Daryl Gillespie v. Bobby Crawford

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Daryl GILLESPIE, Plaintiff-Appellant, v. Bobby CRAWFORD, et al., Defendants.

No. 87-2729

United States Court of Appeals, Fifth Circuit.

Nov. 30, 1987.

Opinion on Granting Rehearing En Banc Feb. 23, 1988.

833 F.2d 47

Summary Calendar.

business does not make it constitutionally invalid.

The district court did err, however, in refusing to address plaintiff‘s claim that the ordinance effects a taking without just compensation as prohibited by the Fifth and Fourteenth Amendments. Plaintiff аrgues that since the city has outlawed the only commercially viable use of the land plaintiff has leased (extending as far as 10 years into the future), just compensation is required, and is not provided by the four-year amortization period included in the ordinance. The district court declined to reach this issue because of a saving clause in the ordinance providing that if any portion of the ordinance should be declared unconstitutional then that portion should be severed and the remaining portion enforced to its constitutional limit. It reasoned that, even if it should rule that the ordinance‘s amortization period failed to prevent an unconstitutional taking, that portion would be severed and the plaintiff would still not be entitled to injunctive relief, but would rather be limitеd to an action for just compensation. This was a matter for the state courts, in the opinion of the district court. We disagree. The question of whether a particular zoning ordinance is so onerous as to require just compensation under the Fifth and Fourteenth Amendments to the federal constitution obviously presents a federal question, and this question was properly before the district court. Since the court had jurisdiction to hear that claim, which was essentially related to the other claims of plaintiff in this case, it was improper to require plaintiff to file another action solely tо determine the taking or just compensation issue. The fact that plaintiff may have a remedy in the state courts does not excuse a federal court from deciding a case in which it has jurisdiction.

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 264 (1821). The taking aspect of the case is accordingly remanded to the district court for consideration of that claim, upon the merits of which we express no opinion.

AFFIRMED IN PART AND REMANDED.⁸

Daryl Gillespie, pro se.

Before GEE, RUBIN and WILLIAMS, Circuit Judges.

PER CURIAM:

Daryl Gillespiе is an inmate of the Texas Department of Corrections (the TDC). Gillespie and James Smith, another TDC inmate, filed this action under 42 U.S.C. § 1983. Gillespie and Smith alleged that they were housed in crowded and unheаlthy conditions in violation of the eighth amendment‘s prohibition against cruel and unusual punishments and that as a result they contracted tuberculosis.¹ They asked for injunctive and declaratory relief аnd damages. The district court held that Gillespie and Smith failed to state a claim under section 1983 and thus dismissed their in forma pauperis suit, prior to service of process, as frivolous pursuant to 28 U.S.C. § 1915(d). Gillespie timely appealed to this court.

I.

We first note thе standard for dismissal ‍​‌​​​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌​​‌‌‌‌‌​​‍of an action as frivolous under 28 U.S.C. § 1915(d). That section allows a district court to dismiss an in forma pauperis suit “if satisfied that the action is frivolous or malicious.” 28 U.S.C. § 1915(d). District courts in this circuit are vеsted “with especially broad discretion in making the determination of whether an in forma pauperis proceeding is frivolous.”

Cay v. Estelle, 789 F.2d 318, 325 (5th Cir.1986). An in forma pauperis suit is properly dismissed as frivolous if: “(1) the claim‘s realistic chance of ultimate sucсess is slight; (2) the claim has no arguable basis in law and fact; or (3) it is clear that the plaintiff can prove no set of facts in support of his claim.”

Id. at 326. A section 1915(d) dismissal may be made “at any time, before or after service of process and before or after the defendant‘s answer.”

Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir.1986).

At the same time, we have repeatedly held it error to dismiss an in forma pauperis suit as frivolous where the plaintiff has alleged facts that if proven would entitle him to relief. See, e.g.,

Hogan v. Midland County Commissioners Court, 680 F.2d 1101 (5th Cir.1982);

Woodall v. Foti, 648 F.2d 268 (5th Cir. Unit A June 1981). “[I]t is the responsibility of the courts to ensure that prisoner complaints, particularly pro se complaints, are nоt dismissed prematurely, however unlikely the set of facts postulated.”

Taylor v. Gibson, 529 F.2d 709, 713 (5th Cir.1976). In addition, the Supreme Court has instructed that pro se complaints are to be construed liberally, rather than be held to thе standards expected of lawyers.

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); see

Green, 788 F.2d at 1119. It is with these considerations in mind that we review the district court‘s judgment.

II.

A.

Gillespie and Smith asked for injunctive and declaratory relief in order to remedy the unconstitutiоnally unhealthful conditions that they alleged ‍​‌​​​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌​​‌‌‌‌‌​​‍to exist in their cell block. The district court dismissed these claims, stating that “under the guidance of the Special Master in the Ruiz litigation, the TDC either has corrected or is attempting to correct situations of this type.” In

Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), aff‘d in part and vacated in part,

679 F.2d 1115, amended in part and vacated in part,

688 F.2d 266 (5th Cir.1982), cert. denied,

460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983), the conditions in the prisons operated by the TDC were found to violate the eighth amendment‘s ban on cruel and unusual punishments and a sрecial master was appointed to monitor the implementation of the relief ordered by the court. This circumstance alone, though, does not make any suit challenging the conditiоns in Texas prisons frivolous and subject to dismissal under section 1915(d).

