438 F.2d 183 (5th Cir. 1971), 28971, Anderson v. Nosser

Docket Nº:28971.
Citation:438 F.2d 183
Party Name:Katie Ruth ANDERSON et al., Plaintiffs-Appellants, v. J. J. NOSSER et al., Defendants-Appellees. James BRADLEY et al., Plaintiffs-Appellants, v. J. J. NOSSER et al., Defendants-Appellees.
Case Date:February 10, 1971
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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438 F.2d 183 (5th Cir. 1971)

Katie Ruth ANDERSON et al., Plaintiffs-Appellants,


J. J. NOSSER et al., Defendants-Appellees.

James BRADLEY et al., Plaintiffs-Appellants,


J. J. NOSSER et al., Defendants-Appellees.

No. 28971.

United States Court of Appeals, Fifth Circuit.

February 10, 1971

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Lawrence D. Ross, Jackson, Miss., Lawyers' Committee for Civil Rights Under Law, Bernard Jolles, Franklin, Bennett, Des Brisay & Jolles, Portland, Or., Robert L. Beerman, Morrison, Paul & Bailey, New York City, for plaintiffs-appellants.

A. F. Summer, Atty. Gen., William A. Allain, Asst. Atty. Gen., Jackson, Miss., Edwin E. Benoist, Jr., Joseph S. Zuccaro, Natchez, Miss., Charles A. Marx, Jackson, Miss., for defendants-appellees.

Before TUTTLE, BELL, and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Our locale is Natchez, Mississippi, where the mood in the fall of A.D. 1965 was anything but irenic. Our story concerns the arrest and subsequent detention of participants in racial protest demonstrations. According to the undisputed facts those arrested were subjected to sub-human treatment which beggars justification and taxes credulity. Finding ourselves unable to sustain the verdict of the jury below, we reverse and render judgment as to liability of the defendants and remand for the assessment of damages due the plaintiffs.


While many peripheral matters in this case are hotly contested, the central and basic facts are largely uncontradicted. Relying solely on stipulations and undisputed testimony, we summarize the sordid details.

On October 2, 3, and 4, 1965, plaintiffs and many others paraded in Natchez to publicize their grievances, particularly discrimination on account of race. At the time a Natchez ordinance prohibited parades without the written permission of the Chief of Police. Natchez, Miss. Parade Ordinance of May 26, 1964, Ordinance Book F, at 395. The ordinance was later found unconstitutional, but at that time it had not been so declared.

Shortly after the march commenced on Saturday morning, October 2, defendant Robinson, Natchez Chief of Police, and defendants Rickard, Cowart and Beach,

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Natchez police officers, arrested approximately 700 1 persons for parading without a permit in violation of the Natchez ordinance. Following the arrests, plaintiffs and others were transported to the Natchez city auditorium. There defendant Flowers, a Natchez police officer, defendant Cameron, Natchez Fire Chief, and firemen acting pursuant to Cameron's directions assisted Chief Robinson and officers Rickard, Cowart, and Beach in detaining plaintiffs. There is some evidence that many of those arrested, particularly minors, were permitted either to post bond or to obtain release on personal recognizance. The evidence, however, also reveals that many of those arrested were either not permitted to make bond or were unable to do so during the time they were incarcerated in Natchez. Furthermore, no effort was made to secure a magistrate, and as a result none of the plaintiffs or other arrestees were brought before a judicial officer for examination. No youth court order was obtained with respect to any of those arrested who were minors. 2

Late that Saturday night approximately 150 of those held at the auditorium were transported by bus over 200 miles to the Mississippi State Penitentiary at Parchman. Mississippi Highway Safety Patrolmen provided the escort. 3 This initial group of prisoners arrived at the penitentiary early Sunday morning, October 3, and were taken to its maximum security unit upon order of defendant Breazeale, the penitentiary superintendent. Thirty-nine cells had been vacated in the unit, and, following the arrest and transfer of additional protesters on Sunday and Monday, more than 250 prisoners were ultimately housed there.

Prison personnel were directed by Breazeale to process the Natchez protesters under the 'standard' treatment accorded prisoners in the maximum security unit. Though there is some dispute as to exactly what this treatment entailed, the undisputed evidence reveals the following.

