Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2008

Hubbard v. Taylor
Precedential or Non-Precedential: Precedential

Docket No. 06-4627




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                              PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                No. 06-4627


     GREGORY HUBBARD; ALVIN PHILLIPS;
          JULIAN PAYNE; CURTIS GIBBS;
   GREGORY J. BOLLING; LEONARD GARNER;
     GREGORIO TOMAS; DESMOND BROWN;
   THELLIE CHAMBLEE; SPUD M. BURNS, JR.;
    ROBERT WARD; CHRISTOPHER VAVALA;
   KRISTOFER JACKSON; TIMOTHY THOMAS;
PAUL C. WOODWARD; JOSEPH MICHAEL CREEGAN,
      JR.; JAVARI WILLIAMS; FLOYD HUNT;
       BRYANT CHARLES; CLAUDE JONES;
    EDDIE A. CARTER; THEODORE JACKSON;
      ANDRE MURRAY; ATIF MOHAMMAD;
    PEDRO RIVERA, JR.; ANDREW P. BLAKE;
    LINWOOD WILSON; WILLIAM T. DAVIS;
      WILL T. GRAHAM; KEVIN M. AGNEW;
     NOEL SANTIAGO; WALTER KRAUSE, III;
       BARRY J. GREEN; WEDUS MADDOX;
    RAYMOND STEVENS; JAMES A. WILSON;
    MATTHEW MAJOR, JR.; PERCY OSBORNE;
   KEVIN KETCHUM; SAMUEL TURNER POOLE,

                              Appellants,
                             v.

         COMMISSIONER STANLEY TAYLOR;
           WARDEN RAPHAEL WILLIAMS;
        ATTORNEY GENERAL M. JANE BRADY




      On Appeal from the United States District Court
              for the District of Delaware

                District Court No.: 00-cv-0531
         District Judge: Honorable Sue L. Robinson


               Argued October 24, 2007
Before: SLOVITER, CHAGARES and HARDIMAN, Circuit
                      Judges.

                   (Filed: August 5, 2008)

Paul E. Crawford (Argued)
Helena C. Rychlicki
Connolly, Bove, Lodge & Hutz
1007 North Orange Street
P. O. Box 2207
Wilmington, DE 19899
       Attorneys for Appellants



                              2
Richard W. Hubbard (Argued)
Department of Justice
820 North French Street
Carvel Office Building
Wilmington, DE 19801
      Attorney for Appellees




                 OPINION OF THE COURT




HARDIMAN, Circuit Judge.

        This case comes to us for the second time. In Hubbard
v. Taylor, 

(3d Cir. 2005) (Hubbard I), we held that
when pretrial detainees challenge conditions of confinement,
their claims must be analyzed under the Due Process Clause of
the Fourteenth Amendment. Because the District Court initially
evaluated Plaintiffs’ claims under the Eighth Amendment’s
prohibition against cruel and unusual punishment, we vacated
the order granting summary judgment to Defendants and
remanded to the District Court for analysis under the Fourteenth
Amendment. Furthermore, as the District Court had addressed
the merits of Plaintiffs’ claims without reaching Defendants’
assertions of qualified immunity, we instructed the District
Court to resolve the qualified immunity issue first. Hubbard 

.



                               3
       On remand, the District Court found that Defendants
were entitled to qualified immunity under either prong of the
familiar two-step analysis established by the Supreme Court in
Saucier v. Katz, 

(2001). See Hubbard v. Taylor,

(D. Del. 2006). Plaintiffs filed this timely
appeal and jurisdiction lies under 28 U.S.C. § 1291.1

                               I.

       Plaintiffs claim that they were punished in violation of
the Due Process Clause of the Fourteenth Amendment when
they were “triple-celled,” or housed three-to-a-cell, in the West
Wing of the Multi-Purpose Criminal Justice Facility in
Wilmington, Delaware (commonly known as “Gander Hill”).
The facts of this case are set forth in Judge McKee’s
comprehensive opinion for the Court in Hubbard I. We assume
familiarity with those facts and will not restate them here.

