*1 72 anglo, Reseñáis, Mexican-American, 1236, one If 1238-1239.
451 F.2d Negro. no proves qualified establish statistics Escobedo, These or Gonzales prima of discrimination road, facie he should be case transfer hiring Pettway against by Way in its pay. blacks Lee v. back See awarded More- city Pipe Co., in Antonio.6 drivers San Iron American Cast testimony 251-263; over, at 1974, 211, v. trial Johnson there 494 F.2d past from an Goodyear Co., in the suffered Tire & Rubber White had Although 1376-1380; Bing problem.” there 1364, “attitude 1974, 491 F.2d testimony Inc., Roadway Express, attitude F.2d at also that White’s provides an improved, this alone factor 452-455. correct- to doubt the basis insufficient Rodriguez as a Arturo served finding that court’s ness of the district Way driver Lee in Antonio line San discriminated the defendants none of 29, until was fired on 1972. October against White.7 Way that Lee The district court found discharged Rodriguez part, part; Affirmed reversed poor “because and remanded. involving driving ac record at least two year period im the one within cidents
mediately preceding his dismissal.”
Rodriguez’s upheld dismissal was
through procedures. grievance union convincing at He no introduced any way
trial that his dismissal was improper. conclude that the district finding court’s Rodriguez’s of no discrimination America, UNITED STATES supported in the dismissal is Appellee, record. Appellant. SALAZAR, Mark A. disagree can we with the Nor No. 74-1337. finding
district court’s Wilburn prove White a case of Appeals, discrimi failed States Court Eighth against by any Circuit. him of the de nation began working fendants. White as 11, Sept. Submitted 1974. city in 1967. driver a “casual” status 5, Decided Nov. 1974. complains Way has refused that Lee “regular” to accord him status because Negro. he is a But in when White began driving Way, Lee there first Negro “regu city
were four drivers Way lar” status. 1967 Lee has Since regular city
hired seven drivers —four Compare Rodriguez they giving you v. East Texas Motor and was because weren’t job? Freight, and the an individual a 5 Cir. there, cited F.2d at 54 and n. 17. A. As an individual? cases Yes, give White, sir, you, Q. Wilburn job. unsure that his Even White himself seems city driving job inability regular Yes, they A. him that could have to obtain told racial, personal, given They give is the result rather me me more work. ’could place following colloquy they doing took wasn’t it. animus. more work but during complained trial White’s cross-examination: have never Q. You Now, you Way Q. have ever told Mr. Shafer dis- .Shafer of the Union about Lee AVay against Negroes race, criminating down at the that Lee has been as a Union you discriminating against personally? you? have Yes, No, Just, A. sir. A. sir. way against you you personally? And Q. Q. tell Negro. they discriminating against Yes, felt but I am a A. *2 Brown, Federal Public Asst. R. Steven appel-
Defender, Mo., Springfield, for lant. Atty., Cooley, Asst. U. S.
Donald R. Mo., Springfield, appellee. MATTHES, Senior Circuit Before BRIGHT, Judge, Judge, Circuit District SMITH* Senior TALBOT Judge. SMITH, District Senior TALBOT Judge. defendant) (hereafter appellant striking Newby, on Nurse tried
duty Medical Cen- the United States ter, Missouri, Springfield, in violation 113(d).1 found He was of U.S.C. § guilty charge to six and sentenced imprisonment, consecutive months serving. was then sentence he grounds. upon appeals to us not, indeed The first is that nurse, due “could” not have struck The inci- to his restraint at the time. charge which the arose oc- out of dent post-oper- curred in connection with the the defendant. He ative treatment of great played of had deal football developed a which re- knee condition Following surgery. operation quired initially given morphine for he had been passed pain as time this was but then Demerol and “worked down” to Talwin, drugs potency for the of lesser pain. control evening he was On the Kennedy, sen- requested specialist, that ior correctional officer given morphine. This was he be only cannot because “we Not refused. give it time for unless is shot (he thirty early in minutes it” some also, according request), to the his nurse, but Day the Officer because surgeon, call), (the when not a doctor on surgeon’s change orders.” “will not * 1. 18 TALBOT Eastern District of ignation. territorial Whoever, U.S.C. SMITH, § 113 within the jurisdiction provides Michigan, Senior special part: District sitting maritime and the United by Judge, des- or wounding, States, punished months, [*] (tl) imprisonment Assault or is both. guilty follow^: fine of [*] striking, an assault not more not more >s beating, than shall be [*] $500 six or urges nurse, leg.” explained
