Johnston v. Lucas

• Citation: 786 F.2d 1254
• Decision Date: 11 April 1986
• Docket Number: No. 85-4210,85-4210
• Parties: Chester Jordan JOHNSTON, Jr., Plaintiff-Appellee, v. Eddie LUCAS, Aaron Jagers, Major Fred Childs, Barry McGrew, Robert Grayson, James Flowers, J.B. Williams, and Joe Conners, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1254

786 F.2d 1254

Chester Jordan JOHNSTON, Jr., Plaintiff-Appellee, v. Eddie LUCAS, Aaron Jagers, Major Fred Childs, Barry McGrew Robert Grayson, James Flowers, J.B. Williams, and Joe Conners, Defendants-Appellants.

No. 85-4210.

United States Court of Appeals Fifth Circuit.

April 11, 1986.

Robert L. Gibbs, Leonard C. Vincent, Asst. Atty. Gen., Edwin L. Pittman, Atty. Gen., Jackson, Miss., for defendants-appellants.

Jim Waide, West Point, Miss., Jacqueline C. Estes, Tupelo, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before REAVLEY, WILLIAMS and HIGGINBOTHAM, Circuit Judges.

REAVLEY, Circuit Judge:

Eddie Lucas, Aaron Jagers, Fred Childs, Robert Grayson and Barry McGrew appeal the judgment finding them liable for damages, under 42 U.S.C. Sec. 1983, to Chester J. Johnston, an inmate at Mississippi's Parchman State Penitentiary. Johnston sued for injuries he sustained in a beating on January 26, 1980 and a stabbing on December 28, 1981. Both incidents stemmed from animosity between Johnston and fellow inmate George Schwindling; they are otherwise discrete. The district court, in accordance with the recommendations of the magistrate following a three-and-one-half-day bench trial, awarded Johnston $5,000 from McGrew and Grayson for the 1980 incident, and $2,000 from Lucas, Jagers, and Childs for the 1981 incident, plus interest and attorneys fees. We reverse the recovery from Lucas, Jagers, and Childs, and otherwise affirm.

I. THE 1980 INCIDENT

The parties agree that while Schwindling and Johnston were housed in neighboring cells, Schwindling informed a guard, James Flowers, that he intended to knife Johnston. He later repeated the threat to Unit Administrator Childs. When a search of Schwindling's cell turned up a handmade knife, Childs ordered Flowers to move Johnston immediately for his protection. It was early morning, and all of the prisoners in the building were still locked into their cells.

At this point, the accounts diverge. Johnston testified that Flowers summarily ordered him to exchange cells with inmate Shelton Myers. Because the new cell, # 51, was not properly equipped, Johnston asked to speak to the Unit Administrator. Still without explaining the reason for the move, Flowers left and returned with four backup guards, including McGrew and Grayson. Flowers, McGrew and Grayson entered Johnston's cell, # 41, and handcuffed his hands behind his back. Then McGrew, having slipped another set of handcuffs over his left hand like brass knuckles, struck Johnston on his temple, knocking him "semi-conscious." Johnston doubled over onto the bed whereupon Grayson hit him on the back. Johnston fell to the floor and was dimly aware of being kicked repeatedly. Inmate Myers, having packed his belongings for the exchange, was outside Johnston's cell at the time.

Johnston was taken to the hospital where records show he was admitted for an injury to his groin, as well as various abrasions on his head, back, arm and wrists. He was released from the hospital some two weeks later. Medical records of McGrew and Grayson indicate that the knuckles on McGrew's left hand were scraped and Grayson had received a severe bruise on his leg.

The weekly listings of cell assignments showed Myers in # 51 and Johnston in # 41 the week before the incident; the following week, their assignments were reversed. Myers confirmed that he had witnessed part of the attack. Before Flowers blocked his view, Myers testified, he saw Grayson and McGrew hit Johnston and Johnston fall. Schwindling testified that he heard Johnston being beaten and saw him carried away afterwards. Another inmate, Mickey Smith, corroborated Johnston's account in a taped deposition.

Defendants Grayson and McGrew denied that Myers had participated in or seen the move; the new cell was empty and properly equipped at the time. They further testified that Johnston became violent when ordered to move even though Flowers explained about Schwindling's threat. The guards were forced to wrestle Johnston to the bed in order to handcuff him and then to carry him, kicking and screaming, to cell # 51. After being thrust into the cell, Johnston straddled a bed rail and began jumping up and down on it. Fearing he would injure himself seriously, the guards entered the cell and removed the handcuffs whereupon Johnston ripped the fluorescent light bulb out of the socket and smashed it against the door. He was taken to the hospital as a precaution, but was not visibly hurt or in pain. McGrew later wrote up a two-page report detailing the incident, without referring to Johnston's conduct on the bed.

