*1 Ford, FORD; Jeffrey Eva OF ESTATE
individually capacity as Ad- and in her Jeffrey of the Estate
ministrator Ray Ford,
Ford; Plaintiffs- Thomas
Appellees, RAMIREZ-PALMER, M.
Ana
Defendant, Arnold; Caden; Eric Robert
Edward
Williams, Defendants-
Appellants.
No. 01-15769. Appeals,
United States Court
Ninth Circuit. July 2002.
Argued and Submitted Aug.
Filed *2 Smith, Kilduff, Angelo, Kilday
J. Scott & Sacramento, CA, defendants-appel- for the lants. Casper, Casper,
Stan
Meadows &
Schwartz,
Creek, CA,
Walnut
and John
Scott,
Scott,
Houston
Prentice &
San
Francisco, CA,
plaintiff-appellee.
for the
Saucier,
deciding
the issue before
district court denied the motion
because
found that there were
fact
triable issues of
whether each was deliberately indifferent
to a substantial risk of serious harm.
*3
appeal,
The correctional officers
arguing
RYMER,
Before: CANBY and
Circuit
requires
that Saucier
an
inquiry
additional
BERTELSMAN,*
Judges, and
Senior
a
into whether
reasonable officer would
Judge.
District
have understood that his decision was im-
RYMER;
Opinion by Judge
Partial
permissible
under the
Amendment.
by Judge
Dissent
CANBY.
agree,
We
and hold that Hamilton was
by
undermined
Saucier.
though
Even
RYMER,
Judge.
Circuit
constitutional issue turns on the officers’
appeal
question
of
This
raises
(here,
state of mind
deliberate indifference
whether,
Katz,
after Saucier v.
583 U.S.
harm),
a
to
substantial
risk of serious
Segregation Units were “CDC (which from the required provided chronology inmates who removal 114A” form population safety history). because of or general of the inmate’s most recent ASU security PAS was one of three designated “predator” concerns. An inmate was as a cells, units; it had 38 36 of which history physical ASU if he had a assaults on equipped inmates, were to house two inmates. deadly weapon, staff or use of a ASUs, addition to CMF also maintained disturbances, offenses, or a inciting sexual psychiatric observation unit known as S-3. pattern predatory manipulative or be- housing It had 18 cells and served as policy precluded housing havior. CMF suicidal inmates or inmates whose behav- designated “predator,” “victim” with a significantly ior was so out of control that permitted housing “predator” with an posed danger an extreme to themselves designated inmate who was not as a “vic- *4 or others. tim.”
The broadest classification for inmates
Diesso,
inmate,
category
was a
who
J
receiving psychiatric
Catego-
care
“J.”
was
placed
was first
in the PAS unit at the end
ry
sufficiently
“J” inmates were considered
January
stabbing
of
after
another
mentally
ill that
could not be housed
(evidently
inmate
an effeminate homosexu-
general population,
gener-
but were
al) 17 times with a makeshift knife because
medication-compliant.
ally
Classifications
expose
inmate had threatened to
by
made
were
the Institution Classification Diesso as a homosexual. Diesso was char-
(ICC). An
Committee
inmate who ICC
“extremely
acterized as
and
violent
dan-
safely
determined could be double celled
gerous”
designated
“predator”
and was
a
designation;
had a “D” suffix
when was
early
January
as
as
1995. He was in-
determined that an individual inmate could volved in a
guards
number of attacks on
or
safely,
given
not be double-celled
he was
1997, and,
other inmates between 1993 and
an “S” suffix. A unit lieutenant had au-
PAS,
assignment
after
in additional vio-
thority to order an
single-celled
inmate
lent altercations with another inmate on
an
hearing
before
ICC
could be convened.3
30, 1997,
January
peace
a
May
officer on
Inmates could also ask to be double-celled 20, 1997,
22,
July
and other
inmates
together by signing a “CDC 128-B” form.
January
May
and
1998.
