Submitted: March 8, 1994
Filed: April 20, 1994
Rita A. Stuart
Special Assistant Attorney General
Division of Corrections
Charleston, West Virginia
Attorney for Appellants
Darrell V. McGraw, Jr.
Daniel F. Hedges
Attorney General Charleston, West Virginia
Paul R. Sheridan Attorney for Appellees
Senior Assistant Attorney General William Hawkins and Alonzo
Civil Rights Division Pendleton
Charleston, West Virginia
Attorneys for Appellee the West
Virginia Human Rights Commission
Franklin D. Cleckley
Morgantown, West Virginia
Attorney for Amicus Curiae
West Virginia State Branches
of the NAACP
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. The State's penal institutions are not places of public accommodations under W. Va. Code, 5-11-3(j) (1992), for prisoners housed therein. Therefore, their claims of discrimination are not under the jurisdiction of the West Virginia Human Rights Commission.
2. "A prisoner has a right, secured by the Eighth and
Fourteenth Amendments, to be reasonably protected from constant
threat of violence and sexual assault by his fellow inmates, and
he need not wait until he is actually assaulted to obtain relief.
In order to meet the foregoing standard two conditions must be
shown: (1) Whether there is a pervasive risk of harm to inmates
from other prisoners, and, if so, (2) whether the officials are
exercising reasonable care to prevent prisoners from intentionally
harming others or from creating an unreasonable risk of harm."
Syllabus Point 2, Hackl v. Dale, 171 W. Va. 415, 299 S.E.2d 26
3. "Ordinarily an action under 42 U.S.C.A. § 1983 is
appropriate where complaint is made to the conditions of
confinement and not its duration." Syllabus Point 1, Mitchem v.
Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).
4. "An action based on 42 U.S.C.A. § 1983 can be
maintained in our State courts to challenge prison conditions."
Syllabus Point 2, Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895
In this appeal, we are asked to determine whether the
West Virginia Human Rights Commission (HRC) has jurisdiction to
accept complaints of racial discrimination by inmates in the
State's penal institutions. The appellants are several officials
authorized by law to administer our penal institutions. They
appeal an adverse ruling of the HRC holding that it does have
The basis for the HRC's assumption of jurisdiction was
its belief that the State's penal institutions are places of public
accommodations, as defined in W. Va. Code, 5-11-3(j) (1992).See footnote 1 If
these institutions are places of public accommodations, then the HRC reasoned that under W. Va. Code, 5-11-9(6)(A) (1992),See footnote 2 racial
discrimination is not permitted.
The underlying complaint before the HRC was filed on
behalf of two black inmates at the Huttonsville Correctional
Center. It alleges that the prison administration does not protect
black inmates from physical violence inflicted by white inmates who
belong to a supremacist group called the Aryan Brotherhood.
In our cases dealing with The West Virginia Human Rights
Act, W. Va. Code, 5-11-1, et seq. (1967), we recognized that the
legislature's declaration of policy contained in W. Va. Code, 5-11-2 (1989),See footnote 3 is both broad and beneficial. Moreover, as we stated in
Syllabus Point 1, in part, of Paxton v. Crabtree, 184 W. Va. 237,
400 S.E.2d 245 (1990): "The West Virginia Human Rights Act 'shall
be liberally construed to accomplish its objective and purpose.'
W. Va. Code, 5-11-15 (1967)."See footnote 4
The parties do not appear to disagree that the statutory
definition of the term "place of public accommodations" does
include the "state, or any political or civil subdivision
thereof[.]" W. Va. Code, 5-11-3(j). Where the disagreement arises
is whether a State penal institution "offers its services, goods,
facilities or accommodations to the general public" and the
subsidiary phrase in W. Va. Code, 5-11-3(j), which excludes "any
accommodations which are in their nature private[.]"See footnote 5
In several cases, we have discussed several attributes of
an entity or facility that may be a public facility as defined in
the public accommodations section of the Act. In Shepherdstown
Volunteer Fire Department v. West Virginia Human Rights Commission,
172 W. Va. 627, 309 S.E.2d 342 (1983), we pointed to the fact that
volunteer fire departments were statutorily authorized and received
public funding. Our focus in Israel v. Secondary Schools Activity
Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), was whether this
statutorily created commission was conducting any type of public
activity that could deem it a place of public accommodations. We
reviewed cases from other jurisdictions and concluded that one of the essential ingredients of a place of public accommodations was
that the facility allows participation to unscreened and unselected
members of the public.See footnote 6
These cases point to the conclusion that a place of
public accommodations must be open to members of the public.
Indeed, this distinction often is drawn between a place of public
accommodations and a private club. The hallmark of a private club
is its selectivity and exclusivity in obtaining its members. See
Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82
L. Ed. 2d 462 (1984); Wright v. Salisbury Club, Ltd., 632 F.2d 309
(4th Cir. 1980); United States v. Trustees of Fraternal Order of
Eagles, Milwaukee Aerie No. 137, 472 F. Supp. 1174 (D.C. Wis.
