Oscar Bethea v. Sherman H. Crouse, Warden, Kansas State Penitentiary, James Townsend v. Sherman H. Crouse, Warden, Kansas State Penitentiary
417 F.2d 504
10th Cir.
1969
Check Treatment

*1 BETHEA, Appellant, Oscar Warden, CROUSE, Kansas

Sherman H. Penitentiary, Appellee. State TOWNSEND, Appellant,

James CROUSE, Warden,

Sherman H. Kansas Penitentiary, Appellee. State 2-68,

Nos. 27-68. Appeals Court Tenth Circuit.

Aug. 7, 1969.

Rehearing Rehearing Denied and En Banc Denied Dec.

Seth, Judge, Circuit dissented. Smith, Denver, Colo., for

Theodore M. appellant. (Robert Collister, Jr. C.

Edward G. Londerholm, Atty. Gen., brief), appellee.

505 Judge, (D.Kan.1967); MURRAH, 541 Chief rel. States ex Before Judge, Madden, (9th SETH, and v. F.2d 792 CHRISTEN- Gardner 352 Circuit 1965). Judge. SEN, in a Cir. We have said so consti- District tutionally rights action. based civil See Judge. MURRAH, supra. Chief Crouse, pau- Lee v. In a forma peris 1915(d), action under 28 inmates, U.S.C. Townsend, prison § Bethea and may required the trial court but is not damages brought un separate for suits appoint to counsel. The federal against courts Rights (1871) Act der the Civil have, however, prone in Kansas been to Kansas Peni State the Warden of appoint counsel civil legally actions where claiming he tentiary, was liberty is Ratley at stake. See beating v. inflicted a severe for answerable upon Crouse, 320, 321, (10th 365 F.2d ftnt. 3 inmate, one Cos another them Cir. Consistent with this request, liberal tello; failed, to fur on policy, in our case de- re proper treatment nish medical appoint- ferred action on the motion for per sulting injuries; and suffered of apparently ment counsel to investi- sprayed gas Be mitted tear to gate the need based on merit. We cer- deprivation face, thea’s all tainly cannot that he abused his dis- eighth free to be amendment immediately cretion not or subse- punishment as from unusual cruel and quently appointing counsel. states applicable to the virtue made process, Amendment due summary judg- Fourteenth come to We then California, e., U.S. 370 i. v. see Robinson To be actionable under ment. 1983 § 1417, 660, 758 8 L.Ed.2d (a) S.Ct. complained 82 acts of must be done (5th Lee, (1962); 396 F.2d 749 (b) Beard v. under color of or local law state Fitzharris, F. 1968); 257 v. deprivation Cir. Jordan must a amount to a con- Supp. (N.D.Cal.S.D.1966). stitutionally protected right, 674 in this case freedom the infliction of cruel prose- granted to leave The trial court punishment. Stringer unusual See v. pauperis, ruled in forma cute the actions Dilger, (10th 313 F.2d 536 Cir. that a on a motion to dismiss Pape, 167, also Monroe v. 365 See U.S. 42 under U.S.C. § been stated (1961). 81 L.Ed.2d 492 S.Ct. 5 appoint motion on a deferred action Attorney found, court and the General answers, filing pro forma counsel. After concedes, of Kansas that the acts com- summary judg- moved for the Warden plained of were done under color of state ment, attaching prison affidavits Talley Stephens, And law. see v. 247 actually and inmate involved F.Supp. (E.D.Ark.1965). Thus, our pro plaintiffs se moved Costello. question ripe is whether the case was summary judgment and summary e., judgment, i. whether a pro coun- as se traverses treated teraffidavits, genuine dispute factual sum- on the basis which of cruel and unusual granted mary judgment in favor of those eighth terms are used appeal, plaintiffs the Warden. On amendment survived the complain of failure receive counsel supporting affidavits. This entails a propriety judgment. and the general principles consideration of the said, have often and it seems We governing prisoner complaints of consti- universally agreed, to be that no one has deprivation tutional in cases of this right to assistance of constitutional kind. prosecution or defense of counsel consistently adhered a civil action. Flowers v. We have State (10th policy Oklahoma, F.2d 916 off” mat Cir. the so-called “hands according 1966); Socony Co., administration Knoll v. Mobil Oil ters (10th 1966); Inc., that the basic re F.2d 425 we have said which manage Lacey, sponsibility for the control 362 F.2d 798 Crouse, Garrison v. institutions, including 1966); penal Lee ment beating by arresting treatment, discipline, of those Act: unlawful offi care cer) ; Heyse, responsible confined, ad Marland 315 F.2d 312 lies with subject agency 1963) (Civil Rights and is not Act: ar ministrative arrests); Stringer in such bitrariness judicial unless exercised v. Dil review (Civil ger, Rights supra, illegal abuse or constitute clear as to Act: ar manner rest, beating, part *3 caprice of officials. unlawful coercion arresting Willingham, officer); Powers, F.2d 384 v. Downie v. Graham See Banning (10th 1951) (Civil (10th 193 F.2d 760 also Cir. Cir. See 367 Rights (10th city Looney, Cir. Act: F.2d 771 failure of 213 v. Hunter, keep peace religious 1954); meeting). F.2d 330 172 Powell v. cogni fully being (10th 1949). But Cir. entirely seems to be Our concern not lose his consti that does all zant one of recent decisions consonant with rights prison, a when enters tutional Supreme other Court and United States Pate, 546, Cooper 84 S. 378 v. U.S. see prisoner petition under in cases courts (1964) ; 1733, Dowd 12 L.Ed.2d 1030 Ct. Pate, Rights Cooper Act. See v. Civil Cook, ex rel. 340 U.S. States v. McMann, Wright 519 supra; F.2d 387 v. (1951); 206, 262, 95 215 71 S.Ct. L.Ed. County Kelly (2d 1967); Butler v. Cir. (4th Pegelow, 291 196 v. F.2d Sewell Commissioners, 133 F.2d of 399 Board 1961); Reichard, F.2d v. 143 Cir. Coffin Duncan, 1968); (3rd