The decision whether two inmates could be Diesso had been double-celled without
together
celled
made by
was
the unit’s
inmates,
problems with other
including
housing sergeant or lieutenant.
homosexual,
those known to staff to be
and
sergeant
making
or lieutenant
a with Ford. Ford was also a category J
inmate,
particular
widely
decision to double-cell
inmates
who was
known to PAS
supposed
was
to review the inmate’s cen-
staff as an effeminate homosexual. Diesso
(which
homosexual,
outwardly
tral file
showed known
and
enemies
was
but he was
behavior,
disciplinary history),
predator”
reputed
engage
“victim
homosexual
(which
requested
list
was
and often
maintained
each unit
be celled with
office and showed whether an inmate was
known homosexuals.4
determination,
making
ship
a classification
between misconduct and mental health
issues;
care;
the ICC considered
the level
mental
assaultive behavior to-
inmate's
mate;
mate;
opinion
and the
of mental health staff.
ward a cell
sexual abuse
a of cell
against
in-cell violence or violence
a dormito-
ry partner; whether
was a
investigation report pre-
there
list
known
4. An Internal Affairs
enemies;
issues; physical
pared
health and medical
after Ford’s murder indicates that Dies-
disabilities;
Low-riders,”
disciplinary history; the relation-
so was a member
“Nazi
together
celled
without incident. Ar-
Diesso was celled
been
June
On
Deckard,
Williams,
“predator”
inmate
also
nold talked to
who had been a
Correc-
larger
much
man than Diesso.
housing sergeant
August
PAS since
Matthew
found
tional Officer
Sanchez
1997. Williams asked another officer to
pads, el-
wearing home-made knee
Diesso
unit
canvass the
to find someone who
headband, saying
and a
“Get
pads,
bow
willing
would be
to move. The officer told
“They’ve
taken
Deckard out of here”
Williams that Ford and Diesso were will-
my
off meds.” Sanchez confirmed
me
ing
together
to be celled
and that Ford’s
medication,
taken off his
Diesso had been
willing
cellmate was
to cell with Nobles.
him
cell.
and removed
from the
Sanchez Williams was familiar with both Ford and
that he wrote an “S” on Diesso’s
testified
Diesso, knew that Diesso was classified as
form,
“hous-
grease-wipe
114A
and on the
“predator”
but Ford
classified as
The 114A for June 6 indicates
ing board.”
“victim,”
recently
and had
reviewed the
“acting
and was
strange”
that Diesso was
central files for both inmates. He told
temporary medication. The
prescribed
Diesso and Ford were not
7 form 114A indicates
June
enemies,
any gang-related
did not have
asking
on door” and
to see
“banging
other,
ap-
conflict with each
and that he
Neither
the doctor for more medication.
proved the transfer.
Ford and Diesso
entry.
an
June 8 Diesso
form has
“S”
On
*5
26,
signed CDC 128-B forms dated June
unit
was taken to the S 3
for observation.
requesting
to
double-celled with
19,
on
He was returned to PAS
June
each other. Arnold authorized the trans-
with inmate
where he was double-celled
Ford to
fer of
Diesso’s cell.
Nobles.
27,
presided
On June
Arnold
over a
Meanwhile, on
9 Diesso had been
June
disciplinary hearing involving Diesso which
approved
special handling
transfer to a
for
fight
arose out of a
between Diesso and
which
unit at Corcoran State Prison
May
report
another inmate on
21. A
that
extremely dangerous
reserved for
inmates.
during that proceeding
Arnold saw
indicat-
ICC,
appeared
June
he
before the
On
thought
ed that Diesso had said he
chaired,
30-day
for a
review.
which Caden
“I
up
something
other inmate was
to
so
in
The ICC decided to retain Diesso
PAS
just snapped.”
transfer,
“D”
pending his
and left Diesso’s
cell on
Ford was transferred
Diesso’s
(for
in
double-celling) designation
suffix
early morning
the 27th.
hours
During
place.
attacked and killed
of June
Diesso
point
At some
after Diesso’s return to
Ford. Ford suffered blunt force trauma to
PAS,
Sergeant
and
Sanchez
Correctional
head,
and lacerations on the
abrasions
Todd
became aware
Wasco
back,
face,
legs
lacerations on his
and
and
wanted to cell with Ford but did
allow
ligature strangulation. The walls of the
26, 1998,
happen.
it to
On June
bloody handprints
cell were covered
(then a new correctional
lieutenant
smears,
and
and the words “die demon”
PAS)
duty
and
told
another
was
was
in
were written
blood on one wall.
