Subsequent to the filing of the petition, this Court issued a rule to show cause.

Initially, the Warden did not file a response brief. Instead, the Warden filed a motion to dismiss the petition on the grounds that no other inmate was being housed in Mr. Berry's cell. The motion to dismiss also indicated that if overcrowding occurred at Mt. Olive, another inmate would be placed in Mr. Berry's cell. This Court denied the motion to dismiss. Thereafter, the Warden filed a response brief.

         1. Constitutional right to a single cell. This Court recognized in syllabus point 2 of Crain v. Bordenkircher, 176 W. Va. 338, 342 S.E.2d 422 (1986), in part, that “[c]ertain conditions of . . . confinement may be so lacking in the area of shelter, . . . medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution.” See also Syl. pt. 4, Nobles v. Duncil, 202 W. Va. 523, 505 S.E.2d 442 (1998) (“Deliberate indifference to the serious medical needs of prisoners constitutes unnecessary and wanton infliction of pain which is proscribed by the prohibition on cruel and unusual punishment in the Federal and State Constitutions.”).

        The issue of whether or not an inmate has a constitutional right to a single cell has never been addressed by this Court. However, federal courts addressing the issue have held that, as a general matter, “[p]risoners have no constitutional right to a single cell.”

Brooks v. Kleiman, 743 F. Supp. 350, 352 (E.D.Pa. 1989) (citing, Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981), and holding that double celling did not violate constitution). While there is no per se constitutional right to a single cell, “courts have recognized that 'double celling can amount to an Eighth Amendment violation if combined with other adverse conditions.'” Jones v. Goord, 190 F.R.D. 103, 108 (S.D.N.Y. 1999) (quoting Bolton v. Goord, 992 F. Supp. 604, 626 (S.D.N.Y. 1998)). See also Nami v. Fauver, 82 F.3d 63, 67 (3rd Cir. 1996) (“[D]ouble celling can amount to an Eighth Amendment violation if combined with other adverse conditions.”). It was explained in Wilson v. Seiter, 501 U.S. 294, 304, 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 (1991), that other adverse conditions must involve “the deprivation of a single, identifiable human need such as food, warmth, or exercise[.]” Wilson also noted that “[n]othing so amorphous as 'overall conditions' can rise to the level of cruel and unusual punishment when no specific deprivation of a single human need exists.” Wilson, 501 U.S. at 304, 111 S. Ct. at 2327. Thus, “in order to constitute cruel and unusual punishment, conditions associated with double-[celling] must involve the wanton or unnecessary infliction of pain or be grossly disproportionate to the severity of the crime warranting imprisonment.” Nottingham v. Peoria, 709 F. Supp. 542, 546 (M.D. Pa. 1988) (citing Rhodes v. Chapman, 452 U.S. 337, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)).

        In view of the foregoing persuasive authorities, we find that Mr. Berry has alleged facts that constitute nothing more than general discomforts that invariably flow from having two inmates in a cell. That is, Mr. Berry complained of his cellmate's poor hygiene and having to turn out the light while his cellmate slept. There was also an allegation of limited space as a result of the presence of the wheelchair. None of these purported adverse conditions, singularly or in combination, give rise to a constitutional right for Mr. Berry to have a single cell.   (See footnote 3)  “[T]he Constitution does not mandate comfortable prisons, and prisons . . . which house persons convicted of serious crimes, [simply] cannot be free of discomfort.” Rhodes, 452 U.S. at 349, 101 S. Ct. at 2400. See also Atiyeh v. Capps, 449 U.S. 1312, 1315-16, 101 S. Ct. 829, 831, 66 L. Ed. 2d 785 (Rehnquist, Circuit Justice 1981) (“In short, nobody promised [inmates] a rose garden.”).

         2. Statutory right to a single cell. Mr. Berry contends that, as a handicapped person, he has a right to a single cell under the American With Disabilities Act (hereinafter referred to as “the ADA”), 42 U.S.C.A. § 12101 et seq. (1990).   (See footnote 4)  The United States Supreme Court has ruled that the ADA applies to state prisons. See Pennsylvania Dep't of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998). But see Board of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955, 148 L. Ed. 2d 866 (2001) (holding that Congress did not abrogate the states' sovereign immunity by enacting the ADA).

