Cook v. Cox

• Decision Date: 16 April 1973
• Docket Number: Civ. A. No. 230-70-R.
• Citation: 357 F. Supp. 120
• Parties: James Robert COOK v. James D. COX, etc. et al.
• Court: U.S. District Court — Eastern District of Virginia

357 F. Supp. 120

James Robert COOK v. James D. COX, etc. et al.

Civ. A. No. 230-70-R.

United States District Court, E. D. Virginia, Richmond Division.

April 16, 1973.

Daniel A. Carrell, Richmond, Va., for plaintiff.

Vann H. Lefcoe, Asst. Atty. Gen., Commonwealth of Virginia, Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

James Cook, a Virginia prisoner, seeks redress from the defendant prison officials for alleged constitutional deprivations suffered while he was incarcerated in the state penitentiary. Jurisdiction is attained by virtue of 28 U.S.C. § 1343, 42 U.S.C. § 1983. The parties are presently before the Court pursuant to plaintiff's motion for a hearing. Because of the peculiar history of this litigation, however, the Court finds this matter ripe for summary judgment. The issues appurtenant thereto have been fully briefed by counsel in memoranda before the Court. It is upon same, and the records before it, that the Court deems this matter ready for disposition.

Cook brought this action pro se against J. D. Cox, then Superintendent of the Virginia State Penitentiary, on April 21, 1970, alleging that he was unconstitutionally confined to isolation (solitary confinement) and padlock on several occasions and that he had been beaten by an unnamed prison guard without reason. Counsel was appointed for Cook on June 30, 1971, when it appeared that controverted issues of fact and law existed on the record before the Court. On September 22, 1971, plaintiff submitted his demand, by counsel, for jury trial of the factual issues raised. On March 21, 1972, the Court granted defendant Cox's motion of March 22, 1972, for a more definite statement of claims. On March 31, 1972, Cook, by counsel, filed an amended complaint naming as additional party defendants A. E. Slayton, Superintendent of the Virginia State Penitentiary; W. K. Cunningham, Director of the Division of Corrections; and Otis Brown, Director of the Department of Welfare and Institutions. The amended complaint alleged the following constitutional deprivations:

1. Cook was placed in isolation without notice of charges or of duration of confinement on October 29, 1968.

2. On November 20, 1968, while in isolation, Cook was attacked without provocation by an unnamed prison guard and subsequently not given medical treatment therefor.

3. On May 28, 1969, Cook was placed in C-cell (maximum security) without a hearing.

4. On March 27, 1970, Cook was again placed in isolation without a hearing or notice of charges.

Relief prayed for included money damages and a prayer for expunction of the records of these confinements from Cook's prison records.

This action went to trial before a jury on April 10 and 11, 1972. Because several of the preliminary legal issues raised, including that of whether Cook was entitled to a jury, were not determined, counsel agreed, upon the Court's suggestion, that the jury should be instructed to return a special verdict to establish the facts and that the issue of liability for damages would be developed in memoranda of law to be submitted to the Court. The jury's verdict read as follows:

VERDICT

Was Mr. Cook, while in solitary confinement, struck across the back without justification, by an agent, servant or employee of the Commonwealth of Virginia? Answer "Yes" or

"No." YES

Was Mr. Cook, on any occasion, ever placed in solitary confinement or in C-Building without being informed of the reasons therefor, or without being given an opportunity to confront those making accusations against him, or without being given an opportunity to defend himself or seek assistance in defending himself against those charges which might have caused him to be placed in solitary confinement or in a C-Building cell? Answer "Yes"

or "No." YES

If you answered either of the foregoing questions "Yes" do you find that Mr. Cook has suffered any damages whatsoever as a result of the acts mentioned therein, that is, the beating or being placed in solitary confinement or in the C-Building. Answer

"Yes" or "No." ________ Written by Foreman (1) Physical Damage NO (2) Mental Damage YES /s/ John A. Passeri, Jr. Foreman Date: 4-11-72

A subsequent motion for judgment N. O.V. of April 27, 1972, by the defendants was denied by the Court for the reason that said motion was untimely. On September 29, 1972, the Court solicited memoranda from counsel on the issue of whether the plaintiff is entitled to recover damages from the plaintiff. That issue, as well as procedural issues raised with respect to the further prosecution of this action, are now before the Court. Accordingly, the Court will proceed with this matter by determination of the following issues:

1. Is Cook entitled to a jury?

2. What elements must be proven in order to hold the defendants liable?

I.

