Herman RUSSELL, Appellant, v. Joseph BODNER, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania et al., Appellees.
No. 72-1788.
United States Court of Appeals, Third Circuit.
Submitted April 9, 1973. Decided May 29, 1973.
478 F.2d 280
Similarly, appellant‘s third ground for relief is without merit since there is no constitutional right not to be fingerprinted. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Hackworth v. Beto, 434 F. 2d 852 (5th Cir. 1970).
Appellant‘s fourth claim is based upon a plea of guilty enterеd in 1932 in the District Court of Okfuskee County, Oklahoma to a charge of robbery with firearms. He was not represented by counsel at such proceedings. While we question whether a notation in the court record that appellant waivеd counsel is sufficient to establish that he intelligently and voluntarily relinquished a known right, Tucker v. Anderson, 483 F.2d 423 (10th Cir. 1973), nevertheless, appellant is not entitled to relief on this ground: The record clearly shows that, in addition to the 1932 robbery conviction, appellant was also convicted in 1945 of second degree manslaughter, and that such conviction formed a part of the aftеr former conviction of a felony charge. He was represented by counsel during such proceedings and thеre is nothing to indicate that the 1945 conviction was obtained in violation of his constitutional rights.
Finally, it was incumbent upon аppellant to show prejudice by the mere presence in the courtroom of a deputy sheriff. In denying aрpellant‘s motion for a mistrial, the state court held a hearing on this issue. It found that there was no indication during the trial that appellant was in custody of the deputy sheriff, who sat behind the rail some twelve to fifteen feet back of аppellant, or that he had been in shackles or that anything had transpired which would have indicated to the jury that аppellant was in custody. The type and necessity of precautionary measures taken during the course of trial is within the sound discretion of the trial court. United States v. Smith, 436 F.2d 787 (5th Cir. 1971); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970), cert. denied 401 U.S. 911, 91 S.Ct. 874, 27 L. Ed.2d 809 (1971); Guffey v. United States, 310 F.2d 753 (10th Cir. 1962); DeWolf v. Waters, 205 F.2d 234 (10th Cir. 1953), cert. denied 346 U.S. 837, 74 S.Ct. 56, 98 L.Ed. 358 (1953). This issue was fully litigated in the state proceedings, and our review of the record leads us to the conclusion that there was no abuse of discretion here.
Upon docketing appеllant was notified that we were considering summary affirmance and of his right to file a memorandum in opposition to suсh action. We now have appellant‘s response before us. Nevertheless, after a careful and thоrough review of the records and files in this case, we are convinced that the judgment of the district court was cоrrect.
Affirmed.
J. Shane Creamer, Atty. Gen., Donetta W. Ambrose, Asst. Atty. Gen., Frederick N. Frank, Dept. of Justice, Harrisburg, Pa., for appellеes.
Before ADAMS and GIBBONS, Circuit Judges, and LORD, District Judge.
PER CURIAM.
This is an appeal from an order dismissing as frivolous a pro se in forma pauperis prisoner Civil Rights Act complaint, after filing, but before the service of process or of any responsivе pleading or motion. The complaint alleges that the defendant, a guard at the State Correctional Institutiоn at Pittsburgh, Pennsylvania, entered the plaintiff‘s cell and took some food. When plaintiff questioned the defendant‘s authоrity to do so defendant responded that plaintiff “. . . was an inmate and himself an officer of justice (sic) that his authority lay in the social positions.” Plaintiff informed the defendant that if he ever entered plaintiff‘s cell for any other purрose than a general shakedown, or by permission and authority of his superiors, administrative action would be initiated. Defendant responded that an inmate had no remedy available to prevent a security officer from taking whatever he wanted out of inmates’ cells, and went on to say “I‘ll prove it to you.” Thereafter defendant entеred plaintiff‘s cell and took seven packages of plaintiff‘s cigarettes. Plaintiff forwarded several requеsts to the warden for relief, but the warden refused to respond. The complaint seeks injunctive relief and damagеs.
Judged according to the standard of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam), and of Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970), the complaint sufficiently alleges that the guard, relying on his position and authority as such, entered thе plaintiff‘s cell and confiscated his cigarettes without justification. Accepting these allegations as true, as in the present posture of the case we must, the guard‘s action was under color of state law within the meaning of
“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).
The value of thе cigarettes is not determinative of the federal court‘s jurisdiction in a Civil Rights Act case. Lynch v. Household Finance Cоrp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).
The order appealed from will be reversed and the case remanded for further proceedings in compliance with the Federal Rules of Civil Procedure.
ADAMS, Circuit Judge (concurring):
I am constrained to concur in the result reached by the Court in this case,
This result may well be expected to come as a surprise to the district judge who dismissed the complaint. It will also no doubt generate a certain amount of disbеlief in those taxpayers and citizens generally, not to mention judges and lawyers, who will ask how federal courts havе come to be concerned with a case in which a state prisoner alleges simply that his constitutional rights were violated when a prison guard took seven packages of cigarettes from him. I have yet to answer this question satisfactorily for myself.