Breece v. Swenson

• Decision Date: 13 August 1971
• Docket Number: Civ. A. No. 1494.
• Citation: 332 F. Supp. 837
• Parties: Peter BREECE, Plaintiff, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

332 F. Supp. 837

Peter BREECE, Plaintiff, v. Harold R. SWENSON, Warden, Missouri State Penitentiary, et al., Defendants.

Civ. A. No. 1494.

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

August 13, 1971.

Peter Breece, pro se.

Kenneth M. Romines, Asst. Atty. Gen., Jefferson City, Mo., for defendants.

JUDGMENT OF DISMISSAL FOR FAILURE TO STATE A CLAIM UNDER THE FEDERAL CIVIL RIGHTS ACT

WILLIAM H. BECKER, Chief Judge.

In his complaint herein under the Federal Civil Rights Act, plaintiff, a state convict confined in the Missouri State Penitentiary, states that he was placed in maximum security confinement by defendants because of a charge which resulted in a "felony complaint" being filed against him in the Magistrate Court of Cole County and that the charge in the Magistrate Court has now been dismissed, but nevertheless plaintiff has been kept in maximum security and has thereby suffered the diminution of other rights and privileges generally accorded to those outside the maximum security quarters in the general prison population and has generally suffered cruel and unusual punishment as prohibited by the Eighth Amendment to the Constitution of the United States.

Defendants moved on December 5, 1969, to dismiss the complaint for failure to state a claim under the Civil Rights Act, stating that in Douglas v. Sigler (C.A.8) 386 F.2d 684, the Eighth Circuit Court of Appeals "held that similar allegations did not raise a federal constitutional issue" and that in Hancock v. Avery (M.D.Tenn.) 301 F.Supp. 786, the Court held that cruel and unusual punishment is a "matter which defies concrete definition." They further stated that maximum security detention is not cruel and unusual punishment per se. The motion to dismiss was denied, however, on December 12, 1969, when the Court stated that:

"Even granting that defendants' statements are correct on that issue, however (without so holding), plaintiff's conclusory allegations of cruel and unusual punishment may well still state a claim under the Federal Civil Rights Act. On a motion to dismiss, the allegations of the complaint are to be taken in the light most favorable to plaintiff. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80; Great Atlantic & Pacific Tea Co. v. Amalgamated Meat Cutters & Butcher Workmen of North America (C.A.8) 410 F.2d 650; Leimer v. State Mut. Life Assur. Co. (C.A.8) 108 F.2d 302. So taken, the allegation of cruel and unusual punishment may state a claim even within the standards of Hancock v. Avery, supra, which in part holds that cruel and unusual punishment may consist in punishment which exceeds the severity necessary to accomplish a legitimate penal aim."

Thereafter, on July 10, 1970, without leave of Court, plaintiff filed another pleading entitled "points of proof" in which he stated complaints largely without the scope of the pleadings herein and by which he therefore raised new issues of fact, including the following:

"10, That since April 16, 1969, Plaintiff has been subjected to some type of tear gas or chemical mace on at least sixteen separate occasions at the specific orders of the defnedants (sic) herein.

"11, That since April 16, 1969, plaintiff has been subjected to high-pressure fire-hoses on at least four separate occasions at the specific orders of the defendants herein.

"12, That from April 16, 1969, plaintiff was denied `free access to the courts' until October of that same year.

"13, That since April 16, 1969, plaintiff has been constantly subjected to unjustified, unwarranted abuse, maltreatment, harassment, insults, threats, vituperation and calumny by the defendants herein, and at their specific orders.

"14, That since April 16, 1969, the defendants herein, on at least two separate occasions, have threatened plaintiff with physical violence and actual death, or to alternatively destroy his mind, which would be to the same effect.

"15, That on or about June 29, 1969, plaintiff was placed in a seclusion cell and subjected constantly to high-pressure fire-hoses and some type of tear gas or chemical mace by the defendants herein, for a period of four or five days, in an effort to coerce him to sign an admission of violating a (sic) institutional rule.

"16, That on numerous occasions plaintiff has been forced to witness the suicide and attempted suicide of mentally deranged inmates confined to this same unit.

"17, that on one occasion plaintiff was kicked and beaten by a group of armed guards at the direct orders of the defendants herein.

"18, That as a result of said treatment plaintiff has incurred serious, and permanent impairment of his eyesight."

