Cay v. Estelle

• Decision Date: 12 May 1986
• Docket Number: No. 84-2362,84-2362
• Parties: Kevin Michael CAY, Plaintiff-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 318

789 F.2d 318

Kevin Michael CAY, Plaintiff-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, et al., Defendants-Appellees.

No. 84-2362.

United States Court of Appeals Fifth Circuit.

May 12, 1986.

Vicki Birenbaum, Sewell & Riggs, Houston, Tex. (Court-appointed), for plaintiff-appellant.

Robin Sanders, Scott Klippel, Mike Lynch, Asst. Attys. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, REAVLEY and JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

Plaintiff Kevin Michael Cay, an inmate at the Texas Department of Corrections (TDC), brought an action under 42 U.S.C. Sec. 1983 (1982) against several prison officials, alleging principally that he was physically assaulted in violation of the Eighth Amendment. After an evidentiary hearing, a magistrate recommended dismissal of Cay's complaint based on a determination of the credibility of the witnesses. The district court adopted the magistrate's recommendation and Cay now appeals. Although we hold that a district court may make limited credibility assessments to decide whether a suit is frivolous under 28 U.S.C. Sec. 1915(d) (1982), we reverse because the assessments in this case fell outside the scope of the court's discretion.

BACKGROUND

On October 7, 1982, Cay was granted leave to file a complaint in forma pauperis (IFP) pursuant to 28 U.S.C. Sec. 1915(a). The complaint alleged that on August 3, 1982, when Cay asked to be relieved from work duties because of a back injury, he was beaten severely and placed in solitary confinement. The complaint named as defendants W.J. Estelle, Director of TDC; T.D. Durbin, a TDC Warden; J.T. Gremen, an assistant warden; W.B. Hagan, a correctional officer at TDC; and L.P. Allen, also a correctional officer at TDC. Also named as defendants were two TDC inmates: a Mr. Matthews and a Mr. Williams. The defendants denied the allegations, demanded a jury trial and raised the defense that Cay had failed to state a claim.

An evidentiary hearing was held on September 28, 1983. ¹ The testimony diverged significantly.

a. Testimony for Plaintiff

Cay testified that his work squad was assigned to work in the fields on the morning of August 3, 1982. As the squad was preparing to load into the transportation trailer, Cay stopped to remind Warden Gremen, who was standing nearby, of a conversation the two had had the day before. In this conversation, Cay had informed the Warden that he, Cay, had a long-standing back injury, and the Warden had agreed to investigate Cay's records and reassign him to lighter work if necessary. While Cay was addressing the Warden, another inmate, James Smith, objected to riding on the trailer and jumped from it.

The Warden ordered Captain Hagan, who was standing nearby, to take Cay and Smith and lock them up. As they were proceeding to a back gate, Hagan began using abusive language. When Cay responded, somewhat in kind, Hagan struck him. A moment later, Hagan was joined by Lieutenant Allen and two inmates. The four beat Cay unconscious with blackjacks (used by the guards) and lead pipes (used by the inmates), inflicting him with various injuries including a black eye, bruises, a busted nose, and a busted mouth.

Afterwards, Cay was taken to the infirmary where he was treated with iodine and bandaids by an inmate. (The medical report stated that Cay was treated for cuts and scratches.) Cay was then placed in a solitary confinement cell along with several other inmates, without clothes, a mattress, blankets or sheets. Three days later, he was charged with refusing to work, striking an officer, using vulgar language and other charges. After a disciplinary hearing, ² he was given fifteen days in solitary provided that he would forget about the incident. Cay then spent only seven days in solitary.

Two witnesses testified on behalf of Cay. The first, inmate James Morse, testified that he observed Captain Hagan, Lieutenant Allen and two inmates beat Cay. He also testified, however, that he only saw one of the inmates use a weapon (a blackjack) and that he did not see Cay unconscious. A second inmate, Horace Dewberry, confirmed Cay's testimony that he and the other inmates in solitary had no clothes, mattresses or blankets. According to Dewberry, he could see into the cell once a day when he was taken to the showers. A third inmate was supposed to present testimony as to Cay's physical impairment from the beating, but, through an apparent mixup, the wrong inmate was brought to the hearing.

b. Testimony for Defendants

Warden Durbin testified briefly as to the procedures used during hearings before the prison's Disciplinary Committee. He stated that he did not know Cay and that he had never had a reason to harm Cay or to do anything to cause him harm. Durbin also testified that he was not present during the incident.