get-
correctional officer that Ford was not
Ford,
Jeffrey
Eva Ford
The
of
ting along with his cellmate. He was also
Estate
individually and
administrator of the
previously
told that Ford and Diesso had
as
apparently
encouraged
any
aware of
affiliation. Diesso's 114A
which
violence
such
“Sureño,”
recog-
gang
against
forms show a
association of
homosexuals
was not
belonging
prison gang
par-
to a
nized
as of June 1998. The
and his central file shows him
supremacist” gang
May
dispute
as
ties
the extent to which CMF staff was
"white
(to
Estate,
Tommy Ray Ford
and
whom clear likelihood Diesso would attack Ford
Fords”)
collectively
alleged
we
“the
refer
allowing
the two to be double-celled
of action
a num-
against
number of causes
constitutionally impermissible.
was
In
ultimately
ber of officials that were
dis-
event,
any
may
we
decide whether there is
missed,
leaving the claim that
Ar-
dispute
a material
about the correctional
right
nold and
Ford’s
Williams violated
conduct,
so,
officers’
and if
assume those
punishment
be free from cruel and unusual
facts
the Fords’ favor in
deter-
order to
under
Amendment. Each mine
qualified
whether the denial of
im-
summary judgment
moved for
on qualified munity
appropriate.
v. Go-
Jeffers
immunity. The district court concluded
(9th
mez,
Cir.2001).
267 F.3d
genuine
of material fact exist
issues
as
to whether Caden knew about Diesso’s
Ill
history
extensive
of violent behavior to-
Whether the denial of
immuni-
staff,
wards inmates and
knew that Diesso
ty
appropriate in
this case turns on
bizarrely
aggressively
had acted
to-
whether Hamilton
good
remains
law
ward his cellmate on June
Hamilton,
prisoner
of Saucier.
knew that Sanchez had noted Diesso’s
alleged that
deliberately
officials were
in-
single-celled.
file that Diesso should be
It
needs;
held that Arnold had not shown
either
different to his serious medical
investigated
he
whether Diesso and Ford
sought summary judgment
officials
should have been
together,
celled
or that
on the
of qualified immunity.
basis
he
his
believed
subordinates had done so.
court
summary
district
denied
judgment
The court found that Williams had not
upheld
and we
it because triable issues
shown
absence
an
issue
fact as to
existed as
whether the officials were
deliberately
whether he was
indifferent to
so,
In doing
indifferent.
we
harm
substantial risk of
to Ford when he
*6
stated: “A finding of deliberate indiffer-
advised Arnold that Diesso and Ford be
necessarily precludes
ence
finding
a
of
together.
allowed to cell
it
Accordingly,
qualified immunity; prison
who
officials
qualified immunity.
denied
deliberately ignore the serious medical
Caden, Arnold and
timely ap-
Williams
of
needs
inmates cannot claim that it was
pealed.
apparent
person
not
to a reasonable
such actions violated the law. In order to
II
summary
determine whether
judgment
challenge
juris
The Fords first
our
denied,
properly
we
only
need
deter-
diction because in their
appeal
view the
plaintiff
mine whether the
established a
essentially challenges
sufficiency
the
of genuine issue of material fact as to wheth-
support
the evidence to
inferences that
prison
er the defendant
officials were de-
Caden, Arnold and Williams had actual
liberately indifferent to his medical needs.”
knowledge of the substantial risk of seri Hamilton,
(citation
1049
Briggs, 475 U.S.
106 S.Ct.
inqui-
the
the arrest —and
making
in
used
(1986));
Jeffers,
the same.
see
267
immunity were
89 L.Ed.2d
qualified
ry on
objec-
the
that both concern
(noting
Eighth
reasoned
Amendment
F.3d at 909
We
conduct
of the officer’s
tive reasonableness
empha-
“the
case
in Saucier
Court
he con-
circumstances that
of the
that must be
sized the broad discretion
reversed,
Supreme
Court
fronted.
face
afforded to
officers who
tense
police
immu-
goal
qualified
the
observing that
situations,
importance
granting
the
summary
undermined if
would be
nity
immunity
when officers make
even
mis-
a mate-
every time
were denied
judgment
takes”).
on an excessive
fact remains
rial
issue
Caden, Arnold and
contend
Williams
Saucier,
at 202.
