William Hardin Bogard, Jr. v. Thomas D. Cook, Former Superintendent of the Mississippi State Penitentiary

plainly visible bill was testified that Although appellant’s

from car. outside the they had made the

brothers testified that had

bogus appellant bills known them, they also testified that

nothing about place ashtray this bill in

they did got there.

and did not know how it for a time in the

Appellant was seated

hospital waiting room on the couch next to fifty-one

the trash can in which the other Despite the testi-

phony bills were found.

mony of Turner’s brothers that alone bills, we believe

had known of the illicit reasonably could have in- appellant

ferred from evidence that possession bills found of the counterfeit car’s ashtray. can and in the trash actually had

The fact identical bills change machine hospital’s

been used in the appellant had

supports the inference requisite intent. His convic- criminal is, therefore,

tion

AFFIRMED.

Vance, Judge, opinion filed an Circuit concurring the result. BOGARD, Jr.,

William Hardin

Plaintiff-Appellant, COOK, Superintend- D.

Thomas Former

ent of the State Peniten- al., Defendants-Appellees.

tiary, et

No. 76-2890. Appeals,

United States Court

Fifth Circuit.

Dec. Caldwell, Lipman, William E.

David M. D.C., Zelle, Washington, Lawrence Thomas Minn., Kayser, Minneapolis, plaintiff- C. appellant. Robertson, Greenville, Miss.,

James L. Champ Terney, Indianola, Miss., T. Pascol J. Townsend, Jr., Drew, Miss., Googe, Roger P. Jr., Summer, Gen., Atty. Atty. Asst. A. F. Miss., Jackson, Miss., Gen. of A. Hainon Miss., Miller, Greenville, defendants-ap- pellees. finding VANCE, misconduct CLARK, agree Cir- We FAY and

Before Judges. required greater simple negligence cuit than monetary to obtain relief CLARK, Judge: Circuit CHARLES sup- that the record and hold supervisors, prisoner at former Bogard, H. William verdict directed ports court’s the trial Penitentiary at Parch- the State Cook, and Collier favor of defendants the man, filed this Mississippi (“Parchman”), did, jury’s inability to Byars. it the Since damages personal action recover civil or willful gross, the agreement reach on inmate, Parchman Bo- injuries. While a as interrogatory wanton misconduct corporal series of gard subjected was to a Cook, Collier, Byars did not and necessitate two incidents of punishments and suffered liability Superin- a Only mistrial. the violence, stabbing a one severed prison and Collier Assistant Su- tendent Cook and a perma- and rendered him spinal cord throughout perintendent Byars is discussed Bogard sued various su- paraplegic. nent ranking the opinion. All of lower officials, employees and inmates pervisory Vanlandingham, Parchman officials— Parchman, based on 42 1983and at U.S.C. Childs, Peeks, either and Abril—were found tort claims. A three-week pendent state negligent by jury guilty the or not not partially jury deadlocked trial ended with a greater ordinary negli- than misconduct agreement only was reach on able to immunity gence. the en- qualified Because special interrogatories 26 of the 36 verdict by employee-defendants the could joyed all jury’s court. The unan- by submitted the simple on the basis of not be overcome questions prove swered crucial to could court negligence, the district appeal. of all officials entered in favor judgments defendant district court held that the upon based Cook, Collier, Byars but clothed prison employees officials and were special fellow inmates three verdict. The immunity, and could with official Davis, Bogard sued Charles by only finding on damages be held liable —Milton all B. Davis—were James Dougherty, and ordinary negli- culpability greater than willful, injured found to have partial its gence. Although jury defend- those gross negligence; wanton or virtually of the all de- verdict found that judgments performing from the negligent appeal been ants do fendants had Parchman, at had acted their duties against them. subject Bogard color of law under With of some doubts as the notation process deprivations of or cruel and due its captioned post- style, the district court specifi- punishment, jury also unusual the defendant-appel- trial favor of order in cally highest exonerated all but three verdict, judg- and not a as lees a directed

ranking prison employees from miscon- Al- the verdict. notwithstanding ment simple negli- egregious duct more than though request for a directed verdict However, gence. despite efforts several had been denied at favor of the defendants court, unable to reach an was ver- special evidence and close of the agreement interrogatories answers key partial was accepted, dict was manage- top the three asked whether questions jury. remained unanswered -Superintend- prison level ment officials— Because sub- 50(b). See Fed.R.Civ.P. Super- ents Cook and Collier and Assistant was court’s action stance of the district willful, guilty of Byars intendent —were fully party’s rights no apparent gross finally negligence. wanton After order, we style of the do affected verdict, incomplete special accepting nicety of whether the analyze the technical verdict in favor issued a directed trial notwithstanding a verdict. judgment prison officials on the ground all adopt the same simplicity, For we terminol- was having no basis there record as to the order a directed willful, ogy and refer gross neg- wanton submitted ligence question jury. verdict. “Half-trusties,” unarmed, also punished.

I. THE FACTS boys. served The re- primarily as errand A. Organization “gunmen.” as maining were known inmates Prison divided into physically Parchman was Penitentiary The Mississippi State units, important of which separate the most prison Parchman is the in Missis- camps. Only sippi. major At the time incarcerated were residential Parchman, es- operated employees, known the “free four civilian it had been since 1903. sentially as assigned to each worlders” were residential sergeant, camp. They consisted of a who 16,000 Most acres of farm of its land “drivers,” charge camp; was in two cotton, growing soybeans devoted to crops, production supervised transporting other of live- who inmates to and cash stock, swine, milk. poultry Mississippi and work; night from field and one watchman. law to be required financially barracks, camp Each residential contained self-sustaining, Miss.Code Ann. 47-5-1. § separate as “cages,” wings known with for prison expected “operate at a gunmen Twenty thirty trusties. and profit Collier, at cost.” Gates assigned camp. to each trusty shooters were 881, F.Supp. (N.D.Miss.1972).1 Consist- separate a maximum se- Parchman had expectation, ent state law profit with this curity unit, special pun- contained a limited prison employees the number of could sent ishment inmates area where the penitentiary as “at such salaries for Each of the four violating prison rules. Ann. can 47-5-41. afford.” Miss.Code § security wings of maximum unit con- the At the Bogard’s time of incarceration at men, for two with equipped tained 13 cells Parchman, population the inmate numbered mattresses, 1,900. no having in- double a approximately Two-thirds of the metal bunks black, mates prison addition, were and were facilities lavatory a In each and commode. segregated by race. security side of the maximum unit con- cell, tained a 6' x 6' known as “dark security at Discipline and Parchman were windows, no hole.” The dark hole had “trusty through the a system,” maintained commode, lights, form other prison organization by furnishings. of sink or mandated Mississippi prisoners law in which certain A six-inch hole located the middle of the were occupy positions ranging selected to provided concrete for disposition floor boy. from guard armed to errand Miss. See body heavy of A solid wastes. metal door (1972). Code Ann. 47-5-143 In the termi- § specifically closed the law cell. nology prisoners at the prison, of the punishment authorized of the dark hole use top hierarchy of the “inside world” periods twenty-four up hours. shooters,” group a “trusty about 150 Miss.Code Ann. 47-5-145. § with rifles inmate-guards armed and responsibility overall State vested law charged day-to-day guarding of with the and in the hands of control of Parchman came certain un- other inmates. Next prison superintendent. superin- inmates, “trusties,” simply armed known as tendent, penitentiary appointed who prison’s employees assisted the civilian board, exclusively “responsible for the in various custodial and administrative ca- management prison system of affairs of the pacities. medicine, “Hallboys” distributed care, treatment, and for proper feeding, mail, delivered and files. maintained clothing management prisoners.” “cage “Floorwalkers” bosses” were Miss.Code Ann. 47-5-23. An assistant charged discipline enforcing and main- taining barracks; superintendent superintendent peace in the assisted on recommendation inmates could be in his duties. Collier, (N.D.Miss. tions at Gates v. Parchman. Gates is discussed 1972), 1974), length 11(A) opinion. aff’d 501 F.2d 1291 was a prisoners’ challenging class action suit condi- Camp Bogard was gun At Two wound. Punishments Injuries and Bogard’s B. hallboy, job in a appointed position to the at Parchman camp’s performed duties which he Bogard William twenty-two-year-old A Peeks. T. T. sergeant, defendant con- Parchman in March arrived at daily roll assisting with included duties robbery sentenced armed victed of records, keeping dis- call, reports, preparing Three years’ imprisonment. twenty-five handling mail. medication and pensing paraplegic Bo- permanently years later a clemency capacity in his gard Bogard, left Parchman on July allegations of Camp Sergeant his Peeks Governor. divides hallboy, informed injury categories: a rifle wound into three had sew- camp’s inmates one of the February “cage” inflicted shooter possession ing machine 25,1971, inflicted a knife wound fellow de- inmate was camp That —the barracks. 7,1972, and various summa- July inmate on Davis, one B. fendant James “Slicker” times ry imposed at different punishments gunman prisoners. Ser- regular camp’s throughout his confinement. go into geant Bogard to Peeks ordered sewing Davis’ cage area remove Slicker shooting incident At the time of machine; obeyed the order. Sever- 25,1971, February Bogard was incarcerated Davis, with a armed al hours later Slicker It Camp Eight at Parchman. at residential slaughter- boning from knife obtained morning prisoners was a cold worked, Bogard in he stabbed house where camp demanding that the Camp Eight were Bogard with such the back. Davis struck Childs, provide Fred sergeant, defendant off of the knife broke force that the blade clothing. When their them with warmer Bogard’s back. inside denied, staged a request was the inmates “buck,” striking a refusal to work. prison infirma- Bogard to the was carried inmates, ordered to including Bogard, were disa- attending doctors ry, where the two Unit, and a truck Security the Maximum he should be immedi- greed as to whether transport summoned them. was to prison. hospital outside ately sent to Bogard out send the truck It decided not to prison procedure,

