Crowder v. Lash

• Decision Date: 08 November 1982
• Docket Number: No. 80-2220,80-2220
• Citation: 687 F.2d 996
• Parties: Thomas CROWDER, Plaintiff-Appellant, v. Russell E. LASH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 996

687 F.2d 996

Thomas CROWDER, Plaintiff-Appellant, v. Russell E. LASH, Defendant-Appellee.

No. 80-2220.

United States Court of Appeals Seventh Circuit.

Argued Oct. 26, 1981.

Decided Aug. 26, 1982.

Rehearing and Rehearing En Banc Denied Nov. 8, 1982.

Ivan E. Bodensteiner, Project Justice & Equality, Valparaiso, Ind., for plaintiff-appellant.

Charles N. Braun, II, Jeffrey G. Fihn, Deputy Attys. Gen., Indianapolis, Ind., for defendant-appellee.

Before PELL and CUDAHY, Circuit Judges, and CAMPBELL, ^* Senior District Judge.

CUDAHY, Circuit Judge.

In this civil rights action, plaintiff Thomas Crowder, a former inmate at the Indiana State Prison, appeals from the entry of a directed verdict which denied liability as to all defendants except one and which removed from jury consideration all constitutional issues except plaintiff's eighth amendment claim. Crowder also appeals from a jury verdict in favor of the one remaining defendant, Warden Russell Lash, on the eighth amendment issue, alleging various procedural and evidentiary errors. We affirm in part, and reverse in part.

I

Plaintiff Thomas Crowder entered the Indiana State Reformatory on December 13, 1967, following his conviction for conspiracy to commit robbery. He was transferred to the Indiana State Prison at Michigan City on August 4, 1968. On June 20, 1974, Crowder was released from custody, having spent a total of four out of his seven years in prison confined to the D. O. (Deputy Office) Seclusion Unit as punishment for various prison infractions, ranging from assaulting an officer to insolence.

Crowder's seclusion was uninterrupted for nearly forty-six months. Substantial portions of his detention were served in a strip cell or in one of the other cells located on the lower level of the D. O. Unit, where water for both sinks and toilet facilities was totally controlled by the prison guards.

The regular cells in the D. O. Unit were approximately six feet by nine feet and contained only a cot, a sink and a makeshift toilet. The floor and three of the walls were concrete and the fourth wall was barred; there was a solid wooden door approximately four feet beyond and outside the bars. The strip cells were identical to the regular cells except that the cots had been removed and bedding was brought in only at night. When Crowder was confined to a strip cell, the light was turned off and the wooden door was kept closed. Crowder was not allowed to correspond by letter or receive visitors and he was not permitted to have reading material or personal possessions.

Because the window in each of the D. O. Unit cells had been covered with a metal plate, lighting and ventilation were poor. The lack of space and ventilation made it difficult to move freely and to breathe, limiting the feasibility of exercise. The close quarters, together with the irregularity of showers and the sometimes irregular flushing of toilets, gave rise to offensive odors throughout the unit. The cells were noisy, dirty and infested with insects. Moreover, mace was not infrequently used on prisoners who were creating a disturbance, and, following a macing, the wooden doors to the prisoners' cells were closed. Crowder claimed that these conditions, coupled with the disproportionate amount of time he was forced to spend in D. O. seclusion, constituted a violation of his eighth amendment right to be free of cruel and unusual punishment.

At trial, plaintiff also presented considerable evidence about the "disciplinary hearings" by which he was repeatedly sentenced to seclusion in the D. O. Unit. ¹ Crowder testified that the disciplinary committee would call him in, read the charge, find him guilty and sentence him. He stated that he was given no opportunity to deny the accusation or to explain his action, and that no evidence was presented at the "hearing." On one occasion, defendants Moore and Devero held such a "hearing" in Crowder's absence, at which they found Crowder guilty, and sentenced him to continued seclusion. Crowder claimed that these procedures violated the fourteenth amendment's due process guarantee and that they were also part of the "totality of circumstances" which bore on his cruel and unusual punishment claim.

Crowder likewise presented evidence of unexplained censorship of his general correspondence and reading material. ² He further alleged that defendants Lash, Moore and Devero interfered with his free exercise of religion and with his access to the courts by repeatedly denying him the opportunity to correspond with ministers, a law student and representatives of three organizations concerned with prison conditions. Letters from Crowder to court personnel never reached their destination. Letters to him from attorneys were delayed and opened. Requests for law books and legal materials were denied and Crowder was not permitted access to the prison writ room. Law books that Crowder managed to obtain from other sources, as well as his Bible, were confiscated and never returned. Crowder alleged that these actions violated his first amendment rights, as well as his fourteenth amendment right of access to the judicial system.