533 U.S.
force claim.
applies here be-
that Saucier’s rationale
qualified
key point is
Saucier’s
prudent prison
official to be
cause for
the con
separate
is
from
immunity inquiry
Eighth
whether
able
determine
Amend
In the Fourth
inquiry.
stitutional
particu-
compels him to take
Amendment
rejected
context,
Supreme
Court
ment
inmate,
protect an
he must
lar action to
because
inquiries merge
that the
the view
giving
facts
rise
only
not
know
possibly
officer could
a reasonable
risk but must also be able
determine
lawful,
reasonable, ie.,
to use
it was
think
the level of risk is “substantial.”
whether
make es
force. The Fords
unreasonable
submit,
This,
inherently
is
nebulous.
Eighth
sentially
argument
the same
Eighth
counter that
The Fords
Amend-
context, that a
of
reasonable
Amendment
different,
are
because Fourth
ment claims
think it was rea
possibly
ficer could
force claims are de-
Amendment excessive
sonable, ie., lawful,
in
to be
objective test of
by purely
termined
rea-
of serious
to a substantial risk
different
plaintiff
sonableness while the
However,
true
it
no
less
harm.
must also es-
Eighth Amendment context
than
purposes
of the
Amendment
prison
requi-
had the
official
tablish
immunity
that the
was in Saucier
mind of deliberate indiffer-
Id. at
site state of
a further
inquiry “has
dimension.”
-,
—
Pelzer,
reason,
if
205;
they argue,
Hope v.
ence. For this
even
see
2513-16,
-,
S.Ct.
remains
question
applies,
Saucier
(2002)
in an
(applying
Saucier
L.Ed.2d
official
a reasonable
could
whether
separately
case and
Amendment
it would be lawful conscious-
have believed
*7
immunity and con
qualified
the
analyzing
the substantial risk
harm
ly
disregard
the
“The concern of
inquiries).
stitutional
with Ford.
double-celling Diesso
posed by
that
acknowledge
immunity inquiry is
claims
Amendment
Eighth
While
be
as to the
mistakes can made
reasonable
subjective test
part
in
on a
that
depend
police con
particular
legal constraints
the
immu
easily
not fit
with
does
Saucier,
The
would be entitled to situation he confronted.” Id. at 202. Saucier, 533 at 205. U.S. parties agree Supreme Accordingly, we conclude that Hamil- So, Court settled the law Farmer. be- ton, collapses which the deliberate indiffer- fore the decision to cell double Ford with part of inquiry ence the constitutional into made, would have been clear qualified immunity inquiry, has been to a reasonable official if he Instead, undermined Saucier. courts knew about an excessive risk to inmate must follow the Saucier framework. We safety, and inferred from the facts of turn to it now. which he was aware that a substantial risk exists, of serious harm he would violate
IV
by disregarding
law
it. He would also
As a threshold matter we take the
merely
have known that
being negligent,
light
facts
most favorable to the
or failing
significant
to alleviate a
risk that
Fords, and ask whether those facts show
not,
perceived
he should have
but did
that the officers’ conduct violated a consti
constitutionally
deficient
conduct.
Saucier,
right.
tutional
1051 him in- highest security made one of the risk of disregard a substantial here, inmate; CMF; in addi- at that Diesso was classified harm to an mates serious Farmer nor tion, “predator”; that neither that Diesso had acted it is relevant as a out “at authorities has fleshed subsequent bizarrely aggressively towards his cell- assault be- a risk of inmate point what 6, 1998, at- threatening mate on June to for sufficiently substantial comes him apparently faffing tack to do so Farmer, 511 U.S. purposes.” Amendment approximately cellmate was because his 3; Helling McKinney, v. 509 n. at 834 size; his that after this incident cf. twice 2475, 25, 36, 125 L.Ed.2d 113 S.Ct. U.S. thought that housing Lieutenant Sanchez (1993) smoke (indicating in second-hand single-celled; that Diesso should be Diesso under the a risk is intolerable case that special to to a going be transferred con- when it violates Amendment Prison, handling unit at Corcoran State decency expose temporary standards of extremely dangerous which is reserved it). Thus, it would unwillingly to anyone inmates; single cells were avail- prison official clear to a reasonable not be able to house Diesso while he awaited his double-celling of harm from when the risk time, At the same transfer Corcoran. with one another psychiatric inmates aware that Diesso Caden would have been harm a risk of some being from changes successfully double-celled for had been harm. Farm- of serious a substantial risk years (including with other inmates effemi- open an This necessari- left that issue. er occasion) upon with no nate homosexuals dispositive question” “the ly informs prior inci- problems to the June reasonable clear to whether it would be dent; was off his medi- that while Diesso that their conduct correctional officers occurred, cations when the June 6 incident unlawful the circumstances them; at had been back on and that put he confronted. and Williams meeting 1998 ICC the time of the June to continue Although decision Caden’s with Nobles Diesso had been double-celled and Arnold’s designation, as a “D” Diesso incident. days for three without advice to allow upon Williams’s approval say circumstances we cannot these with Ford to be double-celled posi- officer Caden’s reasonable judg- quite unfortunate turned out be perceived that necessarily have tion would ments, that a reasonable say we cannot designation ex- continuing Diesso’s “D” clearly un- officer would have correctional to an exces- any approved cellmate posed serious harm was that the risk of derstood was not risk of serious harm. Caden sive not have authorized high so that he should decision to house involved in the discrete double-celling. Diesso, only can therefore he Ford with decision to con- for the ICC’s responsible
A
Double-
designation.