Pursuant was Parchman; a shot of Demerol camp’s “gunline,” given he parked was outside of the was attempts of the perimeter imaginary began an line on the and the doctors An camp by markers. unauthor- blade that was identified portion remove the was considered crossing gunline ized spine. blade was implanted still in his embedded; an be thwarted escape attempt and could deeply shape and irregular in gunline and by gunfire. safely To cross failed, attempts to extract after several truck, had to be “hol- prisoner board the as- asked an attending doctors one of the the line. to cross lered out”—authorized in strongest prisoner to find the sistant infirmary. bring area and him to Camp Sergeant Childs and shoot- inmate of notorious an Stapleton, “Boss” su- Dougherty and Milton Davis were ers strength, Staple- physical was summoned. pervising loading. Parchman’s Chief with a grasped edge of the blade ton Officer, Vanlanding- Leland Security Jay lifting began pull, Bogard’s clamp and ham, standing nearby. Bogard and efforts, repeated body off of table ordered prisoners several other were the blade came free. finally until Sergeant gunline and Childs cross the moved slow- board the truck. The inmates the Parchman infir- Bogard remained Da- ly. hurry up, trusty To them shooters transfer- was then mary days, for three and four five rifle Dougherty vis and fired MississippiMedical University red Bogard in shots. bullet struck One Mississippi. At the Uni- Jackson, Center one month. hospitalized foot. He was that the Hospital it was determined versity Bogard’s spinal incident, severed Bogard knife blade had Following shooting rendering him a completely, fa- cord almost disability was transferred to Parchman’s August Two, permanent On recuperate paraplegic. from his cility, Camp Parchman; Mississippi suspended curity Byars, at Governor Officer Jack Parchman; remainder of Bogard’s Superintendent sentence and he was Assistant Cook, Parchman Harvey, Superintendent to his Thomas parents’ taken home in Illi- 1972; Collier, February until and John nois. Superintendent at Parchman from Febru- surrounding Unlike the circumstances Bo- ary 14, 1972, through the end of gard’s injuries, shooting stabbing as a defendant custody. Also named summary punish- facts concerning various Fidelity Guaranty United States Bogard ments inflicted against Parch- fidelity its Company, virtue of undertak- man disputed prac- are and unclear. The ings Superintendents Collier, Cook and Bogard imprisonment tices are complains of Superintendent Byars. Assistant hole,” punishment” in the “dark “coke crate specific Bogard’s complaint contained al- (being long period forced to for a stand intentional, legations grossly negligent box), time on small the shaving wooden and negligent misconduct on the sheep shears, his head with and confine- particular various defendants in relation to periods ment for varying of time in the events stabbing shooting such as the Maximum Security punishment Unit’s cell. incidents, generalized as well as more alle- It undisputed was in fact gations concerning recurring prac- certain punishment confined both the cells and tices prison. and events at the theAs trial dark hole of the Security Maximum Unit on it, phrased plaintiff placed “the occasions, several and that it was common controversy, responded and the defendants practice to shave the heads of inmates con- to, practically every operation facet of the fined the dark hole. Testimony as to of the Mississippi Penitentiary at State whether given crate pun- “coke years during through clear, ishment” is completely although 1972.” 405 at 1206. The defend- the record does reveal that the coke crate ants at the management level of punishment was used from time to time to Collier, (primarily Byars) Cook discipline inmates. Because the exact na- alleged to have exhibited “callous indiffer- summary ture of these punishments and the prisoners” to the treatment of through ence extent to which different defendants were the “knowing sustained and maintenance of aware of or sanctioned their are use issues bad practices and customs.” Prison offi- to central the disposition appeal, of this cials failing were accused of compe- to hire more exacting discussion of the evidence guards number, tent in civilian sufficient concerning summary punishments is re- providing adequate medical facilities or served for Part of IV this opinion. competent personnel, failing medical to properly classify prisoners trusty shoot- C. The Trial status, er acquiescing in the consistent use Bogard brought his suit for damages of by trusty rifle fire to shooters control Davis, inmates, Slicker the gunman other failing inmate to take to steps elimi- him; who stabbed widespread Charles nate the Dougherty possession weapons and Davis, in Milton trusty general segre- the two inmate the population, inmate shoot- ers gating dangerous prisoners who fired the violent rifle shots and that resulted in general population, requir- his from the gunshot 25, 1971; inmate February wound of ing in unarmed to assist the Sergeant Peeks, T. half-trusties T. sergeant the in allowing control of prisoners, violent the charge of Camp Bogard Two when was punitive isolation indiscriminate and disci- there; Sergeant Childs, stabbed Fred the maintaining plining inmates, indecent sergeant Eight in charge Camp who su- in cells and punishment conditions the dark pervised the loading truck there when Bo- Unit, hole Security of the Maximum and gard shot; Abril, was Dr. Hernando the segregating prisoners race. Medical Director at who treated Bogard for his shooting and stabbing inju- by Bogard The trial was an largely effort ries; Jay Leland Vanlandingham, Chief to general complaints Se- his connect about the explanations charge and on the unanswered of Parch- operation prison management’s jury to the back for injuries. interrogatories, the and sent specific man to Relative his re- process alleged that This incident, Su- further deliberation. shooting Bogard some additional Superin- peated and perintendent Assistant several times Cook and back, after four but brought reckless in negligent or answers were Byars tendent it the court prodding by Dough- days of delicate Davis and Charles allowing Milton shooters, not reach jury could because that the became clear to serve as erty more than twen- agreement sufficient in- appointed without unanimous they were thirty-six issues submitted. ty-six of the backgrounds and vestigation into their the trial parties assign error of the qualifications. Bogard alleged that Cook None incomplete verdict. acquiesced acceptance court’s of an of and Byars were aware inmate use of rifle fire type defendant, jury asked As each place day on the trusty shooters that took questions separate in a series of three prac- to correct such he was shot but failed negli- (1) had been the defendant whether tices, hiring both negligent and were duties, negligence was gent (2) Vanlandingham Childs work injuries, proximate cause of stabbing, Bo- Regarding Parchman. willful, wanton (3) negligence failure gard alleged that was the further is room for some there gross. While (who Superintendent recently Collier had logic special confusion both in Cook) classi- replaced Byars properly jury’s answers and in questions verdict according propensities fy inmates to their them, verdict as estab- we construe violence, half-trusty use and their both fact suffered lishing prisoners Bogard to assist such as injuries in constitutional and common law such as supervision control and inmates punishments, summary the form of Davis, vicious led Davis’ Slicker stabbing, all of shooting, but that claimed that the Finally, Bogard attack. Cook, except Col- employee defendants were aware of and sanc- officials Byars lier and were found subjection to coke unjustified tioned his scope acted within the crate, hole, Security Maximum dark We further con- immunity on all counts. punishments. Unit gross jury’s failure to resolve the strue the Cook, questions regard negligence asserted that conduct Byars as a failure to resolve Collier and eighth defendants violated his amendment qualified immunity defense on all and unusual right to be free from cruel counts. punishment, and his fourteenth amendment right deprivations liberty from be free all virtually capsule, jury found process. All of the defendants without due being Peeks (Sergeant the defendants same conduct in a were also sued for the in their duties. negligent exception) sole pendent Mississippi tort law. claim under defendants, inmate However, only two Dougherty, were Davis and shooters Incomplete

D. The Verdict willfully grossly, or wan- specifically found decided tonly negligent. jury explicitly Pre- person jury. The trial was to six prison em- weeks. At the lower and middle level of evidence took three that sentation Childs—were court and ployees Vanlandingham the conclusion of the evidence the — negli- willfully, wantonly grossly, thirty-six verdict with prepared special gross, deliberation, alleged willful or gent. As to the day’s After a interrogatories.2 management lev- negligence of the jury was informed that the had wanton the court Cook, Byars el Collier and eighteen questions, but was answered officials— —the Byars jury agree. could not Cook deadlocked on the others. The court ac- subjected Bogard to cruel answers, repeated have cepted the found to eighteen them, printed appendix Interrogatories complete is district A of the 36 sub- 2. list opinion. F.Supp. jury’s response jury, 1218-21. mitted court’s punishment, unusual and all governing granting defendants dard of a directed save Vanlandingham and Dr. Abril were Co., Boeing Ship set verdict forth in process. found to deprived him of due man, 1969). After F.2d 365 The total jury against awards all defend- matter, due deliberation on the the court $500,000.3 ants amounted to opinion a verdict should have been this directed on issue in favor