       Pursuant to the Supreme Court’s decision in Saucier, we
must first resolve a “threshold question: Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the officer’s conduct violated a constitutional 

. If there has been a violation, we proceed to the



       1
          Former Delaware Attorney General M. Jane Brady
appears in the caption as a Defendant and was discussed as such
in the opinion below. We note that Plaintiffs’ Amended
Complaint made no claims against her and failed to name her as
a Defendant.

                               4
second step of Saucier, which asks “whether the right was
clearly established.” 2 

Hubbard I, we noted that when pretrial detainees
challenge their conditions of confinement, we must consider
whether there has been a violation of the Due Process Clause of
the Fourteenth Amendment. As the Supreme Court stated in
Bell v. Wolfish:

       In evaluating the constitutionality of conditions or
       restrictions of pretrial detention that implicate
       only the protection against deprivation of liberty


       2
            We note that since Saucier was decided, several
justices have questioned the propriety of rigidly obliging district
courts to consider the constitutional question first. See Morse v.
Frederick, — U.S. —, 

, 2641 (2007) (Breyer, J.,
concurring in part and dissenting in part); see also Brousseau v.
Haugen, 

, 201-02 (2004) (Breyer, J., joined by
Scalia and Ginsburg, JJ., concurring); Bunting v. Mellen, 

, 1019 (2004) (Stevens, J., joined by Ginsburg and
Breyer, JJ., respecting denial of certiorari); 

(Scalia, J., joined by Rehnquist, C.J., dissenting). On March 24,
2008, the Supreme Court granted certiorari in Pearson v.
Callahan, 

, 

(U.S.), a case
arising under the Fourth Amendment in which the Court
directed the parties to brief and argue whether Saucier should be
overruled.

                                5
      without due process of law, we think that the
      proper inquiry is whether those conditions amount
      to punishment of the detainee. 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.

, 535 (1979).

      Accordingly, we must determine whether the conditions
imposed upon Plaintiffs at Gander Hill amount to punishment.
In making this determination:

      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 [the
      disability has] an alternative purpose . . . and
      whether it appears excessive in relation to [that]
      purpose.’ . . . Thus, if a particular condition or
      restriction of pretrial detention is reasonably
      related to a legitimate governmental objective, it
      does not, without more, amount to ‘punishment.’
      Conversely, if a restriction or condition is not
      reasonably related to a legitimate goal — if it is
      arbitrary or purposeless — a court permissibly
      may infer that the purpose of the governmental


                              6
       action is punishment that may not constitutionally
       be inflicted upon detainees qua detainees.

(citations omitted). The Supreme Court further
stated that:

       In determining whether restrictions or conditions
       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
       e x a g g e r a t e d t h e i r r e s p o n s e to th e s e
       considerations, courts should ordinarily defer to
       their expert judgment in such matters.

n.23 (citations omitted). See also Block v. Rutherford,

, 584 (1984) (emphasizing the “very limited role
that courts should play in the administration of detention
facilities”).

       In Union County Jail Inmates v. Di Buono, 

(3d Cir. 1983), this Court distilled the Supreme Court’s
teachings in Bell into a two-part test. “[W]e must ask, first,
whether any legitimate purposes are served by these conditions,
and second, whether these conditions are rationally related to
these purposes.” 

                                   7
                                A.

        Before the District Court, Plaintiffs argued that they were
triple-celled for the illegitimate purpose of coercing them to
enter into plea bargains. Here, however, Plaintiffs rely on “[a]n
elementary mathematical calculation” in challenging the
legitimacy of triple-celling.

       According to Plaintiffs, the East Wing of Gander Hill
contains 480 cells designed for two people, which amounts to
space for a total of 960 individuals. Noting that “[t]his is the
approximate number of pretrial detainees housed three-to-a-cell
in the 360 one-person cells of the West Wing (360 X 3 =
1080),” Plaintiffs argue that “the average number of pretrial
detainees (about 1000) could have been housed two to a cell in
the East Wing without overcrowding.” Therefore, because
“Gander Hill had ample space to comfortably house pretrial
detainees two-to-a-cell in the East Wing and triple cell
sentenced prisoners in the West Wing,” Plaintiffs contend that
they were triple-celled needlessly.

