Hirst v. Gertzen
| Decision Date | 10 May 1982 |
| Docket Number | No. 78-2889,78-2889 |
| Parties | 10 Fed. R. Evid. Serv. 1506 James HIRST, et al., Plaintiffs-Appellants, v. Jean GERTZEN, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kent A. Russell, San Francisco, Cal., for plaintiffs-appellants.
John D. Stephenson, Jr., Jardine, Stephenson, Blewett & Weaver, James R. Walsh, Smith, Emmons, Baillie & Walsh, Great Falls, Mont., for defendants-appellees.
Appeal from the United States District Court for the District of Montana.
Before ALARCON and CANBY, Circuit Judges and HOFFMAN *, District Judge.
FACTS
In the early morning of March 7, 1975, Clayton Hirst, a member of the Blackfeet Native American Tribe, was found dead in his jail cell in the Glacier County Jail in Cut Bank, Montana, hanged by the neck from his belt. Appellants, the heirs of Clayton Hirst, brought suit under 42 U.S.C. § 1983, charging that Glacier County, the City of Cut Bank, and various county and city officials had violated his civil rights.
Appellants put forward two theories of liability for Clayton Hirst's death. First, appellants alleged that Clayton Hirst had been murdered by electrocution, and his body hanged afterwards to disguise the murder. The murder allegedly spawned a conspiracy among county and city officials to suppress the true facts of Hirst's death. Alternatively, appellants claimed that Clayton Hirst had committed suicide, and that his suicide was the direct and foreseeable result of the defendants' gross negligence in leaving Clayton Hirst in the sole control of a violent deputy sheriff, employed by the defendants despite a history of violent behavior towards prisoners. In connection with their § 1983 claim based on gross negligence, appellants requested the district court to take pendent jurisdiction over a related state law claim based on simple negligence. 1 On the day set for jury selection, appellants filed a motion challenging the jury panel, claiming that the jury selection procedure employed in the district court invidiously discriminated against Native Americans. The court, after a hearing, found no evidence of intentional discrimination in the selection procedure, and denied appellants' motion.
Over appellants' strenuous objections, the court divided the trial into two phases. The manner of Clayton Hirst's death was to be determined in the trial's first phase; in the second phase, any remaining issues would be decided.
The jury found that Clayton Hirst had committed suicide.
After the jury's verdict was returned, the court requested appellants to make an offer of proof on their claim that the gross negligence of the defendants was responsible for Clayton Hirst's suicide. Appellants offered to prove the following facts in support of that claim:
1. County officials were grossly negligent in hiring the deputy sheriff. This deputy had a long history of violence towards minority prisoners, and had been dismissed from his previous job as a deputy sheriff because of his abuse of prisoners.
2. Responsible county officials either failed to inquire as to the deputy's competence when they hired him, or showed deliberate indifference to his obvious unsuitability for the position. 2
3. Once county officials had hired the deputy they were grossly negligent in continuing to employ him as a guard, and in giving him sole and unsupervised control of the jail.
4. During his tenure as a deputy sheriff for Glacier County, the deputy had abused prisoners within his charge.
5. On one occasion the deputy had allegedly taunted prisoners committed to his supervision.
6. On another occasion, Hirst's older brother James had been incarcerated in the city jail. The deputy, while employed by the county, had stripped James Hirst, sprayed him with mace, and left him in an unventilated cell where he would have suffocated to death had another deputy not happened upon him.
7. County officials were on notice of the deputy's violent behavior. Law enforcement personnel in the county were informed of the mace incident.
8. Nothing was done to investigate the maceing incident or to reprimand the deputy for his behavior. 3
9. The afternoon before his death, Hirst, a cheerful person with no history of depression or mental illness, was visibly upset and apparently in fear of his life.
10. At the time of his death, Hirst was the only prisoner in the jail, alone on the second floor of the prison structure, isolated from the police dispatcher and other prison personnel on the first floor.
