United States v. Pullings

1

UNITED STATES Appellee v. Travis D. PULLINGS, Staff Sergeant United States Air Force, Appellant

No. 22-0123

Crim. App. No. 39948

United States Court of Appeals, Armed Forces

April 14, 2023

Argued November 8, 2022

For Appellant: Major David L. Bosner (argued); Major Jarett F Merk (on brief); Major Eshawn R. Rawl-ley and Mark C Bruegger, Esq.

For Appellee: Major Brittany M. Speirs (argued); Colonel Naomi P Dennis, Lieutenant Colonel Matthew J. Neil, and Mary Ellen Payne, Esq. (on brief); Lieutenant Colonel Thomas J. Alford and Major Jay S. Peer.

Judge MAGGS delivered the opinion of the Court, in which Chief Judge OHLSON, Judge SPARKS, and Senior Judge STUCKY joined. Judge HARDY filed a separate opinion concurring in the judgment.

JASON M. KELLHOFER, MILITARY JUDGE

Judge MAGGS delivered the opinion of the Court.

Appellant asked the United States Air Force Court of Criminal Appeals (AFCCA) for sentence relief on grounds that he suffered cruel and unusual punishment, in violation of Article 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855 (2018) and the Eighth Amendment of the Constitution, during a period of post-trial confinement in a civilian jail. United States v. Pullings, No. ACM 39948, 2021 CCA LEXIS 648 at *2-3, 2021 WL 5626313, at *1-2 (A.F. Ct. Crim. App. Nov. 30, 2021) (unpublished). The AFCCA, however, rejected Appellant's allegations of cruel and unusual punishment and affirmed his approved sentence. Id. at *2, 2021 WL 5626313, at *1. Appellant now asks us to reverse the AFCCA and remand the case for the AFCCA to reassess his sentence. Applying the test announced in United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), we conclude that Appellant has not established that he suffered cruel and unusual punishment. Accordingly, we affirm the AFCCA.

In reaching this decision, we neither accept nor reject the Government's argument that we should overrule precedents in which this Court has considered matters outside the record when reviewing claims of cruel and unusual punishment. See, e.g., United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007); United States v. Erby, 54 M.J. 476, 477 (C.A.A.F. 2001). Because overruling these precedents would not affect the outcome of this case, we leave the issue of whether the Court should overrule them for another time.

I. Background

A military judge, sitting as a general court-martial, found Appellant guilty, consistent with his pleas, of two specifications of sexual assault of a child and three specifications of sexual abuse of a child, in violation of Article 120b, UCMJ, 10 U.S.C. § 920b (2012). The military judge sentenced Appellant to confinement for thirteen years, reduction to the grade of E-1, "total forfeitures,"^[1] and a dishonorable discharge. In accordance with a pretrial agreement, the convening authority approved only eight years of confinement and disapproved the "total forfeitures."

A. Appellant's Post-Trial Confinement Conditions^[2]

The Lowndes County Jail (LCJ) is a civilian confinement facility in Lowndes County, Georgia. The Air Force pays the LCJ to detain military "personnel who are awaiting transfer to a military penitentiary, serving a sentence where a transfer to a military facility is impractical, or being held for pre-trial confinement." A Memorandum of Agreement (MOA) between the Air Force and the LCJ specifies the duties of the LCJ when incarcerating military prisoners and the compensation from the Air Force for its services. Pursuant to this MOA, the LCJ confined Appellant from May 27, 2020, until January 29, 2021.

On December 15, 2020, and January 25, 2021, with the assistance of counsel, Appellant sent two complaints regarding his confinement conditions to the commander of his unit. These complaints alleged that the LCJ failed to provide edible food and drinkable water, sanitary living quarters, prescription medicine, and adequate medical care. He asserted that these failures constituted cruel and unusual punishment in violation of Article 55, UCMJ, and the Eighth Amendment.^[3] Appellant requested relief under Article 138, UCMJ, 10 U.S.C. § 938 (2018).

Appellant supported his allegations of deficient conditions in a sworn declaration. Appellant asserted that the LCJ gave him contaminated drinking water and moldy "expired food" with "various bugs, body hair, and flakes of rust" in it. Appellant alleged he suffered from food poisoning and that he lost thirty pounds as a result of the rations he consumed during his incarceration at the LCJ. Appellant further asserted that sewage water leaked into his cell from a broken toilet on the floor above; that the leaking sewage disabled the only light fixture in his cell; that insects crawled out of the drains in his cell; and that other inmates had broken toilets or sinks and had to use the toilet in a cell other than their own. Appellant also asserted that he could not clean up the dirt, mold, and mildew in his cell because cleaning supplies were provided only early in the morning, and he had no alarm clock or other means to wake himself up in time to use them.