        As Defendants counter — and as Plaintiffs concede in
their reply brief — this argument was based on the fallacy that
there are 480 cells in the East Wing when, in fact, there are only
240 cells. The East Wing therefore has insufficient space to
house the average number of pretrial detainees at Gander Hill
even if they were triple-celled rather than double-celled. In light
of the true capacity of the East Wing, we summarily reject
Plaintiffs’ contention that there was “no need to triple cell
pretrial detainees at Gander Hill because there was ample room
in the East Wing for the detainees.”

                                8
       Rather, it is clear that Defendants’ practice of triple-
celling pretrial detainees was a response to the severe
overcrowding at Gander Hill. Acknowledging this fact,
Plaintiffs note in their Amended Complaint that prisoners and
detainees were sometimes housed in the facility’s gym, weight
room, and booking and receiving area. Furthermore, as we
noted in Hubbard I, Gander Hill receives approximately 18,000
admissions per year — a figure over which Defendants have no

.

       In considering the validity of the governmental interest
in managing this overcrowding, we note that in Bell the
Supreme Court recognized the government’s “legitimate
interests that stem from its need to manage the facility in which
the individual is 

. Moreover, in
Union County, this Court explicitly recognized a county’s
interest in the “management of [an] overcrowded 

. Thus, the District Court correctly concluded
that Defendants had a legitimate interest in trying to manage, as
best they could, the overcrowded conditions at Gander Hill.3



       3
            Our dissenting colleague states: “Once the courts
determine that a constitutional violation exists, it is no answer
that the state or local government has insufficient funds to
remedy the unconstitutional situation.” We agree. The fact that
the prison administrators in this case have a legitimate interest
in managing overcrowding means that the first prong of the test
is satisfied. It does not mean that fiscal concerns can serve as a
proxy for constitutional standards.

                                9
                                B.

        Having rejected Plaintiffs’ “elementary mathematical
calculation” and having recognized the validity of Defendants’
interest in managing an overcrowded prison, we now consider
whether the triple-celling of pretrial detainees is rationally
related to this interest. As we noted in Union County, this
analysis involves a “further [] inquir[y] 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 

(quoting 

)
(alterations omitted).

       In conducting this excessiveness analysis, “we do not
assay separately each of the institutional practices, but [instead]
look to the totality of the conditions.” Hubbard 

(quoting Jones v. Diamond, 

, 1368 (5th Cir.
1981), overruled on other grounds by Int’l Woodworkers of Am.
v. Champion Int’l Corp., 

(5th Cir. 1986) (en
banc)). See also Ferguson v. Cape Girardeau County, 

, 650 (8th Cir. 1996) (“[i]n evaluating the conditions, the
court must look to a number of factors, including the size of the
detainee’s living space, the length of confinement, the amount
of time spent in the confined area each day, and the opportunity
for exercise”) (citation omitted).

      In claiming that triple-celling is excessive in relation to
the management of overcrowding at Gander Hill, Plaintiffs
emphasize that each detainee had only sixteen square feet of net


                                10
unencumbered cell space to himself.4 However, this lack of
space in individual cells is alleviated by the availability of large
common areas, or “dayrooms.” As we noted in Hubbard I,
Gander Hill’s housing units have a “modular” design, in which
each housing unit contains twenty cells that surround a dayroom
of approximately 3,900 square 

. Each
dayroom contains a sink, tables, chairs, and a television, and
inmates are generally free to leave their cells and access the
dayroom between the hours of 8:30 a.m. and 10:30 p.m. 

a similar modular setup in Bell, the Supreme Court
wrote that because “[d]etainees are required to spend only seven
or eight hours each day in their rooms, during most or all of
which they presumably are sleeping,” and because the detainees’
rooms “provide more than adequate space for 

, it thus “fail[ed] to understand the emphasis . . . on
the amount of walking space” in the cells. 

n.26.

        Plaintiffs also emphasize the fact that they had to sleep
on floor mattresses for extended periods of time as a result of
triple-celling, with most spending between three and seven
months on a mattress while waiting for one of the bunk beds to




       4
         Cells in Gander Hill’s West Wing range in size from 69
to 76 square feet; after accounting for the space occupied by a
bunk bed, floor mattress, desk, and toilet, each detainee has
approximately 16 square feet of individual free space in his cell.
Hubbard 

. Defendants note that the floor
mattress can be placed underneath the bunk bed when not in use.

