Davidson v. O'Lone

Decision Date27 December 1984
Docket NumberNo. 82-5743,82-5743
PartiesRobert DAVIDSON v. Edward O'LONE, Superintendent, Arthur Jones, Hearing Officer, Joseph Cannon, Superintendent, and Robert James, Internal Affairs. Appeal of Joseph CANNON and Robert James.
CourtU.S. Court of Appeals — Third Circuit

Before GIBBONS and SLOVITER, Circuit Judges, and GREEN, District Judge *

Reargued In Banc May 7, 1984.


Madeleine W. Mansier (argued), Deputy Atty. Gen., Irwin I. Kimmelman, Atty. Gen. of New Jersey, Trenton, N.J., for appellants Joseph Cannon and Robert James; James J. Ciancia, Asst. Atty. Gen., Trenton, N.J., of counsel.

James D. Crawford (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.


SLOVITER, Circuit Judge.

The principal issue presented by this appeal is whether 42 U.S.C. Sec. 1983 encompasses a claim for personal injury to a state prisoner based on the negligence of prison officials when New Jersey state law provides no remedy. 1


Plaintiff Robert Davidson was an inmate at Leesburg State Prison when, on December 17, 1980, he intervened in a fight between two other inmates, Gibbs and McMillian. The three had disciplinary hearings on the morning of December 19, and immediately afterward McMillian threatened Davidson. Davidson returned to the hearing room to report the incident and, at the request of the guard on duty, wrote a note intended for Arthur Jones, the hearing officer. The note said:

When I went back to the unit after seeing you McMillian was on the steps outside the unit. When I was going past him he told me "I'll fuck you up you old mother-fucking fag." Go up to your cell, I be right there.

I ignored this and went to another person's cell and thought about it. Then I figured I should tell you so "if" anything develops you would be aware.

I'm quite content to let this matter drop but evidently McMillian isn't.

Thank you, R. Davidson.


Jones, to whom the note was addressed, was a civilian and not part of the prison administration. He told the guard, Jose Garcia, to pass the note to the proper officials. At 11:40 a.m. Garcia delivered it to Joseph Cannon, assistant superintendent of the prison. Cannon read it and told Garcia to give it to Corrections Sergeant Robert James. Cannon testified later that he did not regard the situation as urgent because Davidson, whom he had known for years, did not contact him directly, as he had previously done in various situations.

Sergeant James was not in his office, and Garcia did not get the note to him until after 2:00 p.m. Garcia told him then that the note reported a threat by McMillian against Davidson. James attended to other matters, which he described as emergencies, leaving the note on his desk. At 4:00 he started a second shift, as Assistant Center Keeper, in another part of the prison. Between the time he received the note and the time he left the prison that night, James spent only about 10 minutes in his office. He forgot about the note, which he had not read. James acknowledged that in such a situation he would ordinarily interview the inmates. Though he was not able to attend to the matter that day, he testified that if he had remembered the note he would have posted it at the Center to alert officers on the morning shift.

Davidson, as the parties have stipulated, took no other steps to notify the authorities or request protective custody. He testified that he did not foresee the attack, but wrote the note to exonerate himself in the event that McMillian started another fight. Davidson also testified that he wanted officials to reprimand McMillian.

Neither Cannon nor James worked on December 20 or 21. On December 21, McMillian attacked Davidson with a fork, inflicting wounds to his face, neck, head and body, and breaking his nose. Though the stab wounds healed within several weeks, Davidson has undergone surgery to correct problems stemming from his broken nose, suffering continuing pain and residual effects.

Davidson was foreclosed from recovery from these defendants for his injuries under state law, for the New Jersey Tort Claims Act provides that "[n]either a public entity nor a public employee is liable for ... any injury caused by ... a prisoner to any other prisoner." N.J.Stat.Ann. Sec. 59:5-2(b)(4)(West 1982). The parties agree that as a result of this provision, Davidson has no state law claim for his injuries against the defendants or against the state.

