Branchcomb v. Brewer, 81-1786

• Decision Date: 14 July 1982
• Docket Number: No. 81-1786,81-1786
• Citation: 683 F.2d 251
• Parties: Ronald Lee Roy BRANCHCOMB, Appellant, v. Lou BREWER, James Menke, and Charles Wilkens, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 251

683 F.2d 251

Ronald Lee Roy BRANCHCOMB, Appellant, v. Lou BREWER, James Menke, and Charles Wilkens, Appellees.

No. 81-1786.

United States Court of Appeals Eighth Circuit.

Submitted March 8, 1982.

Decided July 14, 1982.

Gordon E. Allen, Allen, Babich & Bennett, Des Moines, Iowa, for plaintiff-appellant.

Thomas J. Miller, Atty. Gen. of Iowa, John G. Black, Sp. Asst. Atty. Gen., Jonathan Golden, Asst. Atty. Gen., Des Moines, Iowa, for defendants-appellees.

Before LAY, Chief Judge, ARNOLD, Circuit Judge, and WOODS, ^* District Judge.

ARNOLD, Circuit Judge.

In this action under 42 U.S.C. § 1983, plaintiff seeks damages from officials of the Iowa State Penitentiary for their failure to protect him from homosexual rapes perpetrated by other inmates. After oral argument, we remanded the cause to the District Court ¹ with directions to make more specific findings as to defendants' state of mind. We explained that "plaintiff must show something more than mere inadvertence or negligence. He must show the defendants were deliberately indifferent to his constitutional rights, either because they actually intended to deprive him of some right, or because they acted with reckless disregard of his right to be free from violent attacks by fellow inmates." Branchcomb v. Brewer, 669 F.2d 1297, 1298 (8th Cir. 1982). The District Court promptly made additional findings, and it is our duty to decide whether they are clearly erroneous. After reading the entire transcript, we hold that the trial court's finding that the defendants were not "deliberately indifferent to (plaintiff's) ... constitutional rights," Branchcomb v. Brewer, No. C 79-66 (N.D.Iowa March 2, 1982), is not clearly erroneous. The judgment in favor of the defendants Brewer, Menke, and Wilkens is therefore affirmed.

I.

Branchcomb was 21 years old in 1978. He had been an Iowa prison inmate since 1975, having been convicted of robbery and breaking and entering. (He has since been unconditionally released.) He was initially confined at the Iowa State Men's Reformatory at Anamosa, Iowa. On April 25, 1978, at his own request, plaintiff was transferred to the Iowa State Penitentiary (ISP) at Ford Madison, Iowa, an institution generally inhabited by older and more hardened criminals. Shortly after arriving at ISP, plaintiff told Richard Barry, his counsellor, that he was afraid of some of the other inmates. Some older "residents," whose names he did not know, had made comments to him "about sex and stuff like that," and they seemed "serious." Plaintiff asked to be placed in protective custody (PC), and his request was granted at once. Inmates in PC have more secure living quarters, and guards accompany them whenever they go to work, to school, to the gymnasium, the library, or the dining hall. Some inmates in PC have jobs, but Branchcomb did not.

At some point in May, Branchcomb asked to be sent back to Anamosa, and on May 22, 1978, Barry actually recommended that this re-transfer take place. Requests for transfer must first be approved by the Warden (defendant Lou Brewer was Warden of ISP at the time), and then by the Director of the Iowa Division of Adult Corrections, whose office is in Des Moines, and by the Warden of the transferee institution. Among the factors relevant to such requests are the reasons assigned in support of them and the availability of beds in the proposed transferee institution. Normally requests for transfer take three weeks for action, and a request based on a specific incident of violence against the requesting inmate, or on an expressed fear of violence from a named person, would more likely be granted than a request stemming from a generalized fear of the institution. The record does not reveal what happened to the recommendation made by Barry that Branchcomb be transferred back to Anamosa, except that it was never acted on, one way or the other.

