Alford v. Osei-Kwasi, OSEI-KWASI

• Decision Date: 18 March 1992
• Docket Number: OSEI-KWASI,Nos. A91A1864,A91A1865,s. A91A1864
• Parties: ALFORD et al. v.et al.et al. v. ALFORD et al.
• Court: Georgia Court of Appeals

Page 79

418 S.E.2d 79

203 Ga.App. 716

ALFORD et al. v. OSEI-KWASI et al.

OSEI-KWASI et al. v. ALFORD et al.

Nos. A91A1864, A91A1865.

Court of Appeals of Georgia.

March 18, 1992.

Reconsideration Denied April 2, 1992.

Certiorari Denied June 10, 1992.

Thomas M. West, Ralph S. Goldberg, Atlanta, for appellants.

Johnson & Montgomery, Harry W. MacDougald, Wade H. Watson III, Chamblee, for appellees.

BIRDSONG, Presiding Judge.

These appeals concern grants and denials of motions for summary judgment. Yolanda Alford and Sterling Alford, her minor son, brought this action against DeKalb County Deputy Sheriff, Lt. Peter Osei-Kwasi, DeKalb County Sheriff Pat Jarvis, DeKalb County Chief Jailer Wayne Melton, in their individual and official capacities, and against DeKalb County, Georgia, seeking damages under 42 U.S.C. § 1983 for violations of their rights under the United States Constitution and damages for violations of their Georgia constitutional rights and for state torts as a result of injuries allegedly incurred while Yolanda Alford was confined as a convicted prisoner in the DeKalb County Jail. At that time Yolanda Alford was seven and one-half months pregnant with Sterling.

Although there is no agreement about the incident immediately giving rise to these claims, the parties agree that Alford was in administrative isolation in the jail because of earlier fights with other inmates. Becoming upset that she was not allowed to leave her cell, Alford began kicking her cell door.

According to Osei-Kwasi, he was called to the scene by other jail personnel when their efforts to quiet Alford failed. After Alford disobeyed his order to stop kicking the door, he re-entered Alford's cell with the intention of moving her to another location, but Alford resisted. Also according to Osei-Kwasi, he knew Alford was pregnant, knew that she would fight to get her way, and knew that she would not be easily subdued, and thus he decided to incapacitate her with a Taser. (A Taser fires darts attached to the gun with wires and temporarily incapacitates a prisoner with low amperage, high voltage electrical shock from a nine volt battery in the Taser.) Osei-Kwasi states he decided the Taser was the most appropriate means to subdue Alford because it would not cause permanent injury and would avoid a physical altercation with her which might result in injuries to Alford, her unborn child, and jail personnel. Osei-Kwasi states Alford was extremely abusive, defiant and belligerent and moved toward him in an aggressive manner before he fired the Taser. Alford was struck in the arm by the Taser's darts and was incapacitated briefly. She was then taken to the jail clinic where she was examined and found without injury, except for where the Taser dart struck.

According to Alford, however, the Taser was used to punish her because she was creating a disturbance. She denies acting in a belligerent manner or that she assaulted or threatened Osei-Kwasi or other jail personnel. She claims that she was injured by the use of the Taser, that her injuries were ignored, and that because of the Taser she attempted suicide the next day.

Defendants moved for summary judgment asserting Alford did not suffer a constitutional deprivation and has no claim under 42 U.S.C. § 1983 or any state law theories. They also contended Sterling Alford had no claims because as an unborn child at the time, he had no constitutional rights. They also asserted they were entitled to judgment on any constitutional claims because of qualified immunity and on the state tort claims because of official immunity.

The trial court found Alford's 42 U.S.C. § 1983 claim has two facets: (1) shooting her with a Taser, per se, constituted cruel and unusual punishment and (2) she was denied adequate medical attention. As for the use of the Taser, the trial court found that because of Alford's and Osei-Kwasi's conflicting versions of the incident, questions of fact existed whether Osei-Kwasi's use of the Taser was warranted or whether his use of the Taser was wilful, wanton, and unauthorized. The trial court found, however, that Melton and Jarvis were not liable, even under the conflicting evidence, for any violations under § 1983 because they merely provided the Taser for official use. For the same reasons, the trial court also granted summary judgment to defendants on Alford's state law claims against Melton and Jarvis concerning the Taser.

On the medical care issue, the trial court found Alford had not established she received inadequate medical care sufficient to constitute deliberate indifference to a serious injury or illness. The trial court found there was no dispute that Alford received medical treatment several times before and after this incident, and concluded that Alford had no federal or state law claims based on the allegation she was denied adequate medical care. The trial court also granted summary judgment against Sterling Alford because the court found the Alfords had waived his claims at oral argument. Held:

1. The United States Supreme Court recently rejected the contention that a prisoner must have suffered serious physical injury to maintain an action under § 1983 for violation of the Eighth Amendment. Instead, the Supreme Court held that under Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251, the extent of the injury suffered is but one factor to be considered in assessing "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, ----, 112 S.Ct. 995, 998, 117 L.Ed.2d 156. Accordingly, since the Alfords allege Osei-Kwasi maliciously and wantonly used the Taser to inflict pain, this action may be maintained without proof of serious physical injury. Id.

However, the test to be applied in determining whether the use of the Taser violated the Eighth Amendment is also that established in Whitley: " '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.' " Whitley, supra 475 U.S. at 320-321, 106 S.Ct. at 1085. Of course, Alford's claim based upon the denial of appropriate medical care is measured by the "deliberate indifference" standard announced in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251.

Case No. A91A1865

2. Osei-Kwasi asserts the trial court erred by denying his motion for summary judgment based on his qualified immunity to Alford's § 1983 claims and also erred by holding that he is not entitled to claim official immunity to Alford's state law claims. Osei-Kwasi maintains he is entitled to summary judgment because, as a matter of law, Alford did not suffer a violation of her Eighth Amendment rights and even if her rights were technically violated, he is entitled to the defense of qualified immunity because he acted in good faith and the law clearly did not prohibit his actions. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396. Osei-Kwasi's claim of official immunity to the state law claims is based upon his attestation that his actions were not wilful, malicious, or corrupt. Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878.

The trial court apparently viewed the issues as turning on whether the use of the Taser was necessary. Thus, if Osei-Kwasi's version of the events were accepted, he would be entitled to judgment, but if Alford's version were believed, Osei-Kwasi's use of the Taser was based upon an improper motive which would be sufficient to deprive him of immunity under either of the defense theories he asserted.

In our view this analysis was incorrect. "Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny.... After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety.... It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense." (Citation and punctuation omitted.) Whitley, supra 475 U.S. at 319, 106 S.Ct. at 1084.

"[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on '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 320, 106 S.Ct. at 1085. Moreover, prison administrators are given "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security," and neither judges nor juries may "freely substitute their judgment for that of officials who have made a considered choice." Id. at 321-322, 106 S.Ct. at 1085. In ruling on this issue, "courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to [Alford], will support a reliable inference of wantonness in the infliction of pain under the standard we have...