Clarke v. Cady, 69-C-225.

• Decision Date: 11 May 1973
• Docket Number: No. 69-C-225.,69-C-225.
• Citation: 358 F. Supp. 1156
• Parties: Charles Robert CLARKE, Plaintiff, v. Elmer O. CADY et al., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

358 F. Supp. 1156

Charles Robert CLARKE, Plaintiff, v. Elmer O. CADY et al., Defendants.

No. 69-C-225.

United States District Court, W. D. Wisconsin.

May 11, 1973.

Anthony J. Theodore, Corrections Legal Services Program, Madison, Wis., for plaintiff.

Robert W. Warren, Atty. Gen., Madison, Wis., by Robert D. Repasky, Asst. Atty. Gen., for defendants.

JAMES E. DOYLE, District Judge.

This is a civil action for monetary, declaratory and injunctive relief. Plaintiff has been granted leave to proceed in forma pauperis. 28 U.S.C. § 1915. Jurisdiction is invoked pursuant to 28 U. S.C. § 1343(3).

In an order entered September 11, 1972, I dismissed the amended complaint as to plaintiff's claim for declaratory and injunctive relief preventing defendants from confining plaintiff in segregation without adequate procedural safeguards and from imposing punishment on plaintiff which violates the Eighth Amendment and as to plaintiff's damage claim against defendants Powers, Schmidt, and Gray. The motion to dismiss was denied as to plaintiff's monetary claim against defendant Cady and as to plaintiff's claim against all defendants for the restoration of "good time."

In a Pretrial Conference Memorandum, entered January 5, 1973, a briefing schedule was established on the question of whether defendant Cady may assert the affirmative defense of good faith in response to plaintiff's monetary claim. This question is presently before the court. For the purpose of deciding upon this pretrial order only, I shall assume that, if permitted to do so at trial, defendant Cady will be able to prove the allegations of fact upon which he bases this affirmative defense.

The amended complaint alleges in part that plaintiff is presently confined in the Wisconsin State Prison; that on July 7, 1969, he was placed in the "Segregation Building," where he was confined for 7 months; that he was never given a hearing on the charges which resulted in his confinement in segregation nor informed about said charges; that on or about October 1, 1969, he received a summons from the Dodge County Court charging him with assault; that on or about January 6, 1970, these charges were dismissed; that six weeks later he was released from segregation; and that as a result of his confinement in segregation, he was deprived of good time. Plaintiff further alleges that the conditions in the segregation cell constituted cruel and unusual punishment.

Defendant Cady affirmatively alleges that on July 6, 1969, there was a disturbance at the Wisconsin State Prison involving an attack upon three guard officers by prisoners; that reports indicated that plaintiff was observed assaulting a guard; that a subsequent investigation by the Wisconsin State Prison staff in conjunction with the Sheriff's Department of Dodge County indicated that plaintiff had assaulted an officer; that assault upon an officer is a felony; that as a number of inmates were present at the time of the assault, it seemed likely that there would be witnesses for a subsequent prosecution; that defendant Cady believed that if plaintiff were returned to the general prison population there would be a substantial risk of resumption of assaultive behavior by plaintiff; that on July 6, 1969, at least one inmate was placed in temporary lockup for his own protection from the assaulting inmates; that plaintiff is presently serving sentences on charges of rape and armed robbery, which are assaultive offenses; that prior to May, 1971, defendant had been advised and was of the opinion that discipline proceedings could not be instituted by the prison against an inmate who was awaiting trial upon state criminal charges arising out of the same factual circumstances; and that therefore plaintiff was placed in segregation to avoid substantial security risks, without a hearing, awaiting the state criminal trial.

Plaintiff advances two theories here. I will refer to the first as a federal statutory argument, and to the second as a state statutory argument. The first is that good faith is only a defense in some 42 U.S.C. § 1983 actions; that in order to determine whether good faith is an available defense one must look to the common law; that false imprisonment is the common law tort most closely analogous to the alleged wrongdoing in this case; that at common law, good faith is not a defense to false imprisonment; and that consequently good faith is no defense to plaintiff's § 1983 action. Plaintiff's second theory is that the Wisconsin indemnification statute, Wis. Stats. § 270.58(1), removes any rationale for granting immunity to the defendant.

Defendant emphasizes that he is not asserting the defense of "subjective good faith," i. e., lack of malice or bad purpose, but of "objective good faith," reasonably prudent lawful action; that "objective good faith" is a defense to false imprisonment at common law; and that regardless of common law analogues, a doctrine of qualified immunity, dependent on good faith action, has developed in § 1983 actions.

Plaintiff's Federal Statutory Argument

In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Supreme Court recognized that monetary relief is available to an injured plaintiff under § 1983. In that case, it was alleged that 13 police officers had broken into the petitioners' home and subjected petitioners to an extensive search without a warrant. Defendants moved to dismiss on the ground that the complaint failed to state a claim. The Supreme Court held that the complaint stated a claim. In construing § 1983, the Court stated (at 187, 81 S.Ct. at 484):

In the Screws case Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 we dealt with a statute that imposed criminal penalties for acts "willfully done." We construed that word in its setting to mean the doing of an act with "a specific intent to deprive a person of a federal right." . . . We do not think that gloss should be placed on § 1983 which we have here. The word "willful" does not appear in § 1983. Moreover, § 1983 provides a civil remedy, while in the Screws case we dealt with a criminal law. . . . Section § 1983 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.

Pierson v. Ray, 386 U.S. 547, 187 S. Ct. 1213, 18 L.Ed.2d 288 (1967), involved the arrest of members of a group of white and Negro clergymen attempting to use a segregated interstate bus terminal waiting room in Jackson, Mississippi, in 1961. The clergymen were charged with conduct breaching the peace in violation of a Mississippi statute. In 1965, the statute was held to be unconstitutional. The Court of Appeals had held that under Monroe v. Pape, the police officers had no immunity under § 1983, although they would have had immunity under the state common law of arrest so long as they acted in good faith under a state statute which they were entitled to presume to be valid. Pierson v. Ray, 352 F.2d 213, 218 (5th Cir. 1965). The Court of Appeals had stated (at 218):

Inherent in the Monroe holding is the principle that good faith and reliance upon a state statute subsequently declared invalid are not available as defenses. Monroe v. Pape did not expressly rule upon the question of immunity but the result necessarily implies rejection of such a defense as a general proposition.

The Supreme Court reversed in part and stated (386 U.S., at 555-557, 87 S. Ct. 1213 at 1218-1219):

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Citations omitted. A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional. . . .

. . . Monroe v. Pape presented no question of immunity . . . We in no way intimated there that the defense of good faith and probable cause was foreclosed by the statute. We . . . held that the complaint should not be dismissed for failure to state that the officers had "a specific intent to deprive a person of a federal right," but this holding, which related to the requirements of pleading, carried no implications as to which defenses would be available to the police officers. . . . Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983. . . . The Court of Appeals ordered dismissal of the common-law count on the theory that the police officers were not required to predict our decision. . . . We agree that a police officer is not charged with predicting the future course of constitutional law.

The application of Pierson presents difficulties stemming from the undefined term "good faith" as used in Pierson both by the Court of Appeals and by the Supreme Court. It appears from the opinion of the Court of Appeals that when it discussed "good faith" as a defense to a common law tort, it was not speaking of reasonable reliance upon the constitutionality of a statute. Perhaps it intended "good faith"...