Johnson v. Glick, No. 845

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: MOORE, FRIENDLY and FEINBERG, Circuit
• Citation: 481 F.2d 1028
• Parties: Australia JOHNSON, Plaintiff-Appellant, v. A. GLICK, Warden of Manhattan House of Detention for Men, 125 White Street, New York, N. Y.; Employee-Officer John, #1765 Badge Number, Manhattan House of Detention for Men, 125 White Street, New York, N. Y., Defendants-Appellees.
• Decision Date: 29 June 1973
• Docket Number: Docket 72-2428.,No. 845

481 F.2d 1028 (1973)

Australia JOHNSON, Plaintiff-Appellant,
v.
A. GLICK, Warden of Manhattan House of Detention for Men, 125 White Street, New York, N. Y.; Employee-Officer John, #1765 Badge Number, Manhattan House of Detention for Men, 125 White Street, New York, N. Y., Defendants-Appellees.

No. 845, Docket 72-2428.

United States Court of Appeals, Second Circuit.

Argued May 30, 1973.

Decided June 29, 1973.

481 F.2d 1029

Emil M. Rossi, New York City (John E. Sprizzo, and Curtis, Mallet-Prevost, Colt & Mosle, New York City, of counsel), for appellant.

Eric J. Byrne, New York City (Norman Redlich, Corp. Counsel, City of New York, and Stanley Buchsbaum, New York City, of counsel), for appellees.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal concerns an order of the District Court for the Southern District of New York dismissing a complaint under the Civil Rights Act, 42 U.S.C. § 1983, 28 U.S.C. § 1343(3), for failure to state a claim on which relief can be granted. The complaint was brought against the Warden of the Manhattan House of Detention for Men and a correction officer, described in the complaint only as Officer John, Badge No. 1765, but now identified as John Fuller, by plaintiff Australia Johnson, who had been held in the House of Detention prior to and during his trial in the state courts on felony charges. It alleged that, while plaintiff was being checked back into the House of Detention, Officer Fuller reprimanded Johnson and other men for a claimed failure to follow instructions; that when Johnson endeavored to explain that they were doing only what another officer had told them to do, Officer Fuller rushed into the holding cell, grabbed him by the collar and struck him twice on the head with something enclosed in the officer's fist; that during this incident the officer

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threatened him, saying "I'll kill you, old man, I'll break you in half"; that Fuller than harassed Johnson by detaining him in the holding cell for two hours before returning him to his cell; that when Johnson requested medical attention, Fuller, who was called upon by another officer to escort Johnson to the jail doctor, instead held him for another two hours in another cell before permitting him to see the doctor; and that despite the "pain pills" given him by the doctor, Johnson has since "been having terrible pains in his head."

Recognizing that there were numerous decisions in other circuits that would seem to uphold the validity of the complaint as against the officer, as well as one to the contrary, Judge Knapp nevertheless dismissed the complaint, saying "So far as I am aware no decision in this circuit requires such a conclusion, and it is one at which I would arrive only under constraint." Although we realize that upholding this complaint may well lead to considerable further expansion of actions by state prisoners under 42 U.S.C. § 1983, so long as they may bring their civil rights complaints directly to federal courts without first presenting them to state courts,¹ we think the ruling was in error so far as the officer was concerned.

The longest line of authority for the proposition that a complaint alleging an unprovoked attack on a prisoner by a state prison guard is within 42 U.S.C. § 1983 comes from the Ninth Circuit. The first case in the line is Brown v. Brown, 368 F.2d 992 (9 Cir. 1966), where, however, the complaint alleged other deprivations of civil rights.² This was followed by Dodd v. Spokane County, 393 F.2d 330, 333-334 (9 Cir. 1968), although the complaint there alleged not brutality simpliciter but the administration of violence in an effort to cause Dodd to testify falsely in another's criminal trial. Next came Wiltsie v. California Department of Corrections, 406 F.2d 515 (9 Cir. 1968). Although this was a case of beating pure and simple, the court, over Judge Chambers' dissent held it to be "indistinguishable from Brown v. Brown," supra. To the same effect is Allison v. California Adult Authority, 419 F.2d 822 (9 Cir. 1969), where the court followed Brown despite its recognition "that frivolous Civil Rights suits by prison inmates have become a matter of concern to district courts" and its belief that "Allison's allegations of physical abuse stretch one's credulity."

