Submitted: March 8, 1994
                 Filed: April 20, 1994

Rita A. Stuart
Special Assistant Attorney General
Division of Corrections
Charleston, West Virginia
Attorney for Appellants

Darrell V. McGraw, Jr.                                             Daniel F. Hedges
Attorney General                                                     Charleston, West Virginia
Paul R. Sheridan                                                      Attorney for Appellees
Senior Assistant Attorney General                            William Hawkins and Alonzo
Civil Rights Division                                                  Pendleton
Charleston, West Virginia             
Attorneys for Appellee the West         
Virginia Human Rights Commission

Franklin D. Cleckley
Morgantown, West Virginia
Attorney for Amicus Curiae
West Virginia State Branches
of the NAACP

JUSTICE MILLER delivered the Opinion of the Court.

         2.    "A prisoner has a right, secured by the Eighth and Fourteenth Amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. In order to meet the foregoing standard two conditions must be shown: (1) Whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm." Syllabus Point 2, Hackl v. Dale, 171 W. Va. 415, 299 S.E.2d 26 (1982).

         3.    "Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration." Syllabus Point 1, Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).

         4.    "An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions." Syllabus Point 2, Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981).

Miller, Justice:

        In this appeal, we are asked to determine whether the West Virginia Human Rights Commission (HRC) has jurisdiction to accept complaints of racial discrimination by inmates in the State's penal institutions. The appellants are several officials authorized by law to administer our penal institutions. They appeal an adverse ruling of the HRC holding that it does have jurisdiction.

        The basis for the HRC's assumption of jurisdiction was its belief that the State's penal institutions are places of public accommodations, as defined in W. Va. Code, 5-11-3(j) (1992).See footnote 1 If these institutions are places of public accommodations, then the HRC reasoned that under W. Va. Code, 5-11-9(6)(A) (1992),See footnote 2 racial discrimination is not permitted.

        The underlying complaint before the HRC was filed on behalf of two black inmates at the Huttonsville Correctional Center. It alleges that the prison administration does not protect black inmates from physical violence inflicted by white inmates who belong to a supremacist group called the Aryan Brotherhood.

        In our cases dealing with The West Virginia Human Rights Act, W. Va. Code, 5-11-1, et seq. (1967), we recognized that the legislature's declaration of policy contained in W. Va. Code, 5-11-2 (1989),See footnote 3 is both broad and beneficial. Moreover, as we stated in Syllabus Point 1, in part, of Paxton v. Crabtree, 184 W. Va. 237, 400 S.E.2d 245 (1990): "The West Virginia Human Rights Act 'shall be liberally construed to accomplish its objective and purpose.' W. Va. Code, 5-11-15 (1967)."See footnote 4

        The parties do not appear to disagree that the statutory definition of the term "place of public accommodations" does include the "state, or any political or civil subdivision thereof[.]" W. Va. Code, 5-11-3(j). Where the disagreement arises is whether a State penal institution "offers its services, goods, facilities or accommodations to the general public" and the subsidiary phrase in W. Va. Code, 5-11-3(j), which excludes "any accommodations which are in their nature private[.]"See footnote 5

        In several cases, we have discussed several attributes of an entity or facility that may be a public facility as defined in the public accommodations section of the Act. In Shepherdstown Volunteer Fire Department v. West Virginia Human Rights Commission, 172 W. Va. 627, 309 S.E.2d 342 (1983), we pointed to the fact that volunteer fire departments were statutorily authorized and received public funding. Our focus in Israel v. Secondary Schools Activity Commission, 182 W. Va. 454, 388 S.E.2d 480 (1989), was whether this statutorily created commission was conducting any type of public activity that could deem it a place of public accommodations. We reviewed cases from other jurisdictions and concluded that one of the essential ingredients of a place of public accommodations was that the facility allows participation to unscreened and unselected members of the public.See footnote 6

        These cases point to the conclusion that a place of public accommodations must be open to members of the public. Indeed, this distinction often is drawn between a place of public accommodations and a private club. The hallmark of a private club is its selectivity and exclusivity in obtaining its members. See Roberts v. United States Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984); Wright v. Salisbury Club, Ltd., 632 F.2d 309 (4th Cir. 1980); United States v. Trustees of Fraternal Order of Eagles, Milwaukee Aerie No. 137, 472 F. Supp. 1174 (D.C. Wis. 1979); Kiwanis Club of Great Neck, Inc. v. Board of Trustees of Kiwanis Int'l, 41 N.Y.2d 1034, 395 N.Y.S.2d 633, 363 N.E.2d 1378, cert. denied, 434 U.S. 859, 98 S. Ct. 183, 54 L. Ed. 2d 132 (1977).See footnote 7 In Roberts, supra, the Supreme Court made this summary as to why a claim of being a private organization exemption could not be sustained: "In short, the local chapters of the Jaycees are neither small nor selective. Moreover, much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship." 468 U.S. at 621, 104 S. Ct. at 3251, 82 L. Ed. 2d at 474.See footnote 8

        When we apply the foregoing to inmates in the State's penal institutions, it is apparent that they are not members of the general public. Their criminal convictions and incarcerations seriously curtail the civil liberties which ordinarily are afforded the public at large. Moreover, because members of the general public are excluded, the inmates' place of confinement cannot be deemed a public accommodation. There is no unscreened or unselected membership that is able to utilize the facility which we found in Israel to be characteristic of a place of public accommodations.See footnote 9

        The only case from any other jurisdiction that appears to be analogous is Blizzard v. Floyd, 613 A.2d 619 (Pa. Commw. Ct. 1992), decided under the Pennsylvania Human Relations Commission Act which contained a public accommodations provision similar to ours.See footnote 10 The court concluded that the Act did not apply, reasoning:

        "Although a state correctional institution is a Commonwealth facility, it does not accept or solicit the patronage of the general public. Moreover, a common theme runs throughout the Act's definition of a public accommodation which is to provide a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire. Moreover, since the purpose of a correctional institution is to incarcerate persons convicted of crime or awaiting trial or sentence, inmates do not enjoy the privilege of leaving the facility at will. It is therefore clear that a state correctional institution is not a public accommodation as defined by the Act." 613 A.2d at 621.

