Brown v. Smith

• Decision Date: 06 April 1987
• Docket Number: No. 86-7372,86-7372
• Citation: 813 F.2d 1187
• Parties: Dock BROWN, Plaintiff-Appellant, v. Charles SMITH, Guard, West Jefferson Correctional Facility and Warden J.D. White, individually, Defendants-Appellees. Non-argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1187

813 F.2d 1187

Dock BROWN, Plaintiff-Appellant, v. Charles SMITH, Guard, West Jefferson Correctional Facility and Warden J.D. White, individually, Defendants-Appellees.

No. 86-7372.

Non-argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 6, 1987.

Rehearing and Rehearing En Banc Denied May 5, 1987.

Dock Brown, pro se.

Charles A. Graddick, Atty. Gen., Thomas R. Allison, Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before FAY, ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:

Appellant Dock Brown brought this action against Charles Smith, a guard at the West Jefferson Correctional Facility in Alabama, and J.D. White, warden of that facility, pursuant to 42 U.S.C. Sec. 1983. Brown alleged that Smith had physically assaulted him, thus depriving him of his constitutional rights. The district court adopted the magistrate's recommendation and granted summary judgment to both defendants. We affirm.

The dismissal of the complaint against defendant White was proper. Appellant's allegations amount to nothing more than a claim that the warden was vicariously liable for the acts of his subordinates. A Sec. 1983 claim cannot be based upon vicarious liability. Gilmere v. City of Atlanta, 774 F.2d 1495, 1504 (11th Cir.1985) (en banc), cert. denied, --- U.S. ----, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). Moreover, since Brown acknowledges that he was permitted to file a grievance against Smith which was investigated by prison authorities, Brown's contention that the warden did not respond to his written complaints is without foundation in the record.

Appellant's complaint against Smith was also properly dismissed. Fairly read, Brown's complaint alleges both that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment and that Smith's actions violated the substantive due process guaranteed him by the Fourteenth Amendment. However, the recent Supreme Court case, Whitley v. Albers, --- U.S. ----, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), has established that the Due Process Clause affords a convicted prisoner no greater protection than the Cruel and Unusual Punishments Clause:

We think the Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified. It would indeed be surprising if, in the context of forceful prison security measures, "conduct that shocks the conscience" or "afford[s] brutality the cloak of law," and so violates the Fourteenth Amendment, Rochin v. California, 342 U.S. 165, 172, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952), were not also punishment "inconsistent with contemporary standards of decency" and " 'repugnant to the conscience of mankind,' " Estelle v. Gamble, 429 U.S. , at 103, 106, 97 S.Ct. , at 290, 292 [50 L.Ed.2d 251 (1976) ], in violation of the Eighth. We only recently reserved the general question "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Daniels v. Williams, 474 U.S. 327, ---- n. 3, 106 S.Ct. 662, 667 n. 3, 88 L.Ed.2d 662 (1986). Because this case involves prison inmates rather than pretrial detainees or persons enjoying unrestricted liberty we imply nothing as to the proper answer to that question outside the prison security context by holding, as we do, that in these circumstances the Due Process Clause affords respondent no greater protection than does the Cruel and Unusual Punishments Clause.

106 S.Ct. at 1088.

Under the Albers standard, a prison security measure undertaken to resolve a disturbance gives rise to a Sec. 1983 claim only if the measure taken "inflicted unnecessary and wanton pain and suffering" upon the prisoner. Id. at 1085. Thus, whether or not a prison guard's application of force is actionable turns upon whether that 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. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)).

In evaluating the propriety of a prison guard's actions, the Supreme Court suggested several relevant factors which are helpful in resolving this case: the need for the application of force; the relationship between the need and the amount of force that was used; and the extent of the injury inflicted upon the prisoner. Albers, 106 S.Ct. at 1085. Moreover, the analysis must be informed by the wide ranging deference which is to be accorded prison administrators acting to preserve discipline and institutional security. Id. (citing Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979)). Thus, a prisoner may avoid a directed verdict as in Albers, or a summary judgment, as in this case, only if the evidence viewed in the light most favorable to him goes beyond a mere dispute over the reasonableness of the force used and will support a reliable inference of wantonness in the infliction of pain. Neither the judge nor the jury is free to substitute its own judgment for that of the prison officials.

Consequently, the required deference demands that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, in ruling on a motion for a directed verdict in a case such as this, 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 the plaintiff, will support a reliable inference of wantonness in...