“D”
tinue Diesso’s
Viewing the evidence
im-
constitutionally
celling as such is
Fords,
favorable to the
when Caden
most
Chapman,
permissible. Rhodes
review of Diesso’s classifi
chaired the ICC
69 L.Ed.2d
101 S.Ct.
23, 1998 he was
cation status on June
(1981).
Diesso had been
Given
history
an extensive
that Diesso had
aware
unit for two
in the S-3
under observation
inmates and
behavior toward
of violent
incident and San-
since the June 6
weeks
assaults,
staff,
separate
including eleven
notation,
returned on med-
had been
chez’s
stabbing an inmate
of which involved
one
any recommenda-
ications to PAS without
times;
classi
that Diesso was
seventeen
*9
staff,
from the S-3
single-celling
tion for
highest
“level four” inmate —the
fied as a
safely with Nobles
had been housed
total” that
and
“point
had a
security level—and
Farmer,
days,
say
Supreme
for several
we cannot
that a
that a
Court noted
perceive
escape liability
reasonable officer would
that the
official “would not
if
continuing
merely
risk of
to double-cell Diesso was
the evidence showed that he
re-
constitutionally impermis-
verify
fused to
high
underlying
so
as to be
facts that he
true,
strongly suspected
sible.
to be
or declined
to confirm inferences of
risk
he
B
Farmer,
strongly suspected to exist.”
However,
at
n.
U.S.
reasonable
recently
Arnold had
been trans
position
officer Arnold’s
would not nec-
Williams,
and
ferred to PAS
relied
who
essarily
suspected
celling
have
Ford
knew both Ford and Diesso. Williams told
posed
with Diesso
an excessive or intoler-
approved
Arnold that he
of the request
able risk of
injury.
serious
See id. at 847
together
Diesso and Ford to be celled
(observing
n. 9
that if the evidence estab-
that he believed Diesso and Ford were not
lishes that an inmate faces “an objectively
enemies,
a gang-related
did
have
con
injury,”
intolerable risk of serious
the de-
flict,
“predator”
and were not a
and “vic
persist
fendants could not
plausibly
tim” combination. Arnold also knew that
awareness).
claiming lack of
To the con-
previously
Ford and Diesso had
celled to
trary,
evidence does
show that
However,
gether without incident.
Ford faced an intolerable risk as the two
did not review either inmate’s central file
had
together
requested
celled
before and
or, viewing
the evidence in the
most
again,
to do so
nor
does
show that a
Fords,
favorable to the
114A
Diesso’s
reasonable correctional officer would have
prison proce
forms. Failure to follow
believed otherwise.
dures,
doing
which called for
so before
decision,
making
housing
certainly
Even if Arnold had checked the files
negligent;
negligence,
or failure to
check,
supposed
that he was
he would
significant
avoid a
per
risk
should be
not have uncovered evidence that would
wasn’t,
ceived but
“cannot be condemned have made him aware of a substantial risk
Farmer,
punishment.”
as the infliction of
of serious harm. While the evidence in
at
838. Arnold was aware that Diesso’s central file showed that he had an
“snapped”
Diesso had
and attacked anoth
history
extensive
of violent behavior and
yard
er inmate in the
in mid-May
but was being
higher security
transferred to a
any
otherwise had little if
knowledge of prison, it also showed that
only
he had
history
Diesso’s extensive
of violence to
aggressively
acted
towards
cellmate on
guards.