                                11
become available.5 They allege that this resulted in “extreme
discomfort and disease” as well as the “regular splash[ing]” of
urine and feces from the nearby toilet; moreover, two of the
Plaintiffs claim to have suffered injuries as a result of the
mattresses. Highlighting the aforementioned language from Bell
and Union County — that conditions of confinement involving
“genuine privations and hardship over an extended period of
time might raise serious questions under the Due Process
Clause” — Plaintiffs argue that being required to spend three to
seven months on a floor mattress is excessive in relation to the
management of overcrowding at Gander Hill.

       In support of their argument, Plaintiffs rely upon the
decision of the Court of Appeals for the Second Circuit in
Lareau v. Manson, 

(2d Cir. 1981), in which pretrial
detainees challenged their conditions of confinement at the
Hartford Community Correctional Center (HCCC). Consistent
with the “totality of the circumstances” analysis described in
Hubbard I, the Second Circuit wrote that the question of
whether prison overcrowding constituted punishment “is one of
degree and must be considered in light of the particular
circumstances of each case and the particular facility in
question” and that “the [Bell] court itself highlighted the factual
sensitivity of the inquiry.” 

       5
         The newest arrival in a cell is required to sleep on the
floor mattress until one of the other inmates in the cell is
released or moved, thereby freeing up a bunk. Hubbard 

.

                                12
        In conducting this fact-based analysis, the Lareau court
contrasted the conditions at the HCCC with those in the
double-bunked facility in Bell, noting that the 60 to 65 square
foot cells in the HCCC were 10 to 15 square feet smaller than
those at issue in Bell. 

Though recognizing that cell
overcrowding could be “avoided” by the use of dayrooms, the
Lareau court indicated that the 225 to 262 square foot dayrooms
in the HCCC were so tiny and overcrowded themselves that, “in
contrast to [Bell], the lack of living space in the doubled cells
[was] compounded rather than alleviated by the situation in the
common areas.” 

court held that “when a
detainee is subjected for a substantial length of time to the
combination of double-bunked cells, overcrowded dayrooms
and strained prison services found in the HCCC, he is being
unconstitutionally punished” and indicated that the maximum
amount of time that such conditions were constitutionally
permissible was 15 days. 

Without further analysis,
the Lareau court then indicated that the use of floor mattresses
was “too egregious to warrant any such leeway” and
“constitute[d] punishment without regard to the number of days
for which a prisoner is so confined.” 

– in
which the Second Circuit effectively held floor mattresses to be
per se unconstitutional – is in considerable tension with
Lareau’s own statement that the punishment inquiry “is one of
degree and must be considered in light of the particular
circumstances of each case and the particular facility in
question.” 

It is also noteworthy that Lareau is the
only Court of Appeals decision to categorically prohibit the use
of floor mattresses.



                               13
        Consistent with Hubbard I, we decline to follow
Lareau’s approach of “assay[ing] separately” the
constitutionality of floor mattresses, and instead consider them
as part of the “totality of the circumstances within [the]
institution.” Hubbard 

. Although many
pretrial detainees at Gander Hill did spend a substantial amount
of time on floor mattresses, they also had access to 3,900 square
foot dayrooms that were more than twice the size of the
dayrooms in Bell and approximately fifteen times the size of the
largest dayrooms in Lareau. Furthermore, though under Saucier
the facts alleged must be viewed in the light most favorable to
the party asserting the injury, the record does not substantiate
Plaintiffs’ claims that the use of floor mattresses resulted in
disease or the splashing of human waste upon them. Finally, as
the District Court noted, “over $2.8 million dollars has been
spent on capital improvements at Gander Hill during the past
five years to maintain or elevate the living conditions for
prisoners,” resulting in improvements to the air conditioning
system, fire alarm system, roofing, showers, hot water system,
water filtration system, kitchen floor, and ventilation ducts.

(D. Del. 2006).

       In sum, based upon the totality of circumstances at
Gander Hill and bearing in mind the “very limited role that
courts should play in the administration of detention facilities,”

, we hold that Plaintiffs were not
subjected to genuine privations and hardship over an extended
period of time for purposes of their due process claim.