Cir. Edwards v. (9th 1944); 443, 143 Cir. 155 A.L.R. 1966); Hughes (4th 993 F.2d Cir. 355 Willing supra; Crouse, Lee Jones v. v. 1961); (5th Noble, 295 495 Cir. v. F.2d (D.Kan.1965); ham, F.Supp. 791 248 (7th Spires Bottorff, v. F.2d 273 317 Fitzharris, supra, have v. we Jordan Tahash, 1963); 352 F.2d 970 Lee v. Cir. a bo deaf ear never turned a Brown, (8th 1965); 368 Brown v. Cir. upon the na fide claim for relief based (9th 1966); Talley v. Ste F.2d 992 Cir. right deprivation of constitutional a Fitzharris, supra; phens, su Jordan v. pris asserted a federal or state when pra; United ex rel. Hancock v. oner, either nature manda of a (N.D.Ill.1963); Pate, 223 202 proceeding or, corpus mus or as habeas Houghton Shafer, also v. 392 U.S. See here, Rights a Act. claim under Civil 1319 88 S.Ct. 20 L.Ed.2d Willingham, F.2d See Lawrence v. 373 (1968). balancing necessity a (10th 1967) (Habeas Corpus: 731 Cir. hand in administration free transfer); arbitrariness of Jones v. rights against of constitutional basic Crouse, (10th 1966) 360 F.2d 157 Cir. prisoners, practical it worka seems (Habeas Corpus: delay inexcusable say, ble to as did the Fourth Circuit processing Willing appeal); Smoake v. Duncan, (4th Edwards v. 355 F.2d 993 (10th (Ha ham, 1966) 359 386 F.2d Cir. 1966), Cir. hands-off doc “[t]he Corpus: good time); beas forfeiture operates reasonably trine to the extent Tinsley, (10th Kostal v. 845 F.2d prevents judicial depri it review of 1964) (Habeas solitary Corpus: Cir. necessary vations which are or reason pun- confinement cruel and unusual as imprisonment.”1 able concomitants ; ishment) Willingham, v. su- Graham Note, See also 72 Yale L.J. 506. (Mandamus: pra, segregated confine- Very recently, Coppinger Town- v. punishment); ment as cruel and unusual necessity recognized Coppinger Townsend, supra, send, 398 F.2d 392 we balancing (10th 1968) (Civil difficulty Rights constitu- Cir. Act: de- against prisoners nial medical aid cruel and unusual tional a punishment); Morgan Labiak, powers of the administrators (10th Rights 1966) (Civil Rights on denial F.2d 338 action based Civil expressly plained of no contention 1. was one of discretion There the state liability provided law. state warden immune from on the and authorized grounds Johnson, F.2d asserted and Frank also Preble v. sustained in Meredith, lin v. 386 F.2d 958 1967) to the effect act com- reviewing plaintiff in his forth After treatment. medical alleged present picture brutal conflicting the deni- law case true, treatment, which, oppressive if to cruel amounts treatment medical al certainly come within the ambit it would punishment, found we unusual But, punishment.” point, cruel and unusual unnecessary inas- to decide any consideration of the affidavits event concluded as we much counteraffidavits, physi- he seemed to think opinion between a difference plaintiffs proved “nothing adequacy patient on the inmate cian damages private than a claim for insufficient treatment was of medical against battery for assault and the one under support § an actionable who administered it which is not intend- Rights protected ed to be the Civil underlying principles seem to be Act under which action regardless of ac- of the form *4 the same 2 maintained.” ex rel. complained of the acts or whether tion Atterbury Ragen, v. 237 F.2d 953 disciplinary or measure done a were as 1956); Smith, Cole v. 344 721 F.2d ques- in-custody treatment. other holding, In so the case constitu- in each is whether tion judge apparently concluded as matter a infringed under color were tional of upon plaintiff law that “the assault authority. local state or was not of such a character as to shock freely judge ac- trial the In case our general conscience or to be intolerable to right free to be prisoner’s knowledged a fundamental fairness to the extent that punishment “as unusual cruel and right the constitutional to be free from right of as the fundamental and basic punishment cruel and unusual had been free exercise speech the or freedom violated”. delicacy recognized the religion.” He but, read balancing process, as we the attempt no has been made While unnecessary to accom- him, it found he eighth precisely to amend define rights against the prisoners’ the modate punishment”, ment “cruel and unusual for, sig- powers disciplinary Warden’s by the standard embraced trial court the nificantly, think that this was he did not emerged expressive to seems have disciplinary “where au- case a concepts modern of humane treatment in preserve upon called were thorities our order. social See Weems v. United exerting justified nec- order or were States, 349, 544, L. 217 30 U.S. S.Ct. 54 pris- punish essary a to restrain or force California, (1910); Ed. Robinson v. 793 oner”, an in- “a case where but rather Rudolph Alabama, supra; v. 375 U.S. physically beaten and mate set 155, 889, 119 84 S.Ct. 11 L.Ed.2d permit- by who had been inmate another (1963); Dulles, 86, Trop v. 356 78 U.S. plaintiff out the ostensi- to seek ted 590, (1958); 2 S.Ct. L.Ed.2d 630 Jordan talking purpose him.” ble supra. Fitzharris, unusual v. Cruel and punishment may dismiss, un denying inflicted the motion In penalty imposed by thought judge conscionable statute facts set that “[T]he Talley conclusion, reaching state law and inconsistent with Stephens, (E.D.Ark. judge v. 683 to sustain defendant’s was “inclined 1956), which and embraced from the for it is established contention quoted overruling case, including in his order a motion affidavits of the record submitted, “However, to dismiss: it must not be that de- and counter-affidavits respondent participate