Cohen v. United States

Decision Date21 March 1966
Docket NumberCiv. A. No. 8789.
Citation252 F. Supp. 679
PartiesMeyer Harris COHEN, also known as Mickey Cohen, Plaintiff, v. The UNITED STATES of America, Defendant.
CourtU.S. District Court — Northern District of Georgia


Charles O. Baird, Jr., Atlanta, Ga., J. Victor Barr, Jr., Nashville, Tenn., Melvin Belli, San Francisco, Cal., Dahlstrum & Walton, Los Angeles, Cal., for plaintiff.

Charles L. Goodson, U. S. Atty., Julius M. Hulsey, Asst. U. S. Atty., Atlanta, Ga., for defendant.

SIDNEY O. SMITH, Jr., District Judge.

This is an action for damages brought pursuant to the provisions of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq. by plaintiff, who at the time of the injury was a prisoner at the United States Penitentiary, Atlanta, Georgia. The particular injuries were suffered as the result of a physical beating by another inmate in the penitentiary. See Muniz v. United States, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).

The main thrust of plaintiff's suit is that the Government was negligent in failing to prevent the assault upon him by the other inmate, Berl Estes McDonald, who was contended to be a "mentally abnormal" person.1 The Government, on the other hand, asserts that it exercised ordinary care in the keeping of both prisoners. There is no contention that the two inmates personally knew each other or that there were any prior dealings between them. Thus, there is no problem as to whether the assault on plaintiff might be "justifiable" under state law. See Simonton v. Sauls, 74 Ga.App. 3(1), 38 S.E.2d 632; Thompson v. Shelverton, 131 Ga. 714(1), 63 S.E. 220.

The case was regularly tried by the court. Subsequently, but prior to submission of proposed findings to the court or any finding by the court, plaintiff moved to reopen to present newly discovered evidence which was granted and further trial held. See Gas Ridge, Inc. v. Suburban Agricultural Properties, Inc., 150 F.2d 363(8) (5th Cir. 1945); Bowles v. Six States Coal Corp., D.C., 64 F.Supp. 651 (1946); 6 Moore, Federal Practice, § 59.04(13).

From the evidence adduced on the trials, the court makes the following


(1) The assault.

The United States Penitentiary, Atlanta, Georgia, is a maximum security institution, housing approximately 2,300 inmates, a great majority of whom are under long sentences. Many inmates have escape records and aggravated criminal records or adjustment difficulties in the institution and other institutions where they have been confined. Both Cohen and McDonald were legally confined in said penitentiary in August, 1963, and were under the care, custody, and control of the Government.

As a maximum security institution, the Atlanta Penitentiary has a walled perimeter which provides close custody. The wall is manned by guards in towers. This tight perimeter security permits a freer movement and less regimentation of inmates within the walls, facilitating rehabilitation programs such as prison industries, vocational training shops, educational programs and recreation.

Within the maximum perimeter of the penitentiary is located the Associate Warden's Building (commonly referred to as the AW Building). Its purpose is to house prisoners in two categories: punitive segregation and administrative segregation. Punitive segregation is imposed by the prison authorities for breaches of discipline and is normally limited to 10 days; administrative segregation is imposed on various categories of prisoners, including unmanageable and dangerous inmates, repeated disciplinary problems, and persons under investigation or awaiting trial, and is imposed for longer periods, usually of 30 days or more. The purpose of the AW Building is absolute segregation and that inmates be kept there until properly released. According to the Warden, the duty of the guards is to keep such prisoners there for "disciplinary purposes, for our protection, and for the protection of others."

Generally, prisoners at Atlanta are classified upon admittance as (1) close custody, (2) medium, (3) medium out, or (4) minimum. Activities and work assignments vary according to classification. However, in keeping with rehabilitation policy, all prisoners outside the AW Building have, except for specified periods, free access to the yards and buildings within the controlled secure perimeter.

Berl Estes McDonald was, on the occasion in question, a 33 year old white male. Except for two short periods in the Army and Navy he has been incarcerated almost continuously since age 16, having served sentences for Larceny, Forgery, Robbery, Assault, Kidnapping, Escape, Narcotics and Grand Larceny. He was a known narcotic addict and had been hospitalized in the South Carolina state mental institution and in a United States Navy base hospital for nervous disorders and drug addiction.