Appellant additionally asserted that the LCJ never permitted him to go outside; that "the only sunlight that [he] received was from a small skylight on the roof of the day-room"; that he received no opportunity for exercise; and that he could only walk in the dayroom. Appellant further declared that the LCJ took away his lawfully prescribed medicine when he arrived; that he did not see a physician for almost a month; that the LCJ withheld pain medication for the rehabilitation of his Achilles tendon; that the LCJ also denied him access to his previously issued medication for depression and anxiety;^[4] and that the LCJ did not provide him with an extra blanket to alleviate the symptoms of a medical condition called Raynaud's Syndrome.

In addition to the complaints that he sent to his commander, Appellant also submitted numerous complaints to LCJ officials. An "Inmate Grievance/Request Record" dated September 17, 2020, shows that Appellant made the following statement:

THERE IS SO MUCH WATER DRIPPI[N]G THAT WE HAVE TO HAVE A MOP BUCKET UNDER THE LEAK AND HAVE TO EMPTY IT TWICE A DAY. THE PROBLEM IS THAT THE TOILET IS CLOGGED IN C222 AND IS CONTINUING TO OVERFLOW ON TO THE FLOOR OF THE CELL. THE WATER HAS MADE ITS WAY THROUGH THE CRACKS OF [THE] FLOOR[] [OF] C222, AND DISABLED THE LIGHTING OF C133. THERE IS ALSO WATER FLOWING DOWN THE EXTERIOR WALL OF CELL 133 AND FLOWING BACK INTO THE CELL.

The record further indicates, without additional detail, that this issue was resolved four days later.

An official from the Lowndes County Sherriff's Office who was responsible for administering the LCJ responded to Appellant's complaints in two sworn declarations. In the first declaration, dated December 31, 2020, the official stated in relevant part:

All drink coolers are cleaned daily by the Food Service Management Company, Trinity Food Service, under the supervision of contract kitchen staff; any incidents of mold or mildew are addressed immediately. Our kitchen is graded by Lowndes County Health inspectors just like public dining establishments and we consistently pass these inspections.

Tap water is dispensed through the toilet/sink appliance as it is in most other correctional facilities throughout the United States. These fixtures are in common use and commonly accepted as standard water dispensing appliances by numerous detention facilities.

Concerning the appearance of vermin in the facility we have two full-time sanitation crews who clean all common areas of the facility daily and dispense cleaning supplies to inmate[s] to clean their own rooms. . . . [A]ll inmates are expected to clean their room and shower areas daily. Our sanitation crews' supervisors, shift supervisors, and jail staff are there to make sure that this is done.

Ace Pest Control comes to our facility once a month and dispenses pest control chemicals to common areas of the jail, the jail kitchen, and periodically the inmate housing areas.

I have no knowledge that Inmate Pullings has ever made these complaints to a staff member and our records indicated th[at] Inmate Pullings has only filed one grievance since his incarceration began and it was regarding the theft of property by another inmate.

In the second declaration, dated July 19, 2021, the same official wrote in pertinent part:

5. The jail follows health and safety guidelines regarding food services. The jail has a contract cleaning service that cleans common areas, and the jail provides cleaning supplies for inmates to clean their own cells. I cannot provide any further specifics on instances of mold that Inmate Pull-ings has referenced because he did not file any complaints. I have no knowledge of Inmate Pull-ings making informal complaints regarding these issues.

6. Inmates receive 3 hours of recreation time, weekly. The recreation yard is a sealed yard under a roof, with one open air window that allows in fresh air and sunlight. The window is approximately 5 feet by 10 feet. This recreation yard complies with Georgia standards.

7. Inmates must get approval from our medical provider in order [to] bring in medication that was not prescribed to them from our medical personnel.

8. Regarding the maintenance for the leaking cell, the jail had to replace the entire roof in order to fix the leak. While we were repairing the leak, we transferred the inmates in the affected cells to other cells that were not leaking.

A nurse affiliated with the Lowndes County Sherriff's Office also provided a declaration. She asserted that Appellant did not report that he was taking any prescription medication on intake; that he reported he was on prescription medicine on June 29, 2020; that

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