warden] [a overlooked in or counte- did not fendant Penitentiary charge upon plaintiff; and is of the assaults nance responsible plaintiff beating for the acts of his subordinates anoth- administered to including trusty guards. place Se is not re conditions and under er inmate took responsibility by personal lieved violation of de- in direct circumstances ignorance practiced specific abuses this view ordersBut fendant’s fields (Emphasis and Id. at 692. conclusion with his earlier barrachs." is at variance judge.) added our trial the acts the state’s concession complained under color of were done per- beating inhumane execution of a or caused send cuts mouths; penalty imposed a con- missible under on their faces and inside statute, e., stitutionally permissible jaw injured see i. fractured Bethea’s his Resweber, back; that, despite requests, rel. v. Louisiana ex Francis no days L.Ed. aid was ten 329 U.S. S.Ct. medical offered until Cop- McMann, Wright supra; separate incident, (1947); As a later. actionable Townsend, charges supra, Deputy Warden, cases pinger Bethea cause, shot without him the face cited. with gas. tear judge’s Accepting standard determining pun- Warden, and unusual oth- Deputy cruel Warden, ishment, officers, our Costello present, and inmate er summary judgment permis- granting he story affidavits. in their different tell a sibly pierced ini- he which and Town- They Bethea that when Costello, tially room, state a claim found sufficient without send entered any prompting con- warning cruel and unusual and without did, apparently clude, jumped from the af- officials, as he across from the inmates, table, grabbed fidavits counter-affidavits two actually happen together, what believed did bumped heads sufficiently was not to be cruel slapped severe times three to five them knocking unusual as of law. most, matter off their them without *5 says Deputy that The Warden feet. denials, allegations, of a welter Out any they expecting were not kind of traverses, affidavits, pro these se and rough treatment, admits that nei- but emerge. Bethea undisputed facts basic immedi- he nor his officers acted ther brought their Townsend were they ately stop to were Costello because Adjust- in to the cells a room isolation enough besides, thought and, not near Building the where Treatment ment getting just the inmates their two “were Deputy officers and other Warden prison deny deserves.” The gathered the inmate Costello with they any pointed made threats or having to purpose him talk ostensible anything at Bethea and Townsend and alleged an Bethea and Townsend about deny they carrying guns were even rape. Bethea Townsend en- When anything or that “was hurt but immediately room, they tered the were pride.” episode, After the officers upon by presence of set Costello in the apparently stepped in and sent the two Deputy the Warden and other officers. inmates back to their cells. Beyond facts, however, these admitted says when he was Warden dispute arises over the extent and sever- complained of a that Bethea informed ity of the admitted assault. Bethea and jaw, the he instructed officers fractured Costello, Townsend claim that an “over- hospital to to him the be to take pushed inmate”, sized them into a corner X-rayed; refused and that when Bethea room, face, of the hit them in the hospi- go, he then ordered him to the to floor; knocked them to the the X-rays, no frac- tal for which revealed Deputy pointed pistol Warden then in separate incident, Dep- In ture. the the faces and threatened to “blow teargassed uty Warden that he admits through them they the wall if resisted.” Bethea, along inmates, with the other questioning After them about the al- obey but it was for to orders and refusal leged they rape, Deputy the only caused a short “inconveniences” “go ; Warden told Costello to ahead” time. proceeded that Costello then to kick and judg face, summary reviewing beat them about head, the body; they many and that after times that a had been we have said ments grant times”, duty “knocked around a a summa number of court has a to trial Deputy finally case, ry judgment appropriate the Warden ordered them in an but to their cells. back Bethea and Town- relief is should be that such drastic and parties disputed applied so that the us that with caution issues material any Considering factual bona fide fact survive. a trial will have the admitted may assault, issues; a trial and that while admitted hostile attitude of Deputy pleadings pierce determine from Warden and inmate Costello admissions, plaintiffs, depositions, towards and affida and the trial specific finding ex court’s discipline issues of fact whether material vits involved, ist, be construed was not should we must conclude that liberally party opposing plaintiffs’ too much of complaint of the favor Chicago, admittedly Rock motion. See Smoot true for the trial court pierce allegations Co., Island and Pacific Railroad 378 F. and hold as a (10th 1967); McCullough 2d matter of judgment law that granted. Company Surveys, Inc., Tool should v. Well rules, F.2d 230 These plaintiffs’ We have said that easy state, especially are difficult does, version and the Warden’s version prisoner-petitioner apply cases we not, does amount to the infliction acutely problems of the faced are aware punishment. cruel and unusual What judge screening trial endless simple amounts force assault and bat pro complaints by prisoners flow of se tery how much more force amounts against their wardens. If actions of to cruel and unusual is a brought prisoners are this nature degree. question difficult In another