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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2005 Term
STATE OF WEST VIRGINIA ex rel.
JAMES WILLIAM BERRY, SR.,
THOMAS L. McBRIDE, Warden,
Mt. Olive Correctional Center,
WRIT OF MANDAMUS
WRIT GRANTED AS MOULDED
Submitted: October 11, 2005
Filed: November 30, 2005
Jason E. Huber, Esq.
V. McGraw, Jr.
Forman & Huber, PC
Charleston, West Virginia Charles
Attorney for Petitioner
JUSTICE STARCHER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
the constitutionality of a statute is questioned every reasonable construction
of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative
enactment. Syllabus Point 3, Willis v. O'Brien
, 151 W.Va. 628, 153
S.E.2d 178 (1967).
ex rel. White v. Parsons, 199 W.Va. 1, 483 S.E.2d 1 (1996) did not invalidate
the entire range of provisions in West Virginia Code of State Regulations,
Title 95, Series 1 and 2.
Legislature acted constitutionally in amending W.Va. Code, 31-20-9 
insofar as that amendment requires that West Virginia Code of State Regulations, Title
95-2-8.7 relating to double-bunking in cells designed for single occupancy does
not apply to correctional facilities.
constitutional principles of equal protection and due process of law, W.Va.
Const. art. 3, sec. 10, require that decisions regarding whether an inmate
in a State correctional facility should be housed in a single cell must be made
pursuant to enforceable standards, policies, and procedures that are based on
pertinent medical and other relevant criteria.
instant case we adopt the recommendations of a special master appointed by this
Court and hold that double-bunking in correctional facilities is not barred by
State regulations; and that the decision whether an inmate should or should not
be housed in a single cell must be made pursuant to enforceable standards, policies,
and procedures that are based on pertinent medical and other relevant criteria.
Facts & Background
matter is before this Court upon James William Berry's petition asserting that
the respondent warden of the Mount Olive Correctional Complex (MOCC)
in the past has required (and in the future may require) the petitioner Mr.
Berry to share a cell at the MOCC with another inmate. (We will refer to this
practice as double-bunking.)
The petitioner began
the instant case by filing a petition pro se
invoking the original jurisdiction
of this Court, to which the respondent replied; and the case was thereafter submitted
for decision. This Court subsequently issued an opinion finding most of the grounds
for the petitioner's claim to be entitled to be housed in a single cell to be
without merit. (See footnote
1) State ex rel. Berry v. McBride
, No. 30696, 2002 WL 31681823
(November 27, 2002) (opinion withdrawn upon grant of rehearing, January 16,
this Court's now-withdrawn opinion did conclude that West Virginia Code of
, Title 95-2-8.7 (See
prohibited the respondent from housing more than one
inmate in a correctional facility (as opposed to an inmate in a jail) in a cell
designed for single occupancy. On that basis, the withdrawn opinion granted the
petitioner's requested writ.
95-2, Minimum Standards for Construction, Operation, and Maintenance of
Correctional Facilities, was promulgated in 1996 and states in pertinent
Single Occupancy. Only one inmate shall occupy a room or cell designed for
single occupancy . . ..
in 1998 the Legislature added language at W.Va. Code, 31-20- 9(a)(2)  to
state in pertinent part:
That rules filed by the jail and correctional facilities standards commission
and authorized by the Legislature to be promulgated before the amendment to
this section enacted in the regular session of the Legislature in the year
one thousand nine hundred ninety-eight remain in force except that such previously
promulgated rules no longer apply to: (i) Correctional facilities; .
. . [emphasis added].
this Court issued its original opinion in the instant case, the respondent
requested that this Court rehear the instant case and reconsider our decision
in light of the foregoing-quoted 1998 amendment. We granted the respondent's
request, withdrew our original opinion, and appointed counsel to represent
Upon the parties' request, this Court thereafter
referred this matter to Judge Derek C. Swope to serve as special master for the
purposes of supervising the taking of depositions and facilitating discovery.
