Arroyo v. Schaefer, 484

• Decision Date: 11 January 1977
• Docket Number: No. 484,D,484
• Citation: 548 F.2d 47
• Parties: Pedro ARROYO and Christopher McCormack, Plaintiffs-Appellants, v. Peter M. SCHAEFER, former Deputy Warden in Command, Manhattan House of Detention, et al., Defendants-Appellees. ocket 76-2098.
• Court: U.S. Court of Appeals — Second Circuit

Page 47

548 F.2d 47

Pedro ARROYO and Christopher McCormack, Plaintiffs-Appellants, v. Peter M. SCHAEFER, former Deputy Warden in Command, Manhattan House of Detention, et al., Defendants-Appellees.

No. 484, Docket 76-2098.

United States Court of Appeals, Second Circuit.

Argued Dec. 2, 1976.

Decided Jan. 11, 1977.

Marjorie M. Smith, New York City (William E. Hellerstein and The Legal Aid Society, New York City, of counsel), for plaintiffs-appellants.

L. Kevin Sheridan, New York City (W. Bernard Richland, Corp. Counsel, New York City, of counsel), for defendants-appellees.

Before MOORE, FEINBERG and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal from an order of the District Court for the Southern District of New York, Knapp, D. J., dismissing a complaint seeking damages for alleged violations of 42 U.S.C. § 1983 after the plaintiffs had presented their case in a trial before a jury.

The plaintiffs-appellants ¹ were pretrial detainees in the Manhattan House of Detention for Men (the "Tombs") at the time of the incident alleged. The defendants-appellees are the former Deputy Warden, two Assistant Deputy Wardens, three Captains, two Correction Officers and a prison physician. ² After plaintiffs filed their complaint pro se, the District Court appointed the Legal Aid Society Prisoners' Rights Project to represent them.

I

The basis of plaintiffs' § 1983 claim is an incident in the Tombs in September, 1972. It involved the efforts of prison authorities to return another detainee, Hughes, to his cell. The particulars of the incident were supplied by the testimony of the two appellants.

While the detainees were confined to their cells for a "lock-in" period, Hughes was mistakenly allowed to leave his cell. He was supposed to remain inside his cell throughout the day for punitive reasons. He had been moved from punitive segregation to appellants' section of the prison because he had made trouble for the other prisoners in punitive segregation. Appellant McCormack acknowledged that Hughes was a "trouble-maker," had a reputation "for getting tough" and was in the habit of throwing objects especially broomsticks, at others in the prison.

Hughes refused the order of a correction officer to return to his cell, as he had refused to do in the past. A Captain came and talked to Hughes for five to ten minutes in an effort to persuade him to go back into his cell.

Other officers appeared in the area, some of whom had tear gas dispensers. When the detainees on the floor observed these other guards, Arroyo and McCormack testified that everyone asked to be let out to avoid the gas. Although McCormack testified that the inmates wanted to get out to help the guards put Hughes back into his cell, Arroyo testified that some detainees wanted to get out to help Hughes. In any case, "everyone was talking, making noise, and discussing" and "screaming trying to get out of the cells."

Hughes, in the meantime, "got together a few household utensils that he was going to use in his defense . . . (and) was prepared to make his stand . . . ." A correction officer began to discharge tear gas dust at Hughes. Hughes dodged the dust and the officer in redirecting his aim dispensed a total of three bursts. With the aid of other officers Hughes was subdued.

The dispenser was equipped to discharge for a total of ten seconds, in one-second bursts if desired. McCormack testified that each of the three bursts lasted from three to five seconds and described the scene following the discharge of the dust as follows:

". . . we were choking and everyone was trying to get towels, and to, you know, trying to avoid all this discomfort and at the same time there was a lot of confusion. Everybody is panicking. We were asking to be let out ourselves. The officers and everything, they were going about dragging Mr. Hughes out."

After the incident the detainees testified that they had asked to be let out of their cells and removed from the area. Nevertheless, they remained in their cells for 45 minutes up to two hours after the incident. When they were permitted to leave their cells, they were not permitted to leave the immediate area. The shower in appellants' section was broken. Arroyo was told by an officer that they could not go to another section to take a shower because there was only one shower in that section and it was in use.

After the incident, nurses were in the section dispensing medication. Appellants testified that they asked the nurses for medical help, but were not treated for tear gas effects. It was established without contradiction that the nurses themselves wore no protection, such as gas masks. The next shift of guards, however, were said to have worn gas masks. McCormack himself acknowledged that the prison authorities after the incident might have placed fans in the section.

Plaintiffs' expert witness was a doctor who was a member of the Medical Committee for Human Rights and who had treated about two dozen persons in various demonstrations throughout the country. He testified that CN was not really a gas but a dust like talcum powder, and that it can be irritating to the moist membranes of the body, eyes, nose, throat and the lining of the respiratory tract. He gave it as his opinion that people exposed to it should be removed from the area. The experience of tear gas inhaling he said can be very "frightening." The expert did not say that exposure to this type of tear gas was likely to have lasting effects.

II

The amended complaint charges that "(d)efendants unnecessary and indiscriminate use of tear-gas and their failure to take subsequent measures to reduce or limit the impact of the gas upon plaintiffs deprived plaintiffs of their right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment and of their right to be free from the infliction of harm without due process of law as guaranteed by the Fourteenth Amendment." The District Court, in an oral opinion, after the plaintiffs had presented all their evidence, as we have seen, dismissed the amended complaint as to all defendants.

The test of an Eighth Amendment violation of a prisoner's rights was set forth in Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974), as "conduct which 'shocks the conscience.' " There must be present "circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control or dependent upon him." 508 F.2d at 543-44, 546.

Recently the Supreme Court in Estelle v. Gamble, --- U.S. ----, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), cited Williams in its formulation of a similar standard under the Eighth Amendment in § 1983 actions. There Mr. Justice Marshall stated:

"(I)n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute a "wanton infliction of unnecessary pain" or to be "repugnant to the conscience of mankind." . . .

Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."

--

- at ----, 97 S.Ct. at 292. (Emphasis added).

While the Eighth Amendment may not, strictly speaking, be applicable to pretrial detainees, as Judge Friendly noted in Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 32 (1973), due process requires no more in this context. ³

Under either constitutional provision, plaintiffs must establish more than a common law tort violation. In Johnson v. Glick, supra, which also involved pretrial detainees, this...