Bailey v. Turner

• Decision Date: 02 October 1984
• Docket Number: No. 82-6552,82-6552
• Parties: Harold BAILEY, Appellant, and Bennie Lee Linder, Plaintiff, v. Bernice F. TURNER, Superintendent, Blanch Prison Unit, Route 1, Box 140, Blanch, N.C., individually and in his Official Capacity; Ralph Edwards, Commissioner, N.C. Department of Correction, in his Official Capacity; David L. Jones, Secretary, N.C. Department of Social Rehabilitation and Control, in his Official Capacity; B.F. Oakes, Asst. Supt., Blanch Correctional Institution, Individually and in his Official Capacity; Horace Pippin, Steward, Blanch Correctional Institution, Individually and in his Official Capacity; and Newman Bradshaw, Lindus Farmer, Sergeant Kirby, Officers Jefferies, Harris, Mise, Lipscomb, Ashley, Ellington, Willis, Duncan, Oakley, Tarpley, and Lt. West, all in their Individual Capacities, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 963

736 F.2d 963

Harold BAILEY, Appellant and Bennie Lee Linder, Plaintiff, v. Bernice F. TURNER, Superintendent, Blanch Prison Unit, Route 1, Box 140, Blanch, N.C., individually and in his Official Capacity; Ralph Edwards, Commissioner, N.C. Department of Correction, in his Official Capacity; David L. Jones Secretary, N.C. Department of Social Rehabilitation and Control, in his Official Capacity; B.F. Oakes, Asst. Supt Blanch Correctional Institution, Individually and in his Official Capacity; Horace Pippin, Steward, Blanch Correctional Institution, Individually and in his Official Capacity; and Newman Bradshaw, Lindus Farmer, Sergeant Kirby, Officers Jefferies, Harris, Mise, Lipscomb, Ashley Ellington, Willis, Duncan, Oakley, Tarpley, and Lt. West, all in their Individual Capacities, Appellees.

No. 82-6552.

United States Court of Appeals, Fourth Circuit.

Argued April 15, 1983.

Decided June 7, 1984.

Rehearing and Rehearing En Banc Denied Oct. 2, 1984.

Thomas F. Loflin, III, Durham, N.C. (Loflin & Loflin, Durham, N.C., on brief), for appellant.

James Peeler Smith, Asst. Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen., Raleigh, N.C., on brief), for appellee.

Before RUSSELL and ERVIN, Circuit Judges, and RICHARD B. KELLAM, District Judge for the Eastern District of Virginia, sitting by designation.

DONALD RUSSELL, Circuit Judge.

This is a 42 U.S.C. Sec. 1983 action brought by a prisoner housed at the Blanch Correctional Institution, a facility of the North Carolina Department of Correction, against various employees and prison officials of the Department of Correction, to recover damages for alleged cruel and unusual punishment, suffered by him when he was "maced" in his cell by Lieutenant West of the prison staff. ¹ A jury trial was had. At the conclusion of the testimony, the Magistrate, to whom the action had been committed by agreement, submitted the cause to the jury on, so far as the appellant was concerned, three interrogatories. These interrogatories, as statements of the issues to be resolved by the jury, were apparently agreed to by the parties and were explained to the jury in the Magistrate's instructions.

The liability of the defendant West, as set forth in the plaintiff's complaint, was based on an alleged violation of the constitutional prohibition against "cruel and unusual" treatment arising out of his macing by West while confined in his prison cell. Without objection, the cause was submitted to the jury. In his jury instructions on the standard of "cruel and unusual punishment" to be applied by them in resolving the issue of liability in this case, the Magistrate charged the jury that the use of mace "by and of itself does not establish excessive and unjustified force" violative of a prisoner's constitutional right to be free of "cruel and unusual punishment," that "the reasonableness of its use (in the prison context) depends on the surrounding circumstances," that it "may be reasonably used to quell disorders and to compel obedience but not to punish a prisoner," and that, in determining whether the use was reasonable under the circumstances of the case, the jury should consider "one, the need for the application of the force; two, the relationship between the need for force and the amount of force used; three, the extent of injury inflicted; and four, whether the force was applied in good faith effort to maintain or restore discipline or was used maliciously or sadistically for the very purpose of causing harm." He, also, instructed the jury that, even if the defendant West had "unjustifiably used ... excessive force against Plaintiff," he would not be liable if he "acted in good faith and with a reasonable belief in the lawfulness of his ... actions" under all the circumstances but the burden of establishing such "reasonable belief" was an affirmative defense of which the defendant had the burden of proof. This, the Magistrate told the jury, was known as a "good faith defense," the elements of which were "first, that the particular Defendant reasonably believed that he was acting within his lawful authority, that is, that he reasonably believed that using, authorizing, or acquiescing in the use of mace was justified under the circumstances; and second, that the particular Defendant acted in good faith on the basis of his reasonable belief."

