Anderson v. Nosser

• Decision Date: 03 March 1972
• Docket Number: No. 28971.,28971.
• Parties: 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.
• Court: U.S. Court of Appeals — Fifth Circuit

456 F.2d 835 (1972)

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.

No. 28971.

United States Court of Appeals, Fifth Circuit.

March 3, 1972.

COPYRIGHT MATERIAL OMITTED

Lawrence D. Ross, Jackson, Miss., Bernard Jolles, Franklin, Bennett, Des Brisay & Jolles, Portland, Or., Robert L. Beerman, Morrison, Paul & Beiley, New York City, for plaintiffs-appellants.

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

Before JOHN R. BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, and RONEY, Circuit Judges.

BELL, Circuit Judge:

The court, having been convened en banc, having considered additional briefs and having heard oral argument, modifies the panel decision in this matter, Anderson v. Nosser, 5 Cir., 1971, 438 F. 2d 183, as follows.

I.

The federal cause of action is premised on 42 U.S.C.A. § 1983. The panel decision was that the uncontradicted evidence made out a case as a matter of law that cruel and unusual punishment was inflicted upon plaintiffs, or some of them, at the Parchman State Penitentiary. Section 1983 vouchsafes "all rights, privileges or immunities secured by the Constitution". The complaints alleged the deprivation of several such rights including the right not to have cruel and unusual punishment inflicted upon plaintiffs as well as the right not to have summary punishment imposed upon them without due process of law. We have carefully considered the evidence adduced on the trial and have concluded that the cause of action under § 1983 sounds more in the nature of a deprivation of due process through the infliction of summary punishment than the imposition of cruel and unusual punishment within the meaning of the Eighth Amendment. We therefore pretermit^* decision on a § 1983 violation based on cruel and unusual punishment and place our decision on the due process clause of the Fourteenth Amendment. The result from the standpoint of a cause of action is the same: the establishment of a claim under § 1983 of such dimension as to warrant a directed verdict.

The panel concluded that a verdict should have been directed on the cause of action based on pendent jurisdiction that plaintiffs were not taken before a magistrate within a reasonable time as required by the Mississippi statute. Miss.Code Ann. § 2473. We affirm this holding.

The panel also held that a verdict should have been directed on the pendent jurisdiction claim based on mistreatment of prisoners at the state penitentiary as proscribed by Mississippi law. Miss. Code Ann. § 7930 (1964 Ann.Supp.). This portion of the panel decision will be deleted. This is for the reason that this issue was not submitted to the jury and there was no objection on the part of plaintiffs as to the failure to submit it. We have given careful consideration to the entire record and have concluded that this was not an ultimate issue in the case although such a cause of action was alleged in the amended complaints.

As to the causes of action based on § 1983 and on failure to take plaintiffs before a magistrate, and the directed verdict on each cause as to liability, we next consider which defendants were due to be cast under the directed verdict. The panel imposed joint and several liability on defendants Brazeale, Robinson, Cameron, Cowart, Beach, Rickard and Flowers. We modify this holding.

II.

The facts center on two principal events. The first occurred in Natchez, Mississippi. The other was at the Parchman State Penitentiary, 215 miles away.

The Natchez occurrence included the arrest of plaintiffs while engaged in a civil rights march without a parade permit on one of the principal streets of Natchez, and their subsequent detention at the city auditorium for several hours. The arrests took place on Saturday, Sunday, and Monday, October 2, 3, and 4, 1964 under the same circumstances. The children who were arrested were released to their parents and some of the arrestees were released on bonds of $200 or on their own recognizance. The remaining arrestees were removed to the Parchman State Penitentiary on commercial buses, three busloads on Saturday, two on Sunday and one on Monday.

The jails of Natchez were insufficient to accommodate the number who did not make bond, and no arrangements were made to take them before a magistrate so that the magistrate might determine whether they should be held. Chief of Police Robinson checked with several counties and municipalities in an effort to find space for the arrestees but had no success. He then arranged to have them sent to Parchman.

