Nathan MILLER, Plaintiff-Appellant, v. Emery LEATHERS, Officer, Defendant-Appellee, and North Carolina Prisoner Legal Services, Inc.; Carolina Legal Assistance, Inc., Amici Curiae.
No. 88-7651
United States Court of Appeals, Fourth Circuit
Decided Sept. 13, 1990
As Amended Oct. 12, 1990
913 F.2d 1085
Argued Feb. 5, 1990.
The Tenth Circuit employed similar reasoning in United States v. Mittleider, 835 F.2d 769 (10th Cir.1987). In Mittleider, the court applied Durcan in holding that evidence did support the defendant‘s classification as a fugitive from justice—the defendant had been AWOL from the U.S. Army for over five years and lived under a different name during that time. The Tenth Circuit concluded, despite the sympathy due to the defendant‘s name, that the evidence of covert activities was sufficient to support the jury‘s conclusion that the defendant had left the state in order to avoid prosecution. Those two cases are in complete harmony with the statute‘s language: it must be shown affirmatively that avoidance of prosecution was a dominant motivation behind the defendant‘s interstate travel.
Even if the statute is not clear on whether evidence of flight is required, as I think it is, at the very least, it is ambiguous. As the Supreme Court recently said, “[W]hen there are two rational readings of a criminаl statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language.” McNally v. United States, 483 U.S. 350, 359-60, 107 S.Ct. 2875, 2881-82, 97 L.Ed.2d 292 (1987). “The principle of strict construction of criminal statutes demands that some determinate limits be established based upon the actual words of the statute.” United States v. Campos-Serrano, 404 U.S. 293, 299, 92 S.Ct. 471, 475, 30 L.Ed.2d 457 (1971); see also Williams v. United States, 458 U.S. 279, 290, 102 S.Ct. 3088, 3094, 73 L.Ed.2d 767 (1982) (applying rule of lenity to criminal statute susceptible to two interpretations).
Here we have a statute with a reasonable interpretatiоn that results in the defendant having done nothing criminal, which, by the way, has been adopted by two circuit courts of appeals. Yet the panel opts for an alternative interpretation that makes his conduct criminal, ignoring the rule of lenity.
All that the panel majority has said of Spillane is that he knew of the pending New York charges and deliberately failed to return to answer for them—no flight, no concealment, no affirmative conduct to avoid prosecution. The evidence was simply insufficient to support a finding that Spillane was a fugitive from justice.
Accordingly, I respectfully dissent.
Steven H. Goldblatt, Director, Appellate Litigation Program, Georgetown University Law Center, Washington, D.C., argued (Dori K. Bernstein, Maureen F. Del Duca,
Howard Edwin Hill, Associate Atty. Gen., North Carolina Dept. of Justice, Raleigh, N.C., argued, (Lacy H. Thornburg, Attorney General, North Carolina Dept. of Justice, Raleigh, N.C., on brief), for defendant-appellee.
Roger Manus, Carolina Legal Assistance, Inc., Raleigh, N.C., Michael S. Hamden, North Carolina Prisoner Legal Services, Inc., Raleigh, N.C., for amici curiae.
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON and WILKINS, Circuit Judges.
K.K. HALL, Circuit Judge:
Nathan Miller, a North Carolina inmate, brought this action pursuant to
I.
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
In order to succeed on his claim of excessive force, Miller must show that Leathers “inflicted unnecessary and wanton pain and suffering.” Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1985). To dеtermine whether the pain inflicted was unnecessary and wanton, a court should consider “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 1084-85 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). “[S]uch factors as the need for application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted’ are relеvant to that ultimate determination.” Whitley, 475 U.S. at 321, 106 S.Ct. at 1085 (citation omitted). With these principles in mind, we turn to the facts.
II.
On January 3, 1987, Miller filed a grievance with the prison administration complaining that Officer Leathers had told another inmate that he (Miller) was a “snitch.” A correctional officer investigated the grievance by merely discussing it with Leathers, and the prison superintendent concluded that the “[i]nvestigation reveals that there is no merit to inmates [sic] complaint.” Leathers brought a copy of the written decision to Miller‘s cell on January 7, 1987, to obtain his signature indicating that he had been served with it.
Upon reviewing the decision, Miller refused to sign it and a verbal confrontation ensued. Miller admits that he decided to verbally provoke Leathers in an attempt to get his grievances before higher authorities. He further alleges, however, that the threats and insults flowed both ways, and that at one point, Leathers threatеned to “kick [Miller‘s] white ass.” Miller eventually signed and returned the form, but
According to Miller, the verbal sparring continued as Leathers escorted Miller off the cellblock and down a flight of stairs; this trip was punctuated by several jabs from Leathers’ riot baton to Miller‘s back. Uрon reaching a doorway which he claims was blocked by a food cart, Miller refused to move forward. Turning around to face Leathers, Miller claims that Leathers insulted him and that he responded in kind. At this point, Miller says that Leathers raised his baton and that he (Miller) raised his handcuffed hands to ward off the impending blow. After he was struck, he laughed at Leathers and was struck two more times. Miller also alleges that Leathers twice threatened to kill him during the incident. Millеr claims that he reacted by pushing the officer away and picking up a broom handle to protect himself. With the aid of some nearby officers, Miller was eventually subdued. As a result of the blows from Leathers’ baton, Miller sustained a fractured arm and a swollen elbow.
