Sellers v. Roper, Civ. A. No. 82-0061-R.

• Citation: 554 F. Supp. 202
• Decision Date: 28 December 1982
• Docket Number: Civ. A. No. 82-0061-R.
• Parties: Keith D. SELLERS v. Leroy ROPER, et al.
• Court: U.S. District Court — Eastern District of Virginia

554 F. Supp. 202

Keith D. SELLERS v. Leroy ROPER, et al.

Civ. A. No. 82-0061-R.

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

December 28, 1982.

Keith D. Sellers, pro se.

Richard L. Jones, Petersburg, Va., for defendants.

OPINION

WARRINER, District Judge.

Plaintiff, inmate at Mecklenburg Correctional Center, proceeding pro se and in forma pauperis, filed this action on 11 March 1982, alleging violations of his constitutional rights under § 1983. Defendants responded with a motion for summary judgment supported by affidavits on 21 April 1982. Plaintiff thereupon filed a motion for summary judgment on 12 May 1982, to which defendants responded on 18 May 1982. The parties' respective motions for summary judgment are now ripe for consideration.¹

Plaintiff advances several charges, namely that:

1) defendant Kenneth L. Bage, Officer at the Petersburg Correctional Center, battered him on 30 July 1981;

2) plaintiff was improperly committed to isolation pending an Adjustment Committee hearing and appeal on a charge relating to this incident;

3) plaintiff has been denied outdoor physical recreation; and

4) plaintiff has been denied access to a law library.

I.

With regard to his first charge, plaintiff claims that on 30 July 1981 he was walking down a hall to get a cleaning implement in connection with the authorized cleaning of a cell when defendant Bage stopped him, asked where he was going, and grabbed plaintiff's wrist when plaintiff proceeded to walk on. Plaintiff describes a scuffle that ensued, with defendant grabbing plaintiff, forcing him to bend over, and elbowing him in the back.

In an affidavit, defendant Bage responds that plaintiff was not on the clean-up crew and was supposed to be on his way to the library. Defendant asked or ordered plaintiff to enter the library but plaintiff refused, insisting that he was going to help the clean-up crew. Defendant asserts that plaintiff started the scuffle and defendant describes the scuffle in terms similar to plaintiff's, adding that two other inmates got involved.

Though the charge of unjustified striking has recently been several times addressed in this Circuit, the Court is seriously concerned that the applicable law provides inadequate guidance as to how it should be treated.

In King v. Blankenship, 636 F.2d 70 (1980), the Fourth Circuit Court of Appeals held that "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." Id. at 72. Having made this declarative statement of the law, the Court of Appeals noted, however, that § 1983 imposes liability for violations of rights protected by the U.S. Constitution in contradistinction to liability arising out of tort law. Id. at 73, quoting Baker v. McCollan, 443 U.S. 137, 139, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). The Circuit Court stated that the key phrases, "unjustified striking" and "without just cause" must be read with reference to the Eighth and Fourteenth Amendments and not to State tort law. The Fourth Circuit's formulation does not give guidance as to where the line is crossed from a tort "unjustified striking" to a constitutional "unjustified striking" other than by reference to Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

The Court's rule is evidently followed in a subsequent unpublished opinion in Cooper v. Baines, 691 F.2d 493 (4th Cir.1982). In Cooper, plaintiff was struck several times by defendant and claimed a deprivation of constitutional rights, presumably the right to be free from "cruel and unusual punishment" or perhaps a due process liberty violation. The Court reversed summary judgment since "at issue is the amount of force used by defendants and whether that force is justified." Cooper at slip op. 3. See to the same effect Grier v. Keever, 694 F.2d 716 (4th Cir.1982); Lew v. Hutto, 691 F.2d 492 (4th Cir.1982).

This Court must admit that it is rudderless on the problem. While the Court of Appeals has stated that the phrase "unjustified striking must be read with reference to constitutional law," that Court has provided no standard for determining when a blow is a mere tort and when it is a constitutional deprivation.

