Grimsley v. MacKay

Decision Date16 August 1996
Docket Number95-4078,Nos. 95-4022,s. 95-4022
Citation93 F.3d 676
PartiesMike Lee GRIMSLEY, Plaintiff-Appellee, v. Terry MacKAY, Inmate; Willard East, Officer; Utah Department of Corrections; Gary Deland, Executive Director, Utah Department of Corrections, Defendants, v. Don TAYLOR, Lieutenant, Officer Utah State Department of Corrections; Joe Hughes, Officer; John Irons, Officer; Ken Hoggan; Chad Taylor; Gerald Cook; Fred Van Der Veur; Tom T. House, Defendants--Appellants. (Consolidated).
CourtU.S. Court of Appeals — Tenth Circuit

Frank D. Mylar, Assistant Attorney General, State of Utah (Jan Graham, Attorney General, State of Utah, and Elizabeth King, Assistant Attorney General, State of Utah, with him on the briefs), Salt Lake City, Utah, for Defendants-Appellants.

Brian M. Barnard (Joro Walker, with him on the briefs), of the Utah Legal Clinic, Salt Lake City, Utah, for Plaintiff-Appellee.

Before KELLY, LOGAN and ENGEL, 1 Circuit Judges.

PAUL KELLY, Jr., Circuit Judge.

Several past and present officers and administrators of the Utah State Department of Corrections ("Defendants") appeal from the magistrate judge's orders awarding damages in favor of Plaintiff Mike Grimsley in his civil rights action against Defendants, 42 U.S.C. § 1983. The parties consented to disposition of this case by the magistrate judge. See 28 U.S.C. § 636(c)(1). We therefore review the magistrate judge's decision without intervening consideration by the district court, 28 U.S.C. § 636(c)(3), and reverse.

Jurisdiction

This case began when Mr. Grimsley filed two suits under 42 U.S.C. § 1983, one against the Defendants House, Van Der Veur and Cook ("Administrators") and one against Defendants Don Taylor, Hughes, Irons, Hoggan and Chad Taylor ("Officers"). The magistrate judge consolidated the two cases, after which the cases proceeded as one, with Administrators and Officers treated as one group of defendants and all further docketing appearing under one case number. Defendants filed their first notice of appeal on January 25, 1995, Aplt.App. 187, after the magistrate judge entered his findings of fact and conclusions of law, Aplt.App. 80. Defendants' notice of appeal ripened on February 8, 1995 when the magistrate judge entered judgment on the findings and conclusions. See Fed.R.App.P. 4(a)(2). The February 8, 1995 judgment included an award of attorney fees. Although Defendants are deemed to have timely filed their notice of appeal, they failed to "specify the party or parties taking the appeal" as required by Fed.R.App.P. 3(c), but rather listed "TERRY MACKAY, et al." as the Appellants. Aplt.App. 187. Mr. MacKay was a settling defendant, not a party to the appeal. We then ordered the parties to address whether the court properly had jurisdiction over all defendants.

Defendants' attorneys dismissed this jurisdictional concern as a "non-issue." Aplt.Mem.Br. at 2. We do not view Defendants' right to appeal, nearly lost by the failure to heed our rules, as a non-issue. Fortunately for Defendants, they have perfected their right to appeal, albeit accidentally and notwithstanding the later filed notices of appeal purporting to cover the relevant judgments.

The Supreme Court has recognized that courts may find compliance with Rule 3 "if the litigant's action is the functional equivalent of what the rule requires." Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17, 108 S.Ct. 2405, 2408-08, 101 L.Ed.2d 285 (1988). Amended Rule 3(c) allows for a notice of appeal to be effective, even if all parties to the appeal are not named, if "it is objectively clear that a party intended to appeal." Fed.R.App.P. 3, advisory committee note, (1993 Amendment, note to subdivision (c)). Even prior to the amendment, we have held that documents other than the notice of appeal filed within the appropriate period, such as a docketing statement, may cure defects in the notice of appeal. See Ayala v. United States, 980 F.2d 1342, 1344 (10th Cir.1992). In this case, Defendants filed a docketing statement on February 15, 1995, which was within the time allotted to file an appeal from the February 8, 1995 judgment. See Fed.R.App.P. 4(a)(1). The docketing statement lists as the parties filing the appeal "Officers, Don Taylor, John Irons, Joe Hughes, Ken Hoggan, and Chad Taylor; and Administrators, Gerald Cook, Tom House and Fred VanDerVeur," leaving no doubt as to which parties intended to appeal and curing the defect in the notice of appeal. The premature notice of appeal ripened upon filing of the judgment and was supplemented by the docketing statement. Therefore, we have jurisdiction over the February 8, 1995 judgment.

