Beishir v. Swenson

• Decision Date: 28 June 1971
• Docket Number: 1496,No. 1465,1541.,1465
• Citation: 331 F. Supp. 1227
• Parties: Donald BEISHIR, Plaintiff, v. Harold R. SWENSON et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

331 F. Supp. 1227

Donald BEISHIR, Plaintiff, v. Harold R. SWENSON et al., Defendants.

Nos. 1465, 1496, 1541.

United States District Court, W. D. Missouri, C. D.

June 28, 1971.

Willard B. Bunch, William B. Morgan, Gerald R. Walsh, of The Legal Aid and Defender Society of Greater Kansas City, Mo., for plaintiff.

Gene E. Voigts, First Asst. Atty. Gen. of Missouri, Kenneth M. Romines, Asst. Atty. Gen. of Missouri, Howard L. McFadden, General Counsel, Department of Corrections, State of Missouri, Jefferson City, Mo., for defendants.

FINDINGS AND OPINION

ELMO B. HUNTER, District Judge.

Plaintiff, Donald Beishir, a state convict confined in the Missouri State Penitentiary, seeks damages and injunctive relief pursuant to 42 U.S.C. § 1983, to redress the alleged deprivation, under color of state law, of rights secured to him by the eighth and fourteenth amendments to the Constitution. In addition to monetary damages, plaintiff Beishir seeks injunctive and declaratory relief under 28 U.S.C. § 2201 and § 2202. Federal jurisdiction is invoked under 28 U.S.C. § 1343.

Plaintiff alleges four grounds for relief. First, plaintiff alleges that the administrative procedure under which he was placed in maximum security, with a resulting loss of good time, constituted action taken under color of state law which allegedly deprived him of liberty and property without due process of law. As a second ground for relief, he alleges that his eighth amendment right to be free from cruel and unusual punishment was violated as a result of the prison administration's use of a fire hose and mace to quell a disturbance in June of 1969. Third, Beishir alleges his eighth amendment rights have been violated through indefinite and extended confinement in maximum security. Fourth, plaintiff alleges he has been subjected to confinement in maximum security disproportionate to the offenses he is alleged to have committed.

The Court appointed Willard Bunch, of the Legal Aid and Defender Society of Greater Kansas City, who was later joined by William Morgan and Gerald R. Walsh of the same office, to represent this plaintiff and eight other inmates in similar civil rights actions pending in this Court. Pursuant to Rule 42(a), F.R. Civ.P., and with the consent of all parties, plaintiff's case was consolidated for trial with the actions brought by Raymond Milentz, Eddie Umfress, Ronald Westberg, Billy Joe Tyler, Frank Boedeker, Frank Howard, Daniel Wilwording, and Ronald Berry. During the weeks of March 28, 1971, and April 4, 1971, the consolidated trial involving both legal and equitable issues, again with the consent of all parties, was tried to the Court sitting without a jury as provided for in Rule 39(b), F.R.Civ.P.

The trial commenced with evidence on the issues raised by plaintiff's second ground for relief dealing with a hosing and macing incident of June 29, 1969, and proceeded with evidence to support the equitable relief sought in what has been referred to as plaintiff's first, third and fourth ground for relief.

At all relevant times defendants were employees of the Missouri State Penitentiary. Defendant Swenson was then and is now the Warden and the highest administrative officer of the penitentiary. Defendant Wyrick was in June and July of 1969, an assistant to the Warden and a captain of the guard force of the penitentiary. Defendants Smith, Vestal, Steele, Troyer, Hill, Stewart and Borghardt were then and are now members of the guard force commanded by defendant Wyrick.

Donald Beishir commenced serving a life sentence in June of 1958, at the penitentiary after his conviction for first degree robbery. In April, 1967, Beishir was convicted of second degree murder and sentenced to life imprisonment.¹ The instant action is based on the events which occurred in the institution during the latter part of June, 1969.

From all the testimony and evidence in this case the Court finds the following to be the credible facts: On June 26, 1969, Beishir celled with Daniel Wilwording in C Unit South. C Unit South is one of the two main wings of the maximum security unit. Maximum security contains two tiers of cells on each of its two wings. The two tiers on the east side are called B Unit while the two on the west side are called C Unit. Both B and C units contain north and south sides. Immediately above the maximum security area which contained about 110 inmates, approximately 400 general population inmates were housed.

