Layne v. Vinzant

• Decision Date: 23 September 1981
• Docket Number: 80-1244,Nos. 80-1152,s. 80-1152
• Citation: 657 F.2d 468
• Parties: Robert M. LAYNE, Plaintiff, Appellee, v. Douglas VINZANT, Frank Hall and Charles Gaughan, Defendants, Appellants. Robert M. LAYNE, Plaintiff, Appellant, v. Douglas VINZANT et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 468

657 F.2d 468

Robert M. LAYNE, Plaintiff, Appellee, v. Douglas VINZANT, Frank Hall and Charles Gaughan, Defendants,

Appellants.

Robert M. LAYNE, Plaintiff, Appellant, v. Douglas VINZANT et al., Defendants, Appellees.

Nos. 80-1152, 80-1244.

United States Court of Appeals, First Circuit.

Argued Oct. 9, 1980.

Decided July 31, 1981.

Rehearing and Rehearing En Banc Denied Sept. 23, 1981.

Jonathan Shapiro, Boston, Mass., with whom Anne B. Goldstein and Stern & Shapiro, Boston, Mass., were on brief, for Robert M. Layne.

James Remeika, Counsel, Dept. of Correction, Boston, Mass., with whom Michael C. Donahue, Sp. Asst. Atty. Gen., Boston, Mass., was on brief, for Douglas Vinzant.

Roberta Thomas Brown, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., were on brief, for Frank Hall and Charles Gaughan.

Before COFFIN, Chief Judge, ALDRICH and PELL ^*, Circuit Judges.

ALDRICH, Senior Circuit Judge.

These are cross appeals following a jury trial of a Civil Rights action, 42 U.S.C. § 1983. Plaintiff, Robert M. Layne, is a Massachusetts prisoner serving a sentence for kidnapping and for the shooting of two state policemen for which he will not be eligible for parole for some time. The now remaining defendants ¹ are Charles W. Gaughan, Superintendent MCI (Massachusetts Correctional Institution) Bridgewater, at all material times; Frank Hall, Commissioner of Corrections, October 1, 1973 to the date of trial; Douglas Vinzant, Superintendent MCI-Walpole, September 5, 1973 through 1974, and Walter Moquin, at all material times Supervising Correctional Officer at Bridgewater under Gaughan. In answers to special questions the jury found compensatory damages in the amount of $75,000 against Gaughan, Hall and Vinzant, jointly, for "deliberate indifference to a serious medical need," adding, as punitive damages Gaughan, $7,500, Hall, $7,500, and Vinzant, $15,000. In addition, the jury found against Vinzant for transferring plaintiff from Walpole to Bridgewater in order to violate plaintiff's right of access to the courts, awarding $10,000 compensatory and $2,000 punitive damages, and against Moquin, for keeping plaintiff's legal materials from him for the same purpose, $5,000 compensatory and $1,000 punitive. The jury found in favor of Moquin on the deliberate indifference claim, in favor of Hall on the improper transfer claim, and in favor of Gaughan on the denial-of-papers claim. The court set aside all punitive damages and entered judgment n. o. v. for defendants on the access claims. It refused to enter judgment n. o. v. or to grant a new trial on the remaining $75,000 finding. Plaintiff and the three defendants appeal.

Defendants' basic complaint is that the evidence did not warrant findings against them. In part they point to the fact that much of their conduct or nonconduct occurred before the leading Supreme Court case of Estelle v. Gamble, 1976, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251, quoted by the court in the charge. We find this irrelevant. a) There were a number of similar lower court cases decided prior to Estelle, as the Court there noted, 429 U.S. at 106 n.14, 97 S.Ct. at 292 n.14. b) To the extent that Estelle, or any of these cases, represented new law, it was that the courts would enforce liability for such behavior, not that, until then, conduct there held actionable was moral or proper or acceptable. It should not require a Supreme Court decision to point out that a superintendent of a prison does not have the choice of whether to be a good samaritan or to pass by, Luke 10:33, at least what he sees. Rather, we hold that while defendants are not "charged with predicting the future course of constitutional law," Pierson v. Ray, 1967, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288, they are expected to conform to "the evolving standards of decency that mark the progress of a maturing society." Estelle, ante, 429 U.S. at 102, 97 S.Ct. at 290.