This Court further ordered that at the conclusion of discovery, the special master
should make such findings of fact and conclusions of law as are necessary to
address the issues presented by the parties and to permit adequate review by
special master received the memoranda of both parties and issued an Interim
Report requesting additional discovery. The additional discovery matters having
been concluded, the special master then submitted recommended findings of fact
and conclusions of law to this Court, which we largely adopt and incorporate
herein. We appreciate the special master's thorough and reasoned approach to
the matters that were before him. Upon oral argument and a review of the briefs
on rehearing, we issue this opinion, replacing our previously-issued opinion
in the instant case.
Special Master's Findings
Mount Olive Correctional Complex where the petitioner is housed by the respondent
is a correctional facility that currently houses approximately 980 inmates,
and originally did not place more than one person in each cell. According to
the special master's
report, the cells at MOCC were originally designed so that they could be modified
to house two inmates, but the architect deleted that design feature before
the construction of the MOCC. However, when the MOCC population exceeded bed
and cell space, the respondent began double-bunking inmates. The increase in
population assertedly occurred when a large number of prisoners held in county
or regional jails were ordered to be transferred to West Virginia Division
of Corrections facilities. See State ex rel Sams v. Kirby, 208 W.Va.
726, 542 S.E.2d 889 (2000).
has been incarcerated at the MOCC since May 17, 1997, and is serving a life sentence.
The petitioner asserts that the physicians at the Veterans Administration Hospitals
in Huntington and Beckley have determined that he is seventy-five percent disabled.
The petitioner is required to move about in a wheelchair as a result of being
struck by an automobile. The petitioner contends that he suffers from nerve damage
and degenerative arthritis.
petitioner was first double-bunked for approximately four months during his
classification period at MOCC. From 1997 until approximately December 2001,
the petitioner occupied a single cell by himself.
2001, the petitioner was sent to lockup for ninety days. Upon returning
from lockup, the petitioner was placed in a single cell, but over a period of
approximately six months, four other inmates were moved into and out of the petitioner's
single cell. The petitioner asserts that he had no personal problems with the
first three inmates, but that the fourth inmate consistently abused the petitioner,
and preyed upon him
based on his disability. The petitioner contends that even when he is alone,
his cell is difficult to move around in; and when another inmate is housed
in his cell, it is extremely difficult, painful, and awkward for him to move
about in his cell. It appears that currently the petitioner is not double-bunked.
reviewing the documentary record before him, the special master found no mention
of the petitioner's having received a medical assessment related to the issue
of his suitability for single- or double-bunking, or of any objective medical
or other criteria being used by MOCC in determining whether the petitioner should
be housed in a single cell. The special master requested additional submissions
from the parties on this issue.
the petitioner asserted that MOCC has no objective criteria to evaluate an inmate's
physical and/or psychiatric need for a single cell. The petitioner contended
that there are no general standards and that all inmates are evaluated, if at
all, on an ad hoc and standardless basis.
asserted that medical professionals at MOCC assess individuals similarly situated
to petitioner based upon their individual medical needs. According
to the special master's report, the respondent asserts that medical protocols
or criteria would be based upon an accepted standard of care, and
that the medical unit will order special accommodations to inmates as needed; and
that should the medical unit find a condition which would permit an inmate to
reside within the general population but require single housing, it would be
the desire of corrections to adhere to the clinical judgment of its
special master requested information concerning whether Mr. Berry was in fact
medically assessed for his condition and for his suitability for double bunking.
The petitioner asserted that the respondent admitted that the medical unit did
not specifically evaluate Mr. Berry in order to determine if he needed a single
master inquired of the parties as to whether MOCC's determination of Mr. Berry's
medical disability was based upon the assessment of medical professionals using
any objective criteria, and, if so, whether such a determination might play a
role in his being double-bunked in the future. The petitioner asserted that since
Mr. Berry was never assessed, the respondent's determination could not have been
made based upon objective criteria. The petitioner contends that it is impossible
to determine what criteria the respondent will use to make housing decisions
for Mr. Berry in the future.
respondent states that consideration is given to inmates with severe
medical disabilities, inmates with mental illness, sexual predators, inmates
likely to be exploited, or inmates who have other special needs. The respondent
contends that medical assessments and decisions are made by a physician, nurses
and physician assistant, and the staff at MOCC does not second guess the
clinical judgment of the physicians.
