Dennis GLICK, Appellant, v. Dr. F.M. HENDERSON, et al., Appellees.
No. 87-2376.
United States Court of Appeals, Eighth Circuit.
Submitted April 14, 1988. Decided Aug. 25, 1988.
855 F.2d 536
Before MCMILLIAN, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and HANSON, Senior District Judge.
Applying the same reasoning to the six-year loan that was actually extended, we again must conclude that BFC would have made a loan using only Besta‘s personal property as security. If Besta had not purchased the insurance listed under Loan II (and BFC says she did not have to), the amount financed would have been only $1442.23, an amount less than that financed under Loan I. Thus, there is no basis under which we should enforce an agreement that BFC could never have negotiated had it made full and fair disclosure.
We do recognize that by structuring Loan II for six years BFC was able to obtain a security interest in Bеsta‘s house. For some borrowers, this may have been the only way to obtain a loan. In those cases, though, there would have been no more advantageous terms to disclose. Such is not what occurred in this case. Mootz stated in his deposition that BFC was, in fact, oversecured on Loan I, and he based that assessment on Besta‘s work history and payment record. Sеe Deposition at 67. Therefore, there is no reason to conclude that BFC set up Loan II in this manner because it would have been imprudent, creditwise, to lend an amount less than $2000.00 and not have a mortgage in Besta‘s house. And, the district court did not so conclude.
Considering the Code policies and the circumstances surrounding Loan II, executing this loan for six years without disсlosure of the three year option was an unconscionable practice both under Iowa common law and the Iowa Consumer Credit Code. We reverse the district court and remand for rescissionary relief—but direct that BFC may collect on its judgment as if a three-year loan had been written, and find that BFC should have recourse to only those assets which would have been available as security under a three-year loan. As further relief, the district court should award Besta her reasonable attorney fees pursuant to section 537.5108(6) of the Iowa Consumer Credit Code.
Conclusion
We recognize the deference owed the trial judge who has observed witnesses and gauged credibility. And, we have not overturned a single finding of fact to the extent thаt such finding applies to a fairly negotiated six year loan. However, we are uncomfortable with the fact that a lender would call up a borrower at home, tell her he could get her the money she needs, and then set up a loan that is exorbitantly expensive while failing to tell her that she could get everything she wants for less money and at a lower monthly payment. To the extent that the district court‘s decision did not address this matter, its decision that the loan in question was not unconscionable was an incorrect interpretation of the Iowa Code.
Accordingly, the order appealed from is reversed and remanded for the granting of the relief specified in this opinion.
Jo Ann L. Goldman, Little Rock, Ark., for appellant.
Alan R. Humphries, Pine Bluff, Ark. and C. Kent Jolliff, Little Rock, Ark., for appеllees.
Dennis P. Glick appeals from the district court‘s dismissal, without prejudice, of his
Named as defendants in the suit were: A.L. Lockhart, A.D.C. Director; Woodson D. Walker, chairman of the Arkansas Board of Corrections; Larry B. Norris, Warden of the Maximum Security Unit of the A.D.C.; Dr. F.M. Henderson, of Health Management Associates; and the Arkansas Board of Corrections. The suit was brоught against the defendants in both their individual and official capacities. As relief the inmates sought $4,000,000 in damages and an injunction commanding the defendants to: (1) administer tests to all inmates and staff members to discover the presence of AIDS or the AIDS virus; (2) hospitalize all inmates with the disease AIDS; (3) discharge all staff members with the disease AIDS; (4) segregate all inmates with the AIDS virus from all other A.D.C. inmates not infected; (5) remove any and all staff members with the AIDS virus from all contact with inmates and staff members not infected; and (6) report all detected cases of AIDS or the AIDS virus to the U.S. Health Department, the Arkansas Health Department, the Court and the plaintiffs.
