Albers v. Whitley, Civ. A. No. 81-517-PA.

Decision Date31 August 1982
Docket NumberCiv. A. No. 81-517-PA.
Citation546 F. Supp. 726
PartiesGerald ALBERS, Plaintiff, v. Harol WHITLEY, et al., Defendants.
CourtU.S. District Court — District of Oregon



Gene B. Mechanic, Alice Goldstein, Portland, Or., for plaintiff.

Dave Frohnmayer, Atty. Gen., Scott McAlister, Asst. Atty. Gen., Salem, Or., for defendant.


PANNER, District Judge.

This is a civil rights action against individual corrections officers arising out of a disturbance in "A" Block of the Oregon State Penitentiary on June 27, 1980. Plaintiff was injured by shotgun fire. He alleged that he was deprived of rights under the eighth and fourteenth amendments. Additionally, he appended state tort claims for assault and battery and negligence.

At the conclusion of a jury trial, I directed a verdict for the defendants. I ruled that there was not sufficient evidence presented from which a jury could conclude that plaintiff was deprived of any constitutional rights. Alternatively, I ruled that the defendants were immune from damages. I rejected plaintiff's pendent claims. Entry of judgment has been withheld pending this opinion.


A directed verdict is appropriate if the evidence permits only one reasonable conclusion as to the verdict. California Computer Products v. I.B.M., 613 F.2d 727, 732-33 (9th Cir. 1979). To reach such a conclusion, I must consider all the evidence but must do so in a light most favorable to the nonmovant. Autohaus Brugger, Inc. v. Saab Motors, Inc., 567 F.2d 901, 909 (9th Cir.), cert. denied, 436 U.S. 946, 98 S.Ct. 2848, 56 L.Ed.2d 787 (1978). I cannot weigh the evidence presented nor consider the credibility of witnesses. All reasonable inferences must be drawn in favor of the nonmovant. Fountila v. Carter, 571 F.2d 487, 490 (9th Cir. 1978); Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir. 1977). Finally, I note this circuit's admonition that a motion for directed verdict should be granted only "where there is no substantial (or `believable') evidence to support" any other verdict. Autohaus Brugger, supra at 910.


Plaintiff Gerald Albers was an inmate housed in cellblock "A" at the Oregon State Penitentiary in Salem, Oregon on June 27, 1980. Defendant Whitley was security manager of the penitentiary; defendant Cupp was superintendent; defendant Keeney was an assistant superintendent; and defendant Kennecott was a corrections officer.

Cellblock "A" is an "honor" cell consisting of two tiers and housing for over 200 inmates. Lower tier cells are adjacent to an open area. A stairway leads to the upper tier. A hallway off the open area leads out of the cellblock. The lower tier cells are separated from the open area by floor-to-ceiling bars and a barred door. On each tier are two opposing rows of cells. Open floor separates the lower tier rows of cells. Open space separates the rows on the upper tier. While it is possible to jump and climb between tiers, the stairway offers the only practicable way for inmates to reach the upper tier. Prison officers may enter cellblock "A" from either end, on either tier and can control entry into either tier by means of barred walkways.

Inmates housed in cellblock "A" have good disciplinary records and accordingly, enjoy certain privileges that are denied the rest of the prison population. Significantly, cellblock "A" inmates are allowed more time outside their cells. Normal "cell-in" time for cellblock "A" is 11:00 p.m. on weekdays and midnight on weekends.

On Friday night, June 27, 1980, several cellblock "A" inmates became upset over perceived mistreatment of other inmates who were being escorted by guards to the prison's segregation and isolation building. Some inmates verbally expressed their agitation believing there was unnecessary force used by the guards in escorting the prisoners.

Corrections officers Fitts and Kemper were on duty in cellblock "A" on June 27, 1980. At approximately 9:15 p.m., Officer Kemper received a call. He was instructed to order all inmates in cellblock "A" to return to their cells. This cell-in order was apparently due to the commotion and tense mood of the inmates. Accordingly, Kemper issued the order for all inmates to return to their cells. At that time, he was standing in the open area adjacent to the lower tier. Fitts was nearby. Plaintiff was in his upper tier cell # 274.

The cell-in order was met with resistance. Several inmates demanded to know the reason for the order. One inmate, Richard Klenk, became particularly upset. Klenk jumped from the second tier and confronted and assaulted Kemper. Kemper left the cellblock but Fitts remained. Shortly after Kemper left, Klenk and other inmates began to break furniture. Two inmates escorted Fitts from the open area into an office, stating that Fitts would be protected from harm there.

