Roberts v. Williams

• Decision Date: 12 October 1971
• Docket Number: No. 28829.,28829.
• Parties: Arthur ROBERTS, by his Father and Guardian, Eddie W. Roberts, Plaintiff-Appellee-Cross Appellant, v. Columbus WILLIAMS, Individually and as Trusty at the Leflore County Farm, et al., Defendants-Cross Appellees, John Arterbury, Defendant-Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 819 (1972)

Arthur ROBERTS, by his Father and Guardian, Eddie W. Roberts, Plaintiff-Appellee-Cross Appellant, v. Columbus WILLIAMS, Individually and as Trusty at the Leflore County Farm, et al., Defendants-Cross Appellees, John Arterbury, Defendant-Appellant-Cross Appellee.

No. 28829.

United States Court of Appeals, Fifth Circuit.

April 1, 1971.

Certiorari Denied October 12, 1971.

R. C. McBee, Bell & McBee, Ulysses A. Smith, W. J. Lipscomb, Robert H. Swanzy, James D. Green and James M. Hooper, Jr., Greenwood, Miss., for cross appellees.

Stanny Sanders, Travis H. Clark, Jr., H. D. Brock, Greenwood, Miss., for John L. Arterbury.

Donald R. Wilson, John J. Haugh, Portland, Or., Martha M. Wood, Lawyers Committee for Civil Rights Under Law, Jackson, Miss., Lawrence D. Ross, Jackson, Miss., for appellee cross-appellant.

Frank Pozzi, Pozzi, Wilson & Atchison, Portland, Or., James Robertson, Lawyers' Committee for Civil Rights Under Law, Jackson, Miss., for Arthur Roberts.

Before RIVES and SIMPSON, Circuit Judges, and NICHOLS, Judge of the Court of Claims.^*

Certiorari Denied October 12, 1971. See 92 S.Ct. 83. Addendum April 1, 1972.

NICHOLS, Judge:

This is a civil action for damages with Federal jurisdiction asserted under the Civil Rights Act of 1871, R.S. § 1979, 42 U.S.C. § 1983, which reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

On April 15, 1965, plaintiff, then fourteen years of age, pled guilty in the City Court of Greenwood, Mississippi, to a charge of petty larceny, and was sentenced to ninety days at the Leflore County Farm. On June 28, 1965, plaintiff was among a group of prisoners performing work on the county roads. A shotgun in the hands of a trusty guard, defendant Williams, discharged into plaintiff's face, causing the loss of both eyes, brain damage and other injuries.

He brought this suit in the District Court, by his father and guardian, alleging a Federal cause of action under § 1983, supra, in that he had been caused to suffer "cruel and unusual punishment" in violation of his rights under the Eighth Amendment to the Constitution of the United States, as extended to states by the Fourteenth. He also invoked the "pendent" jurisdiction of the District Court to hear a claim for negligence under state tort law. The named defendants pertinent to this appeal were John Arterbury, then Superintendent of the Leflore County Farm, and the individual members of the Board of Supervisors of Leflore County. Columbus Williams was also sued but plaintiff was unable to obtain personal service of process upon him. Actions against other named defendants were dismissed.

After trial without a jury, the District Court dismissed the action against the members of the Board of Supervisors on immunity grounds, but found defendant Arterbury liable under both Federal and state law and awarded plaintiff a judgment against him in the amount of $85,000. The opinion reported 302 F.Supp. 972 (1969) includes the fact findings. The case is now before us on Arterbury's appeal and plaintiff's cross-appeal from the dismissal against the Supervisors, and on the adequacy of the damages.

I. Liability of Arterbury

Defendant Arterbury had served at the County Farm, either as assistant superintendent or as superintendent for a period in excess of 18 years. He was employed from year to year by the County Board of Supervisors pursuant to statute, Miss.Code Ann. § 7901, requiring them to "employ a competent and suitable person * * * to superintend such convict farm, and manage it and to work the convicts sentenced to the County Jail thereon." The work required of the inmates was performed either at the farm itself or, under authority of Miss.Code Ann. § 7904, "on the public roads of the county." The Board had issued no orders or regulations to govern such working of the convicts as was required by the statute, but members of the Board visited the Farm frequently and had for many years signified their approval of the way Arterbury did things by tacit acquiescence. They regarded him as of good reputation and well qualified for his post. Another practice of long standing, though apparently without statutory authority, was the use of convicts as armed "trusty guards," the purpose being to save the pay of regular guards. Only one paid guard was employed. The Board did not provide express authorization for or regulations to govern this practice, but it was carried on with their knowledge and tacit approval.