indiscriminately, they permitted could context, rights action, but in a civil we seriously disrupt discipline and said have that “[T]he reasonableness of lawyers” give “jailhouse day a field making the force used in an arrest un great expense courts to the ad der all the circumstances is a justice public ministration and the jury, fact for the and the standard is treasury. Dickson, See Weller v. 314 F. ordinary, prudent the conduct of men 2d existing under circumstances.” weeding must have discretion Morgan Labiak, supra 368 F.2d at *6 groundless genu fabrications Making application of the reason complaints. But ine the same time test, man able the ultimate issue is play “must not fast and we loose with by the assault as found basic constitutional in the inter sufficiently factfinder is severe in the efficiency.” est of administrative Sew circumstances to shock the conscience Pegelow, ell v. 291 F.2d so, a reasonable man. If the verdict 1961) quoting ex rel. go plaintiffs; not, should for the if Fay, (2nd Marcial F.2d the Warden. teargassing complaint, As to we The case comes to us on a basic quite are purely satisfied that it was a finding prison discipline not was disciplinary and, moreover, measure tak- and that ing involved an unlawful assault prisoners’ version, no reasonable occur did under color of state law. Tak man would it amounted to cruel ing incident, the Warden’s version of the punishment. and unusual As to the al- apparently as the trial did, court leged attack, we we do not know whether readily agree would at the admitted proof support trial will the alle- nothing tack gations was more than an assault whom, or on sufficient but con- battery did flicting which not amount proof, to the the factfinder will be- punish infliction of cruel and unusual may lieve. plaintiffs’ It well be that taking prisoners’ ment. But proof ver will not substantiate their stated sion, conclude, must we case, as did the trial in which may event the trial court dismiss, court on the motion to determine the issue as a matter of law. alleged mistreatment amounts to cruel Chicago, Rock Island and Pacific punishment. and unusual Railway When Company the two Howell, 401 F.2d compared, versions are it becomes clear only We hold findings judg- ripe Under the was not derived from the the case undisputed judged cor- facts the was the standards incident not ment when rectly erroneously disciplinary, majority opinion and the think so we erected but agrees. judge. The incident not to applied was restore the trial summary discipline order or related complaints were raised Other such an event. Under these circum- being is re- prisoners, the case but as is stances it difficult to see how-it can did manded for trial “punishment.” be considered as The them, will not consider we not discuss trial court found it was outside the con- appeal. this them on protections stitutional was thus a —it and remanded. Reversed private assault, agree. and I must majority opinion as- The nevertheless Judge (dissenting): SETH, Circuit “punish- the assault was sumes facts to dis- found the The trial court mentioning matter ment” without giv- nothing than incident an close step, is on to the next which moves ing private to a assault rise degree “it” of force cruel used—was battery against prisoner. a fellow says majority thus and unusual? The * “* * court also found The degree force in great if the was effect not authorities were a case where violation, there is a constitutional upon preserve order or called were small, there no but if it was constitu- necessary justified exerting force issue. tional punish prisoner,” or restrain “* * * liability majority on the issue being plaintiff was not sub- “punishment” assump- the same makes jected discipline at the time he was yet saying tion, and another one in assaulted.” great Warden if the is liable force Warden, to the As not liable if it is small. “* * * partici- he found that did not majority has thus said: pate in or countenance the assaults simple as- amounts force “What plaintiff; beating administered to battery much more and how sault plaintiff place took another inmate and unusual to cruel force amounts under conditions and circumstances difficult is a specific direct violation of defendant’s degree.” orders; plaintiff’s injuries not were discussing opinion states after Also the of a serious nature and not de- *7 case: an arrest nied medical care or treatment.” ** “* is issue ultimate [T]he findings record, Prom these the by the found assault as the the assault an was isolated incident sufficiently severe the is factfinder outgrowth which was the unintended conscience the to shock circumstances meeting arranged by prison so, the man. If ver- reasonable of a prisoners the between several concerned. plaintiffs; if go for the dict should not, meeting prison The was for a adminis- the for Warden.” purpose. trative The trial court thus law majority thus matter of as a The concluded that the incident was not remaining only for presents issue the Rights within the Civil Act. This con- force, degree of the court to be the trial perhaps entirely clusion is not consistent nature of the in the differences and not finding with the that the event un- was as- or “character” the the incident law, der color state but the basic mentioned. the trial court sault as entirely facts as found are clear. The findings judgment degree my opinion the issue is not of the court must be considered nature of incident rather until the than reached established, legal statements on made issues in is ruling preliminary liability on examined. motions. of a Warden are

