Gordon v. Garrson, Civ. 760-D

• Decision Date: 01 April 1948
• Docket Number: Civ. 760-D,759-D.
• Citation: 77 F. Supp. 477
• Parties: GORDON v. GARRSON.
• Court: U.S. District Court — Eastern District of Illinois

77 F. Supp. 477

GORDON v. GARRSON.

Civ. 760-D, 759-D.

District Court, E. D. Illinois.

April 1, 1948.

LINDLEY, District Judge.

Plaintiff, an inmate of the Illinois State Penitentiary at Joliet, Illinois, filed these two complaints, by leave of court in forma pauperis, one against defendant Mark Irwin, Superintendent of the Illinois State Farm, Vandalia, Illinois, and the other against Audey Garrson, formerly physician at the same institution.

At the time of the alleged injury, plaintiff was an inmate of the Illinois State Farm at Vandalia, Illinois, serving a one year sentence. He avers that, during a prison break in which plaintiff had no part, he was inadvertently mistaken for another prisoner and, during the ensuing melee, seriously injured. He does not charge that either defendant caused his original injury but does aver that by solitary confinement and refusal to grant plaintiff the right to receive food or medical aid, defendants, by their neglect and negligence, caused plaintiff to suffer permanent injuries of a serious nature. He seeks to recover $10,000 damages from each defendant.

After the prison break, plaintiff, charged with the crime of escaping from the state farm, pleaded guilty and was sentenced to a term of from one to ten years in the penitentiary, under which he is presently confined. I shall dispose of the motion to dismiss in each case in one memo.

The essence of plaintiff's claim against defendant Irwin is that "under the Civil Rights Statutes of the Federal Government, said respondent, failed to secure to plaintiff, to be immune in his person from injury, while in custody of said respondent." Apparently he relies upon the Civil Rights Act, Title 8 U.S.C.A. Section 43 of that Act provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Section 47, provides an action for damages to any person "injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States" by reason of a conspiracy of two or more persons entered into "for the purpose of depriving * * * any person * * * of the equal protection of the laws, or of equal privileges and immunities under the laws." See also Section 48 relating to actions for neglect to prevent injury.

Plaintiff also asserts bases for relief in Sections 51 and 52 of Title 18 U.S.C.A. which make it a crime for one person to deprive another of civil rights, but these sections, relating only to criminal as distinguished from civil action, are not applicable.

This court has jurisdiction of "civil rights" actions by virtue of Section 41(14) of Title 28 U.S.C.A. and it is clear that jurisdiction existing under the laws of the United States, no diversity of citizenship or involvement of a sum of $3000 need be alleged by plaintiff in his complaint against Irwin.

Defendant denies that plaintiff is entitled to invoke the provisions of the Civil Rights Act because, since he has been convicted of a felony, he is not technically a "citizen." But due process of law and equal protection of the laws are guaranteed not only to citizens but to any person and Civil Rights Act provides a remedy for deprivation of these rights. Sellers v. Johnson, D.C., 69 F.Supp. 778. It would seem that the statute applies not only to citizens but to any "person within the jurisdiction" of the United States.

It is clear that misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of the state, is action taken "under color of any statute" within this section. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L. Ed. 1495, 162 A.L.R. 1330; Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240 Discussing Sections 51 and 52 of Title 18, which must be construed in pari materia with the section in issue (Picking v. Pennsylvania R. Co., supra) the Supreme Court said recently, in Screws v. United States, supra 325 U.S. 91, 65 S.Ct. 1038, "The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under `color of any law.' He who acts under `color' of law may be a federal officer or a state officer. He may act under `color' of federal law or of state law. The statute does not come into play merely because the federal law or the state law under which the officer purports to act is violated. It is applicable when and only when some one is deprived of a federal right by that action."

As to defendant Irwin, the suit is against him in his capacity as representative of the state, so...