                               14
                                C.

       Plaintiffs also rely heavily upon our decision in United
States ex rel. Tyrrell v. Speaker, 

(3d Cir. 1976), in
arguing that their conditions of confinement amount to
unconstitutional punishment. In Tyrrell, we:

       affirm[ed] the district court’s holding that the
       state violated the due process clause of the
       Fourteenth Amendment in arbitrarily imposing
       materially greater restrictions on the freedom of
       this pre-trial detainee than those imposed on
       convicted prisoners at Graterford, since the only
       legitimate state interest in the detention of an
       accused who cannot raise bail is in guaranteeing
       his presence at trial.

(citations omitted). Plaintiffs therefore claim that the
practice of triple-celling pretrial detainees at Gander Hill —
which did involve the imposition of materially greater
restrictions upon detainees in the West Wing than upon the
convicted prisoners in the East Wing — was a violation of the
Due Process Clause of the Fourteenth Amendment.

        We find several problems with Plaintiffs’ reliance upon
Tyrrell. First, the above-quoted statement was undermined by
the Supreme Court’s subsequent decision in Bell. 

(“we do not accept [the] argument that the
Government’s interest in ensuring a detainee’s presence at trial
is the only objective that may justify restraints and conditions
once the decision is lawfully made to confine a person. . . . [T]he

                                15
effective management of the detention facility . . . is [also] a
valid objective that may justify imposition of conditions and
restrictions of pretrial detention and dispel any inference that
such restrictions are intended as punishment”) (emphasis in
original). Thus, Plaintiffs were not triple-celled “arbitrarily” as
suggested by Tyrrell, but in furtherance of the government’s
legitimate interest in managing the severe overcrowding at
Gander Hill. See Section 

.

       Furthermore, we note that nowhere in Bell did the
Supreme Court suggest that if detainees are treated differently
or worse than convicted inmates, they are ipso facto being
“punished” in violation of the Due Process Clause. Rather, the
ultimate question under Bell is whether “a particular condition
or restriction of pretrial detention is reasonably related to a
legitimate governmental 

; if so, it is
irrelevant whether or not that condition is also imposed upon
convicted inmates.         Simply put, conditions that are
“comparatively worse” or “less comfortable” for pretrial
detainees than for convicted inmates are not by themselves
tantamount to punishment, and to the extent that Tyrrell
suggests otherwise, it is no longer valid after Bell.

       In light of the foregoing analysis, we conclude that
Plaintiffs were not punished in violation of the Due Process
Clause of the Fourteenth Amendment.

                               III.

      Even if we had found that Plaintiffs had been subjected
to unconstitutional punishment, they can prevail only by

                                16
showing under the second step of Saucier that the constitutional
right violated was “clearly established” at the time it 

. “[A] right is clearly established for purposes
of qualified immunity when its contours are ‘sufficiently clear
that a reasonable official would understand that what he is doing
violates that right.’” Williams v. Bitner, 

, 191 (3d
Cir. 2006) (quoting 

). Thus, “[t]he
qualified immunity standard ‘gives ample room for mistaken
judgments by protecting all but the plainly incompetent or those
who knowingly violate the law.’” Gilles v. Davis, 

,
203 (3d Cir. 2005) (quoting Hunter v. Bryant, 

, 229
(1991)).

        In their reply brief, Plaintiffs acknowledge that “Bell
provides scant guidance on what constitutes ‘punishment’ under
the Fourteenth Amendment”; indeed, the Supreme Court has not
clearly established the right that Plaintiffs claim was violated in
this case. Likewise, our own precedents have never established
a right of pretrial detainees to be free from triple-celling or from
sleeping on a mattress placed on the floor.6


       6
         In Union County, this Court concluded that the practice
of double-celling detainees in bunk beds was constitutional in
part because it avoided “the unsanitary and humiliating practice
of forcing detainees to sleep on mattresses placed . . . on the
floor adjacent to the toilet and at the feet of their 

. In Plaintiffs’ first appeal to this Court, they
argued that the foregoing quotation from Union County dictated
a finding of unconstitutionality in this case. We disagreed,
holding in Hubbard I that “the issue of the constitutionality of

                                17
        In addition to the absence of any clearly established
appellate law, the overwhelming weight of district court
authority holds that pretrial detainees at Gander Hill have not
been subjected to unconstitutional punishment. As we noted
previously, “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.” Hubbard 