After these statements of the substantive issues of liability, the Magistrate then advised the jury on the form in which they should express their verdict. For this purpose, he submitted two interrogatories relating to the possible substantive liability of the defendant West. The first interrogatory on liability of the defendant West (interrogatory number 2) called for an answer to the question whether West had "violate[d] the plaintiff's constitutional right to be free from cruel and unusual punishment by the use of excessive and unreasonable force against him," in the use of mace on the occasion in question. The jury was instructed that if their answer to this interrogatory was "Yes," then they were to go on to interrogatory number 4, which, as it related to the defendant West, involved what the Magistrate denominated as the defendant's "good-faith" defense. This interrogatory inquired of the jury whether, if the defendant West had "unjustifiably used, ... excessive force against ... plaintiff," had he (the defendant West) "act[ed] in good faith and with a reasonable belief in the lawfulness of his actions." The jury was directed that if they found from the evidence that the defendant West had so acted, then they "should answer issue number four [which was the issue just quoted], 'Yes.' " He added that, "You [referring to the jury] should not go on to consider issue number five [which was the damages part of the interrogatories] unless you have answered 'no' as to" the defendant West in response to interrogatory four. The jury followed these instructions. They answered both the second and fourth interrogatories addressed to them in connection with the defendant West's possible liability "Yes." It necessarily followed, therefore, that under the Magistrate's instructions, the jury was not to award the plaintiff damages and such was the jury's response. Judgment was accordingly entered in favor of the defendant West and this appeal by the plaintiff followed.

The plaintiff on appeal argues that the Magistrate erred in submitting to the jury the issue of good-faith in the use of mace under the circumstances of this case, and in admitting evidence in support of such defense. He, also, argues that if the good faith of the defendant West were in issue, the Magistrate should have charged the jury that the good faith defense requires the establishment not of a subjective belief in the lawfulness or reasonableness of an officer's conduct, but of an objective standard of such reasonable belief.

The difficulty with this argument of the plaintiff is that it was not properly raised at trial. The interrogatories submitted to the jury were, it seems clear from the colloquy between the Magistrate and counsel during discussion of the jury instructions, agreed upon by the parties. Certainly, when the interrogatories were stated and explained by the Magistrate in his instructions to the jury, there was no objection to the submission of the cause in the form of such interrogatories or to the propriety of the interrogatories as proper statements of the issues to be resolved in the case by the jury by their verdict. Under those unobjected to instructions, the jury was, as we have seen, directed to proceed no further (in effect, to make no award of damages in favor of plaintiff) if the answer to the so-called "good faith" interrogatory was "Yes." Under these circumstances, the plaintiff is in no position to assert error in the instructions or in the ruling of the Magistrate on the interrogatories submitted by him to the jury, the answers to which were to be dispositive of the plaintiff's claim. Though we consider the affirmance of the judgment below proper for the reasons already stated, the dissent would reverse. It would appear that, since the dissent raises issues not addressed by us in our exposition of our reasons for affirming the judgment below, we should comment on the reasoning of the dissent for its contrary conclusion.

The reasoning on which the dissent would reverse the judgment below is in the form of a syllogism consisting of three interdependent legal premises or conclusions. The first and major premise in this syllogistic exposition is that macing a prison inmate in his cell is "clearly prohibited" by the federal law in this circuit and is accordingly per se unconstitutional. Because it finds that this constitutional principle was "clearly" established in the federal law of this circuit at the time this action arose, the dissent postulates that the defendant "should have known that the use of tear gas under those conditions constituted cruel and unusual punishment" and, since he did or should have known such fact, the dissent concludes that "as a matter of law a good faith defense was not available to the defendant." ² Having reached this point, the dissent would find that the giving of a good faith immunity instruction, though not objected to at trial, the "failure to object [did] not preclude appellate review [and reversal because] the instruction 'plainly misstate[d] fundamentally controlling substantive' principles." It is thus evident that the dissent's reasoning rests entirely on the correctness of its initial major premise that macing by the defendant of the plaintiff while the latter was locked in his cell was a constitutional violation under the clearly established law of this circuit. We accordingly address this fundamental and central thesis of the dissent.

In support of its central thesis, the dissent cites two cases, only one of which is a decision of this court, Landman v. Peyton, 370 F.2d 135, 138 (4th...