The district court, upon consideration of the materials submitted by both parties pursuant to Leathers’ motion for summary judgment, concluded that there was a need for the applicаtion of force, the amount of force was not disproportionate to the need, the injuries inflicted were de minimis, and the force used was applied in a good faith effort to discipline Miller and was both reasonable and justified on the basis of the facts then known to Leathers. The district court concluded that Miller had no basis for recovery and, accordingly, dismissed the action against Leathers. This appeal followed.
III.
On appеal, Miller contends that the evidence, when viewed most favorably* to him, clearly gives rise to an issue of fact as to the necessity for the amount of force employed by Leathers. He argues that his version of the events supports his claim that Leathers either intended to injure him once they were off the cellblock or, alternatively, that Leathers used excessive force not in response to a threat by Miller, but rather as a reаction to verbal provocation. We agree.
Miller‘s version of the incident supports a reasonable inference that Leathers intended to provoke an incident so as to allow Leathers to beat him under the guise of maintaining order or defending himself. The grievance filed by Miller indicates that Leathers may have harbored ill will against him. Miller also points to a prison regulation that requires that the removal of a disruptive inmate frоm his cell may only be done in the presence of a sergeant or higher-ranking officer. Leathers’ removal of Miller was apparently effected in violation of this regulation, and this undisputed fact further supports an inference that Leathers intended to retaliate against Miller.
The critical juncture in the sequence of events occurred at the doorway that Miller claimed was blocked. Unable to move forward as ordered, he was insulted by Leathers. Miller turned in the doorway and responded with a similarly provocative insult. It was at this point that Miller says Leathers raised his baton and he (Miller) reacted by raising his shackled hands to protect himself. The first blow brought a mocking insult from Miller, which in turn produced two more blows by Leathers.
Leathers characterizes Miller‘s actions in turning around in the doorway, while simultaneously directing a derogatory remark toward Leathers, as evincing “apparent offensive intentions.” Leathers attempts to buttress his argument by pointing to Miller‘s history of violent behavior and by arguing that the blows inflicted were consistent with an attempt to defend
Accepting Miller‘s version as true, we find that it supports a “reliable inference of wantonness in the infliction of pain.” Brown v. Smith, 813 F.2d 1187, 1188 (11th Cir.1987). Verbal provocation alone does not justify a response such as occurred in this case, and whether there was any more than verbal provocation by Miller is in genuine issue on any fair reading of this record. Moreover, we are unable to agree with the district court‘s characterization of Miller‘s injuries as de minimis. The outcome of the case depends on the resolution оf certain factual disputes which will largely turn on judgments about credibility. These determinations must be made by the finder of fact. Accordingly, we vacate the judgment of the district court and remand the case for further proceedings.
VACATED AND REMANDED.
WILKINSON, Circuit Judge, with whom Circuit Judges RUSSELL, WIDENER, and WILKINS join, dissenting:
Our nation‘s prisons, already racially charged, will become more so with this decision. The majority holds that an inmate can deliver racial taunts at a prison guard in an effort to provoke an altercation, and when the guard responds in a measured way, then sue him under
I.
The majority holds that “verbal provocation” on the part of a prisoner is legally irrelevant for purposes of summary judgment. I disagree. I believe that it is not only appropriate, but essential, that an inmate‘s deliberate racial provocation of his guard be taken into account when assessing whether the force employed by the guard “‘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 1084-85 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).
It is undisputed that Miller baited Officer Leathers with degrading racial epithets. The majority fails even to mention that Miller, who is white, admits calling Leathers a “slush-headed nigger” and threatening him with physical violence. In addition, Miller leveled sexual insults against Leathers’ mother. Miller even conceded in his own deposition testimony that he made a deliberate decision to provoke Leathers so thаt Leathers would write him up for a disciplinary infraction. Moreover, these taunts and threats were issued by a violent criminal who had many times over proven his willingness to back up his threats with action. Between March 1, 1978, and November 22, 1986, Miller had committed some twenty-seven disciplinary infractions, involving, among other things, possession of weapons, physical assaults, and threats of physical harm against numerous prison officials. In fact, it was because of Millеr‘s past unruly conduct that he was in close custody and administrative segregation when Leathers left the grievance form with him and instructed him to sign it.