1979); Kiwanis Club of Great Neck, Inc. v. Board of Trustees of
Kiwanis Int'l, 41 N.Y.2d 1034, 395 N.Y.S.2d 633, 363 N.E.2d 1378,
cert. denied, 434 U.S. 859, 98 S. Ct. 183, 54 L. Ed. 2d 132
(1977).See footnote 7 In Roberts, supra, the Supreme Court made this summary as
to why a claim of being a private organization exemption could not be sustained: "In short, the local chapters of the Jaycees are
neither small nor selective. Moreover, much of the activity
central to the formation and maintenance of the association
involves the participation of strangers to that relationship." 468
U.S. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 474.See footnote 8
When we apply the foregoing to inmates in the State's
penal institutions, it is apparent that they are not members of the
general public. Their criminal convictions and incarcerations
seriously curtail the civil liberties which ordinarily are afforded
the public at large. Moreover, because members of the general
public are excluded, the inmates' place of confinement cannot be
deemed a public accommodation. There is no unscreened or
unselected membership that is able to utilize the facility which we found in Israel to be characteristic of a place of public
accommodations.See footnote 9
The only case from any other jurisdiction that appears to
be analogous is Blizzard v. Floyd, 613 A.2d 619 (Pa. Commw. Ct.
1992), decided under the Pennsylvania Human Relations Commission
Act which contained a public accommodations provision similar to
ours.See footnote 10 The court concluded that the Act did not apply, reasoning:
"Although a state correctional institution is a Commonwealth facility, it does not accept or solicit the patronage of the general public. Moreover, a common theme runs throughout the Act's definition of a public accommodation which is to provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire. Moreover, since the purpose of a correctional institution is to incarcerate persons convicted of crime or awaiting trial or sentence, inmates do not enjoy the privilege of leaving the facility at will. It is therefore clear that a state correctional institution is not a public accommodation as defined by the Act." 613 A.2d at 621.
We conclude that the State's penal institutions are not
places of public accommodations under W. Va. Code, 5-11-3(j), for
prisoners housed therein. Therefore, their claims of
discrimination are not under the jurisdiction of the Human Rights
Commission. Inmates are not, however, without relief.
In Hackl v. Dale, 171 W. Va. 415, 299 S.E.2d 26 (1982),
we recognized that a writ of habeas corpus would lie to challenge
conditions of confinement, stating in Syllabus Point 2:
"A prisoner has a right, secured by the Eighth and Fourteenth Amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. In order to meet the foregoing standard two conditions must be shown: (1) Whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm."
In Hackl, we cited federal cases that dealt with violence
in penal institutions and granted relief to the inmates by
requiring prison officials to provide adequate protection to the
assaulted or threatened inmates. See, e.g., Withers v. Levine, 615
F.2d 158 (4th Cir. 1980), cert. denied, 449 U.S. 849, 101 S. Ct.
136, 66 L. Ed. 2d 59 (1980); Holt v. Sarver, 442 F.2d 304 (8th Cir.
1971). This same relief has been granted in more recent cases.
For example, in LaMarca v. Turner, 995 F.2d 1526 (11th
Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1189, ___ L. Ed.
2d ___ (1994), the court found that prison officials knew that
there was a lack of security and, as a result, inmates were
physically and sexually assaulted. It affirmed the lower court's
injunctive relief and recognized the right to damages for those
inmates who were assaulted. The court of appeals outlined the
elements of such a cause of action:
"To prevail on their Eighth Amendment claim for damages brought under section 1983, the plaintiffs must prove three elements: (1) a condition of confinement that inflicted unnecessary pain or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 [, 69] (1981), (2) the defendant's 'deliberate indifference' to that condition, Wilson v. Seiter, ___ U.S. ___ [, ___], 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 [, 281] (1991), and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir. 1982) [cert. denied, 464 U.S. 932, 104 S. Ct. 335, 78 L. Ed. 2d 305 (1983)]. For our purposes, the Eighth Amendment defines the contours of the first two elements and section 1983 delimits the third." 995 F.2d at 1535. (Footnotes omitted).
See also Davidson v. Canon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed.
2d 677 (1986) (no recovery for simple negligence); Smith v. Wade,
461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) (reckless
disregard); Hendricks v. Coughlin, 942 F.2d 109 (2d Cir. 1991);
Frett v. Government of Virgin Islands, 839 F.2d 968 (3d Cir. 1988);
Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990); Wright v. Jones,
907 F.2d 848 (8th Cir. 1990); Benny v. Pipes, 799 F.2d 489 (9th Cir.), amended on other grounds, 807 F.2d 1514 (9th Cir. 1986),
cert. denied, 484 U.S. 870, 108 S. Ct. 198, 98 L. Ed. 2d 149
(1987). Moreover, in Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y.
1991), Hispanic and black inmates were granted Section 1983
injunctive relief against prison officials on their claim of racial
discrimination in housing, job assignments, and discipline.
In Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895
(1981), we recognized that state courts have been given concurrent
jurisdiction to handle suits by prison inmates under 42 U.S.C.A.