E. The District Court’s Action during defendants aforementioned In its Opinion Memorandum of November the course of the trial. 11, 1975,the granted district court directed verdicts in favor all defendants except Bogard appeals the district court’s from gunman inmate Slicker Davis and trusty entry verdicts, claiming of these directed shooters Dougherty. Milton Davis and that under both state and federal law the controlling legal principle in the district qualified defendants are not to a entitled court’s decision was that the employ- defense, immunity the trial court eval- ees were qualified official entitled im- a. liability uated under defendant’s an in- munity defense both under 42 U.S.C. 1983 care, correct standard of and that no direct- and Mississippi tort law. This shield of ed justified. verdict was held, immunity, the court can be pierced only showing on a of misconduct II. PRELIMINARY ISSUES more egregious ordinary negligence. than Guided principle, judgment this in favor A. The Effect of v. Collier Gates of Sergeants Peeks and Childs Security litigation is This first lawsuit Officer Vanlandingham followed as mat- concerning practices conditions and at course, ter of since the specifically Parchman which William has found willful, that their conduct was not participated been involved. Bogard as a gross. wanton or As to the manage- three member of the plaintiff class in Gates ment level Cook, Collier and defendants — Collier, 349 F.Supp. (N.D.Miss.1972) Byars granted post-trial directed —the aff’d 501 F.2d 1291 Because verdicts in language: some overlap liti- exists between matters Disposition judice the motions sub gated suit, present Gates and the both given has the court cause carefully sides now Gates attempt to invoke for their consider the evidence introduced trial. attempts own benefit. to use the Upon reflection, mature the court has collateral of Gates estoppel effects to estab- concluded presented evidence on favor, lish facts in while defendants the issue Cook, of whether the defendants claim entire suit is barred Collier, wilful, Byars acted in a wan- judicata. Gates as res ton, negligent or grossly manner con- nection shooting with the Gates was stabbing brought a class action in 1971 injuries to plaintiff and the behalf of prisoners claims con- all cerning plaintiff’s Williams, violations consti- John Bell then Governor rights tutional of Mississippi, insufficient to create State Peniten- jury a question on Board, those points. tiary Collier, and John one of the reaching determination, the court has present defendants, Superintendent then attempted strictly to adhere to the stan- sought Parchman.4 suit equitable re- Interrogatory jury jury found, addition, number 36 $20,- asked the what tration. The that damages compensate Bogard would compensate Bogard shooting his var- for 000 would for his injuries. $20,- ious injury $400,000 compensate awarded and would him for compensation 000 stabbing for injury. his cruel unusual and punishments $20,000 deprivations and for his process during due the Cook administration Superin- 4. Thomas Cook was defendant Parchman, $20,000 and another for cruel and original complaint; tendent Collier was punishments $20,000 depriva- unusual and for Superintend- substituted when he over as took process during tions of due Collier’s adminis- ent.

407 that court found injunctive relief. The first, eighth, thir- lief from violations unconstitutionally segregat- 42 amendments and teenth and fourteenth 1981, 1983, prison race, housing and 1994. The units at the 1985 ed U.S.C. §§ had complaint alleged that the defendants habitation under were “unfit for human segregated facilities and uncon- prison decency” maintained concept of any modern race, adequate housing, provide “subjected to stitutional, failed that the defendants and medi- systems, sewage disposal, water and unusual to cruel population the inmate re- care, inmates’ cal interfered with provide adequate by failing punishment protect prisoners mail, neglected to ceipt of assaults, abuses, physical protection against per- prisoners, from assault from other inmates,” of other indignities and cruelties disciplined or inadequately mitted trained “subjected to constitu- inmates were punishment inflict armed shooters punish- and unusual tionally cruel forbidden U.S.C. Pursuant on other inmates. in . have been confined ment when 2000h-2, Attorney Gen- the United States naked, any hygienic without hole cells dark in the suit. plaintiff eral intervened as heat,” food or materials, bedding, adequate procedures at Parchman punishment as a Gates The district court certified require- action, with minimal (b)(2) comport class and failed to 23(b)(1) Rule process, sent to all inmate mail of the suit be and that directed that notice ments of due copy individual Parchman inmates. An The dis- unconstitutionally censored. given injunc- each defendant at notice then ordered extensive trict court Parchman, Bogard, including William of ra- relief, including elimination tive copies at various lo- posted additional of a classifica- segregation, cial institution throughout prison. The notice cations non- system segregate violent from tion listed and condi- practices first the various of both inmates, implementation violent were contained in tions at Parchman that construction long range plans short and laundry alleged complaint. list This sanitation, sewage, housing, decent by a section cap- abuses was then followed facilities, and commence- water and medical Lawsuit,” That Rights tioned “Your of the trusty “rapid ment of a elimination would be inmates explained section 887, 898. This system.” F.Supp. at litigation the Gates bound the results in court’s actions in the district court affirmed request for exclusion they signed unless as its own the lower adopting entirety, that: from the suit. It also stated conclusions of findings fact and court’s complaints If about you have additional 1291,1322. law. 501 F.2d treatment at your conditions or own present reason that the The defendants Parchman, your own attor- you may have Bo- judicata is as res because suit barred you, you may rep- ney represent his claims for dam- gard brought could yourself, may your send you resent litigation, and his Gates age relief attorneys plaintiff in- complaints rule do violates the failure to so mates listed above. Wright, “splitting a of action.” See cause not seek exclusion from the Bogard did 78; McConnell Law of Federal Courts § 380 other although Gates some litigation, Co., F.2d Indemnity Travelers opt out. inmates at Parchman did placed Particular reliance actually proceedings, testified in the Gates Rizzo, Union Prisoner’s International injured foot photographs Rizzowas a (E.D.Pa.1973). At a hear- evidence. were introduced into prisoners of the Philadel- brought by suit 1971, Bogard stated ing July in Gates in phia against various County Prison plaintiff under oath that he was seeking injunctive and city officials litigation. Gates violations for constitutional monetary relief inadequate prison stemming alleged court from 20, 1972, the district On October Gates, facilities, disciplinary practices, improper granting in opinion issued its and mail medical care lack of sufficient declaratory and plaintiff sweeping inmates was introduced the Gates trial. How- Prior commencement censorship. to the of action, prisoners ever, their federal court at the that at Parch- we conclude inmates a Philadelphia prison maintained class class had from the man not have surmised could seeking only injunctive action relief from they in that action notice sent them Gates practices Pennsylvania the same in in monetary a state relief required seek Gates, Furthermore, court. In a fashion similar to opt that suit or we have out. Pennsylvania state court after extensive knowing that would have way no Gates injunctive proceedings ordered substantial as a action if indi- manageable been class relief for myriad violations constitutional damage requested. vidual relief had been and state law. The federal district court judicata Principles of res are not ironclad. plaintiff prisoners decided that the in the I B Moore’s Federal Practice 10.405[1]. case before it were members of the class of res frequently This court has stated that suit, plaintiffs perfunctori- in judicata applied will it not be when contra ly all dismissed the claims before it for g., important public policy. venes an E. injunctive declaratory relief. dis- States, F.2d Johnson United trict court then held that the claims for 1978); Giarrusso, 571 Garner v. damages brought part could have as been 1330, 1336 very At F.2d suit, the state and therefore were barred on least, Bogard’s claims are sufficient that principle plaintiff “a must recover they that not be gravity require extin damages arising given operative all from guished by his status in Gates unless class single facts in a action when the first forum can reasonably that be assumed ability has the give sought relief in possibility have aware of the should been second forum.” at 810. they in that presented that could been have reasoning is inappropriate Rizzo in suit. litigation. agree instant We with the by Bogard While notice received conclusion of the district that this suit clearly the other class inmates at Parchman judicata is not principles. barred res apprised rights them of a suit seek- their Bogard’s stabbing injury occurred ing equitable pris- reform 7,1972, July on two months after the record on, prisoners it was insufficient to alert was closed in Gates. The district court’s possibility that could seek individu- findings September were not released until money al damages personal wrongs. for judgment and the actual not rendered until The sought relief in one sen- described October of 1972. The defendants neverthe tence: “Plaintiff inmates ask the Court to argue less that should have had the prison order officials to correct all record reopened damage had claim alleged quoted por- conditions above.” The litigated of the class action. To Rights tion section “Your impose obligation Bogard such an would that Lawsuit” told them additional com- in effect impose a three-month statute of plaints personal about conditions Bogard’s stabbing limitations on claim. It presented. treatment The defend- could be would bar to a prisoner forever relief be Governor, ants listed in the notice—the cause he did class suit action Board, Superintend- Penitentiary that essentially had been for concluded two ent—were because named as defendants reopened during months the time he was power practices to amend the at the recovering physical from a vicious assault prison. never present- Gates was framed or judicata left a paraplegic. him Res monetary nothing ed as a suit relief require does not such result and reason gave any in the notice to the sent inmates forbids it. possible. indication such relief was It