Davidson brought suit in the United States District Court for the District of New Jersey under 42 U.S.C. Sec. 1983, naming as defendants Cannon, James, Jones, and Edward O'Lone, the prison superintendent. The court granted summary judgment in favor of O'Lone. The case against the other three was tried with Davidson appearing pro se. The court concluded that plaintiff did not establish an Eighth Amendment violation "because defendants did not act with deliberate or callous indifference to plaintiff's needs and because the incident complained of was a single attack." Da18. The court concluded, however, that Cannon and James, but not Jones, negligently failed to take reasonable steps to protect Davidson, that Davidson was injured as a result, and that their negligence deprived Davidson of a constitutionally protected liberty interest in freedom from assault while in prison. The court reasoned that because the New Jersey immunity provision denied Davidson a hearing, Davidson had been deprived of his liberty interest without due process. Davidson was awarded compensatory damages of $2,000.

Defendants appeal, contending that the district court erred in concluding that they were negligent, that the court erred in concluding that an inmate such as Davidson in a state prison has a liberty interest in being protected by prison officials from a single assault by another inmate, and that the court erred in concluding that 42 U.S.C. Sec. 1983 encompasses a claim arising out of a negligent failure by prison officials to protect an inmate against a single assault by another inmate. We will consider these contentions seriatim.


After hearing all of the relevant evidence, the district court concluded, with respect to Cannon and James:

We find that these two defendants negligently failed to take reasonable steps to protect plaintiff, and that he was injured as a result. Both of these officials had the responsibility to care for plaintiff's safety, actual notice of the threat by an inmate with a known history of violence, and an opportunity to prevent harm to plaintiff.


Appellants concede that the applicable standard by which we must review the findings of the district court when sitting without a jury is the "clearly erroneous" standard contained in Rule 52(a) of the Federal Rules of Civil Procedure. See Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). Appellants thus bear the heavy burden of convincing us that the district court determination either "is completely devoid of minimum evidentiary support displaying some hue of credibility," or "bears no rational relationship to the supportive evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972).

The appropriate standard of care owed by prison custodians in New Jersey with respect to the risk of inmate injury was set forth in Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972). As the court stated there, a prisoner is owed "a duty of due care while in custody" and further, "in appropriate circumstances [the prisoner] would be entitled to a recovery on a showing that a prison official negligently failed to discharge his responsibility for the [prisoner's] care with resulting injuries to him." Id. at 590, 297 A.2d at 563. The Harris court denied recovery because the defendants had received no warning of a danger to the plaintiff. In this case, the district court found that the defendants had "actual notice of the threat by an inmate with a known history of violence," Da18, which we find satisfies the Harris notice requirement. See also Restatement (Second) of Torts Sec. 320 (1965).

Appellants challenge the district court findings as clearly erroneous on several grounds. They contend that the district court erred in finding that they knew about McMillian's past, that they failed to exercise reasonable care to protect Davidson, and that their failure to follow the prison procedures proximately caused the injury. However, while we agree that on this record there would be room for the trier of fact to have reached a different conclusion as to negligence, we cannot hold that there was no negligence as a matter of law nor that we are "left with the definite and firm conviction that a mistake has been committed" by the district court in reaching its findings. United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). Thus we accept the determination that defendants were negligent in failing to take steps to prevent McMillian's assault on Davidson.


Appellants argue that the district court erred as a matter of law when it identified a "liberty interest" protected by the Due Process Clause to be free from physical attack and injury. Since Sec. 1983, by its own terms, provides redress only when state employees infringe those rights "secured by the Constitution and laws" of the United States, see, e.g., Paul v. Davis, 424 U.S. 693, 700-01, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir.1973), plaintiff must satisfy this threshold requirement before we need reach the question whether simple negligence can give rise to Sec. 1983 liability. See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). We must, therefore, decide...

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