Gordon v. Watson

Decision Date21 July 1980
Docket NumberNo. 79-2631,79-2631
Citation622 F.2d 120
PartiesJohn H. GORDON, Plaintiff-Appellant, v. Jack WATSON, III and George Cansler, Defendants-Appellees. Summary Calendar. *
CourtU.S. Court of Appeals — Fifth Circuit

John H. Gordon, pro se.

William K. Howell, Jr., Senior Asst. County Atty., DeLand, Fla., Gene White, Asst. State's Atty., Daytona Beach, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before CHARLES CLARK, VANCE and SAM D. JOHNSON, Circuit Judges.

PER CURIAM:

While a pre-trial detainee, John H. Gordon filed this action under 42 U.S.C. § 1983 against Jack Watson, III, a Florida assistant state attorney, and George Cansler, the Director of the Volusia County Jail Department of Corrections. Gordon's complaint and amended complaint alleged that he was subjected to punitive confinement after complaining to a judge that Watson and Cansler had denied him telephone privileges. The district court granted summary judgment for the defendants, ruling that "there is no issue of fact as to punitive confinement" and that the denial of Gordon's access to the telephone did not violate his constitutional rights. Because we find that the proffered materials are insufficient to support the grant of summary judgment, we vacate and remand.

Gordon had been in custody at the Volusia County Jail since February 1978, when he failed to post bond on an arrest for possession of a controlled substance. On March 4 or 5, according to Gordon's allegations, Gordon was denied visitors and perhaps telephone privileges. 1 On April 5, 1978, the Volusia County grand jury returned a four-count indictment against Gordon for first degree murder, conspiracy to commit murder, possession of a firearm by a convicted felon, and use of a firearm in the commission of a felony. On April 6, Gordon was brought before a judge to be formally arrested on the above charges. At that hearing, he complained to the judge that Cansler, under the direction of Watson, had denied him telephone privileges.

When Gordon returned to the Volusia County Jail that day, Cansler, at Watson's request, moved Gordon to the Volusia County Annex facility and limited Gordon's access to the telephone, allowing him to call only his attorney. The next day (April 7), Cansler, again at Watson's direction, moved Gordon from the annex back to the main facility of the Volusia County Jail, where he once again had access to the telephone.

On April 13 Gordon filed this complaint. Pursuant to court order, he amended his complaint on May 12 to allege that he had been "subjected to punitive confinement and isolation confinement and (had been) placed in the hole after telling Judge Griffin of the denial of phone call (sic) by officers under George Cansler by order of Jack Watson." He sought release from maximum security confinement, some contact visits, rules to protect other prisoners, and $300,000.00 in damages. By the time of the amended complaint (and perhaps as early as April 7) and until August 18, Gordon was incarcerated in a number of one-man cells. Over the next several months he was transferred several times back and forth between the Volusia County Jail and a state correctional facility, where he now remains. He was confined at various times in both one-man cells and so-called "population" cells during his remaining confinement at the Volusia County Jail.

After he had filed the amended complaint, Gordon moved for an order seeking his release from maximum security. The defendants filed a response to the motion, verified by Edward Froman, a Lieutenant in the Volusia County Jail and acting Chief Correctional Officer, which stated that Gordon was being held in one-man cells "due to the seriousness of the convictions and the pending charges." Before the court ruled on the motion, Watson and Cansler moved for summary judgment, attaching affidavits of Watson and Froman. Watson's affidavit stated that he had restricted Gordon's telephone privileges because he was afraid that Gordon would call certain persons in possession of, or with access to, instrumentalities of the first-degree murder charge, which they might then destroy or conceal. On April 6, the affidavit continued, Watson believed he would be able to get an immediate court order restricting Gordon's phone calls to his attorney. The next day, after researching the issue, Watson determined that such an order was unlikely and he ordered that Gordon be moved back into the county jail facilities, with telephone privileges restored. Froman's affidavit purported to incorporate his earlier verified response to Gordon's motion, in which he had stated that Gordon was incarcerated in one-man cells due to the seriousness of his crimes. It also recited the frequency of the telephone calls Gordon was allowed to make.

The court did not rule on the summary judgment motion but ordered the defendants to file an answer to Gordon's amended complaint. In their answers, defendants renewed their motions for summary judgment, attaching Cansler's affidavit stating that the entire jail is a maximum security institution, enumerating the cells in which Gordon was housed during his incarceration there, and averring that no cell in the institution is known as "the hole."

Gordon filed no responsive affidavits. Instead, he filed an unsworn, unverified document styled "Answer to defendants Motion for Summary Judgment and Answer to Amended Civil Rights Complaint." He asserted that Watson never sought to obtain the order restricting Gordon's phone calls and as a skilled prosecutor knew that he had no grounds to obtain one. He also stated that Watson's conjecture that Gordon's friends would destroy or conceal evidence was totally without merit because Gordon's house had already been searched. The answer further contended that the defendants had not shown that Gordon was the only one in jail charged with so serious a crime or that he had broken any rule of the facility. In particular, he objected to being placed in one-man cells, in which he was confined from March until August 1978.

In granting the defendants' motions for summary judgment, the...

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