Clearly, the amount of force used, Cooper v. Baines at slip op. 3, cannot in itself be dispositive. As the Supreme Court held in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1944), "the fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right secured by the Constitution or laws of the United States." Id. at 108-109, 65 S.Ct. at 1039; see Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1980). Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Paul v. Davis, 424 U.S. 693, 705, 96 S.Ct. 1155, 1162, 47 L.Ed.2d 405 (1976).

King and its progeny simply do not specify just how hard a blow must be to violate the Constitution. They do not state whether this inquiry should depend on the relative size of victim and assailant or on an unexpected and unknown vulnerability of the victim. How is a judge or jury to know? The glib answer may be that a judge must determine when the line has been crossed on a case-by-case basis. But King provides no rationale to guide the Court on a case-by-case basis.²

Indeed, King's vagueness necessarily requires that all such cases be heard ore tenus to determine how hard the blow was in the context of all facts and circumstances. U.S. district courts are thus a special forum in which to litigate fights between prisoners and guards. More pertinent to this opinion, even after making the factual determination by means of an evidentiary hearing, the District Court has no standard by which to gauge whether that force was unconstitutionally excessive.³ What words should a trial court use in instructing a jury to determine when the constitutional line has been crossed? King gives no model instruction nor even a rationale upon which an instruction can be modeled.

Despite twenty-five years' experience first as a lawyer then as a judge, I reluctantly find that I do not know the law on when a fight between a guard and a prisoner violates the U.S. Constitution. Both the trial courts and the litigants deserve to know the limits and the implications of this constitutional right.

The Court would note further that the opinion in King v. Blankenship, (as well as Johnson v. Glick) fails to consider the adequacy of the statutory and common law tort remedies available in State court as we have been directed to do by the Supreme Court in the case of other common law torts. See e.g. Parratt v. Taylor, Estelle v. Gamble, Paul v. Davis, Ingraham v. Wright. Under King there will be a considerable further expansion of actions by State prisoners under 42 U.S.C. § 1983. And given the present guidance a trial will be necessary in every case. Johnson v. Glick at 1030. Yet, the Supreme Court has held that § 1983 was not intended to be a font of tort law. Paul v. Davis, 424 U.S. at 700-701, 96 S.Ct. at 1160-61.

This Court holds the view that Screws and its progeny, e.g. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711; Paul v. Davis, 424 U.S. 693, 705, 96 S.Ct. 1155, 1162, 47 L.Ed.2d 405; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251; Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433; Parratt v. Taylor, 451 U.S. 527, 543, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420, require a finding that an allegation of unjustified striking alone, without a factual allegation of, for instance, a striking affecting other substantive constitutional rights of a plaintiff,⁴ simply does not state a constitutional claim and that a prisoner should therefore pursue tort remedies in State court.⁵ This Court is nevertheless constrained somehow to apply language set forth in King v. Blankenship and the subsequent unreported cases.

The Fourth Circuit Court of Appeals has stated that

While the precise formulation of when the excessive use of force gives rise to a viable § 1983 claim is not an easy one, the factors which must be considered are: (1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of injury inflicted; and (4) whether force was applied in a good faith effort to maintain or restore discipline, or maliciously or sadistically for the very purpose of causing harm.⁶

Lew v. Hutto, 691 F.2d 492 (4th Cir.1982) citing Johnson v. Glick, 481 F.2d 1028, 1033; see King v. Blankenship, 636 F.2d 70.

Applying these factors to the case at hand, the Court recognizes the strength of defendants' argument that the use of force was justified under the circumstances presented by the record. Defendant Bage avers that plaintiff was supposed to be on his way to the library when defendant asked or ordered plaintiff to enter the library. Plaintiff refused, insisting that he was going to help a clean-up crew to which he had not, however, been assigned. Defendant asserts that plaintiff started the scuffle; defendant describes the scuffle in terms similar to plaintiff's, adding that two other inmates got involved. Plaintiff has not directly disputed this account of the facts but it is not perfectly clear that under no provable set of facts plaintiff will be unable to prove lack of justification. Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950); cf. Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (motion to dismiss).

As regards the second and third factors, relating to the proportionality of the amount of force that was used to the need, it appears the amount of force was minor as was the need for the application of force. But...