11. The deputy had been alone with Hirst at some point on the afternoon Hirst died, and the deputy at all times had access to the second floor of the prison.
12. Despite Hirst's troubled mental state, and his subjugation to a deputy with known sadistic tendencies, Hirst was allowed by The court, after hearing the offer of proof, ruled that the proposed evidence did not establish a prima facie case of gross negligence. The court dismissed appellants' § 1983 action and the pendent state claim.
prison officials to retain his belt, in violation of the prison's own policies. 4
Appellants contend that the court erred in dismissing their § 1983 action and the pendent state law claim, and argue that the court abused its discretion in bifurcating the trial. Appellants also assert that their evidence established a prima facie case of intentional racial discrimination in the juror selection process, and that the district court was incorrect in finding otherwise.
For the reasons stated below, we hold that appellants' offer of proof sufficiently established a prima facie case of negligence under § 1983 and we reverse the court's dismissal of appellants' § 1983 action. We further hold that the court did not abuse its discretion in bifurcating the trial, and that the court correctly concluded that appellants' evidence failed to establish a prima facie case of intentional racial discrimination in the juror selection process. We remand the question of the court's pendent jurisdiction over the state law claim for reconsideration in light of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Appellants allege that the entire procedure used in the Great Falls District to select petit jurors invidiously discriminated against Native Americans, in violation of the equal protection principles embodied in the due process clause of the fifth amendment. 5
The panel of 60 persons from which the jury in this case was drawn was chosen according to the Revised Plan for Random Jury Selection of the District Court for the District of Montana ("The Plan"). 6 In conformity with the plan's requirements, the court clerk selected, at random, the names of 1,000 potential jurors from the voters registration list for the Great Falls District. Juror qualification questionnaires were sent to 300 persons whose names were selected at random in a public drawing from the 1,000 names on the master jury list. As required by statute, 7 the juror questionnaire requested the prospective juror to identify his or her race; thus, the race of the prospective juror was clearly displayed on most of the returned questionnaires. Persons who failed to respond to the initial mailing were sent a follow-up questionnaire. If the prospective juror failed to return the second questionnaire, no further attempts were made to contact that person, although the plan did require that further steps be taken. 8 Ultimately, 287 of the 300 persons completed and returned questionnaires. Because of a realignment of the geographical boundaries of the Great Falls division, 112 additional returned questionnaires from another geographical area were added. All told, 399 persons returned questionnaires, 19 of whom (4.76 percent) identified themselves as Native Americans. 9 The district court took judicial notice of the fact that Native Americans constituted 6.36 percent of the population in the district.
Almost 50 percent of the 399 persons returning questionnaires availed themselves of excuses from jury service available under the jury selection plan; 14 of the 19 persons identifying themselves as Native Americans were among those excused. Among the exemptions available upon request was one for those living 100 miles or more from the courthouse. The record contains no evidence as to the number or race of the persons excused from jury service on the basis of the 100 mile exemption. 10
Of the 200 persons remaining in the jury pool after those requesting excuses were eliminated, only five persons (2.5 percent) remained who identified themselves as Native Americans. None of the 60 persons on the jury panel from which the Hirst jury was chosen were Native Americans. Mary Kendall, an activist in the Native American community, testified that she could recall only one Native American ever being called to serve on a Great Falls federal jury, despite her personal acquaintance with over 5,000 Native Americans of voting age.
Appellants claim that these facts established a prima facie case of intentional racial discrimination in the juror selection process, shifting the burden of proving non-discrimination to the defendants. Appellants' claim rests on two alternative theories. First, appellants contend that the jury selection process resulted in the "progressive decimation" of the number of Native Americans available for jury service: Despite a Native American population of 6.36 percent in the District, at most only 5.26 percent of the persons returning juror questionnaires were Native Americans, and only 2.5 percent of the persons remaining on the jury venire from which petit juries were chosen were Native Americans. We are told that this "progressive decimation" must be viewed in light of the fact that the race of each prospective juror was clearly displayed on the face of the returned questionnaires, affording those...
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