Albers v. Whitley, No. 82-3551

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore WRIGHT, CANBY and BOOCHEVER; CANBY; EUGENE A. WRIGHT
Citation743 F.2d 1372
PartiesGerald ALBERS, Plaintiff-Appellant, v. Harold WHITLEY, et al., Defendants-Appellees.
Decision Date01 October 1984
Docket NumberNo. 82-3551

Page 1372

743 F.2d 1372
Gerald ALBERS, Plaintiff-Appellant,
v.
Harold WHITLEY, et al., Defendants-Appellees.
No. 82-3551.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 10, 1983.
Decided Oct. 1, 1984.

Page 1373

Gene B. Mechanic, Portland, Or., for plaintiff-appellant.

Kay Kiner James, Asst. Atty. Gen., Salem, Or., for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before WRIGHT, CANBY and BOOCHEVER, Circuit Judges.

CANBY, Circuit Judge:

Plaintiff Albers appeals from a final judgment entered by the district court upon a directed verdict in favor of defendants. Albers v. Whitley, 546 F.Supp. 726 (D.Or.1982). The lower court's ruling was issued following a 3-day jury trial. Albers sought compensatory and punitive damages against defendants pursuant to 42 U.S.C. Sec. 1983, alleging violations of his eighth and fourteenth amendment rights. He also requested damages under the Oregon Tort Claims Act for pendent state claims. We reverse in part the district court's judgment verdict and remand for a new trial. We affirm as to the pendent state claims.

FACTS

Albers was a prisoner whose claims arise from his having been shot in the knee by defendant prison officials while they were quelling a prison disturbance in "A" Block of the Oregon State Penitentiary on June 27, 1980. Cellblock "A" consists of two tiers and houses more than 200 inmates. The only reasonable mode of access between the two tiers is a connected stairway. The stairway is separated from the lower tier by a barred door. Prison officers may enter the cellblock from either end, on either tier and can control entry into either tier by means of barred walkways. 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.

On the night of June 27, 1980, some inmates in cellblock "A" became agitated about what they viewed as mistreatment of other inmates by prison guards. Because of the ensuing commotion and the inmates' tense mood an early "cell-in" order was given.

Some inmates resisted and one inmate, Richard Klenk, became particularly upset. He confronted two guards and assaulted one. After the assaulted guard left the cellblock, some inmates began to break furniture. The remaining guard was moved to a safer area by several helpful inmates but was kept hostage.

Prison authorities were notified and defendant Whitley went to speak with Klenk. A few attempts were made to demonstrate that the inmates whom the prisoners were originally concerned about were unharmed, but the disturbance continued.

Whitley checked the condition of the prison guard being held hostage and found him unharmed. He then began organizing an assault squad. At some point the prison officials discovered that Klenk had a knife and had claimed that one inmate had been killed and that others would die.

Whitley returned to the cellblock to see that the hostage guard was still unharmed, and was told by other inmates that they would protect the guard. Whitley then spoke with Albers who had left his cell at an inmate's request to see whether he could aid in quieting the disturbance. Albers asked Whitley if he would return with a key to the lower tier cells to allow those on the lower tier, including several elderly inmates, to remove themselves from the commotion.

Page 1374

Whitley said that he would return with the key. When Whitley left, he noticed a barricade had been constructed, limiting access to the cellblock.

The prison officials agreed that their only feasible alternative was to arm a squad with shotguns and invade the cellblock. Cupp ordered the squad to "shoot low."

When Whitley reentered the cellblock he was followed by three armed guards. There is evidence that Albers asked for the key and Whitley screamed "shoot the bastards" and ran toward the stairs in pursuit of Klenk. The stairway was the only route to the cell where the guard was held hostage; it was also the only route by which Albers could return to his own cell.

Warning and second shots were fired. Whitley chased Klenk to the upper tier. Albers ran up the stairs behind Whitley and was shot in the knee by Kennecott. Klenk was subdued by Whitley with the help of several inmates. The hostage guard was released unharmed. One other inmate had been shot on the stairs and others on the lower tier also were harmed by gunshot. Albers sustained severe nerve damage to his lower left leg, with residual paralysis, and mental and emotional distress.

The issues on appeal are (1) whether there was evidence from which a jury could conclude that Albers was deprived of any constitutional rights; (2) whether defendants are protected by qualified immunity; and (3) whether Albers' state law claims are barred by the Oregon Tort Claims Act.

DISCUSSION

To establish a prima facie case under section 1983, Albers was required to show (1) that the conduct he complained of was committed by defendants and under color of state law, and (2) that this conduct deprived Albers of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). There is no question that defendant prison authorities were acting under color of state law. Our focus is therefore upon deprivation of federally protected rights. It is not enough for Albers to show that he may have been the victim of a state-law tort; he must show a violation of the Constitution or a federal statute. Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 2693, 61 L.Ed.2d 433 (1979).