The filing of "points of proof" by plaintiff after the answer of defendants had been filed herein amounts to an attempted amendment of the complaint without required leave of Court. Rule 15, F.R.Civ.P., provides that leave to amend the complaint at this point is within the discretion of the Court. Plaintiff may assert his claims contained in his points of proof in a separate civil action. Therefore, he was directed to show cause why the "points of proof" filed herein should not be stricken in favor of his realleging the claims in a separate civil action.

Further, although as stated in the order of December 12, 1969, herein, denying defendants' motion to dismiss plaintiff's allegations may state a claim under the Federal Civil Rights Act, plaintiff must clearly state the facts generally on which his claim is based in order to state a claim under the Federal Civil Rights Act. See Wright, Law of Federal Courts, 2d Ed., § 68, pp. 286-287.

It was therefore ordered on March 24, 1971, that plaintiff show cause in writing within 15 days why his "points of proof" should not be stricken and why this action should not be dismissed by stating the name and case number of the "felony complaint" and date of dismissal and the specific dates, manner and by whom cruel and unusual punishment has been imposed on him.

Plaintiff's response was filed on April 27, 1971. Therein, plaintiff pertinently stated as follows:

"A, Plaintiff was charged by felony complaint with assault with intent to kill, (Mo.S) 557.180 559.180, on or about May 12, 1969. Subsequently, plaintiff was arraigned on June 12, 1969, and the charge was dismissed.

"The plaintiff will suffer the Court to remember he is presently confined in the maximum security unit at the Missouri State Penitentiary and has limited access to records and few channels through which information can be obtained; subsequently, the dates and names may be in error though plaintiff verily believes them to be correct.

"Plaintiff can contact the Magistrate Court of Cole County and obtain the correct dates and forward the same to this Honorable Court in form of a Supplement to this Affidavit. In light of the time period in which this order has to be complied with plaintiff submits these dates which, if not correct, are very close approximations.

"B, As further requested by this Court plaintiff now shows how and by whom he was subjected to `cruel and unusual punishment' and which plaintiff bases his claims under the Federal Civil Rights Act:

"i, It is to be noted that plaintiff has a very serious asthmatic condition which he has suffered from the age of two (2) years.

"ii, On or about June 26, 1969, plaintiff was taken from his cell by guards Looten and Lieutinant (sic) Camper and about six (6) other prison personnel, all of whom were armed with clubs and some type of chemical mace and confined to a `seclusion' punitive cell (about six feet by nine feet) and five other inmates were present. Plaintiff was divested of his clothing, the cells were filthy with the lack of air and lighting, and commodes which leaked urine and was (sic) very rank. Plaintiff was denied his legal papers and all forms of toilet articles. Plaintiff was forced to sleep on a cold concrete floor.

"Plaintiff was subjected to mace fumes which caused him to choke and regurgitate. Plaintiff was only fed six sandwiches in a three-day period. All of this took place at the direct orders of the defendants herein named and was admitted by said defendants in the Federal Court trial recently conducted before the Honorable Elmo B. Hunter re Beishir, et al, vs. Swenson, et al, No. 1465 and consolidated civil rights cases.

"iii, On October 11, 1969, plaintiff was again in the `seclusion' punitive cells and the defendants herein named (and specifically defendant Wyrick) beat this plaintiff with billy-clubs and made him crawl up and down the walk. For a three-day period, or until and through October 13, 1969, plaintiff was sprayed with mace every three to four hours and could barely breathe. Five other inmates were also present in this cell during this three-day period. The mace fumes were so thick that a Catholic Priest, Reverend Richard Cronin, stood there with the door open in an effort to clear the air, but his effort was in vain.

"iv, Plaintiff was charged with two counts of violence to a guard and these said charges were ordered dismissed subsequent to a preliminary hearing (See: Cole County Magistrate Court cases 20897 and 20899, June 4, 1970). Thereafter plaintiff was charged with yet another violence to a guard by Indictment returned by a Cole County Grand Jury arising out of the October 11, 1969, incident, for purposes of further harassment by the defendants herein named. Subsequently this charge was dismissed at the request of the Cole County Prosecuting Attorney (See: Cole County Circuit Court Case No. 6749, July 25, 1971 (sic)).

"v, In conclusion plaintiff suffered a beating and mace which was very bad for his health and due to the fact that he is completely innocent of the of the (sic) four charges enumerated supra the beatings and macings amounted to `cruel and unusual punishment'. Additionally he suffered a very serious asthmatic condition at the time."

It is apparent from the course of the pleadings in this case that plaintiff's allegations of cruel and...