489 F.2d 516 (3rd Cir. 1973), 72-1935, Curtis v. Everette

Docket Nº:72-1935.
Citation:489 F.2d 516
Party Name:Warren CURTIS, Appellant, v. Angus Russell EVERETTE et al.
Case Date:December 17, 1973
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 516

489 F.2d 516 (3rd Cir. 1973)

Warren CURTIS, Appellant,


Angus Russell EVERETTE et al.

No. 72-1935.

United States Court of Appeals, Third Circuit.

December 17, 1973

Submitted Sept. 11, 1973.

Page 517

James G. Gavin, Community Legal Services, Inc., Philadelphia, Pa., for appellant.

Hermann Rosenberger, II, Philadelphia, Pa., for appellee.

Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.


VAN DUSEN, Circuit Judge.

This appeal challenges an August 8, 1972, district court order dismissing a complaint under the Civil Rights Acts (42 U.S.C. §§ 1981 and 1983, and 28 U.S.C. § 1343(3)), which also asserts pendent jurisdiction of a state law claim against a fellow prisoner (Everette), alleging that while plaintiff was a state prisoner at the Huntingdon Correctional Institute, 'on or about March 24, 1970 at approximately 11:45 a.m., Defendant . . . Everette physically attacked without provocation Plaintiff . . . in the kitchen at (such) Institute' (par. 11). Plaintiff was assaulted by Everette allegedly 'solely because defendants Hess (dietician and kitchen guard), Smith (head steward and kitchen guard) and Brindle (correctional officer) had stopped him from defending himself and due to his reliance on the fact (that such) Defendants . . . who had custody of (Everette) would perform their duty in disarming and restraining (Everette) and in protecting (plaintiff).' 1 Paragraph 12 of the complaint alleges that plaintiff 'suffered great pain and suffering and the permanent loss of sight of his right eye.' Paragraph 21-a and d alleges that defendants Smith, Hess and Brindle deprived plaintiff of his civil rights by

'a. Failing to disarm Defendant Angus Russell Everette while in their custody after he had, in their presence, attacked Plaintiff Warren Curtis with a home-made knife.

. . . .g t

'd. Failing to restrain . . . Everette after he had once attacked Plaintiff . . . with a home-made knife and allowing

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him to attack Plaintiff a second time causing the loss of sight in his right eye.' 2

Finally, paragraphs 14 and 21-f allege that these three defendants had actual knowledge of the dangerous nature and propensity of Everette.

These allegations were made in a complaint signed by a member of the Bar of the United States District Court for the Eastern District of Pennsylvania, which signature constitutes a certification by such attorney that, to the best of her knowledge, information and belief, there is good ground to support such complaint. 3 Furthermore, such allegations assert intentional conduct within the rule stated by Judge Aldisert in Howell v. Cataldi, 464 F.2d 272, 281 (3d Cir. 1972), as follows:

'All that is required is proof that the conduct was intentional. There is no requirement of proof of a further objective toward which the conduct is directed. 'While a specific intent to deprive a person of his constitutional rights is required under criminal sections . . ., neither specific intent nor purpose to deprive an individual of his civil rights is a prerequisite to civil liability under the civil provisions of the Civil Rights Act . . ..''

See also Basista v. Weir, 340 F.2d 74, 81 (3d Cir. 1965).

In view of the requirement that the allegations of the complaint and all reasonable inferences therefrom must be considered as true on a motion to dismiss, 4 we have concluded that, at this stage of the litigation, plaintiff may prove a set of facts constituting a cause of action under 42 U.S.C. § 1983 based on a violation of the due process clause of the Fourteenth Amendment. See Johnson v. Glick, 481 F.2d 1028, 1032-1033 (2d Cir. 1973), and cases there cited; cf. Kish v. County of Milwaukee, 441 F.2d 901, 904 (7th Cir. 1971). The plaintiff's reliance on his alleged constitutional 'right to be secure in his person' (see note 2 above) and on the proposition that the 'Fourteenth Amendment is the constitutional basis for 42 U.S.C. 1983' (page 17 of his brief) makes applicable the principle of Glick (481 F.2d p. 1032) that a prisoner may not be deprived 'of liberty without due process of law.' Applying the language of the Supreme Court in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), the alleged activities of these three state officials 'do more than offend some fastidious squeamishness or private sentimentalism . . .. This is conduct that shocks the conscience.' Again, at pages 173-174, 72 S.Ct. at page 210,

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Mr. Justice Frankfurter said:

'So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society.'

As stated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957):

'In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'

In view of the above reliance on the due process clause of the Fourteenth Amendment, it is not necessary to discuss the possible application of the equal protection clause of that Amendment or of the language concerning cruel and unusual punishment in the Eighth Amendment. See, for example, Kish v. County of Milwaukee, supra.

Under these circumstances, the dismissal of the complaint as to the abovementioned three defendants (Hess, Smith and Brindle)...

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