Upon his admission to the Atlanta penitentiary in June, 1960, his medical examination showed a history of psychiatric treatment, inconclusive findings of psychoneurosis, sociopathy, neurological disorder, but no finding as to mental deficiency or psychosis, that is, active insanity, at that time. There had been one prior notice of psychotic diagnosis by South Carolina authorities in his file.

In September, 1960, at Atlanta, he had a fight with another inmate. In October, 1960, he was cited for creating a disturbance in the cell house. In December, 1960, he assaulted another inmate with a knife, inflicting four wounds on his body. Under court direction, in March, 1961, he was examined by Dr. Lipton, psychiatrist, Dr. Bryan, clinical psychologist, and Dr. Pirkle, Public Health Service medical director.

At that time, he was generally classified as being in a "constitutional psycopathic state, emotional instability." He was specifically classified as paranoid with "considerable likelihood of his having recurrent psychotic episodes in the future, under situations of stress." The general classification refers to emotionally immature persons, who are impulsive, aggressive types in repeated conflict with the law and society. Up to 80% of the population of the Atlanta penitentiary fall into this general classification. Approximately one-third have assaultive backgrounds and approximately 200 are serving sentences for crimes of violence. The specific classification of paranoid refers to persons within the general classification who have ideas and delusions of persecution directed toward others, frequently with no cause whatsoever. Various paranoids believe they can read another's mind and determine that they are after him. This sometimes results in psychotic episodes such as assaults, fights, suicides, refusal to eat, etc. In fact, in McDonald's case, this had resulted in the December assault when he knew from the victim's attitude and speech that he would cut him, if he didn't "beat him to the draw." In 1961 it was concluded that McDonald be placed in maximum security and under continued psychiatric supervision.

Later in 1961 he was transferred to Leavenworth (the other maximum security institution maintained by the government since the closing of Alcatraz). His psychiatric record was reviewed and he was diagnosed as a sociopathic personality, which is the equivalent of his general classification of constitutional psychopathic state. Because of poor emotional control, it was recommended that he be given a "job assignment which would limit interpersonal relationships and minimize situational difficulties," as well as a single cell.

There was no further psychiatric evaluation of McDonald by the government in 1962 or in 1963 prior to the assault on plaintiff. Prior to the summer of 1963 he was returned to Atlanta. On June 1, 1963, he was placed in administrative segregation and released after a short stay.

On June 22, 1963, McDonald was placed in the Associate Warden's Building, confined to administrative segregation, based upon information that McDonald had threatened another inmate and had forced this inmate to give up items which he had purchased at the Penitentiary Commissary, described by the prison officials as "strong arm tactics." He remained there until August 14, 1963.

The AW Building is a two-storied brick building. The first floor contains cells for punitive segregation and the second floor contains cells for administrative segregation with a guard on each floor. Inmates in punitive segregation have distinctive clothing, while those in administrative segregation have the normal prison garb worn by the general prison population. Outside the AW Building, it cannot be determined whether a prisoner is in administrative segregation by his clothing. Adjacent to the AW Building is an enclosed exercise yard connected to both floors by steps.

Officers at the institution were directed to give yard privileges for inmates confined to administrative segregation in the AW Building. Such inmates were permitted to go to the yard in groups of not more than three at a time.

On August 14, inmate McDonald, along with two other inmates, was permitted to go to the exercise yard. Officer T. E. Bryan placed the three inmates in the yard at approximately 8:40 A.M. on August 14, 1963. At this time Officer Bryan observed nothing unusual in regard to inmate McDonald. The exercise yard is located on the rear of the segregation building itself. The yard is an area of 40 × 60 feet, walled on three sides by a 10½ to 11 foot brick wall, and on the fourth by the segregation building itself. There was no wire screen on top of the brick wall and there was no electrical warning device on top of the wall around the exercise yard. Inmate McDonald was allowed to have with him in the exercise yard a dumbbell measuring approximately 12 to 13 inches in length. There was no guard placed over the inmates in the exercise yard, although that exercise yard was under the surveillance of two posts— Tower #1 officer who observed the yard at irregular but frequent...

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