On October 7, 1986 the United States District Court for the Eastern District of Arkansas, the Honorable William R. Overton presiding, filed an order dismissing dеfendants Walker, Lockhart and Norris from the case, ruling that the inmates had “failed to allege sufficient involvement or knowledge to state a § 1983 claim against” these three defendants. The court, however, did grant a motion for the appointment of counsel for the inmates with regard to the case against the remaining defendants.
On September 28, 1987, the action itself was dismissеd, without prejudice, in an order filed by the Honorable G. Thomas Eisele. In the order Judge Eisele first ruled that the
Appellant Glick now appeals the dismissal of the suit on a number of grounds. The other plaintiffs named in the original action have not joined him on appeal.
Discussion
Glick‘s complaint presents this Court with a difficult task. On the one hand, this Court can envision situations in which courts would be warranted in involving themselves in the administration of a prison in order to protect inmates from
The first such factor is the total inadequacy of the complaint as it is framed. It does not even bear the elements of notice pleading. There is not the slightest indication of what the officials are doing or not doing that is not in accord with proper practice as established by medical guidelines.
The second factor is that the risk appellant alleges is based on unsubstantiated fears and ignorance. The basis of his complaint are the allegations that appellant faces a pervasive risk of acquiring AIDS because: (1) he comes into contact with the sweat of other inmates during work detail; (2) he is subject to bites from mosquitoes which have bitten other inmates; (3) he has been sneezed on by a known homosexual; (4) A.D.C. officials untested for AIDS prepare his food; and (5) the A.D.C. regularly transfers prisoners from cell to cell throughout the prison. The possibility of the transference of AIDS through these means is simply too remote to provide the proper basis for appellant‘s complaint as it is currently framed.1 See generally, United States v. Moore, 846 F.2d 1163, 1168 (8th Cir. 1988) (holding possibility of AIDS transmission by means of a human bite “too remote” in a legal context “to support a finding that the mouth and teeth may be considered a deadly and dangerous wеapon in this respect“, although that case held that the “mouth and teeth were used as a deadly and dangerous weapon” in the factual situation therein involved).
The third factor which needs to be mentioned before we turn to the specific challenges appellant raises is the fact that the district court‘s dismissal of the case was without prejudice. Thus, Glick hаs not been jeopardized in any way. Instead, he has just been told that he must allege more sufficiently and clearly all possible facts which demonstrate the constitutional deprivation or injury, if any, which he has suffered as a result of the conditions of his confinement, and that he must do so against the proper parties. With these three factors in mind we now turn to the specific assertions appellant raises.
1. The Dismissal of Walker, Lockhart and Norris.
Glick‘s first challenge is to the dismissal of defendants Walker, Lockhart and Norris from the suit. Glick charges that this dismissal was improper because the three each had a “legal responsibility in this matter” and because they each acted in a way deliberately indifferent to “a pervasive risk of harm” to him.
We agree with Glick that he could have a colorable claim under
2. The Dismissal of the Arkansas Board of Corrections.
Glick‘s second challenge is to the dismissal of the Arkansas Board of Corrections from the suit. He bases this challenge оn two grounds. First, he argues that all the members of the Arkansas Board of Corrections were sued in their individual capacities in the complaint, and thus not subject to any eleventh amendment bar. Secondly, he asserts that the Arkansas Board of Corrections is exempt from the eleventh amendment bar under the exceptions discussed by the Supreme Court in Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984). We find both grounds to be without merit.
The first ground is without merit because even if Glick‘s original action were construed as naming all of the members of the Arkansas Board of Corrections individually, these parties would not be liable to Glick for the very reasons discussed above with regard to defendants Walker, Norris and Lockhart. There simply has been no allegation of individual involvement or indifference to a pervasive risk sufficient to hold these parties individually liable under
The second ground is without merit because neither of the two exceptions discussed by the Supreme Court in Pennhurst apply to this case. The first exception found in Pennhurst is that “Congress has power with respect to rights protected by the
The second exception discussed in Pennhurst is that based on the case Ex Parte Young, 209 U.S. 123 (1908), in which it was held that a federal court could issue injunctive relief requiring a state official to refrain from violating federal law. The Pennhurst Court ruled that this exception was based on the theоry that because a state is without power to authorize a state official to act in violation of federal law, any state official taking such actions is acting beyond his official authority and is thereby “stripped of his official or representative character.” Pennhurst, 465 U.S. at 104. Thus, sovereign immunity does not apply.