The summary punishments and the application would improper be harsh and shooting Bogard complains hold, did judicata occur of res on the basis of the litigated Gates, however, time to Gates, prisoners notice out for- sent testimony concerning personal those incidents rights feited their redress

409 E. estoppel. invoke collateral (not law this circuit to knowledge that federal lack of States, supra; Poster Mississippi) g., re- Johnson v. United by the followed State Service Screen Exchange, Inc. v. National monetary relief injunctive and quired that 1975). (5th Cir. See Corp., 517 F.2d sought in one action. be Labs, Blonder-Tongue Inc. generally, any certain that by is it means Nor Foundation, 402 U.S. University of Illinois have remained class action would Gates (1971). 313, 1434, 28 L.Ed.2d 788 91 S.Ct. expanded in- it had been manageable if Indeed, findings and having adopted the damages pris- individual clude for claims as this court’s Gates toto conclusions of in Gates was the oners. The real defendant own, straight-forward application stare itself; all of the district preclude reconsideration decisis would (and energy and attention were still court’s prac- of conditions arid constitutionality are) necessarily focused on the broad ex- findings or tices None of at Parchman. panse exposed violations constitutional however, Gates, are outcome- conclusions judicial inter- proper and the dimensions posed by here. The issues determinative them. The abu- required to correct vention immunity defense dilapidated hous- ses at the heart of Gates — nothing in suit set- part of Gates sanitation, ing, inadequate food and medical litigation— in this tled critical matters facilities, mail censor- segregation, racial objective bad faith the existence of either system ship, and the entire —-were to cause harm on subjective intent prisoners as a and affected the broad-based part individual defendants. community. relief, damage Claims for individual B. The of Limitations Statute contrast, separate required have would argue Bo The defendants also Because dam- prisoner. mini-trials for each was barred the statute gard’s suit sought been age only relief could provides No statute limitations. federal capacity, officials their individual period for actions limitation based qualified immunity problem would courts therefore 1983. Federal § U.S.C. injected have been into the suit.5 The bad period for analo apply the state limitation faith or malicious intent of defendants in which the gous actions in the state action as to claim of each individu- each individual 1988; Ingram v. Steven arose. U.S.C. prisoner required adjudica- al would have 1261-62 547 F.2d Corp., Robert Significantly, tion. the district period of limita applicable 23(b)(1) (2) certified as a Rule Gates would have tions which the state is that action, action, (b)(3) class and not for similar relief enforced had an action proper if would have been the classification brought court. been Sewell damage joinder of individual claims had all Lodge Ass’n of & Aero of Int. Mach. Grand cert, sought. Given the lack of common been 1971), Wkrs., 445 F.2d claims, of those questions many of fact as to denied, 92 S.Ct. U.S. had unmanageability of the suit L.Ed.2d 674. included, we been cannot believe Appellees urge Mississippi’s court would have allowed district one-year of limitations for certain statute they had claims as of that action if apply to should intentional torts possible. recognized potentially been as claims, for but the barring thus relief all regarded pre- Gates therefore cannot 7,1972. Mississip July stabbing incident of cluding the instant suit. reads: pi’s of limitations one-year statute hand, assault, on the other and bat-

Bogard may, assault All actions mali- findings imprisonment, in Gates in maiming, avail false tery, himself menace, all actions arrest, facts in the establishing background certain cious concerning required per- Mutuality is not words instant suit. slanderous III, Part infra. See 410 libels, ties, against title, the suit the defendants be- shall be com-

son or and for year within one next after State against menced comes in effect a suit accrued, plaintiff not The Mississippi.6 argues cause of such action further paid be after. that because jury’s award would by the itself if the defendants are State one-year Miss.Code 15-1-35. The limita- § the defense liable in capacities, their official however, qualified, by is period tion Missis- longer no qualified immunity would be 15-1-61, sippi tolls the Code stat- § applicable. ute period of limitations those in Bo- gard’s of the circumstance in most above argument plaintiff’s The flaw actions: this is action may that he not maintain any person bring If an ac- entitled Mississippi. against Retrospec State assault, and battery, assault tion for a state against tive relief is monetary shall, maiming, the cause at the time eleventh amendment. Edel by barred accrued, been in custody such action 651, Jordan, 1347, 94 S.Ct. man v. 415 U.S. convict, may bring person as a such such (1974). plaintiff 39 The con 662 L.Ed.2d year action within one after his release. Supreme tends that recent Court deci apply period Since we the same limitation York, sion in v. New Monell Soc. Serv. of apply, tolling that the would State sec- 658, 2018, 98 56 436 U.S. S.Ct. L.Ed.2d tion limitations scheme (1978), abrogated 611 state’s elev has must borrowed along substan- enth it is immunity amendment when sued tive provision. The defendants attempt pursuant Nothing to 42 U.S.C. 1983. § the tolling circumvent statute character- Monell, however, The goes that far. Su izing Bogard’s “menace,” suit as one preme explicitly noted that its Monell Court subject one-year which is to the limitation government holding was “limited to local period among is but not listed as the actions units which are not considered tolled in Bogard’s § 15-1-61. suit is not purposes.” state for eleventh amendment “menace,” one for action is custom- 690, 98 436 U.S. S.Ct. at 2035 36 n. 54. arily defined. See v. Dennis Travelers Ins. y, also v. See Hutto U.S. Finne Co., 624, (Miss.1970); 234 626 57 So.2d C.J.S. 2565, 2580 81, 98 L.Ed.2d S.Ct. 57 522 (1948). p. Menace 1048 His action is more (Brennan, J., (1978) concurring). Monell akin maiming, to assault or both tolled did not Edelman v. Jordan and discuss did -1-61, under 15 or an sounding action may it. overrule Since negligence, which is Mississippi’s covered state, maintain against this suit he may general six-year period. limitation 1 §15 recovery seek from the defendants as suit is therefore not barred that capacity, qualified individuals. In by any applicable statute of limitations. immunity fully is applicable. defense C. The Eleventh Amendment and Mo- nell QUALIFIED III. IMMUNITY plaintiff brought against suit A. Law Federal Parchman defendants both their individ- ual capacities. 555, and official Insofar Navarette, as the Procuiner 434 U.S. defendants are sued in 98 855, their individual ca- (1978), S.Ct. 55 24 L.Ed.2d Su- pacities they enjoy qualified immunity preme officials Court held that sued defense, IV, and as we Part hold in under 42 to the 1983 were entitled U.S.C. § defense liability previ- absolves them of individual had immunity defense that plaintiff maintains, this Rhodes, case. how- ously recognized been in Scheuer ever, 1683, that when sued official capaci- 232, in their 94 40 L.Ed.2d U.S. S.Ct. Giles, 1166, plaintiff 6. The states in his brief insofar as den v. F.2d 1173-76 against 1976) (suit seeking suit the defendants their offi- tuition for out refund capacities, against Mississippi cial is in effect a suit State “case state sity Univer- resident against Jagnan- itself). Mississippi.” the State of See held to be State brought (1975). Navarette (state university president S.Ct. (1974) governor, formulation members) and Wood v. Wood guard objective part and national Strickland, lan- 95 S.Ct. 420 U.S. forward without alteration members). (1975)(school board L.Ed.2d 214 guage: Donaldson, 422 U.S. v. See also O’Connor v. Under first the Wood of 2486, (1975) 396 563, 45 L.Ed.2d 95 S.Ct. rule, immunity defense Strickland hospital). of state (superintendent if the petitioners unavailing would be allegedly infringed by right constitutional sued for In state officials Scheuer at the time clearly in- them was established damages under section 1983 conduct, if knew challenged shootings on the Kent State of their volvement right during Viet anti- of that and if University campus Nam or should have known Supreme Court war demonstration. known that they knew or should have immunity is available qualified held that a their conduct violated the constitutional officers, scope increasing in to executive norm. discretion with the breadth of officer’s at 98 860. S.Ct. Curry, v. responsibilities. See Slavin that of the of Under second branch 574 F.2d 1256 Cir. The court doctrine, immunity an official forfeits ficial immunity predicated is on stated that the immunity, objective his if whatever the grounds of “the existence reasonable conduct, his at of state of the law the time time” of official’s belief formed at the plain subjective to harm intent was good-faith belief” that “coupled action with Navarette, how language tiff. There is 247-48,