. Plaintiffs counter by
citing dicta from two other district courts to the effect that floor
mattresses are unconstitutional. See Monmouth v. Lanzaro, 

(D.N.J. 1984); see also Newkirk v. Sheers, 834 F.
Supp. 772 (E.D. Pa. 1993). Even if these dicta are read as
holdings, they conflict with almost all of the holdings from the
very district in which Gander Hill is located. See, e.g., Brandon
v. Taylor, 

(D. Del. 2000) (no Eighth
Amendment violation where plaintiff was forced to sleep on
floor mattress for eight days and suffered various other
privations); Bagwell v. Brewington-Carr, 

(D.
Del. 2000) (no Eighth Amendment violation where plaintiff was
double-celled in cell built for one and alleged unsanitary and
unsafe conditions resulting from overcrowding); Jackson v.
Brewington-Carr, 

(D. Del. 1999) (no Eighth
Amendment violation where plaintiff was temporarily confined
to floor mattress); Bartley v. Taylor, Civ. No. 98-503 (D. Del.


placing floor mattresses adjacent to a toilet was simply not
before [the Union County court] and we did not decide it.
Therefore, it was 

. Accordingly, our
decision in Union County does not establish a constitutional
right to be free from the use of floor mattresses.

                                18
Sept. 10, 1999) (in finding no Eighth Amendment violation,
court noted that “in light of prison overcrowding problems,
budget restrictions, and the need for prison authorities to take
measures to accommodate overcrowding, the fact that inmates
are forced to sleep on the floor on a mattress instead of a bed is
not sufficient to state a claim of a constitutional violation”);
Albino Torres v. Brewington-Carr, Civ. No. 98-159 (D. Del.
Nov. 29, 1999) (no Eighth Amendment violation where plaintiff
was triple-celled); Martin v. Brewington-Carr, Civ. No. 98-04
(D. Del. Dec. 31, 1997) (in finding no Eighth Amendment
violation, court noted that “in light of the prison over-crowding
problem and the need for prison authorities to take interim
measures to house inmates within 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”).7
But see Harris v. Brewington-Carr, 

, 379 (D.
Del. 1999) (plaintiff who “had to sleep on the floor for one week
while being held in Booking and Receiving” and later “had to
sleep on the floor for three weeks before receiving a bed” stated
claim upon which relief could be granted).


       7
           Nor are we persuaded by Plaintiffs’ argument that
Defendants may not rely upon the District of Delaware decisions
to establish qualified immunity because they were based upon
an Eighth Amendment analysis that we found to be “fatally
flawed” in Hubbard 

. While Hubbard I
indicated that these decisions should have used a Fourteenth
Amendment due process analysis, the decisions are nevertheless
plainly relevant as to whether Plaintiffs’ alleged constitutional
right was clearly established at the time it was violated.

                               19
        In the absence of direct authority from the Supreme Court
or this Court, the Defendants in this case were not obliged to
familiarize themselves with, and adhere to, the decisions of
district courts outside their jurisdiction when the very court to
whose jurisdiction they were subject repeatedly approved of
their practices at Gander Hill. As the foregoing District of
Delaware cases demonstrate, this is not a case where “the
unlawfulness of the defendant’s conduct would have been
apparent to a reasonable official based on the current state of the
law, [such that] it is not necessary that there be binding
precedent from this circuit so advising.” 

(quoting Brown v. Muhlenberg Twp., 

, 211-12
(3d Cir. 2001)). Accordingly, the District Court did not err in
holding that the Defendants were entitled to qualified immunity.

                                IV.

       In sum, we find that under Saucier, Defendants did not
violate Plaintiffs’ constitutional rights and that those rights were
not clearly established in any event. Our holding in this case
should not be misconstrued as an endorsement of “triple-
celling” or the use of floor mattresses, however. Rather, we
hold that based on the totality of the circumstances presented on
this factual record, Plaintiffs were not unconstitutionally
punished in violation of the Fourteenth Amendment.
Accordingly, we will affirm the judgment of the District Court.