Plaintiff Crowder filed his pro se complaint for damages under 42 U.S.C. § 1983 on November 8, 1973. He named as defendants Robert Heyne, Commissioner of Corrections of the State of Indiana; Russell Lash, Warden; Charles Moore, Assistant Warden; and James Devero, Director of Classifications of the Indiana State Prison. In his original complaint, Crowder sued the defendants both individually and in their official capacities, but since that time, this action had proceeded against these defendants in their individual capacities only.

A jury trial on Crowder's damage claims was conducted from March 10, 1980 through March 13, 1980. Following the close of plaintiff's evidence, the district court granted the state's motion for a directed verdict, on grounds of lack of personal responsibility, as to defendants Heyne, Moore, and Devero, and further removed from the case all issues except for plaintiff's eighth amendment claim. ³ On March 14, 1980, the jury returned a verdict in favor of defendant Lash on the eighth amendment issue. Judgment was entered on March 14, 1980. Plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial was denied by the district court on July 23, 1980.

Plaintiff then filed this appeal contending: (1) that the district court erred in sustaining defendants' motions for a directed verdict; (2) that defendants should have been precluded, by collateral estoppel principles, from relitigating the constitutionality of the conditions under which plaintiff was confined; (3) that the district court erred in instructing the jury in several respects; and (4) that the district court improperly sustained defendants' objections to any inquiry regarding the vacating and closing of the D. O. seclusion unit. Because we find the first two issues dispositive of this appeal, we address only these issues in turn.

II

As this court has emphasized on numerous occasions, a motion for a directed verdict should be granted only where the evidence, together with all inferences that reasonably could be drawn from it, considered most strongly against the moving party, does not create a jury question. Hampton v. Hanrahan, 600 F.2d 600, 607-08 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Oberlin v. Marlin American Corp., 596 F.2d 1322, 1326 (7th Cir. 1979); Hohmann v. Packard Instrument Corp., 471 F.2d 815, 819 (7th Cir. 1973). A directed verdict in favor of a defendant, then, is proper only if reasonable people, viewing the facts most favorably to the plaintiff and disregarding conflicting unfavorable testimony, could not conclude that the plaintiff has made out a prima facie case. Cannon v. Teamsters & Chauffeurs Union, 657 F.2d 173, 175-76 (7th Cir. 1981); Clark v. Universal Builders, Inc., 501 F.2d 324 (7th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974).

To recover damages under 42 U.S.C. § 1983 a plaintiff must prove that the defendants acted under color of state law, that their actions resulted in a deprivation of the plaintiff's constitutional rights, and that the action of the defendants proximately caused the constitutional violation. See Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Reichenberger v. Pritchard, 660 F.2d 280, 284-85 (7th Cir. 1981). The law in this circuit is unsettled whether the plaintiff must also prove, or, in the alternative, whether the defendants must disprove, that the constitutional right in question was clearly established at the time of the alleged deprivation, that the defendants knew or should have known of the right and that the defendants knew or reasonably should have known their conduct violated the constitutional norm. Compare Murray v. City of Chicago, 634 F.2d 365, 367 (7th Cir. 1980), cert. granted, 454 U.S. 962, 102 S.Ct. 501, 70 L.Ed.2d 377 (1981) (immunity based on "good faith action under apparently valid authority is an affirmative defense which (defendant) must plead and prove") and Chavis v. Rowe, 643 F.2d 1281, 1288 (7th Cir.), cert. denied, 454 U.S. 907 102 S.Ct. 415, 70 L.Ed.2d 225 (1981) (defendants must plead and prove good faith before they are entitled to qualified immunity in a § 1983 action) with Johnson v. Miller, 680 F.2d 39, 42 (7th Cir. 1982) (absent allegation of knowing or intentional constitutional deprivation, plaintiff's complaint fails to state cause of action under 42 U.S.C. § 1983). ⁴ Although most other circuits seem to indicate that these elements are part of a qualified immunity defense, and that the burden of proof is therefore on the defendant, ⁵ the Supreme Court has not resolved the question of which party bears the burden of proof, in contrast to the burden of pleading, with respect to a qualified immunity...