the action 416 U.S. at proper. scope of ever, appears to broaden at S.Ct. 1692. subjective immunity Wood’s official under v. clarified Scheuer Wood Strickland Wood, of official prong. language by establishing a test for mea defense dual official immunity lost when an would be qualified suring immunity the existence of “with intention to cause acted the malicious requires objective which both an and sub rights or oth deprivation of constitutional jective measurement of official conduct. plaintiff. er at 1001. injury” to the S.Ct. 1210, 1214(5th Jones, Bryan See 530 F.2d However, definitively not estab Wood did 1976) (en banc). objective Under egre lish the extent which conduct less Wood, official, even if he test of an harm— gious than an affirmative intent to subjective acting in belief the sincere negligence, gross negligence or reck simple doing right, he is his cloak of loses subjective satisfy lessness—would “ma immunity “settled, if his actions contravene ap requirement. Navarette licious intent” indisputable law.” 95 S.Ct. 1000. See pears holding deficiency. to fill in that Williams, Schiff v. 519 F.2d 257 at 261 proof squarely Navarette establishes 1975). Thus, official is liable under an enough pierce of is not simple negligence “if or reasonably section 1983 he knew immunity an under Dicta official’s § should have known that the action he took Court, however, goes much further: his sphere responsibility within of official immunity petitioners’ Neither should rights” would the constitutional violate of under the second defense be overruled Id. 95 at 1001. person affected. S.Ct. stan branch of the Wood v. Strickland objective The fulcrum for this first half of dard, liability authorize would existence, Wood is the at the time of the has acted with “mali where official action, judi clearly official’s established deprive plaintiff cious intention” to action cial decisions that make his unconsti him right a constitutional cause “charged An official is tutional. not part of rule injury.” “other This predicting of constitution the future course injury,” Wood, speaks of “intentional contem al quoting law.” S.Ct. plating conse 547, 557, actor intends the Ray, Pierson 386 U.S. 87 S.Ct. 1213, 1219, (1967); quences his conduct. Restatement 18 L.Ed.2d 288 see also See Donaldson, (Second) Torts, 8A. O’Connor v. 422 U.S. § who, cial although possessed at 862. 8A of the Restate- S.Ct. Section harm, Torts, (Second) ment which the is so dere- intent actual malice or cited, distinguishes between intentional con- lict that he must be treated in his duties duct, to cause in which “the actor desires harmful results if he in fact desired the his act ... consequences time, however, At the same his inaction. consequences believes that the are substan- plaintiff that a show that requires the test it,” and reckless tially certain to result from action, although labeled as the official’s conduct, as defined in in which “the negligent,” “grossly “reckless” or falls actor to cause the harm does intend terms, of those rather the actual intent side conduct, which results from” his but should simple negligence.7 than on the side of “strong probability” realize that there is a that the will The Restatement harm occur. Mississippi Law B. neg- describes the field of conduct between Mississippi No court of the of State ligence and intent as a continuum of actual immunity of en degree has ruled on the 8A, probability. Comment b states: Section penitentiary joyed by officials of the consequences If the actor that the knows by prisoner. damages when sued for We certain, certain, substantially are to or predict Mississippi’s what therefore must act, ahead, goes result from his and still if system would do confronted he if is treated the law as he had in upon past the case before us. Based its produce fact desired to the result. As the decisions, Supreme is that our forecast probability consequences that the will fol- would Mississippi Court of extend decreases, low and becomes less than sub- substantially officials at Parchman stantial certainty, the actor’s conduct los- immunity level of the United same intent, es the character of and becomes Supreme applied in States Court has mere recklessness. Scheuer, Wood and Navarette. light In of the reference Court’s compelling There are reasons for assum- Restatement, we read the malicious in ing intends to extend to prong tent immunity of official defense management at Parchman a level officials require either proof that an official actu degree immunity of with fed- ally coterminous plaintiff, intended to do harm to the which, Mississippi Supreme Court although took an action not eral limits. The intended discretionary nature harm, to do of the produce injury recognized likely was so position that the harm can as in Mor- superintendent’s be characterized sub stantially spirit gan Cook, The (1970), certain to result. of 236 So.2d 749 a habeas the rule as well challenged reaches nonfeasance as corpus prisoner case in which misfeasance. It does not insulate an offi- security maximum his confinement in the pre-Navarette against prison 7. This decisions are Circuit’s valid cause of action officials completely harmonious. In Parker v. McKeith- under § 1983. 97 at does S.Ct. 291. Gamble en, (5th 1974), detract, 488 F.2d however, 553 Cir. Court holding from our allegations gross negligence stated that something required akin to intent to harm is sufficient to sustain a action on 1983 facts satisfy subjective assay § of the similar to the instant case. See also Roberts v. immunity defense. “Deliberate indifference” Williams, (5th 456 F.2d 819 Cir. spoken the Gamble court as constitu- Waller, (5th 1974), Burton v. however, 502 F.2d 1261 Cir. ting “unnecessary and wanton infliction of regarded open. the issue was as 502 pain.” Id. at 291. The Court states that such prior prece- F.2d at 1274 n.6A. Whatever our may by “prison indifference be manifested dent, yield it must of course to Navarette’s guards intentionally delaying denying ac- clarification. intentionally interfering cess to medical care or Supreme pre-Navarette The Court’s decision prescribed.” (em- with the treatment once Id. Gamble, in Estelle v. 429 U.S. 97 S.Ct. Colman, phasis added.) In Dickson v. 569 F.2d (1976) 50 L.Ed.2d 251 is not inconsistent with Navarette, (5th 1978), citing Cir. a case interpretation Gamble, our of Navarette. with- emphasized we indif- that Gamble’s “deliberate discussing qualified immunity, out stated that required ference” standard conduct. deliberate allegations of “deliberate indifference to seri- 569 F.2d at 1311-12. prisoners” ous medical needs of would state a occasions has on several Noting law This Court wing of Parehman. that state guidance in to federal law for deter “the exclusive turned superintendent vests in the offi mining scope liability prison sys- management and control common law exposed cials are under the tem,” that: the court stated Waller, Mississippi. In Burton v. prison not interfere with courts will 1974), a arising suit out F.2d Cir. regulations rules and unless the rules shootings of student at Jackson State deprive the of some fun- clearly prisoner liability campus, we that the College stated oper- right. damental constitutional under 1983 would be the state officials prison ation the enforcement of liability no narrower than broader but no regulations ordinarily its are rules and Mississippi law. 502 F.2d at 1274 and under within the sound discretion determining the liabili Similarly, n.6A. administrator. ty under the common law of state officers Morgan We read as evi- So.2d McShane, Mississippi in Norton Mississippi’s intention to afford dence of 1964), F.2d 855 this Court referred Parehman a discre- Superintendent precedent, citing pre- analogous federal tion limited the constraints fed- Gregorie v. Bid Scheuer decisions such corollary Immunity eral law. is a of discre- dle, (2nd 1949); Spalding 177 F.2d 579 injus- grounded tion. Scheuer Vilas, 483, 631, v. 161 16 S.Ct. 40 L.Ed. U.S. faith, tice, of exposing in the absence of bad 564, (1896) Mateo, v. 360 780 and Barr U.S. liability is an officer to civil when he re- 1335, (1959). 79 3 1434 S.Ct. L.Ed.2d discretion, quired by state to exercise immunity The standard articulated danger and the the threat of such Scheuer, foreign is not Wood and Navarette liability would deter the officer’s willing- to v. Mississippi. the courts of In Stokes energy ness act with decisiveness and Newell, 629, (1936), 542 a 174 Miss. 165 So. 232, execution of his office. 416 U.S. 94 alleged junior that she principal high school 1683, Thus, Morgan argues S.Ct. 1688. for board wrongfully by fired the school Indeed, Mississippi immunity. broad could unlawful, willful, personal, “arbitrary, hope demandingly important fill 165 543. political motives.” So.2d compe- with supervisory posts at Parehman upheld Court Supreme Mississippi holding personnel tent out to those without stating: complaint, sufficiency of her protection equivalent a measure of officials are not liable for officers It is true that to the federal standard. discretionary pow- the honest exercise of Against backdrop of Parchman’s un- go them, ers but when confided to injustice exposing history, fortunate wrongs and commit powers outside their to ordinary liability Parehman officials civil office, liability. there is under the color of light of the applies special force. willful They given immunity are not from neglect legislature’s intractable con- wrongs acts. or malicious cerning conditions penitentiary, Mississippi given has also 165 545. So. at would be anomalous in extreme as- good a faith repeated recognition to defense subject cribe an intention against officials for context of suits prison superintendents its to uninsulated public the misuse of funds. The statement liability simultaneously forcing civil while 574, Lollar, v. 19 So.2d in Barnett 197 Miss. adequate them run Parehman without 748, 749 (1944) typical: resources, staffing. financial facilities is not Having equip its officials At common a officer public failed to law by made manpower to initi- or mistakes him money with either liable for errors reform, judicially or unlikely acting the State in good ate it is faith when scope of quasi officials the national within the judicially would not afford those failing he has been subject to reverse over which immunity standard of matter 1043, 43 Am. given from the inertia 46 C.J. gathered jurisdiction. abuses that had (Public Officers) years governmental idlesse. Jur. 414 Eakin, brought by

See also Cochran v. 203 587 prisoner So.2d heirs of a who died in (Miss.1967); Slater, Golding v. 234 Miss. custody county plain- of a sheriff. The 567, (1958); Poyner 107 So.2d 348 v. Gil- alleged prisoner tiffs had been more, 859, (1935); 171 Miss. 158 922 So.2d deputies beaten sheriff Miller, National Surety v. Miss. Co. 155 hemorrhage. resulting died of a cerebral (1929); Green, 124 251 So. Lincoln v. 111 The procedural court held that errors neces- Miss. (1916).8 171 So. case, sitated a retrial in but offered