The Seventh Amendment guarantees the right of jury trial to suits at common law.¹ The few courts that have considered the issue have split on the question of whether a § 1983 suit is one "at common law." See, e. g., Lawton v. Nightingale, 345 F.Supp. 683 (N.D.Ohio 1972) (holding it isn't) and Harkless v. Sweeny Independent School District, 278 F.Supp. 632 (S.D.Tex.1968), rev'd. on other grounds, 427 F.2d 319 (5th Cir. 1970) (holding in effect it is). In the Court's opinion, the issue properly turns on a determination of whether § 1983 is a jurisdictional type statute which merely places a traditional type claim² involving state action within the framework of federal jurisdiction,³ or whether the section creates a special statutory claim independent of common law. If the former, a § 1983 action seeking money damages is in essence a tort action, which is "legal" in nature, to which the right to jury trial directly attaches. See Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). If the latter, a § 1983 claim is a special action to which other analysis, infra, may be applied. See Lawton v. Nightingale, supra.

The Court concludes that the latter position is correct, that is, that § 1983 creates a separate federal right. Support for this view is found in Monroe v. Pape, 365 U.S. 167, 195, 81 S.Ct. 473, 488, 5 L.Ed.2d 492 (1961) (Harlan, J., concurring):

Since the suggested narrow construction of § 1983 presupposes that state measures were adequate to remedy unauthorized deprivations of constitutional rights and since the identical state relief could be obtained for state-authorized acts with the aid of Supreme Court review, this narrow construction would reduce the statute to having merely a jurisdictional function, shifting the load of federal supervision from the Supreme Court to the lower courts and providing a federal tribunal for fact findings in cases involving authorized action. Such a function could be justified on various grounds. It could, for example, be argued that the state courts would be less willing to find a constitutional violation in cases involving "authorized action" and that therefore the victim of such action would bear a greater burden in that he would more likely have to carry his case to this Court, and once here, might be bound by unfavorable state court findings. But the legislative debates do not disclose congressional concern about the burdens of litigation placed upon the victims of "authorized" constitutional violations contrasted to the victims of unauthorized violations. Neither did Congress indicate an interest in relieving the burden placed on this Court in reviewing such cases.

The statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right. This view, by no means unrealistic as a common-sense matter, is, I believe, more consistent with the flavor of the legislative history than is a view that the primary purpose of the statute was to grant a lower court forum for fact findings.

(Footnote omitted)

Additionally, the majority opinion, 365 U.S. at 180, 81 S.Ct. at 480, after reviewing the legislative history concludes:

The debates were long and extensive. It is abundantly clear that one reason the legislation was passed was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.

The United States Court of Appeals for the Fourth Circuit has given similar interpretation to § 1983 as a separate statutory cause of action. In Almond v. Kent, 459 F.2d 200, 203 (4th Cir. 1972), the Court stated:

We agree that, to the extent that Almond's § 1983 complaint alleges a violation of his constitutional rights resulting in personal injuries of the type that would be actionable at common law, the Virginia two-year period unquestionably applies. But this is so, not because there was a right of recovery at common law but because there was a violation of a constitutional right not to be beaten. We think it follows that the Virginia two-year period applies to all other rights which may be redressed under § 1983 by the recovery of money damages. Section 1983 creates a federal cause of action, unknown at common law, "for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States . . ." This right of recovery depends upon federal considerations, and it is not one which is concerned with the archaic concepts of survivability of the common law.

* * * * * *

In essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights

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