However, a state agency which is the sole creation of the state has no seрarate identity, and thus cannot be stripped of it‘s official character. Accordingly, an injunction against the Arkansas Board of Corrections would be unconstitutional without the state‘s consent as “the Eleventh Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies.” Alabama v. Pugh, 438 U.S. 781 (1978) (holding that a federal court‘s injunction against the Alabаma Board of Corrections was unconstitutional).
3. The Claim Against Dr. Henderson.
Appellant‘s third challenge is to the dismissal of Dr. Henderson from the suit. The District Court dismissed Henderson, who was formerly in charge of health care at appellant‘s prison, on the grounds that as Henderson was no longer employed at the prison the injunctive relief sought by appellant would be impossible to grant with
Once again, we disagree. The specifics of this case do not present a situation in which money damages would have been properly awardable against Dr. Henderson. Thus, the District Court‘s dismissal of the case, without prejudice, was appropriate.
4. The Ineffectiveness of Counsel Claim.
Appellant‘s last challenge on appeal is a charge tht he was prejudiced by the alleged ineffectiveness of his appointed counsel. This claim also fails as “[t]here is no constitutional or statutory right for an indigent to have counsel appointed in a civil case.... It of course follows that there is no constitutional or statutory right to effective assistance of counsel in a civil case.” Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980). Glick‘s remedy for any ineffective assistance of counsel is a suit against his attorney for malpractice, not a new trial—the same remedy he would be entitled to in a civil case with private counsel. See Id.
Conclusion
It is the rare case in which a court should venture forth to establish medical procedures and guidelines in an area where the medical profession has not yet been able to ascertain what they should be. A thorough review of the facts and pleadings in this case indicates that this case does not present such a situation.
Accordingly, because all of appellant‘s challenges are without merit, we affirm the District Court‘s dismissal, without prejudice, of this case.
McMILLIAN, Circuit Judge, concurring.
I concur with the result reached by the majority only because the dismissal is without prejudice to the filing of a new lawsuit. I write separately to emphasize that this dismissal without prejudice extends to the dismissal of defendants Walker, Lockhart, and Norris.
The district court granted the motion of these defendants to dismiss on the ground that the complaint had “failed to allege sufficient involvement or knowledge to state a § 1983 claim against” them. Order of October 6, 1986. In support, the district court cited Glick v. Sargent, 696 F.2d 413 (8th Cir. 1983) (per curiam), a section 1983 action alleging constitutional violations in a prison disciplinary action. In that case, this court concluded that no cause of action was stated against the warden because his responsibility for overseeing prison operations did not render him liable for the outcome of disciplinary proceedings in which he plаyed no role. Id. at 414-15.
In contrast to that case, we are not now considering a matter in which these officials have no role or knowledge. The responsibility for making and enforcing policies to prevent the spread of AIDS in the prison setting lies with the highest-level prison officials, in conjunction with their medical advisors. The majority acknowledges the possibility of a cоlorable claim against these officials, but concludes that, here, Glick has not sufficiently shown a pervasive risk of harm or the absence of a reasonable official response, a conclusion I concur in.
As the majority notes, most of Glick‘s allegations concerning the risk of contracting AIDS are unfounded, according to current medical thought. The reсord, however, suggests a claim that the prison‘s policy on housing and transferring “high-risk” inmates exposes him to an unreasonable danger of sexual assault by an AIDS carrier or victim. I believe that such a claim alleged with sufficient specificity in a new lawsuit could withstand a motion to dismiss.