Green v. Johnson

• Citation: 977 F.2d 1383
• Decision Date: 16 October 1992
• Docket Number: No. 90-7062,90-7062
• Parties: Rickke Leon GREEN, Plaintiff-Appellant, v. Wayne JOHNSON; James Green; Don Morgan; Charles Arnold; Ted Wallman; John Brown; Larry Peevy; Larry Meachum; Gary A. Parsons; and James Saffle, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1383

977 F.2d 1383

Rickke Leon GREEN, Plaintiff-Appellant, v. Wayne JOHNSON; James Green; Don Morgan; Charles Arnold Ted Wallman; John Brown; Larry Peevy; Larry Meachum; Gary A. Parsons; and James Saffle, Defendants-Appellees.

No. 90-7062.

United States Court of Appeals Tenth Circuit.

Oct. 16, 1992.

E.V. Spadafora of E.V. Spadafora & Associates, Oklahoma City, Okl., for plaintiff-appellant.

Rickke Leon Green, pro se.

Susan B. Loving, Atty. Gen. of Okl., and Gay Abston Tudor, Asst. Atty. Gen., Oklahoma City, Okl., for defendants-appellees.

Before LOGAN, EBEL and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Rickke Leon Green, an inmate at the Oklahoma State Prison (OSP), appeals a judgment of the district court awarding him $15,000 in damages in this 42 U.S.C. § 1983 suit. The district court, in a bench trial, found that defendants, various prison officials and guards, exceeded permissible constitutional parameters in their actions. ¹

Although plaintiff won on the central issues in the district court, he is the appellant, contending that the district court erred (1) in not granting an injunction enjoining defendants' behavior, (2) in ruling that his pendent state claims were barred by the statute of limitations, (3) in not awarding separate damages for each constitutional violation, (4) in ruling that the seizure of his legal materials was reasonable and necessary, (5) in not awarding sufficient compensatory damages, and (6) in not awarding punitive damages. Plaintiff raises other issues in his pro se brief as discussed below.

I Facts

In 1972, plaintiff, then sixteen, was incarcerated following his conviction in state court for armed robbery. ² Plaintiff has remained incarcerated over the past twenty years because of additional convictions that have been imposed as a result of his assaultive behavior. In 1975 plaintiff was placed in administrative segregation because of his aggressive and assaultive conduct, both for his protection and for the protection of others. He remained there continuously until 1984 and has been in administrative segregation for most of the time since. The egregious facts reveal that plaintiff had been directing animalistic behavior towards some of the defendants over a period of years, perhaps exacerbated by the conditions of his confinement. No doubt these actions tempted the defendants and provoked the reactions that occurred here. But not even plaintiff's most egregious behavior will excuse the conduct exhibited by those charged with his care.

In 1983, plaintiff had a verbal altercation with defendant James Green, then a correctional officer at OSP. ³ Plaintiff alleged that the altercation was precipitated by Officer Green's delay in getting a plumber to fix plaintiff's toilet and by Officer Green directing racial slurs towards him. Officer Green alleged that the altercation was instigated by plaintiff intentionally stopping up his toilet and throwing body wastes at him when he served plaintiff his noon meal. A similar altercation occurred the next morning between plaintiff and defendant Larry Peevy, also a correctional officer.

Following these incidents, a meeting was held between defendants Wayne Johnson ⁴ (the cell unit manager), Charles Arnold (Chief of Security), Ted Wallman (Deputy Warden of Operations), and Warden Brown to discuss plaintiff's disruptive behavior. Johnson admitted saying that plaintiff "needed a good ass-kicking" during the meeting. R. tab 8, at 7. "Warden Brown instructed the officers to put plaintiff on short food rations for seventy-two hours. Thereafter, if the disruptive behavior continued, he was to be put back on short food rations and clearly informed that the rationing was a consequence of his behavior." Id.

Another altercation between Johnson and plaintiff occurred later that day when Johnson, as directed by Wallman, attempted to lock plaintiff's "bean hole," an opening next to the cell door used to pass food to plaintiff. Johnson was unable to close the bean hole, which plaintiff had jammed open. Johnson then went to the control room. Peevy, who was in the control room, was instructed to let an inmate into the common area to mop the floor. The inmate allowed in, Bobby Morris, had not previously been designated for that job. Warden Brown testified before the Ethics and Merits Commission that Morris had been involved in a hostage situation the previous month and was not an appropriate choice for the job. Id. at 8 n. 8. After being escorted to the property room by defendants Morgan ⁵ and Green, Morris threw a scalding substance through plaintiff's bean hole, causing second degree burns on plaintiff's chest and neck. No officer interceded, nor was any notation entered into the log book.

