Bogard v. Cook

• Decision Date: 11 November 1975
• Docket Number: No. GC 73-22-S.,GC 73-22-S.
• Citation: 405 F. Supp. 1202
• Parties: William Hardin BOGARD, Plaintiff, v. Thomas D. COOK, former Superintendent of the Mississippi State Penitentiary, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

405 F. Supp. 1202

William Hardin BOGARD, Plaintiff, v. Thomas D. COOK, former Superintendent of the Mississippi State Penitentiary, et al., Defendants.

No. GC 73-22-S.

United States District Court, N. D. Mississippi, Greenville Division.

November 11, 1975.

David M. Lipman, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., Lawrence Zelle, Robins, Davis & Lyons, Minneapolis, Minn., for plaintiff.

James L. Robertson, Campbell & DeLong, Greenville, Miss., Champ T. Terney, Lyon, Crosthwait & Terney, Indianola, Miss., P. J. Townsend, Jr., Townsend, McWilliams & Holladay, Drew, Miss., Hanion A. Miller, Greenville, Miss., for defendants.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

On March 31, 1969, plaintiff in this action, William H. Bogard, then twenty-two years of age, arrived at the Mississippi State Penitentiary at Parchman to begin serving a term of twenty-five years imprisonment which was imposed upon him following his conviction on a charge of armed robbery in the Circuit Court of Leflore County, Mississippi. During the ensuing months, Bogard was several times subjected to disciplinary measures including segregation in the Maximum Security Unit (MSU) and solitary confinement in the "dark hole". On February 25, 1971, Bogard was shot in the foot by armed inmates who were, pursuant to penitentiary procedure and state law at that time, being used to guard other inmates. Bogard's rifle wound resulted in his hospitalization for approximately one month. On July 7, 1972, Bogard was stabbed in the back by a fellow inmate, one James B. ("Slicker") Davis, and rendered thereby a permanent paraplegic.

The instant action was instituted by plaintiff on March 1, 1973. The defendants in the case ultimately were Thomas D. Cook, Superintendent of Parchman from February 15, 1969 to February 13, 1972; John A. Collier, Superintendent of Parchman from February 14, 1972 to December 1, 1972; Jack G. Byars, Assistant Superintendent of Parchman from September 1968 to November 1972; Dr. Hernando Abril, Medical Director at Parchman at the time of both the shooting and stabbing incidents involving plaintiff; Jay Leland Vanlandingham, Chief Security Officer at Parchman during the dates pertinent to this action; Fred H. Childs, sergeant (supervisory guard) at the camp in which Bogard was incarcerated at the time of the shooting incident; Charles Dougherty and Milton L. Davis, trusty shooters who allegedly shot plaintiff on February 25, 1971; and "Slicker" Davis. United States Fidelity and Guaranty Company (USF&G) by virtue of fidelity bonds underwritten on the defendants Cook, Collier and Byars, was also a defendant herein.

Jurisdiction is based on 28 U.S.C. § 1343(3) and (4) and causes of action alleged under 42 U.S.C. § 1983, as well as pendent state claims of assault and battery and negligence. Because plaintiff herein was, at the time of the institution of this action, a resident of the State of Illinois, jurisdiction might also be founded on 28 U.S.C. § 1332.

The only state penal institution in the State of Mississippi is located at Parchman, with a satellite unit at Lambert, Mississippi. The main portion of the penitentiary, approximately 16,000 acres, is located in Sunflower County. The prison is primarily a farming operation, producing cotton, soybeans, livestock, poultry, and numerous other agricultural products. At least until two years ago, and unquestionably during the years in issue in this case, Parchman was expected to and did operate on a fiscally self-sustaining basis. § 47-5-1, Miss.Code Ann. (1972).

During the years pertinent to this suit, Parchman's superintendent was appointed by the state penitentiary board. Mississippi statutes invest the exclusive management and control of the prison system in the superintendent. § 47-5-23, Miss.Code Ann. (Supp.1974).

The inmate population at Parchman vacillates around the figure 1900. During the period of Bogard's incarceration, the number of civilian employees was limited to 150. Laws 1964, ch. 378, § 42; 1966, ch. 445, § 30 (repealed 1974). All inmates, except those lodged in MSU, are housed in moderate security facilities resembling barracks or dormitories. There were twelve barracks or "camps" within the penitentiary with four civilian employees assigned to each camp. The supervisory civilian employee at each camp is known as a "sergeant". During the years here in question, the security and operation of the camps at Parchman were, to a large extent, dependent upon the use of trusty shooters (armed inmate guards), trusties (unarmed assistants to the prison's civilian employees) and half-trusties (primarily errand boys).¹

The complaint contained several causes of action including claims that the defendants, acting under color of state law, inflicted cruel and unusual punishment upon Bogard, that Bogard was subjected to summary punishment thereby depriving him of due process of law, and that the defendants' wilful, wanton and grossly negligent manner of operating the penitentiary was a proximate cause of Bogard's shooting and stabbing injuries.

