George v. Evans, 79-3899
| Decision Date | 22 December 1980 |
| Docket Number | No. 79-3899,79-3899 |
| Citation | 633 F.2d 413 |
| Parties | Willie GEORGE, Plaintiff-Appellant, v. David EVANS et al., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Georgia.
ON PETITION FOR REHEARING
(Opinion June 30, 1980, 5 Cir., 620 F.2d 495.)
Before RONEY, VANCE and SAM D. JOHNSON, Circuit Judges.
Appellant's motion for leave to file petition for rehearing out of time is granted. Upon consideration of such petition the original opinion of this Court is withdrawn and the following substituted therefor.
Plaintiff-appellant, Willie George, sued various prison officials under 42 U.S.C. § 1983 for deprivation of his constitutional rights. He contends this deprivation occurred when prison guards beat him without provocation while he was an inmate at the Georgia Industrial Institute. The jury returned a verdict in favor of the defendants. George claims that the district court erred in refusing to submit an instruction to the jury that if they found that George "was subjected to cruel and unusual punishment you may find for him." Since we find that the district court properly refused to submit this proposed instruction, we affirm.
George's original suit named as defendants the following: David Evans, Commissioner of the Georgia Department of Offender Rehabilitation; David England, Warden of the Georgia Industrial Institute; and D. J. Lomax and Jake Dill, Guards at the Georgia Industrial Institute. The district court dismissed Evans from this suit and granted a directed verdict in favor of defendant England. George does not contest the validity of these rulings in this appeal. The jury was left to consider only the liability of the guards, Lomax and Dill. Plaintiff testified that Lomax slapped him in the face when he refused to take a disciplinary report that Lomax was delivering to him in his cell. George, according to his own testimony, then came out of his second floor cell to accompany the guards Lomax and Dill, downstairs. Lomax struck George with a nightstick as he approached the stairwell. George tumbled down the steps, and Lomax struck him again in the back of the head with the nightstick as he was getting up. George then ran to the prison control room to escape further beating, but was told to leave. When George ran back toward his cell, Dill pushed him towards Lomax, who then beat and kicked him further. Two other inmates gave testimony supporting George's version of the incident. One inmate corroborated George's story that he was beaten at the top of the stairwell, and another inmate corroborated George's story that he was beaten at the base of the stairwell.
The guards' version of their encounter with George was, predictably, quite different. Lomax went to George's cell to deliver a copy of disciplinary report charges and to take George to an interview room to get his version of the charges. Dill stood on the lower level of the cell block and operated the control panel for the cell doors. Lomax stood outside George's cell on the second floor of the cell block. When Dill opened the cell, George yelled and lunged at Lomax, kicking him in the groin. Dill saw George's kick almost send Lomax over the guard rail on the catwalk in front of George's cell. Dill ran to Lomax's aid and gave him his nightstick. Lomax struck George on the head with his nightstick probably three or four times.
Lomax and Dill testified that after they subdued George on the second floor of the cell block, they immediately took him to the hospital for treatment of his injuries. They testified that no further force was used against George.
Thus, the jury had to choose between two versions of the same event. George's testimony indicated a prolonged and unprovoked beating. Lomax and Dill's testimony indicated that Lomax used his nightstick on George only briefly to control a violent outburst that endangered Lomax's own safety.
The court charged the jury that they should find for George if Lomax and Dill used more force to subdue George than would have appeared to be necessary to a reasonable person. The court also charged the jury...
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