.); Bagwell v. Brewington-Carr,
2000 WL 1728148 (D.Del. April 27, 2000) (Sleet, J.); Jackson v. BrewingtonCarr, 1999 WL 27124 (D.Del. Jan.15, 1999) (Farnan, J.); Bartley v. Taylor,
Civ. A. No. 98-503 (D.Del. Sept. 10, 1999) (McKelvie, J.); Torres v.
Brewington-Carr, Civ. A. No. 98-159 (D.Del. Nov. 29, 1999) (Longobardi, J.).

26

The prison officials claim that Ketchum is no longer incarcerated at Gander

Hill. If that is true, we assume that the prison officials will properly inform the
district court on remand

27

The defendants claim that no named plaintiff is still housed at Gander Hill as a
pre-trial detainee. Therefore, they contend that any request for injunctive relief
is moot. However, even if no named plaintiff remains at Gander Hill as a pretrial detainee, because of the "temporary nature of confinement" at Gander Hill,
"the issues presented are ... `capable of repetition, yet evading review.'"Bell,
441 U.S. at 527 n. 5, 99 S.Ct. 1861 (citations omitted). Therefore, we do not
believe that the request for injunctive relief is moot.