Regarding the shooting incident, plaintiff claimed that the defendants Cook and Byars were negligent or reckless in the performance of their duties as superintendent and assistant superintendent because, among other shortcomings, they failed to hire sufficient civilian employees and administered the trusty-shooter program in such a way that Davis and Dougherty were appointed as trusty-shooters without sufficient information as to their backgrounds and qualifications. The claim against Vanlandingham and Childs was that, in relation to the shooting incident, those defendants negligently allowed Davis and Dougherty to inflict the injury upon the plaintiff.

Regarding the stabbing incident, the complaint alleged that defendants Collier and Byars were guilty of gross negligence in the manner in which they operated the penitentiary including the employment of the defendant T. T. Peeks as sergeant at the camp where the stabbing occurred. The complaint also raised the issues of whether Collier and Byars were negligent in failing to employ sufficient civilian guards at the penitentiary and whether the inmate classification and assignment system, which allowed the defendant "Slicker" Davis to be placed in the same camp with plaintiff, was administered in a negligent manner. The medical care which the plaintiff received after both the shooting and stabbing incidents was also attacked in the complaint. Plaintiff claimed that both superintendents, Cook and Collier, were negligent in the selection of Dr. Abril as the Medical Director at Parchman. According to plaintiff, Abril was incompetent as a medical doctor and guilty of malpractice in failing to provide plaintiff adequate medical care in regard to both the shooting and stabbing incidents.

Trial in the case was to the court and a six-person jury. It began September 10, 1974, and concluded October 7, 1974. Presentation of the evidence consumed fourteen working days. The case was submitted to the jury on a special verdict with thirty-six interrogatories and the partially complete verdict was accepted by the court after four days of deliberation by the jury.

The testimony introduced at the trial was largely undisputed as to the facts surrounding the shooting injury inflicted upon the plaintiff. On February 25, 1971, Bogard was incarcerated at Camp Eight at Parchman. On that date, there was some disturbance in the process of rounding up the inmates of the camp to go to work. Under the general supervision of the defendant Childs, two trusty shooters, Davis and Dougherty, discharged their rifles in order to hasten certain of the inmates as they boarded a truck. In the course of the shooting, Bogard's foot was either struck directly by a projectile from the rifle of one or both of the trusty shooters, or was hit by a ricochet from the rifle of one or both of the trusty shooters.

The testimony as to the immediate circumstances surrounding Bogard's stabbing was also largely undisputed. Because of the shooting injury to his foot, Bogard was assigned to the disability facility, Camp Two. On March 21, 1972, Bogard was appointed to half-trusty status at that camp. In that capacity, it was incumbent upon him to assist the civilian guards calling the roll for work each day, prepare sick call leaves, fill out reports, keep records of inmates' accumulation good time, dispense medication, handle mail, assist on visiting days, and generally carry out the camp sergeant's orders. At this time, defendant Peeks was the sergeant at Camp Two.

At the time of Bogard's promotion to half-trusty, the defendant Slicker Davis was an inmate at Camp Two. Slicker was a "gunman" at the camp, that is, he was a member of the general inmate population and was not a trusty or half-trusty. He was subject to being watched by an armed guard and was not allowed the general run of the penitentiary.

Although there was some testimony as to previous animosity between Slicker Davis and Bogard, it is undisputed that the incident which provoked the final tragic altercation between the two involved a sewing machine which Davis kept in his living quarters in violation of the camp sergeant's rules. Ultimately Bogard informed Peeks of Davis's transgression which led to Peeks depriving Davis of the use of his sewing machine. The same day Davis was forced to remove his machine, and in apparent revenge for Bogard having informed on him, Davis approached Bogard from the rear and imbedded a knife in him with such force that the blade broke off in Bogard's back.

Following the stabbing, Bogard was carried to the prison infirmary where he was treated by Doctors Abril and Juliao. The doctors attempted to extract the portion of the knife still in Bogard's back but were unable to do so, apparently because the wound was deep and the blade irregular in shape. The adequacy of medical treatment which Bogard received at...