The right upon which Albers relies is his right under the eighth amendment not to be subjected to cruel and unusual punishment. 1 Punishment has been characterized as cruel and unusual when it is incompatible with "the evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 598, 2 L.Ed.2d 630 (1958), and when it involves an unnecessary and wanton infliction of pain or is grossly disproportionate to the severity of the crime. See Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637 (1983); Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981); Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). A formal intent to punish is not required; unjustified striking, beating or infliction of bodily harm upon a prisoner by or with the authorization of state officials may be sufficient to violate the eighth amendment. See King v. Blankenship, 636 F.2d 70, 72 (4th Cir.1980). It is difficult to draw a precise line at which the application of force becomes unconstitutional, but "unnecessary, unreasonable, and grossly" excessive force qualifies. Williams v. Mussomelli, 722 F.2d 1130, 1134 (3d Cir.1983).

All of these general standards require adaptation however, to fit the facts of Albers' case. Without question, shooting

Page 1375

a prisoner in the knee would qualify as cruel and unusual if it were simply done as punishment for crime or bad behavior. Here, however the shooting occurred in the course of a forcible response to a prison emergency. "Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry." Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Moreover, those authorities must be allowed a reasonable latitude for the exercise of discretion in determining the appropriate response to a crisis; a measure that in retrospect appears not to have been necessary might have seemed very necessary to a reasonable prison administration at the time it was taken. See id; Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973).

On the other hand, the latitude accorded to prison authorities does not mean that they are authorized to use any amount of force, however great. Ridley v. Leavitt, 631 F.2d 358, 360 (4th Cir.1980). In our view, a proper standard deems the eighth amendment to have been violated when the force used is "so unreasonable or excessive to be clearly disproportionate to the need...

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31 practice notes
  • Chapman v. Pickett, Nos. 84-2842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 25 Septiembre 1986
    ...view. Compare Haygood v. Younger, 718 F.2d 1472, 1483-84 (1983), modified en banc, 769 F.2d 1350, 1358-59 (1985), with Albers v. Whitley, 743 F.2d 1372, 1376 (1984), rev'd on other grounds, --- U.S. ----, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Another panel of this court has applied the Har......
  • Conner v. Reinhard, No. 87-1940
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Mayo 1988
    ...entirely objective test could be applied to an eighth amendment claim of deliberate indifference. Id. at 1025. Compare Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.1984) (objective test for qualified immunity unavailable where plaintiff alleges deliberate indifference), rev'd on other gr......
  • Wood v. Ostrander, No. 87-3924
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Junio 1989
    ...(9th Cir.1988) ("Despite [Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ], the [rule of Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.1984), reversed on other grounds, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ] that 'a finding of deliberate indiffer......
  • McCullough v. Cady, Civ. No. 82-74264.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 30 Julio 1986
    ...carried out with plain deliberate indifference to the plaintiff's right to be free of cruel and unusual punishment. Albers v. Whitley, 743 F.2d 1372 (9th Cir.1984). On March 4, 1986, the Supreme Court Whitley held that if the evidence will only support a inference of errors of judgment by t......
  • Request a trial to view additional results
31 cases
  • Chapman v. Pickett, Nos. 84-2842
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 25 Septiembre 1986
    ...view. Compare Haygood v. Younger, 718 F.2d 1472, 1483-84 (1983), modified en banc, 769 F.2d 1350, 1358-59 (1985), with Albers v. Whitley, 743 F.2d 1372, 1376 (1984), rev'd on other grounds, --- U.S. ----, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986). Another panel of this court has applied the Har......
  • Conner v. Reinhard, No. 87-1940
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 19 Mayo 1988
    ...entirely objective test could be applied to an eighth amendment claim of deliberate indifference. Id. at 1025. Compare Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.1984) (objective test for qualified immunity unavailable where plaintiff alleges deliberate indifference), rev'd on other gr......
  • Wood v. Ostrander, No. 87-3924
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Junio 1989
    ...(9th Cir.1988) ("Despite [Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ], the [rule of Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.1984), reversed on other grounds, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) ] that 'a finding of deliberate indiffer......
  • McCullough v. Cady, Civ. No. 82-74264.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 30 Julio 1986
    ...carried out with plain deliberate indifference to the plaintiff's right to be free of cruel and unusual punishment. Albers v. Whitley, 743 F.2d 1372 (9th Cir.1984). On March 4, 1986, the Supreme Court Whitley held that if the evidence will only support a inference of errors of judgment by t......
  • Request a trial to view additional results

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