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

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).

Our concern seems to be entirely consonant with recent decisions of the United States Supreme Court and other courts in prisoner petition cases under the Civil Rights Act. See Cooper v. Pate, supra; Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); Kelly v. Butler County Board of Commissioners, 399 F.2d 133 (3rd Cir. 1968); Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966); Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961); Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963); Lee v. Tahash, 352 F.2d 970 (8th Cir. 1965); Brown v. Brown, 368 F.2d 992 (9th Cir. 1966); Talley v. Stephens, supra; Jordan v. Fitzharris, supra; United States ex rel. Hancock v. Pate, 223 F.Supp. 202 (N.D.Ill.1963); See also Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968). In balancing the necessity for a free hand in prison administration against the basic constitutional rights of prisoners, it seems practical and workable to say, as did the Fourth Circuit in Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966), that 'the hands-off doctrine operates reasonably to the extent that it prevents judicial review of deprivations which are necessary or reasonable concomitants of imprisonment.' 1See also Note, 72 Yale L.J. 506.

Very recently, in Coppinger v. Townsend, supra, we recognized the necessity and difficulty of balancing the constitutional rights of prisoners against the powers of the prison administrators in a Civil Rights action based on denial of

Page 507

medical treatment. After reviewing the conflicting case law on whether the denial of medical treatment amounts to cruel and unusual punishment, we found it unnecessary to decide the point, inasmuch as we concluded that in any event a difference of opinion between a physician and inmate patient on the adequacy of medical treatment was insufficient to support an actionable claim under 1983.

The underlying principles seem to be the same regardless of the form of action or whether the acts complained of were done as a disciplinary measure or other in-custody treatment. The question in each case is whether constitutional rights were infringed under color of state or local authority.

In our case the trial judge freely acknowledged a prisoner's right to be free from cruel and unusual punishment 'as basic and fundamental as the right of freedom of speech or the free exercise of religion.' He recognized the delicacy of the balancing process, but, as we read him, he found it unnecessary to accommodate the prisoners' rights against the Warden's disciplinary powers for, significantly, he did not think that this was a disciplinary case 'where prison authorities were called upon to preserve order or were justified in exerting necessary force to restrain or punish a prisoner', but rather 'a case where an inmate was set upon and physically beaten by another inmate who had been permitted to seek plaintiff out for the ostensible purpose of talking to him.'

In denying the motion to dismiss, the judge thought that 'The facts set forth by plaintiff in his pleadings present a picture of alleged brutal and oppressive treatment, which, if true, would certainly come within the ambit of cruel and unusual punishment.' But, upon consideration of the affidavits and...

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