        We conclude that the State's penal institutions are not places of public accommodations under W. Va. Code, 5-11-3(j), for prisoners housed therein. Therefore, their claims of discrimination are not under the jurisdiction of the Human Rights Commission. Inmates are not, however, without relief.

        In Hackl v. Dale, 171 W. Va. 415, 299 S.E.2d 26 (1982), we recognized that a writ of habeas corpus would lie to challenge conditions of confinement, stating in Syllabus Point 2:

                "A prisoner has a right, secured by the Eighth and Fourteenth Amendments, to be reasonably protected from constant threat of violence and sexual assault by his fellow inmates, and he need not wait until he is actually assaulted to obtain relief. In order to meet the foregoing standard two conditions must be shown: (1) Whether there is a pervasive risk of harm to inmates from other prisoners, and, if so, (2) whether the officials are exercising reasonable care to prevent prisoners from intentionally harming others or from creating an unreasonable risk of harm."

        In Hackl, we cited federal cases that dealt with violence in penal institutions and granted relief to the inmates by requiring prison officials to provide adequate protection to the assaulted or threatened inmates. See, e.g., Withers v. Levine, 615 F.2d 158 (4th Cir. 1980), cert. denied, 449 U.S. 849, 101 S. Ct. 136, 66 L. Ed. 2d 59 (1980); Holt v. Sarver, 442 F.2d 304 (8th Cir. 1971). This same relief has been granted in more recent cases.

        For example, in LaMarca v. Turner, 995 F.2d 1526 (11th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1189, ___ L. Ed. 2d ___ (1994), the court found that prison officials knew that there was a lack of security and, as a result, inmates were physically and sexually assaulted. It affirmed the lower court's injunctive relief and recognized the right to damages for those inmates who were assaulted. The court of appeals outlined the elements of such a cause of action:

                "To prevail on their Eighth Amendment claim for damages brought under section 1983, the plaintiffs must prove three elements: (1) a condition of confinement that inflicted unnecessary pain or suffering, Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59 [, 69] (1981), (2) the defendant's 'deliberate indifference' to that condition, Wilson v. Seiter, ___ U.S. ___ [, ___], 111 S. Ct. 2321, 2327, 115 L. Ed. 2d 271 [, 281] (1991), and (3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11th Cir. 1982) [cert. denied, 464 U.S. 932, 104 S. Ct. 335, 78 L. Ed. 2d 305 (1983)]. For our purposes, the Eighth Amendment defines the contours of the first two elements and section 1983 delimits the third." 995 F.2d at 1535. (Footnotes omitted).

See also Davidson v. Canon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986) (no recovery for simple negligence); Smith v. Wade, 461 U.S. 30, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983) (reckless disregard); Hendricks v. Coughlin, 942 F.2d 109 (2d Cir. 1991); Frett v. Government of Virgin Islands, 839 F.2d 968 (3d Cir. 1988); Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990); Wright v. Jones, 907 F.2d 848 (8th Cir. 1990); Benny v. Pipes, 799 F.2d 489 (9th Cir.), amended on other grounds, 807 F.2d 1514 (9th Cir. 1986), cert. denied, 484 U.S. 870, 108 S. Ct. 198, 98 L. Ed. 2d 149 (1987). Moreover, in Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 1991), Hispanic and black inmates were granted Section 1983 injunctive relief against prison officials on their claim of racial discrimination in housing, job assignments, and discipline.

        In Mitchem v. Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981), we recognized that state courts have been given concurrent jurisdiction to handle suits by prison inmates under 42 U.S.C.A. § 1983.See footnote 11 We reviewed several United States Supreme Court casesSee footnote 12 and pointed out in Syllabus Points 1 and 2 of Mitchem that this type of action can be used by inmates to challenge the conditions of confinement:

                "1. Ordinarily an action under 42 U.S.C.A. § 1983 is appropriate where complaint is made to the conditions of confinement and not its duration.

                "2. An action based on 42 U.S.C.A. § 1983 can be maintained in our State courts to challenge prison conditions."

        Consequently, the inmates in this case are not without available remedies in the court system to obtain the relief sought.See footnote 13 For the foregoing reasons, we reverse the judgment of the Human Rights Commission.

                                            Reversed.

                "It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the state of West Virginia or its agencies or political subdivisions:

                *        *        *

                "(6) For any person being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodations to:
                "(A) Refuse, withhold from or deny to any individual because of his race, religion, color, national origin, ancestry, sex, age, blindness or handicap, either directly or indirectly, any of the accommodations, advantages, facilities, privileges or services of such place of public accommodations[.]"

        "Among other things, therefore, they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship. As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty." 468 U.S. at 620, 104 S. Ct. at 3250-51, 82 L. Ed. 2d at 472-73.