Holloway v. Wittry, 4-92-CV-30285.

• Decision Date: 27 January 1994
• Docket Number: No. 4-92-CV-30285.,4-92-CV-30285.
• Citation: 842 F. Supp. 1193
• Parties: Jay HOLLOWAY, Plaintiff, v. Ken WITTRY, sued as Ken Wittery; Duane Sherwood; and Raymond Miller, Defendants.
• Court: U.S. District Court — Southern District of Iowa

842 F. Supp. 1193

Jay HOLLOWAY, Plaintiff, v. Ken WITTRY, sued as Ken Wittery; Duane Sherwood; and Raymond Miller, Defendants.

No. 4-92-CV-30285.

United States District Court, S.D. Iowa, Central Division.

January 27, 1994.

Jeffrey M. Lipman, Des Moines, IA, for plaintiff.

Kristin W. Ensign, Asst. Atty. Gen., State of Iowa, for defendants.

MEMORANDUM OPINION AND ORDER

BENNETT, United States Magistrate Judge.

                TABLE OF CONTENTS
                I.   INTRODUCTION                               1194
                II.  FINDINGS OF FACT                           1195
                III. CONCLUSIONS OF LAW                         1196
                     A. An Overview of the Eighth Amendment     1196
                     B. Pervasive Risk of Harm                  1198
                     C. Failure to Intervene                    1199
                     D. Damages                                 1200
                     E. Attorney Fees                           1202
                

Plaintiff, Jay Holloway, is an inmate at the Iowa State Penitentiary at Fort Madison, Iowa ("ISP"). On December 10, 1990, he was savagely assaulted and pummeled by four other inmates in ISP's prison industries. In this 42 U.S.C. § 1983 action, Holloway alleges that Defendants, various ISP officials, violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to protect him from harm by the attack by the other inmates. Holloway seeks compensatory and punitive damages.

I. INTRODUCTION

Holloway filed a pro se complaint alleging two separate, but related, Eighth Amendment claims. First, Holloway alleged that Defendant Miller, a state industry technician, failed to intervene in a fight between himself and four other inmates, and thereby violated the Eighth Amendment's obligation to protect inmates from harm by other inmates. See generally Smith v. Marcantonio, 910 F.2d 500, 501 (8th Cir.1990). Second, Holloway also alleged that Defendants Wittry and Sherwood, managerial personnel of ISP's prison industries, were ultimately responsible for the beating he sustained because the conditions at ISP's prison industries building created a "pervasive risk of harm." See generally Martin v. White, 742 F.2d 469, 472 (8th Cir.1984).

Experienced counsel was subsequently appointed for Holloway. On February 23, 1993, the parties filed a consent to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This case was tried to the court on November 2, 1993. The matter is now fully submitted.

II. FINDINGS OF FACT

Prison industries at ISP is centered in a four story building. Inmates are assigned to prison industries by a classification committee. Because prison industries is a self-sustained enterprise not subsidized by the State of Iowa, ISP officials attempt to assign only the best behaved inmates to work there. Furthermore, because jobs in prison industries are at the top of the inmate pay structure, inmates have an incentive to be well behaved while working there.¹ There are fewer inmate assaults, in general, in prison industries than in other parts of ISP, such as the yard and gym.

Several security measures are employed in the prison industries building. First, a staff member is required to remain on the floor at all times. There is a staff member assigned to each floor of the prison industries. Second, the industry supervisor makes at least two unannounced rounds of prison industries every day. Additionally, one security officer roves the building the whole day. Third, metal detectors are placed at the entrance to the building. Finally, security checks are made of the tools at the beginning and end of each shift.

Each industry technician carries an emergency beeper by which they can summon security. Defendant Miller carried such a beeper on December 10, 1990. Staff in prison industries are provided with security training. If an inmate requests protection, the industry technician is supposed to provide it by pressing the beeper.² In addition to the roving security officer, two correctional officers man the entrance to prison industries.

Holloway arrived at ISP in June of 1989. In December 1989, Holloway began working in ISP's prison industries building. Holloway worked on the second floor of the building in shop area 291. Shop area 291 is a woodshop in which inmates produce desks, credenzas, and other types of furniture for retail sale. Approximately 15 inmates work in the area.

On December 10, 1990, the state industry technician on the second floor of the prison industries building was Defendant Ray Miller.³ Defendant Duane Ralph Sherwood is ISP's state industry supervisor, and Miller's immediate supervisor. Defendant Kenneth J. Wittry is the plant manager for ISP's prison industries.