                                20
SLOVITER, Circuit Judge, dissenting in part and concurring in
Judgment.




        Appellants are pre-trial detainees housed at Delaware’s
Multipurpose Criminal Justice Facility, known as “Gander Hill,”
who appeal the order of the District Court granting summary
judgment in favor of prison officials (“prison officials” or
“Appellees,” collectively) based on qualified immunity. The
detainees claim that certain conditions of confinement,
specifically the practice at Gander Hill of housing three
detainees in cells designed for one person (“triple-celling”),
violate their rights under the Fourteenth Amendment. When this
case was initially before this court, we held that the District
Court erred in applying the Eighth Amendment cruel and
unusual punishment standard applicable to convicted prisoners.
Hubbard v. Taylor, 

(3d Cir. 2005) (Hubbard I).
We explained that because the prisoners were pre-trial detainees,
their claim must be evaluated under the standards applicable
under the Fourteenth Amendment. We stated that under the
controlling authority of Bell v. Wolfish, 

(1979),
pre-trial detainees “are not yet at a stage of the criminal process
where they can be punished because they have not as yet been
convicted of anything.” Hubbard 

. We
remanded to the District Court for a proper analysis of the
detainees’ claim. We also noted that the District Court had not
reached defendants’ entitlement to qualified immunity, and
directed the District Court to resolve that issue first.



                                21
       On remand, the prison officials renewed their motion for
summary judgment on the basis of qualified immunity. Hubbard
v. Taylor, 

, 535 (D. Del. 2006). The District
Court found that triple-celling could not be considered
punishment, as it was initiated in response to overcrowding at
Gander Hill. 

Deferring to the prison officials’
determination that triple-celling of pre-trial detainees is one way
of dealing with overcrowded facilities, the Court found this
action was not arbitrary or purposeless so as to constitute
punishment.




       The majority proceeds to follow the two-step analysis
required to determine whether the prison officials are entitled to
qualified immunity and holds that the triple-bunking to which
the detainees were subjected did not constitute a violation of
their due process rights. I respectfully disagree.




      The conditions at Gander Hill were fully described in
Hubbard I. I reiterate them because they form the basis for my
conclusion contrary to that of my colleagues.




       Plaintiffs claim that triple-celling requires
       someone to sleep on a mattress that must be
       placed on the cell floor adjacent to a toilet. . . .


                                22
        The defendants concede that an inmate
must sleep on a floor mattress when three are
housed in a given cell. When that happens, the
newest arrival is required to sleep on a mattress
on the floor until one of his cellmates is released
or moved. That frees a bunk for the inmate who
had been on the floor mattress, and any new
arrival in that cell would then take his place on
the floor mattress.




        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. . . .




       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.


                        

.




        Appellants claim that the conditions caused serious
injuries, including a broken leg and an infected shin, as well as
discomfort and disease associated with sleeping on a concrete
floor. These conditions have repeatedly been brought to the
attention of the district court judges of the District of Delaware
but no judge has characterized them as unconstitutional. In
contrast to those district court judges, the District Judge whose
order is the subject of this appeal, and my colleagues in the
majority, I can reach no conclusion other than the conditions
alleged meet the standard of the Fourteenth Amendment – that
the conditions “shock[] the conscience.” Rochin v. California,

, 172 (1952). They shock my conscience,
particularly because the conditions apply to pre-trial detainees
who have not been convicted, some of whom are imprisoned
because they cannot afford bail. Admittedly, judges have
varying consciences and I would not and do not comment on the
consciences of other judges. I merely state that when the status
of Appellants as pre-trial detainees is combined with the
unchallenged fact that at least some of the detainees are subject
to these horrific conditions noted by this court in Hubbard I for
as long as two to seven months, my conscience is shocked.
Thus, I believe that Appellants have adequately alleged a
violation of their constitutional right to due process.




                               24
        Once the courts determine that a constitutional violation
exists, it is no answer that the state or local government has
insufficient funds to remedy the unconstitutional situation. This
excuse was tried and rejected in the aftermath of the decision in
Brown v. Bd. of Educ., 

(1954). For example, in
Griffin v. County Sch. Bd., 

(1964), a case
involving a county which unconstitutionally closed its public
schools and supported private segregated white schools to avoid
complying with desegregation, the Supreme Court mentioned as
part of the remedy that “the District Court may, if necessary to
prevent further racial discrimination, require the [Board of]
Supervisors to exercise the power that is theirs to levy taxes to
raise funds adequate to reopen, operate, and maintain without
racial discrimination a public school system” in the county. 