Although plaintiff recognizes guidance that a dicta to the trial court on the prisoner form of immunity proper duty does exist un- to the owed law, der Mississippi sheriff, he contends that stating that under Farmer the sher- qualified immunity inapplicable doctrine is duty iff’s is one of reasonable care. The prisons, relying the context of on Farmer rely next decision Farmer was Rob- State, v. (1955), Miss. So.2d Williams, erts (5th 456 F.2d 819 Cir. Durham, Mississippi v. (5th 444 F.2d 152 brought The suit was by prisoner a 1971), Williams, Cir. Roberts v. 456 F.2d 819 county against trusty guard of a farm (5th 1972) Nosser, Cir. and Anderson v. superintendent county of the farm for (5th 1971), F.2d 183 aff’d in and injuries resulting discharge from the of the part, mod’d in 456 F.2d 835 Cir. 1972en guard’s shotgun plaintiff’s into the banc). Farmer, Citing face. the court held that the superintendent county farm

Farmer county was a suit sher- iff, brought duty pris- owed a to the prisoner the widow of a reasonable care who Finally, died custody. while in the sheriff’s oners in his Anderson custody. The complaint alleged Nosser, 1971), found F.2d 183 failed, the sheriff repeated requests, panel after of this court referred to Farmer in to take the prisoner to a doctor to receive prison. context of the Parchman ulcers, treatment for serious stomach pendent one paragraph discussion the sheriff’s failure in resulted the Anderson, however, state claim in was de- prisoner’s death. The Mississippi Supreme panel opinion by leted from the this Court adopted Court position the of Indiana ex banc, sitting procedural en reasons.9 Tyler Gobin, rel. (C.C.Ind. v. 94 F. (1972). 456 F.2d panel deleted 1899), upheld a complaint brought discussion had that the giv- held treatment against a county alleging sheriff that the en rights protestors to civil being detained permitted, sheriff aided and abetted a mob at security Parchman’s maximum unit— in storming jail house, removing the panel treatment that the regarded as viola- prisoner, and publicly lynching him. The eighth tive of both the amendment and due reasoning Tyler, Farmer, in accepted in was process and the en regarded banc court that if at common law a sheriff is bound to “summary punishment without sem- exercise ordinary and reasonable care in the process” Mississippi blance of due violated treatment of goods animals or seized law. Although panel the deleted discussion him, he must great exercise at least as Farmer, Roberts, Mississippi cites level of care in the treatment of human statute prisoners. The concept of official immunity properly requires superintendent prisoners, care for did not artic- was not discussed in the Farmer opinion. ulate any precise standard of care. Since Durham, In State of v. this obviously treatment in Anderson would court was diversity faced with a suit have pierced post-iVavar- even the strictest Mississippi Supreme 8. A recent Court decision. 9. The deletion was made because the issue was Little, (1978) Davis jury, v. 362 So.2d 642 acknowl- not submitted to the and because it “was edged immunity” the existence of a “limited not an ultimate issue in the case.” 435 F.2d at “per- defense in instances in which an official’s 835. requires ‘personal formance of his lawful duties deliberation, judgment’,” citing decision and Prosser, Law of Torts ed. THE IV. DIRECTED no articulation was VERDICT immunity, ette such necessary. in a verdict The district court directed Byars on the Cook, and favor of Collier deci- subsequent Farmer and the three to the rose issue of whether their conduct technically are all at least sions of court willful, gross negligence. level of wanton or suit. from the instant distinguishable immunity is- That verdict on the simply a com- apply and Durham Farmer light of Woodand sue be evaluated in must sheriffs, who applicable law rule are mon subsequent gloss Inquiry of Navarette. relatively care usually charged with the subjective intent of must be made into many pre-trial few of whom are prisoners, Collier, Cook, Byars, objective and and law reference to state detainees. The of their actions when com- reasonableness original opinion was deleted Anderson pared law to the state of constitutional court, by the en banc did set forth a concerning prisoners conditions care, and specific involved mis- standard during period from 1969 toughest conduct sufficient to overcome intent and defenses malicious bad Boeing adopted in Under the standard point. Although 1969), faith. Roberts is most Shipman, 411 F.2d 365 Roberts was in superintendent judgments motions for directed verdict institution charge county-level holding verdict, the court notwithstanding the is less the decision prisoners, than 30 does required to all of the evidence on consider limited past light extend Farmer common all reasonable both sides in the jail county favorably law operating rule sheriffs inferences drawn most There must be a conflict in institutions. non-mover. ques- a jury substantial evidence to create an to divine unarti- seeking Rather than mere tion. A scintilla of evidence is insuffi- prisons county eulated distinction between cient, but directed verdict should all of penitentiary, and a we note that merely by which side the better decided has prior above cases were decided to Scheuer of the case. The court must believe that Rhodes, a time when the doctrine of could not reasonable men arrive at con- qualified immunity appellate its trary verdict. Farmer, infancy. twenty decided jury’s Only implicated Cook years dealing before with a Scheuer shooting, Collier in verdict job radically different from the situation Byars implicat- stabbing; are Cook managing prison, the Parchman would sure- summary punishments.10 ed The evi- in the ly superin- not be to a Parchman applied qualified regarding the defendant’s dence by Mississippi Supreme tendent Court. separately immunity will be discussed In light general acceptance of the of official regard to each claim. law, immunity Mississippi in Supreme acknowledgment explicit Court’s Shooting A. The Morgan in of discretion vest- of breadth day ed Bo superintendent, February in the Parchman im- On Superin shot, Cook was portance Mississippi attracting gard was Thomas compe- of Parchman, at Parchman. Cook was not energetic leadership tent and tendent shooting or intervening authority present at location of the persuasive directly in the incident. progeny, Scheuer and its we have no diffi- sense involved stating Bogard liability on Cook culty attempts defendants are enti- affix injury that his -type qualified immunity shooting by alleging to a for the tled Scheuer properly caused failure to defense under law. Cook’s Byar’s negligence implicated shooting left Parchman. was found Collier or jury summary punishments proximate because those inci- to be a cause leaving assumption shooting stabbing, prior him of- dents occurred to his either summary punish- jury impli- only potentially fice. The was not found that Cook for the liable stabbing, place after cated in the took he ments. trusty guard system administer the in the at 889. It is no less accurate to knowledge by system face of Cook that the deplorable trusty state that the state of the was corrupt, disorderly fraught with system proximate was a cause of Specifically, violence. Bogard cites evi- shooting injury negli- Cook was dence that inmates were selected for the gent performing duty properly job of trusty through system shooter system. jury specifical- administer the payoffs, extortion, favoritism and ly negligent found that in his Cook was those serving selected were often either duties negligence and that Cook’s was a violence, time for mentally crimes of were proximate shooting. cause of the suffering retarded or from psychologi- were liable, personally however, To hold Cook disorders, cal that after selection those cho- Cook’s im- must overcome sen were not trained in the use of firearms held that munity. The there district court proper procedures instructed as to was insufficient to create a jury evidence the handling of an event such as an inmate question guilty on whether Cook “buck,” product and that the ultimate anything negligence. Applying worse than the system was a of incessant regime armed qualified immunity the Navarette formula- trusty violence on the shooters. tion, we agree with the district court that a picture Gates established that directed verdict proper. paints system shooter is an accurate one: The indiscriminate violence of the trusty Penitentiary records indicate shooters at primarily Parchman was many of the armed trusties have been result of factors trusty sys- endemic to the crimes, convicted of violent and that of Although tem itself. proper- could the armed trusties serving April as of ly have found that failings Cook’s as an 1971, 35% had not been psychologically administrator an already exacerbated cor- tested, 40%of those tested were found to rupt and disorderly system, complici- Cook’s retarded, 71% those tested were ty failing does to correct abuses not rise found to have personality disorders. conduct, to the level of reckless and certain- There is program no formal at Parchman ly falls short of the malicious intent re- for training they are in- trusties and quired by Wood and Navarette. At the structed to maintain discipline by shoot- administration, time of Cook’s state law ing at get gun inmates who out superintendent restricted 150 civilian line; cases, in many trusties have re- employees operate with whom to prison, training ceived little handling about 30 of those employees could have, many firearms. Inmates occa- feasibly be allocated to the actual work of sions, injuries suffered and abuses as a guarding The nearly inmates.11 2000 felons select, result of train, the failure to su- housed at crammed in run- pervise and maintain an adequate custo- down and unsanitary quarters, and the su- dial staff. Trusties have abused their perintendent had no funds or authorization position to engage in loan-sharking, ex- explosive alleviate those physical condi- tortion and other illegal conduct in deal- required tions. law State Cook to use in- ing with subject inmates to their authori- inmates, guard mates to other legis- but the ty and control. The evidence indicates appropriated lature money obtaining no for

that the use of trusties who exercise au- the necessary staffing expertise or to psy- thority over fellow inmates has estab- chologically position. test inmates for the lished patterns physical intolerable of physical The separation of the example, during mistreatment. For residential the administration, Cook camps necessitated that 30 inmates actual day-to-day received gunshot wounds, supervision an prisoners additional 29 of inmates be committed to at, were shot and 52 physically inmates the camp sergeants, residential and that beaten. trusty selection for status and demotions to (1942),