About two hours later, when a paramedic came to the unit, plaintiff showed him his burns. Plaintiff was then escorted to the infirmary, but refused treatment because the medic on duty refused to report the incident. When plaintiff was returned to his cell, Johnson knocked him to the floor from the rear while plaintiff was still handcuffed. Morgan, Green, and Peevy also entered the cell and, using "unnecessary excess force," restrained plaintiff. Id. at 10. "Plaintiff was pinned down by four large correction officers. Plaintiff was struck more than once on his face and head. His body was repeatedly kicked and his feet were twisted at the ankle." Id. Defendants later produced a knife "in an effort to justify the use of force against plaintiff." Id. at 11. Johnson "testified that he held the knife against plaintiff's nose and said 'I ought to run this through your mother-fucking brain'. Plaintiff received a cut on his nose and under his eye." Id. The court found defendants' testimony that the knife belonged to plaintiff "incredible and unreliable under the evidence." Id.

Plaintiff was taken back to the infirmary where he was again attacked. "Johnson lectured plaintiff. Green and Morgan would strike plaintiff about the face and neck if he was unresponsive to Johnson's commentary, and use other means of intimidation." Id.

Arnold and Wallman were notified and went to the infirmary. Wallman ordered plaintiff's cell stripped, an action for which he was later reprimanded. After plaintiff's burns were treated, he was escorted back to his stripped cell and his clothing was removed. An inmate later slipped pen and paper to plaintiff, who wrote Warden Brown a letter setting forth the events.

The next morning, shortly before Brown arrived, plaintiff was transferred to another cell that had a mattress, blanket, and toilet paper. He was also given his coveralls. Brown escorted plaintiff back to the infirmary where photographs were taken of his injuries. Brown also ordered an internal investigation.

In 1985, plaintiff commenced this action alleging violations of his Fifth, Eighth, and Fourteenth Amendment rights. In 1990, after a six-day bench trial, the district court awarded plaintiff $15,000 in damages against defendants Johnson, Green, Morgan, Wallman, Arnold, and Peevy, jointly and severally, in their individual capacities. ⁶ The court denied injunctive relief.

II Record Deficiencies

Initially, we note that our review of this appeal has been substantially hindered by the record, or lack thereof, submitted to this court. Plaintiff was represented by counsel on appeal through the filing of counsel's brief. Counsel was responsible for designating those portions of the "papers filed in the district court which are relevant to specific arguments made in the briefs" for inclusion in the record on appeal. 10th Cir.R. 10.2.1. The record as submitted consists of plaintiff's closing argument, defendants' proposed findings of fact and closing arguments, plaintiff's response to defendants' closing arguments, and the district court's findings of fact and conclusions of law. This record is clearly insufficient for meaningful review.

Further, if, as here, an appellant intends to urge "that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion." Fed.R.App.P.10(b)(2). In his brief, counsel stated that he had requested a transcript but despite repeated attempts had not received any response except an unfulfilled promise that the court reporter would give him an estimate of the cost of the transcript. The lack of response from the court reporter does not excuse either plaintiff or his counsel from his responsibility to provide a transcript.

There were several options by which plaintiff and counsel could have pursued this issue. They could have requested that briefing be delayed pending receipt of the transcript. They could have requested this court's intervention. Cf. United States v. Johnson, 732 F.2d 379, 383 (4th Cir.) (court has supervisory powers over court reporters including power to punish for civil contempt and authority under 28 U.S.C. § 1651 to grant mandamus and other extraordinary relief), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); Morales Roque v. Puerto Rico, 558 F.2d 606, 607 (1st Cir.1976) (court order directing expeditious preparation of transcript appropriate).

III Injunction

Plaintiff argues that the district court erred in not granting an injunction prohibiting defendants' behavior. A denial of injunctive relief is reviewed under an abuse of discretion standard. The Post Office v. Portec, Inc., 913 F.2d 802, 813 (10th Cir.1990), vacated on other grounds, --- U.S. ----, 111 S.Ct. 1299, 113 L.Ed.2d 235 vacated as moot, 935 F.2d 1105 (10th Cir.1991). The district court held that "there was no evidence offered that racially derogatory remarks are currently being used against plaintiff at OSP." R. tab 8 at 18. Although plaintiff argues that he requested an injunction because defendants were continuing to retaliate against him for filing this action, no evidence is present in...