        The ADA at 42 U.S.C.A. § 12132, provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Thus, to state a claim under the ADA, a prisoner must show: “(1) he or she is a 'qualified individual with a disability'; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity [that] provides the service, program, or activity is a public entity.” Hallett v. New York State Dep't of Corr. Servs., 109 F. Supp. 2d 190, 198 (S.D.N.Y. 2000).

        The sparse record in this case forces this Court to presume that Mr. Berry uses a wheelchair due to a medically determined physical problem. Consequently, he is presumably a qualified individual with a disability under the ADA. However, having carefully reviewed the limited record, we find no evidence to show that, because of his disability, prison officials have denied Mr. Berry the privilege to participate in services, programs, or activities offered to other inmates incarcerated at Mt. Olive.   (See footnote 5)  There is no evidence that all inmates are provided with single cells, but that Mr. Berry has been denied a single cell because of his handicap. Nor is there any evidence that by not having a single cell, he will be deprived of some service, program, or activity that all other inmates enjoy. In contrast, it appears that Mr. Berry was provided with equipment, namely a wheelchair, to assure his access to services, programs, and activities offered to other inmates. The record simply fails to demonstrate that denying Mr. Berry a single cell will offend the protections afforded him by the ADA. See Bryant v. Madigan, 84 F.3d 246 (7th Cir. 1996) (finding paraplegic inmate failed to state a claim under the ADA).

         3. Regulatory right to single cell. Mr. Berry contends that under federal regulations, he is entitled to a single cell because he is confined to a wheelchair. Our research has failed to uncover any published federal regulation that requires state prisons to provide wheelchair-bound inmates with single cells.   (See footnote 6)  The Warden has correctly pointed out in his brief that the regulations implementing the ADA do not prohibit placement of more than one bunk in a cell containing a wheelchair-bound inmate. In fact, the regulations provided in 36 C.F.R. Pt. 1191, App. A, § A12.5.2(3) (2001), that “[w]here upper bunks are provided [in a cell], sufficient clearance must be provided between bunks so that transfer from wheelchairs to lower bunks is not restricted.”   (See footnote 7)  Consequently, under federal regulations it is not required that a wheelchair-bound inmate be provided with a single cell.

        We have also failed to locate any published State regulation that requires wheelchair-bound inmates be provided with single cells.   (See footnote 8)  However, there is some State regulatory authority that addresses the issue of single occupancy cells.

        It is provided under C.S.R. § 95-2-8.6 that “[o]nly one inmate shall occupy a room or cell designed for single occupancy[.]”   (See footnote 9)  (Emphasis added.) This regulation uses the word “shall” to emphasize the nondiscretionary nature of its intent. This Court has held that “[g]enerally, 'shall' commands a mandatory connotation and denotes that the described behavior is directory, rather than discretionary.” State v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999). See also Syl. pt. 2, Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969) (“The word 'shall,' in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.”).

        Moreover, the regulation is plain and presents no ambiguity. This Court has held that “[i]nterpretation of statutes or rules and regulations is proper only when an ambiguity exists.” Consumer Advocate Div. of Pub. Serv. Comm'n of West Virginia v. Public Serv. Comm'n of West Virginia, 182 W. Va. 152, 156, 386 S.E.2d 650, 654 (1989). Consequently, in the instant proceeding “we have a duty to apply the [regulation] as written when its terms are not ambiguous.” Mingo County Redev. Auth. v. Green, 207 W. Va. 486, 490, 534 S.E.2d 40, 44 (2000) (per curiam). The regulation permits no exception, such as overcrowding, to house more than one inmate in a cell designed for single occupancy. Therefore, under the clear language of C.S.R. § 95-2-8.6, the Warden is prohibited from placing more than one inmate in cell designed for single occupancy.

        Mr. Berry has alleged that his cell is designed for single occupancy. The Warden has failed to respond specifically to this allegation by denying or affirming it. We must, therefore, presume that the cell occupied by Mr. Berry is designed for single occupancy. Consequently, under C.S.R. § 95-2-8.6, the Warden has no discretion to place another inmate in Mr. Berry's single occupancy cell because of overcrowding or for any other reason.   (See footnote 10)  Therefore, Mr. Berry is entitled to the writ as moulded. See Syl. pt. 4, Rogers v. Hechler, 176 W. Va. 713, 348 S.E.2d 299 (1986) (“A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty.”).

Footnote: 1