The Natchez defendants are Chief Robinson, four city policemen, Cowart, Beach, Rickard, and Flowers, and Fire Chief Cameron who was pressed into service by the city council as an ex officio policeman. All assisted Chief Robinson but he testified, and this testimony was uncontradicted, that he made every arrest. It also appears that he was in complete charge at the auditorium. He did not go to Parchman but arranged over the telephone to have defendant Breazeale, the superintendent of the Parchman Penitentiary, receive and detain the arrestees pending their making bond. They made bond over the next several days, with the last arrestee leaving Parchman on Wednesday, October 6.

The Mississippi statute requires in specific terms that "Every person making an arrest shall take the offender before the proper officer without unnecessary delay for examination of his case." Section 2473, supra. Chief Robinson testified that he was familiar with this statute and with his duty under it. He also testified that he contrived the rule that no one would be taken before a magistrate who had not posted bond, and that he knew that posting of bond had nothing to do with the requirement that the arrestees be taken before a magistrate. This makes it clear, as the panel held, that Chief Robinson failed to comply with this statute. However, the panel went further to hold the fire chief and the four police officers for this same dereliction.

It must be remembered that this holding is on the contention that a verdict should have been directed against them, the jury having found no liability. Unlike the absence of conflicting facts on the question in the case of Chief Robinson, there is a considerable conflict as to these five defendants. There is no testimony that the fire chief or the four police officers ever arrested anyone or that they were in position to take plaintiffs before a magistrate. As stated, the Chief of Police made every arrest and was in complete charge at the auditorium. In our view, whether they violated this statute as arresting officers was a jury question, and it follows that there is no basis for directing a verdict against them on this claim. The panel properly held that a verdict should have been directed against Chief Robinson on this claim.

The panel also held that Breazeale, the Parchman superintendent, who had nothing whatever to do with the Natchez events, was jointly and severally liable under this state claim. The question then is whether a verdict should have been directed against Breazeale for having failed to take the arrestees before a magistrate. He had nothing to do with the arrests or the detention in Natchez. It appears without contradiction that he had no part in the bonding procedures established by Chief Robinson for the arrestees in Natchez and Parchman. His sole role was that of jailer at Parchman. The statute places the responsibility on the arresting officer. Thus we conclude that a directed verdict was not due on this claim as to Breazeale.¹

This leaves the claim based on the punishment inflicted upon plaintiff-arrestees at Parchman. This punishment was solely the work of Breazeale. He agreed to detain the arrestees for the City of Natchez. No arrangements were made as to the type of custody. He alone, insofar as the record shows, determined that he would place them in a section of the prison reserved for felons who for one reason or another were required to be in maximum security. He removed these felons from this section of the prison and placed them elsewhere. He had a set procedure which applied to felons in this section of the prison and which was different from the treatment accorded the other 1800 or so felons at Parchman who were not maintained in maximum security. Breazeale made the decision to apply this procedure to the arrestees from Natchez rather than giving them the milder treatment accorded felons generally.

One facet of this special treatment was that each person was compelled to take a laxative upon admission to maximum security. He applied this procedure to the arrestees who testified. Another tactic then employed in this section of the prison was that male prisoners were deprived of their clothing and issued underwear as their sole wearing apparel while confined.² This tactic was doubly imposed on the male arrestees. They were stripped of their clothing and left naked for varying periods of time, some for as long as 36 hours. None were issued underwear. Some were allowed to claim and wear their own underwear; one was allowed to wear the top to his underwear but not his shorts.

As to the female arrestees who testified, they were compelled to take the laxative. They were deprived of their coats and other outer garments, stockings and shoes, but were allowed to wear their dresses and undergarments.

All arrestees were confined in cells designed to accommodate two persons, having two bunk beds, one lavatory, and one commode. They were not given mattresses, pillows or cover. The temperature ranged from 60 ° to 70 °. From four to eight...