417 F.2d 504 (10th Cir. 1969), 2-68, Bethea v. Crouse

Docket Nº:2-68, 27-68.
Citation:417 F.2d 504
Party Name:Oscar BETHEA, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee. James TOWNSEND, Appellant, v. Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.
Case Date:August 07, 1969
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 504

417 F.2d 504 (10th Cir. 1969)

Oscar BETHEA, Appellant,

v.

Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.

James TOWNSEND, Appellant,

v.

Sherman H. CROUSE, Warden, Kansas State Penitentiary, Appellee.

Nos. 2-68, 27-68.

United States Court of Appeals, Tenth Circuit.

Aug. 7, 1969

Theodore M. Smith, Denver, Colo., for appellant.

Edward G. Collister, Jr. (Robert C. Londerholm, Atty. Gen., on brief), for appellee.

Page 505

Before MURRAH, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

Bethea and Townsend, prison inmates, brought separate suits for damages under the Civil Rights Act (1871) against the Warden of the Kansas State Penitentiary, claiming that he was legally answerable for a severe beating inflicted upon them by another inmate, one Costello; that he failed, on request, to furnish proper medical treatment for resulting injuries; and suffered and permitted tear gas to be sprayed in Bethea's face, all in deprivation of their eighth amendment rights to be free from cruel and unusual punishment as made applicable to the states by virtue of Fourteenth Amendment due process, i.e., see Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Beard v. Lee, 396 F.2d 749 (5th Cir. 1968); Jordan v. Fitzharris, 257 F.Supp. 674 (N.D.Cal.S.D.1966).

The trial court granted leave to prosecute the actions in forma pauperis, ruled on a motion to dismiss that a claim had been stated under 42 U.S.C. 1983, and deferred action on a motion to appoint counsel. After filing pro forma answers, the Warden moved for summary judgment, attaching affidavits of the prison officials actually involved and inmate Costello. The plaintiffs moved pro se for summary judgment and the court treated their pro se traverses as counteraffidavits, on the basis of which summary judgment was granted in favor of the Warden. On appeal, the plaintiffs complain of failure to receive counsel and the propriety of summary judgment.

We have often said, and it seems to be universally agreed, that no one has a constitutional right to assistance of counsel in the prosecution or defense of a civil action. See Flowers v. State of Oklahoma, 356 F.2d 916 (10th Cir. 1966); Knoll v. Socony Mobil Oil Co., Inc., 369 F.2d 425 (10th Cir. 1966); Garrison v. Lacey, 362 F.2d 798 (10th Cir. 1966); Lee v. Crouse, 284 F.Supp. 541 (D.Kan.1967); United States ex rel. Gardner v. Madden, 352 F.2d 792 (9th Cir. 1965). We have said so in a constitutionally based civil rights action. See Lee v. Crouse, supra. In a forma pauperis action under 28 U.S.C. 1915(d), the trial court may but is not required to appoint counsel. The federal courts in Kansas have, however, been prone to appoint counsel in civil actions where liberty is at stake. See Ratley v. Crouse, 365 F.2d 320, 321, ftnt. 3 (10th Cir. 1966). Consistent with this liberal policy, the trial judge in our case deferred action on the motion for appointment of counsel apparently to investigate the need based on merit. We certainly cannot say that he abused his discretion by not immediately or subsequently appointing counsel.

We come then to the summary judgment. To be actionable under 1983 the acts complained of must be done (a) under color of state or local law and (b) must amount to a deprivation of a constitutionally protected right, in this case freedom from the infliction of cruel and unusual punishment. See Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963). See also Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). The court found, and the Attorney General of Kansas concedes, that the acts complained of were done under color of state law. And see Talley v. Stephens, 247 F.Supp. 683 (E.D.Ark.1965). Thus, our question is whether the case was ripe for summary judgment, i.e., whether a genuine factual dispute on the question of cruel and unusual punishment as those terms are used in the eighth amendment survived the pleadings and supporting affidavits. This entails a consideration of the general principles governing prisoner complaints of constitutional deprivation in cases of this kind.

We have consistently adhered to the so-called 'hands off' policy in matters of prison administration according to which we have said that the basic responsibility for the control and management of penal institutions, including the

Page 506

discipline, treatment, and care of those confined, lies with the responsible administrative agency and is not subject to judicial review unless exercised in such a manner as to constitute clear abuse or caprice upon the part of prison officials. See Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). See also Banning v. Looney, 213 F.2d 771 (10th Cir. 1954); Powell v. Hunter, 172 F.2d 330 (10th Cir. 1949). But being fully cognizant that one does not lose all his constitutional rights when he enters a prison, see Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951); Sewell v. Pegelow, 291 F.2d 196 (4th Cir. 1961); Coffin v. Reichard, 143 F.2d 443, 155 A.L.R. 143 (9th Cir. 1944); Lee v. Crouse, supra; Jones v. Willingham, 248 F.Supp. 791 (D.Kan.1965); Jordan v. Fitzharris, supra, we have never turned a deaf ear to a bona fide claim for relief based upon the deprivation of a constitutional right when asserted by a federal or state prisoner, either in the nature of a mandamus or habeas corpus proceeding or, as here, a claim under the Civil Rights Act. See Lawrence v. Willingham, 373 F.2d 731 (10th Cir. 1967) (Habeas Corpus: arbitrariness of transfer); Jones v. Crouse, 360 F.2d 157 (10th Cir. 1966) (Habeas Corpus: inexcusable delay in processing appeal); Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966) (Habeas Corpus: forfeiture of good time); Kostal v. Tinsley, 337 F2d 845 (10th Cir. 1964) (Habeas Corpus: solitary confinement as cruel and unusual punishment); Graham v. Willingham, supra, (Mandamus: segregated confinement as cruel and unusual punishment); Coppinger v. Townsend, 398 F.2d 392 (10th Cir. 1968) (Civil Rights Act: denial of medical aid as cruel and unusual punishment); Morgan v. Labiak, 368 F.2d 338 (10th Cir. 1966) (Civil Rights Act: unlawful beating by arresting officer); Marland v. Heyse, 315 F.2d 312 (10th Cir. 1963) (Civil Rights Act: arbitrariness of arrests); Stringer v. Dilger, supra, (Civil Rights Act: illegal arrest, unlawful beating, and coercion by arresting officer); Downie v. Powers, 193 F.2d 760 (10th Cir. 1951) (Civil Rights Act: failure of city officials to keep peace at religious meeting).

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