Thus, would do his that reversal it Defendant “weight good Day. required is because the no to call the Officer * * replied that if he did not indicate[s] [he] The defendant going get could not hit due he was to take his have Nurse medication proceeded do, off, restraints which limited move cast tearing he later which ment of it chunks off the cast and throw- arms.” But our [his] *3 ing weigh Newby evidence; to the them about the room. Nurse function the conflicting testimony, Kennedy and resolution of this Officer summoned. Kennedy involving, does, Officer as it a of the administered tran- place range quilizer attempted credibility, witnesses’ and to restraints and the (leather straps necessary attached to the frame movement for a football player’s injury bed) on the One blow to a five defendant. cause to cuff, big weighing restraints, foot three or inch of and, was too four nurse pounds, Newby up peculiarly Nurse slid it about was as us, looseness, arm to trier of fact. demonstrate its she On the record before up say judge’s that we cannot states defendant doubled his fist that the trial finding and struck her with such force that she that defendant struck New- Mrs. hernia, by surgery, unsupported by required suffered a was substantial evi Rischard, approximately was dence. out work States (8th 1973); months. compensation. F.2d She also submitted a claim see Unit Kennedy’s May, ed Officer ac- States 554-555 (8th 1970). says count was that corroborative. sought as the nurse to move the cuff find no We real issue of intent. Al- defendant characterized her though directly, however, not raised it bitch,” up fist, “damned doubled his may questions lurk in the asked Mr. straight struck from the shoulder. Kennedy by counsel, defense to one of responded they which he “Sometimes The defendant denies the strik [patients] very you are violent when are ing. that, He testified to his re due trying put restraints on them.” In straints, it, he I “couldn’t do even if addition, testified, the defendant himself wanted to.” Three inmates who claimed part, as we noted in didn’t that he strike present supported to be defendant her, it, that he “couldn’t do even if I testifying they any did not see blow to,” wanted since due to his restraints Kennedy struck. Officer and Nurse permissible his arm movement was lim- Newby acknowledged that defendant’s ited, and at the “I most heard her voice arm movement was restricted and disa jerked my and I arm.” greed scope on whether the of the allow able movement awas matter of feet or Even should we consider the is clear, however, inches. It above, sue as raised from the defend loose, above, cuff was as noted and its testimony disposes ant’s further of it. “purpose was not to restrain him to “jerking” For, whatever have oe all, only where he couldn’t move at away cured was from the nurse.2 We keep removing again him from the cast are from confronted with the bald con (Questioned by counsel) you anything just : Government Q. Did do other * * * slap you? [I)Jid they jerk your Q. hand from back her? No, say somebody me, Yes, A. I I all feel touch A. sir. Okay. right? you I heard her voice and What Q. else did do? just jerked my away. probably arm A. I cussed. away? physical your Q. Jerked it IQ. mean movements. Yes, No, sir, nothing. A. sir. A. I can’t do Kennedy Maureen and are Q. Then * * push you your Q. Did ever both mistaken? Newby? Well, you, hand Maureen towards A. like I tell I can’t comment No, sir, my push that, A. I hand to- know. I didn’t hit know Newby. her, right? wards Mrs. story, administrative action is inade- defendant’s which tradiction between quate, here defendant’s offense from the whereas arm his withdrew merely 1(3). “petty,” 18 touch, the Govern U.S.C. § and that of nurse’s blow witnesses, that he delivered ment straight at Judge (concurring): fist his doubled BRIGHT, with Circuit (to him) a “damned nurse, who was perceptive opinion of in the I concur bitch,” as to cause such force with Judge However, I retain some Smith. repair. surgical rupture requiring sufficiency as to reservations say re erred in trial court cannot jecting proof on in- Government’s the issue of concluding story defendant’s testimony witness- tent. The of various striking Mrs. act defendant’s “The including es, for the the two witnesses anger, entirely his due conclusively Government, establishes and intentional.” was violent experienced that Salazar severe *4 being my be understood would not We time of the incident. In view of the de- of the tearing situation record, insensitive of his cast the represented Salazar’s unquestionably in attempt He was fendant. alleviate the an to judgment, pre- and, pain, pain secondary his the swelling to his and sur- To inefficacious. gery was medicine scribed rather an act of insubordina- than take refusal