11. The restriction was codified at Miss.Code (1972). now § 47-5-41 Stabbing in B. gunman placed largely be level Corruption hands. and violence within stabbing of Davis’ vicious Slicker system at Parchman were en- 7,1972, Bogard’s like shoot Bogard July on by operation trenched of under these years Parch- ing of is more indictment injury, an conditions. personal man of involve itself than a result prob- only meaningful solution Bogard at ment by supervisors. its total trusty system lems of the was liability Superin of tempts to establish the elimination, result ordered Gates. If asserting that Collier by tendent Collier disposal his Cook had had at means to metal detec either employed should have but failed to system eliminate violent do to eliminate frequent body tors or searches so, clearly jury make failure would by inmates of possession the widespread it as to amounted issue whether knife, Davis’ weapons as Slicker such malicious intent described Navarette. segre provided Collier have should only But Cook was not unauthorized to gation violent inmates such as of Slicker reform that would institute Bogard, Davis inmates from nonviolent like likely type shooting of been to eliminate and that should not have been re by largely he unable Bogard, suffered was quired half-trusty of as as his duties any meaningful step. to take intermediate supervise Davis inmates such Slicker Proper adequate training selection and pre an when such contact was obvious and delegated trusty shooters at Parchman was and violence. dictable source of resentment necessity If camp sergeants. Cook do he could with what he failed to the best shooting, As the causa- in the case of the had, largely his failure was admitted stabbing are tive for his factors lists sergeants. lack of those In his control over disputing essentially accurate. There no each acknowledged brief Cook ser- widespread possession existence “was like a of a geant sepa- almost warden Parchman, the failure to weaponry at unit,” sergeants rate and that or from violent insulate the nonviolent independence and “re- protective of their disturbed, charged atmosphere from the administration sented interference resentment, suspicion and retaliation that building.” Although found that charge by putting created inmates in Sergeant Camp Eight Childs at other it was that: inmates. stated Gates in his grossly negligent duties—a factor properly failed to Defendants have that tends assertion to blunt barracks, classify assign inmates to negligent delegating grossly Cook responsibility resulting intermingling to him—the record and the of inmates findings support Gates the inference that crimes aggravated convicted of violent camp was the tyranny it unbridled ser- first offenders or with those who are geants Parchman that fueled much of crimes. . convicted nonviolent Yet, given the violence the financial there. possess knives many inmates Although resources limitations the number of weapons, there is no or other handmade hire, guards superin- he could Parchman procedure or requirement established high little to hire tendent could do more to discover such conducting shakedowns he quality camp sergeants than could to weapons nor is weapons, possession build new trusty system eliminate the reported At 85 in- punished. least housing. Cook’s adminis- Superintendent stances are where revealed record paragon, tration of was not a but assaulted physically inmates have been nothing any- the record showed of these Twenty-seven other inmates. cope thing inability more than an with a attacks in which assaults involved armed situation, hopeless jury which the virtually stabbed, an was cut or shot. inmate either negligent to equated with a failure do as The F.Supp. found have 888-889. good job reasonably as could been negligence done under that Collier’sown was a contrib- these limitations. on his own precipi- Davis initiative stabbing, but it strains when no uting cause to the curb Davis to his at- credibility tating brought that his failures to event had to assert characterized arms, classify certainly tention can not be possession properly inaction inmates, action or trusty system type with the as the away or do well be may subjec- It of a Navarette would condemn. any product were in sense the deficient generally Parchman was tive intent to cause harm. that and in testing of inmates psychological its was no less constrained Collier separa- facilities for physical its lack of to use the being law than Cook in forced or dis- supervision tion and of the violent trusty system. Allowing inmates such as turbed, of all the other but as in the case half-trusty “hallboys” to be used as pri- major shortcomings prison, at Parch- may problems have contributed to itself. mary neglect by cause was the State man, half-trustys if necessary but were Mississippi, with Parchman were to be run. control, weapons there As to the issue of money guards, its limit on mandated testimony weapon posses- that expert help inmates should run own prisons, and that problem sion is a in all require- prison; the resentment which country across the administrators beyond spawned ment was inevitable coping success in have had limited Collier’s control. prisons have installed problem. Some detectors and then airport-style weapons is obvious that it was a hindsight they fail to use because abandoned their and Slicker Davis in put Bogard mistake to possession. significantly weapon reduce clear, however, close contact. It is not as to doubt The record raises a substantial to Col- the mistake can even be attributed detectors, had Collier decid- whether metal lier, definitely it is clear that if it was them, possessed funds ed to use and had he him, in no sense attributable to the mistake them, even been purchase to would have partook Bogard. of an intent to harm at 1211—12. obtainable. See housed, re- Camp where Davis was Frequent physical apparently searches are suffering served from a for those inmates combatting the most effective means of physical age disability or who because of weapon possession, possession a level of but infirmity other unable to otherwise The rec- persists even that method. under perform Parchman’s normal routine of did take weapons ord shows that searches apparently farm work. Davis was Slicker Although place weap- from time time. to of an Camp confined to because infectious widespread possession ons at Parchman already assigned disease. Davis had been taken no effec- appears Collier Camp Super- took over as when Collier control, his fault steps tive bring it under assignment Camp intendent. than a was not worse shown to be prior assumption was also made Collier’s adopt the best choice negligent failure duties, followed as a assignment disposal. at his among the alternatives Bogard’s shooting matter of course after stabbing, injury. Prior to the there were Summary C. The Punishments reports concerning no adverse either Bo- gard brought summary punishments Bogard or Davis which could have attention, complains either man to Collier’s and Collier incarcer types: of were of three had apparently punishment had no contact with either ation in the cell of the maxi experts unit, inmate before that date. mum security Several incarceration in the hole, testified that on the basis of Davis’ punishment. Slicker dark crate coke sepa- file would not have him ordered The incidents all occurred between June of punish rated from other inmates. failure Collier’s 1969 and October of 1970.12 unusual, to examine then segregate Davis’ file and cruel and alleged ments were to be apparently summary Bogard’s shooting injury punishments ceased after 12. The and as- signment Camp the lash. When this action by ment procedural due proper without and inflicted however, place towas begun, practice process. naked, hole without in the dark inmates placed he was in a Bogard alleged that materials, and without often any hygienic wing of the maxi- punishment cell in the customary cut adequate food. It was times, for security unit six different mum in the an confined the hair of inmate at thirty days. On periods from two to heavy-duty clip- dark hole means claims, occasions, he he was least two sheep inmates as pers described placed punish- in the stripped naked when shears, resulted in some cases cell, ment and matter routine he was as a practice in- injury. present Under the per day fed once when confined there. only kept in been frequently mates have allegedly confined in one instance he was may and con- dark hole for hours days for punishment cell three and fed 72 hours. up for fined therein While playing for his once the infraction hole, dark the cell occupies an inmate sepa- four loudly. Bogard radio too asserts cleaned, permit- inmate is not nor is the hole, rate all for confinements dark ted wash himself. in- periods of 24 hours. Each confinement Cook and Although Superintendents having his being stripped cluded naked and prohibit- have issued instructions Collier heavy clippers head duty shaved with the enforcement of ing mistreatment in sheep he characterizes as shears. replete with innu- discipline, the record is subjection complains of to the coke only one physical brutality merable instances of punishment The was al- punishment. crate are inmates who disciplining and abuse camp ordered ser- legedly Security residential sent MSU [Maximum Unit]. pick administering milk of geant for failure to cotton These include punishment, strip- magnesia as form of being fast forced to enough; consisted of clothes, turning the ping inmates of their an top stand on of a coke crate box for wet, and naked fan on inmates while day, days. entire three work for consecutive mattresses, hygenic depriving inmates of alleged These are be cruel punishments food, handcuffing adequate materials and and admin- right, and unusual in their own for long to cells and inmates to the fence disproportionate for offenses petty istered periods time, shooting and around at and severity. to their hole coke dark standing or lying in keep them inmates to crate claimed to have punishments were a cattle using prod yard MSU, and at process been due safe- inflicted without standing moving keep while inmates guards. Indeed, superintendents at MSU. in the record is ample There evidence acquiesced in prison and other officials practices com- punishment punishment procedures. these during the plains of were in routine use period Gates es- 1969—1970 at Parchman. Byars testimony indi- of Cook process in procedural tablished a lack of due fully cates that aware punishments, the use of severe the fact punishment cell of the dark hole nature administered, that, they were the dark punish- those indignities incident to punishment eighth hole and cell violated the heavy clippers, shaving ments. Head explicitly amendment. Gates also found as a by Cook example, was defended oth- superintendent that the Parchman psycho- badge infamy that increased the er acquiesced officials the uncon- hole; strip- logical effectiveness of the dark punishment procedures: stitutional was al- ping punishment of inmates for Mr. the use the dark Cook defended protec- own legedly for the inmates’ done psychological necessary type hole as a testimony Byers tion. admitted obstrep- are punishment inmates who coke crate he was use aware erous, penitentiary violators of obstinate as the as well use of punishment Camp that method in discipline, and favored other residential camp punishments at inflicting corporal preference punish- camps.