The district court's amended judgment, entered March 8, 1995, merely awards Plaintiff post-judgment interest accruing from September 14, 1994 and in no way alters our jurisdiction over the case. Post-judgment interest automatically accrues from the date of judgment even absent an express statutory provision so providing or express inclusion in the judgment itself. See 28 U.S.C. § 1961(a); Christian v. Joseph, 15 F.3d 296, 298 (3rd Cir.1994). We urge all who venture into the federal courts to carefully familiarize themselves with our rules lest they embarrass themselves and jeopardize the claims of their clients.

Background

On February 18, 1990, prison guards at the Utah State Prison in Draper, Utah, released a prisoner named MacKay from his cell into the common area of the maximum security unit in order to mop up water. Plaintiff Grimsley, also an inmate in the maximum security unit, had flooded the unit by causing his sink and toilet to overflow beyond the parameters of his cell. Shortly after MacKay's release into the common area, Officer Irons noticed MacKay banging the mop wringer, ordered MacKay to return to his cell and called for assistance to Officers Hughes and Hoggan, who arrived shortly thereafter. Prison regulations prohibited Officers Hughes and Hoggan from forcibly engaging MacKay until a team of at least three and preferably five officers had assembled. See Aplee.Supp.App. 249 (FG 25/02.04(A)(4)(a)). Prison regulations also prohibited Officer Irons and Officer Chad Taylor, control room officers, from leaving their respective control rooms unattended in order to assist Hughes and Hoggan subdue MacKay. Aplt.App. at 209, 304. Officer Hughes telephoned Officer Don Taylor, who was the duty officer in charge of the prison that day. While Officer Don Taylor was rushing to the scene, MacKay approached Plaintiff's cell and began banging the mop wringer against the cell door. When the wringer was destroyed, MacKay retrieved a metal-edged "squeegee" and began banging it against the window of Plaintiff's cell door. Believing himself immune from any physical danger, Plaintiff taunted and jeered MacKay. The window on Plaintiff's door soon shattered and MacKay threw the squeegee into Plaintiff's cell. Plaintiff continued to taunt MacKay, who proceeded to retrieve the long wooden handle of a scrub brush, return to Plaintiff's cell and throw the handle through the broken window of Plaintiff's cell. Plaintiff and MacKay threw the handle back and forth through the window, until MacKay's aim enabled him to strike Plaintiff directly in the head, crushing Plaintiff's eye. Plaintiff lost sight in the eye and now wears a glass eye. A sufficient number of officers congregated at the scene shortly after MacKay injured Plaintiff, but MacKay had already ceased his behavior and returned to his cell.

Discussion

We review a judgment rendered by a magistrate judge pursuant to 28 U.S.C. § 636(c) using the same standard applied to a judgment rendered by a district judge. Estate of Toyota of Jefferson v. Vallette (Matter of Toyota of Jefferson, Inc.), 14 F.3d 1088, 1090 (5th Cir.1994). Thus, we apply the clearly erroneous standard to the magistrate judge's findings of fact and review de novo questions of law and mixed questions of law and fact. Id. A finding of fact is clearly erroneous if it is without factual support in the record, Gant v. Grand Lodge of Texas, 12 F.3d 998, 1004 (10th Cir.1993), cert. denied, 511 U.S. 1083, 114 S.Ct. 1834, 128 L.Ed.2d 462 (1994), or, where "there is evidence to support it, [if] the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." Hildebrand v. Comm'r of Internal Revenue, 28 F.3d 1024, 1026 (10th Cir.1994) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).

I. Administrators' Liability

The Eighth Amendment protects prisoners against cruel and unusual punishment, a right interpreted to impose a duty on prison officials to protect prisoners in custody from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, ---- - ----, 114 S.Ct. 1970, 1976-77, 128 L.Ed.2d 811 (1994). However, in order to successfully assert a § 1983 claim under the Eighth Amendment for failure to protect, a plaintiff must show personal involvement or participation in the incident. Mitchell v. Maynard, 80 F.3d 1433, 1441, (10th Cir.1996). Supervisor status alone is insufficient to support liability, id.; see also Randle v. Parker, 48 F.3d 301, 303 (8th Cir.1995); a supervisor is not liable under § 1983 for the actions of a subordinate unless an "affirmative link" exists between the constitutional deprivation and either the supervisor's personal participation or his failure to supervise, Butler v. City of Norman, 992 F.2d 1053, 1055 (10th Cir.1993).

The magistrate judge made the following factual findings: Administrator Cook was warden of the Utah State Prison until 1989, at which time he was promoted to Director of Institutional Operations; Administrator Cook "specifically discussed in 1989 the fact that training in the use of non-lethal weapons was needed"; Administrator House was deputy warden from 1984-89 but, by the time Mr. Grimsley was injured, he had been assigned to direct the department of Adult...

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