636 F.2d 70 (4th Cir. 1980), 78-6184, King v. Blankenship

Docket Nº:78-6184.
Citation:636 F.2d 70
Party Name:Emmitt G. KING, Appellant, v. W. D. BLANKENSHIP, Superintendent; Louise D. Hall, Magistrate; James E.Johnson, Treatment Supr.; S. L. Townley, Captain of Guards, Appellees.
Case Date:December 05, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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636 F.2d 70 (4th Cir. 1980)

Emmitt G. KING, Appellant,


W. D. BLANKENSHIP, Superintendent; Louise D. Hall,

Magistrate; James E.Johnson, Treatment Supr.; S.

L. Townley, Captain of Guards, Appellees.

No. 78-6184.

United States Court of Appeals, Fourth Circuit

December 5, 1980

Argued Oct. 6, 1980.

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Rebecca Thompson Helton and Wayland J. Sermons, Jr., Third Year Law Students (Kenneth A. Zick, Associate Professor of Law, Wake Forest University School of Law, Winston-Salem, N. C., J. Clark Fischer, Third Year Law Student, on brief), for appellant.

Guy W. Horsley, Jr., Asst. Atty. Gen., Richmond, Va. (Marshall Coleman, Atty. Gen. of Virginia, Richmond, Va., on brief), for appellees.

Before WINTER, Circuit Judge, FIELD, Senior Circuit Judge, and PHILLIPS, Circuit Judge.

WINTER, Circuit Judge:

Adopting the factual findings and legal conclusions of the magistrate, the district court adjudged that Emmitt G. King had failed to sustain his claim that the excessive use of force on two occasions by officers at Bland Correctional Center, a Virginia penal institution, entitled him to relief under 42 U.S.C. § 1983. With respect to one incident, that of March 25, 1977, King appeals. We decide that the district court's ultimate finding that King failed to prove actionable excessive use of force on the part of James E. Johnson was clearly erroneous. [*] We reverse and remand for the assessment of damages.


At the trial before the magistrate in which King was represented by counsel, the proof showed that on March 25, 1977, he came before a prison disciplinary committee ostensibly for a hearing on a charge lodged against him. Present in the hearing room were defendant, Johnson, who was Chairman of the Committee and two correctional officers, D. L. Lambert and R. L. Saunders.

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No other inmates were present in the room. King was informed that the charge against him had been dropped, and upon receiving this information King rose from his chair and started toward the door.

Johnson called King back and delivered to him a lecture regarding King's behavior in prison and the general dislike that each man felt for the other. At some point during the conversation King leaned down and placed his hands upon the desk behind which Johnson was sitting. Johnson admonished King to remove his hands from the desk and King obeyed. Nevertheless, Johnson reached over the desk and grabbed a portion of King's abundant beard. While still grasping the beard, Johnson moved around the desk and threw the much smaller King to the floor pulling an entire portion of King's beard out of his cheek.

Precisely what happened next was a subject of conflicting testimony. King testified that Johnson grabbed him by the beard, slapped him on the head and finally knocked him down, and that when he was down he was hit some more and also kicked. King testified that throughout the incident he told Johnson that he had no desire to fight. The magistrate found that King was sincere in this protestation and also "well advised" to take this position because of the significant size differential between the two men.

Johnson's version is that when King leaned on the desk he (Johnson) thought that he was in physical danger because of King's reputation for misbehavior and King's prior animosity toward him and because there were on the desk a tape recorder, stapler, ashtray, and hole punch which could be used as weapons. As a consequence, Johnson thought it necessary to grab King, pull him forward, throw him back off the desk and pin him to the floor. Johnson emphatically denied that he slapped or kicked King. The magistrate, however, evidently believed King because he found that "Johnson threw King to the floor and slapped King several times around the face and upper torso."

The magistrate also found...

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