During the time in question, defendant Arterbury had selected as a trusty guard Columbus Williams, a 23 year old man with a 4th grade education, who had been convicted of assault with intent to kill, and later of theft. Despite Williams' record, the trier of fact was not convinced that he was "a person of murderous and malicious instincts." 302 F.Supp. at 988. Arterbury's chief reason for selecting Williams was that "he was obedient, did his work right and never gave me any trouble." He made no minimal effort to instruct Williams in the use of the weapon with which he was armed, a 12 gauge pump shotgun. He relied on Williams' affirmation that he had handled one. He told Williams, he testified, to be careful, to keep the safety on, and to put a shell in the chamber when they reached the work site. On June 28, 1965, plaintiff was among a group of prisoners who were working one of the county roads near Morgan City. Columbus Williams, armed with his shotgun, was present in his capacity as trusty guard. During a lunch break, the foreman, who was not a convict, left the scene, leaving Williams in charge. Williams was standing with the shotgun cradled under his right arm at a distance of no more than 50 feet from plaintiff, who was at rest on the ground. The gun discharged directly at plaintiff causing the injuries here complained of. The trial court, in its very able opinion found:

* * *. Admittedly, at the time of the shooting Williams had the shotgun loaded with 5 shells, one of which was in the firing chamber, ready to shoot in accordance with his instructions, and the safety was off. The shotgun could not have been discharged with the safety on, as it was in good working order. There is no evidence that Williams stumbled or dropped the gun or suddenly knocked the safety off. Williams was unable to give a satisfactory explanation of why the gun discharged and he failed to check the safety mechanism after its discharge. * * * 302 F.Supp. at 987.

While concluding that Williams was "patently incompetent" in handling firearms, the trial judge specifically rejected plaintiff's suggestion that the shooting was intentional. Williams maintained it was accidental. The suggestion, indeed, lacked support in substantial evidence and was inherently incredible. No reason or adequate motive appears why Williams should commit such a crime, and in plain view of several witnesses, at a time when plaintiff, reclining on the ground, offered no shadow of an excuse to fire.

The court held that Williams' conduct constituted gross negligence but determined that the doctrine of respondeat superior could not be applied to hold Arterbury personally liable. We are not so sure that such is the law in Mississippi. None of the cases cited below are from Mississippi courts and in the one decision of this court cited, Metoyer v. Holman, 358 F.2d 110 (5th Cir. 1969), there is no indication that liability on the basis of respondeat superior was asserted. The action was under diversity jurisdiction. Plaintiff, a prisoner, was shot by a guard while attempting to escape. The trial court was held right in directing a verdict for the warden, because no negligence by him personally was shown. For a split of authority as to this see the annotation at 14 A.L.R.2d 353. However, we are not called upon to decide this issue now because we agree that Arterbury's liability is based on his own negligence.

The trial court, citing Farmer v. State, 224 Miss. 96, 79 So.2d 528 (1955), held that under state law, Arterbury owed a duty to the prisoners in his charge to exercise ordinary and reasonable care to protect them from unnecessary harm and for the preservation of their life and health. It is an on point citation. Farmer v. State, holds a sheriff and a jailor personally liable for the death of a prisoner in their care, because he was denied the medical attention he needed for a case of stomach ulcers. Specifically, the fact finding in this case was:

* * *. Arterbury gave Williams only the briefest instructions concerning the use of the gun, telling him "to be careful". There were no meaningful demonstrations by Arterbury or his assistants to teach Williams the use of the gun or its safe handling, or to make certain that he was competent for guard duty. Specifically Williams was not instructed, at all costs, never to point the shotgun in any direction or at any object at which he was not ready to fire, nor was he instructed to, at all times, examine the safety to determine that it had not become dislodged. But Arterbury did instruct Williams to inject a shell into the firing chamber whenever the work crew had reached the area where guard duty would commence. So far as is known, prior to the shooting, Williams had never shot the gun in target practice, nor had he at any time received expert instruction as to its care and handling. * * * 302 F.Supp. at 978.

* * * * * *

* * *. Since the shooting in this case occurred under the most needless and avoidable circumstances, it is patent that Williams was thoroughly ignorant — indeed incompetent — in the handling of a

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