We held in

Johnson v. McKaskle, 727 F.2d 498 (5th Cir.1984), that Ruiz did not preclude a Texas inmate who allegedly was subjected to cruel and unusual treatment in violation of the eighth amendment from maintaining a section 1983 action seeking injunctive and monetary relief. The district court had dismissed Johnson‘s suit as being res judicata because he was a member of the Ruiz class. We reversed because although Johnson аlleged claims similar to those in Ruiz, they occurred after the completion of the Ruiz trial and therefore could not be res judicata.

The plaintiffs here alleged that the living conditions in their cell block are unconstitutional and in violation of the Ruiz court‘s order. The district court may ultimately find that the сonditions are not as claimed, but it is premature to dismiss plaintiffs’ suit before service of process on the basis of the Ruiz action. Plaintiffs have stated a claim under section 1983.

B.

The district court dismissed plaintiffs’ damages claims on the ground that there was no evidence that the harm suffered was caused maliciously or deliberately as opposed to merely negligently. The court noted that negligent acts by state officials do not implicаte the due process clause, citing

Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and

Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1982). However, plaintiffs’ complaint is that the conditions of their confinement violate the eighth amendment rather than the fourteenth amendment‘s due process clause. Thus the recent Supreme Court decisions limiting section 1983 actions that allege damages resulting from due process clause violations by prison ‍​‌​​​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌​​‌‌‌‌‌​​‍officials are not appositе. Instead, it is necessary to examine what is required to state a claim alleging cruel and unusual punishment contrary to the eighth amendment.

The Supreme Court has held that the “unnecessary and wanton infliction of рain” upon an inmate violates the eighth amendment.

Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976). But the standard used to determine whether the pain suffered by an inmate is properly characterized as “unnecessary and wanton” depends on the kind of conduct against which an eighth amendment objection is lodged.

Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251, 261 (1986). “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner‘s interests or safety.”

Id. at 319, 106 S.Ct. at 1084, 89 L.Ed.2d at 260. Thus, where the claim is that the inadequate quality of medical care within a prison violates the eighth amendment, it is not enough that the care be merely negligеnt, but instead it must exhibit “deliberate indifference” to a prisoner‘s serious medical needs.

Estelle v. Gamble, 429 U.S. 97, 104-06, 97 S.Ct. 285, 291-92, 50 L.Ed.2d 251 (1976). Where prison security measures are undertaken to quell a disturbance or riot, the standard is even higher: “The question whether the measure taken inflicted unnecessary and wanton pain and ‍​‌​​​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌​​‌‌‌‌‌​​‍suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.‘”

Whitley, 475 U.S. at 320-21, 106 S.Ct. at 1085, 89 L.Ed.2d at 261 (quoting

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom,

John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).

Conditions of confinement, too, can involve the unnecessary and wanton infliction of pain and thus constitute cruel and unusual punishment.

Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981). But unlike “conduct that does not purport to be punishment at all” as was involved in Gamble and Whitley, the Court has not made intent an element of a cause of action alleging unconstitutional cоnditions of confinement. Prison conditions may violate the eighth amendment even if they are not imposed maliciously or with the conscious desire to inflict gratuitous pain.

In this case, Gillespie and Smith alleged that their cell block was overcrowded, had inadequate ventilation and lighting, and was dirt and insect infested. They further maintained that they “repeatedly complained” about these conditions but with no results. They alleged that as a result of these conditions, they contracted tuberculosis. We hold that these allegations are sufficient to state a claim for damages undеr section 1983.

It may be that after further proceedings plaintiffs will be unable to adequately support their claims or that the defendants will be found to have immunity from suit, see

Adams v. Gunnell, 729 F.2d 362, 371 (5th Cir.1984). In that case, this action would be dismissible under section 1915(d) or under the Federal Rules of Civil Procedure. However, plaintiffs’ petition states а cause of action that it is premature at this point to dismiss under section 1915(d).

III.

For the reasons stated the judgment of the district court is VACATED and REMANDED for further proceedings.

ON SUGGESTION FOR REHEARING EN BANC

Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and JONES, Circuit Judges.*

BY THE COURT:

A member of the Cоurt in active service having requested a poll on the suggestion of Amicus Curiae, the Attorney General of Texas, ‍​‌​​​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌​‌‌​‌​‌‌​​‌​​​‌​​‌‌‌‌‌​​‍for rehearing en banc and a majority of the judges in active service having vоted in favor of granting a rehearing en banc.

IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule fоr the filing of supplemental briefs. The mandate heretofore issued is recalled.

* Judge Smith is recused, and therefore did not participate in this decision.

Notes

1

Gillespie and Smith also alleged that they have been denied parole because they were under continuing medical care for their tuberculosis. We take this to have been pled as an element of their damages rather than a separate ground for relief.

8

The district court did not address, and neither do we, the state law questions of state due process and the authority of Waynesville to enact the ordinance in question. On remand, those questions should be considered, if appropriate.

Case Details

Case Name: Daryl Gillespie v. Bobby Crawford

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 30, 1987

Citation: 833 F.2d 47

Docket Number: 87-2729

Court Abbreviation: 5th Cir.