5H undisputed facts to court found the The the incident—the nature show ALABAMA-TENNESSEE NATURAL assault, this was of the character COMPANY, Petitioner, GAS judgment. for the sufficient Obviously dispute on how was a there COMMISSION, FEDERAL POWER was, not but this was the assault violent Respondent. disposition case pertinent of the No. 25862.

by the trial court. Appeals United States Court majority con- indicated above As Fifth Circuit. law, War- that, a matter cludes Aug. 1969. great, and force was liable if the den I cannot small. was if it liable Rehearing not Rehearing Denied and En appellants Sept. agree. assert The Banc Denied rights. deprived them of Warden findings are to affidavits The setting contrary. physical of the The overcome not sufficient incident showing inci- that the facts. these he is place took dent The ordi- not sufficient.

the Warden responsibility nary one’s rules the acts subordinates acts or

own assuming applied, the other should Rights requirements are the Civil Act

met. The cannot be liable Warden private-individual assault of one another, only prisoner upon depending severity of the assault. quotes majority relies on Stephens, Talley liability is- (E.D.Ark.1965), on the concerned case however The cited

sue. regular corporal adminis- Ar- disciplinary at the reasons tered punish- Corporal prison farms. kansas formally authorized

ment been years before several board prison farms carried out at the and was perform du- did not the workers if described the nature The court

ties. certainly punishment. This *8 regular disci- course including reasons, post-trial

plinary opinion.

punishments mentioned quite This is different from the case nothing than an where

bar there incident.

isolated

F affirm. would

“SETH, rehearing. J., grant voted grant re-

HICKEY SETH voted to

hearing en banc.