Beginning in early June, 1969, the conditions in the institution were charged and tense, bordering on riot. Fred T. Wilkinson, Director of the Department of Corrections for the State of Missouri and a professional penologist with some 33 years experience, characterized 1969 as a troublesome year for prisons in the State of Missouri. Tension was evident in the penitentiary in June, 1969, as a result of the placement of a portion of the population in maximum security. This placement was the result of an effort by the prison administration to break up gangs and rackets which had been running rampant in the institution. As a result of the segregation of many of the leaders, strong-arm tactics and assaults decreased enormously. Chronic agitators, however, sought to disrupt the institution in hope of reestablishing the rackets, loan sharking, drug trafficking and general preying upon the population.

Warden Swenson also viewed 1969 as a "year of tensions." There had been a riot, tensions of a racial nature and three murders during the year. Tensions increased following a two day sit-down strike waged by some of the inmates. Disturbances in maximum security became more frequent and finally culminated in the June, 1969, incident.

There is no dispute concerning the basic events of June 25-28, 1969. On June 25, 1969, what was described by the inmates as a "protest" began. The protest originated in C Unit South and took the form of burning newspapers, towels, mattresses, sweatshirts and other combustible items. The smoke was so thick it was difficult for inmates to breathe and various inmates' eyes burned. The extent of the fires was best characterized by inmate Berry who conceded a line of fires extended from cells 17 to 31. In addition to the burning, the inmates participated in a noise disturbance and engaged in cell flooding. This flooding was so severe that the walkways in front of the cells contained water and contaminated other cells.

On June 26, 1969, inmate dormitory workers with mops and janitorial supplies entered C Unit South to clean the area. The disturbance continued through the evening of the 26th until 4:45 a. m. On the evening of the 26th Warden Swenson received a report of additional disturbances and directed that the fires be put out and water shut off whenever flooding occurred. As a result of the flooding it became necessary to shut the water off and control toilet flushing from the valve located in the service tunnel.²

Upon arriving for work on the morning of the 27th, Warden Swenson called a meeting for 7:45 a. m. to discuss what action should be taken to quell the disturbances and restore order in maximum security. Messrs. Wilkinson, Casey, White, Wyrick, Steele, Schulte and Kester attended the meeting. As a result of the meeting it was decided that if another disturbance of severe proportions occurred, the leaders would be removed from their cells and placed in seclusion cells located in B Unit.³ At approximately 11:45 a. m. another major disturbance occurred which, in the opinion of the administration, threatened to disrupt the order of the entire institution, particularly the inmates in general population. Upon receiving a call from Capt. Wyrick, Warden Swenson directed that the plan agreed upon earlier that morning be implemented. Carl White, Associate Warden of Custody, commanded the Emergency Squad⁴ which undertook to move, without the use of force, selected individuals from C Unit South to seclusion cells located on the B Unit side. As a part of this move plaintiff Beishir was ordered out of his cell, directed to strip and was searched for concealed weapons. After the search and return of his shorts, Beishir was handcuffed with plastic restrainers and transferred to a seclusion cell.

Each seclusion cell is an enclosure approximately six feet wide, nine feet in length and twelve feet high. The cells are fronted by bars with a vestibule area, approximately three to four feet long and six feet wide, located between the barred front and the walkway. A wooden door, with a four inch ledge beneath it, opens from the vestibule to the outside walk. Windows on the front wall of the vestibule open onto the walkway in such a fashion as to block passage. Each seclusion cell contains a sink, toilet and built-in sleeping unit. In addition, cell 17 contained one sleeping mat and a portion of another as well as the personal belongings of inmate Foster who occupied the cell prior to June 27, 1969. As in C Unit South, the toilets and sinks could be controlled and shut off from the outside.

Plaintiff Donald Beishir, with the plastic restraints remaining on his hands,⁵ was placed in cell 18 with inmates Westberg, Umfress, Wilwording, Baker, Medley, Goodman and Edmonds, at approximately 1:00 p. m. on June 27, 1969. As a result of the crowded conditions plaintiff was unable to lie down when others occupied the limited space available.⁶ Although security prohibited the distribution of normal meal utensils, plaintiff received two sack lunches per day, which is the normal procedure in "lockup conduct problems".

After Beishir was placed in his seclusion cell and until the evening of June 29, 1969, there was intermittent shouting by various men in the maximum security seclusion cell area. The noise disturbance continued the 27th after the move and was made by "every conceivable manner." These disturbances continued June 28, 29, and spread to those inmates remaining in the regular maximum security area. The continuous...