to unremitting a one in such a situation The torture of and tion. steps pain any because pro- alleviate the to unrelieved and does can often surgeon a not struck and upon hour had the human be- duce bizarre reactions needlessly unavailable would seem havior. rigorous. the are that satisfied We supporting of An inference intent the proce- its Center will review Medical charge from the defend- assault comes light and of this incident dures the expletive “You ant’s utterance bitch,” heavy of medical within context its the approximately time the same obligations, particularly security Yet, even the struck. Ms. of unneces- awith view to the avoidance to inference of be drawn from intent sary hazards, only staff, the but to tempered by statement is Salazar’s this hardly not, it is the inmates. We do to ready of this statement concession necessary add, such conduct condone to repeatedly evidence that Salazar other review, despite the as we circum- here language during profane the entire used presented. stances might peddler’s note that incident. We king’s English the French rather is ap second issue on Defendant’s argot prison likely walls. within Cf. imposed peal consti is that the sentence Barcley, F.2d v. 452 United States jeopardy lost since tuted double 1971). (8th An additional Cir. 933-934 “good sixty-seven days time” earned mitigating intent is the conces- factor through disciplinary ac administrative pa- sion of a Government witness This tion as a of the offense.3 result “very when tients are sometimes violent charge repeatedly made institution is put trying to on are restraints rejected. repeatedly is al situations and them.” States, F.2d Hutchison v. United case, (and (10th 1971) I cited cases If I the factfinder this Pagliaro therein); acquit. Cox, failure The Government’s see would relating (8th 1944). present persuasive find no merit to distinguish attempt to Nurse New- to to the to intent harm defendant’s Salazar’s extenuating ground they by coupled the circum- decided with cases me to doubt stances recited above leads “more serious” offenses involve serving three-year provides: 1. Salazar is a sentence TJ.S.C. § pris- possession imprisonment (luring that he of He testified If term a heroin. of any while in the narcotics oner commits offense or violates became addicted .to any part institution, rules of Armed Forces. all or good his earned time be forfeited. punishment fy mitigation proba- or struck was intentional. the blow whether determining any intending encroach- But, prerogative tion. Without sentencing prerogatives upon drawing credibility from ment inferences suggest conflicting judge, I recon- with trier would trial evidence rests jury. under judge In evalua- of this sentence Fed.R. his sideration or fact— Judge evidence, Collinson tion of the Crim.P. I am unable for the Government. ruled Affirmed. completely so say this decision is as to the evidence unsubstantiated warrant reversal. affirmance, Although agree I to an Judge very appropriate Smith’s
deem Cen- on the Medical
critical comments pa- responding procedures
ter’s pain. request If
tient’s for relief from surgeon day (OD), is officer of America, UNITED STATES surgical patient request for an ef- Plaintiff-Appellee, 2 routinely pain killer transmit- fective hap- However, ted to the OD. if the OD LUNDY, Defendant-Appellant. W. M. nonsurgeon officer, pens medical be No. 74-2517 day question, as was the case on the *5 Summary Calendar.* surgical patient’s request for- is not pris- Appeals, warded oner-patient’s Thus, to the OD. whether States Court Fifth Circuit.
request ade- a more for quate pain 13, killer comes to attention Dec. depends of a doctor on his medical Certiorari Denied March condition, type physi- but on which See S.Ct. 1449. logic duty. cian has drawn OD procedure prisoner- this care patients at the Federal Medical Center escapes quite me. I am certain that procedure
such a would not be tolerated setting. hospital nonprison in a why, merely perceive
am unable to be- person prison-
cause sick federal er, unnecessary subject he should be
suffering long periods with- time merely
out highly recourse because of a hospital proce-
dubious administrative
dure.
The trial court sentenced Salazar to
serve prison, an additional six months
the maximum authorized under 18 U.S. 113(d). light C. In of our § comments focusing upon
above Salazar’s unrelieved suffering at the time of the incident part question, to a related denial to opportunity for medical at-
tention, the trial court con- wish to justi-
sider whether these circumstances Enterprises, 18, Cir.; 2. The record reflects Rule see Isbell Inc. medication prescribed Casualty al., which had been et Citizens Co. of New York Salazar day Talwin, Cir., 1970, the ly drug slight-, I. Part aspirin. more effective than