On the other hand, a case involving nonconduct may, and this one does, present far more difficult questions than the case of an easily recognizable, affirmative act. E.g., Furtado v. Bishop, 1 Cir., 1979, 604 F.2d 80, cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (physical beatings). The difficulties are compounded when it is supervisory officials, rather than those with direct, day-to-day contact with the prisoner, who are sought to be charged, and particularly so when the latter are acquitted. Because "an inadvertent failure to provide medical care" is not actionable, even if negligent, Estelle, ante, 429 U.S. at 105-06, 97 S.Ct. at 291-92, and because there is no respondeat superior liability under section 1983, Kostka v. Hogg, 1 Cir., 1977, 560 F.2d 37, 40, see Sims v. Adams, 5 Cir., 1976, 537 F.2d 829, 831-32, the ultimate question ² is the state of mind of the defendant. When a supervisory official is placed on actual notice ³ of a prisoner's need for physical protection or medical care, "administrative negligence can rise to the level of deliberate indifference to or reckless disregard for that prisoner's safety." West v. Rowe, N.D.Ill., 1978, 448 F.Supp. 58, 60; see Corby v. Conboy, 2 Cir., 1972, 457 F.2d 251, 254; Martinez v. Mancusi, 2 Cir., 1970, 443 F.2d 921, 924, cert. denied, 401 U.S. 983, 91 S.Ct. 1202, 28 L.Ed.2d 335. The question is charging them with reasonable inquiry, and allowing for reliance on the opinions of the treating doctors, see McCracken v. Jones, 10 Cir., 1977, 562 F.2d 22, 24, cert. denied, 435 U.S. 917, 98 S.Ct. 1474, 55 L.Ed.2d 509, how did the overall picture appear? What appeared to lack doing? What could be done?

Before turning to the evidence we note two guiding principles governing our review. The first is that while, on a defendant's motion, it is axiomatic that the evidence is to be viewed in the light most favorable to the plaintiff, the "field of vision" encompasses, to a degree, uncontradicted evidence introduced by the defense. Grayson v. Pride Golf Tee Co., 1 Cir., 1970, 433 F.2d 572, 576; Dehydrating Process Co. v. A. O. Smith Corp., 1 Cir., 1961, 292 F.2d 653, 656 and n.6, cert. denied, 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 194. This principle is particularly applicable to documentary evidence, the existence of which although in some cases its truthfulness is not affirmatively denied by plaintiff. Such documents, where prepared by others and part of the institutional records, are part of the picture before supervisory defendants as bearing on their knowledge and state of mind.

The second principle relates to the fact that none of the present defendants, except Moquin, testified. Plaintiff seeks to invoke the rule that if a party who is shown to have knowledge of a fact fails to testify, there is an inference that his testimony would not be favorable to him. Cf. Commercial Ins. Co. v. Gonzales, 1 Cir., 1975, 512 F.2d 1307, 1314-15, cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (unproduced document). Such an inference, however, cannot, of itself, be used to satisfy the opponent's burden of proof.

"(T)he failure of a party to testify and the permissible inference to be drawn therefrom will not convert evidence otherwise insufficient into a prima facie case." Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge MR. CHARLIE, 5 Cir., 1970, 424 F.2d 684, 694, cert. denied, 400 U.S. 832, 91 S.Ct. 65, 27 L.Ed.2d 64.

"The inference cannot take the place of evidence; it cannot supply a deficiency in the other party's case nor can it be regarded as proof of any essential fact. As has been said, the effect of the failure to call the witness is 'persuasive rather than probative.' " (Citations omitted). Laffin v. Ryan, 1957, 4 App.Div.2d 21, 162 N.Y.S.2d 730, 736.

Contentions in plaintiff's brief that "the jury could infer, in the absence of evidence to the contrary, that defendant Gaughan ...." are unsound. If there was an independent basis for an inference with respect to Gaughan, the jury could draw it, and could do so whether there was evidence to the contrary or not. Plaintiff, however, seeks to create the inferences solely from the fact that defendants did not testify. This cannot be done.

Turning to the evidence, plaintiff escaped from a Connecticut mental institution, where he was being held for observation pending trial on federal charges. Later he was stopped for questioning by two Massachusetts state troopers, whom he shot. On September 14, 1971 he was apprehended. ⁴ He spent the night in the state police barracks, and was arraigned in the Worcester Superior Court the following day and taken to MCI Bridgewater for medical and psychiatric observation. While at the barracks, and again in the cruiser on the way to Bridgewater, he was severely beaten, including blows to the head, by unidentified state troopers. His course thereafter was as follows.

Charles W. Gaughan (Bridgewater) (September 1971 June 1972) ⁵

The original complaint, written pro se, and in considerable detail, charged Gaughan with wrongfully removing plaintiff from the Massachusetts General Hospital, and the supplemental complaint charged him, and others, with depriving plaintiff of his papers to interfere with the prosecution of this suit, as to which latter the jury acquitted him. Neither charged him with improper medical treatment in any other respect, but plaintiff did so, successfully, at the trial, and as the pleadings could have been amended, F.R.Civ.P. 15(b), we will consider it to have been done.

Upon his arrival at Bridgewater plaintiff had been diagnosed as having, inter alia, a brain concussion and possible brain contusion a "bruise on the brain." Due to deterioration in his condition he was transferred the day after his arrival to Massachusetts General Hospital. His Discharge Summary four days later diagnosed a "cerebral contusion of right hemisphere with probable hemiparesis of...