Henry v. Perry, 88-3226

• Decision Date: 03 August 1988
• Docket Number: No. 88-3226,88-3226
• Citation: 866 F.2d 657
• Parties: Craig HENRY v. Bill PERRY, Appellant. . Submitted under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 657

866 F.2d 657

Craig HENRY v. Bill PERRY, Appellant.

No. 88-3226.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6)

Aug. 3, 1988.

Decided Feb. 6, 1989.

As Amended April 13, 1989.

LeRoy S. Zimmerman, Atty. Gen., Harrisburg, Pa., Gloria A. Tischuk, Deputy Atty. Gen., Donald P. Minahan, Chief Deputy Atty. Gen., Pittsburgh, Pa., Gregory R. Neuhauser, Sr. Deputy Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Harrisburg, Pa., Litigation Section, for appellant.

Craig Henry, pro se.

Before HIGGINBOTHAM, SLOVITER and MARIS, Circuit Judges.

OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the defendant from the denial of summary judgment in a suit for damages under 42 U.S.C. Sec. 1983 brought by Craig Henry, a prisoner in the State Correctional Institution at Pittsburgh, against Bill Perry, a corrections officer at that institution. Since the decision involves the question of qualified immunity, it is immediately appealable. Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In his complaint, the plaintiff alleged that, while being returned to Pittsburgh from a track meet and upon arrival at Pittsburgh and believing the officers in charge of him including the defendant to be unarmed, he proceeded to effect an escape and that thereupon "Mr. Perry commenced to fire 5 or 6 shots at me without ordering me to stop or that he had a weapon and would shoot to kill." One of the shots wounded the plaintiff in the arm. He completed his escape but was subsequently recaptured.

The plaintiff filed his complaint on February 14, 1986. Subsequently, on March 10, 1986, he was convicted in the state court of the crime of escape. In the civil rights case now before us the defendant filed a motion for summary judgment asserting qualified immunity from suit in attempting to prevent the plaintiff's escape by firing at him and wounding him in the arm. The district court denied the motion, believing that there was a material question of fact in the case as to whether Perry had warned Henry before firing to maim or kill that he had a gun and would shoot. We think that in denying the defendant summary judgment the district court erred.

Before the court was a certified copy of the testimony at the plaintiff's trial for escape as well as several affidavits. From these it appeared that the plaintiff did escape from custody and was not apprehended until some hours later. It was also undisputed from the evidence that the defendant gave the plaintiff a verbal warning and fired warning shots in the effort to halt his escape. The plaintiff's defense at his trial in the state court for escape was that his escape was coerced by the sexual harassment of fellow inmates. There was no evidence before the district court that the defendant failed to warn the plaintiff or otherwise acted improperly.

The use by prison guards of deadly force may be cruel and unusual punishment within the meaning of the Eighth Amendment but where, as here, the escapee has committed a crime involving the infliction of serious bodily harm, here, murder, deadly force may be used in necessary to prevent escape and if, where feasible, some warning has been given. Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985). The question in determining the existence of qualified immunity is whether a reasonable person could have believed the defendant's action to be lawful in light of clearly established law and the information he possessed. Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Clark v. Evans, 840 F.2d 876, 881 (11th Cir.1988). In deciding the question, the objective facts control and mere allegations of malicious intent may not prevail over those facts. Harlow v. Fitzgerald, 457 U.S. 800, 817-818, 102 S.Ct. 2727, 2737-2738, 73 L.Ed.2d 396 (1982). Thus, in the present case, the question is whether force was applied in a good faith effort to prevent the plaintiff's escape. We think that under the facts before the district court the defendant cannot be said to have used excessive force against the plaintiff. Here, the plaintiff not only attempted to escape, he did escape despite the shots fired by the defendant. Handcuffed, the plaintiff had climbed the gate beside the bus in which he was being returned and was running away very fast. Using deadly force appeared the only means of preventing his escape and even that did not actually do so. We conclude that on this record the district court should have held that the defendant was entitled to qualified immunity and should...