James v. United States

• Decision Date: 25 May 1973
• Docket Number: Civ. A. No. 4670.
• Citation: 358 F. Supp. 1381
• Parties: Mary Jane JAMES, Administratrix of the Estate of Howard James v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

358 F. Supp. 1381

Mary Jane JAMES, Administratrix of the Estate of Howard James v. UNITED STATES of America.

Civ. A. No. 4670.

United States District Court, D. Rhode Island.

May 25, 1973.

Leonard Decof, and Max Wistow, Providence, R. I., Moses Kando, Pawtucket, R. I., for plaintiff.

Lincoln C. Almond, U. S. Atty., Everett Sammartino, Asst. U. S. Atty., Providence, R. I., Stephen P. Refsell, U. S. Navy, Quonset Point, R. I., for defendant.

OPINION

PETTINE, Chief Judge.

This non-jury death action was brought under the Federal Tort Claims Act (F.T.C.A.), 28 U.S.C. §§ 1346, 2671, et seq., by the administratrix of the estate of Howard Harrison James, Jr. At the time of his death Howard James was a member of the United States Navy, stationed at Quonset Point, Rhode Island, under arrest and in the custody of the security guard. The action is based on the alleged negligence of the government in failing to train the security personnel, in failing to use due care to provide protection for the decedent while he was under arrest, and in assigning one Curtis Taylor as a member of the security force.

On August 14, 1969 the decedent James, while on the post on leave and in civilian dress, was arrested by Lt. Commander Charles R. Foster, the Command Duty Officer in charge of base security. James was taken to the guard house to be formally charged with disorderly conduct and then to be transported to the dispensary for a sobriety test. In the guard house, Curtis Taylor, a black security guard, was instructed by Foster to execute these orders. Taylor approached James, who was attempting to make a telephone call, and grabbed the phone from James' hand and slammed it down on the cradle. Taylor then ordered James to go to a passageway and "stand by." Present in the guard house at this time in addition to James, were Taylor and two other guards, Robert Goodchild and Mervin Dubree. Each has his own version of what happened.

Dubree stated that the decedent in complying with the order to move to the passageway said "Remember I'm white — I'm not black." At that time Dubree was standing in front of James, facing him. Dubree remembers seeing a hand come over his shoulder striking James in the area of the face and throat. A fight then started. Dubree grabbed James in a "full nelson" — that is, from the rear, he placed his arms under the decedent's arm pits and laced his fingers in the nape of James' neck, thrusting the decedent's head forward, thus completely subduing him. Dubree stated that, "first thing he knew Taylor had a night stick and hit the decedent across the face." James went limp. Dubree, still holding James, then saw a second blow with the night stick coming. In ducking out of the way, Dubree lost his grip on James. James fell to the floor. Nevertheless, Taylor continued to strike hard blows on James' head. He did this "2, 3, 4" times. Dubree further testified that he said to Taylor "That's enough" and tried to stop Taylor. He was unable to do so. Taylor jabbed him with his elbow knocking him backwards. He also remembered seeing Taylor "do something" with his foot to James and saying "Yes — I'm black." Two days later James died as a result of these injuries.

Taylor testified that while in custody James started "mouthing off" racial remarks and when told to stand by said he wasn't going any place with any "nigger." Taylor said that as he tried to grab James, he Taylor was punched and knocked to the floor. This happened three times. On the third time, as he was getting up, he grabbed a night stick from Goodchild's hand and swung it at James. Taylor testified that he has no recall of what happened after that. He further testified he had no intention of hurting James nor of using any "techniques" on him with the night stick.

Goodchild's account is similar to Taylor's excepting for' certain additional facts. He states that James was given the order "All right, let's go," and that after James made the comment of not going with a "nigger," Taylor grabbed him by the collar. It was at this point James first punched Taylor. Dubree tried to get a full Nelson on James as Goodchild was trying to grab him around the head while at the same time pushing his night stick into James' back. It was this night stick that Taylor grabbed. He saw Taylor strike James three times with the night stick; once across the face and twice on the head while he was on the floor. He further stated "Then Taylor stomped James . . ." three or four times on the head and said "`I'm black, you're white. I'm tired of being black,' then threw the night stick down and walked out of the office." After all this James got up — "There was blood all over the place and when he got up his hands were covered with blood so he got blood all over the walls and fell down back."