       The issue has also arisen in connection with
overcrowding of prisons. In Rhodes v. Chapman, 

,
339-41 (1981), the prisoners argued that “double celling”
inmates, i.e., housing two inmates in a one-person cell, with
bunk beds, violated their Eighth Amendment rights. The Court
held that the conditions in that case did not constitute cruel and
unusual punishment. Justice Brennan’s concurrence noted that
the Court had “upheld the exercise of wide discretion by trial
courts to correct conditions of confinement found to be
unconstitutional.” 

n.4 (Brennan, J., concurring). His
language is particularly applicable here:



                               25
Public apathy and the political powerlessness of
inmates have contributed to the pervasive neglect
of the prisons. . . . Prison inmates are “voteless,
politically unpopular, and socially threatening.”
Morris, The Snail’s Pace of Prison Reform, in
Proceedings of the 100th Annual Congress of
Corrections of the American Correctional Assn.
36, 42 (1970). Thus, the suffering of prisoners,
even if known, generally “moves the community
in only the most severe and exceptional cases.”

even conscientious prison
officials are “[c]aught in the middle,” as state
legislatures refuse “to spend sufficient tax dollars
to bring conditions in outdated prisons up to
minimally acceptable standards.” Johnson v.
Levine, 

, 654 (Md.), aff’d in
part, 

(4th Cir. 1978). . . .




Under these circumstances, the courts have
emerged as a critical force behind efforts to
ameliorate inhumane conditions. Insulated as
they are from political pressures, and charged
with the duty of enforcing the Constitution, courts
are in the strongest position to insist that
unconstitutional conditions be remedied, even at
significant financial cost. Justice Blackmun, then
serving on the Court of Appeals, set the tone in
Jackson v. Bishop, 

, 580 (8th Cir.
1968): “Humane considerations and constitutional

                        26
       requirements are not, in this day, to be measured
       or limited by dollar considerations . . . .”

(Brennan, J., concurring).




       In Finney v. Ark. Bd. of Corr., 

(8th Cir.
1974), the court held that “some compliance” with a previous
remedial court decree to correct prison conditions was “not good
enough.” 

The court stated that:




       [l]ack of funds is not an acceptable excuse for
       unconstitutional conditions of incarceration. An
       immediate answer, if the state cannot otherwise
       resolve the problem of overcrowding, will be to
       transfer or release some inmates. The district
       court shall also satisfy itself that no additional
       prisoners will be confined at the Cummins Prison
       Farm if their confinement will result in continued
       overcrowding and perpetuation of conditions
       which fail to provide optimum safety and
       sanitation for every inmate.

am satisfied that the first requirement for consideration
of qualified immunity has been met, i.e., that the conditions
applicable to pre-trial detainees violate their due process rights.
On the other hand, I cannot disagree with the majority’s
determination that the constitutional right was not clearly
established, and indeed has not been clearly established to this
day.      The Supreme Court’s leading case on prison
overcrowding, Bell v. 

, merely held that
double-bunking of pre-trial detainees was not unconstitutional
under the conditions found there. The Court has not since been
presented with a record such as that in this case where the pre-
trial detainees are triple-bunked, with the third detainee obliged
to lie on the floor with a thin mattress. Because of the absence
of any controlling authority, the prison officials are entitled to
qualified immunity.




       It is my hope that this court will hold that triple-bunking
under conditions such as those present here violate the due
process rights of the pre-trial detainees. Once we render such an
opinion, future prison officials would no longer be entitled to
qualified immunity and the state would be obliged to exercise its
power to raise the funds necessary to correct the prison
conditions. Data recently published by the International Centre
for Prison Studies at King’s College London reported that the
United States has almost 2.3 million individuals behind bars,
more than any other nation. See Adam Liptak, Inmate Count in
U.S. Dwarfs Other Nations’, N.Y. Times, Apr. 23, 2008, at A1.
Surely it is the responsibility of the courts to ensure that


                                28
prisoners are housed in facilities that meet constitutional
standards.




                            29