737 F.2d 1148 (D.C. Cir. 1984), 83-1368, Norris v. District of Columbia

Docket Nº:83-1368.
Citation:737 F.2d 1148
Party Name:John V. NORRIS, Appellant v. DISTRICT OF COLUMBIA, et al.
Case Date:June 22, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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737 F.2d 1148 (D.C. Cir. 1984)

John V. NORRIS, Appellant



No. 83-1368.

United States Court of Appeals, District of Columbia Circuit

June 22, 1984

Argued Dec. 12, 1983.

St. John Barrett, Washington, D.C., for appellant. James H. Shelton, Greeley, Colo., also entered an appearance for appellant.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Washington, D.C. (at the time the brief was filed), and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before GINSBURG and BORK, Circuit Judges, and DOYLE, [*] Senior District Judge of the United States District Court for the Western District of Wisconsin.

Opinion for the Court filed by Circuit Judge GINSBURG.

Concurring opinion filed by Senior District Judge JAMES E. DOYLE.

GINSBURG, Circuit Judge:

Plaintiff-appellant Norris, a pretrial detainee at the District of Columbia Detention Facility ("D.C. Jail" or "the Jail"), brought suit for damages and injunctive relief against four correctional officers at the Jail, the acting Director of the District's Department of Corrections, the Mayor, and the District, alleging deprivation of his constitutional rights redressable under 42 U.S.C. Sec. 1983. 1 Specifically, appellant

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alleged that on one occasion during his confinement in the D.C. Jail, appellee correctional officers, without provocation, maced, beat, and kicked him; the resulting injuries, Norris alleged, included temporary blindness, a burning sensation in his face, immediate pain which subsided after several hours, lingering blurred vision, and a bruised and swollen left arm. Pursuant to appellees' FED.R.CIV.P. 56 motion, the District Court dismissed Norris' complaint against the correctional officers on the ground that "[p]laintiff received medical attention promptly and suffered no permanent injuries." 2 Because the District Court erroneously stated and applied the legal standard governing section 1983 liability for prison officer batteries, we reverse its decision granting summary judgment to appellees and remand for further proceedings.


The events giving rise to appellant's complaint occurred either in the late evening of January 17, 1982, or in the early morning of January 18. As Norris described the incident, appellee correctional officers were

mov[ing] me from the dormitory area of [one] cellblock ... to a single cell in the same cellblock. I was following their directions and I was not resisting. As I stepped into the single cell, [one of the appellees] sprayed mace on the right side of my face. At about the same time, the officers grabbed my arms from behind, handcuffed me, and began punching and kicking me and pushing me so that I banged into things in the cell. After this, they took me to the jail infirmary, where I was examined and treated.

Plaintiff's Response to Defendants' Interrogatories, No. 38 ("Plaintiff's Response No. ---"). Norris recounted that the pain he suffered as an immediate result of the beating subsided "after several hours." Plaintiff's Response No. 18. The mace spraying, he stated, produced burning in his "eyes, nose, throat and skin," blinded him "for about twenty minutes," and caused continuing "spells of blurred vision." Plaintiff's Response Nos. 11, 12. The residual effect of the kicking and punching, Norris reported, was a bruise on his left arm. Plaintiff's Response No. 11.

Norris' in propria persona complaint sought compensatory and punitive damages from the correctional officers allegedly involved in his beating. Subsequently, appellant's court-appointed counsel filed an amended complaint alleging, additionally, that the Mayor and the acting Director of the District of Columbia's Department of Corrections "fail[ed] and neglect[ed] ... adequately to supervise, train, instruct and control correctional officers at the District of Columbia Detention Facility in the performance of their duties [including the use of mace]." Amended Complaint at 3, 4. Supplementing Norris' initial prayer for relief, the complaint drawn by counsel sought to enjoin appellees from summarily punishing prisoners and to proscribe the issuance of mace to correctional officers at the Jail. Id. at 4, 5. Appellant then sought to discover from appellees, through interrogatories and a request for the production of documents, a description of all training given Jail personnel in the use of mace; all facility rules, regulations, and policies concerning the use of mace; and all complaints and reports related to the use of mace at the Jail. See Letter from St. John Barrett, Attorney for John V. Norris, to E. Huntington Deming, Assistant Corporation Counsel for the District of Columbia (Oct. 29, 1982).