wards inmates and
Based on the
(June 6, 1998),
one occasion
that he had
him,
information before
Arnold had little
occasion,
been off his medications on that
reason to think that
excessively
Diesso was
and that he had subsequently
put
been
dangerous
posed
or that he
any particular
back on them.
anything
Neither would
danger to
appeared,
Ford. For all that
the record have shown Arnold that Diesso
Ford was
for Diesso to be celled with
safer
was a
gang
member of a
that wanted to
anyone
than
else as
had been celled
short,
attack
In
homosexuals.
failure to
together
problem,
before
without
files,
review the
negligent,
while no doubt
both wanted to
together again.
be celled
does not itself show that a reasonable offi-
position
cer in
strongly
Arnold’s
would
Ford contends that Arnold should none-
suspect a serious risk.
theless be denied
immunity be-
cause a reasonable officer in his situation
C
would at least
suspected
have
that Diesso
posed
risk,
a serious
and Arnold failed
Williams had reviewed Diesso’s
properly
investigate
risk.
“recently”
file
and was aware of Diesso’s
*10
aggressive
agree
requires
two-step
behavior
that Saucier
history of violence
medications,
off
analysis
qualified
a cellmate when
immunity
toward
in this
previ-
that Ford and Diesso had
and knew
Eighth Amendment case.
I also agree
any prob-
without
ously
together
that,
celled
given Diesso’s
appro-
classification as
lems,
together
to cell
on
requested
had
priate for double-celling, reasonable offi-
occasion,
enemies,
not
were
did not
this
position
in
cers
of Arnold and Williams
conflict,
and were not
gang-related
have
would not have known that double-celling
“victim.” A reasonable of-
“predator” and
Ford with Diesso would violate Ford’s
thought
could have
that Diesso did
ficer
Eighth
rights.
Amendment
pose a
or
risk to
substantial
intolerable
My disagreement
by
is over the decision
Finally,
Ford in these circumstances.
Caden
continue Diesso’s classification as
failure to re-
Fords’ reliance Williams’s
appropriate
for
celling.
double
“D”—
114A
review the central files and the
forms
Judge Rymer’s opinion scrupulously sets
approval of double-
does not convert his
extraordinary history
forth Diesso’s
of vio
and Ford into conduct that
celling Diesso
lence.
It also accurately recites that Ca-
no reasonable correctional officer would
history,
den knew of that
knew that Diesso
have undertaken.
given
highest
classification of dan
gerousness, knew of recent
incidents
V
that
had caused Lieutenant Sanchez
approach
hold that Hamilton’s
We
changed
note
Diesso should be
to a
give way
in
must
Saucier’s
single-cell category.
my
Without
repeat
may
Amendment cases. Courts
not sim-
all
ing
clearly
by
the details so
set forth
ply stop with a determination that
triable
Judge Rymer, it
say
is sufficient to
that I
issue of fact exists as to whether
am
that a
convinced
reasonable officer in
indifferent;
in-
officials were
position
Caden’s
would have
known
stead,
qualified immunity inquiry
double-celling
classification of Diesso
separate
inquiry,
from the constitutional
exposed any future cellmate to an exces
qualified
and courts must undertake the
harm,
sive risk of serious
and that deliber
immunity analysis
separately. Having
ately incurring this risk would violate that
so,
done
conclude that
we
rights
cellmate’s
Amendment
un
qualified
and Williams are entitled to
im-
principles
der the
established
the Su
munity because it would not have been
Brennan,
preme Court
Farmer v.
to a
clear
reasonable correctional officer
825, 114
U.S.
S.Ct.
I Caden remand the well-crafted opinion in I respects. Specifically, against most trial of the claim him. all other disposition, any 6. Given we this need not reach dence is insufficient to establish that argument sufficiently culpable the officers’ alternative that the evi- them had a state of mind. *11 Rymer’s opin- in Judge I respects concur
ion. Jr., HAYES, Petitioner-
Blufford
Appellant, WOODFORD, Respondent-
Jeanne
Appellee.
No. 99-99030. Appeals, Court
United States
Ninth Circuit. 6, 2002.
Argued June 14, 2002. June
Submitted Aug.
Filed