Several other circuits have reached the same result. Bethea v. Crouse, 417 F.2d 504 (10 Cir. 1969); Collum v. Butler, 421 F.2d 1257 (7 Cir. 1970); Tolbert v. Bragan, 451 F.2d 1020 (5th Cir. 1971); Howell v. Cataldi, 464 F.2d 272 (3 Cir. 1972). Still others, though they apparently have not yet been faced with precisely the issue posed by this complaint, have sustained civil rights actions involving closely related situations. Jenkins v. Averett, 424 F.2d 1228 (4 Cir. 1970) (police brutality following arrest); Carter v. Carlson, 144 U.S.App. D.C. 388, 447 F.2d 358 (1971) (same), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Fitzke v. Shappell, 468 F.2d 1072 (6 Cir. 1972) (failure to provide medical care for prisoner). Only one circuit is clearly to the contrary, Cole v. Smith, 344 F. 2d 721 (8 Cir. 1965).

Aside from the weight of all this authority, we are not so certain as was the

481 F.2d 1031

district judge that the slate in this circuit is completely clean. In Martinez v. Mancusi, 443 F.2d 921 (2 Cir. 1970), we upheld a civil rights complaint against prison officials which was read to allege "a deliberate indifference to, and defiance of, the express instructions of the operating surgeons and the hospital attendants," 443 F.2d at 924; it seems hard to draw a satisfactory legal distinction between such conduct and the deliberate infliction of physical suffering in a non-medical setting. In Inmates of the Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 22-24 (2 Cir. 1971), we granted preliminary injunctive relief where there had been a record of "beatings, physical abuse, torture, running of gauntlets, and similar cruelty." While some emphasis was placed on the continuing and systematic acts of the correctional officers, this was said more in justification of issuance of an injunction than as a predicate for actionability. And, subsequent to Judge Knapp's decision, we have stated in dictum

We assume that brutal police conduct violates a right guaranteed by the due process clause of the Fourteenth Amendment.

Rosenberg v. Martin, 478 F.2d 520, 526 (2 Cir. 1973).

The great weight of authority in favor of the assumption thus stated in Rosenberg has not been accompanied by an equivalent amount of analysis. Many of the opinions, including our own in Martinez and Inmates, rely on a passing reference to the "cruel and unusual punishment" clause of the Eighth Amendment. The most extensive judicial treatment of the subject, Judge Aldisert's opinion in Howell v. Cataldi, supra, 464 F.2d at 280-282, likewise relies on that clause.

A case like this, however, does not lie comfortably within the Eighth Amendment. The text:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted suggests action taken, usually by a court, in carrying out a legislative authorization or command. The language, as is well known, is practically a verbatim copy of the tenth clause of the English Bill of Rights, 1 Wm. & Mary, 2d sess., ch. 2 (1688), which, in turn, embodied a corresponding section of the Declaration of Rights that was a cornerstone of the settlement of the Glorious Revolution. Although George Mason, who drafted the similar clause in the Virginia Declaration of Rights, which was the more immediate progenitor of the Eighth Amendment, may have been mistaken in thinking that the provision was aimed merely at torturous rather than at excessive punishments,³ there can be no disagreement that what sparked the English provision was the conduct of judges under James II. The background of our own Bill of Rights, however, makes clear that the Eighth Amendment was intended to apply not only to the acts of judges but as a restraint on legislative action as well. See In re Kemmler, 136 U.S. 436, 446-447, 10 S.Ct. 930, 34 L.Ed. 519 (1890); Weems v. United States, 217 U.S. 349, 371-373, 378-379, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Furman v. Georgia, 408 U. S. 238, 266-269, 92 S.Ct. 2726, 33 L.Ed. 2d 346 (1972) (concurring opinion of Mr. Justice Brennan).⁴ Indeed, every decision of the Supreme Court striking down a punishment under the Eighth Amendment has concerned a legislative act. Weems v. United States, supra; Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion of Chief Justice Warren); Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Furman v. Georgia, supra.

481 F.2d 1032

We do not suggest, however, that the cruel and unusual punishment clause must necessarily be read as limited to acts of legislatures in authorizing sentences or of judges imposing them. It can fairly be deemed to be...