Standard of Review
Court's standard for issuing a writ of mandamus is well-established: A
writ of mandamus will not issue unless three elements coexist _ (1) a clear legal
right in the
petitioner to the relief sought; (2) a legal duty on the part of respondent
to do the thing which the petitioner seeks to compel; and (3) the absence of
another adequate remedy. Syllabus Point 2, State ex rel. Kucera v.
City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969). The pertinent factual
matters in the instant case are undisputed and our ruling in this original
jurisdiction case is, with the assistance of the special master's report, de
respondent argues that in our earlier and now-withdrawn opinion in the instant
case, this Court improvidently applied the standard set forth in West
Virginia Code of State Regulations, Title 95-2-8.7 to the Division of
Corrections, because of Legislative action relating to that regulation in
1998. As further discussed infra, we agree with this contention.
also contends that language in this Court's decision in State ex rel. White
v. Parsons, 199 W.Va. 1, 483 S.E.2d 1 (1996) constituted a ruling that all
of the regulations in Title 95, Series 1 and 2 (the regulations at Series 1 cover
standards for jails, those at Series 2 cover standards for correctional facilities)
are generally unenforceable.
in question from White v. Parsons is found at the end of the opinion and
was used by this Court in granting the requested writ of prohibition in
95 C.S.R. 1 and 95 C.S.R. 2 may not be enforced. Appropriate replacement regulations
may be proposed and adopted as provided by law.
199 W.Va. at 11, 483 S.E.2d at 11.
despite the facial breadth of the foregoing-quoted language
not the language that was used in the syllabus point of the opinion), White
in fact involved only the narrow issue of smoking regulations
in jails and correctional facilities. No
reasonable reading of the White v. Parsons
conclusion that its ruling was intended to invalidate the entire range of provisions
in Title 95, Series 1 and 2 that are unrelated to the issue of smoking in jails
and correctional facilities. Consequently, we hold that State ex rel. White
, 199 W.Va. 1, 483 S.E.2d 1 (1996) did not invalidate the entire
range of regulatory provisions in Title 95, Series 1 and 2. (See
noted, we agree with the special master's conclusion that the Legislature's action
in 1998 was intended to remove the statutory authority for West Virginia Code
of State Regulations, 95-2-8.7, as it applies to correctional facilities;
and assuming the constitutional validity of the Legislature's action, this regulation
no longer operates to prohibit double-bunking in cells designed for single occupancy
at correctional facilities.
petitioner argues, however, that the 1998 amendment to W.Va. Code, 31-
20-9 is invalid with respect to West Virginia Code of State Regulations, 95-2-8.7
because the amendment violates the petitioner's constitutional due process and
equal protection rights by creating an arbitrary and capricious distinction between
inmates in jails and inmates in correctional facilities with respect to double-bunking
that is not rationally related to any legitimate governmental interest. (The
record is unclear as to exactly what policy or practice differences exist with
respect to double-bunking between jails and correctional facilities.)
the constitutionality of a statute is questioned every reasonable construction
of the statute must be resorted to by a court in order to sustain constitutionality,
and any doubt must be resolved in favor of the constitutionality of the legislative
Syllabus Point 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178 (1967).
ex rel Sams v. Kirby
, 208 W.Va. 726, 542 S.E.2d 889 (2000), this Court
recognized that regional and county jails serve a different purpose, as compared
to State correctional facilities. The conditions of shorter-term housing
in jails and longer-term housing in correctional facilities make the management
of institutional populations in jails and correctional facilities somewhat
different matters, and presumptively justify the existence of some degree
of difference in policies with respect to double-bunking. Upon our review
of the record, we conclude that this separate and distinct purpose for the
two types of facilities means that the existence of different legislatively-created
policies for double-bunking in jails and correctional facilities is not per se
and meets the rational relationship test
in the instant case. (See
conclude and hold that the Legislature acted constitutionally in amending W.Va.
