Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-23-2005

Hubbard v. Taylor
Precedential or Non-Precedential: Precedential

Docket No. 03-2372




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                No: 03-2372

       GREGORY HUBBARD; ALVIN PHILLIPS;
          JULIAN PAYNE; CURTIS GIBBS;
    GREGORY J. BOLLING; LEONARD GARNER;
      GREGORIO TOM AS; DESMOND BROWN;
    THELLIE CHAM BLEE; SPUD M. BURNS, JR.;
      ROBERT WARD; CHRISTOPHER VAVALA;
    KRISTOFER JACKSON; TIMOTHY THOM AS;
PAUL C. WOODWARD; JOSEPH MICHAEL CREEGAN,
  JR.; JAVARI WILLIAMS; FLOYD HUNT; BRYANT
   CHARLES; CLAUDE JONES; EDDIE A. CARTER;
   THEODORE JACKSON; ANDRE MURRAY; ATIF
         MOHAM MAD; 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;
     RAYM OND STEVENS; JAM ES A. WILSON;
     MATTHEW MAJOR, JR.; PERCY OSBORNE;
                KEVIN KETCHUM,

                                   Appellants


                              v.
         STANLEY TAYLOR, Commissioner;
           RAPHAEL W ILLIAMS, Warden;
          M. JANE BRADY, Attorney General

      Appeal from the United States District Court
              for the District of Delaware
                (Civ. No. 00-cv-00531)
         District Judge: Hon. Sue L. Robinson

              Argued: February 12, 2004

       Before: SCIRICA, Chief Judge, ROTH and
                McKEE, Circuit Judges

          (Opinion filed: February 23, 2005 )

PAUL E. CRAWFORD, ESQ. (Argued)
HELENA RYCHLICKI, ESQ.
Connolly Bove Lodge & Hutz
P.O. Box 2207
Wilmington, DE 19899
Attorneys for Appellants

RICHARD W. HUBBARD, ESQ. (Argued)
GREGORY E. SMITH, ESQ.
Deputy Attorneys General
State of Delaware
Department of Justice
820 North French Street, 6th Floor
Wilmington, DE 19801

                           2
Attorneys for Appellees

                          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

        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

                               3
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”


       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.
           2
         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.
   3
     In their brief, the defendants suggest that at least some of
the plaintiffs may actually be convicted inmates and not pre-trial

                                4
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.

         A. The Conditions of Confinement Claim.

       Plaintiffs’ conditions of confinement claim rests upon


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.

                               5
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



   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 space. Hubbard v. Taylor, 

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. 

   5
       Prison officials began triple celling in 1999.

                                  6
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


  6
   The mattress can be placed under the lower bunk during the
day.

                                7
made to provide me with a bunk like the other two individuals
in my room.”

        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:

       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.

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.


                                8
        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.

      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


  7
    This term is misleading. “Triple bunking” actually refers to
confining three people in a cell with each being provided with
a permanent bunk-type bed. See Union County Jail Inmates v.
BiBuono, 

, 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.” 

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”).

        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.

       Gander Hill receives approximately 18,000 admissions


  8
   The plaintiffs claim that Delaware law requires that inmates
be afforded medical care without regard to cost. See 11
Delaware Code § 6536(b) (“an inmate shall not be refused
medical treatment for financial reasons. . . .”).
  9
    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 detainees. See note 

.

                              10
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.

        Moon testified in relevant part as follows:
       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.

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.

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


                               11
       Q: So it is your contention that you’re not being
       treated like a human being?

       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.

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.

       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.


                               12
       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.

       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

        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, 

(D.Del. March 28, 2003).10 This appeal followed.11


    10
     The district court’s opinion contains a discussion of the
conditions of confinement claim. However, it does not contain

                               13
                      III. DISCUSSION12

               A. Applicable Legal Principles.

       The Supreme Court first discussed the application of the
Due Process Clause to pre-trial detainees in Bell v. Wolfish, 

(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. 

