Davidson v. Dixon, Civ. A. No. 4599.

Citation386 F. Supp. 482
Decision Date20 December 1974
Docket NumberCiv. A. No. 4599.
PartiesGlenn DAVIDSON, Plaintiff, v. Ernest DIXON et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)

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L. Vincent Ramunno, Wilmington, Del., for plaintiff.

Barry W. Meekins, Deputy Atty. Gen., Wilmington, Del., for defendants.

MEMORANDUM OPINION

STAPLETON, District Judge:

Glenn Davidson, a state prisoner, here seeks compensatory and punitive damages for alleged violations of his right to due process of law and of his right to be free from cruel and unusual punishment. The defendants are the State of Delaware, Harry W. Towers, who at the relevant time was Deputy Superintendent of the Department of Corrections, Raymond W. Anderson, Warden of the Delaware Correctional Center at Smyrna — the prison in which plaintiff is housed — Harold Martin, the captain of the guard force at Smyrna, and guards Ernest Dixon and Richard Taylor.

The complaint is in two counts. The first count alleges a violation of federally secured rights; the second alleges a state claim for assault and battery cognizable under this Court's pendent jurisdiction. Trial has been held and the case is ripe for decision.

Motions to dismiss, which were filed on the eve of trial, were reserved for decision until this time. The state's motion to be dismissed as a defendant from this suit will be granted. The Eleventh Amendment precludes this Court from exercising jurisdiction over a state in any action seeking the recovery of money damages from its treasury. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L. Ed. 389 (1945). As the state has not waived its sovereign immunity with respect to the claims asserted here, it may not be sued on either the common law assault claim or the Section 1983 claim. The motion of the individual defendants to dismiss will be denied. It has long been settled that agents and officers of a state, sued in their individual capacities, do not partake of the sovereign immunity of the state when it is alleged that they have acted unconstitutionally. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L. Ed.2d 492 (1960).

On the evening of September 1, 1971, several, though not all, of the prisoners housed in the maximum security building at the Delaware Correctional Center at Smyrna, Delaware, forcibly took control of that building. The prisoners who were involved in this action blockaded several hallways of the building, took three guards as hostages and threatened to kill them. Acting decisively to quell the riot, the Director of the Department of Corrections ordered that the building be retaken.

Three groups of guards attempted simultaneous entry into the building, each through a door located at the end of one of the building's three wings. Each wing of the maximum security building houses a tier of cells; they are denominated A Tier, B Tier and C Tier. The group that attempted to enter through A Tier was initially unsuccessful in gaining entrance. The teams which entered through B and C Tiers, however, were immediately successful and met no physical resistance from the prisoners. After gaining speedy entrance, the advance of the guards who entered through B Tier was halted for several moments by barred doors at the end of the tier which had been locked and jammed by inmates. While temporarily contained behind these doors, the incoming guards witnessed one of the inmates holding a pair of scissors to the neck of a hostage and threatening to kill him. The guards, undeterred, were able after a few minutes to open the locked doors and to charge the prisoners. At this time, most of the prisoners retreated into cells in A block and locked themselves in. The few prisoners who did not seek this refuge hid in the day room of the building. These men were brought quickly under control.

Within a short time after the guards had entered the building, all of the prisoners had been locked in cells and the hostages had been freed without harm. There was remarkably little violence necessary to effect this restoration of order. The events of the night, however, were not over; it is upon the events which followed that plaintiff would predicate liability.

While the testimony is in severe conflict, I conclude that the following facts have been shown by a preponderance of the admissible evidence. As soon as the building was securely under control of the guards, a head count of the prisoners was taken and it was ascertained that none were missing. Next, it was decided that the "ring leaders" of the disturbance should be segregated from the other inmates. This was to be accomplished by placing them in the isolation section of the building, located at the end of A Tier. Someone, although the testimony does not disclose who, gave defendant Martin a list of the names of prisoners who actively participated in the riot. Reportedly this list was prepared by someone who had watched the inmate activity from outside through the windows. Plaintiff's name was on this list although it now appears that his inclusion was an error. The parties have stipulated that the plaintiff did not take an active part in the disturbance.

During the course of the riot the machinery which ordinarily opens and closes the various cell doors on A Tier was damaged. When the inmates retreated into cells on this tier and closed the cell doors, the locks engaged and the doors could thereafter be opened only with a hand crank. After a crank was obtained, Captain Martin, in the presence of Mr. Towers and with the aid of others, began removing the prisoners whose names appeared on the list to the isolation section. The process that followed involved a systematic assault upon a substantial number of inmates.

Credible testimony of inmates, which was corroborated in important part by the testimony of a guard who was present,* as well as by the physical condition of the inmates afterwards,** establishes that the "ring leaders" were searched out, taken from the cells in which they were located, and then beaten with wooden night sticks or "batons." The testimony established a pattern: an inmate would be called forth from a cell; upon entering the corridor he would be ordered to take off his shirt; when the shirt was over his head, he would be hit with night sticks wielded by the guards. He would then be forced to run, or would be dragged, down the tier to the isolation section at the end of the corridor. Guards were standing along the length of the corridor and, as an inmate would pass by, at least some of these guards would hit or jab him with their sticks.

Early in this process plaintiff was ordered from his cell by Officer Dixon. Offering no resistance, he stepped forward. No more words were said; as Davidson reached the door of his cell, Officer Dixon took hold of plaintiff's belt with one hand and with the other struck him on the head with a night stick. Dixon's first blow hit Davidson's nose; a second followed striking his forehead. Davidson was then struck in the back of the head. He fell to the ground. He was then taken to the isolation section located at the end of the corridor. During this trip Davidson was struck by defendant Martin and by unidentified others. Arriving finally at the isolation cell where he was to be kept, Davidson was stripped of all clothing and locked in the cell. He was bleeding at this time from several cuts, at least one on the top of his head, one on his forehead and one on the back of his head. Testimony of Captain Dieroff, who took plaintiff to the prison hospital about an hour and a half later, establishes that at that time Davidson's nose was swollen. Later that night the prison physician ordered an x-ray of Davidson's swollen nose. He also sutured the cuts on Davidson's head; together they required thirty-nine stitches.

Accurate identification of one's assailants in a volatile situation such as this is a difficult task and for this reason the Court examined the evidence carefully for corroboration of plaintiff Davidson's identification of the participants in the gang assault. There was ample corroboration of his testimony that he was struck by defendants Dixon and Martin and the Court is convinced that this, in fact, occurred. On the other hand, there was very little to corroborate Davidson's testimony that defendant Taylor participated in the assault and the Court has concluded that the plaintiff has not carried his burden of proof on this point.

The evidence with respect to defendants Towers and Anderson does not warrant the conclusion that either of them struck Davidson. The Court believes that Warden Anderson was not present when the assaults occurred and had no knowledge beforehand that they would occur. The situation with respect to defendant Towers is somewhat different, however.

The plaintiff has established by a preponderance of the evidence (1) that Towers was present and witnessed the beatings of Davidson and several other inmates, (2) that he had the authority to control the actions of the other state personnel present, (3) that he made no effort to prevent or stop the beatings, and (4) that the effect of his presence, his office and his failing to intervene was to sanction and encourage the guards in their unlawful activity.

In order to recover on a Section 1983 claim, it is necessary for the plaintiff to show intentional conduct by one acting under color of state law which subjected him to the deprivation of a federally secured right. Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972); Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965). That the conduct of defendants Dixon, Martin and Towers in this case was both intentional and under color of state law is clear. Whether it amounts to a deprivation of a constitutionally protected right is the question to which I now turn.

It is well...

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