Code, 31-20-9  insofar as that amendment requires that West Virginia
Code of State Regulations, Title 95-2-8.7 relating to double-bunking in cells
designed for single occupancy does not apply to correctional facilities.
on the special master's extensive discussion as recited supra regarding
the current lack of any objective standards or criteria or established procedures
at the MOCC to evaluate individuals for possible single-bunking, the special
master concluded that objective standards for assessing an individual's medical
or other unsuitability for double- bunking should be developed, and that Mr.
Berry should be assessed under those standards, if the MOCC intends to possibly
double-bunk him in the future.
master further concluded that although the medical assessment of inmates must
be based upon an acceptable standard of care, the determination of an inmate's
housing needs should be based upon some objective criteria and in consideration
of the inmate's medical assessment and other pertinent factors, including, but
not limited to mobility/ability to ambulate, flexibility, strength, bowel function,
etc.; and that the current internal institutional appeal procedure could easily
be adopted to handle any complaints of
improper/arbitrary evaluation and housing. The special master also recommended
that a process of review internal to the division of corrections similar to
that in place for other housing grievances filed by inmates be implemented
for the single-bunking issue.
the special master recommended that the respondent be required to evaluate and
assess the petitioner according to said objective criteria in order to determine
the suitability of his housing in light of his physical condition and individual
circumstances. And in briefing submitted to this Court, respondent's counsel
did not contest the feasibility (or even the reasonableness) of implementing
such criteria, standards, and procedures.
master's recommendation is consistent with our discussion in White v. Parsons regarding
the issue of standardless discretion, see discussion at note 3 supra.
The special master's recommendation is also consistent with this Court's recent
holding in Weirton Heights VFD v. State Fire Comm'n., ___ W. Va. ___,
___S.E.2d ___, No. 32721 (November 17, 2005) (the absence of duly promulgated
standards and criteria for governmental decision-making supports a finding that
the decision in question is arbitrary and capricious and an abuse of discretion).
master's report further discusses the issue of criteria and standards for evaluating
an inmate for single-bunking by calling attention to the respondent's Policy
Directive 101.00, which states (according to the report):
addition, all policies and procedures set forth by the Policy Directives, Operational
Procedures, Post Orders, and other written documents of the Division of Corrections
are solely for the guidance of officers, employees, and agents of the Division
of Corrections. These Policy Directives, Operational
Procedures, Post Orders, and other written documentation are not intended to
and cannot be relied upon to create rights, substantive or procedural, enforceable
by any party [in] . . . any litigation, grievance, or other matter with the
Division of Corrections, or any officer, employee, agent or servant.
asserts that the respondent, relying on this language, claims to be free to choose
which of his institution's written policies he will apply and follow and which
ones he will not; and that the respondent claims to be unaccountable in any forum
to any person, inmate or otherwise, for any failure or refusal to follow the
prescription of the institution's own written policies. The petitioner contends
that such a position, if upheld, would impermissibly render any written procedures,
policies, or standards relating to double- bunking without practical or legal
effect. (See footnote 5)
this issue, the special master's report cites to Williams v. Precision Coil,
Inc., 194 W.Va. 52, 65, 459 S.E.2d 329, (1995), where this Court stated:
is . . . a basic notion of due process of law that a governmental agency must
abide by its own stated procedures even though it is under no constitutional
obligation to provide the procedures in the first place and even though it can
change the procedures at any time; so long as the procedures are in place, the
agency must follow them.
Court has consistently held that the basic due process guarantees of the West
Virginia Constitution apply to incarcerated individuals. Watson v. Whyte,
162 W.Va. 26, 245 S.E.2d 916 (1978). In Rowe v. Whyte, 167 W.Va. 668,
280 S.E.2d 301 (1981), this
Court examined a situation where the parole board allegedly violated a prisoner's
reasonable expectation of release upon parole, by the failure of the parole
board to follow the requirements of W.Va. Code, 62-12-13  concerning
release upon parole. This Court determined in Rowe v. Whyte that the
West Virginia Board of Probation and Parole abused its discretion within the
meaning of W.Va. Code, 62-12-13  and held that the board acted
in an arbitrary and capricious fashion in the manner in which it denied the
petitioner release upon parole.
master concluded that the foregoing caveat or disclaimer in
Policy Directive 101.00, if applied literally, would conflict with the rule of
law stated in Williams v. Precision Coil, Inc.