Towards the end of June, 1978, while Barry was on a two-week vacation, Branchcomb asked to be let out of PC and restored to the general population. His request was reviewed by certain security officials, names unknown, and plaintiff told them "the problems was resolved that I was having when I did go to PC the first time ..." (Tr. 42). Plaintiff testified that Barry encouraged him to leave PC, on the ground that he needed to show he could "make it," Tr. 16, in the general population before being granted parole or work release, but Barry denied making any such statement, Tr. 142, and the trier of fact was not required to believe plaintiff. ² In any case, Branchcomb's request for release from PC was granted on June 23, 1978, and he seems thereafter not to have pursued the possibility of returning to Anamosa. He completed orientation, was released into the general population, and began work in the kitchen, a job he had asked for.

On or about July 17, 1978, three days after the kitchen job began, three inmates forcibly tattooed Branchcomb with the initials "ISPF" on his buttocks. They also held him down and pulled hair out of his chest. An inmate named Kim LeMatty acted as lookout during this attack. On July 23, 1978, LeMatty and Lloyd Offutt, both of whom worked in the kitchen area with Branchcomb, took plaintiff into a little room behind the dish-washing machine and raped him. On July 25, 1978, they did it again. That same day or the next, plaintiff overcame his terror of retaliation and reported the incidents to Barry. The counsellor at once got in touch with defendant Charles Wilkens, assistant director of security in the main unit of ISP. Wilkens took a statement from plaintiff that same day and immediately returned him to PC. Two days later, Branchcomb was sent back to Anamosa. The State of Iowa prosecuted Offutt and LeMatty, and they received additional prison terms for the attack on plaintiff.

II.

The facts of this case are brutal and revolting. Offutt and LeMatty deserve to be punished, and they have been. We are bound to say, in addition, that security procedures at ISP could stand a good deal of improvement, as defendants themselves, no doubt, would concede. Funding for penitentiary construction and correctional employees is no easier to come by in Iowa than it is in most other states. The general public are enthusiastic about punishing criminals, but markedly less so about taxing themselves to make the correctional system workable and humane. This record contains several instances of funding requests denied, in whole or in part, by the Legislature of Iowa. Our task as judges is not to express a moral or policy judgment about the state of penology in Iowa, nor even, in the context of this case, to consider the constitutionality of the conditions of confinement at ISP. This is neither a class action nor a suit in equity. This is an action for money damages by an individual against three named defendants, and the plaintiff, if he is to succeed, must show that Lou Brewer, James Menke, and Charles Wilkens acted not simply carelessly, but with reckless disregard of his right to personal safety.

On appeal we of course indulge every reasonable inference that will support the findings of the trier of fact. As to Warden Brewer, there is almost no proof. So far as we know, he never knew Branchcomb, or even knew of him. Brewer never acted on Barry's initial recommendation for re-transfer to Anamosa, but the record does not tell us why, nor is it clear that the request would have been granted had the Warden considered it before the rapes. Defendant James Menke, director of security at ISP, was responsible in general for the safety of inmates and staff, but liability under Section 1983 is personal, not vicarious or derivative. Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Menke had little if any personal contact with Branchcomb. He did testify that any inmate who requests it is admitted to PC, whether or not he cooperates with the authorities in any investigation of his reasons for fearing for his safety. Menke had no personal knowledge of Branchcomb's leaving PC, and he never discussed plaintiff's case with Barry. He had no role in approving requests for transfer.

The defendant Wilkens, assistant director of security, probably had more personal contact with and knowledge of plaintiff than the other two named defendants, Brewer and Menke, but most of it seems to have come after the rapes, not before. He knew that Branchcomb and Offutt worked in the dining hall, and Offutt's file contained alarming information, including the fact that he had previously committed a homosexual rape on another inmate. If Wilkens had known the contents of Offutt's file, and if he had thereafter done nothing to protect Branchcomb or transfer him to another job, one might well label Wilkens's state of mind as "conscious indifference" or ...