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UNITED STATES ARMY COURT OF
CRIMINAL APPEALS
UNITED STATES,
Appellee
v.
Specialist CHARLES F. ROTH, United States Army,
Appellant
ARMY 9600441
57 M.J. 740
October 22, 2002, Decided
OPINION
OF THE COURT ON FURTHER REVIEW
CARTER, Judge:
This is a
sentence rehearing case in which appellant, relying on our decision in United
States v. Kinsch, 54 M.J. 641 (Army Ct. Crim. App. 2000), asserts that he
suffered cruel and unusual punishment when his left testicle was painfully and
permanently injured during a weapons frisk by a prison guard "totally
without penological justification." For the reasons stated herein, we
disagree.
At a general court-martial composed of officer members,
appellant pleaded guilty to wrongful disposition of military property (two
specifications), in violation of Article 108, Uniform Code of Military Justice,
10 U.S.C. § 908 [hereinafter UCMJ]. Contrary to his pleas, he was convicted of
attempted sale of military property (three specifications), conspiracy to sell
military property, and larceny of
military property (thirteen sets of night vision goggles and computer
equipment), in violation of Articles 80, 81, and 121, UCMJ. On 1 March 1996, he
was sentenced to a dishonorable discharge, confinement for sixteen years,
forfeiture of all pay and allowances, and reduction to Private E1. The
convening authority approved the sentence as adjudged. This court affirmed the
findings of guilty and the sentence on 20 October 1997. By decision dated 30
September 1999, the U.S. Court of Appeals for the Armed Forces set aside
appellant's sentence and authorized a rehearing. United States v. Roth, 52 M.J. 187 (1999).
At a sentence rehearing on 25 January 2000, a panel composed of
officer and enlisted members sentenced appellant to a bad-conduct discharge,
confinement for eight years, forfeiture of all pay and allowances, and
reduction to Private E1. The convening authority approved the sentence as
adjudged and ordered that appellant be credited with a total of 1,579 days of
confinement against the approved sentence. The case is now before the court
under Article 66, UCMJ, for review of the sentence rehearing.
Facts
The
pertinent facts are not in dispute. On 18 March 1998, while serving post-trial
confinement pursuant to his original sentence, appellant was injured when his
left testicle was hit or squeezed by a military guard during a routine weapons
frisk while leaving the dining facility at the United States Disciplinary
Barracks (USDB). Appellant filed numerous complaints with prison officials,
beginning on the evening of his injury, but all inquiries concluded no
impropriety by the guard. Appellant received regular and appropriate medical
care for the next several months, but he continued to suffer pain and [*742]
discomfort in his left testicle. Ultimately, on 22 September 1999, appellant was
sent to St. Joseph, Missouri, for surgery in the form of a vasectomy to remove
the injured portion of the spermatic cord leading to his left testicle.
The issue of cruel and
unusual punishment was not raised or litigated at appellant's sentence
rehearing. In his four-page personal request for clemency submitted to the
convening authority under Rule for Courts-Martial [hereinafter R.C.M.] 1105,
appellant mentioned the incident in one paragraph:
On 18 March, 1998, I suffered a serious injury at the
hands of a guard here at the [USDB]. I was HIT, SQUEEZED and PULLED on my left
testicle upon leaving the dining facility, on what I thought would be a routine
Pat-Frisk Down search. [Due] to this injury, I had to have a vasectomy to
remove a ruptured cord that was causing extreme pain and blood in my urine.
Because of this injury, I may never be able to have children.
Discussion
The USDB, like other prisons, strictly enforces penal rules of
conduct to safeguard the public and to protect cadre, staff, and other inmates.
This court does have jurisdiction to determine under Article 66, UCMJ, whether
the adjudged and approved sentence of a court-martial is being executed in a
cruel or unusual manner in violation of the Eighth Amendment or Article 55,
UCMJ. United States v. Erby, 54 M.J.
476 (2001); United States v. White, 54 M.J. 469 (2001). However, in exercising
that jurisdiction, we recognize that "'federal courts ought to afford
appropriate deference and flexibility to
[prison] officials trying to manage a volatile environment.'" United
States v. Smith, 56 M.J. 653, 658 (Army Ct. Crim. App. 2001) (quoting Sandin v.
Conner, 515 U.S. 472, 482, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995)).
Every injury that an inmate suffers in prison at the hands of a guard does not equate to cruel and unusual punishment. Inmate claims of cruel and unusual punishment, including those of excessive use of force, must satisfy both an objective and a subjective component to warrant relief. See Farmer v. Brennan, 511 U.S. 825, 834, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). Objectively, the inmate must demonstrate that the alleged deprivation or injury was "sufficiently serious" to warrant relief. United States v. Sanchez, 53 M.J. 393, 395 (2000); United States v. Avila, 53 M.J. 99, 101 (2000); Kinsch, 54 M.J. at 647. The inmate must also establish that the guard had a culpable state of mind and subjectively intended to maliciously or sadistically harm the inmate through the use of wanton or unnecessary force, and that the injury was not caused by a good faith effort to maintain or restore discipline. Hudson v. McMillian, 503 U.S. 1, 5, 117 L. Ed. 2d 156, 112 S. Ct. 995-7 (1992); Kinsch, 54 M.J. at 647.
We find
that appellant has established that he suffered a painful and permanent injury
to his left testicle that was "sufficiently serious" to satisfy the
objective component of the two-part test for excessive use of force cases. We
further find, however, that appellant has not demonstrated that the guard
maliciously or sadistically injured appellant though the use of wanton or
unnecessary force, or that appellant's injury was not caused by a good faith effort
to maintain discipline.
In neither
his R.C.M. 1105 matters to the convening authority nor his numerous materials
submitted to this court under United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), does appellant provide any evidence to substantiate his implied, if not
expressed assertion, that he was intentionally injured by the guard during the
weapons frisk on 18 March 1998. Consequently, appellant's reliance on Kinsch is
misplaced. In Kinsch, and a number of companion cases, we clearly set forth
this court's intolerance for maltreatment of prisoners by guards and granted
relief for cruel and unusual punishment when one particular prison guard
repeatedly, intentionally, maliciously, and sadistically struck a number of
inmates in the testicles under the pretense of pat-down searches. Kinsch, 54 M.J. at 648.
Considering
the record as a whole, including the numerous materials submitted by appellant,
we find that he has failed to establish [*743] that his injury was
intentionally inflicted. Appellant provides no evidence that this guard ever
injured any other inmate or ever injured appellant on any other occasion. This
was a one-time, accidental injury for which appellant received timely and
appropriate medical treatment. Appellant was injured during a lawful search for
weapons by a prison guard consistent with the USDB's operational and security
requirements. Properly executed, frequent, and thorough body frisks and pat
downs are a necessary and appropriate aspect of prison security. Having failed to establish that the frisking
guard possessed the requisite culpable state of mind, or that he used wanton or
unnecessary force to inflict pain or punishment upon appellant for no lawful
penal purpose, appellant is not entitled to relief for cruel and unusual
punishment. See Sanchez, 53 M.J. at
395; Avila, 53 M.J. at 101.
Decision
We have considered appellant's remaining assignment of error and
appellant's other Grostefon matters and find them to be without merit. The
sentence is affirmed.
Senior Judge CHAPMAN and Judge CLEVENGER concur.