On the morning of December 10, 1990, at 6:30 a.m., Holloway commenced work on the second floor of ISP's prison industries building. Holloway was unaware of any inmates who wished to attack him that day. On December 10, 1990, Defendants were unaware of any inmates in prison industries who may have wished to physically harm Holloway. At approximately 9:30 a.m., a correctional officer who was making his rounds in the building stopped on the second floor and engaged an inmate in conversation. Holloway was listening to this discussion when he noticed another inmate motion for him to get the guard out of the area. The inmate who motioned to Holloway and several other inmates had been drinking alcohol in the back of the floor.

After the correctional officer left, the inmate who had motioned to Holloway came up to Holloway and accused him of bringing the correctional officer into the area. The inmate then hit Holloway in the head with his fist three or four times before Holloway knocked the inmate down. There were no correctional personnel in the area at the time of the first assault on Holloway. Almost immediately after Holloway managed to knock his assailant down, three other inmates attacked Holloway. These three inmates hit Holloway with chair frames. Holloway ran into another room in which Defendant Miller was at his desk. The assault ceased at this junction, and Holloway was able to go to the rest room on the floor and wash blood from his face. Holloway did not ask Miller for assistance or speak to Miller at this time.

After Holloway finished washing up, he went to his work area and sat down on a chair. Holloway's work station was approximately 20 feet from Miller's desk. Miller was at his desk at this time.⁴ He was soon assaulted again by the same four inmates. Miller witnessed this portion of the attack. At one point during this attack, Holloway had one of his eyelids poked into his eye. Holloway retreated about ten feet and the second assault ended. He then went back to his work station. By this time Miller was in an adjacent shop area. Miller had left his desk during the second assault without intervening in the assault or summoning assistance.

The inmates then attacked Holloway a third time. Holloway ran to within ten feet of Miller, who was showing two inmates how to run some machinery. Although Miller witnessed this part of the altercation, he took no steps to either intervene in the attack or to summon correctional personnel to aid Holloway. The assault then stopped briefly. Before Holloway could leave the prison industries building, he was assaulted a fourth time by the four inmates. On this occasion, Holloway was trapped in a corner, knocked to the ground, and beaten while lying in the fetal position. The fourth assault on Holloway occurred immediately adjacent to the place where the third assault had occurred and was witnessed by Miller. During the assault on Holloway, inmates gathered around in a circle to watch the fight. The entire period of attacks upon Holloway lasted approximately 20 minutes.

At some point following the fourth, and final assault, Miller called Sherwood, his supervisor, who in turn notified ISP security. Holloway was taken to the prison infirmary. He spent two days there being treated for a broken bone in his hand, and cuts and abrasions over his upper torso, arms, hands and head. Pain from his wounds lasted approximately two and one-half months. Holloway was questioned by ISP security. Holloway, not wishing to be labelled a "snitch" by other inmates, lied to ISP security and told them he had fallen down a flight of stairs.⁵ Holloway was subsequently placed in involuntary protective custody — where he remains.

III. CONCLUSIONS OF LAW

A. An Overview of the Eighth Amendment.

The Eighth Amendment prohibition of "cruel and unusual punishments" has its origin in English law.⁶Furman v. Georgia, 408 U.S. 238, 316, 92 S.Ct. 2726, 2766, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring). Prior to the adoption of the English Bill of Rights in 1689, a prohibition against "excessive punishments in any form" had developed in English common law over the centuries. See Anthony F. Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Cal.L.Rev. 839, 844-47 (1969). The language used in the Eighth Amendment first appeared in the 1689 English Bill of Rights, which was drafted by Parliament and ratified at the accession of the new monarchs, William and Mary. Gregg v. Georgia, 428 U.S. 153, 169, 96 S.Ct. 2909, 2923, 49 L.Ed.2d 859 (1976) (citing Granucci, supra, at 852).⁷ In 1776, Virginia adopted verbatim this language from the English Bill of Rights in its own Declaration of Rights. Furman, 408 U.S. at 319, 92 S.Ct. at 2767 (Marshall, J., concurring). Eight other states soon adopted this clause, and in 1791 it became the Eighth Amendment to the United States Constitution. Granucci, supra, at 840.

In an analysis of the original meaning of the Eighth Amendment's "cruel and unusual" punishment clause, the Supreme Court recognized that:

the English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved.... The American draftsmen ... were primarily

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