When Goodchild was asked if he could have stopped Taylor from "further hitting James" he answered, "I understand that Taylor went too far and I am pretty sure I know when he should have stopped. I am not saying that James didn't need subduing, because he did need to be subdued, but I feel I knew when, you know, when they went too far." He stated he felt that point was after the second blow and that he could have stopped Taylor after that but he did not because Taylor was superior in rank and therefore could not be questioned.

Though not alleged in the complaint the plaintiff seeks to show negligence premised on the failure of the government to adequately train personnel assigned to security. In the course of the trial counsel for the plaintiff emphasized the lack of special instructions to the security personnel in the use of a night stick. The facts in this regard need not be labored. It is clear no specialized training was given nor any effort made by the Navy to screen personnel best suited for such duty. Men were assigned to security duty at random and if any instructions were received that they were given "on the job." These were far from adequate. Furthermore, as Lt. Commander Feeney, the Security officer in charge, stated proper training requires formal schooling.

Taylor testified that though assigned to the security section for approximately 16 months he received no special or formal instructions as to the conduct of his duties and more especially as to the use of a night stick. However, he did acknowledge that in conversation with other men it was stated it should never be used to strike any bony part of the body.

The night stick is a typical police club made of a round solid piece of wood 22 inches long. It is of such obvious rigidity and weight one needs no expertise to know that using any reasonably hard force in swinging such an instrument against a human skull will fracture it.

Applying these facts to the plaintiff's formal allegations as embodied in the complaint plaintiff asks this Court to decide whether, "The defendant, through its servants and agents, failed to use due care and negligently failed to provide the proper protection for the decedent while he was under arrest and in custody of the security police," and whether, "The defendant, through its servants and agents, failed to use due care and negligently and carelessly permitted the said Curtis C. Taylor to carry out his attack on the decedent while the said decedent was unarmed and unable to protect himself. The senior petty officer and the officer in charge were negligent in failing to take appropriate steps under the circumstances to prevent the attack by the said Curtis C. Taylor when appropriate and timely action by the senior petty officer and the officer in charge would have prevented the said attack upon the decedent." There is a further allegation that Taylor may have had racist tendencies. This need not be considered for lack of any supportive evidence.

I do find that Taylor used unreasonable and excessive force in subduing James and this resulted in James' death. I find that Goodchild could have stopped or mitigated Taylor's blows after the second blow was given. I accept as true Goodchild's reason for not interfering: deference to a ranking officer.

What is exceedingly difficult is in determining whether government negligence "caused" the conditions which caused the death. There is little evidence of direct causal connection between the asserted negligence of the United States and the death. Indeed, I suppose such a causal connection is quite difficult to firmly establish. Although it seems that any person of reasonable intelligence would know that serious injury would result from hitting a man over the head with a night stick, I find it vexing that no training was given the security personnel. Taylor lost control of himself. Had he been trained he might have retained his self-control or used some non-lethal method of expressing his rage. In an age when police forces are often trained in how to properly respond to confrontations with abusive demonstrators, I must wonder what effect such training would have had on Taylor's behaviour.

Further, I find it difficult to know what responsibility to assign to the government for one of its military personnel not stopping blows rendered by another of its military personnel out of deference to rank, even though he knew the blows were going too far. Neither Taylor nor Goodchild acted with malice or in bad faith. Yet a man is dead.

Because of my disposition of this case, I make no further findings.

Conclusions of Law

In Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), the Supreme Court held that "the Government is not liable for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." However harsh the results of applying the Feres doctrine to particular cases may be, Feres is still the law and must be applied here.

Plaintiff has argued that the Feres doctrine has been seriously eroded by subsequent Supreme Court decisions, namely United States v. Muniz, 374 U.S. 150, 83...