Henderson v. Counts

• Decision Date: 02 August 1982
• Docket Number: Civ. A. No. 82-0194-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Richard HENDERSON, Jr., Plaintiff, v. M. V. COUNTS, Defendant.

544 F. Supp. 149

Richard HENDERSON, Jr., Plaintiff, v. M. V. COUNTS, Defendant.

Civ. A. No. 82-0194-R.

United States District Court, E. D. Virginia, Richmond Division.

August 2, 1982.

Richard Henderson, Jr., pro se.

Joseph P. Rapisarda, Acting County Atty., Henrico County, Richmond, Va., for defendant.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

Plaintiff Richard Henderson, Jr., is an inmate at the Henrico County (Va.) Jail. He has filed a section 1983 action against M. V. Counts, a Henrico County police officer. See 42 U.S.C. § 1983 (1976). The plaintiff alleges that Counts and another officer used excessive force in arresting him. Henderson seeks damages and a letter of apology from the defendant. Counts moves for summary judgment on the plaintiff's claim. See Fed.R.Civ.P. 56(b).

I. FACTUAL BACKGROUND

On the morning of December 24, 1981, Counts attempted to stop Henderson for questioning about a recent bank robbery. The officer thought that the plaintiff fit the description of the suspect in the bank robbery case. Henderson does not dispute that Counts had sufficient cause to stop him for questioning. The defendant claims that he asked Henderson several times to halt, but that the plaintiff failed to do so. Henderson again does not dispute this fact. When the plaintiff finally responded to the officer's requests, Counts ordered him to place his hands on the hood of Counts' police vehicle. Henderson apparently complied with this order.

At this point, the accounts given by Counts and Henderson begin to differ radically. The defendant asserts that Henderson first "moved his right hand towards his coat pocket as if he were reaching for a weapon." Affidavit of M. V. Counts ¶ 3. Counts and another officer then allegedly wrestled with the plaintiff in an attempt to handcuff him. Id. During the struggle, large amounts of cash fell out of Henderson's shirt. After the officers subdued the plaintiff, they formally arrested him.

Henderson, on the other hand, claims that Counts began striking him in the face without provocation. After hitting him five or six times, the officer then allegedly threw him to the ground and continued the beating. Henderson contends that Counts finally handcuffed him and dragged him to the rear of the police vehicle. At this time, Counts supposedly threw the plaintiff into the trunk of the vehicle.

On March 15, 1982, Henderson filed a section 1983 action against Counts in this court. His complaint does not indicate which constitutional provision forms the basis for his section 1983 claim. The plaintiff seeks $10,000 in damages and a letter of apology from Counts.

II. LEGAL ANALYSIS

The defendant moves for summary judgment on the ground that Henderson's claim does not amount to a constitutional violation. The plaintiff's allegations do not implicate any of the specific guarantees enumerated in the Bill of Rights.¹ The court, therefore, will analyze Henderson's claim only in terms of procedural and substantive due process.

The Supreme Court's decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), provides the touchstone for a procedural due process analysis of the plaintiff's allegations. Under Parratt, a meaningful postdeprivation remedy is sufficient to satisfy due process, unless the deprivation in question was pursuant to an established state practice or procedure. See id. 451 U.S. at 541, 101 S.Ct. at 1915-16. Parratt dealt only with negligent property deprivations. See id. at 536-37, 101 S.Ct. at 1913-14. The court, however, rules that the decision's rationale also applies to intentional nonproperty takings such as the assault and battery alleged here. See id. at 541, 101 S.Ct. at 1915-16; Rutledge v. Arizona Board of Regents, 660 F.2d 1345, 1352 (9th Cir. 1981), cert. granted, ___ U.S. ___, 102 S.Ct. 3508, 73 L.Ed.2d 1382 (1982); Irshad v. Spann, 543 F.Supp. 922 at 927 n.1 (E.D.Va. July 19, 1982); Frazier v. Collins, 538 F.Supp. 603, 607 (E.D.Va.1982); Eberle v. Baumfalk, 524 F.Supp. 515, 517-18 (N.D.Ill.1981); Meshkov v. Abington Township, 517 F.Supp. 1280, 1286 (E.D.Pa.1981); Sheppard v. Moore, 514 F.Supp. 1372, 1376 (M.D.N.C. 1981). But see Howse v. DeBerry Correctional Institute, 537 F.Supp. 1177, 1178-80 (M.D.Tenn.1982); Peters v. Township of Hopewell, 534 F.Supp. 1324, 1333-34 (D.N.J. 1982); Tarkowski v. Hoogasian, 532 F.Supp. 791, 794-95 (N.D.Ill.1982); Parker v. Rockefeller, 521 F.Supp. 1013, 1016 (N.D.W.Va. 1981).