On arrival all male prisoners were required to strip naked and all women prisoners were ordered to remove their shoes, stockings, sweaters, coats, jewelry, and wigs. All were compelled to consume a laxative and were deprived of all personal belongings, including sanitary napkins and medicines. The prisoners were then led to the cells. Up to eight persons were placed in each cell, which contained two steel bunks without mattresses or other bedding, a toilet without a seat, and a washbasin. There were no towels or soap and there was inadequate toilet paper. The temperature ranged from 60 to 70 degrees, the chill being aggravated by exhaust fans which blew intermittently on the occupants. Some

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of the men eventually were permitted to get their underwear, but others were nude for a period of 36 hours. Many were subjected to blood tests. moreover, while standing in the prison courtyard awaiting processing several plaintiffs were kicked, pushed, cursed, and abused by the highway patrolmen and other guards.

On Sunday morning, October 3, and Monday evening, October 4, more protest marchers were arrested and detained in Natchez. Nearly 100 were subsequently transported to Parchman and given similar treatment to that accorded the first group of prisoners. Plaintiffs, after individually posting $200 property bonds, were released on Monday, October 4, Tuesday, October 5, and on Wednesday, October 6.

On February 17, 1966, a complaint was filed on behalf of 68 adults and 84 minors, who had been detained in Parchman that October, against Chief of Police Robinson, Police Officers Rickard, Cowart, beach, and Flowers, Fire Chief Cameron, Superintendent Breazeale, J. J. Nosser, Mayor of Natchez, and T. B. Birdsong, Commissioner of Public Safety. That complaint alleged that plaintiffs were falsely imprisoned and subjected to cruel and unusual punishment, and sought monetary damages under 42 U.S.C.A. § 1983. An identical complaint on behalf of 11 additional persons was filed on October 1, 1966. Amended complaints were filed in each action on December 6 and 9, 1966, alleging galse imprisonment and other torts under Mississippi law. The actions were consolidated and eventually ordered to trial in June of 1969, solely on the issue of liability. A jury returned a verdict for defendants, and plaintiffs' subsequent motions for judgment notwithstanding the verdict or alternatively for a new trial were overruled. Plaintiffs now appeal from the district court's denial of those motions.


Plaintiffs rely on 42 U.S.C.A. § 1983 and Mississippi tort law joined under the doctrine of pendent jurisdiction to sustain their contention that defendants should be held liable as a matter of law.

Since Monroe v. Pape, 1961, 365 U.S. 167, 82 S.Ct. 473, 5 L.Ed.2d 492, it has been clear that section 1983 4 will sustain a damage action against individuals acting under color of state law for deprivation of federal constitutional rights. See also adickes v. S . H. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. Since all defendants in this case are state or municipal officials, the requisites of section 1983 are satisfied upon a showing of the denial of a constitutional right.

Furthermore, the doctrine of pendent jurisdiction permits a consideration of the related state claims. The court below exercised its discretion to join the state claims, an action justified by the Supreme Court's decision in UMW v. Gibbs, 1966, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218:

'Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority * * *,' U.S. Const, Art III, 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' The federal claim must have substance sufficient to confer subject matter jurisdiction on the

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court. Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues there is power in federal courts to hear the whole.'

See also Whirl v. Kern, 5 Cir. 1969, 407 F.2d 781, cert. Denied, 396 U.S. 901, 90 S.Ct. 210, 24 L.Ed.2d 177. The federal claims here are substantial, and both the federal and state counts, grounded upon the incarceration and treatment of plaintiffs, arise out of 'a common nucleus of operative fact.' Jurisdiction being satisfied, we turn to the merits of the various allegations.


Plaintiffs' first contention is that as a matter of law the trial court should have granted judgment on their claim that their treatment at Parchman constituted cruel and unusual punishment, unlawful under federal and state law.

The cruel and unusual punishment clause of the Eighth Amendment is applicable to the states through the due process clause of the Fourteenth Amendment, Robinson v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758, and thus a violation of its mandate may constitute a cause of action cognizable in federal court under section 1983. Wright v. McMann, 2 Cir. 1967, 387 F.2d 517; Jordan v . Fitzharris, N.D.Cal.1966, 257...

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