Kemper informed the control center of the disturbance in cellblock "A". Defendants Cupp and Keeny were immediately notified and both proceeded to the penitentiary. Defendant Whitley was also advised of the disturbance and went to cellblock "A".

Whitley entered cellblock "A", climbing over broken furniture placed by inmates in the hallway leading into the cellblock. Whitley spoke with inmate Klenk. Whitley agreed to allow four inmates to be escorted to the segregation and isolation building to observe the condition of the inmates who were taken there earlier. Whitley left cellblock "A" with those four inmates. The four later reported back to fellow inmates in cellblock "A" that the prisoners in segregation and isolation were not harmed but were intoxicated. This information did not quell the disturbance.

Whitley returned to the cellblock and asked Klenk to allow him to see Officer Fitts. Klenk brought Fitts to Whitley who observed that Fitts was not harmed. Fitts was returned to the office but shortly thereafter was taken to cell # 201 on the upper tier.

Meanwhile, Whitley left the cellblock and began organizing an assault squad. At some point, Whitley and others were aware that Klenk had secured a homemade knife. Klenk had also informed Whitley that one inmate had been killed and that others would die.

Whitley returned to the cellblock for a third time. Klenk repeated his earlier demand to meet with media representatives. Whitley again requested to see Fitts. Klenk escorted Whitley to cell # 201. Fitts reported that he was unharmed. Several inmates in and around cell # 201 stated to Whitley that they would protect Fitts from physical harm. Whitley left the cellblock, noting that a barricade had been constructed that limited access into the cellblock.

Whitley advised defendants Keeney and Cupp of the events and his assessment of the situation. It was agreed that tear gas could not be utilized. Cupp thereupon ordered Whitley to take a squad into "A" block armed with shotguns. Cupp ordered that the squad be instructed to "shoot low."

During these events, plaintiff left his cell on the second tier. While this was in violation of the "cell-in" order, there was evidence that plaintiff was requested by other inmates to leave his cell and aid in quelling the disturbance. Plaintiff proceeded down the stairs from the upper tier to the open area in front of the lower tier cells. Although a disputed fact, I accept for purposes of analyzing the evidence, that the steel-barred door which provides access from the lower tier to the open area was closed and locked. I also accept as true, plaintiff's statement that he spoke with Whitley shortly after Whitley spoke with Fitts in cell # 201. Plaintiff asked Whitley whether the locked door on the lower tier could be opened to allow inmates, including several elderly inmates, to leave that area until the commotion died down. Whitley responded that he would find out and return with the key.

By this point, the assault group had assembled outside the barricaded entry way. Shotguns had been assigned to Kennecott and Officers Jackson and Smith. Acting under Cupp's orders, the guns were loaded with # 6 shot. A second group of officers, without firearms, were assigned to immediately follow the assault group across the barricade. Whitley instructed Kennecott to follow him across the barricade and to fire a warning shot on entry and to shoot low at anyone heading up the stairs toward cell # 201. At about 10:30 p.m., Whitley entered the cellblock, unarmed, followed by Kennecott, Jackson and Smith, all armed with shotguns.

Plaintiff was waiting at the bottom of the stairway for Whitley to return with the key. When Whitley did return, plaintiff asked about the key. The events that followed are in dispute. Viewed in a light most favorable to plaintiff, there was evidence that Whitley screamed "shoot these bastards" and began running toward the stairs in pursuit of inmate Klenk, without ordering plaintiff to return to his cell. While some lights were broken, there was evidence that the area was sufficiently lighted to enable plaintiff to be recognized and distinguished from other inmates.

Kennecott followed Whitley over the barricade and discharged a warning shot into the wall opposite the cellblock entrance. Once over the barricade, Kennecott discharged a second shot which struck a post near the stairway.

Meanwhile, Whitley had chased Klenk up the stairs toward cell # 201. At the doorway to cell # 201, Whitley caught and, with the aid of several inmates, subdued Klenk. Concurrently, plaintiff began running up the stairs behind Whitley. Kennecott fired a third shot which struck plaintiff in his knee. After being shot, plaintiff crawled up the stairs and sought shelter in a mop room at the top of the stairs.

After Officer Fitts was released unharmed, corrections personnel began to care for the wounded inmates. In addition to plaintiff, another inmate was injured by gunshot on the stairs. Other inmates on the lower tier were also struck by gunshot.

Plaintiff does not claim that...

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