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Appellees did not answer Norris' discovery requests. Instead, they moved to dismiss the amended complaint or, in the alternative, for summary judgment. Norris had failed to state a claim upon which relief could be granted, appellees contended, both because the force visited upon him was in response to his refusal to comply peacefully with prison officers' directions and because "the alleged assault was of a minor nature resulting in pain for at most several hours and no permanent or significant injury." Memorandum in Support of Motion of Defendants to Dismiss Or, In the Alternative, For Summary Judgment, at 2, 4 ("Motion to Dismiss"). Further, the suit against the District and its officials must be dismissed, appellees argued, on the bases of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and of qualified immunity. Motion to Dismiss at 6, 8.

The District Court, acknowledging its Rule 56(c) obligation to view the facts in a light most favorable to appellant, held that Norris had failed to state a claim for violation of his due process rights. The "preferable test" for determining the sufficiency of a due process claim based upon prison officer batteries, that Court declared, was "whether or not the conduct alleged 'shocks the conscience' or is otherwise offensive to the 'concept of ordered liberty.' " Memorandum Opinion, Civil Action No. 82-1806, at 3 (D.D.C. Mar. 1, 1983) ("Memorandum Opinion") (quoting Baker v. McCollan, 443 U.S. 137, 147, 99 S.Ct. 2689, 2696, 61 L.Ed.2d 433 (1979) (Blackmun, J., concurring), quoting, in turn, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) and Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)). Norris had not suffered "permanent injuries" in the "fracas," thus indicating that "little force was actually used," the District Judge stated. Memorandum Opinion at 3-5. The Court therefore ruled that appellant's claim did not assume constitutional proportions. Norris' section 1983 negligent supervision claim against the District and its officials fell along with the underlying due process claim. Id. at 5. The District Court also declined, on the basis of Norris' isolated allegation of abuse, to consider his plea concerning the use of mace at the Jail. Id. at 6.


The District Court's holding that permanent injury induced by conduct "shock[ing] the conscience" must be alleged to state a section 1983 claim based on prison officer battery misapprehends the governing law. The leading decision providing instruction for distinguishing a prison officer's constitutional due process violation from a common law assault and battery is Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). Judge Friendly there set out the following sensible guidelines, widely adopted by other courts confronting the issue: 3

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Id. at 1033. While "the extent of injury inflicted" is one criterion for determining whether a constitutional violation has occurred, Judge Friendly stated no threshold requirement of "permanent injuries" for section 1983 liability. See Hodges v. Stanley, 712 F.2d 34, 36 (2d Cir.1983) (per curiam) ("complaint ... alleg[ing] that the use of force was both gratuitous and excessive[,] under Glick, ... is enough to withstand dismissal"). Indeed, the plaintiff in

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Johnson v. Glick alleged no irremediable incapacitation. 4

We have found no decisions supporting the District Court's severely restrictive interpretation of deprivations interdicted by the Due Process Clause. 5 Many courts have held that a claim is stated under section 1983 based on injuries no more debilitating than those alleged here. See, e.g., Freeman v. Franzen, 695 F.2d 485 (7th Cir.1982) (plaintiff kicked and hit many times by several guards; suffered no permanent injuries, but some lingering pain), cert. denied, --- U.S. ----, 103 S.Ct. 3553, 77 L.Ed.2d 1400 (1983); King v. Blankenship, 636 F.2d 70 (4th Cir.1980) (officer slapped plaintiff on head, knocked him down, ripped part of beard from his face, and kicked him); Meredith v. Arizona, 523 F.2d 481 (9th Cir.1975) (officer punched plaintiff in solar plexis rendering him "totally handicapped" momentarily and in need of four hours of oxygen therapy). Indeed, some courts have held macing in the face alone sufficiently severe to state a constitutional claim. See Stringer v. Rowe, 616 F.2d 993, 998-1000 (7th Cir.1980) (per curiam); cf. Smith v. Iron County, 692 F.2d 685, 686 (10th Cir.1982) (use of mace "constitute[s]...

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