Doe v. District of Columbia

• Decision Date: 28 January 1983
• Docket Number: No. 80-2171,80-2171
• Citation: 701 F.2d 948
• Parties: John DOE, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 948

701 F.2d 948

226 U.S.App.D.C. 212

John DOE, et al. v. DISTRICT OF COLUMBIA, et al., Appellants.

No. 80-2171.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 23, 1981.

Opinion Jan. 11, 1983.

Separate Statements Jan. 28, 1983.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 79-01726).

Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel and Michael Zielinski, Asst. Corp. Counsel, Washington, D.C., were on brief, for appellants. David P. Sutton, Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellants.

Peter J. Nickles, Washington, D.C., with whom Ellen Bass, Joseph M. Fisher and Charles E.M. Kolb, Washington, D.C., were on brief, for appellees.

For opinion of the Court, see 697 F.2d 1115.

The following are separate statements filed by MacKINNON and EDWARDS, Circuit Judges and ROBB, Senior Circuit Judge.

Separate Statement of MacKINNON, Circuit Judge:

For the reasons set forth in the opinion for the court, the judgment of the district court is vacated and the case remanded for a new trial. I am moved to point out, however, that I acquiesce in the court's decision only because defendants have not appealed from the district court's decision to deny their motion for judgment n.o.v. I harbor grave doubts whether plaintiffs have adduced sufficient evidence to support a jury verdict. It is my hope that the district court will conduct the new trial with an eye to the concerns expressed below.

A class action brought by all the prisoners in the Maximum Security Complex (Maximum) at the District of Columbia Reformatory at Lorton, Virginia (Lorton) against the District of Columbia municipal and reformatory officials (officials) who administer the penal institution, ¹ resulted in a judgment awarding money damages to the class and granting an injunction. Defendants were sued in their official capacities and the theory of plaintiffs' case required them to prove that the D.C. defendants were liable because of acts resulting from official policy. Cf. Monell v. New York Department of Social Services, 436 U.S. 658, 690-92, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978). The jury award of damages and the court order of injunctive relief granted to the class of prisoners were (1) for the alleged infliction by the officials of "cruel and unusual punishment" (a constitutional tort) ² by the District of Columbia officials responsible for the administration of Maximum and (2) for the alleged negligent failure of the defendant officials to provide adequate protection against inmate assault. Each of the six counts of the complaint is based on violence, i.e., the officials' "failure to provide adequate security and protection has caused plaintiffs to be exposed to pain and suffering by the constant risk and likelihood of physical violence ...." Amended Complaint p 90, JA 33 (emphasis added). The class was certified as all prisoners inside Maximum and the "common questions of law and fact affecting the rights of inmates [was stated as the right] to be free from actual and threatened inmate violence and pervasive risk of harm." Amended Complaint p 7, JA 15 (emphasis added). The D.C. and reformatory officials appeal the judgment on a variety of procedural bases and seek remand for a new trial.

Basically my review of the complete trial record left me unconvinced that the finding of a constitutional tort and negligence by the officials was supported by substantial evidence of sufficient magnitude to support a class action. It was also a matter of concern to me that damages in a substantial amount, over $500,000 excluding interest, were to be paid to the class, i.e., all prisoners in Maximum. The plaintiff prisoners, who claim to be representative of the class, are confined for the following offenses: Two for first degree murder; one for murder, kidnapping and armed robbery; two for second degree murder; one for second degree murder and bank robbery; one for manslaughter; six for armed robbery; one for armed robbery and attempted rape; one for assault with a dangerous weapon; and one for grand larceny. Amended Complaint paragraphs 12-28, JA 16-18.

