482 F.2d 590 (5th Cir. 1973), 72-3564, Tuley v. Heyd

Docket Nº72-3564.
Citation482 F.2d 590
Party NameMartin Edgar TULEY, Plaintiff-Appellant, v. Louis HEYD, Jr., Criminal Sheriff, Orleans Parish, et al., Defendants-Appellees.
Case DateAugust 03, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 590

482 F.2d 590 (5th Cir. 1973)

Martin Edgar TULEY, Plaintiff-Appellant,


Louis HEYD, Jr., Criminal Sheriff, Orleans Parish, et al., Defendants-Appellees.

No. 72-3564.

United States Court of Appeals, Fifth Circuit.

Aug. 3, 1973

Page 591

Lloyd C. Melancon, New Orleans, for plaintiff-appellant.

A. W. Wambsgans, Richard M. Michalczyk, Metairie, La., Emile C. Rolfs, III, Baton Rouge, La., for Heyd and Falkenstein.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

THORNBERRY, Circuit Judge:

Tuley appeals from summary judgment entered in this 42 U.S.C. § 1983 action in favor of defendants Heyd, the Criminal Sheriff of Orleans Parish, Louisiana, and defendant Falkenstein,

Page 592

the Warden of the Orleans Parish Prison. We vacate and remand.

Tuley originally sued three defendants: Warden Falkenstein, Sheriff Heyd, and Deputy Sheriff Massey. In his hand-written pro se Section 1983 complaint filed on January 23, 1968, Tuley made the following factual allegations:

Petitioner, a Federal prisoner at Orleans Parish Prison, awaiting prosecution for Interstate Transportation of a stolen motor vehicle, was the victim of and [ sic] unprovoked attack by one Deputy Sheriff Al Massey on the evening of Tuesday, January 16, 1968. This Deputy Sheriff, an ex-professional wrestler and boxer, weighing 250 pounds or more, did under color of law, while on duty as jailer on Tier A-1, inflict great bodily harm on this petitioner who was immediately examined by the prison doctor and later removed to Charity Hospital for examination of head injuries and distorted vision. Petitioner does still suffer from distorted vision and headaches.

There were approximately seventy inmates confined to the dayroom who witnessed this attack.

As relief the complaint sought damages only.

Upon application Tuley was permitted to proceed in forma pauperis, and a lawyer was appointed for him. His appointed counsel died in July of 1970, and a second lawyer was appointed in May of 1971. The second appointed attorney moved to withdraw as counsel, but the motion was denied, and he still represents Tuley on this appeal. At no time has counsel for Tuley sought leave to amend the original pro se complaint.

Each of the three defendants denied each and every allegation of the complaint in his answer.

In September of 1972 defendants Heyd and Falkenstein moved to dismiss as to them on the basis that the complaint alleged no personal involvement in the beating on their part and that as a matter of law they could not be held vicariously liable for the wrongful acts of the Deputy under Section 1983. The district court determined that neither the pleadings nor the answers to interrogatories on file indicated personal involvement on the part of Heyd or Falkenstein or showed a genuine issue as to any material fact concerning them and, treating the motion to dismiss as a motion for summary judgment under Fed.R.Civ.P. 12, it granted summary judgment for the two movants. It certified the judgment as final under Fed.R.Civ. P. 54(b).

In the terse three-page argument in his brief, counsel for appellant Tuley seems to raise two issues on this appeal: (1) whether the facts were sufficiently developed in the record to permit the conclusion that there were no genuine issues as to material facts so that summary judgment could properly be granted, and (2) whether a Deputy Sheriff's superiors may be vicariously liable under Section 1983 for the Deputy's wrongful acts. We agree with appellant that the record facts were not sufficiently developed to permit entry of summary judgment; we do not reach the second issue because we cannot ascertain from the record in...

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