, that a governmental
agency must abide by its own stated procedures. We agree. If officials are free
to ignore the written procedures and standards that they have created, then we
have a government of individual persons and their whims _ and not
one of laws. (See footnote
on the foregoing reasoning and in accord with the recommendations of the special
master, we hold that the constitutional principles of equal protection and due
process of law, W.Va. Const. art. 3, sec. 10, require that decisions regarding
whether an inmate in a State correctional facility should be housed in a single
cell must be made pursuant to enforceable standards, policies, and procedures
that are based on pertinent medical and other relevant criteria.
standards, policies, and procedures related to single- and double- bunking
that are based on pertinent medical and other relevant criteria are hereby
ordered to be developed and implemented by the respondent in a timely fashion
and to be applied to the petitioner in the event that he is again considered
for double-bunking. (See
The writ of mandamus is granted as moulded.
Writ Granted as Moulded.
We do not find it necessary
to address these grounds in this opinion other than to state that we reaffirm
our previously-stated conclusion that they are without merit.
95-2-8.7 was referenced
in this Court's original opinion in the instant case as 95-2- 8.6.
State ex rel. White
did, however, consider the issue of whether the chief executive
officer of each jail or correctional facility could validly be granted unguided
and unfettered personal discretion to permit or prohibit the use and possession
of tobacco in designated areas at the facility under his control. The Court's
analysis of that issue in White v. Parsons
is relevant to the instant
case. Looking back to this Court's decision in State ex rel. Kincaid v.
, 191 W.Va. 608, 609, 447 S.E.2d 543, 544 (1994), where this Court
stated that tobacco use regulation cannot be left to the sole discretion
of the administrator . . . [,] this Court in White
noted that the decision of whether to permit tobacco use and
where tobacco use may occur, must be controlled by written guidelines or
other standards for the exercise of suitable discretion _ either from the
standards commission or by policy directives of the division of corrections
_ in order to avoid the proscription of Kincaid
that such issues cannot
be left to the sole discretion or whim of the institution's chief executive
officer. White v. Parsons
, 199 W.Va. at 11, 483 S.E.2d
We also do not think that
the concerns that were discussed in SER White v. Parsons
by the 1998 amendment to W.Va. Code
, 31-20-9 _ because the differing
treatment of prisoners in jails and correctional facilities with respect to
single- and double- bunking at issue in the instant case is established by
legislative action, and not by an administrator's ad hoc
using unguided and standardless discretion.
The respondent replies
to this assertion by stating that [C]orrections does not write policies
with the intent of ignoring them[;], but the respondent does not challenge
or contradict petitioner's characterization of respondent's position disclaiming
any legally enforceable effect or significance of the respondent's own written
policy directives, etc.
The respondent's brief
suggests that to recognize the principle that public officials must comply
with their own written policies, etc., would give a weapon to inmates. Such
a statement, while understandable in the context of zealous advocacy, is incorrect.
Of course it is true that prison officials, who operate with enormous responsibilities
and clearly inadequate resources under strongly competing and conflicting pressures,
must have large amounts of discretion in controlling many aspects of inmates'
lives _ for the soundest of reasons. But when written policies and procedures
are put into place to define and guide the exercise of that discretion, they
must be followed _ or changed in accordance with the law. Williams v. Precision
In a system directed at the custody, management,
and rehabilitation of persons who have broken the rules, what kind of double
standard message would it send to say that prisoners must follow the rules
_ but prison officials need not? Prison rules, regulations, policies, and procedures
are not violent weapons like clubs, tear gas, pepper spray, TASERS,
or rifles _ that can be legitimately wielded only by prison officials when necessary.
Prison rules, regulations, policies, and procedures are nonviolent standards
of conduct that
must be followed by _ and may be called upon by _ everyone.
The petitioner's case may
be technically moot at this time; but the important issues involved in the
instant case are readily capable of repetition, while easily escaping review.
As such, it is appropriate that this Court address these issues. See State
ex rel. Shifflet v. Rudloff, 213 W.Va. 404, 407, 582 S.E.2d 851, 854 (2003).