Meredith v. State of Ariz.

• Citation: 523 F.2d 481
• Decision Date: 30 September 1975
• Docket Number: No. 74-1315,74-1315
• Parties: Levoy Jasper MEREDITH, Petitioner-Appellant, v. STATE OF ARIZONA et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 481

523 F.2d 481

Levoy Jasper MEREDITH, Petitioner-Appellant, v. STATE OF ARIZONA et al., Respondents-Appellees.

No. 74-1315.

United States Court of Appeals,

Ninth Circuit.

Sept. 30, 1975.

Levoy Meredith, in pro. per.

Stanley L. Patchell, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.

OPINION

Before DUNIWAY and HUFSTEDLER, Circuit Judges, and CONTI, ^* District Judge.

DUNIWAY, Circuit Judge:

Meredith's civil rights action (42 U.S.C. § 1983) was dismissed for failure to state a claim for relief, and he appeals.

I. The Facts.

We assume, for present purposes only, that the allegations of Meredith's complaint are true. They are as follows:

Meredith is incarcerated in a state prison in Arizona. He has a medical history of emphysema. In the early morning of September 28, 1973, he asked to be excused from breakfast because he was suffering from an emphysema attack. Permission was denied, and he started to walk to the mess hall. When he was about 500 feet from the hall, his condition worsened. He asked correctional officer Miller the source of the order that he must attend breakfast despite his illness, and Miller answered that the warden had given the order and that he, Miller, intended to enforce it. Meredith complained about his difficulty in breathing, and Miller struck him in the solar plexus. According to the complaint, Miller's blow rendered him "totally handicapped." Thereupon, Miller ordered a junior officer to take Meredith to the isolation building and lock him up. Lieutenant Hall was nearby and ordered Miller to stop harassing Meredith and directed another officer to put Meredith in a wheelchair and take him to the hospital for emergency treatment, which was done. He was given four hours of oxygen therapy "to counteract the damage that had been done."

The incident was investigated by Associate Warden Burd, who concluded that the warden had issued no order requiring Meredith to attend meals while suffering from an attack of emphysema, that Miller had acted without authority in directing Meredith to attend breakfast on September 28, and that Meredith was not guilty of any infraction. Meredith sued Miller, Hall, Burd, Warden Cardwell, prison physician Deputy, and the State of Arizona.

II. A Claim under the Civil Rights Act is Stated.

Does the complaint, as liberally construed (Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652), state facts bringing Meredith within 42 U.S.C. § 1983, which gives him an action against one who, under the color of state law and without due process deprives him of his constitutional right to "liberty," guaranteed by the Fourteenth Amendment? ¹ We think that it does.

First, there is no doubt that Miller was acting in the course of his official duties. What he did was done "under color" of state law. Gregory v. Thompson, 9 Cir., 1974, 500 F.2d 59, 62. See also Williams v. United States, 1951, 341 U.S. 97, 99, 71 S.Ct. 576, 95 L.Ed. 774.

Second, it is now too late to argue that one who is subjected to an assault and battery by a person acting under color of state law can never have a claim for relief under § 1983. In Gregory v. Thompson, supra, 500 F.2d at 62, we squarely held that the right violated by an assault and battery is "the right to be secure in one's person, and is grounded in the due process clause of the Fourteenth Amendment." It is an aspect of the right to liberty.

The only arguable question is whether the particular assault and battery here alleged is such as to fall within § 1983. Heretofore, we have not tried to lay down guidelines as to what assaults and batteries committed by persons acting under color of state law fall within § 1983, and what assaults and batteries do not. Here we deal with a complaint by a prisoner against his custodians, involving the use of force in a setting in which force is sometimes both appropriate and unavoidable. We doubt that, even in that setting, it is possible to lay down a rule for all cases, and we shall not attempt to do so.

We find ourselves in general agreement with the views of Judge Friendly, speaking for the Second Circuit in Johnson v. Glick, 1973, 481 F.2d 1028, 1033:

. . . Certainly the constitutional protection is Nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it, see Prosser, Torts § 9 (4th ed. 1971); still less is it as extensive as that afforded by the common law tort action for assault, redressing "Any act of such a nature as to excite an apprehension of battery," Id. § 10, at 38 (footnote omitted). Although "the least touching of another in anger is a battery," (citation omitted), it is not a violation of a constitutional right actionable under 42 U.S.C. § 1983. The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm. (Emphasis added)

The foregoing language is predicated on the proposition that the Supreme Court's holding in Rochin v. California, 1952, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, "points the way." Rochin found a violation of the Fourteenth Amendment, albeit for assault and battery occurring in a different context, in conduct that "shocks the conscience" (342 U.S. at 172, 72 S.Ct. 205), conduct which involves force that is "brutal" and "offensive to human dignity" (342 U.S. at 174, 72 S.Ct. 205). See Johnson, supra, 481 F.2d at 1033 and fn. 6.

None of our decisions requires that we adopt a position less restrictive, if that be the proper word, than that taken in Johnson v. Glick, quoted Supra. In Gregory v. Thompson, supra, a justice of the peace left his desk in his courtroom in order to throw the plaintiff (aged 65) out, forced the plaintiff out through the door, then threw him to the floor, jumped on him and began to beat him. 500 F.2d at 61. Allison v. Wilson, 9 Cir., 1970, 434 F.2d 646, held that the plaintiff prisoner stated a claim under § 1983 by alleging that he had been "physically abused" by two prison guards on two separate occasions (434 F.2d at 647), and that alleging that one guard, "after saying 'I will show you some new rules,' slammed a steel door shut, hitting Allison on the back, is a sufficient allegation of intentional misconduct." (Id. at 647-48). Brown v. Brown, 9 Cir., 1966, 368 F.2d 992, Cert. den., 1966, 385 U.S. 868, 87 S.Ct. 133, 17 L.Ed.2d 95, held sufficient a complaint in which the plaintiff alleged that he had been kicked and beaten by state officers in an effort to compel his confession of involvement in criminal activities, Dodd v. Spokane County, 9 Cir., 1968, 393 F.2d 330, held that a complaint stated a civil rights claim when the plaintiff prisoner alleged that he was beaten by six guards as "punishment" for refusing to testify falsely in a criminal trial. Wiltsie v. Calif. Dept. of Corrections, 9 Cir., 1968, 406 F.2d 515, held that a civil rights claim was stated by a prisoner who alleged that six guards had beaten him with fists and billy clubs on his head and that he might suffer permanent disability as a result. Finally, the allegation that a plaintiff prisoner had been "beat, kicked, knocked, stomped, thrashed, tear-gassed and cursed" by his custodians was held to state a § 1983 claim in Allison v. Calif. Adult Authority, 9 Cir., 1969, 419 F.2d 822.

None of these cases held that the constitutional protection of the Fourteenth Amendment due process clause is synonymous with that afforded by the common law against the torts of assault and battery. And one can only surmise what analytical principles were applied. Cf. Johnson v. Glick, supra, 481 F.2d at 1033, conjecturing that the reasoning of this circuit in Wiltsie v. California Department of Corrections, supra, was the same as that of the Fifth Circuit in Tolbert v. Bragan, 1971, 451 F.2d 1020, and the Seventh Circuit in Collum v. Butler, 421 F.2d 1257.

We conclude that, when construed liberally as Haines v. Kerner,supra, requires, the complaint does state a claim under § 1983 as construed in Johnson v. Glick, supra. It alleges an unprovoked assault and battery by a guard...