The official misconduct alleged by Henderson was no more than an isolated action in violation of state law. Procedural due process, therefore, requires only a meaningful post-deprivation remedy. See Parratt v. Taylor, 451 U.S. at 541, 101 S.Ct. at 1915-16; Irshad v. Spann, 543 F.Supp. at 926-927. Virginia law provides such a remedy in the form of a common-law action for assault and battery. See Davidson v. Allam, 143 Va. 367, 372, 130 S.E. 245, 246 (1925). See generally, Irshad v. Spann, 543 F.Supp. at 927-929. Thus, Henderson's complaint does not state a valid procedural due process claim.

The court next must apply a substantive due process analysis to the plaintiff's claims. The court already has held that none of the guarantees contained in the Bill of Rights directly cover this case. The due process clause, however, creates certain substantive rights that are not explicit in the first ten amendments. See Roe v. Wade, 410 U.S. 113, 152-53, 93 S.Ct. 705, 726-27, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965); Rochin v. California, 342 U.S. 165, 172-74, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952). Most of these rights derive indirectly from the provisions of the Bill of Rights. See Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. at 1681.

In this case, Henderson relies on a due process right to physical integrity. He implies that Counts has violated his right to be free of unnecessary physical contact with state officers. This right derives ultimately from the eighth amendment's prohibition against cruel and unusual punishment. This amendment, as incorporated by the fourteenth amendment, provides state convicts with a limited right of physical integrity. See King v. Blankenship, 636 F.2d 70, 72-73 (4th Cir. 1980); Withers v. Levine, 615 F.2d 158, 161-62 (4th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980). The eighth amendment does not apply directly in this case, because Henderson was not serving a sentence of any kind at the time of his encounter with Counts. See Bell v. Wolfish, 441 U.S. 520, 535 n.16, 99 S.Ct. 1861, 1872 n.16, 60 L.Ed.2d 447 (1979); Loe v. Armistead, 582 F.2d 1291, 1293-94 (4th Cir. 1978), cert. denied sub nom. Moffitt v. Loe, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281 (1980). Its penumbra, however, gives rise to a substantially congruent right of physical integrity for pretrial detainees. See King v. Blankenship, 636 F.2d at 72-73; Hall v. Tawney, 621 F.2d 607, 611 n.5 (4th Cir. 1980); Loe v. Armistead, 582 F.2d at 1293-94; Bellows v. Dainack, 555 F.2d 1105, 1106 n.1 (2d Cir. 1977); Johnson v. Glick, 481 F.2d 1028, 1032-33 (2d Cir.), cert. denied sub nom. John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973); Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir. 1970). See generally Griswold v. Connecticut, 381 U.S. at 484, 85 S.Ct. at 1681. The precise basis for this right is substantive due process. See Bell v. Wolfish, 441 U.S. at 535 n.16, 99 S.Ct. at 1872 n.16; King v. Blankenship, 636 F.2d at 72; Loe v. Armistead, 582 F.2d at 1293-94.

The question that remains is whether the misconduct alleged by Henderson falls within the scope of this due process right to physical integrity.² The general test for identifying conduct that violates due process is to determine whether a particular action "shocks the conscience." Rochin v. California, 342 U.S. at 172, 72 S.Ct. at 209. The Fourth Circuit has created specific guidelines for implementing this standard in physical abuse cases:

The unjustified striking, beating, or infliction of bodily harm upon a prisoner gives rise to liability under 42 U.S.C. § 1983 on the part of one who, acting under color of state law, engages in such conduct without just cause .... However, not every instance of the use of excessive force gives rise to a cause of action under § 1983 merely because it gives rise to a cause of action under state tort law or is prosecutable under criminal assault and battery law. The key phrases "unjustified striking, etc." and "without just cause" in our statement of the rule must be read with reference to the Eighth and Fourteenth Amendments and not to state tort law even though an excessive use of force giving rise to a cause of action under § 1983 most probably will also give rise to a cause of action under state tort law.

The precise formulation of when the excessive use of force gives rise to a cause of action under § 1983 is not an easy one, but in Johnson v. Glick, 481 F.2d at 1033, the factors to be considered were identified as follows:

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.

King v. Blankenship, 636 F.2d at 72-73. The court will apply these guidelines in deciding whether Henderson's complaint states a valid substantive due process claim.³

For the purposes of deciding this question, the court must assume that the plaintiff's allegations are true. His complaint passes the threshold test of alleging that Counts struck him maliciously and without provocation. The complaint, however, fails to mention the severity of the injuries inflicted upon the plaintiff by Counts....