583 F.2d 172 (5th Cir. 1978), 78-1749, McMahon v. Beard

Docket Nº:78-1749
Citation:583 F.2d 172
Party Name:Raymond Alwyn McMAHON, Plaintiff-Appellant, v. Malcolm BEARD, Sheriff of Hillsborough County, Florida, Defendant-Appellee.
Case Date:November 02, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 172

583 F.2d 172 (5th Cir. 1978)

Raymond Alwyn McMAHON, Plaintiff-Appellant,


Malcolm BEARD, Sheriff of Hillsborough County, Florida,


No. 78-1749


United States Court of Appeals, Fifth Circuit

November 2, 1978

Page 173

Raymond Alwyn McMahon, pro se.

Fowler, White, Gillen, Boggs, Villareal & Banker, James E. Thompson, Chris W. Altenbernd, Tampa, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, GEE and FAY, Circuit Judges.

RONEY, Circuit Judge:

In this case we affirm the district court's summary judgment against a pretrial detainee's claim that his solitary confinement, after attempted suicide, in a "strip cell," and the lack of optimum medical care given him, violated his constitutional rights.

Plaintiff McMahon, arrested for the first degree murder of two young girls, was confined in the Hillsborough County Jail. A year and a half later, after he pled guilty and had been removed to another penal facility, he brought a Pro se complaint against the defendant sheriff alleging a 42 U.S.C.A. § 1983 cause of action for cruel and unusual punishment by his conditions of confinement and "medical negligence."

The district court granted leave to proceed In forma pauperis, permitted an amended complaint asserting a class action, sustained both complaints against a motion to dismiss, but twice denied the appointment of an attorney. After certain discovery by both sides, including cross-interrogatories, both plaintiff and defendant moved for summary judgment. Although the case lacked attention for over a year, due to the crowded criminal docket and judicial vacancies in the Middle District of Florida, it eventually came on for a hearing on the cross-motions for summary judgment, with McMahon in attendance and stating his case before the judge.

It appeared that due to high adverse publicity about the crime, plaintiff had been placed in an individual cell for his own protection. Shortly after his confinement, he attempted suicide by hanging himself with strips of his sheets, but was cut down by the jailers. After his attempted suicide, McMahon remained confined in his cell, but the cell was stripped of all material which could be used in another suicide attempt. McMahon's clothing was removed, and he remained nude in the "stripped" cell without a mattress, sheets, or blankets.

The hearing resulted in eliminating any issues of fact asserted to be critical by either party, except the length of time that plaintiff was deprived of his clothing. For

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the purposes of summary judgment, defendant conceded that the court should assume that the condition continued for up to 90 days.

At the conclusion of the hearing, the court denied plaintiff's motion for summary judgment, granted defendant's and gave plaintiff leave to file an amended complaint on the class action that would conform to the class action rules of the court. In announcing his decision at the hearing, the district judge relied upon Novak v. Beto, 453 F.2d 661 (5th Cir. 1971), Cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972). In a written order, the district court cited Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and Gates v. Collier, 501 F.2d 1291, 1301 (5th Cir. 1974), Vacated and remanded on other grounds, 522 F.2d 81 (1975) (en banc). When plaintiff did not file an amended complaint within the time provided, the court dismissed the case with prejudice. We find no error in the district court's judgment.

There were no allegations or evidence proffered suggesting that any other prisoners were accorded the treatment given to plaintiff. The class action request was thus properly denied. Cf. Satterwhite v. City of Greenville, 578 F.2d 987 (5th Cir. 1978) (En banc ).

There is a serious question as to the viability of the case before us. Plaintiff initially asked for declaratory and injunctive relief and $25.00 damages for expenses he had incurred in medical costs. The fact that plaintiff is no longer in defendant's institution removes the efficacy of injunctive relief for him individually, and his failure to properly allege facts to support a class action precludes the grant of injunctive relief for a class. His failure to argue on appeal the inadequacy of medical treatment might appear to be an abandonment of the damage claim for medical expense. Because this was a Pro se complaint, however, and since general...

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