566 F.Supp. 152 (E.D.Va. 1983), Civ. A. 82-0472, Dandridge v. Police Dept. of City of Richmond

Docket Nº:Civ. A. 82-0472
Citation:566 F.Supp. 152
Party Name:Dandridge v. Police Dept. of City of Richmond
Case Date:June 09, 1983
Court:United States District Courts, 4th Circuit, Eastern District of Virginia
 
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Page 152

566 F.Supp. 152 (E.D.Va. 1983)

Anthony Lee DANDRIDGE

v.

The POLICE DEPT. OF the CITY OF RICHMOND.

Civ. A. No. 82-0472-R.

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

June 9, 1983

Page 153

Anthony Lee Dandridge pro se.

James W. Hopper, Richmond, Va., for defendant.

OPINION

WARRINER, District Judge.

Plaintiff, proceeding pro se and in forma pauperis, filed this action under 42 U.S.C. § 1983 on 14 July 1982 and, in response to an order of this Court, filed an amended complaint on 20 July. Defendants filed an answer on 24 August and a motion for summary judgment on 9 December. Plaintiff filed a statement styled "Motion for Judgment" on 22 December and a further statement in response to defendants' motion on 26 January 1983. This matter is now ripe for consideration.

Plaintiff states that on 13 November 1981, he was being pursued by several Richmond City Police officers.

I was apprehended on Brook Road, the Northside Section of the City of Richmond, by an officer [of this] ... department. Also this said officer was accompan[ied] by his dog. I was in a downstairs basement on the outside of an unknown residence, etc. At that time, I heard a voice stating, "Come out with your hands high above the air." At that time, I obeyed his commands and submitted myself totally into his custody etc. At that time, he the officer shouted in a loud tone of voice and commanded the other officers to come to the scene in which we were. He, the said officer's shouting statement was that, "I found him." Immediately I was surrounded by [a number] of officers. At that time, one of the officers approached me and stated, "Where is the gun." And my response in returning was, "What gun." At that time, the officers started hitting and kicking me. I was being inflicted of pain through the use of the officer's blackjack, etc. The only means of protecting myself was to cover up my head with my arms with my jacket. I was thrown on the ground and was stumped upon, etc. Finally, one of the officers handcuffed me, and stated "We should kill you out here." At that moment, I was escorted to the police wagon, upon this escortation, I noticed that the back door of the police wagon was locked. Instantly, I was struck in the mouth by one of the officers, and then he put the stick upon my "Adam-apples." I was then suffering from a lack of breathing. As the officers opened the back door of the police wagon, I was thrown in.... I can recall ... that one of the Deputy who was fingerprinting me stated to the officer [who] arrested me, that I need medical attention, etc. I was then transported to M.C.V. hospital for medical treatment. I was in great pain. I was x-rayed, I was given ice to put on my lips. The x-ray showed that I didn't have any fraction ribs. I was terribly bruised (on stomach).

Defendants have filed numerous affidavits of officers who were either involved in the arrest in question, or in the larger operation culminating in arrest, or who were present when plaintiff was taken to the juvenile division at the police headquarters. In these affidavits, various officers aver

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that plaintiff was not hit or kicked or struck by any police officer, see, e.g., affidavit of Wayne E. Fitchett, and that when plaintiff arrived at headquarters, he showed no lacerations, bruises, or any other evidence of injury. See, e.g., affidavit of Malachi N. Walker. William L. Condrey, Jr., avers further that when plaintiff arrived at headquarters, he Condrey, photographed plaintiff and that plaintiff evidenced no bruises and did not complain of any injury whatsoever. In summary, defendants argue that:

At the time of the arrest, plaintiff was a potentially dangerous person. At the time of the alleged incident, Dandridge was crouched down in a dark basement doorway. He had run and hidden from the police as best he could after committing a robbery in which he used a handgun, and he was presumed to be in possession of the weapon. There was not enough space by the basement door to handcuff plaintiff in the small area where plaintiff was crouched. He was screaming wildly and would not come up from his crouched position when approached by the defendants herein. Moreover, he had been described previously that evening as [a] 6'1"' male.

