Curtis v. Everette, 72-1935.

• Citation: 489 F.2d 516
• Decision Date: 17 December 1973
• Docket Number: No. 72-1935.,72-1935.
• Parties: Warren CURTIS, Appellant, v. Angus Russell EVERETTE et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

489 F.2d 516 (1973)

Warren CURTIS, Appellant, v. Angus Russell EVERETTE et al.

No. 72-1935.

United States Court of Appeals, Third Circuit.

Submitted September 11, 1973.

Decided December 17, 1973.

James G. Gavin, Community Legal Services, Inc., Philadelphia, Pa., for appellant.

Hermann Rosenberger, II, Philadelphia, Pa., for appellee.

Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges an August 8, 1972, district court order dismissing a complaint under the Civil Rights Acts (42 U.S.C. §§ 1981 and 1983, and 28 U.S.C. § 1343(3)), which also asserts pendent jurisdiction of a state law claim against a fellow prisoner (Everette), alleging that while plaintiff was a state prisoner at the Huntingdon Correctional Institute, "on or about March 24, 1970 at approximately 11:45 a. m., Defendant . . . Everette physically attacked without provocation Plaintiff . . . in the kitchen at such Institute" (par. 11). Plaintiff was assaulted by Everette allegedly "solely because defendants Hess dietician and kitchen guard, Smith head steward and kitchen guard and Brindle correctional officer had stopped him from defending himself and due to his reliance on the fact that such Defendants . . . who had custody of Everette would perform their duty in disarming and restraining Everette and in protecting plaintiff."¹ Paragraph 12 of the complaint alleges that plaintiff "suffered great pain and suffering and the permanent loss of sight of his right eye." Paragraph 21-a and d alleges that defendants Smith, Hess and Brindle deprived plaintiff of his civil rights by

"a. Failing to disarm Defendant Angus Russell Everette while in their custody after he had, in their presence, attacked Plaintiff Warren Curtis with a home-made knife.

. . . . . .

"d. Failing to restrain . . . Everette after he had once attacked Plaintiff . . . with a home-made knife and allowing him to attack Plaintiff a second time causing the loss of sight in his right eye."²

Finally, paragraphs 14 and 21-f allege that these three defendants had actual knowledge of the dangerous nature and propensity of Everette.

These allegations were made in a complaint signed by a member of the Bar of the United States District Court for the Eastern District of Pennsylvania, which signature constitutes a certification by such attorney that, to the best of her knowledge, information and belief, there is good ground to support such complaint.³ Furthermore, such allegations assert intentional conduct within the rule stated by Judge Aldisert in Howell v. Cataldi, 464 F.2d 272, 281 (3d Cir. 1972), as follows:

"All that is required is proof that the conduct was intentional. There is no requirement of proof of a further objective toward which the conduct is directed. `While a specific intent to deprive a person of his constitutional rights is required under criminal sections . . ., neither specific intent nor purpose to deprive an individual of his civil rights is a prerequisite to civil liability under the civil provisions of the Civil Rights Act. . . .\'"

See also Basista v. Weir, 340 F.2d 74, 81 (3d Cir. 1965).

In view of the requirement that the allegations of the complaint and all reasonable inferences therefrom must be considered as true on a motion to dismiss,⁴ we have concluded that, at this stage of the litigation, plaintiff may prove a set of facts constituting a cause of action under 42 U.S.C. § 1983 based on a violation of the due process clause of the Fourteenth Amendment. See Johnson v. Glick, 481 F.2d 1028, 1032-1033 (2d Cir. 1973), and cases there cited; cf. Kish v. County of Milwaukee, 441 F.2d 901, 904 (7th Cir. 1971). The plaintiff's reliance on his alleged constitutional "right to be secure in his person" (see note 2 above) and on the proposition that the "Fourteenth Amendment is the constitutional basis for 42 U.S.C. § 1983" (page 17 of his brief) makes applicable the principle of Glick (481 F.2d p. 1032) that a prisoner may not be deprived "of liberty without due process of law." Applying the language of the Supreme Court in Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), the alleged activities of these three state officials "do more than offend some fastidious squeamishness or private sentimentalism . . . . This is conduct that shocks the conscience." Again, at pages 173-174, 72 S.Ct. at page 210, Mr. Justice Frankfurter said:

"So here, to sanction the brutal conduct which naturally enough was condemned by the court whose judgment is before us, would be to afford brutality the cloak of law. Nothing would be more calculated to discredit law and thereby to brutalize the temper of a society."