.13           In


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 judgment. Caprio v. Bell Atlantic Sickness and
Accident Plan, 

, 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.,

, 247 (3d Cir. 2002).
  13
     The Fifth Amendment Due Process Clause was implicated
in Bell 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

                                14
resolving the issue, the Court stated:

       [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.

(citations omitted). Of course, the government “may
. . . incarcerate a person charged with a crime but not yet
convicted to ensure his presence at trial[.]” 

“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[.]” 

There nevertheless remains “a distinction
between punitive measures that may not be constitutionally
imposed prior to a determination of guilt and regulatory




Process Clause of the Fourteenth Amendment. See Fuentes v.
Wagner, 

, 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, 

, 991-92 (3d Cir. 1983).

                               15
restraints that may.” 14 

       In order to determine whether the challenged conditions
of pre-trial confinement amount to punishment,

        [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 “punishm ent.”
        Conversely, if a restriction or condition is not


   14
      For example, in Kennedy v. Mendoza-Martinez, 

(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. 

                                 16
       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.

(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

       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.

In determining whether conditions or restrictions are

       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

                               17
       ordinarily defer to their expert judgment in such
       matters.

n.23 (citations and internal quotations omitted).

        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. 

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.” 

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.

       Those issues were, however, present four years later
when we decided Union County Jail Inmates v. DiBuono, 

(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


                                18
Amendment. 15 After discussing Bell v. Wolfish at some length,
we distilled its teachings into the following two-step test:

         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 

(citing 

) (internal quotation
marks omitted). Our inquiry into whether given conditions
constitute “punishment” must therefore consider the totality of
circumstances within an institution. 

see also Jones
v. Diamond, 

, 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


    15
     In Union 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 

.
                             19
Int’l Corp., 

(5th Cir. 1986) (en banc).

  B. Effect of Union County Jail Inmates v. DiBuono on
     the Plaintiffs’ Condition of Confinement Claim.

        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. 

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.

       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


                               20
       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.

       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.


   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.

                              21
       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.

        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' x 7' cells next to the 

. 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.

       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 

. The district court rejected the
Commissioner’s suggestion for bunk beds. The court reasoned

                                22
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.

       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.

       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


   17
        

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.”).

                                23
could not make bail. The fact that the policy served both state
and county governmental interests was not contested on 

. 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.” 

that analysis, we noted that two conclusions
emerged from the proceedings in the district court:

       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.

       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

                               24
       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
       double-bunking practice.

(emphasis added).

        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. 

We therefore “reject[ed] the district
court’s holding of unconstitutional conditions based solely on
considerations of space.” 

(citation and internal
quotations omitted). We explained:

                               25
       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. . . .

       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.

(emphasis added). We also noted that pre-trial
detainees were confined at the jail “for generally a maximum
period of 60 days.” 

(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. 

We

                               26
therefore concluded       that the Commissioner’s plan would
alleviate the constitutional violations.

       Plaintiffs’ condition of confinement claim here is largely
based upon the following language in Union City: “ [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 

.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.” 

. 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, 

, 978 (3d Cir.
1980) (statements pertaining to issues not decided are dictum




   18
     The plaintiffs then note that the “various conditions” we
were referring to were the six overcrowding conditions that we
have set forth above. 

n.11.

                               27
because “the precise issue [is not] before the court.”). 19
        Therefore, the district court here did not err in
concluding that it was not bound by our holding in Union City.
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.


  19
    The nature of this statement in Union County became even
more evident three years after Union County when we decided
Anela v. City of Wildwood, 

(3d Cir. 1986).
There, we referred to this portion of our opinion in Union
County as a “comment[]” rather than a “holding.” 

(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, 

, 515 (3d Cir. 1986) (emphasis added).




                                28
   C. The district court’s analysis of the conditions of
confinement claim.

       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 pre-trial detainees] must
show that sleeping on mattresses on the floor deprived them of
the ‘minimal civilized measures of life’s necessities.’” 

at *5 (quoting Rhodes v. Chapman, 

,
347 (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.’” 

v. Taylor, 

(D. Del. May 19,
2000). The court cited Wilson v. Seiter, 

, 304-05
(1991)).20 The court then rejected plaintiffs’ claim relying upon
its own prior decisions. It reasoned:

        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


   

. 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.