Defendants also argue that there is no impartial indication of injury to plaintiff from any alleged excessive use of force against him. They state that the Medical College of Virginia Emergency Record dated 13 November 1981 noted that the trauma observed in plaintiff's condition was "not significant." The x-ray report of plaintiff's left ribs indicated "there is no fracture." In an affidavit, Nan F. Dean, Medical Administrator at the Richmond City Jail, states that an entry made in plaintiff's medical file dated 13 November 1981 by a physician's assistant, noted that plaintiff had complained of left flank pain but that there were no evident injuries.

The Court of Appeals for the Fourth Circuit has ruled that an unauthorized striking by a State officer makes out a claim of constitutional deprivation. For reasons developed herein, this Court is concerned that this ruling is at odds with Supreme Court precedent and further that no workable standard has been provided to determine either whether a claim of battery by police requires an evidentiary hearing or, and most important to a trial judge, if a hearing is held, whether a constitutional violation has been proven. Proposing respectfully a basis for distinguishing between a tort and a constitutional violation, the Court concludes that no constitutional violation has been made out in this case.

I.

As the Supreme Court said in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), "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, 65 S.Ct. at 1038; 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, 699-700, 96 S.Ct. 1155, 1159-1160, 47 L.Ed.2d 405 (1976). Justice Douglas, writing for the Court in Screws, asserted that the criminal code involved in that case 1 did not make all tortious deprivations under color of State law into federal crimes; it brought within the statute "only specified acts done 'under color' of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States." Id. 325 U.S. at 109, 65 S.Ct. at 1039. See also Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979); Martinez v. California, 444 U.S. 277, 284, 100 S.Ct. 553, 558, 62 L.Ed.2d 481 (1980); Polite v. Diehl, 507 F.2d 119, 127-140 (3rd Cir.1974) (Kalodner, J.) (concurring and dissenting); Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980); King v. Blankenship, 636 F.2d 70, 73 (4th Cir.1980).

In a recent line of cases, the Supreme Court has insisted on a showing that State

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action challenged under § 1983 "deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-1913, 68 L.Ed.2d 420 (1981). Thus, in Paul v. Davis, supra, the Supreme Court sought to determine what constitutional right might have been deprived by an alleged defamation committed by State police officers. The Court stated that:

[The plaintiff] has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded.

Rather, he apparently believes that the Fourteenth Amendment's Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States.

Id. 424 U.S. at 701, 96 S.Ct. at 1160; see also Baker v. McCollan, supra, 443 U.S. at 145, 99 S.Ct. at 2695. 2

In a case addressing the constitutional implications of allegations of unjustified physical punishment, the Supreme Court inquired first whether a constitutional right was implicated at all and, if so, what protection was required. In Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), the trial court had granted a motion to dismiss the constitutional claims of public school children who had sustained injury as a result of disciplinary paddling. The Court concluded that corporal punishment of school children was not encompassed in the Eighth Amendment's prohibition against cruel and unusual punishment, noting that such punishment was consonant with traditional common law concepts and traditional societal attitudes, id. at 659, 97 S.Ct. at 1406, and pointing out that this prohibition was specifically addressed to the treatment of convicted criminals. Id. at 664, 97 S.Ct. at 1408.

The Supreme Court found, however, that corporal punishment of public school children did implicate the Fourteenth Amendment's prohibition of deprivations of liberty without due process:

While the contours of this historic liberty in the context of our federal system of government have not been defined precisely [footnote omitted], they always have been thought to encompass freedom from bodily restraint and punishment. See Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] [citations omitted] (1952). It is fundamental that the state cannot hold and physically punish an individual except in accordance with due process of law.

Id. at 673-674, 97 S.Ct. at 1413-1414.

Looking to the nature of the interest implicated, the risk of erroneous disciplinary decisions, and the value of...

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