Johnson v. Desmond

• Decision Date: 28 April 1995
• Parties: Charles E. JOHNSON, Appellant, v. David DESMOND, Robert Shearer, William Kelly, Harry Randall, Jim Eiseworth, Appellees.
• Court: Pennsylvania Superior Court

Page 375

658 A.2d 375

441 Pa.Super. 632

Charles E. JOHNSON, Appellant, v. David DESMOND, Robert Shearer, William Kelly, Harry Randall Jim Eiseworth, Appellees.

Superior Court of Pennsylvania.

Submitted Dec. 12, 1994.

Filed April 28, 1995.

Charles E. Johnson, appellant, pro se.

R. Matthew Patch, Williamsport, for Desmond, Shearer, Kelly and Randall, appellees.

Jim Eiseworth, appellee, pro se.

Before WIEAND, HUDOCK and HESTER, JJ.

WIEAND, Judge:

In this action brought pursuant to 42 U.S.C. § 1983 to recover damages for an alleged violation of plaintiff's federal constitutional rights to be free from cruel and unusual punishment and to equal protection of the law, the trial court entered summary judgment in favor of the defendant-correctional officers. After careful review, we reverse and remand for further proceedings.

On October 30, 1989, Charles Johnson was an inmate at the Lycoming County Prison. While asleep in his cell, he was awakened by William Kelly, a correctional officer, who shook and banged upon the cell gate and ordered Johnson out of bed. When Johnson reached the front of his cell, he turned around because of a noise behind him and saw a person emerge from under his bed covered with a white sheet. After Johnson had registered fright, he said, Jim Eiswerth, ¹ another correctional officer, removed the sheet from his person and left the cellblock with Kelly. Both correctional officers were then laughing, and, later, other corrections officers also joked about the incident.

Johnson filed pro se an action alleging that his civil rights had been violated. Although preliminary objections effected a dismissal of the action as to additional corrections officers, the action against Kelly and Eiswerth was allowed to continue, and Johnson was directed to file an amended complaint. After an amended complaint had been filed and Johnson's depositions had been taken, Kelly and Eiswerth filed a motion for summary judgment. The trial court granted this motion, holding that there had been no violation of Johnson's rights under the Constitution.

Appellant's first contention is that the trial court should have appointed counsel to represent him. In actions brought in the federal courts, counsel has occasionally been appointed to represent an indigent prisoner having a meritorious civil rights claim. The authority for such appointment has been found in 28 U.S.C. § 1915(d). See: Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986); Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976), affirmed and modified on other grounds sub nom., Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978). This statute, however, has no applicability to the state courts. There is no authority in this Commonwealth for the appointment of counsel to represent parties in civil actions. See: Weir v. Weir, 428 Pa.Super. 515, 528, 631 A.2d 650, 656 (1993) (reviewing Pennsylvania law and recognizing right to counsel in dependency hearings, proceedings to terminate parental rights and involuntary civil commitment proceedings). The trial court did not err by failing to appoint counsel to represent Johnson in this civil action.

In order to state a valid claim under 42 U.S.C. § 1983, a party must establish two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Oatess v. Norris, 431 Pa.Super. 599, 602, 637 A.2d 627 629 (1994), citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420, 428 (1981). In this case, the first element is satisfied because the conduct complained of was committed by two state prison guards acting while employed to watch over the plaintiff-prisoner.

The Fourth Amendment of the United States Constitution protects the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." However, the United States Supreme Court determined that the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell because the recognition of privacy rights for prisoners in their individual cells cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 402-403 (1984). Thus, even under the unusual circumstances of this case, the entry of appellant's cell by the corrections officers would not constitute a violation of the Fourth Amendment. See: Proudfoot v. Williams, 803 F.Supp. 1048, 1051 (E.D.Pa.1992).

In Hudson v. Palmer, supra, the Supreme Court said that while a prisoner's Fourth Amendment rights are curtailed, the Eighth Amendment of the United States Constitution may provide a remedy for calculated harassment unrelated to prison needs. Id. at 530, 104 S.Ct. at 3202, 82 L.Ed.2d at 405. See also: Proudfoot v. Williams, supra at 1051 ("Searches [of prisoner's cell] can only rise to an Eighth Amendment violation when they are conducted for 'calculated harassment.' "). The Eighth Amendment protects against "cruel and unusual punishments," and is a concept of wide application. In Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971), the Supreme Court of Pennsylvania said:

Just what constitutes cruel and unusual punishment in the constitutional sense is a matter which defies concrete definition. However, it has long been understood that the concept of cruel and unusual punishment is one of wide application, capable of acquiring new depth of meaning to conform to more enlightened concepts of criminal justice. In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590 (1958), the Supreme Court wrote: "The exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.... The Court recognized in [Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ] that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." [Footnotes omitted.] [Emphasis supplied.] Id. [356 U.S.] at 99-101, 78 S.Ct. [at] 597, 598.

Id. 444 Pa. at 95, 280 A.2d at 116. Underpinning the entire body of Eighth Amendment jurisprudence is the "dignity of man." Id. "Intentional harassment of even the most hardened criminals cannot be tolerated by a civil society." Hudson v. Palmer, supra at 528, 104 S.Ct. at 3201, 82 L.Ed.2d at 404.

Not every wrong rises to the level of a constitutional violation. The Civil Rights Act does not seek to redress every injury which might be actionable under a state or common law tort remedy. Ricketts v. Derello, 574 F.Supp. 645, 646 (E.D.Pa.1983). See also: Hudson v. Palmer, supra at 530, 104 S.Ct. at 3202, 82 L.Ed.2d at 405; Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 1412, 51 L.Ed.2d 711, 729 (1977) (violation of prisoner's Eighth Amendment rights must involve the unnecessary and wanton infliction of pain); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir.1985) (allegation that prison guard caused relatively minor injury to prisoner's leg, poked him in back, and spoke in belligerent tone may amount to battery under state law, but failed to state claim under the Eighth Amendment); Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973) (although a complainant may have a cause of action in battery, not every unnecessary push or shove violates a prisoner's constitutional rights); Merritt-Bey v. Salts, 747 F.Supp. 536 (E.D.Mo.1990), affirmed, 938 F.2d 187 (8th Cir.1991) (no constitutional violation where female guard remarked to male prisoner during authorized strip search, "So, it's not true what they say about blacks anyway."); Wright v. Santoro, 714 F.Supp. 665 (S.D.N.Y.1989), affirmed, 891 F.2d 278 (2d Cir.1989)...