In the face of Miller‘s verbal assault accompanied by threats of physical violence, Leathers took no immediate action. It was only when Miller turned to face him—a move that would be difficult to interpret as anything but confrontational—that Leathers struck Miller with his baton three times about the arms and forced his retreat. Absent from the incident were the indicia of a retaliatory beating. Leathers
The majority now rules that Miller‘s stream of slurs and threats of violence were mere “verbal provocation” and all but immaterial for purposes of summary judgment. I do not think Miller‘s taunting conduct can be dismissed so lightly. The abusive language used by Miller was of the most contemptible sort—“fighting words” intended “by their very utterance [to] inflict injury or ... to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). While endurance of a certain amount of verbal jousting is part of the profile of professionalism of any prison guard, the people behind the uniforms are still human beings. Prisons, moreover, are combustible settings, and prison order rests upon a fragile equilibrium. See Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). By discounting for purposes of summary judgment the significance of Miller‘s efforts to provoke a fight with Leathers, the majority tips the balance against the maintenance of institutional оrder. It issues a regrettable invitation to racial conflagration by signaling prisoners that they may freely barrage their guards with slurs and threats of violence, and then, in a no-lose proposition, sue them under
II.
While professing to apply the “obduracy and wantonness” standard for cruel and unusual punishment in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), the majority in fact limits the standаrd‘s applicability to the quelling of prison riots. Such a departure from the Eighth Amendment standard is warranted neither under the language of Whitley nor the concerns expressed in that decision.
The Supreme Court in Whitley stressed the difficulties of maintaining discipline in the prison setting, emphasizing that these difficulties are exacerbated when defiant and disobedient prisoners threaten institutional order. “[I]n making and carrying out decisions involving the use of force to restore order in the face of a prison disturbance, prison officials undoubtedly must take into account the very real threats the unrest presents to inmates and prison officials alike, in addition to the possible harms to inmates against whom force might be used.” Id. at 320, 106 S.Ct. at 1084; see also Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Because prison officials often must immediately and emphatically defuse potentially explosive situations, courts should be “hesitan[t] to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second
In light of the dangers posed by defiant inmates and in recognition of the fact that unabated lawsuits against prison authorities are themselves no aid to prison discipline, the Whitley Court made the Eighth Amendment standard a difficult one to satisfy. For conduct to violate Eighth Amendment rights, it “must involve more than ordinary lack of due care for the prisoner‘s interests or safety.” Whitley, 475 U.S. at 319, 106 S.Ct. at 1084. The infliction of pain is not cruel and unusual punishment “simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable.” Id. “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Id.
There is nothing whatsoever in Whitley to suggest that this standard is not applicable to instances of individual insurgency or insubordination. See Brown v. Smith, 813 F.2d 1187 (11th Cir.1987). Indeed, one can readily imagine why the standard should apply. Defiance of prison rules may be contagious among inmates; testing the tolerances of guards may prove to be great sport. By reversing the grant of summary judgment here, the majority countenances conduct which hardly needs encouragement. It must do so, it explains, because “[t]he outcome of the case depends on the resolution of certain factual disputes which will largely turn on judgments about credibility.” Maj. op. at 1089. While it is no doubt true that the quarrel between Miller and Leathers, like any other, had two sides, not every disputed fact between an inmate and a guard is a material fact for purposes of summary judgment. Rather, “a prisoner may avoid ... summary judgment ... only if the evidence viewed in the light most favorable to him goes beyond a mere dispute over the reasonableness of the force used and will support a reliable inference of wantonness in the infliction of pain.” Brown, 813 F.2d at 1188.
The Whitley Court indicated that obduracy and wantonness have not been demonstrated, and a
Moreover, the majority compounds its error by relying on a statement of the standard for summary judgment which not only predates the Supreme Court‘s recent pronouncements on the subject, see Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), but also affords prison officials little legal protection against a spate of prison altercation suits. Quoting from Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979), the majority states that the nonmoving party “is entitled ‘to have the credibility of his evidence as forecast аssumed, his version of all that is in dispute accepted, [and] all internal conflicts in it resolved favorably to him.‘” Maj. op. at 1087. The Supreme Court has recently made clear, however, that the burden on the responding party is considerably more exacting. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court stated that “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is
In addition to being in error as a matter of law, the majority‘s position is disastrous аs a matter of prison policy. From this day forward, every altercation between prisoner and guard will provide the basis for a
III.
I recognize, of course, that the danger to institutional order is a double-edged sword in that the wanton use of force in violation of Eighth Amendment safeguards may itself be an impediment to institutional peace. Section 1983 is a vital protection against the malicious use оf force by guards against prison inmates. The majority, however, transforms it from a protection into a license—a license for inmates to engage with impunity in calculated challenges to institutional authority.
I respectfully dissent.
J. HARVIE WILKINSON III
UNITED STATES CIRCUIT JUDGE