Relying primarily on the documentary evidence and on Myers' corroboration of Johnston's testimony, the magistrate concluded that McGrew and Grayson had used unnecessary force to move Johnston to cell # 51, thereby causing Johnston's injuries. He found the testimony of the defendant guards incredible and recommended joint and several liability for the damages. The district court adopted these recommendations after a four-month review of the record. ¹

Following the court's announcement of its decision, defendants moved for a new trial because Myers recanted his testimony. The motion was denied.

Discussion

Defendants McGrew and Grayson primarily dispute the lower court's findings of fact. As an appellate court, we can reverse factual findings, especially credibility findings, only if they are "clearly erroneous." Fed.R.Civ.P. 52; Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518, 528 (1985). "A court of appeals has neither permission nor prerogative to reappraise the credibility of witnesses." Olgin v. Darnell, 664 F.2d 107, 108 (5th Cir.1981) (citations omitted).

Both the magistrate and the district court chose to believe, in substantial portion, Johnston's version of the facts. These findings are not clearly erroneous; on the contrary, there is substantial evidence in the record to support them. Johnston's testimony is consistent with both the medical records and the cell assignment lists, as well as with the corroborating testimony of Myers, Schwindling and Smith. Defendants' explanations, particularly when viewed as a whole, are somewhat strained.

Moreover, the court correctly applied those facts to the appropriate legal standard. The focus of Sec. 1983 is on the "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482, 5 L.Ed.2d 492, 503 (1961) (quoting United States v. Classic, 313 U.S. 299, 325-26, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). See also Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662, 665-66, 88 L.Ed.2d 662 (1986); Coon v. Ledbetter, 780 F.2d 1158, 1163 (5th Cir.1986); Rankin v. City of Wichita Falls, 762 F.2d 444, 447 (5th Cir.1985). Prison officials can incur liability under Sec. 1983 when their abuse of power inflicts cruel and unusual punishment on prisoners. To determine whether physical abuse by prison guards constitutes an abuse of power, the court must consider three factors: the amount of force exerted relative to the need for its application; the extent of the injury inflicted; and the motivation of the officers. Williams v. Kelley, 624 F.2d 695, 697 (5th Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981); see also McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499, 78 L.Ed.2d 691 (1983); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

We accept the district court's conclusion that, under the facts of this case, the amount of force exerted was "grossly disproportionate" to the need, and the injury relatively severe. Similarly, the facts, as decided by the court, add up to more than "mere careless or unwise excess of zeal," see Shillingford, 634 F.2d at 265. There is no legal error in the court's judgment.

New Trial Motion

Defendants also contend that the court erroneously denied their motion for a new trial following Myers' recantation of his testimony. This contention has no merit.

The district court has discretion to grant a new trial based on newly discovered evidence. La Fever, Inc. v. All-Star Insurance Corp., 571 F.2d 1367, 1368 (5th Cir.1978). In reaching its decision, it must consider whether the new facts (1) would probably change the outcome; (2) could have been discovered earlier with due diligence; and (3) are merely cumulative or impeaching. Id.; see also English v. Mattson, 214 F.2d 406, 409 (5th Cir.1954).

We find no abuse in the court's application of this standard. It considered the three factors and acted well within its discretion in denying defendants' motion.

II. THE 1981 INCIDENT

Following the 1980 knife threat, duly noted somewhere in the inches-thick "central files" of both Schwindling and Johnston, the two men were separated for some eighteen months. Then, in September 1981, Schwindling was moved to Unit 4 where Johnston was already housed. Schwindling threatened Johnston, they got into a "scuffle" in October, and Johnston complained to the Unit 4 Administrator. Schwindling also told the Administrator that he intended to harm Johnston. The Administrator then informed Jagers, whose approval was needed for all transfers between units, that Johnston should be separated from Schwindling because the two could not live together. Although Schwindling was evidently moved first for assaulting a guard, Jagers approved Johnston's transfer to Unit 24 on October 26, where he was assigned to Building C. ²

After his release from administrative detention the following week, Schwindling was also approved for transfer to Unit 24. Remembering that he and Johnston could not live together, Jagers told someone ³ at Unit 24 to place Schwindling in the Extension. No record was made of this directive,...