420 in- inherently tends to connote an Byars had ishment that Cook and jury

The found pun- does not and unusual The record subjected Bogard to cruel tent to cause harm. process. deprivations Byars ishment and of due that Cook or any assertion support question jury The did not answer subjective malicious desire harbored a injury as Bogard asked whether suffered The individual. “get” Bogard specific as a violations but result of these constitutional inquiry thus re- subjective overall intent $80,000 him a total jury did award what inquiry into quires objective limited a damages process for the due violations known about Byars Cook and should punishments. cruel unusual When the sanc- punishments they legality findings in Gates are jury’s verdict suffered Only punishments if the tioned. combined, that the result is a conclusion in unconstitutional clearly were involved in Byers personally Cook and were Byars that or Cook 1969-1970can it be said subjecting Bogard to constitutional viola- this formulation acted in bad faith. Under tions. issue, it can be immunity qualified immunity issue is more liability of the defendants seen that the summary complex in the context of punishments does not turn summary punishments than in the context of the no issue of jury question at all. Since stabbing shooting. Virtually by defini- particularized malice toward tion, punishments involved infliction of were the present, factual issues subjective intent to cause harm. Cook eighth amendment actual existence Byars punishments knew what the con- process against Bogard due violations —is- of, punishments sisted and in the case of resolved in sues which the hole, personally such as the dark had to should Whether the defendants favor. Harm, authorize each instance of their use. violated the have known conduct that their “teaching in the sense of an inmate a les- that inquiry purely legal constitution is a son,” objective punish- was the obvious appeal. on this may be determined If intent of this sort is ment at Parchman. 1970, yet to be a there In 1969 and subjective prong enough satisfy court, Mississippi of either this decision Navarette, finding Wood and the ultimate Court, the United Supreme States Su- that were unconstitutional punishments could have alerted the preme Court that complete would the establishment of the punishments Bogard defendants liability. defendant’s unconstitutional. At suffered were subjective To define the defendant’s time, generally were still re- federal courts pun- equation mind a mechanical administra- luctant to interfere however, intent, ishment with would ulti- doctrine, off” tion. The so-called “hands mately qualified immunity eliminate de- (1974),usually see 18 A.L.R.Fed. 7 resulted eighth fense in the context of amendment in under federal civil the denial of relief violations. If intent to harm is involved rights practices corporal acts for such as any punishment that later turns out to be segregation, punishment, punitive or harsh unconstitutional, the accomplish effect is to g., confinement conditions. E. Beard v. specifically what prong the first of Wood 1968); 749, Cir. Lee, (5th 751 396 F.2d liability for the imposition forbids: (5th Cir. Russell, Hayes v. 405 F.2d 859 course of con- predict failure to the future Hunt, (5th 1969); 411 F.2d 9 Granville 1001; Wood,95 stitutional law. S.Ct. See 433 1969); Wainwright, F.2d Cir. Flint v. Donaldson, O’Connor 422 U.S. 95 1970). generally cases 962 See 2486, 2495, (1975); L.Ed.2d 396 S.Ct. (1974). 19-21 cited 18 A.L.R.Fed. 547, 557, Ray, Pierson v. 386 U.S. S.Ct. change was in first hint this circuit 1213, 1219, (1967). If Cook 18 L.Ed.2d Beto, came in Novak v. 453 F.2d the wind known in 1969- Byars could not have denied a Texas Novak practices punishment unconstitutional, prisoner’s cruel and unusual they may 1983claim of solitary merely pun- punishment not now be held liable because for incarceration Experts punishments testified that such to the maximum cell similar confinement use were in common at Parch- dark hole security wing’s cell punishment country 1969-1970. prisons around the in No- prisoner man. The was unsuccessful pun- use of acknowledged the national We inti- vak, time but the court for the first in No- Parchman’s ishment cells similar to practices mated that review of confinement Poindexter 453 also vak. F.2d at See pale totally beyond the prisons in were not 464, (10th Cir. Woodman, v. F.2d 465 510 judicial scrutiny and intervention: of solitary of 1975) (noting prevalence in tragic In of the recent incidents view confinement in “strip cell” United States frequent prisons this Nation’s of prisons). Clearly, punish- the dark hole inadequacy penal of our assertions of the procedures long established ment cells weighs judging of systems, the burden all, Perhaps telling most of Parchman. we turn to upon us more than usual as authorized use of expressly law solitary con- appellant’s contention that up to 24 punishment the dark hole the TDC is by finement as administered The de- hours. Miss. Code 47-5-145. punishment cruel and unusual . failing liable for fendants be held cannot lightless deeply are troubled [W]e predict existing state statute would that an cell, bedding, and the minimal the limited constitutionally deficient. be found later solitary in con- prisoners food provided 1166, 1173 Giles, 538 F.2d Jagnanden See v. short, in Texas. (5th 1976). finement law of 1970 Cir. prisoners’ protective not of highly Novak is evidence that 453 F.2d at 665. were reluctant intrude rights and courts of intolerable although awareness national prison domain. into administrator’s beginning to take conditions reasonably cannot The defendants during in which shape the time charged knowledge punish- (see punishments, subjected summary unconsti- practices ment at Parchman were Sarver, (E.D. v. also Holt 300 825 tutional. ready Ark.1969), yet courts were significant way. intervene in 18 See V. CONCLUSION 7, supra, grant Fed. 19-21. The of A.L.R. against Bogard proved his case type prisoner relief in suits of this did not itself, but not the individual defend- E. begin g., in this circuit until 1972. Rocha was not and could not be ants. The state Sowers, (5th 1972); v. 454 F.2d 1155 Cir. Court, however, and it brought before this Beto, Campbell v. 765 460 F.2d justice ends of to fix does serve the Alabama, 1972); v. of 466 Hutchens State em- state’s monetary accountability F.2d 507 also Cruz v. See ad- little than they did more ployees when 1079, Beto, 319, 92 31 L.Ed.2d 405 U.S. S.Ct. of during time positions minister 1974, (1972). It v. 263 was Gates Collier conditions perpetuation of intolerable state however, marked broad-scale first they meaningful control. over which had no supervision in the intervention court in the record The absence of evidence prison practices. officials, by prison malicious intent judicial recognition of still dormant state Supreme Court’s also recorded establishes prisoners’ rights process meaningful of due recognition most official they were entitled the defense McDonnell, Wolff v. rights prisoners which, cor- district court immunity, 2963, 41 L.Ed.2d 935 94 S.Ct. 418 U.S. held, liability. rectly precluded their expressly (1974), Court held that but new should not be pronouncement Wolff’s AFFIRMED. effect. This court’s deci-

given retroactive VANCE, Judge, Concurring in Circuit in Gates affirming sion district Result: the decision abeyance pending was held Collier, Wolff, F.2d at 1295 Gates v. expressed I concur in the result attesting the unsettled (1974), further but I reach that result opinion of the court path. prior slightly that decision. different the law Court fifty years ago Supreme Over America, STATES held, UNITED Plaintiff-Appellee, If the federal are to have courts jurisdiction in class suits to which obviously entitled, are the decree when PARKER, Henry Paul prop- rendered must bind all of the class Defendant-Appellant. erly represented. 76-4190, 77-2198. Nos. Cauble, Supreme Tribe of Ben Hur (1921). U.S. S.Ct. 65 L.Ed. 673 Appeals, Court United States Bogard makes no claim that his interests Fifth Circuit. were not adequately in Gates v. protected Dec. 1978. Collier, F.Supp. (N.D.Miss.1972), Rehearing En Banc aff’d., Rehearing and F.2d 1291 He participant was an active Denied prior case. Feb. legal

Its virtually and factual were bases

identical to those of the case now before the Although

court. the class certification in 23(b)(1)

Gates was under 23(b)(2), Rule members, Bogard,

class including giv

en actual written opportuni notice and the

ty to exclude Judge themselves. As Clark’s out,

opinion points elect class members opt

ed to out but did not make such

an election. Under this state of facts I judicata

would hold that the doctrine of res second, money

bars a damage claim Bo

gard covering the period. gener same See

ally Gonzales v. Cassidy, 474 F.2d 67 1973); International Prisoners’ Union Rizzo, (E.D.Pa.1973). involving stabbing separate claim the evidence

injury, which occurred after Gates, With not barred.

was closed injury that miscon-

respect agree to that I Cook, Byars of the

duct Collier and

quality required overcome proved.

immunity was

Case Details

Case Name: William Hardin Bogard, Jr. v. Thomas D. Cook, Former Superintendent of the Mississippi State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 15, 1978

Citation: 586 F.2d 399

Docket Number: 76-2890

Court Abbreviation: 5th Cir.