Judge Edwards' opinion for the court, at pages 953-956, points out the error in the court's instruction that led to the monetary award. It is also significant that the class included all the prisoners who were creating the conditions of which they complained. Appellants have correctly noted on the record that

[p]laintiffs were ... both assailants and victims, weapon possessors, violators of security rules, men always ready to take advantage of one another by violent means and totally unwilling to share knowledge of weapons or assaults with prison personnel .... ³

The prisoners demanded damages and injunctive relief from D.C. officials and prison administrators for alleged violence that they refused to report (Tr. 265, 280, 294, 297, 322, 338, 349, 375). More significantly, this case would represent the first case in America that diligent research could find where an award of money damages to a class of prisoners had been upheld. Individual prisoners had previously been awarded money damages for individual torts, but so far as I can find, money damages have never been paid to an entire class of prisoners despite several cases of very egregious prison conditions. And the evidentiary record here indicates that conditions at Lorton do not even approach the conditions that were present in cases like Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark.1970), aff'd, 442 F.2d 304 (8th Cir.1971), involving the Arkansas State Penitentiary System; Gates v. Collier, 501 F.2d 1291 (5th Cir.1974), involving the State Penitentiary at Parchman, Mississippi; or the Alabama prisons which were the subject of the decisions in Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), aff'd as modified sub nom. Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rev'd in part sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam), where injunctions were issued to correct conditions in penitentiaries. It is incongruous to pay money damages to prisoners who are causing the violence and unhygienic conditions, who adhere to a code of silence, and who refuse to report violations or to cooperate (Tr. 287-89) in ameliorating the conditions about which they complain.

Typical of conditions in the prisons involved in the above cited cases, where complainants were limited to injunctive relief, were the conditions in the Arkansas State Penitentiary System. The Eighth Circuit decision found that prison to be fraught with cruel and unusual conditions, including, inter alia, the following: Ninety-nine percent of the security force at one of the prisons was comprised of so-called "trusty inmates" or "trusties"--privileged inmates who lorded over, abused, tortured, beat, and even occasionally murdered fellow inmates under their charge. Holt v. Sarver, supra, 309 F.Supp. at 373-76. With respect to the "trusty" system, the court noted that "just about every abuse which the system is capable of producing has been produced and is being practiced in this State." Id. at 374. Because of the lack of qualified inmate supervision--one facility housing 1,000 inmates had eight noninmate guards--violence among inmates went completely unchecked. This was particularly true in the "open barrack" dormitories, where upwards of 100 inmates per barrack were assigned "without regard to anything but rank and race." Id. at 376. Stabbings in the dead of night by "crawlers" and "creepers" ⁴ were commonplace and often condoned by the "trusties" themselves, who were often " 'in league with the assailants.' " Id. (quoting Holt v. Sarver (Holt I), 300 F.Supp. 825, 830 (E.D.Ark.1969)). Gang rapes were frequent, often with "trusties" "look[ing] on with indifference or satisfaction." Id. at 377. Of this barrack-style confinement, the court said, in sum:

Sexual assaults, fights, and stabbings in the barracks put some inmates in such fear that it is not unusual for them to come to the front of the barracks and cling to the bars all night. That practice, which is of doubtful value is called "coming to the bars" or "grabbing the bars." Clearly, a man who has clung to the bars all night is in poor condition to work the next day.

Id. Isolation cells were "overcrowded, filthy, and unsanitary." Id. at 378. Inmates in isolation were given unsuitable food and were forced to live among rats. Id. For the inmates in general, there was no rehabilitation program of any kind. Id. at 378-79. Medical and dental care was subpar and largely unavailable. Id. at 380. Sanitary conditions in the kitchen were "deplorable." Id. In sum, these conditions exhibited "a dark and evil world," id. at 381, far beyond the constitutional pale. "However constitutionally tolerable the Arkansas system may have been in former years, it simply will not do today as the Twentieth Century goes into [its] eighth decade." Id. at 381.

Other cases finding prison conditions unconstitutional address a concatenation of factors similar to those condemned in Holt, Gates, and Pugh. ⁵ Usually, a substantial number of deplorable factors coalesce in prisons where a constitutional violation has been found. Where--as here--only a single factor is alleged--violence--it must be so pervasive as to constitute a systemic infliction, particularly in a class action. It is elementary that a judgment in a class action must be based on proof of harm to the class. In the present case, there is insufficient evidence viewed in the light most favorable to the verdict from which a reasonable juror could infer that the official policies of the defendants caused a systematic exposure of the class to an unreasonable risk of physical harm.

Judge Edwards' separate statement expends its first nine pages misconstruing the...