                                29
       [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.

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[.]” 

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.” 

        Given our discussion of Bell v. 

, 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, 

, 318 (1986) (citation and
internal quotations omitted). Thus, the Eighth Amendment’s
Cruel and Unusual Punishments Clause does not apply until




                                30
“after sentence and conviction.”21 Graham v. Connor, 

n.6 (1989).

       In Wilson v. Seiter, 

(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.’” 

301-05 (quoting Rhodes v.
Chapman, 

, 347 (1981)). Here, the district court
correctly cited the standard that governs plaintiffs’ claims as
follows:

       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 wether 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


  21
    The Cruel and Unusual Punishments Clause, and indeed the
entire Eighth Amendment, is made applicable to the states
through the Fourteenth Amendment. Robinson v. California,

(1962).

                               31
       punishment.

2003 WL at *3 (citation omitted, emphasis added). However,
the court then relied upon our decision in Kost v. Kozakiewicz,

(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, 

, *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.”

n. 10. (emphasis added).

        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.” 

. 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. . . .” 

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

                                32
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 at * 3 (citing Ellegood v.
Taylor, No. 01-213 , 

(D. Del March 18,
2002).

       The court also relied upon City of Revere v. Mass. Gen.
Hosp., 

(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 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.’” 

, 244. 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].” 

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.” 

v. Wolfish).

        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

                                 33
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.”

        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, 

(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


   22
      Even before Kost, 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, 

, 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, 

, 472 (3d Cir. 1987), we noted that
even though the constitutional protections afforded prisoners
and pre-trial detainees against inadequate medical care arise

                               34
       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,

, 471 (3d Cir. 1987). They are not yet at a stage of
the criminal process where they can be punished because they


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, 

, 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
       medicalneeds, or a combination of both, it is
       appropriate to apply the deliberate indifference
       standard articulated in 

(brackets in original) (internal quotation marks
omitted).

                                35
have not as yet been convicted of anything. As the Supreme
Court explained in Bell, pre-trial detainees cannot be punished
at all under the Due Process Clause.

         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


   23
     In Kost, 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, 

(1976), we specifically
distinguished between the protections of the Due Process
Clause and those of the Eighth Amendment. 

(“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, 

, 471 (1987)). Moreover, we recognized that pretrial
detainees are entitled to greater constitutional protection than
that provided by the Eighth Amendment. 

n.10.
Although we did not specifically cite Bell v. Wollfish, 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.

                              36
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




   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, 

, 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, 

, 251-52 (3d Cir. 2000) (Holding that §
1997e(e) does not bar nominal and punitive damages for

                               37
        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, 

, 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 pre-trial 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.

      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


violations of constitutional rights even in the absence of
physical injury).

    25
      The prison officials cite to the following cases: Renn v.
Taylor, 

(D.Del. March 2, 2001) (Robinson,
J.); Bagwell v. Brewington-Carr, 

(D.Del.
April 27, 2000) (Sleet, J.); Jackson v. Brewington-Carr, 

(D.Del. Jan. 14, 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.).

                               38
possible stage in litigation.” Saucier v. Katz, 

,
200-01 (2001) (citations omitted) (emphasis in original).

                     D. The ADA claim.

        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 Valdino v. A. Valey Engineers, 

, 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 Valdino.26

                    E. Class certification.

       Although the district court did not explain why it denied
the motion for class certification “as moot,” 

at *6, we assume that the motion was denied because the court
dismissed the underlying conditions of confinement claim and


     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.

                               39
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

        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 Valdino v. A. Valey
Engineers.




  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 pre-trial detainee,
because of the “temporary nature of confinement” at Gander
Hill, “the issues presented are . . . ‘capable of repetition, yet
evading review.’” 

n.5 (citations omitted).
Therefore, we do not believe that the request for injunctive relief
is moot.

                                40