Cunningham v. List, CIV-R-80-274-ECR.
| Decision Date | 24 March 1982 |
| Docket Number | No. CIV-R-80-274-ECR.,CIV-R-80-274-ECR. |
| Citation | 543 F. Supp. 102 |
| Parties | Jon Lee CUNNINGHAM, Plaintiff, v. Robert LIST, et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Jon Lee Cunningham, in pro. per.
Richard Bryan, Atty. Gen., Carson City, Nev., for defendants.
This civil rights action has been brought by Jon Lee Cunningham, an inmate at the Nevada State Prison, against officials of the Nevada State Prison because of alleged injuries which arose during a disturbance at the prison on November 5, 1980. This action was brought under 42 U.S.C. § 1983. The jurisdiction of the Court is invoked under 28 U.S.C. § 1343. Upon motion, not opposed by plaintiff, this action was ordered dismissed as to defendants Robert List and Richard Bryan.
On November 5, 1980, the plaintiff was employed as an inmate cook in the culinary department at the prison. Between 10:00 and 10:30 a. m., the body of an inmate, the apparent victim of foul play, was discovered in the prison. According to standard procedures a lockdown of the general population of the prison was ordered by the prison administration. The lockdown order did not apply to inmates working in the culinary department because it was necessary to feed the inmates during the lockdown. The inmate culinary workers observed and heard the disturbance in the cell block. They saw that fires were being started and they heard a great deal of noise.
The fires were started at about 6:00 to 6:30 p. m. Efforts were made to extinguish them and within an hour or so most of them had been put out. But there was still smoke in and about the cell block and some of the fires may have rekindled. At approximately 7:00 p. m. Captain Gary True held a meeting with a select group of inmates for the purpose of passing certain information on to the general population. He explained that the institution had been locked down according to standard procedures and that the lockdown would only be overnight. Normal operations were to be resumed the next day.
The purpose of a lockdown following a homicide is to preserve evidence within the prison which might otherwise be destroyed and to permit interrogation of inmates possibly involved in the occurrence. After the meeting the select group of inmates were permitted to return to their cells to pass the word to the other prisoners about what was going to occur. A little before 8:00 p. m., in accordance with standard procedures, the inmate culinary workers, including plaintiff, were returned to their cells.
There was a lull in the disturbance during the period after Captain True's meeting with the prisoners until sometime after 9:00 p. m. 9:00 p. m. is the normal time for the lockdown of the prisoners at NSP. At about that time plaintiff heard a call for the prisoners to lockdown and at his urging the prisoners in cell block 2A West locked down. This was done by them going into their cells with the doors being closed behind them. Apparently prisoners in cell blocks 2B East and 2B West did not follow the order to lock down. The prison officials had made a contingency plan that tear gas would be used in the event the prisoners did not lock down at the normal time. This was believed to be the least drastic measure to obtain order in the institution and to quell a disturbance. Alternatives open to the prison officials included the use of armed prison officers to go into the cell blocks or the use of the Carson City SWAT team which had been called. The procedure of the SWAT team was for its armed members to go into the cell blocks and to use whatever force was necessary to restore order.
By 10:30 p. m. order had not been restored and the disturbance continued. A barrage of tear gas was used at approximately that time and the firing of tear gas canisters continued until about 1:00 a. m. Since there was no disturbance in cell block 2A West where plaintiff was housed, no canisters were fired with...
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