As stated in Conley v. Gibson, 355 U. S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957):

"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

In view of the above reliance on the due process clause of the Fourteenth Amendment, it is not necessary to discuss the possible application of the equal protection clause of that Amendment or of the language concerning cruel and unusual punishment in the Eighth Amendment. See, for example, Kish v. County of Milwaukee, supra.

Under these circumstances, the dismissal of the complaint as to the above-mentioned three defendants (Hess, Smith and Brindle) must be set aside.⁵ Using the language of Wiltsie v. California Department of Corrections, 406 F.2d 515, 518 (9th Cir. 1969), which is cited by Judge Friendly in Johnson v. Glick, supra,

"It must be clear from what is said above that the `facts\' of this case to which we have been referring are simply those which have been alleged by Curtis and which are as yet unproved. We have accepted those allegations of fact as true only for the purpose of this appeal. At the trial the plaintiff will have the burden of proving allegations which state a claim for relief. In addition to contesting those issues of fact, defendants will have an opportunity to develop such other defenses as they may plead."⁶

I.

It is conceded that the complaint states a claim under state law against Everette. This claim arises from the same operative factual situation that constitutes a federal claim against the above three defendants of sufficient substance to confer subject matter jurisdiction on the district court. Under these circumstances, it was held in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966), that the district court had the power to hear the pendent claim

". . . whenever there is a claim `arising under the Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . ,\' U.S. Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional `case.\' The federal claim must have substance sufficient to confer subject matter jurisdiction on the court. . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff\'s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole."

The fact finder may well be enlightened rather than confused by having Everette's connection with, and responsibility for, the alleged assault presented in the same trial. See Nelson v. Keefer, 451 F.2d 289, 291 (3d Cir. 1971); Jacobson v. Atlantic City Hospital, 392 F.2d 149, 153-155 (3d Cir. 1968); Wilson v. American Chain & Cable Co., 364 F.2d 558, 564 (3d Cir. 1966).⁷ The Supreme Court recently noted that the trend of decisions throughout the courts of appeals since Gibbs has been to recognize the existence of judicial power to hear pendent claims involving pendent parties where "the entire action before the court comprises but one constitutional `case'," as defined above. See Moor v. County of Alameda, 411 U.S. 693, 711-715 and n. 28, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Pendent jurisdiction of a claim similar to the claim against Everette has recently been approved by the Second Circuit. See Leather's Best, Inc. v. S. S. Mormaclynx, 451 F.2d 800, 809-811 (2d Cir. 1971) (Friendly, Chief Judge).⁸ Mr. Justice Brennan has recently stated in Moor, supra, 411 U.S. at 716, 93 S.Ct. 1785, that "broad discretion" should be given to the district court "in evaluating such matters," but the district court in this case never considered the possible exercise of discretion since it dismissed the action against all defendants except Everette on the ground that the complaint failed to state a claim upon which relief can be granted. We have concluded that the complaint against Everette should be remanded to the district court so that it may consider the exercise of "the substantial element of discretion inherent in the doctrine of pendent jurisdiction." See Moor, supra at 716-717 n. 36, 93 S. Ct. 1799.⁹

For the foregoing reasons, the district court order will be vacated, and the case remanded for further proceedings consistent with this opinion, insofar as it dismisses the complaint against Everette.

II.

There were also named as defendants Arthur T. Prasse, Commissioner of Corrections of the Commonwealth of Pennsylvania, and Harry E. Russell, Superintendent of the Huntingdon Correctional Institute. Plaintiff's brief states its claim against these defendants as follows:

"Although appellees Prasse and Russell were not present at the time of the injury, it is alleged that due to thirteen reasons they breached a duty specifically owed to appella

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