§ 1983.See footnote 11 We reviewed several United States Supreme Court casesSee footnote 12
and pointed out in Syllabus Points 1 and 2 of Mitchem that this
type of action can be used by inmates to challenge the conditions
"1. Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration.
"2. An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions."
Consequently, the inmates in this case are not without available remedies in the court system to obtain the relief sought.See footnote 13 For the foregoing reasons, we reverse the judgment of the Human Rights Commission.
Footnote: 1W. Va. Code, 5-11-3(j), states: "The term 'place of public accommodations' means any establishment or person, as defined herein, including the state, or any political or civil subdivision thereof, which offers its services, goods, facilities or accommodations to the general public, but shall not include any accommodations which are in their nature private[.]"
Footnote: 2W. Va. Code, 5-11-9(6)(A), provides:
"It shall be an unlawful
discriminatory practice, unless based upon a
bona fide occupational qualification, or
except where based upon applicable security
regulations established by the United States
or the state of West Virginia or its agencies
or political subdivisions:
* * *
"(6) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodations to:
"(A) Refuse, withhold from or deny to any individual because of his race, religion, color, national origin, ancestry, sex, age, blindness or handicap, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of such place of public accommodations[.]"
Footnote: 3W. Va. Code, 5-11-2, states:
"It is the public policy of the state of West Virginia to provide all of its citizens equal opportunity for employment, equal access to places of public accommodations, and equal opportunity in the sale, purchase, lease, rental and financing of housing accommodations or real property. Equal opportunity in the areas of employment and public accommodations is hereby declared to be a human right or civil right of all persons without regard to race, religion, color, national origin, ancestry, sex, age, blindness or handicap. Equal opportunity in housing accommodations or real property is hereby declared to be a human right or civil right of all persons without regard to race, religion, color, national origin, ancestry, sex, blindness, handicap, or familial status.
"The denial of these rights to properly qualified persons by reason of race, religion, color, national origin, ancestry, sex, age, blindness, handicap, or familial status is contrary to the principles of freedom and equality of opportunity and is destructive to a free and democratic society."
Footnote: 4W. Va. Code, 5-11-15, states:
"The provisions of this article shall be liberally construed to accomplish its objectives and purposes. If any provision of this article be held invalid or unconstitutional by any court of competent
jurisdiction, such invalidity or unconstitutionality shall not affect or invalidate the other provisions hereof, all of which are declared and shall be construed to be separate and severable."
Footnote: 5For the full text of the place of public accommodations definition, see note 1, supra.
Footnote: 6See, e.g., United States Jaycees v. McClure, 305 N.W.2d 764 (Minn. 1981); National Org. for Women v. Little League Baseball, Inc., 127 N.J. Super. 522, 318 A.2d 33, aff'd mem., 67 N.J. 320, 338 A.2d 198 (1974); United States Power Squadron v. State Human Rights Appeal Bd., 59 N.Y.2d 401, 465 N.Y.S.2d 871, 452 N.E.2d 1199 (1983).
Footnote: 7The private club exemption is contained in W. Va. Code, 5- 11-3(j), which excludes "any accommodations which are in their nature private[.]" See note 1, supra, for the full text of subsection (j).
Footnote: 8In Roberts, supra, the Supreme Court recognized that the United States Constitution does afford protection for freedom of association for private organizations. However, it rather narrowly defined the characteristics:
"Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty." 468 U.S. at 620, 104 S. Ct. at 3250-51, 82 L. Ed. 2d at 472-73.
Footnote: 9It might be argued that the State, by establishing its criminal laws, has defined a class of exclusivity and selectivity of persons, i.e., those convicted, to be members of our penal institutions. Thus, the argument would be that they are the functional equivalent of private clubs and excluded from the Act.
Footnote: 10In relevant part, a place of public accommodations included "'all Commonwealth facilities, and services, including such facilities and services of all political subdivisions thereof, but shall not include any accommodations which are in their nature distinctly private.'" 613 A.2d at 620-21 quoting Pa. Stat. Ann. tit. 43, § 954(l) (1986). (Emphasis omitted).
Footnote: 1142 U.S.C.A. § 1983 provides, in relevant part:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
Footnote: 12E.g., Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973).
Footnote: 13Since we accepted this case, the legislature adopted Senate Bill 117 on March 9, 1994, effective from that date. The bill was signed by the Governor on March 25, 1994. It amended the definition of a "place of public accommodations" contained in W. Va. Code, 5-11-3(j), by adding this language:
"To the extent that any penitentiary, correctional facility, detention center, regional jail or county jail is a place of public accommodation, the rights, remedies and requirements provided by this article for any violation of subdivision (6), section nine of this article shall not apply to any person other than: (1) Any person employed at a penitentiary, correctional facility, detention center, regional jail or county jail; (2) any person employed by a law enforcement agency; or (3) any person visiting any such employee or visiting any person detained in custody at such facility[.]"
The reference to subdivision (6) refers to W. Va. Code, 5-11- 9(6). Its applicable language is set out in note 2, supra.