Captain Hagan's testimony, after his memory was refreshed by a disciplinary report written after the incident, differed in almost every respect from Cay's testimony. Hagan testified that Cay was on the trailer when he jumped off and announced to Hagan (not the Warden) that he (Cay) was not going to work. Cay refused two orders to return to the building and began to yell and curse. After refusing to obey a

third order, Cay began hitting Hagan in the chest. Hagan and Allen, who was standing nearby, subdued Cay by themselves, without the use of weapons, then took him to the infirmary for treatment of minor scratches and bruises. Hagan also testified that, although he did not personally observe Cay while he was in solitary, prisoners were normally issued clothes, mattresses and blankets while so confined.

c. The Magistrate's Recommendation

Following the hearing, the magistrate filed a Memorandum and Recommendation. He stated that the hearing was held pursuant to Fed.R.Civ.P. 12(d) to determine whether Cay had "establish[ed] that his claims have sufficient prima facie merit to justify the expense of litigation." He explicitly acknowledged that the Memorandum's findings of fact where "based in part on conflicting testimony, ... and that [he] ... assessed the credibility and demeanor of the witnesses and the inherent probabilities of inconsistencies in the testimony received." The magistrate concluded that the "[p]laintiff cannot present evidence that he was subjected to physical brutality and since he received treatment for his injury, there was no 'deliberate indifference' ... to his medical need." He therefore recommended dismissal of Cay's cause of action.

The magistrate's Memorandum and Recommendation was sent to the parties. It notified both parties that a failure to file written objections to the proposed findings and recommendations contained in the report within ten days would bar them from attacking the factual findings on appeal. Cay received the report on December 24, 1983. On December 28, 1983, inmate John Pussey mailed a motion for extension of time to file objections on Cay's behalf to the district court and the Attorney General's office. (Pussey claimed to be providing Cay with "legal assistance.") The motion was returned because it had not been signed by Cay. On December 30, 1983, Cay mailed a Motion for Amended and/or Additional Findings of Fact. Because of insufficient postage, the district court did not receive the motion until February 10, 1984. The motion was, however, received by the Attorney General's office on January 3, 1984. The district court subsequently dismissed the action. Cay now appeals.

DISCUSSION

Cay contends primarily that it is improper to dismiss a civil rights action before trial when material, conflicting testimony is presented at an evidentiary hearing, requiring the magistrate to make an assessment of the credibility of the witnesses. If the dismissal was made under Federal Rules of Civil Procedure 12(b)(6) or 56, as Cay assumes, he would prevail by showing that the evidence at the hearing raised a material fact issue. But, as we discuss below, the dismissal in this case may be properly characterized as a dismissal under Sec. 1915(d), which allows dismissal of an IFP proceeding if the district court determines that the action is frivolous or malicious. Determinations under Sec. 1915(d) are fundamentally different from pretrial dismissals under the Federal Rules. Some assessment of credibility is within the broad discretion provided district courts under Sec. 1915(d). In this case, however, we conclude that the court abused its discretion.

I.

We must first consider the defendants' argument that Cay's appeal is foreclosed by Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982) (en banc). In Nettles, this court held that:

the failure of a party to file written objections to proposed findings and recommendations in a magistrate's report [within ten days] ... shall bar the party from attacking on appeal factual findings accepted or adopted by the district court except upon grounds of plain error or manifest injustice.

Id. at 410. See also Thomas v. Arn, --- U.S. ---, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The defendants argue that the motion for extension of time submitted by inmate John Pussey on behalf of Cay, filed Ordinarily, we would agree with the defendants. Cay is challenging the factual findings of the magistrate, not his legal conclusions, cf. Nash v. Black, 781 F.2d 665, 667 (8th Cir.1986) (whether a complaint is legally frivolous is question of law, not fact), and Nettles made it clear that the ten-day rule would apply to pro se parties as well as parties represented by attorneys. Nettles, 677 F.2d at 410. A district court, however, has the discretionary authority to allow a party to file objections after the ten-day period. See Fed.R.Civ.P. 6(b). Since there is nothing in the record to the contrary, we assume that the district court exercised its discretion and allowed the filing of the February 10, 1984 motion. While...